JUDGMENT
Kamdar S.U., J.
1. By the present petitioners are challenging the appointment of the respondent Nos. 4 to 9 as teachers in Urdu medium schools run by the 1st respondent Corporation. It has also been further prayed that a fresh appointment should be effected to the aforesaid post. In brief, the case of the petitioners is as under: –
2. The petitioners were serving as Assistant Teachers in the Urdu medium school run by the respondent No. 1, in 1988-89 their tenure came to an end and, therefore, pursuant to the aforesaid advertisement they applied afresh. On 15-7-1988 an advertisement was published by the Corporation for appointment to the post of Assistant Teachers in primary school and about 375 posts were notified as and by way of vacancies. Out of the said 375 posts, 75 vacancies were notified for Urdu medium Assistant Teachers, The petitioners being duly qualified for the said appointment made applications for being appointed as teachers in the aforesaid vacancies as the petitioners were holding the requisite qualifications of S.S.C., D.Ed. for being appointed in the primary school.
3. In view of the various inter se disputes amongst the various employees of the 1st respondent Corporation particularly Assistant Teachers, a writ petition was filed in this Court in the case of Ritakiran Danmik Kajmir and Ors. v. City of Nagpur Municipal Corporation, Nagpur, reported in 1992(Supp. 2) Bom.C.R. (N.B.)63 : 1991 Mh.L.J. 797 and in paragraph 10 of the judgment the following directions were passed : –
“10. As a final solution, we think it advisable to remove the selection process entirely from within the purview of the Corporation. The Maharashtra Public Service Commission (M.P.S.C.) shall devise a written examination for the selection of the teachers to the expected vacant posts in primary schools and high schools run by the Nagpur Municipal Corporation. The age factor will be relaxed in the case of those who figure in the lists of 1986 and 1988. The Corporation will submit their requisition to the M.P.S.C. within four weeks from today. The M.P.S.C. shall issue advertisement in dailies having circulation in the State and these dailies will be the ‘Lokmat’, ‘Nav Bharat’ and ‘Hitavada’ all of Nagpur. The task for setting the question papers for the written examination shall be entrusted to competent persons not residing at Nagpur. The answer books shall also be appraised by competent persons not residing at Nagpur. Viva voce shall be attended by a Committee of three persons to be designated by the M.P.S.C. who will take the interviews at Nagpur but shall not include persons residing at Nagpur. The M.P.S.C. will complete the task aforementioned within six months of the requisition sent by the Corporation the period being extendable by this Court if the occasion so requires. The M.P.S.C. will be reimbursed or the expenses incurred by the Corporation. Authenticated copies of the two lists, one prepared on 31-12-1986 and another in 1988 shall be sent by the Corporation to the M.P.S.C. alongwith the requisition and the three men Committee.”
4. Then an appeal was preferred against the said judgment of the Division Bench of this Court before the Hon’ble the Supreme Court of India and the Supreme Court by an order and judgment dated 3-5-1991 passed in Civil Appeal No. 95/51287/91 inter alia directed Constitution of the three member committee for preparation of a select list of 190 persons to be appointed as teachers in the primary school as well as in high school. It was further directed that this exercise would be done as directed by the High Court by the earlier judgment dated 7-6-1991.
5. Pursuant thereto on 17-10-1991, a notice was issued by the 1st respondent Corporation constituting a Selection Committee and directing the candidates to appear for interview on 21-10-1991. The Selection Committee carried out the selection process and by including the entire list of 988 in which the names of the petitioners are not selected but respondent Nos. 4 to 9 are selected. This selection of respondent Nos. 4 to 9 was on the basis of the schedule caste certificate brought by them and they got themselves appointed in the schedule caste category. It is case of the petitioners and is not denied by the respondents including the learned Counsel appearing for respondent Nos. 4 to 9 that the said respondent Nos. 4 to 9 belonged to the Muslim Community. It is also not denied that respondent Nos. 4 to 9 were having less percentage of marks in the D.Ed. examination than the petitioner. However, it is contended that they were eligible to be appointed under the reserved category of Scheduled Caste. In the circumstances, the present petition has been filed by the petitioner inter alia challenging the said reservation in favour of respondent Nos. 4 to 9 on the basis of the Scheduled Caste from a Muslim Community.
6. The learned Counsel for the petitioner has contended before us that in Islam religion there is no category of any schedule caste and that religion does not recognise any such Scheduled Caste. The learned Counsel for the petitioners in support of the aforesaid contention relied upon a judgment of the Apex Court in the case of Punjabrao v. Dr. D.P. Meshram and Ors., in which it has been inter alia held as under:
“(13) What Clause (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court, following its earlier decision in Narayan Waktu v. Panjabrao, has said that the meaning of the phrase “professes a religion” in the aforementioned provision is “to enter publicly into a religious state” and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word “profess” have been given thus in Webster’s New World Dictionary: “to avow publicly; to make an own declaration of, to declare one’s belief in: as, to profess Christ. To accept into a religious order.” The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning “to declare one’s belief in: as to profess Christ” is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one’s belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquirer further as to whether the conversion to another religion was efficacious. The word “profess” in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person says, on the contrary that he has ceased to be a Hindu he cannot derive any benefit from that order.
(14) Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation II to Clause (2) of Article 25 of the Constitution. Clause (1) of Article 25 recognises, amongst other things, freedom to practise and propagate religion. Sub-clause (b) of Clause (2) runs thus : –
“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
Explanation II reads thus: –
“In sub-clause (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
The definition of Hindu is expanded or the special purposes of sub-clause (b) of Clause (2) of Article 25 and for no other. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus:-
“Notwithstanding anything contained in paragraph 2, no person who professes religion different from the Hindu or the Sikh religion, shall be deemed to be a member of a Scheduled Caste.”
If it was intended that the word “Hindu” used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the work “Hindhu” is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injunctions based on caste distinctions.”
7. It has been further contended by the learned Counsel for the petitioner that the appointment or respondent Nos. 4 to 9 under the Scheduled Caste category is totally illegal as there could be no Scheduled Caste category amongst Muslims. It has been thus contended that the order of appointment in so far as respondent Nos. 4 to 9 are concerned, the same should be quashed and set aside.
8. None of the respondents have filed any counter to the present writ petition. In our view the law is well settled that there can be no reservation in the category of the Scheduled Caste in the Muslim religion and the Scheduled Caste category in only permitted for the Hindu Community. In our view, therefore, the order of appointment of respondent Nos. 4 to 9 under the Scheduled Caste category is totally and wholly unsustainable in law and the same is required to be quashed and set aside. Accordingly, we set aside the appointment orders in respect of respondent Nos. 4 to 9 in the post of Assistant Teachers and direct the authorities to readvertise and select the fresh candidates in accordance with the law without providing for reservation for Scheduled Caste category in Muslim Community. Petition is disposed of in the aforesaid terms. However, there shall be no order as to costs.