vs s IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.5372 OF 2008 PETITION NO.5372 OF 2008 PETITION NO.5372 OF 2008 Deepak Anant Dalvi ... Petitioner V/s. Marg Tamhane Education Society & Ors. ... Respondents Mr.M.S. Topkar for Petitioner Mr.R.J. Dhond for Respondent Nos.4 and 5 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: SEPTEMBER 5, 2008 SEPTEMBER 5, 2008 SEPTEMBER 5, 2008 P.C.: P.C.: P.C.: . Although Respondent Nos.1 and 2 are served and an affidavit of service has been filed, I am constrained to dispose off the matter in their absence. The contesting respondents are respondent Nos.4 and 5 and are represented before me. 2. The petitioner has challenged the order passed by the School Tribunal dismissing his appeal on 20.6.2008. The petitioner was initially appointed on 10.8.1998 against a vacancy for a candidate belonging to scheduled tribe. His appointment was from 12.8.1998 to 30.4.1999. The petitioner was then appointed on 20.8.1999 subject to the approval of the Education Department. His services were terminated in 2000. Being aggrieved by his oral termination from service, the petitioner approached the Tribunal and prayed that : 2 : he be reinstated in service with continuity of service and full backwages. The Tribunal has dismissed the appeal on the ground that since the petitioner was appointed against a reserved post for the scheduled tribe category he was not entitled to continue as a permanent employee after the fixed period of employment. The Tribunal has observed that the petitioner could not be deemed to have been made permanent although he had completed two years of service. 3. All these findings of the Tribunal have been arrived at on the basis that the petitioner was in fact appointed against a reserved post. It appears however that the reservations in the school had crossed the limit permissible in law. As held by the Division Bench of this Court in Writ Petition No.3680 of 2004 the reservation cannot be beyond 34%. The reservation in a school has to be in accordance with rule 9(vii) of the Rules framed under the MEPS Act. This rule stipulates that the reservations should not be more than 34% of the total number of posts of the teaching as well as non-teaching staff for members of the Scheduled Caste, Scheduled Tribe and Backward classes. The Tribunal, therefore, ought to have considered whether the appointment of the petitioner was in fact against a reserved post when the reservation had exceeded the stipulated limit. : 3 : 4. In these circumstances, the order of the Tribunal is set aside. The matter is remanded to the Tribunal for hearing it afresh. Besides deciding the issues whether the termination of the petitioner’s service is bad in law and illegal and to what relief he is entitled, the tribunal shall also decide (i) whether the reserved posts had exceeded 34% when the petitioner was appointed; (ii) If the reservation had crossed the permissible limit, whether the petitioner was appointed against a clear permanent vacancy; (iii) Whether the petitioner is deemed to be permanent. 5. The Tribunal shall dispose of the appeal within a period of six months. Since there is a new management of the school, the petitioner shall be given liberty to add the new management as a party respondent to the appeal. The petitioner shall continue in service during the pendency of the appeal. 6. Writ petition is disposed of in the above terms.