The main legal point established in the judgment is that promotional reservation in non-selection as well as selection posts is valid after the enforcement of the 77th Constitutional amendment Act, and reservation in a cadre consisting of three posts is not illegal if it does not exceed 50%.

( 1 ) SHOULD there be promotional reservation on non-selection posts (the posts to be filled on the basis of seniority subject to rejection of unfit)? Can there be reservation in a cadre consisting of three posts? These are some of the questions involved in this writ petition. FACTS

( 2 ) UP Fire (Gazetted Officer) Service (the Service) is a State service comprising of Group A and B posts. It is governed by UP Fire (Gazetted Officers) Services Rules, 1984 (the Rules ). Rule 4 part II provides cadre and Rule 4 Part III provides for recruitment. Under Rule 4 part III (iii), there are posts of Deputy Director (Technical) and Commandant Fire Service Training Centre. These posts are to be filled by promotion from permanent Chief Fire Officers. Rule 17 provides procedure for promotion to the post of Deputy Director Technical and Commandant Training Centre. It is non-selection post and the promotion is to be made through a selection committee on the basis of seniority subject to rejection of unfit. Rule 5 provides for reservation for scheduled caste and scheduled Tribe (SC/st) in the Service. It states that reservation would be in accordance with the orders of the Government in force at the time of recruitment.

( 3 ) PETITIONER and respondent no. 4 (the contesting respondent) were permanent Chief Fire Officers. The petitioner was senior than the contesting respondent. The Appendix to the Rules provides the number of posts. It states that there is one post of Deputy Director (Technical) and one post of Commandant Fire Services Training. It is admitted case that subsequently one more temporary post of Deputy Director (Technical) has been sanctioned i. e. there are in all three posts. One post is occupied by general candidate. Two of the remaining posts fell vacant. In one post the contesting respondent belonging to SC category was promoted and over the second post one Mahesh Narain Trivedi (general category) was promoted by the order dated 16. 12. 1997. The petitioner has filed the present writ petition challenging the promotion of the contesting respondent. There is no dispute regarding promotion of the general category candidate. POINTS FOR DETERMINATION

( 4 ) WE have heard Sri Ashok Khare assisted by Sri AK Singh counsels for the petitioner and Ms. Subhash Rathi, standing counsel for the respondents. Following points arise for determination: (I) Whether there can be promotional reservation over a non selection post? (ii) Whether there is adequate representation of SC/st in the Service warranting no reservation? (iii) Whether there can be any reservation in cadre consisting of three persons?1st POINT: PROMOTIONAL RESERVATION CAN BE MADE IN NON- SELECTION POST

( 5 ) COUNSELS for the petitioner submitted that promotion may be over selection posts but there is no justification to provide reservation over non- selection posts. They have also brought to our notice following observations of a division bench decision of our court in Inder Shanker vs. State of UP 1995 (1) UPLBEC 453 (the Inder Shanker case):when promotion is to be made under the rules on the basis of seniority [non-selection post], there may not be any justification for making reservation. Reservation in such cases results in promotion of those, who are junior. Such a promotion is, therefore, contrary to the rules, which provide for promotion on the basis of seniority. But the Government orders, making provisions for reservation in promotion even in those cases where promotion is to be made on the basis of seniority subject to rejection of unfit, were issued in 1974 and 1976 and have continued in force since then. We do not find any justification now to set aside those orders when they have remained in operation for about 20 years and their life span is only five years from the date of the judgement of the Supreme Court in Indra Sawhnes case. , AIR 1993 SC 477, i. e upto 15. 11. 1997. These observations support the submission of the petitioner.

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