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2010 DIGILAW 3390 (ALL)

Vinod Kumar v. State of U. P. and Others

2010-11-01

A.P.SAHI, FERDINO INACIO REBELLO

body2010
By The Court—Heard learned counsel for the appellant.2. The appellant herein was respondent no.6 in the writ petition filed by one Anand Prakash. In the petition, the issue was in respect of validity of promotion of the appellant and the order passed by the District Inspector of Schools approving his appointment. The judgment of the learned Single Judge, after recording a finding that there were only three posts of Class-III, and considering the Full Bench judgment of this Court in Heera Lal v. State of U.P. & Ors., 2010 (6) ADJ 1 (F.B.):2011(29)LCD1, held that there could be no reservation unless the number of posts is more than five, and quashed the order dated 21.06.2010 granting approval to the appellant’s appointment. The learned Judge has also issued a direction to the Managing Committee of the institution to act strictly as per the parameters provided under Regulation 2 (2) of Chapter III of the U.P. Act No. II of 1921, preferably within next three months from the date of presentation of a certified copy of the order.3. At the hearing of this appeal, on behalf of the appellant, learned counsel sought to draw our attention to a Division Bench judgment of this Court in Dr. Neeraj Shukla & Ors. v. State of U.P. & Ors. (Civil Misc. Writ Petition No. 54870 of 2009) decided on 07.09.2010, to contend that the learned Division Bench in the said case has taken a view that the judgment in Dr. Vishwajeet Singh & Ors. v. State of U.P. & Ors., 2009 (3) AWC 2929 , has been held to be per incuriam. In the case of Dr. Neeraj Shukla (supra), the issue before the learned Division Bench was in respect of filling in the backlog vacancies. While so dealing, the learned Bench appears to have observed that if a judgment is passed in ignorance of not considering the law declared by the Supreme Court, then such judgment would be per incuriam.4. Considering the controversy involved, in our opinion, the judgment of the Full Bench of this Court in Heera Lala (supra) is binding on all Benches of this Court. The learned Division Bench also in the case of Dr. Neeraj Shukla (supra), though referred to the judgment in Heera Lal (supra), but did not distinguish the same. Considering the controversy involved, in our opinion, the judgment of the Full Bench of this Court in Heera Lala (supra) is binding on all Benches of this Court. The learned Division Bench also in the case of Dr. Neeraj Shukla (supra), though referred to the judgment in Heera Lal (supra), but did not distinguish the same. The Full Bench in the case of Heera Lal (supra) was dealing with an issue of calculation of percentage of reservation and application of roster. It was in the said context that the judgment in the case of Dr. Vishwajeet Singh (supra) was approved therein.5. In that view of the matter, insofar as percentage of reservation is concerned, the law would be as declared by the Full Bench of this Court in Heera Lal (supra). The observations made by the Division Bench in the case of Dr. Neeraj Shukla (supra) as relied on by Sri Khare would, therefore, be of no avail to the appellant.6. In the light of above, in our opinion, there is no merit in the appeal, which is accordingly dismissed.(Appeal dismissed)_____________