- (1.) HEARD learned Counsel for the appellant, Sri Santosh Srivastava appearing for respondent No. 6 and learned Standing Counsel.
(2.) THIS appeal has been filed against the judgment and order dated 11th August, 2005 passed by a learned single Judge of this Court dismissing the writ petition filed by the appellant. The facts giving rise to this appeal, in brief, are; the appellant is working as Assistant Teacher in LT Grade in a recognised institution, namely, Durga Bari A.B. Girls Inter College, Meerut. One post of lecturer psychology fell vacant on the retirement of one Smt. Kanta Jain on 30th June, 2002. The vacancy of lecturer psychology was a vacancy covered under 50% promotion quota from amongst the existing LT Grade teachers. The post of lecturer psychology was reserved for scheduled caste category candidate. There being no eligible Assistant Teacher LT Grade in scheduled caste category, the committee of management forwarded the vacancy to the Commission converting the same for direct recruitment from amongst the scheduled caste candidate. Respondent No. 6 claims to be selected by U.P. Secondary Education Services Selection Board as lecturer psychology as a scheduled caste category candidate. The selection of respondent No. 6 as scheduled caste category candidate was challenged by the appellant in the writ petition. The appellant's claim in the writ petition was that in the event the scheduled caste category candidate was not available, the post which was under promotion quota ought to have been filled up by promotion of general candidate and the said post cannot be converted as a post under direct recruitment for scheduled caste category candidate. The writ petition of the appellant was dismissed by the learned Single Judge relying on his lordships earlier judgment dated 9th August, 2005 in Writ Petition No. 8540 of 1996, Rama Kant Misra v. Committee of Management.
(3.) LEARNED Counsel for the appellant in support of this appeal has made following submissions: (i) Reservation in promotion is applicable by virtue of the Government Order dated 12th July, 1978 issued by the State Government providing for reservation in Non -Government aided higher secondary schools. It is contended that the Government order itself provides that in the event any reserved category candidate is not available then the post has to be filled up by such category candidate whose quota is unfilled and in the event no candidate of any reserved category is available then the said post under promotion quota shall be filled up by general category candidate. On the strength of the said Government order, it is contended that the post of lecturer psychology, which was reserved of scheduled caste category, ought to have been filled up by general category candidate. (ii) Assailing the correctness of the judgment in Rama Kant Misra's case (supra), it is contended that learned single Judge erroneously assumed that the Government order dated 12th July, 1978 has been modified by subsequent Government order dated 18th December, 1990. It is contended that Government order dated 18th December, 1990 is not applicable with regard to reservation in private aided institutions. He contended that Government order dated 18th December, 1990 not being applicable, the Government order dated 12th July, 1978 still holds the field. It has further been contended that by such erroneous assumption that the Government order dated 12th July, 1978 has been modified, learned single Judge took the view that the post under promotion quota reserved for scheduled caste category candidate cannot be filled up by promotion of general category candidate. ;