Hon’ble Rajan Roy, J.—Heard learned Counsel for the parties.

2. Both these writ petitions have been nominated for hearing by this Bench by the order of Hon’ble the Chief Justice.

3. In one of the writ petitions bearing No. 28269 (MS) of 2016, the challenge is by the Committee of Management to the panel of selected candidates sent by the Board, wherein one of the selectees is Anurag Kureel, who has been selected for appointment as Lecturer (Logic) in the education Institution of the said petitioner against the reserved post of the Scheduled Caste.

4. The other Writ Petition bearing No. 8445 (SS) 2017 is by the selected candidate Dr. Anurag Kureel, seeking a writ of mandamus commanding the opposite party No. 3 for exercising his power under Section 17 (2) of The Uttar Pradesh Secondary Education Services Selection Board Rules, 1998, that is, for his appointment and joining in college in question and also for payment of salary with effect from 1.12.2016, as according to him in the meantime the D.I.O.S. allowed joining in his own office but he is not getting salary as the bill has to be raised against the post as it exists in the educational institution.

5. The contention of Sri S.M. Royekwar, learned Counsel appearing for the Management is that there are 14 sanctioned posts of Lecturer. A fact which is not denied by the learned Standing Counsel in the counter-affidavit filed today in Writ Petition No. 28269 (MS) of 2016. In fact, even the instructions received in Writ Petition No. 84445 (SS) 2017 by the Standing Counsel admit to the said fact.

6. Out of 14 sanctioned posts, 7 posts are to be filled by promotion and remaining by direct recruitment, that is in proportion of 50:50 in terms of Rule 10 of the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 subject to the proviso that if any promotional post cannot be filled up on account of non-availability of eligible candidates, the same shall be filled by direct recruitment.

7. He says that the provision of reservation in promotion was applicable earlier by virtue of Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. However, the same came to be challenged before this Court in case of P.K. Singh v. State of U.P. and others, 2011 (29) LCD 404 and the same was declared ultra vires, subject to the protection granted therein that promotion already made shall not be disturbed. However, when the matter went up to Hon’ble Supreme Court, the provisions was not only declared ultra vires but also such declaration was given retrospective effect, meaning thereby, except for the protection available under the judgement of Hon’ble Supreme Court in Indira Sahni’s case for five years i.e. up to 16.11.1997, all appointments made on a post on the basis of reservation with effect from 17.11.1997 stood nullified, as there was no provision existing for the same in the eyes of law.

8. Based on this, he says that normally the number of seats to be reserved is to be calculated on the basis of total strength of the cadre, but on account of the peculiar situation existing in the State of U.P. where reservation has been nullified on the promotional post such number of reserved post has to be calculated only in respect of the direct recruit posts, which in the present case are only 7 and out of these 7 based on the quota of 21% prescribed in the Act of 1994. The number of seats come to 1.47. He contends that two Schedule Caste’s candidates are already working against the seven posts of Lecturer under the direct recruitment quota having been selected directly by the Board. In this Scenario, he says that if any requisition dated 16.8.2010 was sent by the Management for another post of Lecturer under the reserved category of Schedule Caste then apparently it was against the law. Therefore, if any action was taken based thereon, the same cannot be sustained in view of the subsequent decision of