W.P.No.3953 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3953 OF 2010 1. Jaihind Educational Trust, Dhule, Through its Chairman, Arun s/o Zulalrao Salunke, Age 60 years, Occu.Business, R/o Plot No.46, “Sita-Sadan”, Jai Hind Colony, Devpur, District Dhule 2. Dilip Madhavrao Sonawane, Age 55 years, Occu.Service, R/o Plot No.34, Satyam Colony, Pramod Nagar, Devpur, District Dhule .. PETITIONERS VERSUS 1. The State of Maharashtra Through its Secretary, Education Department, Mantralaya, Mumbai 2. Dy.Director of Education, Nasik Division, Nasik 3. The Assistant Commissioner (Revenue Department), Backward Class Branch, Nasik Division, Nasik 4. The Education Officer (Secondary), Zillha Parishad, Dhule Taluka and District Dhule .. RESPONDENTS Mr A.S.Sawant, Advocate for petitioners Mr P.P.More, Assistant Public Prosecutor for respondents 1 to 4 W.P.No.3953 of 2010 2 CORAM : SMT.NISHITA MHATRE & S.S. SHINDE, JJ DATE : 18th April 2011 ORAL JUDGMENT (PER SMT. NISHITA MHATRE, J.) 1. Rule. Rule returnable forthwith, by consent. 2. The petitioners have filed the present petition against the communication dated 6th April 2010 received from the Education Officer, i.e. Respondent No.4, rejecting the proposal submitted for the appointment of petitioner No.2 to the post of Head Master of a school run by the petitioner No.1 – Trust. 3. Petitioner No.1, which is a registered trust runs two schools, both of which receive aid from the Government. The post of Head Master is sanctioned for each of the schools. These posts are to be filled in according to the common seniority list maintained in respect of both the schools, in consonance with the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and the Rules framed thereunder (hereinafter referred to as “the M.E.P.S. Act”). Petitioner No.2 is at Serial No.2 in the seniority list. On 30.11.2009 the post of Head Master of Jaihind High School and Junior College run by the petitioner No.1 fell vacant because of the retirement of the earlier Head Master. A W.P.No.3953 of 2010 3 resolution was passed on 4th December 2009 by the petitioner No. 1 – Trust to appoint petitioner No.2 to the post of Head Master as he possessed the requisite qualification for the post. Accordingly, the petitioner No.2 was promoted to the post of Head Master with effect from 1st December 2009. A proposal was sent to the Education Officer for the approval of the appointment of petitioner No.2 as the Head Master of the aforesaid school. On 9th December 2009, the Education Officer granted the approval 4. On 15th December 2009, a communication was issued by the respondent No.4, cancelling the approval granted to the appointment of petitioner No.2. However, petitioner No.2 was authorised to sign the necessary documents in respect of financial and administrative transactions in respect of the school for the period between 1st December 2009 and February 2010. 5. The Education Officer, i.e. respondent No.4 then issued a communication to the petitioner No.1 directing that the post of Head Master should be filled in by promotion bearing in mind the roster and the reservation policy of the Government. This communication was issued on 5th January 2010. The petitioner No.1 – Trust informed the respondent No.4 that since it runs two schools and there were only two posts of Head Master available, it was not possible to reserve 33% of the posts for persons from the W.P.No.3953 of 2010 4 backward classes. Consequently on 6th April 2010 the respondent No.4 informed the petitioners that it was not possible to grant approval to the appointment of petitioner No.2 to the post of Head Master. 6. On 24th February 2010 it appears that the Assistant Director (Backward Class Branch) verified the roster and found that out of the two posts of Head Masters available with the Trust, one should be reserved for a Scheduled Caste candidate. Furthermore, the Assistant Director observed that the vacant post of the Head Master should be filled in from a person belonging to the Scheduled Caste category. 7. The issue, which arises in the present petition is, therefore, whether the reservation policy of the Government by which the percentage of reservation for the post of Head Master has been increased up to 33% is workable in case of a management, which runs two schools. 8. Rule 9, Sub rule (10) of the M.E.P.S. Rules provided that the management must reserve 24% of the total number of posts of Head Master for backward classes. A resolution was passed by the Government on 23rd October 2007 clarifying that if the educational institution was running schools, where there were W.P.No.3953 of 2010 5 less than four posts of Head Masters sanctioned, then the posts were not subjected to reservation. It was further clarified that in case there were four posts of Head Masters available with the management, then one out of these four posts must be reserved for a person from the backward classes. This percentage of 24% has been increased to 33% on 5th May 2009. Rule 9 sub rule (10) has been amended and reads thus : “ The management shall reserve 33 per cent of the total number of posts (or vacancies) of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and Special Backward Category as follows, namely :- (i) Scheduled Castes and Scheduled 13 per cent Castes Converts to Buddhism (ii) Scheduled Tribes including those 07 per cent living outside the specified areas (iii) Denotified Tribes (A) 03 per cent (iv) Nomadic Tribes (B) 2.5 per cent W.P.No.3953 of 2010 6 (v) Nomadic Tribes (C) 3.5 per cent (vi) Nomadic Tribes (D) 02 per cent (vii) Special Backward Categories 02 per cent _______________ 33 per cent _______________ Thus, If there are two schools and two posts of Head Masters, the reservation of 33% cannot be implemented. If as directed by the respondents, the petitioner No.1 is to appoint one person from the backward classes, the reservation would be much higher than 33. In fact, it would be 50%, which is not envisaged under the M.E.P.S. Act and the rules framed thereunder. It is now well-settled that the posts, which are reserved for the backward classes must be filled in by persons belonging to those classes. However, when an enactment, which governs the service conditions of such employees limits the number of posts available to the backward classes, the reservation cannot exceed this figure. 9. Rule 9 sub rule (10), as it read before the amendment of 2009, was considered by the Full Bench of this Court at Nagpur in the case of New English High School Association & anr. Versus Baldev Fakira Ade & Anr., reported in 2007 (1) Bom.C.R. 6. The Full Bench has observed thus : W.P.No.3953 of 2010 7 “26. If out of two posts, one post is reserved by applying the roster, it would obviously exceed 24%. Besides, the reservation is not 24% in favour of any one particular category. The maximum reservation is in favour of the Scheduled Caste which is to the extent of 13%, whereas the minimum is 4% in case of the Denotified and the Nomadic Tribes. As rightly submitted by the learned Advocate Shri A. D. Mohgaonkar, if the reservation in the categories of Denotified and Nomadic Tribes is considered as one unit, it would consist of 4% i.e. 8 out of 100. If there are only two posts, and one of them is specified for reservation in favour of the Denotified Tribes or the Nomadic Tribes, who are entitled for reservation to the extent of only 8 out of 100, it would virtually amount to granting reservation by 42% in excess of the statutory entitlement in favour of the said category, which is not permissible and it would be in excess of the reservation under the statutory provision. Similar is the case in relation to the Scheduled Castes which is entitled for 13% reservation. In the other words, 26 out of 100 and even reservation of one post would be in excess of total reservation of 24%. 27. Undoubtedly, the Constitution mandates implementation of reservation policy. However, at the same time, it assures opportunities to all the open class category candidates. The implementation of the reservation of policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to W.P.No.3953 of 2010 8 be remembered that the reservation percentage is to be applied and the 50 points roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed while implementing the reservation policy. Indisputably, the relevant rule requires 24% of reservation out of which 13% for the S.C., 7% for the S.T. and 4% for the D.T./N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutory specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, we are in respectful agreement with the view expressed by the Division Bench in Somsingh’s case that 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise. 28. The fall out of the above discussion is that in case the cadre consists of three or less number of posts and the total percentage of reservation is 24%, there cannot be any reservation in such a case and it W.P.No.3953 of 2010 9 would be only in case of four posts that one of those will have to be filled in by the reserved category candidate. The applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The 50 point roster can be made applicable only when the applicability thereof would not result in implementation of reservation policy in excess of the percentage statutorily prescribed for the reserved category candidates. The reference and the points formulated above are answered accordingly. The matters now are required to be placed before the regular Bench dealing with the similar matters.” As observed by the Full Bench, the implementation of the reservation policy should not lead to absurd results. In the present case if the policy is to be implemented, it would indeed lead to an odd result. The reservation would be in excess of 33%, the total reservation permissible under the M.E.P.S. Rules 10. In the case of Somsingh Chandrasingh Thakur vs. Head Master, Captain R.M. Oak School, Kalyan (W), District Thane and others, reported in 2005(4) Mh.L.J.946, the Division Bench of this Court considered the applicablity of the provisions of Rule 9 Sub rule (10) as it then stood vis a vis the management, which was running two schools, each having a post of Head Master. The Division Bench in no uncertain terms W.P.No.3953 of 2010 10 has held that one out of four posts of headmaster was to be reserved for a person from the backward classes as the reservation was to the extent of 24%. In case of an institution running two schools, it was not permissible to appoint one person from the backward classes to one of the posts of Head Master as the permissible reservation was only to the extent of 24%. 11. In our opinion the same analogy would apply in the present case. It is only when three schools are run by the same institution, that one post of Head Master, out of the three available, could be reserved for the backward classes. 12. An affidavit has been filed by the Education Officer (Secondary), Zilla Parishad, Dhule in which he has attempted to justify the direction to fill in the vacant post of Head Master with a person from the Scheduled Caste category. There is no dispute in the present case that petitioner No.2 is the senior-most person in the common seniority list. The Education Officer, by a convoluted process of reasoning, maintains that the post available must be filled in by a person from the Scheduled Caste category. In paragraph 6 of the affidavit the deponent has stated thus : “6. The deponent say and submit that, as per Rule, the 33% reservation for the post of Headmaster, W.P.No.3953 of 2010 11 therefore, two posts are available in the institution. 33% comes to 0.66, therefore, as it is more than 60% therefore, it comes to one post reserved. The deponent say and submit that the G.R. dated 5.11.2009 from the General Administration Department specifically stated that, out of two sanctioned posts for promotion, one post is reserved for S.C.Category. We are unable to appreciate the submission made on behalf of the Education Officer. There can be no doubt that the Government has a right to direct educational institutions such as the petitioner No.1 to fill in the posts of Head Masters in accordance with the reservation policy of the Government. However, that policy must be workable and should not lead to strange results. As mentioned earlier, if the directions of the Education Officer are to be implemented, the reservation would exceed 50%. This is not the quota envisaged under the M.E.P.S. Rules. 13. Accordingly, the petition is allowed in terms of prayer (A) and (B). The Education Officer is directed to reconsider the proposal for approval of the appointment of petitioner No.2 to the post of Head Master in the light of the observations herein above. The Education Officer shall decide the issue within eight weeks W.P.No.3953 of 2010 12 from today and shall communicate his decision to the petitioners immediately thereafter. Rule made absolute accordingly. No order as to costs. ( S.S. SHINDE, J.) ( SMT. NISHITA MHATRE, J.) (vvr/3953.10wp)