Dilip B Bhosale, C.J. - (1.) Two learned Judges of this Court finding themselves unable to agree with the view taken by a Coordinate Bench in Dr. Vishwajeet Singh and ors. Vs. State of U.P. and ors, 2009 4 ADJ 373 as well as that expressed by a Full Bench of this Court in Heera Lal vs State Of U.P. & Others, 2010 6 ADJ 1 (FB) in Dr. Archana Misra and others Vs. State of U.P. and others [Writ-A No. 51212 of 2010] have formulated the following questions to be considered and decided by a Bench of more than three Judges: 1. Whether the rules of reservations under the U.P. Act No. 4 of 1994 are applicable to appointment on the post of lecturers, by direct recruitment, in the aided postgraduate and undergraduate colleges in the State of UP, affiliated to the State Universities by clubbing all the vacancies as provided under Section 12 (3) of the UP Higher Eduction Service Commission Act, 1980 subject-wise; or the vacancies have to be worked out for applicability of rules of reservation college-wise and subject-wise? 2. Whether there has to be plurality posts in the cadre, for applying the rules of reservation, which means more than one; or there has to be at least five posts in the cadre for applying the rules of reservations? 3. Whether the vacancies arising in any recruitment year under Rule 3 (2) of UP Act No. 4 of 1994 can be filled up separately even if they have not been advertised earlier, in that recruitment year or in the subsequent recruitment year, or such reserved vacancies have to be advertised at least once to be carried over for the recruitment in the same year or in the subsequent year? 4. What is the meaning of the words 'unfilled vacancies' in Section 3 (2) of UP Act No. 4 of 1994? 5. Whether Dr. Vishwajeet Singh's case and the Full Bench decision in Heera Lal's case have been correctly decided?"
(2.) Although it initially appears from the record that the matter was placed and also considered by a Full Bench comprising of three Hon'ble Judges, when this matter was taken up for hearing on 26 September 2018, we noticed that the Division Bench while referring the questions for consideration of a larger Bench, had specifically observed that the matter must be placed before a Bench of more than three learned Judges. The direction as framed by the Division Bench appears to have been guided by the fact that it had also disagreed with the judgment rendered in Heera Lal which was decided by a Full Bench comprising of three Hon'ble Judges of this Court. Accordingly the Full Bench was reconstituted by an order passed on the administrative side. This Bench has, upon reconstitution, heard learned counsels for parties at length on Question No. 5 as framed in the reference order. The deliberations were restricted to Question No. 5 since we found that the decision in Dr. Vishwajeet Singh had been subjected to challenge before the Supreme Court in Civil Appeal Nos. 6385-6386 of 2010. The said Civil Appeals came to be dismissed by the Supreme Court on 19 January 2017 in the following terms: "We have heard learned counsel for the parties at length. We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed. The civil appeals are accordingly dismissed. No costs. Pending applications, if any, shall also stand disposed of. sd/-(ADARSH KUMAR GOEL) sd/- (UDAY UMESH LALIT)"
(3.) In view thereof, it is not in dispute that if it is ultimately held that the view/opinion expressed by the Division Bench in Dr. Vishwajeet Singh's stands confirmed and merged in the order of the Supreme Court, it would not be necessary for the reference to be addressed on merits.;