AJOY NATH RAY, CJ., ASHOK BHUSHAN, JJ. ( 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. ( 3 ) 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. Grils 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 L. T. 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 UP. 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 appellants 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 ). ( 4 ) 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- Govt. aided higher secondary schools. ( 4 ) 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- Govt. 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 Misras 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. ( 5 ) LEARNED counsel for the contesting respondent No. 6 contended that post was rightly filled up by direct recruitment by scheduled caste candidate. He contended that there being no eligible candidate under the scheduled caste category in the institution for being promoted as lecturer psychology, the management did not commit any error in intimating the vacancy to he commission for direct recruitment for scheduled caste category candidate. ( 6 ) LEARNED standing counsel has submitted that the Governmnent order dated 12th July, 1978 still holds the filed and there is reservation in promotion on the post of lecturer in aided institutions. ( 6 ) LEARNED standing counsel has submitted that the Governmnent order dated 12th July, 1978 still holds the filed and there is reservation in promotion on the post of lecturer in aided institutions. ( 7 ) SHRI R. S. Parihar, learned counsel for the Selection Board submitted that the management had sent the requisition for selection by direct recruitment of scheduled caste category candidate and the Selection Board has rightly selected respondent No. 6 and sent her name for appointment in the institution. ( 8 ) WE have considered the submissions and perused the record. ( 9 ) THE recruitment on the post of lecturer in a recognised institution is governed by the provisions of UP. Secondary Education Services Selection Board Act, 1982 and the Rules 1998 framed thereunder. Section 10 (1) of the Act provides that for the purposes of making appointment of a teacher, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in. the case of post other than the post of head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the scheduled castes, the scheduled tribes and other backward class. ( 10 ) LEARNED single Judge in his judgment has referred to various judgments of this Court including the Division Bench judgment of this Court reported in 1981 U. P. LB. E. C. 521; krishna Pal Singh v. Government of U. P. and Ors. by which judgment the Government order dated 12th July, 1978 was upheld providing for reservation in promotion in the aided institution. It has not been disputed before us that reservation is also applicable in the promotion. The question which has been raised before us is as to whether in a vacancy which is covered under promotion quota and is reserved for scheduled caste category candidate and no reserved category candidate is available, the same can be filled up by promotion from amongst the eligible general category candidates. The Government order dated 12th July, 1978 as well as the Government order dated 18th December, 1990 have been quoted in extenso in the judgment of learned single judge in Rama Kant Misras case (supra ). The Government order dated 12th July, 1978 as well as the Government order dated 18th December, 1990 have been quoted in extenso in the judgment of learned single judge in Rama Kant Misras case (supra ). The Division Bench in Krishna Pal Singhs case (supra) has already held that the Government order dated 12th July, 1978 has statutory force which is referable to Section 9 (4) of the U. P. Intermediate Education Act, 1921. The government order dated 18th December, 1990, as quoted in the judgment of learned single judge, contains the following subject: "rajyadheen AADI SEVAON KE PADONNATI KOTE MEIN ANUSUCHIT JATI/ janjati KE ABHYARTHIYON KI BINA BHARI HUYEE ARACHHIT RIKTIYON Kl purti" ( 11 ) FROM very heading of the said Government order, it is clear that the said Government order was issued with regard to the post under the State Government. The post of lecturer in an institution is a post not under the State Government but the post of lecturer is a post in the institution. Every institution is a separate unit and the Government order dated 18lh December, 1990 is not meant for the reservation in Non-Government aided institutions. ( 12 ) THERE is no dispute between the parties that Government order dated 12th July, 1978 which provides for reservation in private aided institution is still in force. By virtue of Section 3 (7) of up, Act No. IV of 1994 the reservation which was in force under the Government orders for appointment to posts to be filled by promotion such Government orders shall continue to be applicable till they are modified. Both the counsel proceeded on the premise that the government order providing for reservation in promotion is applicable and the post in question, i. e. , post of lecturer psychology was reserved for scheduled caste candidate. ( 13 ) IN view of the stand taken by the counsel for both the parties, we have neither examined the question regarding applicability of the reservation in the promotion nor we may be understood to have given any opinion on the above issue since the said issue does not fall for our consideration in the present appeal. ( 13 ) IN view of the stand taken by the counsel for both the parties, we have neither examined the question regarding applicability of the reservation in the promotion nor we may be understood to have given any opinion on the above issue since the said issue does not fall for our consideration in the present appeal. The question, which is involved in the present appeal, depends on the interpretation of the Government order dated 12th July, 1978 and as to whether the said government order stood modified by the Government order dated 18th December, 1990 as quoted in the judgment of learned single Judge in Rama Kant Misras case (supra ). The government order dated 12th July, 1978 is also quoted in extenso by learned single Judge in rama Kant Misras case (supra ). The subject of the said Government order specifically provides for reservation to scheduled castes, scheduled tribes and other backward class in recognised non government aided higher secondary schools. Thus the subject matter of the government order is specifically with regard to reservation in appointment in the non government aided higher secondary schools. This Government order subsequently was also modified by another Government order dated 26th April, 1983 which is also quoted in the judgment of learned single Judge in Rama Kant Misras case (supra) which bears the same subject, i. e. , reservation in appointment to scheduled caste, scheduled tribes and other backward class in non government aided higher secondary schools. Thus whenever the Government orders were issued regarding reservation they were issued specifically with regard to appointment of teachers in the non government aided higher secondary schools. The subsequent Government orders dated 7th February, 1990 and 18th December, 1990, which have also been quoted in the judgment of learned single Judge in Rama Kant Misras case (supra) were not issued for the teachers in higher secondary schools but the subject of the said Government orders were "government service". The Government order dated 18th December, 1990 specifically notes the words "rajyadheen AADI SEVAON". The words "rajyadheen AADI SEVAON" at best has to be understood as the services under the government or at best the authorities or instrumentalities of the State Government which are envisaged under Article 12 of the constitution. The said Government orders do not relate to the Non-Government aided private educational institutions. The words "rajyadheen AADI SEVAON" at best has to be understood as the services under the government or at best the authorities or instrumentalities of the State Government which are envisaged under Article 12 of the constitution. The said Government orders do not relate to the Non-Government aided private educational institutions. The above Government orders were not issued with regard to educational institutions as is clear from the wording of the Government order dated 7th february, 1990 which provides that in the event of non availability of the reserved category candidate, the vacancy should not be filled up by other category candidate and in case of administrative exigency the same can be filled with the prior approval of the Chief Minister. The approval of the Chief Minister will be required only with regard to Government servant and in service condition of the employees which are governed by UP. Act No. 5/1982 or the Rules framed thereunder there is no contemplation of any approval by the Chief Minister. The learned single Judge in Rama Kant Misras case (supra) has held that the vacancies which were reserved for promotion for scheduled caste category candidate can be converted for direct recruitment by virtue of the Government order dated 18th December, 1990 and the learned single judge in Rama Kant Misras case (supra) has also held that Government order dated 12th July, 1978 stands modified by Government order dated 18tth December, 1990. In view of the fact that we have found that the Government order dated 18th December, 1990 is not application to the non-Government private aided institutions, the very premise on which the learned single Judge proceeded to decide the controversy becomes erroneous. ( 14 ) THE Government order dated 12th July, 1978 as modified by Government order dated 26th april, 1983 still continues and the issue which is involved in the present case is fully covered by clause-5 of the said Government order. Clause-5 of the Government order dated 12th July, 1978 is extracted below: "5. JAHAN UPARYUKTA VARGON MEIN SE KOI BHI AISA VARG NA HO JISKA KOTA apurna HO, ATHWA JAHAN KOI AISA VARG HO JISKA KOTA APURNA HO KINTU us VARG KA KOI NIRDHARIT YOGYATADHARI ABHAYARTI UPLABDHA NA HO, to NK DASHA MEIN WAH RIKTI SAMANYA ABHAYARTHIYON SEBHARIJAYEGI. Clause-5 of the Government order dated 12th July, 1978 is extracted below: "5. JAHAN UPARYUKTA VARGON MEIN SE KOI BHI AISA VARG NA HO JISKA KOTA apurna HO, ATHWA JAHAN KOI AISA VARG HO JISKA KOTA APURNA HO KINTU us VARG KA KOI NIRDHARIT YOGYATADHARI ABHAYARTI UPLABDHA NA HO, to NK DASHA MEIN WAH RIKTI SAMANYA ABHAYARTHIYON SEBHARIJAYEGI. " ( 15 ) CLAUSE-5 permits filling of the post meant for reserved category candidate by another reserved category candidate whose quota is unfilled and in the event there is no eligible candidate in any of the reserved categories then the said post can be filled up by general category candidate. Learned single Judge has not adverted to Clause-5 which is complete answer of the issue involved in the present case. ( 16 ) THE learned single Judge in Rama Kant Misras case (supra) also referred to 100 point roster issued by the State Government vide Government order dated 26th June, 2002 and has also made reference to the judgment of the apex Court in R. K. Sabharwal and Ors. v. State of punjab and Ors. , AIR1995 SC 1371 , [1995 (70)FLR985], JT1995 (2)SC 351 , 1995 Lablc1618 , 1995 (1)SCALE685 , (1995)2 SCC745 , [1995]2 SCR35 , 1995 (3)SLJ227 (SC ). ( 17 ) IN the present case, there is no dispute that the post of lecturer psychology which fell vacant, was for the reserved category candidate. The question as to whether 100 point roster issued by the Government order for promotion is also applicable in the institution does not fall for our consideration since it is not the case of any of the parties that the post which fell vacant does not fall for the reserved category candidate. The post admittedly fall under the reserved category and there is no case of any alleged violation of the roster point. The judgment in R. K. Sabharwals case (supra) was a case in which claim was made by the genera! category candidates that those reserved category candidates who have been promoted on merit apart from the roster point reserved for scheduled castes and scheduled tribes should be adjusted in the quota which is required to be given in the entire cadre. The judgment in R. K. Sabharwals case (supra) was a case in which claim was made by the genera! category candidates that those reserved category candidates who have been promoted on merit apart from the roster point reserved for scheduled castes and scheduled tribes should be adjusted in the quota which is required to be given in the entire cadre. The said argument was rejected and the apex Court held that roster points which are reserved for the reserved category candidate has to be filled up in accordance with the roster and there shall be running account of roaster points. The question which has arisen in the present appeal was neither involved nor the judgment of the apex Court in R. K. Sabharwals case (supra) is attracted in the facts of the present case. ( 18 ) AS observed above, the judgment of Rama Kant Misras case (supra) given by learned single Judge, following which the writ petition of the appellant was dismissed, proceeded on the premise that the Government order dated 18th December, 1990 specifically permits for converting the post for promotion which is reserved for scheduled caste category candidate into a direct recruitment and vice versa although the said Government order is not applicable in the present case and the case of the appellant is fully covered by Clause-5 of the Government order dated 12" July, 1978, we cannot agree with the view taken by the learned single Judge in Rama kant Misras case (supra ). We hold that the judgment in Rama Kant Misras case (supra) does not lay down the correct law. The writ petition of the appellant was dsmissed on the basis - of the said judgment. ( 19 ) RULE 10 of the UP. Secondary Education Services Selection Board Rules, 1998 provides for source of recruitment to various categories of teachers. For lecturer grade 50% quota are to be filled up by direct recruitment and 50% by promotion from amongst substantively appointed teachers of the trained graduate grade. Proviso to the said Rule provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. Thus only in the event suitable eligible candidates are not available for recruitment for promotion, the post can be filled up by direct recruitment. Rule 10 of 1998 Rules is quoted below: "10. Thus only in the event suitable eligible candidates are not available for recruitment for promotion, the post can be filled up by direct recruitment. Rule 10 of 1998 Rules is quoted below: "10. Source of recruitment- Recruitment to various categories of teachers: (a) Principal of an By direct recruitmentintermediate College orheadmaster of a Highschool (b) Teachers of lecturers (1) 50 percent by directrecruitment. (ii) 50 percent by promotion trained from amongst substantivelyappointed teachers of (C)Teachers of framed substantive teachers graudate grade. Promotion from amonst graduate grade appointed grade; of Certificate of training provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment; provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post" rule 14 of 1998 Rul6s requires consideration of all trained graduate grade teachers to be considered where any vacancy is to be filled up by promotion. Rule 14 of 1998 Rules is quoted below for ready reference:"14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade. or the trained graduates grade, as the case may be, without their having appointed for the same. " ( 20 ) FROM conjoint reading of the aforesaid two rules, it is clear that every teacher of the trained graduates grade who possess the qualification prescribed for the post and has completed five years continuous regular service is entitled to be considered for any vacancy which is to be filled up by promotion without having applied for the same. Even on the strength of Clause-5 of the government order dated 12th July, 1978 when a post reserved for any reserved category candidate cannot be filled up due to non availability of eligible candidates the same has to be filled up by any other reserved category candidate whose quota is unfilled and in the event of non availability of any reserved- category candidate the post can be filled up by general category candidate, the above clause implies a duty on the authorities to consider the case of trained graduate grade teachers for promotion of general category in the event no eligible candidate of any, reserved category is available. In the present case admittedly no eligible candidate of scheduled caste category was available in trained graduate grade for being promoted as lecturer psychology. It is not the case of any of the parties that apart from scheduled caste category candidate there was any other reserved category candidate available for promotion on the post of lecturer psychology, consequently the post of lecturer psychology was to be filled up by considering the general category candidates fulfilling the qualification for promotion by virtue of clause-5 of the Government order dated 12th July, 1978 as noted above. ( 21 ) ALTHOUGH the appellant has contended that no requisition was sent by the college for direct recruitment but there is material on the record, as pointed out by Sri R. S. Parihar, learned counsel for the Selection Board, that management has sent the requisition for the post of lecturer psychology for filling it by direct recruitment by a scheduled caste category candidate. The copy of the said requisition was brought on the record of the writ petition by counter affidavit filed on behalf of UP. Secondary Education Service Selection Board. It is, thus, clear that committee of management after converting the post of lecturer psychology from promotion quota to direct recruitment quota for scheduled caste category sent requisition for direct recruitment. Sending the requisition for filling the post by direct recruitment by a scheduled caste category candidate without considering general category candidates available in the trained graduates grade fulfilling the eligibilities was contrary to law and cannot be sustained, consequently the selection made by UP. Secondary Education Services Selection Board on the basis of the said requisition by direct recruitment by scheduled caste candidate cannot be sustained. Secondary Education Services Selection Board on the basis of the said requisition by direct recruitment by scheduled caste candidate cannot be sustained. The selection of respondent No. 6 and sending her name " by the UP. Secondary Education Services Selection board to the institution for appointment on the post of lecturer psychology, thus, cannot be sustained and is hereby quashed. The respondents are directed to consider the appellant for promotion on the post of lecturer psychology in accordance with law. We, however, observe. that respondent No. 6 having been selected by the Board as scheduled caste category candidate, it is open for respondent No. 6 to represent to the UP. Secondary Education Services Selection board to adjust respondent No. 6 in any other institution according to her merit and preference. ( 22 ) IN the result, the appeal is allowed. The judgment and order of learned single Judge dated 11th August, 2005 is set-aside. The writ petition is allowed to the extent as indicated above. ( 23 ) PARTIES shall bear their own costs. . .