- (1.) THIS writ petition raises substantial questions of laws-Mr. Amit Bose, learned counsel for the petitioner has challenged the validity of the Government order dated 10-10-1994 whereby percentage of reservation for Scheduled Caste officers for promotion to the next higher post has been raised from 18% to 21%, Mr. Bose has further challenged the validity of the amending rules made under proviso to Article 309 of the Constitution of India on 10-10-1994 whereby the criterion of selection on the basis of merit (sic) the seniority subject to the rejection of the unfit. He has also drawn our attention to the decision of the Hon'ble Supreme Court in the case of Indra Sahney AIR 1993 SCR 477, wherein it has been held that no reservation in promotional posts is permissible under Article 16 (4) of the Constitution of India but the existing provision of reservation in promotions can be continued only for five years.
(2.) SRI S. M. A. Kazmi learned standing counsel has appeared on behalf of the opposite party Nos. 1, 2 and 3 prays for and is granted two weeks to file a counter-affidavit. SRI Amit Bose, learned counsel for the petitioner may file rejoinder affidavit within a week thereafter. ' In application reliance has been placed on three G. Os. issued by the State of Uttar Prades, first one dated 8-3-1972, the second one dated 18-8-1973 and the third one is of 27-12-1974 and on the strength of the on-tents thereof it was argued that since on the day the judgment came to be pronounce in Indra Sahney rules were in existence permitting promotion by reservations also and, therefore, for a period of five years at least reservations can be continued in promotional posts. It was further pointed out that several other petitions have already been filed, some of which have been admitted and some are pending admission some of which affidavits have been called in reply. This is not being disput ed on behalf of the petitioner. Likewise it was mentioned that even in the Lucknow Bench of this Court some petitions raising like questions have been filed and are pending decision.
(3.) NOT only that the questions raised are important but have for reaching consequence and, therefore, it is desirable that authoritative pro nouncement on the questions raised arrived at by a Larger Bench. Let the papers of this case be put up before Hon'ble the Chief Justice for getting the matter listed preferably before a Larger Bench at the earliest convenience. The Registry is directed to prepare a list of all the cases in which these ques tions are arising and help has been promised at the instance of the standing counsel and the learned counsel for the petitioner on the basis of which at the time of listing of this petition a bunch will be prepared showing names and particulars of all these cases. The fact that 31 vacancies exist for the post of Superintending Engi neer has not been denied and the added fact that none other than nine promo-tees from reserved category only are being said to be appointed to the said posts of Superintending Engineer makes it explicit that many other vacan cies could also be filled which have not so far been done. Even if some pro motions from out of the reserved category is made the officers in excess of the quota of 18% can be asked to wait from the final decision of the court so that interest of justice as well as the rights of the parties are fully protected.;