R. A. SHARMA, J. Petitioner is holding the post of Chief Veterinary Officer, which is a Class II post and the next post to which he could look for ward is Class I post, which includes the post of Deputy Director. The strength of Class I service, according to the petitioner, is 61, whereas according to some of the respondents, it is 62. The quota reserved for Scheduled Castes for promotion is 18% and for Scheduled Tribes, it is 2%. It is admitted case of both the parties that 12 Scheduled Castes candidates have already been promo ted to Class I posts from the quota reserved for them. In this manner the Scheduled Caste candidates are already having 18% posts of Class I. In this cadre 22 posts are vacant on account of which respondents have constituted a Departmental Promotion Committee (hereinafter referred to as the D. P. C.) for selecting the candidates for promotion. The D. P. C. has ear-marked 4 out of 22 vacancies for Scheduled Castes candidates and the remaining 18 vacancies are to be filled by the candidates of general category. It also appears that the D. P. C. has already made selection of 4 Scheduled Castes candidates, who have been arrayed as respondents to this writ petition. Petitioner has filed this writ petition for writ of madamus directing the respondents not to implement the recommendation of the D. P. C. held on 17- 5*1994, so far as it relates to the selection of 4 Scheduled Caste candidates for promotion to 4 Class I posts. Prayer for quashing the Government Order dated 30-11-1991, which provided for roster system, has also been made. This Court has granted interim order in this petition. 2. Respondents have filed counter-affidavits and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the parties. 3. Prayer for quashing the Government Order dated 30-11-1991, which provided for roster system, has also been made. This Court has granted interim order in this petition. 2. Respondents have filed counter-affidavits and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the parties. 3. Learned counsel for the petitioner has raised four contentions, namely, (i) there cannot be any reservation in promotion ; (ii) in any case there cannot be reservation in promotion when promotion is to be made on the basis of seniority subject to rejection of unfit ; (iii) no appointment/promo tion of Scheduled Caste candidates can be made in excess of 18% of the total strength of the cadre unit; and (iv) the Government Order dated 30-11-1991, providing for continuance of roster even after the quota of 18% for Scheduled Caste is complete, is illegal. 4. Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 , has laid down that reservation in promotion is not permissible under law. However, his Lordship Honble B. P. Jeevan Reddy, J. has further laid down that wherever reservations are provided in the matter of promotion, such re servation will continue in operation for a period of five years from the date of the judgment. Relevant extract from his Lordships judgment is as under : "however, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect the promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central services or State services or for that matter services under any corporation, authority or body falling under the definition of "state" in Article 12- such reser vations shall continue in operation for a period of five years from this date. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue to relevant Rules to ensure the achievement of the objective of Article 16 (4 ). " Although Honble B. P. Jeevan Reddy, J. has given the judgment foe himself and on behalf of Honble M. H. Kania, CJ. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue to relevant Rules to ensure the achievement of the objective of Article 16 (4 ). " Although Honble B. P. Jeevan Reddy, J. has given the judgment foe himself and on behalf of Honble M. H. Kania, CJ. Honble M. N. Venkatachaliah, J. and Honble A. M. Ahmadi, J. but on the question of reservation in promotion Honble A. M. Ahmadi, J. (as his Lordship then was) was of the opinion that this question did not arise for consideration in that case and hence need not be answered. As such the judgment of Honble Jeevan Reddy, J. on the question of continuance of reservation in promotion is for himself and on behalf of the then Chief Justice, Honble Mr. Justice M. H. Kania and Honble M. N. Venkatachaliah, J. Honble Mr. Justice Pandian, J. shared the view of Honble Jeevan Reddy, J. on this question. Thus the law laid down by Honble Jeevan Reddy, J. regarding continuance of the policy of reservation in promotion for a period of five years is for and on behalf of four out of nine Honble Judges, who constituted Bench. A Division Bench of this Court in Ashok Kumar Gupta v. State o/u. P. , 1993 ALJ 1341, has held that Honble Supreme Court in the case of Indra Sawhney (supra) has laid down that there cannot be any reservation in promotion. It was further held that the direction issued by four Honble Judges regarding continuance of reservation in promo tion for a period of five years are the directions under Article 142 of the Constitution and are, as such, binding. Therefore, wherever there was reservation in promotion in service it will continue for a further period of five years from the date of the judgment in Indra Sawhneys case, (16-11-1992 ). Although we agree with the learned counsel for the petitioners that there can not be reservation in promotion but if there was reservation in promotion in the service in question, same is liable to continue for a period of five years, which is to be counted from 16-11-1992 unless the Government withdraws/ cancels such a reservation earlier. 5. Although we agree with the learned counsel for the petitioners that there can not be reservation in promotion but if there was reservation in promotion in the service in question, same is liable to continue for a period of five years, which is to be counted from 16-11-1992 unless the Government withdraws/ cancels such a reservation earlier. 5. The Government of U. P. vide Government Orders dated 20-8-1974, 27-12-1974 and 5-7-1984 has provided for reservation in promotion where promotion is to be made on the basis of seniority subject to rejection of unfit. Rule 7 provides for promotion to Class I posts of Deputy Director or the posts equivalent to it on the basis of seniority subject to rejection of unfit. The Government Orders providing for reservation in promotion made on the basis of seniority subject to rejection of unfit, are thus fully applicable to the instant case. These orders will continue for a period of five years to be counted from 16-11-1992. The first contention of the learned counsel has, therefore, to be rejected. 6. The second contention of the learned counsel is that when promotion is to be made on the basis of seniority question of making reservation does nut ari^e. In support of this contention reliance has been placed on para graph 103 of the judgment delivered by Honble B. P. Jeevan Reddy, J. in Indra Sawhneys case, relevant extract from which is reproduced below : "reservation in the case of promotion is normally provided only where the promotion is by selection, i. e. , on the basis of merit. For, if the promotion is on the basis of seniority, such a rule may not be called for, in such a case the position obtaining in the lower cate gory gets reflected in the higher category (promotion category) also. Where, however, promotion is based on merit, it may happen that members of backward classes may not get selected in the same proportion as is obtained in the lower category. In view to ensure similar representation in the higher category also, reservation is thought of even in the matter of promotion based on selection. " 7. When promotion is to be made under the rules on the basis of seniority, there may not be any justification for making reservation. Reserva tion in such cases results in promotion of those, who are junior. " 7. When promotion is to be made under the rules on the basis of seniority, there may not be any justification for making reservation. Reserva tion in such cases results in promotion of those, who are junior. Such a pro motion is, therefore, contrary xo the rules, which provide for promotion on the basis of seniority. But the Government orders, making provisions for reserva tion in promotion even in those cases where promotion is to be made on the basis of seniority subject to rejection of unfit, were issued in 1974 and 1976 and have continued in force since then. We do not find any justification now to set aside those orders when they have remained in operation for about 20 years and their life span is only five years from the date of the judgment of the Supreme Court in Indra Sawhneys case, i. e. , up to 15- 11-1997. Although we have allowed the application of the petitioner for amendment of the writ petition so as to enable him to challenge those Government orders ; but for the reasons mentioned above we do not consider it a fit case to interfere with those orders under Article 226 of the Constitution. This contention is accord ingly rejected. 8. The third and fourth contention of the learned counsel for the peti tioner being inter-linked have to be decided together. Article 16 (4) of the Constitution enables the State to make provisions for the reservation of appointments or posts in favour of any backward class of citizen, which is not adequately represented in the service under the State. In exercise of power conferred by the above provisions, the Government of U. P. has reserved 18% and 2% posts in favour of Scheduled Caste and Scheduled Tribes respec tively. Therefore, in the opinion of the Government reservation of 18% posts in favour of Scheduled Caste candidates is necessary to make their representa tion in the service of the State adequate. It is not open to the State to make appointments/promotions of Scheduled Caste candidates in excess of 18% either directly or indirectly. 9. Supreme Court in Indra Sawhneys case has held that reservation under Article 16 (4) of the Constitution should not exceed 50%. It is not open to the State to make appointments/promotions of Scheduled Caste candidates in excess of 18% either directly or indirectly. 9. Supreme Court in Indra Sawhneys case has held that reservation under Article 16 (4) of the Constitution should not exceed 50%. It has also laid down in paragraph 96 of its judgment that for the purpose of applying the rule of 50% a year should be taken as the unit and not the total strength of the cadre, service or the unit. In this connection it has further been laid down that the equality of opportunity guaranteed by Clause (1) of Article 16 of the Constitution to every citizen and the reservation provided in Clause (4) for backward classes have to be balanced against each other so that neither can eclipse the other. In this connection relevant passage from the judgment is quoted below : "it must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not entire strength of the cadre, service or the unit, as the case may be. " Although 50% is the maximum limit up to which the State can make reserva tion under Article 16 (4) of the Constitution, but it is not bound to provide for reservation up to the maximum limit. If it has reserved less than 50% posts, year will be taken as the unit for that percentage. In the instant case reservation in promotion for Scheduled Castes has fixed by the Government at 18% and, therefore, a year will be treated as the unit for applying the rule of 18%. 10. In this connection the Government has laid down the roster for appointing S. C. candidates to the extent of 18%. According to the roster out of 25 vacancies, vacancies Nos. 1, 7, 13, 19 and 25 have been reserved for them. This roster has also been applied in case of promotion. 10. In this connection the Government has laid down the roster for appointing S. C. candidates to the extent of 18%. According to the roster out of 25 vacancies, vacancies Nos. 1, 7, 13, 19 and 25 have been reserved for them. This roster has also been applied in case of promotion. It appears that earlier after the Scheduled Caste candidates were appointed or promoted up to the maximum limit of 18%, no further appointments/promotions from their cate gory used to be made, but the Government of U. P. has issued an order dated 30-11-1991 directing the roster system is to be adopted as a continuous process and it has to be applied even after the quota reserved for Scheduled Castes candidates is complete and there is no vacancy in their quota. The result is that even after 18% appointments/promotions of Scheduled Castes have been made, they will continue to be appointed. Although the Government order fixing 18% quota for Scheduled Caste candidates remains in tact, but by the above order Schedule Castes candidate are allowed to be appointed/promoted in excess of their quota. It is on the basis of the above Government order that the 4 Scheduled Caste candidates have been selected by the D. P. C. for promotion to Class I posts of Veterinary service even though the 18% quota reserved for them is already complete and there is no vacancy in their quota. Such a course is not permissible. Once the Government has fixed the per centage of reservation under Article 16 (4) of the Constitution, it is not open to it either directly or indirectly to make appointment in excess of that quota. After the appointments/promotions have been made up to the maximum limit fixed by the Government under Article 16 (4) of the Constitution, roster has to be suspended till the vacancy, arises in the reserved quota. Roster is merely procedure for making appointment/promotion of the candidates belonging to backward classes up to the maximum limit fixed by the Government. It can not be used as a device for making appointment in excess of that limit. If appointments/promotions of the Scheduled Castes candidates are allowed to be made every year even after their quota is over, it will affect and eclipse the right guaranteed to every citizen under Article 16 (1) of the Constitution. It can not be used as a device for making appointment in excess of that limit. If appointments/promotions of the Scheduled Castes candidates are allowed to be made every year even after their quota is over, it will affect and eclipse the right guaranteed to every citizen under Article 16 (1) of the Constitution. In this connection it may be mentioned that the candidates of general category get the promotion to higher posts at the advance age and they retire shortly thereafter as compared to the candidates of Scheduled Castes. This can be illustrated from paragraph 26 to 28 of the writ petition in which it has been mentioned that the petitioner joined the U. P. Veterinary Service Class II in 1961 and the respondents, who have been selected by the D. P. C. joined that service in 1971,1974, 1979, 1984 and 1989 respectively. It is also mentioned that Scheduled Castes candidate, who was recruited in the year 1971 was superseded earlier. Petitioner when filed this writ petition was 55 years old. He will thus, hardly get a period of less than three years even if he is promoted to Class I post. He is thus bound to retire much earlier than those, who joined the service much later. Therefore, higher posts held by general candi dates fall vacant regularly almost every year. If candidates of reserved cate gories are allowed to be promoted every year against those vacancies irrespective of the quota fixed for them, the day will not be far off when they will hold majority of those posts, although their quota is only 18%. This will be violative of Article 16 (1) of the Constitution. 11. The decision of the Supreme Court in Hira Lal v. District Judge, Ghaziabad, AIR 1984 SC 1212 , cannot be of any assistance for this case, because it was decided in view of the fact that there was nothing on the record to indicate as to whether some of the recruits of the earlier years belonging to Scheduled Castes had come on the basis of over all merit without reference to reservation. Relevant passage in this connection is reproduced below : "it is not known whether some of the recruits of earlier years already in service belonging to the Scheduled Caste had come on the basis of over all merit without reference to reservation. Relevant passage in this connection is reproduced below : "it is not known whether some of the recruits of earlier years already in service belonging to the Scheduled Caste had come on the basis of over all merit without reference to reservation. "on this premise, if the provision of reservation had to be kept in view the petitioner was bound to have been recruited. We, therefore, direct the appointing authority to appoint the petitioner in that vacancy and five out of the six who are respondents 1 to 8 before us according to their proposition in the final merit list shall be retained. " In the instant case it has come on the record that all the 12 Scheduled Castes candidates, who have already been promoted, have come on the basis of reservation only and their promotion was not on the basis of merit. 12. In this connection learned counsel for the respondents have also contended that one of the post, which is earmarked for candidates of Scheduled Tribes, is liable to be allotted to Scheduled Castes candidates in view of the Government orders, which provide that in the absence of availability of a candidate of Scheduled Tribe, the vacancy may be allotted to the candidate of Scheduled Caste. The petitioner in his affidavit has stated that there is already a candidate belonging to Scheduled Tribe and question of allotting the vacancy of Scheduled Tribe to the Scheduled Caste candidates as such does not arise. The factual position in this regard is not very clear. The Government will look into this matter and pass appropriate orders in accordance with law. 13. This writ petition is allowed. Government order dated 30-11-1991 (Annexure IV to the writ petition) is quashed. Selection of the Scheduled Castes candidates (respondents) for promotion to the posts of Veterinary Service Class I is also quashed. Respondents are directed to fill those posts from the candidates of general category in accordance with law. In view of the facts and circumstances of the case, there shall be no order as to costs. Petition allowed. .