1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 2239 OF 2001
1 Dhanraj s/o Ramdas Patil,
age 53 years, occ. Service
r/o Shri Shivaji High School,
Dist. Dhule,
2 Dinkarrao s/o Anandrao Patil,
age 53 years, occ. Service
r/o Shri Chhatrapati Shivaji High School,
Sakri Road, Dhule, Dist. Dhule,
3 Bhanudas s/o Anantrao Bhosale,
age 46 years, occ. Service
r/o Shri Chhatrapati Shivaji High School,
Sakri Road, Dhule, Dist. Dhule,
4 Madhukar s/o Govardhan Patil,
age 54 years, occ. Service,
r/o Nutan Padvi Vidyalaya,
Dhule, Dist. Dhule,
5 Gaman s/o Genda Pawar,
age 56 years, occ. Service,
r/o Jijamata Kala Vidyalaya,
Dhule, Dist. Dhule,
6 Ashok Himmatrao Shinde,
age 52 years, occ. Service,
r/o Jijamata Kala Vidyalaya,
Dhule, Dist. Dhule,
7 Bhalchandra s/o Ganpat Patil,
age 54 years, occ. Service,
r/o Shri Chhatrapati Shivaji
High School, Dhule,
8 Bharat s/o Dharamdas Nerkar,
age 45 years, occ. Service,
::: Downloaded on - 09/06/2013 16:32:23 :::
2
r/o Kala Vidyalaya, Station Road,
Dhule,
9 Shantilal s/o Namdeo More,
age 54 years, occ. Service,
r/o Adhyapak Vidyalaya, Dhule,
10 Trambakrao s/o Panditrao Shinde,
age 48 years, occ. Service,
r/o Nutan Padvi, Vidyalaya, Dhule ...Petitioners
VERSUS
1
State of Maharashtra,
through Secretary, Education
Department, Maharashtra State,
Sachivalaya, Mumbai 32,
2 Director of Education, Loni
3 Education Officer (Secondary),
Zilla Parishad, Dhule,
Dist. Dhule,
4 Shivaji Vidya Prasarak Sanstha,
through its Chairman,
Phule Bhavan, Galli No. 6,
at Dhule, Dist. Dhule,
5 Pradip s/o Damodhar Navsare,
age 36 years, occ. Head Master,
r/o Principal, Aghay Training College
(S.S.V.P.), Opp. Dist. Court,
Dhule, Dist. Dhule,
6 Nanabhau Pandlik Deore,
age 43 years, occ. Head Master,
r/o Krishnanagar High School (S.S.V.P.),
Krishnanagar, Dhule, Dist. Dhule,
7 Shobha R. Jadhav,
age 55 years, occ. Headmistress,
r/o Head Mistress, Kanyashala (S.S.V.P.),
::: Downloaded on - 09/06/2013 16:32:23 :::
3
Station Road, Dhule, Dist. Dhule,
8 Shivram Mahadu Pardeshi,
age 55 years, occ.Head Master,
r/o Head Master, Nutan Padvi Vidyalaya,
(S.S.V.P.), Station Road,
Dist. Dhule,
9 Zipru Kalu Pawar,
age 37 years, occ. Head Master,
r/o Chilane High School (S.S.V.P.),
Chilane, Tq. Sindkheda, Dist. Dhule ...Respondents
[Resp.Nos. 5 to 9 added with leave of this court, dt. 26.2.2002]
.....
Shri P.R.Patil, advocate for the petitioner
Shri D.V.Tele, A.G.P. for respondent nos. 1 to 3
Shri S.P.Shah, advocate holding for
Shri Amol S. Sawant, advocate for respondent no.4
Shri A.S.Golegaonkar, advocate for respondent nos. 5 to 9 absent.
.....
CORAM : S.B.DESHMUKH
AND
SHRIHARI P.DAVARE, JJ.
DATE OF RESERVING
THE JUDGMENT : 06.10.2010
DATE OF PRONOUNCING
THE JUDGMENT : 14.10.2010
J U D G M E N T : [ Per Shrihari P.Davare, J. ]
1 By the present petition, filed by the petitioners under
Article 226 of the Constitution of India, the petitioners prayed as
follows :-
::: Downloaded on – 09/06/2013 16:32:23 :::
4
” [C] By appropriate writ, direction or orders in
the nature of writ, the respondents be directed to
maintain ratio of only 24% in respect of post Head and
Assistant Head Master with respondent no.4 ShivajiVidya Prasarak Sanstha.
[D] By appropriate writ, direction or orders in
the nature of writ, the respondent no.4 Shivaji VidyaPrasarak Sanstha be directed to get the caste claims
verified from the respective caste scrutiny committee
of the teachers who have obtained benefits on the
basis of reservation. ”
2 Respondent no.1 is the State of Maharashtra through the
Secretary, Education Department and respondent no.2 is the
Director of Education, Maharashtra State; whereas respondent no.3
is the Education Officer (Secondary), Zilla Parishad, Dhule and
respondent no.4 is Shri Shivaji Vidya Prasarak Sanstha, a registered
public trust through its Chairman and respondent nos. 5 to 9 are the
added respondents i.e. Head Masters of respondent no.4 school.
3 Briefly stated, the facts leading to the present petition are
as under :-
There are seven posts of Head Master with respondent
no.4, namely Shivaji Vidya Prasarak Sanstha. As per Rule 9(10)(a)
of the Maharashtra Employees of Private Schools (Conditions of
::: Downloaded on – 09/06/2013 16:32:23 :::
5
Service) Rules, 1981 (hereinafter referred to as “the Rules of 1981”)
only 24 percent of total posts of Head Master and Assistant Head
Master are to be reserved for backward classes. Hence, for seven
posts, total reservation comes to 1.68 posts, of which rounded figure
can be taken as two posts as per the afore said Rule. However, out
of seven posts, respondent no.4 Sanstha has given five posts to
reserved category candidates i.e respondent nos. 5 to 9 respectively.
Apparently, according to the petitioners, it is more percentage than
what is required as per the afore said Rule, which resulted into
depriving of three teachers from open category to their rightful
claims.
4 Another grievance of the petitioners is that the persons
who have claimed the post on the basis of their caste, have no caste
validity certificates from the Caste Scrutiny Committee. In fact, it is
the contention of the petitioners that some of them have obtained
their caste certificates fraudulently. Hence, it is appropriate to send
the caste claims of such persons for verification before the Caste
Scrutiny Committee.
5 It is also the contention of the petitioners that in view of
the excess reservation, 62 Assistant Teachers of respondent no.4
Sanstha submitted representation dated 29.12.2000 to respondent
no.4, which was duly received by it on 3.1.2001. However, it is the
::: Downloaded on – 09/06/2013 16:32:23 :::
6
grievance of the petitioners that till today no decision has been taken
by respondent no.4 Sanstha in that respect. It is also submitted that
similar representation was submitted to respondent no.2 Director of
Education, Pune and the Collector, Dhule was apprised about the
said situation and he was requested to verify the caste claims, but no
action has been taken in that regard so far. Hence, the petitioners
have filed the present petition for the prayers as set out hereinabove.
6 Respondent no.3 has filed affidavit in reply, which is
sworn in by Dinesh Lala Solunke, presently working as the Education
Officer (Secondary), Zilla Parishad, Dhule, and thereby opposed the
present petition and denied the averments made and contentions
raised by the petitioners in the present petition unless admitted
specifically. It is the contention of respondent no.3 that although as
per Rule 9(10)(a) of the Rules of 1981, 24 percent of total number of
posts for Heads and Assistant Heads were reserved for backward
classes, the said percentage has been changed in view of the
Government Resolution, dated 18.10.1997 issued by the General
Administration Department, State of Maharashtra, in view of the
judgment and order passed by the Hon’ble Supreme Court, in the
case of R.A.Sabarwal and others vs The State of Punjab.
Accordingly, now the said percentage of reservation has been
increased from 24 percent to 33 percent and respondent no.3 has
annexed a copy of the said Government Resolution dated
::: Downloaded on – 09/06/2013 16:32:23 :::
7
18.10.1997 at Exh. ‘R-1’ . Respondent no.3 also submits that the
reservation for promotion is maintained in view of Annexure II of
Government Resolution dated 17.9.1980. Moreover, by virtue of
above said Government Resolution, 50 point model roster is followed
from 17.9.1980 onwards till the issuance of Government Resolution
dated 18.10.1997, copy of which is produced at Exh. ‘R-2’.
7
As regards another grievance of the petitioners,
respondent no.3 submits that the caste certificates of reserved
category employees have been submitted to the Divisional Social
Welfare Officer for caste verification from time to time by respondent
no. 4. Accordingly, respondent no.3 submits that in view of the afore
said position, nothing survives in the present petition, and therefore,
same deserves to be dismissed.
8 Respondent no.3 also filed additional affidavit, which was
affirmed by Dinesh Lala Solunke, Education Officer (Secondary),
Zilla Parishad, Dhule, and reiterated the contents in the aforesaid
affidavit in reply and submitted that appointments of all the teachers
referred in the petition are made as per 50 point model roster, and
according to the said model roster, Pradeep Damodhar Nausare,
who belongs to S.T. Category is promoted as Head Master on
seniority basis, since he was found seniormost in S.T.category.
::: Downloaded on – 09/06/2013 16:32:23 :::
8
Moreover, Nanabhau Pundlik Deore, who belongs to S.T.category
was promoted as Head Master on the basis of seniority and
according to 50 point model roster; as well as Shivram Mahadu
Pardeshi, who belongs to N.T.category was appointed as Head
Master in place of Shri Gosawi who was retired and who was also
from N.T.category, and therefore, said Shri Shivram Mahadu
Pardeshi was promoted in place of N.T.category candidate according
to 50 point model roster. Moreover, Zipru Kalu Pawar, who belongs
to S.T.category was appointed as Head Master as per seniority
according to 50 point model roster and Smt. Shobhana Onkar
Jadhav, who is female teacher was appointed as Head Mistress from
N.T.category and also she was appointed there as the said School is
Girls School.
9 Hence, respondent no.3 submitted that all these
appointments were verified from the office of the Assistant
Commissioner, B.C. Cell, Nashik Division, Nashik, and accordingly,
same were verified from the competent authority. Moreover, it is
submitted that these appointments were made prior to the
Government Resolution dated 18.10.1997. It is further stated,
according to Government Resolution dated 18.10.1997 in Schedule
Column 5, it has been specifically mentioned that if the
appointments are made prior to said Government Resolution more
than reserved posts, then in that event those appointments shall not
::: Downloaded on – 09/06/2013 16:32:23 :::
9
be affected. According to the said Government Resolution, 33
percent posts are reserved for reserved categories of different
reserved castes and 67 percent posts are kept for open category. In
view of the said facts and circumstances, it is submitted by
respondent no.3 that present petition bears no substance and same
is devoid of any merits and same be dismissed.
10
Respondent no.4 also filed affidavit in reply, which was
sworn in by one Prafulla Madhukarrao Sisode and thereby denied
the averments made and contentions raised by the petitioners in the
present petition unless admitted specifically.
11 It is submitted that each and every appointment to the
post of Head Master is made in consonance with the Rules of 1981
and as per the guidelines issued by the State Government. It is also
submitted that the Management is operating in all seven secondary
schools, out of which two schools are Girls Secondary Schools and
the list of all the teachers appointed as Head Masters and Assistant
Head Masters in all the seven schools along with particulars thereof
is annexed with the said reply and marked as Exh. ‘R-1’ collectively.
According to respondent no.4, all the appointments of Head Masters
made by the Management are approved by the Education Officer
(Secondary), Zilla Parishad, Dhule i.e. respondent no.3. Moreover, it
is also further submitted that all these appointments are made by the
::: Downloaded on – 09/06/2013 16:32:23 :::
10
Management in accordance with the seniority list prepared by the
Management as well as by applying 50 point model roster, and
hence, there is no irregularity therein.
12 As regards further grievance of the petitioners, it is
submitted by respondent no.4 that the Management has also sent all
the relevant documents of all the teachers who have been appointed
as Head Masters in various schools to the Caste Scrutiny Committee
for validation and the Secretary, Caste Scrutiny Committee, Nashik
Division, Nashik issued the letter to the Management and returned
back all the documents without verifying the same, on the ground
that the said Committee has no jurisdiction to verify the caste claim
of the employee who has been appointed prior to 5.7.1997, and copy
of the said letter is annexed at Exh. ‘R-5’.
13 Thus, respondent no.4 submits that the appointments
made by the Management are approved by the Education Officer,
and therefore, there is no irregularity committed by the Management
while appointing the teachers and Head Masters in various schools,
and hence, present petition is devoid of any merits and same be
dismissed in limine.
14 Respondent nos. 5 to 9 also filed their affidavit in reply
and opposed the present petition vehemently, and submitted that the
::: Downloaded on – 09/06/2013 16:32:23 :::
11
appointments of respondent nos. 5 to 9, by way of promotion, have
been made as per roster. It is also submitted that for the post of
Head Master, persons from the cadre of Assistant Head Master are
considered, as the post of Head Master falls in category ‘A’.
Moreover, post of Assistant Head Master falls in category ‘B’ and the
post of Assistant Teacher falls in category ‘C’. It is submitted that
respondent nos. 5 to 9 have been promoted on the basis of their
seniority as well as their respective roster point to the post of Head
Master. It is further submitted that only persons from category ‘B’ are
being considered for promotion to the post from category ‘A’ as per
Rule 12 of the Rules of 1981 and guidelines provided in Schedule ‘F’
under the said Rules.
15 It is also submitted that respondent nos. 5 to 9 have been
promoted quite earlier and at the time of their promotions, present
petitioners have not raised any objections and they have made
representation only on 2.11.1999 and thereafter. In short, it is
submitted by respondent nos. 5 to 9 that the present petition suffers
from inordinate delay and gross laches on the part of the petitioners.
It is also submitted by respondent nos. 5 to 9 that if the petitioners
claim that they are senior to respondent nos. 5 to 9, remedy of
appeal against any order or supersession has been provided under
Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short, “the Act of
::: Downloaded on – 09/06/2013 16:32:23 :::
12
1977″) before the School Tribunal is provided. However, none of the
petitioners have either raised objection or filed appeal before the
School Tribunal as provided under the Act of 1977. Accordingly, it is
submitted that substantive and efficacious remedy has been
provided by the Act of 1977 itself to the petitioners, but the
petitioners have chosen wrong forum by filing the present petition,
and therefore, present petition deserves to be dismissed on the said
count itself. Accordingly, it is submitted by respondent nos. 5 to 9
that present petition is erroneous and unsustainable, and therefore,
same be dismissed.
16 Heard the learned respective counsel for the parties.
17 It is necessary to reproduce Rule 9 (10) (a) of the Rules of
1981, which reads as under :-
” 9. Appointment of staff.
(1) …………… ……………
(10)(a) The management shall reserve 24 per cent of
the total number of posts (or vacancies) of Heads and
Assistant Heads for the members of Scheduled Caste,
Scheduled Caste converts to Buddhism, Scheduled
Tribes, Denotified Tribes and Nomadic Tribes as
follows, namely :-
::: Downloaded on – 09/06/2013 16:32:23 :::
13
(i) Scheduled Castes and Scheduled Castes
converts to 13 per cent Buddhism.
(ii) Scheduled Tribes including those living outside
the 7 per cent specified areas.
(iii) Denotified Tribes and Nomadic Tribes.
(b) In case it is not possible to fill in the post of a Head
or Assistant Head for which a vacancy is reserved for a
person belonging to the Castes and Tribes specified inclause (a), the post may be filled in by promoting a
candidate from the other remaining categories in theorder specified in clause (a), so however that the
percentage of filling up such vacancies does notexceed the limit laid down for each such category. If
candidates belonging to any of these categories are
not available, then the vacancy or vacancies —
(i) of the Head may be filled in by promoting any
other teacher on the basis of seniority-cum-merit after
obtaining previous approval of the Education Officer;
(ii) if the Assistant Head shall be kept unfilled for a
period of three years, unless such vacancy or
vacancies could be filled in by promotion of any
teachers belonging to such Castes or Tribes becoming
available during that period. ”
18 Moreover, learned counsel for the petitioners relied upon
the Full Bench Judgment of this court (Nagpur Bench) in the case of
New English High School Association Nagpur and Another vs
Baldev s/o Fakira Ade and Another, reported at 2007 (1) ALL MR
381, wherein it is held that :-
::: Downloaded on – 09/06/2013 16:32:23 :::
14
” From the reading of R.9(10)(a) as well as G.R. dt.
17.9.1980 it is apparent that in relation to the posts of
Head Masters and Assistant Head Masters, the
statutory reservation is to the extent of 24% which is
divided into 13% in favour of the Scheduled Castes,
7% in favour of the Scheduled Tribes and 4% in favour
of the Denotified and Nomadic Tribes.
Undoubtedly, the Constitution mandates
implementation of reservation policy. However, at the
same time, it assures opportunities to all the open
class category candidates. The implementation of the
reservation policy should not lead to absurd result.
The application of reservation percentage has to be
with reference to the number of posts. It is always to
be remembered that the reservation percentage is to
be applied and the 50 point roster is to be followed
taking into consideration the total number of posts in a
cadre and at the same time care has to be taken that
other category candidates are not prejudiced in the
sense that the statutorily recognized reservation
percentage does not exceed while implementing the
reservation policy. Undisputedly, the relevant rule
requires 24% of reservation out of which 13% for the
S.C., 7% for the S.T. And 4% for the D.T./N.T.
Considering the 24% reservation if one applies the 50
point roster, it would result in reservation in excess of
the statutorily specified percentage. In a cadre
comprising of three posts with 24% reservation rule, if
one applies the 50 point roster, then the reservation
even in respect of one post would exceed 24%
reservation. One-third cannot be equated to 24%. It is
settled law that the reservation cannot be allowed to
exceed the percentage prescribed for reservation as it
::: Downloaded on – 09/06/2013 16:32:23 :::
15
would result in injustice to the candidates falling
outside the reservation category. Considering the
same, 24% reservation can be applicable only in cases
where there are minimum of four posts in a cadre and
not otherwise. The fall out of the above discussion is
that in case the cadre consists of three or less number
of posts and the total percentage of reservation is
24%, there cannot be any reservation in such a case
and it would be only in case of four posts that one of
those will have to be filled in by the reserved category
candidate. The applicability of the reservation policy
would depend upon the number of posts in a cadre
and the percentage of reservation. The 50 point roster
can be made applicable only when the applicability
thereof would not result in implementation of
reservation policy in excess of the percentage
statutorily prescribed for the reserved category
candidates. 1997 (2) SCC 332, 1997 (4) SCC 278 and
1995 Supp (1) SCC 432 held no longer good law. 2006
(2) Mh.L.J. 68 held not good law in view and 2003 (3)
Mh.L.J. 1010 (FB) and 1998 (4) SCC 1. ”
19 Applying the provision of Rule 9(10)(a) of the Rules of
1981 and the ratio laid down in the afore said Ruling in the instant
case, now the issue in controversy in the present case is no more
Res integra, and it is crystal clear that in case where the cadre
consists of three or less number of posts and the total percentage of
reservation is 24 percent, there cannot be any reservation in such a
case and it would be only in case of four posts, one of those will have
to be filled in by the reserved category candidate. It is also
::: Downloaded on – 09/06/2013 16:32:23 :::
16
undisputed that the applicability of the reservation policy would
depend upon the number of posts in a cadre and the percentage of
reservation. The 50 point roster can be made applicable only when
the applicability thereof would not result in implementation of
reservation policy in excess of the percentage statutorily prescribed
for the reserved category candidates.
20
However, in the present case, out of seven posts of Head
Master, respondent no.4 filled in five posts from backward class
candidates i.e. respondent nos. 5 to 9 respectively, which is excess
and beyond the reservation of 24 percent as per Rule 9(10(a) of the
Rules of 1981, which resulted into depriving of rightful claim of the
open category candidates, and hence, present petition is required to
be allowed partly in terms of prayer clause ‘C’ thereof relying upon
the aforesaid Full Bench judgment of this court.
21 As regards the another grievance of the petitioners in
respect of caste verification of caste claims of respondent nos. 5 to 9
by the Caste Scrutiny Committee as prayed for in prayer clause ‘D’ of
the present petition, respondent no.4 has categorically stated in its
affidavit in reply that respondent no.4 had already sent all the
relevant documents of all the teachers who have been appointed as
Head Masters in various schools to the Caste Scrutiny Committee for
validation, but the Secretary of the Caste Scrutiny Committee,
::: Downloaded on – 09/06/2013 16:32:23 :::
17
Nashik Division, Nashik issued a letter to respondent no.4 and
returned back all the documents along with it without verifying the
same on the ground that the said Committee had no jurisdiction to
verify the caste claim of the employee who has been appointed prior
to 5.7.1997 and copy of the said letter has been annexed with the
said affidavit in reply at Exh. ‘R-5’, and hence, in the light of the said
facts, nothing survives in the prayer clause ‘D’ of the present petition.
22 In the circumstances, present petition deserves to be
allowed partly in terms of prayer clause ‘C’ thereof, but as nothing
survives in prayer clause ‘D’, and therefore, petition is required to be
disposed of in respect of the said prayer.
23 In the result, present petition is allowed partly in terms of
prayer clause ‘C’. However, since nothing survives in prayer clause
‘D’ thereof, the petition stands disposed of, to the extent of the said
prayer.
24 Rule is made absolute accordingly in the aforesaid terms.
In the circumstances, there shall be no order as to costs.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
::: Downloaded on - 09/06/2013 16:32:23 :::
18
dbm/wp2239.01
::: Downloaded on - 09/06/2013 16:32:23 :::