JUDGMENT :

1. Heard Sri G.C. Verma, learned counsel for the petitioner, learned Standing Counsel for respondent -State and Sri Raj Deepak Chaudhary, learned counsel for respondent No.5.

2. By means of present writ petition, the petitioner is challenging the orders dated 25.06.2007 and 05.07.2007 passed by respondent No.2 & 3 contained as annexure Nos.1&2 respectively as well as decision dated 23.06.2007 as mentioned in impugned order dated 25.06.2007 with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to grant approval for promotion of the petitioner w.e.f. 19.12.2006 and to pay salary for the post of Lecturer regularly along with arrears w.e.f. 19.12.2006.

3. Factual matrix of the case is that a post of Hindi Lecturer fallen vacant due to retirement of one Mr. K.K. Misra under 50% promotion quota. In the institution, there are six sanctioned posts of Lecturers out of which, three posts of Lecturers are to be filled up by way of direct recruitment and three posts are to be filled up by way of promotion. Out of six posts, one post of Lecturer was already filled up from Scheduled Caste Category and one Mr. Parmeshwar Deen Chaudhary was working on the said post.

4. The committee of management passed a resolution on 19.12.2006 for grant of promotion to the petitioner on the post of Lecturer in Hindi. The papers were duly submitted before the District Inspector of Schools (DIOS) for its transmission to the Regional Selection Committee constituted under Section 12 of the Relevant Rules. The Regional Level Committee took decision in the matter, which was communicated by the Regional Joint Director of Education vide order dated 25.06.2007, whereby it has been held that the post against which the petitioner has been granted promotion, comes under reserved category of Scheduled caste, as per roster.

5. The DIOS vide letter dated 05.07.2007 communicated the decision of the Regional Level Committee / Regional Joint Director of Education dated 25.06.2007 and returned the papers of the petitioner for grant of promotion. The petitioner, feeling aggrieved, filed the present writ petition before this Court, wherein following interim order was passed on 20.08.2007:

"Notice on behalf of opposite parties no.1 to 3 has been accepted by the learned Standing Counsel, who prays for and is granted four weeks time to file counter affidavit. Two weeks thereafter is allowed to the counsel for the petitioner to file rejoinder affidavit. List thereafter.

In the meantime, operation of the impugned orders dated 25.6.2007 and 5.7.2007, contained in Annexure nos. 1 and 2 to the writ petition, shall remain stayed so far as it related to the petitioner and with respect to the post of Lecturer in Hindi in R.B.S.B., Singh Inter College Kamlapur, Sitapur."

6. In pursuance to the order passed by this Court, the petitioner was permitted to continue on the post of Lecturer in Hindi and operation of the impugned orders dated 25.06.2007 & 05.07.2007 was stayed.

7. Submission of learned counsel for the petitioner is that there are six posts of Lecturers duly sanctioned in the institution and under 50% promotion quota, there are only three posts, which is less than 5, therefore, in view of decision of the Full Bench in the case of Heera Lal Vs. State of U.P. and others;(2010) 3 UPLBEC 1761, there shall be no reservation against three vacancies in existence. His next submission is that in case reservation to the scheduled castes is permitted, which is 21%, it will exceed 25%. In support of his submissions, he placed reliance upon paragraph 32 of the judgment in the case of Heera Lal (Supra).

9. On the other hand, learned counsel for the respondents submitted that there are six posts and roster will apply against them. In view of above, one post shall be reserved for Scheduled Castes Category. Their next submission is that the impugned orders passed by Regional Level Committee as well as by the DIOS do not suffer from any in