1 WP311/07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 311 OF 2007 1 Sahayadri Bahujan Vidya Prasarak Samaj, Sangamner,, District Ahmednagar, Through Shri Tanaji Madhavrao Kanwade, Age 56 years, Occupation Trustee. Petitioners 2 Yeshwant Vidyalaya, Nimon, Taluka Sangamner, District Ahmednagar, Through its Headmaster. V E R S U S 1 Ramdas s/o Uttam Naik, Age 33 years, Occupation Service, R/o Nimon, Taluka Sangamner, District Ahmednagar Respondents 2 Chandrakant s/o Lahuji Pawar, Age 49 years, Occupation Service, R/o. C/o Yeshwant Vidyalaya, Nimon, Taluka Sangamner, District Ahmednagar 3 The Education Officer (Secondary), Zilla Parishad, Ahmednagar, District Ahmednagar Mr. R.N. Dhorde, Advocate for the petitioners Mr. S.S. Jadhawar, Advocate for respondent No.1 Mr. N.H. Borade, AGP for respondent No.3 – State Respondent No.2 though served - served CORAM : A.V. NIRGUDE, J. Reserved On : 29th March, 2011 Pronounced On : 6th April, 2011 ORAL JUDGMENT : 1. This writ petition filed under Articles 226 and 227 of the Constitution of India challenges the order dated 6th November, 2006, passed by the learned Presiding Officer, School Tribunal, Solapur, in Appeal No. 02 of 2004. Respondent No. 1 was the appellant before the School Tribunal and his appeal was allowed. 2 WP311/07 The facts leading to this litigation, can be stated, in short, as under : 2. The petitioners are management of the educational society which runs petitioner No. 2 – School at Nimon, Taluka Sangamner, District Ahmednagar. Respondent No. 1 was appointed as Assistant Teacher in D. Ed. pay-scale in petitioner No. 2 – School, on 13th February, 1996. Respondent No. 2 was also similarly appointed, but in B.Ed. pay-scale and earlier to 13th February, 1996, in the same school. 3. Petitioner No. 1 – Education Society run number of schools and has employed number of teachers, headmasters and assistant headmasters in their schools. They prepared a seniority list as contemplated by the Rules made under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. (Henceforth be referred as ‘the Rules’ and ‘the Act’). While preparing the seniority list, the assistant teachers were classified as per the pay-scale in which they were appointed disregarding their educational qualification. Thus, the seniority list of assistant teachers appointed in the aid school was separate from the seniority list prepared for the assistant teachers appointed in B.Ed. Pay-scale. 4. Although petitioner No. 1 - Education Society run twenty schools, the total number of posts of Assistant Headmaster of their school were only three. In 2003, one post of Assistant Headmaster fell vacant. The Management of petitioner No. 1 – Education Society proposed to promote the senior most Assistant Teacher, who did not belong to reserve class for the post of Assistant Headmaster. They sent his name for approval, but the Education Officer did not accord approval to such appointment and insisted that the petitioner No. 1 should fill up the post as per the notification of the Government of Maharashtra dated 18th October, 1997, thereby suggesting 3 WP311/07 that in case the post is reserved for backward class, the same should be filled up with a candidate belonging to such class. 5. The management of petitioner No. 1 – Education Society, as per the Government Resolution dated 18th October, 1997, sought guidance of Assistant Commissioner Backward Class Cell, Nasik Division, as to whether the post which fell vacant should be filled up with a candidate belonging to backward class etc. The Assistant Commissioner then by his direction dated 3rd January, 2003 informed petitioner No. 1 that one of the three posts of Assistant Headmaster is reserved for backward class. 6. The backward class is further sub-divided into scheduled caste, scheduled tribe, denotified tribe, nomadic tribe etc. 7. The Assistant Commissioner however mentioned specifically that the post would be allotted to scheduled castes. However, the Assistant Commissioner also referred to certain Government Letter dated 30th April, 2002, which provided that when only one post is reserved for backward class, the above mentioned categories of the backward classes should be preferred on rotation basis. It is an admitted fact that prior to 2003, in 1997 and in 1991, scheduled caste candidates were promoted as Assistant Headmasters. Despite of this and despite of apparent need to rotate the post amongst the categories within the reserved class, petitioner No. 1 appointed petitioner No. 2 on 20th September, 2003 as the Assistant Headmaster. 8. Respondent No. 2 admittedly is a person belonging to scheduled caste category. Respondent No. 1 is a person belonging to the scheduled tribe category. He challenged the appointment of respondent No. 2 before the School Tribunal. 9. Petitioner No. 1 justified their action on the grounds; one, that, 4 WP311/07 respondent No. 1 is not senior to respondent No. 2 as he belonged to D.Ed. pay-scale, whereas respondent No. 2 is not only his senior by date of his appointment, but also because, he, since beginning, belonged to B.Ed. Pay- scale. 10. The other ground raised by petitioner No. 1 – Education Society was that they followed the direction of the Assistant Commissioner Backward Class Cell and so they had no option but to appoint respondent No. 2 who was seniormost in the scheduled caste category. 11. The learned Presiding Officer rejected all these contentions and set aside the appointment of respondent No. 2 mainly because petitioner No. 1 could not have appointed him as he belonged to scheduled caste category and the post should have been filled up by none else but by a person belonging to scheduled tribe category. On this premise, the learned Presiding Officer directed petitioner No. 1 to promote and appoint respondent No. 1 on the post of Assistant Headmaster with effect from 27th September, 2003 with all consequential benefits etc. 12. Upon hearing the submissions of learned counsel appearing for the parties, first question is : Whether the Society could have had separate seniority list for different pay-scales such as D.Ed. pay-scale and B.Ed. Pay- scale? 13. This question was settled long before in 1989 by the Division Bench of this Court in the case of Saramma Varghese v. Secretary/President, S.I.C.E.S. Society & others (1989 Mh.L.J. 951). The Court having regard to provisions of the Act and Rules, especially Rules 5(5), 12 and Schedule ‘F’ to the Rules held that the seniority of Assistant Teachers is fixed only on the basis of their educational qualification and not as per the pay-scales in which they are appointed. The pay-scale in which they are appointed is not 5 WP311/07 relevant consideration. Schedule ‘F’ of the Rules provide guidelines for fixation of seniority of teachers in schools and colleges. The Schedule provides different categories for fixing the seniority of the teachers. Category ‘C’ is for the teachers who hold graduate/post-graduate degrees in any discipline with graduation or equivalent in education. Category ‘D’ is for teachers who hold graduation in any discipline with diploma or equivalent in education (one year course in education). Note - 4 of Schedule - F provides that the categories mentioned in the schedule represented the ladder of seniority and were mentioned in descending order. Where a Management runs more than one school, there shall be a combined seniority list of all persons in the above mentioned categories. It is thus clear from the Judgment in the case of Saramma Varghese, cited supra, as well as from the statutory provisions that petitioner No. 1 – Education Society could not have maintained different seniority lists on the basis of pay-scales. 14. Respondent Nos. 1 and 2 have similar education qualification, and, in view of their qualification, they belonged to ‘C’ category. So, petitioner No. 1 cannot assert that respondent No. 1 did not belong to ‘C’ category. However, this aspect of the case does not go to the root of the case, because even assuming that respondent Nos. 1 and 2 belonged to ‘C’ category and are placed in one seniority list, as per their dates of appointment, respondent No. 1 is still junior to respondent No.2. So, if the post which fell vacant in 2003, was to be filled in only on the basis of seniority and respondent No. 2 would have better claim on it than respondent No.1. 15. The second question is what is the effect of the resolution of 18th October, 1997 on the post that fell vacant in 2003. This resolution, at that time, was squarely applicable to the post which fell vacant. So, petitioner No. 6 WP311/07 1 – Education Society was under obligation to follow the procedure which was prescribed by Government Resolution dated 18th October, 1997. At that time, the total number of posts of the Assistant Headmaster in all the schools run by petitioner No.1 were three. When one post fell vacant, the other two posts were occupied by two persons, who admittedly did not belong to backward class. So, it was necessary for petitioner No. 1 to get guidance from the Assistant Commissioner Backward Class Cell as to how the post should be filled up. But, it seems that petitioner No. 1 thought it fit to fill up this vacant post by appointing respondent No.2, who belonged to scheduled caste category. As said above, he was appointed on 27th September, 2003. Petitioner No. 1 then informed this fact to the Assistant Commissioner Backward Class Cell and vide his approval dated 3rd November, 2003, he approved the same. The learned Advocate appearing for respondent No. 2 asserted that petitioner No. 1 purposely provided incorrect information to the Assistant Commissioner Backward Class Cell and obtained his approval dated 3rd November, 2003. He also asserted that assuming the information given by respondent No. 1 to the Assistant Commissioner was correct, the approval dated 3rd November, 2003 was obviously incorrect. 16. I think, this submission has to be accepted in the facts and circumstances of the case. In 2003, not only the Government Resolution dated 18th October, 1997 was binding on petitioner No. 1 as well as the Assistant Commissioner, the Assistant Commissioner himself mentioned that as per the Government letter dated 30th April, 2002, such single reserved post should be rotated amongst the sub-categories amongst the backward classes. Admittedly, the scheduled tribe is one of the categories of the backward classes. Since the petitioner No. 1 – Education Society had filled up such reserved post earlier in time by appointing a person belonging to 7 WP311/07 scheduled caste category, they were under obligation to appoint a person belonging to the scheduled tribe category when the post fell vacant in 2003. In view of this, the appointment of respondent No. 2 as the Assistant Headmaster on this reserved post was illegal. 17. The learned Advocate appearing for the petitioners however placed reliance on the Judgment of full Bench of this Court in the case of New English High School Association & anr. v. Baldev Fakira Ade & anr. (2007 (1) Bombay Cases Reporter 6). In this Judgment, the full Bench referred to decide point, “Whether Rule of 50 point roster will apply to cases where total number of posts in cadre are three or less and total reservation is 24% and what should be minimum strength of cadre for applicability of 50 point roster.” The full Bench held that “applicability of reservation policy would depend upon number of posts in cadre and percentage of reservation. 50 point roaster can be made applicable only when applicability thereof would not result in implementation of reservation policy in excess of percentage statutorily prescribed for reserved category candidates”. The learned Advocate appearing for the petitioners tried to take advantage of this Judgment, which was pronounced in 2007. He submitted that in view of the ratio of this Judgment, the post which fell vacant in the cadre of Assistant Headmaster could not have been reserved at all. The total number of posts in the cadre were three and if the management was under obligation to reserve 24% of the total number of the posts in the cadre even one post would exceed the prescribed percentage, and so, respondent No. 1 cannot claim the promotion to the post in question as of right. 18. This submission is devoid of merit. The petitioners cannot advance this argument at all, because it is not available to them. It is their case that they all along assumed and believed that the post was reserve one for 8 WP311/07 backward class and they filled it up with a person who belonged to a scheduled caste. This argument is available only to a person who does not belong to reserved class. He alone would be able to assert that the appointment either of respondent No. 1 or 2 would be illegal in view of the ratio of the above mentioned Judgment. None of the parties in this petition is able to advance this argument, and so, this submission is rejected. In view of this, the petition should fail. The Writ Petition stands dismissed. Rule is discharged. ( A.V. NIRGUDE, J. ) SRM/wp/311/07/6/4/11ok