JUDGMENT Honble R.R. Awasthi, J.—Heard Sri Abhinav Shukla holding brief of Sri Amit Saxena for the appellant and Standing Counsel appearing for the respondents. 2. Under challenge is the judgment and order dated 25.08.2003 passed in civil misc. writ petition No. 35867 of 2003 (Suresh Tiwari v. State of U.P. and others). The learned Single Judge relying on the decision of this Court in the case of Palak Dhari Yadav v. Regional Inspectress of Girls Schools and others, 1999(3) UPLBEC 2315 has dismissed the writ petition holding that the Single post of clerk cannot be filled up by way of promotion. 3. The factual matrix as borne out from the record appears that the appellant-petitioner was working on a Class-IV post at Siddheshwar Uchchtar Madhyamik Vidyalaya, Gopalpur, Fatehpur. There was one sanctioned post of clerk in the said Vidyalaya which fell vacant on 31.10.2000. The Committee of Management passed a resolution permitting the appellant-petitioner to work on the post of clerk under 50 percent promotional quota. The proposal was approved by the D.I.O.S. Fatehpur and thereafter the appellant-petitioner had joined on the post of clerk on 3.1.2002. 4. However, when the D.I.O.S. came to know that a single post of clerk, which ought to be filled up by way of direct recruitment and not by way of promotion in view of the decision in the case of Palak Dhari Yadav (supra), he issued a show cause on 7.5.2003 calling upon the Committee of Management to show cause as to why the approval granted be not cancelled. The committee of management did not submit any explanation. Thereupon the D.I.O.S. taking into consideration the principle laid down by this Court in the case of Palak Dhari Yadav (supra) cancelled the earlier approval. 5. The committee of management did not submit any explanation. Thereupon the D.I.O.S. taking into consideration the principle laid down by this Court in the case of Palak Dhari Yadav (supra) cancelled the earlier approval. 5. The learned counsel for the appellant has submitted that in the case of Jai Bhagwan Singh v. D.I.O.S. Gautambudhnagar (writ petition No. 6836 of 2005) by order dated 28.10.2005 the learned Single Judge had referred the following question for consideration by a larger Bench : “Whether a single post of Class III available in an Intermediate College governed by the 1921 Act can be filled by way of promotion and whether the case of Palak Dhari Yadav, (1999) 3 UPLBEC 2315 , has been correctly decided keeping in view the opinion expressed by another Single Judge in Writ Petition No. 4165 of 2004 as also the pronouncement of the Apex Court in the case of B. Badami v. State of Mysore and All India Federation v. Union of India.” 6. The Division Bench while considering the above reference has come to the conclusion, as in Jai Bhagwan Singh v. D.I.O.S., Gautambudh Nagar, 2006(9) ADJ 292 (DB) as under: “13. 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. 14. 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 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 dealings with the promotion or right of serving employees. 15. 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 v. State of Punjab, (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. Sabharwal’s 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) has no applicability, while considering the quota for promotion and direct recruitment. Following was observed by the Apex Court in paragraph 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 v. 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 SCs. STs and BCs. Similarly, if there is one post of Professor, Rule 19 may not apply. 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) : “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. 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. 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., S.T. 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). 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 & 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. The first point for determination is, therefore, answered in favour of the appellants and against the respondent.” 16. The above judgment of the Apex Court clearly laid down that while interpreting the Rules regarding promotion concept, the reservation has no application. 17. Thus, we are of the view that in the judgment of Palak Dhari Yadav’s 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 Yadav’s 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.” 7. The reference was answered 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.” 8. That since the impugned judgment and order has been passed relying on the judgment of this Court in the case of Palak Dhari Yadav (supra) which has been subsequently declared as not laying the correct law, therefore, we are of the considered opinion that the impugned judgment and order challenged in the present special appeal is not sustainable in the eye of law and liable to be set aside. 9. 9. There is another aspect of the matter that in case of one post of clerk is to be filled up by direct recruitment and not by promotion then it would amount to denying any avenue of promotion to the Class-IV employees as the post in question would be filled up by direct recruitment and the Class-IV employees would be denied of opportunity of promotion on Class-III post of clerk, which would lead to stagnation, adversely affecting the Class-IV employees. 10. In view of the above, the impugned judgment and order dated 29.8.2003 is hereby set aside. The order dated 23.5.2003 of the D.I.O.S. Fatehpur cancelling the approval of promotion of the appellant-petitioner on the post of clerk is quashed. The consequences shall follow. The appeal is hereby allowed. No order as to costs. ————