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1.Whether the roster in respect of reservation can be applied with regard to the promotion in respect of class 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 judgements 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 ?

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.

The specific case which has given rise to the reference in both the cases that are before us, namely Writ Petition No. 51617 of 2009, Heera Lal Vs. State of U.P. and Writ Petition No. 31716 of 2004, Satyavrat Nath and others Vs. State of U.P., is that the sanctioned strength of the post of clerks (Class III posts) are three, and in such a situation whether one of the posts could be offered to a candidate of the Scheduled Caste Category by way of reservation. The said three sanctioned posts form the total cadre strength in both the Institutions which are governed by the provisions of the 1921 Act and the Regulations framed thereunder. The Institutions where the claim is staked are privately managed and receiving grant-in-aid from State funds. The financial approval and sanction of the post in question and disbursement of salary to the employees is governed by the statutory provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act No. 24 of 1971.

In our opinion, it was therefore necessary for the learned Single Judge to have referred the matter to a larger bench for an authoritative pronouncement as to the correct position of law. This was also necessary as the learned Single Judge was bound by the Division Bench judgment in the case of Mahendra Kumar Gond (supra) which was directly in issue in relation to a Class III post of an Intermediate College governed by the 1921 Act and also arose out of a claim against one post out of the total cadre strength of three posts in the Institution. The learned Single Judge, therefore, faced with the aforesaid Division Bench judgment in the present cases as well, was obliged to refer the matter after noticing the two earlier Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi. This is in consonance with the law enunciated by our Full Bench in the case of Rana Pratap Singh Vs. State of U.P., reported in (1995) Allahabad Civil Journal 200 and also in view of the latest Supreme Court decision in the case of Official Liquidator Vs. Dayanand, reported in (2008) 10 SCC Pg.1. Without delving on this any further, we may add that the answer to the first question would either way resolve the issue, and as such question no. 2 stands answered accordingly.