WP 5177/11 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5177/2011 Dahegaon (Bolka) Shaikshanik Samajik and Arogya Seva Trust through Secretary & another V/s The State & others. _______________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | Shri V.D. Hon, Advocate for petitioners. Shri S.K. Tambe, AGP for respondent nos.1 to 3. CORAM: B.R. GAVAI & M.T. JOSHI, JJ. Date: 25.11.2011 Heard learned counsel for the parties. Rule. Rule made returnable forthwith and taken up for final disposal with the consent of the learned counsel for the parties. By way of present petition, the petitioners challenge the communication dated 2.7.2011 vide which the proposal submitted by the petitioner no.1 for grant of approval to the promotion of the petitioner no. 2 as Head Master has been rejected. The WP 5177/11 2 proposal has been rejected on the ground that as per the Roster, the post of the Head Master should be filled in from a reserved category. The total number of schools run by the petitioner no.1 - management are two. The Full Bench of this Court in the case of New English High School & another V/s Baldev Fakira Ade & another reported in 2007 (1) Bom.C.R., 6, while interpreting Rule 9(10)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, has taken a view that when reservation is provided of 24%, it cannot be insisted upon unless there are more posts available. It is the contention of the learned AGP that now the reservation has been increased to 33%. Even if the said contention is to be accepted in view of the judgment cited supra, unless three posts of the Head Master are available, the reservation cannot be insisted upon. Undisputedly, the total number of posts of the Head Master with the petitioner WP 5177/11 3 no.1 are only two. In that view of the matter, the impugned communication is not sustainable in law. Rule is made absolute in terms of prayer clauses (B) and (C). (M.T. Joshi, J.) (B.R. Gavai, J.) Dt/- 25.11.2011 ndk/c2511117