By the Court.—The Uttar Pradesh Secondary Education Services Selection Board (‘Board’) issued an advertisement for direct recruitment to the post of Head of Government aided private Inter Colleges and High Schools. The petitioner applied for the post of Principal for Gorakhpur Region. It has been averred that no date for interview has been fixed thus far.

2. The grievance of the petitioner is that in consequence of the provisions of Section 10 (1) of the U.P. Secondary Education Services Selection Board Act, 1982, no reservation has been provided in respect of the post of the Head of the Institution to candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes in accordance with the provisions of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The petitioner challenges the provisions of Section 10 (1) of the Act of 1982 as unconstitutional. In consequence, the petitioner seeks to challenge the advertisement of 2013 as well as an earlier advertisement of 2011 issued by the Board and seeks a mandamus for issuance of a fresh advertisement after providing for reservation.

Section 10 of the Act of 1982 reads as follows:

“10. Procedure of selection by direct recruitment.—(1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).”

3. Section 10 of the Act of 1982 specifically excludes the post of Head of the Institution from the purview of reservation. The issue, which is sought to be raised before the Court, is not res integra.

4. In Balbir Kaur v. U.P. Secondary Education Services Selection Board, (2008) 12 SCC 1, the Supreme Court specifically dealt with the issue as to whether the post of the Head of the Institution was liable to be reserved when direct recruitment is carried out in pursuance of an advertisement issued under the Act of 1982. The issue was considered in the judgment of the Supreme Court from two perspectives. Firstly, the matter was considered having due regard to the provisions of Section 10 noted above, which specifically and expressly excludes the post of Principal from the purview of the Act of 1994. But this decision is sought to be distinguished by the learned counsel appearing on behalf of the petitioner by submitting that in that case there was no challenge to the constitutional validity of Section 10 of the Act of 1982. Now it is true that in Balbir Kaur (supra) there was no challenge to the constitutional validity of Section 10 of the Act of 1982. This aspect had been specifically noted in the judgment of the Supreme Court. However, the point, which we note, is that the decision in Balbir Kaur (supra) did not only rest on the provisions of Section 10 of the Act of 1982, which excludes the post of the Head of the Institution from the purview of reservation. Apart from this rationale, the Supreme Court also held, following the decision of the Constitution Bench in Chakradhar Paswan (Dr.) v. State of Bihar and others, (1988) 2 SCC 214, that the existence of a plurality of posts is a sine qua non for a valid