(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 732 OF 2010 Bhaskar s/o. Vishram Surange, Age : 38 years, Occupation : Service, presently working as Peon, Shakuntala Jeevram Mahajan Madhyamik Vidyalaya, Faizpur, Taluka : Yawal, District : Jalgaon. .. Petitioner. versus 1. The State of Maharashtra, through its Secretary, School Education Department, Mantralaya, Mumbai. 2. The Education Officer (Secondary), Zilla Parishad, Jalgaon. 3. Shakuntala Jeevram Mahajan Madhyamik Vidyalaya, Faizpur, Taluka : Yawal, Dist. Jalgaon, through its Head Master. 4. Gurumai Shikshan Prasarak Mandal, Yawal, through its President. .. Respondents. ....................... (2) Mr. S.R. Barlinge, Advocate, for the petitioner. Mr. S.K. Tambe, Assistant Government Pleader, for respondent nos.1 and 2. ........................ CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 16TH NOVEMBER 2010 ORAL JUDGMENT (Per R.M. Borde, J.) : 1. Heard respective Counsel appearing for the parties. 2. Rule. With the consent of parties, petition taken up for final disposal at admission stage. 3. Since no order adverse to the interest of respondent nos.3 and 4 is being passed, service of notice, upon rule, on the said respondents, is waived. 4. The petitioner takes an exception to the order passed by the Education Officer (Secondary), Zilla Parishad, Jalgaon, dated 4th February 2007, thereby refusing to accord approval to the appointment of the petitioner, as a Peon, made by the (3) respondent no.4 / Institution. 5. The petitioner was appointed as a Peon after following due procedure prescribed under the rules, on 11th February 2002. The petitioner, in furtherance of the issuance of order of appointment, resumed duties with effect from 11th February 2002. It is stated by the petitioner, that the institution submitted a proposal seeking approval to the appointment of the petitioner, to the respondent no.2 / Education Officer (Secondary). However, the Education Officer did not act. As such, the petitioner was constrained to approach this Court by presenting Writ Petition bearing No. 7378/2006. This Court, vide order dated 7th December 2008, disposed of the Writ Petition with a direction to the respondent no.2, to take a decision on the proposal tendered by the institution, seeking approval to the appointment of the petitioner. The respodent no. 2 / Education Officer (Secondary) thereupon took up the matter for consideration. However, vide order dated 4th February 2007, the Education Officer rejected the proposal tendered by the institution, seeking approval to the appointment of the petitioner. 6. There are three reasons stated in the order refusing approval to the appointment of the petitioner. It is observed in the order by the Education Officer, that there is a backlog in respect of appointment of Scheduled Caste and Scheduled Tribe (4) category candidates. The second reason quoted is in respect of non-observance of the procedure while making appointment of the petitioner, and the third reason quoted in the order, is that the order has been issued appointing the petitioner during the period when there was a ban imposed in respect of recruitment of employees in the institution. 7. The learned Counsel appearing for the petitioner contends that the procedure prescribed for appointment of an employee has been strictly followed and there is no material to demonstrate that there is any deviation to the prescribed procedure or that the appointment can be said to be illegally made. It has also been contended that there was no such ban, as noted in the order, at the time when the appointment of the petitioner was made. The appointment of the petitioner has been made in observance of the prescribed procedure and during the relevant period, there was no ban in respect of making appointment of candidates in the institution. There is no material placed on record by the respondent to controvert the contentions raised by the petitioner in that behalf. It has been contended by the learned Counsel appearing for respondent no.2, that there was a backlog in respect of appointment of reserved category candidates and without clearing the backlog, appointment of a candidate belonging to open category ought not have been made. The reason recorded in the order, in that behalf, also does not (5) appear to be good. It is pointed out that during the relevant period, the prescribed percentage for appointment of the candidates belonging to reserved category was 34 % and the institution has already fulfilled the required quota in respect of appointment of candidates belonging to reserved category, to the extent specified in Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (For short, "the MEPS Rules"). 8. The policy prescribed by the Government, in respect of raising percentage of reservation and prescribing 52 % seats for the candidates belonging to reserved category, pertains to the subsequent period and is operative from 8th July 2008. It was not open for the Education Officer to turn down the proposal tendered by the institution seeking approval to the appointment of the petitioner which was made in the year 2002, on the ground that the requirement of providing reservation prescribed under Rule 9 of the MEPS Rules has not been observed. Reliance is placed on a judgment of Full Bench in the matter of New English High School Association, Nagpur and another Vs. Baldev s/o. Fakira Ade and another (2006(6) Mh.L.J. 882). While answering the issue referred to the Full Bench, it has been observed in paragraph 27 of the judgment, thus : (6) " 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 policy should not lead to absurd result. The application of servation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point 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. " 9. A similar issue had fallen for consideration of Division Bench of this Court, in the matter of Ashish s/o. Chandrakantrao Bhandari & others Vs. The State of Maharashtra & others, in Writ Petition No. 6762 of 2008. Referring to the decision rendered by the Full Bench, the Division Bench has observed that the Government cannot insist upon reservation which exceeds the statutory limit. In the instant matter also, the statutory limit prescribing percentage of reservation, at the relevant time, was 34 % and it was improper on the part of the Education Officer to insist upon filling up the vacancies from amongst reserved categories to the extent of 52 %. The policy prescribing 52 % of reservation is adopted in (7) view of amendment made to Rule 9 of the MEPS Rules, at a later date. 10. In this view of the matter, the order passed by the Education Officer, refusing to accord approval to the appointment of the petitioner, as a Peon, is unsustainable and is, therefore, liable to be quashed and set aside. 11. In the result, the petition is allowed. (i) Rule is made absolute in terms of prayer clauses "B" and "C". (ii) The respondents / authorities shall take appropriate steps and pass necessary orders within a period of three months from today. 12. In the circumstances of the case, there shall be no order as to costs. ( R.M. BORDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp732