1 WP-8993-2010 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8993 OF 2010 Shri Prakash Shivaji Dandile ...Petitioner Versus The State of Maharashtra and ors. ...Respondents Mr.A.M.Joshi for petitioner. Mr.C.R.Sonawane, AGP for resp.nos.1 to 3. Mr.I.M.Khairdi for resp.no.4. Mr.Vishwanath Talkute with Mr.Shriram Chaudhari for resp.no.8. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. October 17, 2011. P.C. 1. Heard Mr.Joshi, the learned counsel for the petitioner. The petitioner has been appointed as Peon on 11/2/2003 with Respondent no.5 – School run by the respondent no.4 – Society i.e. Shri Bhairavnath Education Society, Taluka Phaltan, Dist. Satara. Respondent no.6 – Shri C.S. Kadam and respondent no. 7 – Shri U.V. Bhosale are the two other 2 WP-8993-2010 peons with the respondent no. 5 – school. Respondent nos.6 and 7 are senior to the petitioner and by the petitioner’s own contentions the respondent no.6 has been appointed in the year 1981. 2. The student strength in the respondent no.5 – school exceeded 500 and, therefore, there was one more vacancy for the post of Junior Clerk. As per the respondent nos.4 and 5 the said post has been filled in by nomination as it was reserved for the Scheduled Caste and in that process respondent no. 8 – Shri D. S. Bhosale who holds the qualifications of B.A. came to be appointed with effect from 1/10/2007. The petitioner has impugned the appointment of respondent no.8 by relying upon the guidelines for fixation of seniority of non teaching staff as set out in Schedule F to the MEPS Rules, 1981. The said guidelines in respect of lower grade staff read as under : “Lower Grade Staff – A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, Call-Woman, Kamathi, Attendant, Laboratory Hamal, Liftman and such other lower grade staff, if any, shall be maintained on the basis of the dates of their 3 WP-8993-2010 appointment. If any of the lower grade staff improves his qualifications as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while filling in said post according to his place in seniority.” 3. As per Mr.Joshi, the learned counsel for the petitioner, the post of Junior Clerk offered to respondent no.8 was available to the petitioner and respondent nos.6 and 7 and they were required to be considered for such appointment. It was further submitted that unless the claim of the petitioner and respondent nos.6 and 7 was considered, the respondent no. 8 could not have been appointed. 4. The Deputy Education Officer (Secondary), Zilla Parishad, Satara has filed affidavit in reply and has pointed out that the appointment of respondent no.8 does not suffer from any illegalities. It has been reiterated that the additional post of Clerk was reserved for the SC category and the management could not have appointed any Peon for the said post in as much as the petitioner and respondent nos.6 and 7 do not belong to S.C. Category. It has been further stated that the appointment of respondent no.8 is as per the roster for reservation and he belongs to SC 4 WP-8993-2010 category. 5. In addition the management has pointed out that the claim of the existing Peons, even if required to be considered while filling in the post of Clerk and they are required to be given preference, Shri C.S. Kadam and Shri D.S. Bhosale are senior to the petitioner. Thus as per the management on any count the petitioner has no valid claim to the post occupied by respondent no.8 and hence the challenge raised in the petition to the appointment of respondent no.8 is frivolous. In any case the appointment to the post of Clerk is by nomination unlike the appointment to the post of Senior Clerk and Superintendent etc. which is only by way of promotion. We have referred to this issue only because it was submitted by Mr.Joshi that the petitioner belongs to the Other Back Category and the post reserved for SC could have been offered to him. This submission could have been considered if the appointment was only by way of promotion. 6. Hence the petition is rejected. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)