1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 6082 OF 2009 1) Shri Datta Seva Mandal, Ruibhar, Taluka and District Osmanabad Through it’s President. 2) The Head Master, Keshav Madyamik Vidya Mandir, Khanapur, Taluka and District Osmanabad. 3) Dayanand S/o Khemraj Rathod, Age 26 years, Occu. Service, R/o Khanapur, Taluka and District Osmanabad .. PETITIONERS. VERSUS 1) The State of Maharashtra, Through it’s Secretary, Department of Education, Mantralaya, Mumbai-32. 2) The Education Officer (Secondary) Zilla Parishad, Osmanabad. ..RESPONDENTS ... Shri S.S. Jadhavar, Advocate for Petitioners. Shri S.K. Tambe, A.G.P. for respondents CORAM : P.V. HARDAS AND S.V. GANGAPURWALA, JJ. DATE : 15th April, 2010. ORAL JUDGMENT: (Per S.V. GANGAPURWALA,J.) 2 1. Rule. Rule returnable forthwith. With the consent of the learned counsels for the parties, the petition is taken up for final hearing at the stage of admission. 2. The petitioners have filed present Writ petition under Article 226 of the Constitution of India, challenging the order/letter dated 13/07/2009 issued by the respondent No. 2 refusing to grant approval to the appointment of Petitioner No. 3 as an assistant teacher. 3. According to the petitioners, petitioner No. 3 is appointed an assistant teacher with the petitioner No. 2 School, after following due procedure. According to the petitioners, one post of assistant teacher in the petitioner No. 2 School was reserved for Scheduled Tribe category. The Petitioner Nos. 1 & 2 took efforts to recruit a candidate from a Scheduled Tribe category for the said post. They even advertised the said post twice. In response to the advertisement of July, 2004 one candidate, 3 who claimed himself belonging to Scheduled Tribe category was selected. The said candidate was asked to submit his validity certificate, however, he expressed his inability to produce the same. He was also not possessing requisite qualification, as such no approval is granted to his appointment, he resigned from the said post on 26/03/2007. After the resignation of the said candidate, the petitioner No. 1 again made efforts to get candidate from Scheduled Tribe category. Application was given to the Project Officer, Integrated Tribe Development Project, Aurangabad and to the District Employment and Self Employment Guidance Center, Osmanabad to forward the list of duly qualified candidates belonging to Scheduled Tribe category vide letter dated 28/09/2007. The Assistant Director of District Employment and Self-Employment Guidance center, Osmanabad forwarded list of five candidates belonging to Scheduled Tribe category, vide letter dated 10/10/2007. The Petitioner Nos. 1 & 2 had advertised the said post in the news paper dated 21/02/2008 and invited applications from the duly qualified candidates to appear for 4 the selection process. A note was also given in the said advertisement that in the event of non- availability of Scheduled Tribe category candidate, a candidate belonging to any other reserved category would be considered for selection. On the scheduled date of interview, the candidates recommended by the Employment Exchange were also called for interview by sending them call letters. The Petitioners further submitted that, none of the candidates recommended by the Employment Exchange appeared for selection process, and so also pursuant to the advertisement, no candidate belonging to Scheduled Tribe category appeared for selection process, probably for the reason that the said post is on permanent non grant-in-aid basis. The petitioner No.3 who belongs to V.J.N.T. Category and possess requisite qualification for the post of assistant teacher appeared for the selection process pursuant to the advertisement dated 21/01/2008. The Petitioner No. 3 was selected against the said vacancy and was appointed as an assistant teacher vide appointment order dated 10/02/2008. The Petitioner No. 3 joined the 5 school on 11/02/2008 and since then he is continuously working in the petitioner No. 2 school. 4. According to the petitioner, a proposal was submitted in the office of respondent No. 2 for approval to the appointment of petitioner No. 3 on or about 04/03/2008 along with all necessary documents. The respondent No. 2 refused to grant approval of the appointment of the petitioner No. 3 vide its order dated 13/08/2009, on the ground that backlog exist in respect of the post reserved for Scheduled Tribe category in the petitioner No. 2 School. The said order is impugned in the present Writ Petition. 5. Shri S.S. Jadhavar, learned counsel for the petitioners has canvassed before us that refusing approval to the appointment of petitioner No. 3 as an assistant teacher to the said post is not legal and is not in consonance with the Rule 9(9)(a) of the Maharashtra Employees of Private Schools (Conditions of Service), Rules, 1981. According to him, the 6 respondents have misconstrued the said provision, and thereby has committed an error while refusing approval to the appointment of the present petitioner No. 3. According to the respondents, there are total 9 posts approved by the office to the petitioner school. From the said 9 posts of assistant teachers, one post is reserved for Scheduled Caste, one post is reserved for Scheduled Tribe, one post for V.J.N.T., and 2 posts are reserved for O.B.C. category. The Petitioners filled in one post from Scheduled Caste category, one post from V.J.N.T. Category and one post from O.B.C. Category in the petitioner No. 2 School. The backlog of one post of Scheduled Tribe and one post of O.B.C. exist. According to the respondents, the advertisement given by the petitioners Management is not correct, as there is backlog of one post of Scheduled Tribe category, therefore, approval to the appointment of petitioner No. 3 has been refused. 6. Rule 9(9)(a) of the Maharashtra Employees of Private Schools (conditions of 7 Service) Rules, 1981 reads as under :- “ 9(9)(a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule(7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the Backward Classes “. On Perusal of said rule it is abundantly clear that in case it is not possible to fill in the teaching post for which a vacancy is reserved for person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from other reserved categories in the order specified in sub rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to hear basis by a candidate not belonging to the Backward Classes. It is not disputed by the respondents that the petitioner No. 3 belongs to V.J.N.T. Category. Petitioner No. 3 though does not belongs to Scheduled Tribe category for which the said post was reserved, nonetheless the petitioner No. 3 8 belongs to backward class being a V.J.N.T. The record also shows that steps were being taken by the petitioner Nos. 1 & 2 for filling of the post from a candidate belonging to S.T. category, inspite of repeated attempts, a candidate belonging to Scheduled Tribe category was not available. The said post cannot be kept vacant in eternity. The petitioner had made attempts by calling list of candidates belonging to S.T. category from the Employment Exchange and by advertising the said post twice, but could not get a candidate belonging to Scheduled Tribe category probably for the reason that the said post is on permanent no grant-in-aid basis. In such circumstances, it was not improper for the petitioner Nos. 1 & 2 to fill in the said post by a candidate from a backward class, though not belonging to S.T. category, and in such circumstances the same is perfectly justifiable and permissible in view of Rule 9(9)(a) of the said Rules. The learned counsel for the petitioner has also substantiated the same by refering to the judgment delivered by the Apex Court in the case of “ Shakuntala Ganpatsa 9 Shirbhate V/s. Industrial Weaving Co-opeartive Society, reported in 1994(1) Mh.L.J. 218.” and two judgments of the learned Single Judges of this Court in case of “Bhairvnath Shikshan Mandal & another V/s. Rajiv Haribhau Thombe, reported in 2009(2) Bom.C.R., 539”, and in case of “Jeles Education Society & another V/s. R.T. Bhitale & another, reported in 2006(1) Bom.C.R. 65”, wherein it has been consistently held that in absence of a candidate belonging to a specific category, a candidate from other reserved category can be appointed. 7. In view of the afore said premise, the order dated 13/08/2009 passed by the respondent No. 2 is quashed and set aside. Rule is made absolute. The respondent No. 2 is directed to grant approval to the petitioner No. 3 as an assistant teacher with effect from 11-02-2008, if otherwise he is eligible to be granted approval. There shall be no order as to costs. [S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ] SDM* WP6082.09(J)