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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.6372 OF 2008
Mrs.Chitra Nitin Pendharkar : Petitioner
(Orig.Appellant)
V/s.
The Maharashtra Education Society & Ors. : Respondents
...
Mr.N.V.Bandiwadekar for the petitioner.
Mrs.A.N.Helekar for respondent nos.1 & 2.
Mrs.S.S.Bhende, Asstt. Govt. Pleader for resp. no.3.
ig ...
CORAM : S.A. BOBDE, J.
DATE : JANUARY 29, 2009.
ORAL ORDER:
Rule, returnable forthwith.
Mrs.Helekar for the respondent nos.1 & 2 and
Mrs.Bhende, the learned Asstt. Govt. Pleader for the
respondent no.3, waive service.
Heard by consent.
2. The petitioner has challenged the order of the School
Tribunal dated 17.7.2008 dismissing the petitioner’s
appeal. The petitioner’s appointment as a Teacher on open
category has been held to be beyond the prescribed
percentage for reserved category candidates.
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3. There are three units of deaf and dumb students which
are sanctioned in the school. The petitioner was employed
in one of the units. Her services were terminated. The
petitioner challenged the termination. The School
Tribunal held that each of the aforesaid units will have
to be taken separately for applying prescribed percentage
of reservation. When it is so applied, the petitioner’s
appointment cannot be sustained because there are already
two open category teachers in the unit and, therefore, the
third teacher will have to be a reserved category
candidate which the petitioner is not. Taking this view,
the School Tribunal
ig has held that the petitioner’s
appointment is illegal and non est in the eyes of law.
4. Having heard the parties, it appears that the order of
the School Tribunal suffers from an error of law apparent
from the face of the record, in that rule 9 has not been
correctly applied. Rule 9(7), as it read at the relevant
time, is as follows:-
“(7) The Management shall reserve 34 per
cent of the total number of posts of the
teaching as well as non-teaching staff for
the members of the Scheduled Castes,
Scheduled Castes converts to Buddhism,
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Scheduled Tribes, Denotified Tribes,
Nomadic Tribes and other Backward Classes
as follows, namely:
(a) Scheduled Castes and Scheduled
Castes converts to Buddhism. 13%
(b) Scheduled Tribes including those
living outside the specified 7%
areas.
(c) Denotified Tribes and Nomadic
Tribes. 4%
(d) Other Backward Classes. 10%"
The mandate of the Rule is that 34 per cent of the total
number of posts of the teaching as well as non-teaching
staff in the school should be reserved for the categories
mentioned therein. It does not warrant the breaking up
of any category of teachers into specific units and
applying the prescribed percentage of reservation to such
a unit. The mandate of the Rule is that the prescribed
percentage shall be applied to the entire teaching and
non-teaching staff in the school. Had this rule been
properly applied, it would not have been possible for the
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Tribunal to hold that the petitioner’s appointment is in
contravention of the prescribed percentage because there
are already two teachers belonging to the open category
in the unit where the petitioner is working.
5. The learned Asstt. Govt.Pleader, however, argued
that the defect arose on account of the practice of the
respondent-management in maintaining a separate roster
for the three units. The learned counsel for the
management submits that this practice is followed because
of a direction from the Department of Education.
Whatever be the reason, in case the respondent-management
is
not maintaining a roster, in accordance with law, the
Department of Education may call upon it to do so. That
is no reason for permitting a breach of rule 9(7), as it
stood at the relevant time, under which the total number
of teaching and non-teaching staff has to be taken as a
whole for calculating the prescribed percentage of
reservation.
6. In this view of the matter, the impugned order is set
aside, since there is no other justification put forth by
the respondents for termination of the petitioner’s
service, except that her appointment was not as per the
roster and was in violation of the rule of reservation.
The respondent no.3 is directed to consider and grant the
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petitioner’s approval, in accordance with law. Upon such
grant of approval, the petitioner shall be entitled to
all benefits therefrom.
7. Rule is made absolute in the above terms.
S.A. BOBDE, J.
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