-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2903 OF 2007 Mrs.Deepali Deepak Buva Age 39 years, Occupation - Service, R/o. 4-52, Chandan Apartment, Kanase Road, Ambernath (East), District Thane--421 501. : Petitioner V/s. 1. The State of Maharashtra Through the Secretary, School Education Department, Mantralaya, Mumbai--400 032. 2. The Dy. Director of Education, Mumbai Region, Mumbai, At Jawahar Bal Bhavan, Netaji Subhash Marg, Charni Road, Mumbai--400 004. 3. The Education Society, Ambernath, District Thane Through its Chairman/Secretary. 4. Mahatma Gandhi Vidyalay & Junior College, Ambernath, District Thane Through its Principal. : Respondents ... -: 2 :- Mr.N.V.Bandiwadekar for the petitioner. Mrs.S.S.Bhende, Asstt. Govt. Pleader for resp. nos.1 & 2. Mr.M.S.Topkar for respondent nos.3 & 4. ... CORAM : S.B.MHASE & A.A.KUMBHAKONI,JJ. DATE : JUNE 05, 2008. ORAL JUDGEMENT (Per A.A.Kumbhakoni,J.) 1. This petition raises an identical question yet again which has been answered by this Court repeatedly by way of various earlier orders such as the one delivered in Writ Petition no.3571 of 2004 (Shri Pradeep Pandurang Dhondge v. The State of Maharashtra & Ors.) on 25.2.2005. The only exercise that is to be performed by us in the present petition is the applicability of the principles laid down by this judgement/order to the facts of this case. 2. Hence, Rule. Rule made returnable forthwith, by consent of parties. Mrs.Bhende, the learned Asstt. Govt. Pleader for the respondent nos.1 & 2, and Mr.Topkar for the respondent nos.3 & 4, waive service. -: 3 :- Heard the learned counsel for the parties. 3. The petitioner has filed this petition, being aggrieved and dissatisfied by an order issued on 25.4.2004 by the 2nd respondent, Deputy Director of Education, Mumbai Region, Mumbai, refusing to approve the appointment of the petitioner as a Shikshan Sevak in the 4th respondent Junior College with effect from 1.12.2005. The 2nd respondent has passed the impugned order only on the ground that there exists a backlog in respect of appointment of teachers/Shikshan Sevaks of reserved category and that the petitioner belongs to open category. 4. The petitioner, of course, admittedly belongs to open category and after initial appointments on Clock Hour Basis (CHB), the petitioner has been appointed as a Shikshan Sevak on 1.12.2005 for a period of two years with effect from 1.12.2005. On 17.1.2006 the 4th respondent institution submitted the requisite proposal to the 2nd respondent, Deputy Director of Education, seeking his approval to the appointment of the petitioner so made with effect from 1.12.2005. As set out hereinabove, by the impugned order dated 25.4.2006, the 2nd respondent has refused to grant such approval as was sought for, only on the ground that there still exists a -: 4 :- backlog in respect of posts earmarked for reserved categories of employees and that the petitioner does not belong to any of these reserved categories (the petitioner belongs to open category). 5. Mr.Bandiwadekar, the learned counsel appearing on behalf of the petitioner, submitted that the 2nd respondent has committed an error in calculating the aforesaid backlog inasmuch as the extent of reservation in issue that is required to be fulfilled has been calculated by the 2nd respondent on the basis of 52% whereas in terms of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the "said Rules" for the sake of brevity), the same ought to have been calculated on the basis of only 34%. It was further submitted on behalf of the petitioner that if reservations in issue at the 4th respondent institution is calculated on the basis of 34%, then no backlog will be there. Under the circumstances, it is the submission made on behalf of the petitioner that the basic foundation of the impugned order i.e. calculation of percentage of reservation as 52% instead of 34% is incorrect and, therefore, the impugned order is unsustainable. 6. An affidavit-in-reply has been filed on behalf of the -: 5 :- 3rd respondent institution and the 4th respondent College jointly on 10.8.2007. This affidavit filed by the President of the 3rd respondent institution supports the case of the petitioner inasmuch as it demonstrates as to how the 3rd respondent institution has appointed enough number of Shikshan Sevaks/teachers to fulfil 34% requirement of reservation in terms of the said Rules. The learned counsel appearing on behalf of the respondents joined the petitioner in his submission by contending that there is no backlog of reservation as observed and held by the impugned order of the 2nd respondent. He further submits that, in fact, the appointment of Shikshan Sevaks/teachers at the 4th respondent College of S.C. and O.B.C. candidates is in excess of the requirement, if 34% is considered as the basis of calculating reservation, as required by the said Rules. Both the learned counsel, accordingly, relied on the judgement delivered by this Court on 25.2.2005 in Writ Petition no.3680 of 2004 (Nishad Sadashiv Pawar & Ors. v. Dnyanasadhana College & Ors.), a copy of which is annexed at exh.‘H’ to the present petition. 7. The learned Asstt. Govt. Pleader tried to support the impugned order. 8. As we have observed at the threshold of this order, -: 6 :- the question as to whether the 3rd respondent institution should observe 34% reservation or 52% reservation is no longer res integra inasmuch as the same is conclusively decided by this Court by the aforesaid judgement and order dated 25.2.2005 delivered in Writ Petition no.3680 of 2004. The same view has been reiterated by this Court in a number of other orders delivered by various Benches, including the order dated 25.2.2005 passed in Writ Petition no.3571 of 2004 by the same Bench. All these judgements/orders hold that such reservation is required to be maintained at 34% and not 52%. 9. In view of these and such other orders, it is clear that the 2nd respondent ought to have calculated the availability of vacancies in issue for reserved categories at the 3rd respondent institution on the basis of 34%, by applying the provisions of rule 9(7) of the said Rules. The calculation of such vacancies and/or fulfilment of reservations made on the basis of 52% is wholly unsustainable. Consequently, the order dated 25.4.2006 passed by the 2nd respondent, which is impugned by the present Writ Petition, is liable to be quashed and set aside. 10. Though it is the contention of the petitioner, supported by the 3rd and 4th respondent institution, that -: 7 :- reservation of 34% as contemplated by rule 9(7) of the said Rules is complied with by the institution, we are afraid that it would not be possible for us to record any finding one way or the other in this regard in the present proceedings, for non-availability of all the relevant documents, other material and requisite information on record. Under such circumstances, we think it appropriate to direct the 2nd respondent to examine within the time prescribed hereunder the entire record of the 3rd and 4th respondent institutions and determine the question as to whether 34% reservation in issue which is also the requirement of rule 9(7) of the said Rules has been complied with or not by the 3rd and 4th respondents. In case at the end of such exercise, it is found by the 2nd respondent that the 3rd and 4th respondents have, in fact, appointed Shikshan Sevaks/teachers enough to comply with the requirements of rule 9(7) of the said Rules i.e. 34% reservation, the 2nd respondent shall proceed to grant approval to the appointment of the petitioner, if otherwise the same is found to be in accordance with law. 11. In view of the aforesaid facts and circumstances of the case, the present Writ Petition is partly allowed as under:- -: 8 :- (i) The order dated 25.4.2006 passed by the 2nd respondent, Deputy Director of Education, Mumbai Region, Mumbai (exh.‘F’ to the present Petition) bearing OW No.Dy.ED/2005-06/664 is hereby quashed and set aside. (ii) The 2nd respondent, Deputy Director of Education, Mumbai Region, Mumbai, is hereby directed to examine the entire record of the 3rd and 4th respondent institutions to find out as to whether they have complied with the requirement of 34% reservation as contemplated by rule 9(7) of the said Rules. This exercise should be completed within a period of four weeks from today, after giving a reasonable opportunity of being heard to the 3rd & 4th respondents. (iii) At the end of the aforesaid exercise, if it is found that the 3rd and 4th respondent institutions have complied with 34% reservation as contemplated by rule 9(7) of the said Rules and that the appointment of the petitioner is otherwise in accordance with law, the 2nd respondent, Deputy Director of Education, Mumbai Region, Mumbai, shall grant approval to the appointment of the petitioner as a Shikshan Sevak with effect from 1.12.2005 or -: 9 :- with such effect as he thinks appropriate, depending upon the time of fulfilment of the aforesaid requirements by the 3rd and 4th respondents. The 2nd respondent shall, accordingly, pass a reasoned order within two weeks, after the completion of the aforesaid exercise. 12. Accordingly, the rule is partly made absolute in the aforesaid terms. No order as to costs. (A.A. KUMBHAKONI, J.) (S.B. MHASE, J.)