- (1.) By the Court.-This reference has been made for an authoritative pronouncement on the issue of applying the rule of reservation for schedule caste candidates in aided educational institutions (High School & Intermediate) in promotion and direct recruitment against Class III posts (clerical grade) to the extent of 21 % provided for under the statute and the application of the roster through a mathematical calculation integrated with legal implications where the number of posts in a sanctioned cadre is less than five.
(2.) It entails an adjudication on the questions posed by one of us (Hon'ble A.P. Sahi, J.) vide order dated 7th October, 2009 passed in Heera Lal v. State of U.P. and others, 2009 (10) ADJ 654 Paras 9 to 12, quoted below: "9....:.A perusal of the said two Division Bench judgments in the case of Vishwajeet Singh (Supra) and Smt Pholpati (supra) indicate that the applicability of the roster can be implemented wherever there are five or more than five posts to be filled up where reservation is being claimed under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1994. The said decision clearly lays down : that there has to be existence of more than five posts for the purpose of applying roster otherwise it would violate the law in Indira Sahani's Case as reservation will then be in excess of 50%. Having perused the ratio of the two division Bench judgments it appears that the same has not been noticed in the decision in Mahendra Kumar Gond's case. The decision in the case of Dr. Vishwajeet was rendered on 20th April 09 whereas decision in the case of Pholpati Devi was rendered prior to that. 10. Both these decisions appear to have escaped the notice of the Court and the applicability of the roster in the situation where there are only three posts available 11. In this view of the ratio laid down in the two judgments of Dr. Vishwajeet Singh and Smt. Pholpati Devi (Supra) there appears to be a contradictory position indicated in Mahendra Kumar Gond's case and as such the same deserves to be resolved by reference to a larger Bench. 12. Accordingly, in exercise of the powers conferred under Chapter 5 Rule 6 of the Allahabad High Court Rules, the following questions deserve to be referred to a larger Bench, in view of the position indicated above. 1. Whether the roster in respect of reservation can be applied with regard to the promotion in respect of Class III posts in Intermediate College, where the number of posts is less than five? 2. Whether there is a conflict between the ratio of the two Division Bench judgments of Mahendra Kumar Gond (supra) and Dr. Vishwajeet Singh (supra) as referred to herein above, and if so, then which of the decisions lay down the law correctly?
(3.) The reference has to be answered in the context of the provisions contained in U.P. Act No. 4 of 1994 read with the Government Orders dealt with hereinafter and Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921, in order to specify as to how and in what circumstances, the roster for implementing the rule of reservation has to be applied.;