JUDGMENT Hon’ble B. Amit Sthalekar, J.—By this writ petition, the petitioner is challenging the order dated 20.7.2010, whereby, the D.I.O.S. has directed that since the reservation quota in class III post is not completed, therefore, the post in question should be released for direct recruitment relying upon the G.O. dated 18.12.1990 for promotion in class III post. 2. Briefly stated the facts of the case are that there is an Intermediate College known as Shambhu Dayal Inter College, Ghaziabad (hereinafter referred to as ‘the Institution’) which is recognised under the U.P. Intermediate Education Act, 1921 and the Payment of Salary Act, 1971 is also applicable thereto. The petitioner is working on the post of Class-IV employee in the Institution. There are five sanctioned posts in the cadre of class-III including the post of head clerk. One Sri Prakash Chandra (OBC) has been promoted and one Sri Panna Lal Gupta has been promoted on the post of Assistant Clerk from class-IV. Out of the two remaining posts of Assistant Clerk one Sri Gajendra Kumar Mittal and Sri Rajeev Kumar Tyagi have been appointed by direct recruitment. Thus, according to the petitioner one post of Assistant Clerk is lying vacant due to the retirement of Sri B. P. Mangalik on 30.11.2006. 3. It is further pointed out that for promotion for the post of Assistant Clerk in class-III against the 50% promotee quota, the Committee of Management submitted the requisite papers before the D.I.O.S., Ghaziabad on 24.2.2007 for approval. The D.I.O.S. Ghaziabad, however, declined to grant approval and instead by the impugned order dated 27.10.2007 has directed that the single post in the promotee quota of class III be filled up by direct recruitment. A reference has been made to the G.O. dated 18.12.1990. 4. I have heard Sri Indra Raj Singh, learned counsel for the petitioner and the learned Standing Counsel representing respondents 1 to 4. Notices were served to the respondent No. 5 on 15.4.2011 but till date no one has appeared on behalf of respondent No. 5. 5. The facts as stated in para 4 of the writ petition regarding the number of posts and the persons working against the respective posts had not been denied in para 3 of the counter-affidavit rather they are admitted as being matter of record. 5. The facts as stated in para 4 of the writ petition regarding the number of posts and the persons working against the respective posts had not been denied in para 3 of the counter-affidavit rather they are admitted as being matter of record. However, in the counter-affidavit the only reason given is that since there was a shortfall of S.C. quota, therefore, the D.I.O.S. by the impugned order has directed that one post in the promotee quota of Assistant Clerk is to be filled up by direct recruitment from the S.C. candidate. 6. The contention of the respondents is fallacious in view of the legal position settled by the Supreme Court in Chakradhar Paswan (Dr.) v. State of Bihar, (1988) 2 SCC 214 and the Constitution Bench in the case in Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and others, (1998) 4 SCC 1 , that the reservation cannot be applied to a single post and therefore, in view of the said judgment the single post of Assistant Clerk could not be filled up through Scheduled Caste Candidates by releasing it to the direct recruitment quota. 7. Even otherwise the total cadre strength in class III admittedly is 5 posts, out of which two and half post would be available for being filled up. In terms of Chapter III Regulation 2 of the U.P. Intermediate Education Act, 1921, while calculating the number of posts for distributing the same for promotee quota or for direct recruitment .5 shall be treated as one in terms of the explanation to Regulation 2 (2) of Chapter III. It is not in dispute that two posts of promotee quota have already been filled up and only one post remains. 8. Sri I. R. Singh further referred to the judgment of the Full Bench of this Court in Heera Lal v. State of U.P., 2010 (3) ESC 2091, wherein, the Full Bench relying upon the Supreme Court decision in the case of R.S. Garg v. State of U.P., (2006) 6 SCC 430 , has held as follows: “25. The decision in R.K. Sabharwal’s case is a five judges pronouncement which still holds the field. The decision in R.K. Sabharwal’s case is a five judges pronouncement which still holds the field. The question of giving the benefit or reservation in excess of the percentage of quota of reservation has been put to rest by the decision in the case of R.S. Garg v. State of U.P., (2006) 6 SCC 430 . Paragraph 40 which is quoted herein below: “We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled Tribe (Sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. If is not dispute that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. This, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after very four posts, in our considered opinion, does not meet the constitutional requirements.” 9. However relevant para 32 the Full Bench decision reads as follows: “32. There may be cases where there is a rule making provision for different sources of recruitment within the same cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. This issue may arise in the context where a candidate is not available for filling up the post by way of promotion and the same has to be diverted to be filled up by direct recruitment. Such a situation will arrive in cases where the number of posts may be five or more so as to make the rule of reservation applicable. Taking for instance were there are say 8 posts in a cadre and the rule is, as presently involved, namely that 50% posts have to be filled up by way of promotion, in that event four posts have to be filled up by promotion and four by direct recruitment. The rule of reservation for appointment by way of promotion is availably only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. The rule of reservation for appointment by way of promotion is availably only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. In the example given above where four posts out of eight are to be filled up by direct recruitment one post will have to be given to the other backward category keeping in view the 27% mandate of reservation in favour of such category under the 1994 Act. Against four posts of promotion quota, reservation to a scheduled caste category cannot be granted as there as to be a minimum of five posts for applying the 21% reservation for promotion. In a given situation where no other candidate of any category is available for promotion against the four posts, then such a vacancy to be filled up by promotion may have to be carried over for direct recruitment. This would bring about a change of strength in the source of recruitment thus fluctuating the strength of the post available by direct recruitment. A scheduled caste candidate would therefore, get the benefit of reservation if the cadre strength is increased to five for direct recruitment, even though the same candidate would not get the benefit of reservation if the promotion quota of 50% is adhered to. It would be appropriate to point out that taking a case where there are five posts for being filled up by promotion and five by direct recruitment in the cadre then in such an event the rule of reservation to the extent of 21% in both the sources can be conveniently made applicable without disturbing the ratio in either of the sources.” 10. This Court in Writ Petition (A) No. 47207 of 2008, Amarnath Goswami v. State of U.P. and others, wherein also similar controversy was involved, has held as under: “This G.O. came up for consideration before this Court in the case of Ramesh Chandra Yadav v. Director of Education U.P. (Madhyamik Allahabad) and others, 2004 (1) ESC (All) 324 and this Court was pleased to hold that the said G.O. has no application in the case. The relevant paragraph 6 of the said judgment is quoted as under: “I am of the view that since the vacancy has been caused from the promotion quota and since there is a 50% quota for promotion of Class IV employees under the Intermediate Education Act and Regulations, the vacancy in question is to be filled up by promotion only. The District Inspector of Schools is not authorised under any Act to convert the post of promotion quota into direct recruit quota.” 11. In the present case admittedly only one post is available and the same could not have been filed up by Scheduled Caste candidate either in a promotee quota or by releasing it for being filled up by direct recruitment. 12. Secondly, the post in the promotee quota, could not have been released to the direct recruitment quota for being filled up by a Scheduled Caste candidate. This view has been taken by me in the case of Amar Nath Goswami (supra) and C.M.W.P.No. 59429 of 2006, Mahendra Pal Yaduvanshi v. State of U.P. and others and I see no reason to take any other view. 13. Taking into consideration all the above facts and law laid down by the Supreme Court as well as the Full Bench and Single Judge decisions the impugned order dated 27.10.2007 is quashed. 14. The writ petition is allowed. 15. A direction is issued to the respondent No. 1 to consider the matter for grant of approval to the appointment of the petitioner in the class II post in the promotee quota of 50%. This exercise shall be completed by the respondent No. 1 within a period of one month from the date of certified copy of this order is received by him. ——————