Hon’ble A.P. Sahi, J.—The petitioner is a class IV employee in an Intermediate College governed by the provisions of Intermediate Education Act 1921 and the Regulations framed thereunder.

2. The petitioner has questioned the compassionate appointment of respondent No. 6 on the ground that the post in question namely the post of assistant clerk has to be filled up by promotion in view of the provisions contained in Chapter III Rule 2 of the Regulations framed under the U.P. Intermediate Education Act 1921.

3. It is undisputed that there are three posts of clerks including the post of head clerk in the institution. The petitioner contends that no post of clerk has been filled up by promotion and the post which has fallen vacant on account of the retirement of head clerk on 31.1.2007, the assistant clerk has already been promoted, as a result whereof the other post of assistant clerk under 50% quota is also liable to be filled up by way of promotion. The petitioner further contends that he belongs to the Scheduled Caste category and as such is also entitled to be promoted extending the benefit of reservation for Scheduled Castes.

4. There can be no dispute that the post of promotion if available, has to be filled up in accordance with the aforesaid Regulations. The only question which deserves to be determined is as to whether the petitioner can claim the benefit of reservation for being promoted on the post in question or not. Learned counsel for the petitioner has relied upon a Division Bench decision of this Court in the case of Mahendra Kumar Gond v. District Inspector of Schools, Azamgarh and others, 2009 (6) ADJ 674, where such a claim of promotion by way of reservation has been explained keeping in view the Government Order dated 18th December 1990 as also the policy of reservation for Scheduled Castes and Scheduled Tribes, under the Uttar Pradesh Public Services ( Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1994.

5. Relying upon the aforesaid judgement learned counsel for the petitioner contends that the petitioner is entitled for promotion as a reserve category candidate. The Division Bench decision relying upon the Apex Court decision of M. Nagrajan and others v Union of India and others, AIR, 2007 SC 71 and in the case of R.K.Sabharwal reported in 1995 AIR SCW 1371, held that if a class IV employee of SC category is available for promotion then keeping in view the aforesaid provisions as pointed out herein above, the benefit of reservation has to be extended.

6. In the said case also there were three posts of clerks and therefore it is contended that the case of the petitioner being identical, such benefit to the petitioner deserves to be extended.

7. Learned Standing Counsel Sri K.K. Chand on the other hand contends that the decision in the case of Mahendra Kumar Gond (supra), the Court appears to have proceeded on the presumption that the roster can be applied even if there are three posts but there is no elaborate discussion in the said decision. It will be appropriate to refer to two decisions which have been rendered by this Court in the case of Dr.Vishwajeet Singh v State of UPLBEC, 2009(4) ADJ 373 and Smt. Pholpati Devi v Smt Asha Jaiswal and others, 2009(2) ADJ 90.

8. Sri K.K. Chand has invited the attention of this Court to para 78 and 79 of the decision in Vishwajeet Singh’s case (supra), which is quoted herein below :

“78. Now example of 3 posts cadre is taken. If in 3 cadre posts, one post is reserved for Scheduled Castes that will be 33% reservation or one post is reserved for other Backward Class that shall be again reservation which is against the percentage prescribed under sub-section (1) of Section 3.

Now, example of 4 cadre posts is taken. With regard to 4 posts in one stream recently a Division Bench of this Court has considered the question of applicability of reservation in the case of Smt. Pholpati Devi v Smt. Asha Jaiswal and others, 2009 (2) ADJ 90. The sai