JUDGMENT Hon’ble Devendra Pratap Singh, J.—Heard learned counsel for the petitioner, learned Standing counsel and perused the record. 2. This petition is directed against an order dated 24.10.2008 by which the claim of the petitioner for promotion to class ‘C’ post has been rejected. 3. Brief facts are that the petitioner was appointed as a class IV employee in the office of Block Development Officer, Saidpur district Ghazipur in April 1991 and his services were regularised on 11.10.1996. In pursuance of Government orders dated 31.8.1982 and 8.9.1995, a total of 20% class ‘C’ post are reserved for promotion of class ‘D’ employees. In pursuance of an order dated 26.6.2004 issued by the Block Development Officer, Ghazipur inviting applications from Group ‘D’ employees for being promoted in the 20% quota to the Group ‘C’ post the petitioner, being duly qualified, alongwith others had applied. However, no action was taken though others were promoted to the post of junior clerk. Thus, the petitioner preferred Writ Petition No. 43289 of 2008 and a learned Single Judge of this Court disposed it off with a direction to the respondents to consider his claim, vide order dated 22.8.2008. 4. In pursuance thereof, the present impugned order has been passed. It has been held therein that in the 20% quota for promotion from class ‘D’ post only four posts were available in the class ‘C’ category wherein two persons Nazir Ahmad and Sirajul Islam belonging to the general category had been promoted and the remaining two posts fell in the reserved quota and since the petitioner belongs to general category, he is not entitled to be promoted. 5. It is urged that Shri Nazir Ahmad and Shri Sirajul Islam, both have been promoted to the post of senior clerks and therefore four vacancies, including in the reserved category, are still vacant for the purposes of promotion on the post of junior clerk. 5. It is urged that Shri Nazir Ahmad and Shri Sirajul Islam, both have been promoted to the post of senior clerks and therefore four vacancies, including in the reserved category, are still vacant for the purposes of promotion on the post of junior clerk. It is further urged that the Apex Court in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and others, 2012(2) ESC 233 (SC), decided alongwith a large bunch, has held, that Section 3(7) of the U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (hereinafter referred to as the ‘1994 Act’) and Rule 8-A of U.P. Government Servants Seniority Rules, 1991, to be ultra vires and therefore, there can be no reservation and promotion and thus even assuming the factual statement in the impugned order, the two posts have to be filled up on merits. 6. A perusal of impugned order shows that the 20% of the 22 sanctioned post of Junior Clerks has been taken into consideration for identifying 4 posts for promotion from group ‘D’. It is further evident therefrom that Sirajul Islam and Nazir Ahmad were promoted to the post of Junior Clerk from group ‘D’. But the petitioner has annexed a seniority list to show that both the persons have already been promoted to the post of senior clerk several years ago and in para 15 of the writ petition it is stated that the said two posts are still available in the cadre of Junior Clerks. However, in the counter-affidavit a stand has been taken that once they were appointed as Junior Clerks after promotion from group ‘D’ their subsequent promotion to the post of Senior Clerk would make no difference and the two posts would be deemed to be filled. This stand of the respondents in the counter-affidavit does not appear to be correct. Once the computation of the percentage is on the basis of sanctioned post of Junior Clerks, promotion to the post of Senior Clerk has to be taken into consideration as that is the entry point of the group ‘D’ employees. Otherwise, the percentage has to be calculated taking into account all the sanctioned group ‘C’ post, including Senior Clerks, Head Clerks etc. Otherwise, the percentage has to be calculated taking into account all the sanctioned group ‘C’ post, including Senior Clerks, Head Clerks etc. The department cannot blow hot and cold in the same breath and the stand taken would be arbitrary as it does not satisfy the criteria of rationality. The entry point for group ‘D’ employees is the post of Junior Clerk and therefore, if any promotee from group ‘D’ is further promoted, he would leave a vacancy for the group ‘D’ promotion. Thus the first argument of the petitioner is bound to be accepted. 7. So far as the second argument of learned counsel for the petitioner is concerned, it also has substance. A perusal of the impugned order shows that reservation in favour of scheduled castes and scheduled tribes has been given in pursuance of the 1994 Act and the only section relevant for promotion is Section 3(7). The validity of Section 3(7) of the 1994 Act and Rule 8-A of U.P. Government Servants Seniority Rules, 1991 were called in question before a Division Bench of our High Court which held that the same was ultra vires as they run counter to the ratio laid down in M. Nagraj and others v. Union of India and others, AIR 2007 SC 71 . The judgment of this Court has been upheld by the Apex Court in the case of Rajesh Kumar and others (supra). Therefore, even assuming that the two remaining posts for promotion from group ‘D’ employees are available, in view of the aforesaid judgment of the Apex Court they would have to be filled up in accordance to the promotion rules and would not be reserved for any category. 8. For the reasons above, this petition succeeds and is allowed and the impugned order dated 24.10.2008 is hereby quashed. The respondents shall reconsider the claim of the petitioner and other eligible candidates in accordance with the observations made hereinabove. The exercise may be completed within a period of six weeks from the date of submission of a certified copy of this order. ——————