( 1 ) PETITIONER claims that he was appointed on the post of Peon at Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya Keshav Nagar, Ismailganj, Allahabad. It has been contended that his appointment was approved on 28. 11. 2006 by District Inspector of Schools, Allahabad. Petitioner has contended that he is having educational qualification upto Intermediate. Petitioner has detailed out the fact that there is only one post of Junior Clerk in the said institution where classes are running up to High School. Said sole post of Clerk of the institution fell vacant on account of attaining the superannuation by one Onkar Nath Shukla on 31. 12. 2006. Petitioner has contended that in the institution in question he was the only employee in the institution entitled to be promoted as such his claim for promotion is liable to be considered as said post falls within promotion quota. Petitioner has contended that he has been requesting for according promotion to the petitioner. Petitioner has contended that in stead of considering the claim of the petitioner for being accorded promotion the District Inspector of Schools has passed order dated 28. 11. 2006 directing adjustment of Laxmi Narain Pathak as Clerk in the institution. ( 2 ) ON presentation of present writ petition before this Court, this Court passed following order which is being quoted below: "the Associate District Inspector of Schools Allahabad is present on behalf of District Inspector of Schools, Allahabad. A statement has been made on his behalf by the learned Standing Counsel that the order dated 28th November, 2006 has been issued in ignorance of the fact that there is only one Class-III post sanctioned in Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya Keshav Nagar, Ismailganj, Allahabad. Since there is one Class -III post sanctioned, is to be filled by way of promotion in view of the Division Bench Judgment of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others (2006 ADJ (9) 292 passed in Civil Misc. Writ Petition No. 68636 of 2005 decided on 27th April 2006. It has been stated that appropriate orders correcting the mistake so committed shall be issued within one week from today. It has been further stated that rights of Laxmi Niwas Pathak who is working as Clerk on compassionate ground against supernumerary post, shall not be jeopardised in any manner. Writ Petition No. 68636 of 2005 decided on 27th April 2006. It has been stated that appropriate orders correcting the mistake so committed shall be issued within one week from today. It has been further stated that rights of Laxmi Niwas Pathak who is working as Clerk on compassionate ground against supernumerary post, shall not be jeopardised in any manner. In view of the said statement no further orders are required to be passed in the present writ petition. With the aforesaid observations/directions the present writ petition is disposed of finally. " ( 3 ) AGAINST the said order dated 13. 02. 2007 Special Appeal No. 227 (Defective) of 2007 has been filed and therein on 14. 03. 2007 following order has been passed which is being quoted below: "1. Heard Shri Manoj Kumar, learned counsel for the appellant. The contesting respondent 4 represented by one Shri B. R. Yadav has also been heard as well as the learned standing counsel. 2. The case of the appellant is that on the demise of his father he was appointed on a Class-III post in a school on a post created as a supernumerary post by way of compassionate appointment. Subsequently on a regularvacancy occurring in Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya he was shifted over there and it is his case that he joined over there on 1. 2. 2007. 3. Thereafter the respondent No. 4 appears to have filed a writ petition claiming that he is entitled to that post by way of promotion since, i. e. , there is only a single post and that he is an employee in that very school. The learned Single Judge has disposed of the petition of respondent No. 4 which has been done without notice to the appellant though while observing that the rights of the appellant will not be affected. The appellant has challenged that order, he wants to know where he should work. That is not clear from the order of the learned Single Judge and that is not passed without considering his difficulties. 4. In the circumstances for the only reason that the impugned order is an ex-parte order, we set aside and restore the petition to the learned Single Judge. The learned Single Judge will examine the submissions of the respondent No. 4, the appellant and of the Government and decide as to where the respondent no. 4. In the circumstances for the only reason that the impugned order is an ex-parte order, we set aside and restore the petition to the learned Single Judge. The learned Single Judge will examine the submissions of the respondent No. 4, the appellant and of the Government and decide as to where the respondent no. 4 as well as the appellant ought to work. In the meanwhile the appellant will continue to work in Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya. We request the learned Single Judge to hear and decide the restored petition at his earliest preferably within eight weeks. The certified copy of the order has been filed and the appeal be numbered. " ( 4 ) THEREAFTER counter affidavit has been filed and therein it has been contended that Laxmi Niwas Pathak has been appointed as Junior Clerk on compassionate basis under Dying in Harness Rule in Saraswati Inter College Marro, Allahabad by creating supernumerary post on 13. 12. 1996. It has been contended that single post of clerk at Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya Keshav Nagar, Ismailganj, Allahabad fell vacant, consequently the District Inspector of Schools, Allahabad following the judgment and order dated 04. 08. 2006 passed by this Court, absorbed the Laxmi Niwas Pathak against the aforesaid vacant post by passing the order dated 28. 11. 2006. It has further been contended that deponent was relieved from the previous institution on 25. 01. 2007 and joined the present institution on 01. 02. 2007. It has also been contended that petitioner is real brother of driver of District Inspector of Schools, Allahabad and in league with the Principal of the present college, he has manipulated the things. It has also been contended that absorption of Laxmi Niwas Pathak on the post of Clerk in the present college in no way can be treated as direct recruitment under the provision as contained in Regulation 106 of Chapter III of U. P. Act No. II of 1921, as such question of filling up the post by way of promotion occupied by Laxmi Niwas Pathak does not arise. It has also been contended therein that as there is single post of Clerk in the present college filling up the same by way of promotion according to the provision as contained in Regulation 2 (2) of Chapter III of U. P. act No. II of 1921 does not arise. It has also been contended that the view taken by the Division Bench of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others reported in 2006 (9) ADJ 292 (All) (DB), is incorrect view. After pleading mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. ( 5 ) SRI B. R. Yadav, learned counsel for the petitioner contended with vehemence that post in question in all eventulity is liable to be filled up by way of promotion and the adjustment of Laxmi Niwas Pathak is totally unwarranted and unjustifiable and as such action of District Inspector of Schools by directing adjustment is totally unjustifiable view, and is liable to be quashed. ( 6 ) SRI Manoj Kumar, Advocate on the other hand contended that there is single post of clerk and single post can not be filled by by way of promotion, and as there is provision of adjustment and which has been rightly made in the present case is justifiable adjustment as such same warrants no interference by this Court. ( 7 ) AFTER respective arguments have been advanced, factual position which is emerging is to the effect that petitioner Rakesh Bahadur Singh has been appointed as Class IV employee in the institution concerned and he claims that he is entitled to be accorded promotion on the said single post of Junior Clerk which has fallen vacant in the institution concerned on 31. 12. 2006 on account of attaining the age of superannuation of Onkar Nath Shukla. As to whether single post of Clerk in the institution is to be filled up by way of promotion or by way of direct recruitment has already been answered by the Division Bench of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others reported in 2006 (9) ADJ 292 (All) (DB) while answering the reference made by learned Single judge on 28. 10. 2005. District Inspector of Schools, Gautambudh Nagar and others reported in 2006 (9) ADJ 292 (All) (DB) while answering the reference made by learned Single judge on 28. 10. 2005. Sri Manoj Kumar, Advocate has placed heavy reliance on the judgment of in the case of Post Graduate Institution of Medical Education and Research, Chandigarh Vs. Faculty Association and others reported in AIR 1998 S. C. 1767 for the proposition that single post can not be reserved for promotion quota. Argument which has been advanced by Sri Manoj Kumar, Advocate has already been repelled in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others reported in 2006 (9) ADJ 292 (All) (DB) by holding that single post has to be filled up by way of promotion and while interpreting the Rules regarding promotion concept, the reservation has no application. Once judgment in the case of Post Graduate Institution of Medical Education and Research, Chandigarh (supra) has been exhaustively dealt with, then there is no occasion to take different view to the view which has already been taken in the case of Jai Bhagwan Singh (supra) which has been taken on reference being made. Judicial discipline does not warrant to sit as an appellate authority over the judgment of Division Bench of this Court specially when the view taken is correct view and in line with the judgment of Honble Apex Court in the case of State of Punjab Vs. R. N. Bhatanagar reported in 1999 (1) ESC 348. Relevant extract of the aforesaid Division Bench judgment is being quoted below: the writ petitioner has been working as a Class-IV employee in a recognised aided Institution governed by U. P. Intermediate Education Act, 1921. In the Institution, there is only one sanctioned post of Clerk, which fell vacant due to death of its last incumbent, namely, Ratan Pal Singh on 15. 12. 1994. The Committee of Management passed a resolution in favour of the writ petitioner promoting him from Class-IV to the post of Clerk. The District Inspector of Schools, vide his letter dated 25. 2. 1995 approved the promotion of the writ petitioner as Clerk, and the writ petitioner thereafter started functioning on the post of Clerk. The father of respondent no. 3-Ratan Pal Singh abovementioned, who was working as Clerk in the Institution died. Thereafter the respondent no. The District Inspector of Schools, vide his letter dated 25. 2. 1995 approved the promotion of the writ petitioner as Clerk, and the writ petitioner thereafter started functioning on the post of Clerk. The father of respondent no. 3-Ratan Pal Singh abovementioned, who was working as Clerk in the Institution died. Thereafter the respondent no. 3 claimed his appointment on compassionate ground on the post of Clerk; respondent no. 3 was appointed as a Clerk against supernumerary post by the order of the District Inspector of Schools dated 7. 4. 1995. In the year 2004, one vacancy of Clerk arose at Rajendra Prasad Intermediate College, Vilaspur, District Gautam Budh Nagar. The District Inspector of Schools passed an order dated 13. 12. 2004 directing the adjustment of respondent no. 3 in the aforesaid Institution. Respondent no. 3 could not join and subsequently the District Inspector of Schools, vide his letter dated 9. 7. 2005 cancelled the attachment of respondent no. 3 as well as the promotion of the writ petitioner vide his order dated 15. 10. 2005. The District Inspector of Schools in his order has taken the view that since there was only one post of Clerk in the Institution, the said post cannot be filled by promotion of the writ petitioner. The District Inspector of Schools was of the view that single post can never be filled by promotion. ( 8 ) THE said order was challenged by the writ petitioner in the writ petition, and after hearing the learned counsel for the parties, the learned Single Judge referred the question for our consideration, as noted above. Chapter-III Regulation-2 of the U. P. Intermediate Education Act, 1921 has been framed under Section 16-G of the 1921 Act providing for promotion from Class-IV to Class-III. Chapter-III Regulation-2, which is relevant for the purposes of this case, is quoted below:- "2. (1) For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management. " Note.--In calculating fifty per cent of posts parts less than half would be left and half or more that half post would be deemed as one. ( 9 ) A learned Single Judge of this Court in Palak Dhari Yadav Vs. Regional Inspectors of Girls Schools and others, reported at 1999 (3) UPLBEC 2315 considered the Regulation 2 (2) of Chapter-III and took the view that a single post of Clerk cannot be filled up by promotion. The learned Single Judge placed reliance on the judgment of the apex court, reported at AIR 1998 S. C. 1767: Post Graduate Institution of Medical Education and Research, Chandigarh Vs. Faculty Association and others, and has taken the view that permitting the filling up of a single post by promotion is 100% reservation by promotion, and the ratio laid down by the apex court in the said judgment is also applicable with regard to the promotion. The learned Single Judge also took the view that the rule making authority while enacting Regulation 2 (2) did not visualise reservation of only one post for promotion. It was further held that the note comes into play only where there is more than one post. The learned Single Judge doubted the correctness of the said decision and has made reference. ( 10 ) SRI V. K. Goel, learned counsel appearing for the writ petitioner submitted that a bare reading of the statutory scheme as is delineated from reading of Regulation 2 (2) and the note indicates that if there is only one post, the said post can be filled by promotion. ( 10 ) SRI V. K. Goel, learned counsel appearing for the writ petitioner submitted that a bare reading of the statutory scheme as is delineated from reading of Regulation 2 (2) and the note indicates that if there is only one post, the said post can be filled by promotion. He submits that the promotion is a different concept as compared with the reservation and the judgment of the apex court, which has been relied by the learned Single Judge in Palak Dhari Yadav case (supra) had no application. He submits that Regulation 2 (2) provides for channel of promotion from two sources, which channel of promotion is inviolable and can be only changed by amendment of the Rules. He has placed reliance on the judgements of the apex court, reported at 1999 SCC (Lands) 513: State of Punjab and others Vs. Dr. R. N. Bhatnagar and another, JT 2001 (1) S. C. 47: Kuldeep Kumar Gupta and Ors. Vs. H. P. S. E. B. and Ors and (1976) 2 SCC 901 : V. B. Badami and others Vs. State of Mysore and others. ( 11 ) SRI A. P. S. Raghav, learned counsel appearing for respondent no. 3 has submitted that promoting a single post of Clerk is nothing but 100% reservation denying the rightful claim of other candidates to participate in the recruitment of the post. He submits that in event a single post is to be filled by promotion, no chance will be availed by candidates claiming appointment on the post. He has placed reliance on the same judgment of the apex court in Post Graduate Institution of Medical Education and Research, Chandigarh (supra ). Learned Standing Counsel has also reiterated his submission supporting the view taken by this Court in Palak Dhari Yadav case (supra ). Learned Standing Counsel submits that the applicability of the note will arise only where there are more than one post. He submits that a single post of Clerk can never be filled by promotion. ( 12 ) WE have considered the submissions and perused the records. For the filling up of a post by promotion, it is for the rule making authority to provide for the manner and procedure. Regulations have been framed providing for procedure and manner for making appointment on various Class-III and Class-IV posts. ( 12 ) WE have considered the submissions and perused the records. For the filling up of a post by promotion, it is for the rule making authority to provide for the manner and procedure. Regulations have been framed providing for procedure and manner for making appointment on various Class-III and Class-IV posts. The rule making authority has provided that 50% post of the clerical cadre including the post of head clerk shall be filled by promotion from the serving Class-IV employees. The promotion is a right given by the rule making authority to the existing Class-IV employees of an Institution. For knowing the exact scheme and the percentage of the promotion on the posts, which are to be filled up, we have to revert to Regulation 2 (2 ). A plain reading of the Regulation 2 (2) especially the Note makes it clear that in calculating fifty per cent of posts parts less than half would be left and half or more than half would be deemed as one. Thus the Note contemplates that half or more than half post would be deemed as one. The note is a part of Regulation 2 and provides for filling up 50% post of total number of sanctioned posts through promotion. Thus, if only half falls in promotion quota, the same will be filled up by promotion. ( 13 ) BEFORE proceeding any further, the submission of the learned Standing Counsel that note will come into play only where there are more than one post, needs to be considered. In an Education Institution receiving the aid from the State, the posts are created by the Director of Education exercising powers under Section 9 of the Act 24 of 1971. There are no such rules that there has to be more than one posts of Clerk in every institution; there are large number of Institutions, where only one post of Clerk is sanctioned, as in the present case. Section 13 (2) of the Uttar Pradesh General Clauses Act, 1904 provides that words in the singular shall include the plural, and vice versa. Section 13 of the Act is quoted below:- "13. Gender and number.--In all [uttar Pradesh] Acts, unless there is anything repugnant in the subject or context,-- (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa. Section 13 of the Act is quoted below:- "13. Gender and number.--In all [uttar Pradesh] Acts, unless there is anything repugnant in the subject or context,-- (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa. " ( 14 ) THUS a bare reading of note of Regulation 2 (2) of the Regulations makes it clear that if there is only one sanctioned post, the same is to be filled up through the channel of promotion since 50% of one shall be half and half or more than half is to be deemed as one, as per the legal fiction contemplated in the note. ( 15 ) THE learned Single Judge in Palak Dhari Yadav (supra) has placed reliance upon the judgment of the apex court in the case of Post Graduate Institution of Medical Education and Research, Chandigarh (supra ). The apex court in Post Graduate Institution of Medical Education and Research, Chandigarh (supra) was considering the question of applicability of reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes categories for filling the posts. The concept of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes referable to Article 16 (4) of the Constitution is a different concept as compared to the right of promotion, which is a right given to existing employees. The reservation, as contemplated under Article 16 (4), is a different concept with entire different object. The judgment relied upon by the learned Single Judge in Palak Dhari Yadav (supra) was not a case dealing with the promotion or right of serving employees. ( 16 ) THE Apex Court in State of Punjab and others (supra) had occasion to consider almost similar controversy. The Punjab Medical College Education Service (Class-I) Rules, 1978 provided for method of appointment, 75% by promotion and 25% by direct recruitment. The question arose in that context. The submission raised before the apex court that in view of the observations made in R. K. Sabharwal Vs. State of Punjab, reported at (1995) 2 SCC 745 , the determination as to whether the vacancy will go to the promote or direct recruitment will be decided. The question arose in that context. The submission raised before the apex court that in view of the observations made in R. K. Sabharwal Vs. State of Punjab, reported at (1995) 2 SCC 745 , the determination as to whether the vacancy will go to the promote or direct recruitment will be decided. The submission was made before the apex court that the judgment of R. K. Sabharwals case (supra), which was dealing with the reservation to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes under Article 16 (4), has nothing to do, while interpreting the Rules pertaining to the quota fixed for only by promotion or direct recruitment, this submission was accepted by the apex court. In the aforesaid judgment, the apex court had also occasion to consider the Post Graduate Institution of Medical Education and Research, Chandigarh (supra) and held that the judgment of Post Graduate Institution of Medical Education and Research, Chandigarh (supra) had no applicability, while considering the quota for promotion and direct recruitment. Following was observed by the apex court in paragraph 12:- "12. Before parting with the discussion, we may mention one submission placed for our consideration by learned counsel for the respondent. Placing reliance on a latter Constitution Bench judgment in Postgraduate Institute of Medical Education and Research Vs. Faculty Assn. it was contended that this Court in the light of R. K. Sabharwal case held that where there was only one post in a cadre, there could not be any reservation under Article 16 (4) for S. Cs, STs and BCs. Similarly, if there is one post of Professor, Rule 19 may not apply. In this connection, paras 34 and 35 of the Report at p. 23 were pressed into service. Ray, J. , speaking for the Constitution Bench, stated in the said paragraphs as under: (SCC p. 23, paras 34-35)" "34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent. ""35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. " ( 17 ) IT is difficult to appreciate how this decision can be of any assistance to learned counsel for the respondent. It is obvious that in the aforesaid case, the Constitution Bench was concerned with a similar scheme of reservation for S. C. , ST and BC candidates and, therefore, Article 16 (4) squarely arose for consideration. To that extent, the said decision falls in line with the legal position examined by the earlier Constitution Bench in R. K. Sabharwal case. As we have already opined earlier, the factual and legal situation in the present case is entirely different. We are not concerned with any scheme of reservation under Article 16 (4 ). Therefore, R. K. Sabharwal case cannot be pressed into service, as seen earlier. If that is so, on the same lines the ratio of the decision of this Court in the Postgraduate Institute of Medical Education and Research case would also not apply. While deciding the question of working out the Recruitment Rule for appointment from two sources of promotees and direct recruits wherein only Article 16 (1) would hold the field, uninhibited by the exceptional category carved out from the said sub-article (1) by sub-article (4) thereof. While deciding the question of working out the Recruitment Rule for appointment from two sources of promotees and direct recruits wherein only Article 16 (1) would hold the field, uninhibited by the exceptional category carved out from the said sub-article (1) by sub-article (4) thereof. The first point for determination is, therefore, answered in favour of the appellants and against the respondent. ( 18 ) THE above judgment of the apex court clearly laid down that while interpreting the Rules regarding promotion concept, the reservation has no application. ( 19 ) THUS, we are of the view that in the judgment of Palak Dhari Yadavs case, reliance on the Post Graduate Institution of Medical Education and Research, Chandigarh (supra), was not a correct reliance and the said reliance is clearly misplaced. In Palak Dhari Yadavs case, the learned Single Judge has incorrectly taken the view that the rule making authority while enacting Regulation 2 (2) read with Note did not visualise reservation of only one post for promotion. ( 20 ) ANOTHER judgment relied upon by the learned counsel for the writ petitioner in Kuldeep Kumar Guptas case (supra) also supports his submission that providing a quota for promotional cadre does not tantamount to reservation. Following observations were made in paragraph 7:- "7. So far as the second question is concerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16 (4) enables the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. This Court in Indira Sawhneys case has held that no such reservation is permissible in the promotional posts and to get over the said decision, Article 16 (4a) has been inserted by the Constitution (Seventy Seventh Amendment) Act. But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16 (4 ). But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16 (4 ). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category of persons in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words, this provision actually effectuates the constitutional mandate engrafted in Article 16 (1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the Constitutional provision engrafted in Article 16 (4) while providing a quota in promotional cadre, as in our view it does not tantamount to reservation. " In view of the foregoing discussions, we answer the reference in the following words;" (i) A single post of Class-III available in an Intermediate College governed by the 1921 Act can be filled by way of promotion; and, the case of Palak Dhari Yadav (supra) has not been correctly decided. " ( 21 ) THUS, single post of Clerk in the college is to be filled up by way of promotion and it can be filled up by way of direct recruitment only in the event when in the institution concerned there is no eligible candidate available for being accorded promotion. " ( 21 ) THUS, single post of Clerk in the college is to be filled up by way of promotion and it can be filled up by way of direct recruitment only in the event when in the institution concerned there is no eligible candidate available for being accorded promotion. Under Chapter III Regulation 2 (2) of U. P. Act No. II of 1921 promotion is to be considered from amongst employees who are eligible and has served for five years continuously on substantive post and service record is good on the basis of seniority subject to rejection of unfit and further there is provision in case managing committee takes any decision arbitrarily then the incumbent has the right to represent before District Inspector of Schools who shall pass order which shall be final. Here in the present case this is not at all the case of the respondents that eligible incumbent for being accorded promotion are not at all available in the institution rather entire emphasis is that there is single post as such same will not fall under promotional quota. Once eligible person is already there and post in question falls within the consideration zone of promotion then respondents are duty bound to consider the claim of aforesaid incumbents for promotion and in case Management had failed on the said front then said incumbent had right to approach the District Inspector of Schools. District Inspector of Schools isthus, enjoined upon to see that injustice is not done to the incumbent who is eligible and entitled to be promoted on the basis of seniority and there is no material against him to make and treat him unsuitable. Laxmi Niwas Pathak has been appointed on compassionate basis in consonance with the provision as contained under Regulation 103 to 106 of U. P. Act No. II of 1921 against supernumerary post. Laxmi Niwas Pathak has been appointed on compassionate basis in consonance with the provision as contained under Regulation 103 to 106 of U. P. Act No. II of 1921 against supernumerary post. As per Regulation 106, an incumbent subject to availability of vacancy has to be appointed firstly in the institution where deceased employee was functioning and in case there is no vacancy then the incumbent has to be appointed against any other vacancy, existing in the District, and in the event of there being no vacancy then against supernumerary post, and said appointment against supernumerary post is to continue till any post falls vacant in the institution or in any other recognized institution in the district where vacancy comes into existence. The question is, can this power of adjustment make inroad into promotional quota post, and defeat the legitimate rights of incumbents whose claim for promotion is liable to be considered. Honble Apex Court in the case of Hiraman Vs. State of U. P. and others reported in 1997 (3) UPLBEC 1631 ( AIR 1997 SC 3288 ) has taken the view that where post is to be filled by way of promotion then by no stretch of imagination post in question can be filled up by appointment of incumbent from under dying in harness rules and as per the same, right of being considered/accorded promotion cannot be infringed. Thus inevitable conclusion is that where the vacancy is to be filled up by way of promotion then incumbent under dying in harness can neither be appointed and nor can be adjusted. Relevant extract of the said judgment is being quoted below: "3. The appellant was employed as a Daftari (class IV employee) in Nehru Intermediate College, which is a recognised and Government aided college. He continued to work on that post till he was promoted as a clerk on 11-5-1990. In the said college, one Surya Narain Srivastava was working as an Assistant Teacher. He died on 11-5-1987 while in service. On 29-2-1989 his widow made a request to the Principal of the college for appointing her son, respondent No. 4, to a non-teaching post on compassionate grounds. In December, 1989 and February, 1990 Distt. Inspector of Schools, respondent No. 2, also wrote to the Principal of the college to give suitable employment to respondent No. 4. On 29-2-1989 his widow made a request to the Principal of the college for appointing her son, respondent No. 4, to a non-teaching post on compassionate grounds. In December, 1989 and February, 1990 Distt. Inspector of Schools, respondent No. 2, also wrote to the Principal of the college to give suitable employment to respondent No. 4. On retirement of a Head Clerk on 30-6-1989 one clerk was promoted to that post and, therefore, one post of clerk became vacant. In April, 1990 the management decided to promote and appoint the appellant on that post as it belonged to the promotional quota. It also decided to promote one Ramdin, who was working as a peon, as a Daftari in the place of the appellant and appoint respondent No. 4 as a peon. It then sought approval of the District Inspector of Schools for the proposed promotions and appointment. It was granted on 11-5-1990. Pursuant thereto the appellant was promoted as a clerk on 11-5-1990 and respondent No. 4 was appointed as a peon on 12-5-1990. Respondent No. 4 represented to the management that as he was a graduate and possessed necessary qualifications for appointment as a clerk he ought to have been appointed as a clerk and not as a peon especially when a vacant post of clerk was available. The management did not accept his representation. Therefore, he filed Civil Misc. Writ Petition No. 444 of 1991 in the Allahabad High Court challenging the appointment of the appellant as a clerk. " "4. The petition was allowed by a learned single Judge of that Court as he was of the opinion that, in view of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, respondent No. 4 had become entitled to an immediate employment after 29-2-1989 and it was, therefore, not proper for the management to delay his appointment after a post of clerk had fallen vacant in June, 1989 and to promote the appellant on that post on 11-5-1990. He, therefore, quashed the promotion of the appellant as a clerk and that of respondent No. 4 as a peon and directed the management and the authorities to appoint respondent No. 4 on the said vacant post of clerk w. e. f. 12-5-1990. " "5. As a result of this decision the appellant was demoted as a peon. He, therefore, quashed the promotion of the appellant as a clerk and that of respondent No. 4 as a peon and directed the management and the authorities to appoint respondent No. 4 on the said vacant post of clerk w. e. f. 12-5-1990. " "5. As a result of this decision the appellant was demoted as a peon. The appellant challenged the decision of the learned single Judge by filing Special Appeal No. 878 of 1993 in the High Court. The Division Bench of the High Court held that the Dying in Harness Rules override all other recruitment rules in respect of posts not falling within the purview of the Uttar Pradesh Public Service Commission. It further held that in view of the educational qualifications of respondent No. 4 and the availability of a clear vacant post of a clerk respondent No. 4 ought to have been appointed as a clerk and not as a peon. It also held that the appellant, who was a class IV employee, ought not to have been promoted as a clerk, ignoring the claim of respondent No. 4. It, therefore, upheld the decision of the learned single Judge and dismissed the appeal. " "6. The contention of the learned counsel for the appellant was that the post of clerk, which had fallen vacant after June, 1989 was of the promotional quota and, therefore, it was not available for an outsider including respondent No. 4 and, therefore, the High Court committed a grave error in quashing the promotion of the appellant to that post and directing the college management and the authorities to appoint respondent No. 4 on that post. On the other hand, what the learned counsel for the respondent No. 4 contended was that the Dying in Harness Rules override all other provisions regarding the recruitment on posts which do not fall within the purview of the U. P. Public Service Commission and, therefore, even if the post of clerk which had fallen vacant belonged to the promotional quota, it was the legal duty of the college management and the authorities to appoint respondent No. 4 on that post. " "7. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 have been framed in exercise of the powers conferred by Article 309 of the Constitution of India. " "7. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 have been framed in exercise of the powers conferred by Article 309 of the Constitution of India. Rule 3 of the said Rules makes these Rules applicable to the recruitment of dependents of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission. Rule 4, on which heavy reliance has been placed by the learned counsel for respondent No. 4, gives an overriding effect to those rules by providing that they shall have the effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of those rules. It was contended that so far as recruitment of such dependents to public services and posts is concerned Dying in Harness Rules override all other recruitment rules and that would necessarily imply that even if quota for promotion and direct recruitment is fixed under those Rules, they will have to give way and the dependent of the deceased Government servant will have to be accommodated on the first available vacancy irrespective of whether it is to be filled up by promotion or by direct recruitment. " "8. On the reading of the Rules as a whole, we do not think that rule 4 of the said Rules has that effect. Rules 4, 5 and 8 read as under :-"4. Overriding effect of these rules - These rules and any orders issued thereunder shall, have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these rules. 5. Rules 4, 5 and 8 read as under :-"4. Overriding effect of these rules - These rules and any orders issued thereunder shall, have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of these rules. 5. Recruitment of a member of the family of the deceased - In case of Government servant dies in harness after the commencement of these rules, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government service which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service. Such employment should be given without delay and, as far as possible, in the same department in which the deceased Government servant was employed prior to his death. 8. Relaxation from age and other requirements - (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. (2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. (3) An appointment under these rules shall be made against an existing vacancy only. " Rule 5 imposes an obligation on the State Government to give suitable employment to the dependent of the deceased Government servant in the State Government service or on a post which is not within the purview of the State Public Service Commission provided that he is not already employed under the Central Government or a State Government or a Corporation owned by the Central Government or a State Government. It further provides that such employment is to be given in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service. It further provides that such employment is to be given in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service. Such employment has to be given without delay. Obviously this provision has been made with a view to achieve the object of the rules, viz. , to provide immediate succour to family of the deceased Government servant when it is put in a difficult financial situation as a result of his death. If the dependent of the deceased Government servant is made to wait till the vacancy is to be filled up by following the prescribed procedure under the normal recruitment rules and to compete with others, the object of the rules would get frustrated. Therefore, such appointment has to be made in relaxation of the normal procedure prescribed by the relevant recruitment rules. For that reason Rule 5 contemplates giving of a suitable employment to such dependent in relaxation of the normal procedure prescribed by the relevant recruitment rules and that becomes clear when we read this rule along with Rule 8. The rule-making authority after providing generally in Rule 4 that Dying in Harness Rules and any orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of the rules has thereafter in rules 5 and 8 specifically provided what is to be relaxed and to what extent it is to be relaxed. If the intention of the rule-making authority was to give the Dying in Harness Rules an overriding effect over all other recruitment rules or regulations in all respects, then it would have been unnecessary for it to provide for relaxation of the normal recruitment rules in rule 5 and relaxation of age and the procedural requirements for selection in rule 8. Sub-rule (1) of Rule 8 makes relaxation in the matter of age of the candidate seeking appointment under the said rules. Sub-rule (2) dispenses with the requirements of selection such as written test or interview by selection committee or any other authority. Rule 5 speaks of relaxation and Rule 8 indicates the extent of relaxation contemplated by the said rules. Sub-rule (1) of Rule 8 makes relaxation in the matter of age of the candidate seeking appointment under the said rules. Sub-rule (2) dispenses with the requirements of selection such as written test or interview by selection committee or any other authority. Rule 5 speaks of relaxation and Rule 8 indicates the extent of relaxation contemplated by the said rules. Thus if we read rules 4, 5 and 8 together, it becomes clear that overriding effect which is given to the said rules is with respect to the age and the procedure for selection for appointment on a post for which the dependent makes an application. The rule-making authority has taken care to emphasise, even while making such relaxation, that employment is to be given only if other eligibility conditions are satisfied by providing that such dependent member must fulfil the educational qualifications prescribed for the post and must also otherwise be qualified for Government service. While dispensing with the procedural requirements for selection it is provided that it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standard of work and efficiency expected on the post. If the rules are construed in this manner, and so we do, the contention raised on behalf of the respondents that notwithstanding the fact that the post of clerk which had fallen vacant, belonged to the promotional quota, the respondent No. 4 should have been appointed on that post, and not the appellant, has to be rejected. " "9. It is also pertinent to note that the Dying in Harness Rules are made under Article 309 of the Constitution. Article 309 empowers the appropriate legislatures to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or the State. The proviso to that Article empowers the President in the case of the services and posts in connection with the affairs of the Union and the Governor of a State in there case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under that Article. The rules made in exercise of this power have the effect subject to the provisions of any such act passed by the appropriate legislature. We assume that in the State of Uttar Pradesh there are other rules regulating the recruitment and condition of service of persons appointed in U. P. Government service and on posts under that Government, made by or under Acts of U. P. legislature. Obviously, the rule-making authority, while making the Dying in Harness Rules, could not have intended to override such statutory provisions. For this reason also we cannot construe rule 4 of the Dying in Harness Rules in the manner suggested by the respondent. " ( 22 ) HERE there is single post of Clerk and the same is liable to be filled up by way of promotion and there are eligible candidate then in that event District Inspector of Schools has totally transgressed and overstepped its jurisdiction by directing adjustment of Laxmi Niwas Pathak which cannot be sustained by any means. ( 23 ) CONSEQUENTLY, order dated 28. 11. 2006 passed by District Inspector of Schools, Allahabad is hereby quashed. Net effect of quashing of the order dated 28. 11. 2006 would be that the Laxmi Niwas Pathak would go back to the institution where he has been functioning against supernumerary post and he will not at all function at Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya Keshav Nagar, Ismailganj, Allahabad. However passing of this order will not prevent the District Inspector of Schools for making adjustment of Laxmi Niwas Pathak in consonance with the provision as contained under Regulation 106 of U. P. Act No. II of 1921, but the said authority of adjustment shall not be exercised against the vacancies which will fall within 50% quota of promotion. Subject of observations made above, present writ petition is allowed and disposed of.