JUDGMENT By the Court.—Respondent No. 5-appellant, aggrieved by order dated 29.6.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 4380 of 2007, has preferred this special appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules. 2. Shorn of unnecessary details, the facts giving rise to the present appeal are that the writ petitioner-respondent No. 5, is a Class-IV employee of Moti Lal Nehru Smarak Inter College (hereinafter referred to as ‘the College’), which receives grant-in-aid. On 28.2.2003, a vacancy of Clerk in the College occurred due to the retirement of the incumbent. There are three posts of Clerks including the post of Head Clerk out of which two are occupied by the members of the General category. 3. Regulation 2 of Chapter III of the Regulations made in exercise of the power under Section 16-G of the U.P. Intermediate Education Act, 1921, inter alia, provides that 50% of the sanctioned posts of Head Clerk and Clerk shall be filled up by promotion from Class IV employees. Undisputedly, respondent No. 5 does not belong to the reserved category. As no candidate of the Scheduled Caste was available, the District Inspector of Schools by order dated 15.4.2005 took a decision to fill up the post by direct recruitment from amongst the members of the Scheduled Caste and in the light of the aforesaid, an advertisement was published in the Newspaper. The appellant, herein, who happens to be a member of the Scheduled Caste, offered his candidature and was selected for the appointment. After the said selection, matter is under consideration of the Regional Committee. 4. Writ petitioner-respondent No. 5, herein, filed a writ application, inter alia, praying for a direction for his promotion to the post of Clerk. Said writ application was registered as Civil Misc. Writ Petition No. 69585 of 2005 (Vinod Kumar Singh v. District Inspector of Schools and others) and by order dated 9.11.2006, this writ application was disposed of with a direction to consider his claim. In the light of the aforesaid order, the District Inspector of Schools, considered his claim and by order dated 4.12.2006, rejected his representation. He challenged the aforesaid order in the writ application, which has given rise to the present appeal. 5. In the light of the aforesaid order, the District Inspector of Schools, considered his claim and by order dated 4.12.2006, rejected his representation. He challenged the aforesaid order in the writ application, which has given rise to the present appeal. 5. It was contended before the learned Single Judge that in view of Regulation 2 (2) of Chapter III of the Regulations, 50% of Class III post is to be filled up by promotion and filling up the said post by direct recruitment in the light of the Government Order dated 18.12.1990 is illegal. The aforesaid submission found favour with the learned Single Judge and the learned Single Judge has held that in view of the aforesaid Regulation, 50% of the posts have to be filled up by promotion and the same cannot be filled up by direct recruitment. The observation of the learned Single Judge in this connection reads as follows : “It is not in dispute that the third vacant Class III post was required to be filled up by promotion in accordance with Regulation 2 (2) contained in Chapter III of the Act. What is, however, contended by the respondents is that this vacant post should be filled up by a Scheduled Caste candidate and since no Scheduled Caste candidate was available, the said post was required to be filled by direct recruitment. Regulation 2 (2) contained in Chapter III of the Act clearly provides that 50% of the Class III posts have to be filled up by promotion and indeed even the respondents do not dispute this position. The Government Order dated 18th December, 1990 which has been referred in the impugned order has not been filed either by the State or by the contesting respondents and nor was it produced before the Court at the time of hearing of the petition. Even otherwise, it is not possible to accept the contention advanced by respondents as under the relevant Regulation 2 (2) contained in Chapter III of the Act at least one post has necessarily to be filled up by promotion and if this is not done, the said provision would be rendered futile.” 6. As would be evident from the aforesaid passage of the judgment of the learned Single Judge, the Government Order dated 18.12.1990 was not produced before him. As would be evident from the aforesaid passage of the judgment of the learned Single Judge, the Government Order dated 18.12.1990 was not produced before him. Accordingly, the learned Single Judge set aside the order impugned in the writ application as also the appointment of the appellant herein. The learned Single Judge further directed the Committee of Management to fill up the vacant Class III post by promotion from amongst the Class IV employees working in the College. 7. Before we enter into the merit of the case, it is expedient to consider the reservation policy of the State Government in regard to promotion. It is relevant here to state that the U.P. Public Services (Reservation for Scheduled Castes/Scheduled Tribes/Other Backward Classes) Act, 1994, provides for reservation in the public services and the post, and by virtue of its definition under Section 2 (c), it applies to educational institutions owned and controlled by the State Government or which receive grant-in-aid. Section 3 thereof provides for reservation at the stage of direct recruitment and sub-section (7) thereof makes applicable such prevalent Government Orders that provide for reservation against posts to be filled up by promotion. In view of the aforesaid provisions, all Government Orders providing for reservation in promotion continue to be applicable till they are modified or revoked. 8. It is relevant here to state that the Government Order dated 18.12.1990 considered the issue of filling up such vacancies reserved for the members of the Scheduled Caste and Scheduled Tribe, which remain unfilled due to their unavailability. The aforesaid Government Order, inter alia, provides that against such posts where appointment is to be made by promotion, and for which reservation is provided, if the candidates of the reserved category are not available, same shall be filled up by direct recruitment from amongst the members of the said category. In the light thereof, the District Inspector of Schools had taken a decision to fill up the vacancy of the Clerk by direct recruitment reserved for the member of the Scheduled Caste and in fact, an advertisement to that effect was issued and in response thereof, the appellant herein had offered his candidature. Writ petitioner-respondent No. 5, neither challenged the said decision of the District Inspector of Schools nor the advertisement nor for that matter the selection of the appellant herein. Writ petitioner-respondent No. 5, neither challenged the said decision of the District Inspector of Schools nor the advertisement nor for that matter the selection of the appellant herein. It is only when the matter of his appointment was before the Regional Committee, he chose to file the writ application. 9. While assailing the judgment of the learned Single Judge, Mr. Ranjit Asthana, appearing on behalf of the appellant, submits that in view of the Government Order, which is saved by Section 3 (7) of the U.P. Act No. 4 of 1994, all the Government Orders regarding promotion shall continue to be applicable. He submits that the Government Order dated 18.12.1990 clearly provides that when a candidate of the reserved category is not available for promotion, such post shall be filled up by direct recruitment from amongst the members of the said category. He submits that in the light thereof, the decision was taken to fill up the post of Clerk by direct recruitment from amongst the members of the Scheduled Caste and the appellant was duly selected for appointment. 10. Mr. Indra Raj Singh, however, appearing on behalf of respondent No. 5, submits that in view of Regulation 2 (2) of Chapter III of the Regulations referred to above, the post has to be filled up by promotion from amongst the Class IV employees. He submits that in case of conflict between the Regulation and the Government Order, Regulation will prevail and as such the post of Clerk falling vacant on retirement of the incumbent is to be filled up by promotion and not by direct recruitment. 11. Having appreciated the rival submissions, we find substance in the submission of Mr. Asthana. Regulation 2 (2) of Chapter III of the Regulations provides for filling up 50% of the post of Clerk by promotion. It is not in dispute that the Government Order provides for reservation in promotion and in the light thereof, the post which had fallen vacant, is to be filled up by the member of the Scheduled Caste category. Undisputedly, the writ petitioner, who claims promotion to Class III post does not belong to the Scheduled Caste category. In view of the aforesaid, the post of Clerk has to be filled up by promotion from amongst the members of the Scheduled Caste category. 12. Undisputedly, the writ petitioner, who claims promotion to Class III post does not belong to the Scheduled Caste category. In view of the aforesaid, the post of Clerk has to be filled up by promotion from amongst the members of the Scheduled Caste category. 12. Regulation 2 (2) of Chapter III of the Regulations provides for promotion to a Class III post of such Class IV employees, who are eligible. Undisputedly, the post of Clerk was to be filled up by way of promotion of a Scheduled Caste employee and the writ petitioner being not its member, was not eligible to be considered for such promotion. True it is that in case of conflict between the provisions of Regulation and the Government Order, the former will prevail. However, in the present case, we do not find any conflict between the Regulation and the Government Order providing for filling up the post by direct recruitment due to non-availability of the candidate of the reserved category for promotion. Regulation 2 (2) of Chapter III of the Regulations does provide for promotion of Class IV employees and the Government Order provides for reservation in promotion. The Regulation is silent as to what would happen, if a Class IV employee of the reserved category is not available for promotion and then how it is to be filled up. This is supplemented by the Government Order dated 18.2.1990, and hence it cannot be said that the Government Order had supplanted the Regulation, and shall not hold the field. 13. While defending the impugned order, Mr. Indra Raj Singh, further submits that one post had fallen vacant in the recruitment year and in case it is filled up by a member of the Scheduled Caste, it shall tantamount to 100% reservation, which is not permissible under Article 16 of the Constitution of India. In support of the submission, reliance has been placed on a judgment of the Apex Court in the case of M. Nagaraj and others v. Union of India and others, AIR 2007 SC 71 , and our attention has been drawn to paragraph 67 of the judgment. 14. We do not find any substance in the submission of Mr. Singh and the decision relied on, instead of supporting his contention, goes against him. 14. We do not find any substance in the submission of Mr. Singh and the decision relied on, instead of supporting his contention, goes against him. Here, in matter of promotion roster is followed and undisputedly, two posts having been occupied by the members of General category, it was to be filled up by a member of the Scheduled Caste category. This is permissible in view of the judgment of M. Nagaraj and others (supra) relied on by Mr. Singh itself. Paragraph 68 of the judgment, which is relevant, reads as follows : "68. However, in R.K. Sabharwal (1995 AIR SCW 1371) which was a case of promotion and the issue in this case was operation of roster system, the Court stated that entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. With regard to ruling in Indra Sawhney case that reservation in a year should not go beyond 50% the Court held that it applied to initial appointments. The operation of a roster, for filling the cadre strength, by itself ensures that the reservation remains within the 50% limit. In substance the Court said that presuming that 100% of the vacancies have been filled, each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate. The Court was concerned with the possibility that reservation in entire cadre may exceed 50% limit if every year half of the seats are reserved. The Constitution (Eighty-first Amendment) Act, 2000 added Article 16 (4B) which in substance gives legislative assent to the judgement in R.K. Sabharwal." 15. Therefore, we do not find any substance in the submission of Mr. Singh. 16. Mr. Singh, lastly attempted to assail the appointment of the appellant. As the selection of the appellant is under consideration of the Regional Committee, we do not want to express any opinion in this regard. However, we hasten to add that the writ petitioner-respondent No. 5, is not a member of the Scheduled Caste category and, therefore, is not eligible to be promoted to the post, which has been reserved for the Scheduled Caste category. This is an additional reason why we are not inclined to entertain the said submission. 17. However, we hasten to add that the writ petitioner-respondent No. 5, is not a member of the Scheduled Caste category and, therefore, is not eligible to be promoted to the post, which has been reserved for the Scheduled Caste category. This is an additional reason why we are not inclined to entertain the said submission. 17. In the result, the appeal is allowed, the impugned order dated 29.6.2009 passed by the learned Single Judge is set aside. However, there shall be no order as to costs. ———