1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No. 4614 of 2007 [Shri Deo High School, Karal, Pusad, Distt. Yavatmal & another Vs. The State of Mah. & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. C.S. Kaptan, Adv., for the petitioners. Mr. Mandpe, AGP for respondent nos. 1 and 2. ----- CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 02nd September, 2009. 1. Heard. 2. We find that in 2000-01, i.e., the first year for consideration of application of roster, the number of posts available in Class- IV category were six and as per the provisions of Sub-rule (7) of Rule 9 of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981, the reservation to be followed should have been 34 per cent. The backlog, if not filled in, could have been carried forward in subsequent year and in that event, the reservation in subsequent years to the extent of 50 per cent could have been and should have been followed. The roster should been drawn accordingly. 2 3. In this background, when additional reply filed by respondent no.2  Education Officer on 28th February, 2008 is looked into, it appears that right from 2000-01, he has applied 50 per cent reservation and has also worked out roster accordingly. The petitioners have on 11th December, 2007 amended petition to point out that four approved employees are presently working and three out of them are belonging to reserve category. Thus, according to them, reservation in excess of 50 per cent is already in existence. 4. As we find that as per Sub-rule (7) of Rule 9 of the said Rules, only 34 per cent reservation should have been applied, we are not recording any finding on the challenge as raised by the petitioners by amendment, because a mere fact of working of three backward class candidates does not mean that they are working against reserved category posts and, therefore, the requisite percentage of reservation is fulfilled. The said aspect needs to be gone into by respondent no.2. 5. In this background, there is no point in keeping the petition pending. We dispose of the Writ Petition by directing respondent no.2 to apply mind afresh to the total number of posts available in 2000-01 and then recruitment or promotion made thereafter in the light of 3 provisions of MEPS Rules and then to find out whether approval to respondent no.3 can be given right from the day of his appointment. The respondent no.3 is already given approval from 1st July, 2009 and hence his eligibility for approval for earlier service put in by him only needs to be examined. 6. We accordingly partly allow this petition and direct respondent no.2 to hear the Management as also respondent no.3 and take appropriate decision in this respect as early as possible and in any case by 31st January, 2010. Needless to mention that if such decision is adverse, petitioners or respondent no.3 are free to challenge it in accordance with law. Rule accordingly. No costs. Judge Judge |Hedau| 4