1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7950 OF 2008 Bhimgonda Appaji Patil ..Petitioner versus State of Maharashtra & Ors. ..Respondents Mr. N. V. Bandiwadekar for Petitioner. Mr. V. S. Gokhale – AGP for Respondent Nos. 1 and 2– State. Mr. Pramod N. Patil for Respondent Nos. 3 and 4. Mr. Laxman Deshmukh for Respondent Nos. 5 to 7. CORAM : D. D. SINHA & A. A. SAYED , JJ. DATED : JANUARY 27, 2010. P.C. : 1. Heard the learned counsel for the petitioner, the learned AGP for the State, the learned counsel for respondent Nos. 3 and 4 and the learned counsel for respondent Nos. 5 to 7. 2. Writ Petition is directed against the Order dated 1st November, 2008 passed by the respondent No. 2 Education Officer (Secondary) whereby the petitioner who is Assistant Teacher is declared surplus in respondent No. 4 school run by respondent No. 3. The grievance of the petitioner in short is 2 that respondent Nos. 5, 6 and 7 who are also Assistant Teachers in the same school and were at the relevant time junior to the petitioner should have been declared surplus since the petitioner was senior to them. 3. The Assistant Government Pleader though does not dispute the factual aspect of the matter, however has submitted that respondent Nos. 5 and 6 are from OBC Category and respondent No. 7 is from Special Backward Class Category and therefore in view of Rule 27(e) they cannot be declared surplus. 4. The counsel for the petitioner has brought to our notice that in the affidavit filed by the Education Officer it is stated that for the purpose of passing impugned order the seniority and other relevant aspect considered by the Education Officer were of the year 2007-2008 so far as the school in question is concerned. It is contended that Rule 9(7) of M.E.P.S. Rules are concerned, it deals with the appointment of staff, Special Backward Class category was then not included in the said Rule and therefore respondent No. 7 who belonged to Special Backward Class category was then not eligible to get protection of Rule 27(e). The learned counsel for the petitioner further contended that since respondent No. 7 was junior to the petitioner and was not then eligible to get protection of Rule 27(e) ought to have been declared surplus by the respondents – management in place of the 3 petitioner and therefore the order impugned is not sustainable in law. 5. The Assistant Government Pleader has contended that though the Special Backward Class category by virtue of the amendment in Rule came to be inserted in the year 2008, however the order by which the petitioner was declared surplus was passed on 1st November 2008 i.e. after the Rules were amended. However, the staffing pattern which was taken into consideration was of the year 2007. 6. Be that as it may, in the back-drop of the above referred facts, it is apparent that staffing pattern which was taken into consideration while declaring the petitioner surplus was that of year 2007 by the respondents – management, which is also reflected in the affidavit filed by the Education Officer. It is not the case of the Education Officer that the Order dated 1st November 2008 is passed taking into consideration the Amended Rule. Since it is not in dispute that the impugned order, whereby the petitioner is declared surplus is based on the position of seniority existed in the year 2007 and not in view of amended rules, we are of the view that the matter requires reconsideration by the Education Officer afresh. 7. For the reasons stated herein above, we hereby quash and set aside the Order dated 1st November 2008 passed by the Education Officer. Matter is 4 remanded back to the Education Officer for reconsideration of the issue of declaration of surplus teacher afresh in accordance with law and procedure applicable in this regard and take a decision on its own merits within a period of four weeks from the date of communication of this Order by following principles of natural justice. 8. With these observations and directions, writ petition is disposed of. Parties to maintain status quo as of today till the decision is taken by the Education Officer. sd/- (D. D. SINHA, J.) sd/- ( A. A. SAYED, J.)