1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3612 OF 2008. Rajendra S/o Bhuta Borse ... Petitioner. Versus The Secretary, Junner Taluka Shikshan Mandal, Ane Taluka Junner, Dist.Pune and others ... Respondents. ... Mr.H.A.Joshi, advocate for the petitioner. Mr.D.R.Jaybhar, advocate for the Respondent Nos.1 to 4. Mr.K.M.Suryawanshi, A.G.P. for the Respondent No. 5. ... CORAM : V.R.KINGAONKAR,J. Date : 25.06.2009. PER COURT 1. By this petition, the petitioner challenges the judgment and order rendered by leaned Presiding Officer, School Tribunal, Solapur in an appeal (Appeal No.104/2006). By the impugned order, the appeal preferred by the 2 petitioner was dismissed. 2. Indisputably, the Respondent No.1 - Education Society runs four Secondary Schools. The petitioner is appointed as Assistant Teacher in one of such School w.e.f. 1.12.1998. The petitioner is admittedly from reserved category being member of Scheduled Tribe (S.T.). In the year 2005 one vacancy for appointment of Head Master was required to be filled in. The Respondent No.4 came to be appointed as Head Master of New English School, Khamondi, which is one of the Secondary School out of the four Schools of the Respondent No.1. The petitioner claimed the said post on the ground that he is member of reserved class (S.T.) and ought to have been appointed as such. The Respondent No.4 took charge of the post w.e.f. 1.6.2005. The claim of the petitioner was turned down and, therefore, he preferred appeal No.104/2006 before the learned Presiding Officer of the School Tribunal. The Respondent Nos.1 to 4 asserted that out of four posts available, only one could be allotted to a member of reserved category in view of Rule 9(10- 3 a) of the MEPS Rules, 1981. It was contended that due to appointment of one Mr.Shelar, who was already working since 17.6.1996 as a Head, the quota was filled up because he belonged to Scheduled Caste category. The School Tribunal accepted the contentions of the Respondent Nos.1 to 4 and, therefore, the appeal came to be dismissed. 3. Heard learned counsel for the parties and learned A.G.P. 4. At the threshold, it is signficant to note that the contention of the petitioner is that though Mr.Shelar was appointed as Head Master w.e.f. 17.6.1996 and belongs to S.T. category, yet, his appointment was only on the basis of seniority and not for the reason that he was member of reserved category. It is contended that the reserved category post could be filled in by appointment of the petitioner when the first opportunity was available in the year 2005. In this view of the matter, the appointment of the Respondent No.4, who is a member of open 4 category is being challenged. It is important to note that Rule 9(10-a) of the MEPS Rules, 1981 mandates reservation of 24% of the total number of posts or vacancies of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Tribes, Denotified Tribes etc. as per the percentage indicated in sub-clauses (i) to (iii). The reservation for S.T. category is 7% as per the Rule. So, if there are large number of Schools run by the management, such specific reservation is available in accordance with the percentage enumerated in sub-clauses (i) to (iii). Herein is a case where only four Secondary Schools are being run by the Respondent No.1 and, therefore, single post of Head could be reserved. Sub-clause (b) of Rule 10 is significant for the present purpose. It reads as follows : "(10)(b) In case it is not possible to fill the post of a Head or Assistant Head for which a vacancy is reserved for a person belonging to the Castes and Tribes specified in clause (a), the post may be filled in by promoting a candidate from the other remaining categories in the order specified in 5 clause (a), so however that the percentage of filling up such vacancies does not exceed the limit laid down for each such category. If candidates belonging to any of these categories are not available, then the vacancy or vacancies" 5. The composite reading of Rule 9 would make it amply clear that if vacancy is available in reserved category then only it has to be filled in by appointing a suitable person as Head. So, when the vacancies is not available, no person can claim stake only because he is member of the reserved category. In the present case, the vacancy was filled up due to appointment of Mr.Shelar as Head Master w.e.f. 17.6.1996. The contention of the that appointment of Mr.Shelar was not from reserved category because he was promoted on account of seniority, and, therefore, the vacancy for reserved class was available, does not stand to reason. This argument could have some relevance only when the post of Head was required to be filled in only on the basis of merit and the appointment was so made without adherence to the 6 caste and creed of a person. The petitioner could not pin-point any specific rule which provides that promotion by seniority does not fill up the post of Head from reserved category. The learned Presiding Officer of the School Tribunal seems to have duly considered the legal position settled in "Somsingh Chandrasingh Thakur Vs.Head Master, Captain R.M.Oak School, Kalyan (W), Dist. Thane and others" 2005 (4) Mh.L.J.946 and "New English High School Association Nagpur and another Vs. Baldev S/o Fakira Ade and another" 2006 (6) Mh.L.J.882. There is no dispute about the fact that the Respondent No.4 is senior to the petitioner and, therefore, he was appointed as per his seniority. 6. Considering the foregoing reasons, I do not find any merit in the petition. Therefore, the petition is dismissed. The claim of the petitioner shall, however, be considered as and when vacancy in the reserved category would arise. (V.R.KINGAONKAR,J.) asp/office/wp361208