JUDGMENT By the Court.—Heard Sri M.M. Sahai for the appellant, Sri Sanjeev Singh for respondent No. 1 and learned Standing Counsel for respondent Nos. 2 and 3. 2. This intra Court appeal has been preferred against the judgment dated 22.4.2004 passed by Hon’ble Single Judge by which it has allowed the writ petition of petitioner-respondent No. 1 (hereinafter referred to as ‘respondent No. 1’) observing that at the time when recruitment in question was made, the Statute did not provide any reservation in promotion for Scheduled Castes, scheduled tribes and, therefore, the appointment of respondent No. 4 treating the vacancy reserved for Scheduled Castes was illegal. 3. Sri Sahai vehemently contended that reservation in promotion in the educational institutions was provided by Government Order dated 12.7.1978 and the same has not been superseded by any subsequent statutory provision. Hence, it was rightly provided by the Management and the Hon’ble Single Judge has erred in law in observing otherwise. 4. Having heard rival submissions and perusing the record, we find that there were total seven posts of Lecturers sanctioned in the institution, namely, Zila Panchayat Balika Inter College, Chandauli, District Chandauli (hereinafter referred to as the ‘institution’) out of which five were already occupied. Out of the five, three were directly recruited and two were promotees. There existed two vacancies and since none of the promotee working in the institution was found a Scheduled Caste, the Management treated one of the vacancy of Lecturer as reserved of Scheduled Castes and promoted respondent No. 1 on the said post, though she was much junior and did not figure in the filed of eligibility otherwise. 5. The question as to whether reservation in promotion is permissible or not came up for consideration before the Apex Court in Indira Sawhney v. Union of India and others, AIR 1997 SC 597 and the Apex Court clearly held that reservation in promotion is permissible under Article 16(4-A) of the Constitution of India though majority decision at that time deprecated the practice of providing reservation in promotion and said that after the short while, i.e. five years such reservation must come to an end. Thereafter, the Parliament amended the Constitution and inserted Article 16 (4-A) which specifically made it permissible to the authorities concerned to provide reservation in promotion if necessary provisions have been made in this regard. Thereafter, the Parliament amended the Constitution and inserted Article 16 (4-A) which specifically made it permissible to the authorities concerned to provide reservation in promotion if necessary provisions have been made in this regard. In view of the amendment in the Constitution, if law has been made, namely, either by the Legislature itself or by Subordinate Legislation or even by Executive Orders providing for reservation in promotion for scheduled castes/scheduled tribes, such reservation is permissible in law and it cannot be said that it is unconstitutional. Here, in the case in hand, the Government Order dated 12.7.1978 admittedly provided for reservation in promotion in educational institutions and the said Government Order having not been superseded by any subsequent enactment, it continued and, therefore, the Hon’ble Single Judge was wrong in holding that the reservation in promotion in educational institutions was not available. 6. However, there is another aspect of the matter which also goes to the root of the case that in any case, the appointment of respondent No. 1 treating the vacancy reserved for scheduled caste could not have been made and, therefore, the ultimate conclusion drawn by Hon’ble Single Judge that the writ petition has to be allowed would have to be upheld. 7. In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e., direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg v. State of U.P. and others, 2006 (6) SCC 430 , has held as under : “40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements." 8. Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of lecturer reserved for scheduled castes in promotion quota, therefore, was illegal and has rightly been set aside by Hon’ble Single Judge. 9. In the result, we do not find any merit in this appeal. It is, accordingly, dismissed. 10. However, we observe that in case any vacancy in promotion quota is available, the respondents shall take steps for filling in the same in accordance with law expeditiously. ———