By the Court—Heard Sri V.K. Goel, learned Counsel appearing for the writ petitioner, Sri A.P.S. Raghav, learned Counsel appearing for respondent No. 3 and Sri Ran Vijay Singh, learned Standing Counsel.

2. In the writ petition, by order dated 28.10.2005, the learned Single Judge has 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 reported in 1999 Vol. 3 U.P.L.B.E.C. 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?”

3. The brief facts necessary for appreciating the question referred by the learned Single Judge be noted.

4. The writ petitioner has been working as a Class-IV employee in a recognised aided Institution governed by U.P. Intermediate Education Act, 1921. In the Institution, there is only one sanctioned post of Clerk, which fell vacant due to death of its last incumbent, namely, Ratan Pal Singh on 15.12.1994. The Committee of Management passed a resolution in favour of the writ petitioner promoting him from Class-IV to the post of Clerk. The District Inspector of Schools, vide his letter dated 25.2.1995 approved the promotion of the writ petitioner as Clerk, and the writ petitioner thereafter started functioning on the post of Clerk. The father of respondent No. 3 Ratan Pal Singh abovementioned, who was working as Clerk in the Institution died. Thereafter the respondent No. 3 claimed his appointment on compassionate ground on the post of Clerk; respondent No. 3 was appointed as a Clerk against supernumerary post by the order of the District Inspector of Schools dated 7.4.1995. In the year 2004, one vacancy of Clerk arose at Rajendra Prasad Intermediate College, Vilaspur, District Gautam Budh Nagar. The District Inspector of Schools passed an order dated 13.12.2004 directing the adjustment of respondent No. 3 in the aforesaid Institution. Respondent No. 3 could not join and subsequently the District Inspector of Schools, vide his letter dated 9.7.2005 cancelled the attachment of respondent No. 3 as well as the promotion of the writ petitioner vide his order dated 15.10.2005. The District Inspector of Schools in his order has taken the view that since there was only one post of Clerk in the Institution, the said post cannot be filled by promotion of the writ petitioner. The District Inspector of Schools was of the view that single post can never be filled by promotion. The said order was challenged by the writ petitioner in the writ petition, and after hearing the learned Counsel for the parties, the learned Single Judge referred the question for our consideration, as noted above.

5. Chapter-Ill Regulation-2 of the U.P. Intermediate Education Act, 1921 has been framed under Section 16-G of the 1921 Act providing for promotion from Class-IV to Class-Ill. Chapter-Ill Regulation-2, which is relevant for the purposes of this case, is quoted below :

“2. (1) For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools.

(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit.

If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector wit