-: 1 :- wp-3846/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3846 OF 2010 Kinjawade Panchakroshi Shikshan Prasarak Mandal & Ors. ..Petitioners. Versus The State of Mahrashtra & Others. ..Respondents. Mr. N. V. Bandiwadekar for the petitioners. Mr. S. D. Rayrikar, AGP for respondent nos. 1 to 3. Coram : R. V. MORE, J. Date : July 20, 2010. P. C. : 1. Heard Mr. Bandiwadekar, learned counsel for the petitioners and Mr. Rayrikar, learned AGP for respondent nos. 1 to 3. 2. By the impugned order respondent no.3 refused to grant approval to the appointment of petitioner no.3 as Shikshan Sevak on the ground that petitioner no.3, who belongs to Open Category, was appointed against the vacancy reserved for Scheduled Tribe (for short “ST”) category. In May 2008, there arose a vacancy in petitioner no.2 school for teacher having qualification of B.Sc.,B.Ed (Group­A). On 14th May 2008 an application was made by the Head­Master of petitioner no.2 school requesting respondent no.3 to grant approval to the proposed advertisement annexed to the application. Accordingly, approval was granted to the said advertisement on 2nd June 2008 and thereafter srp -: 2 :- wp-3846/10 petitioner no.1–Management published advertisement on 5th June 2008 inviting the applications for said one post of B.Sc. B.Ed. (Group­A) reserved category. In spite of requisition to several agencies requesting recommend the name of ST candidate, petitioner no.1 could not get any candidate belonging to ST category. However, 3 candidates from open category, including petitioner no.3, having requisite qualifications applied to petitioner no.1. All the candidates were called for interview, however, only two attended the interview. After the interview, petitioner no.3 was selected. Accordingly, on 27th June 2008. petitioner no.1 passed resolution, appointing petitioner no.3 as Shikshan Sevak. By the letter dated 30th June 2008, appointment order was issued in favour of petitioner no.3 for the period of three years. Accordingly, on 1st July 2008, petitioner no.3 joined the school. 3. It is worth to note that petitioner no.1 management gave undertaking to respondent no.2 to fill up the next vacancy from ST category. Petitioner no.2 thereafter submitted proposal to respondent no. 3 seeking approval to the appointment of petitioner no.3. However, this application was rejected and therefore the petitioners are before this Court. 4. It is not disputed that the unamended Rule 9(7) of the MEPS Rules 1981 provides for maximum of 34% reservation. The petitioner has -: 3 :- wp-3846/10 given chart on page 19 showing that out of 10 teachers working with petitioner no.2 school, 5 teachers are from reserved category. This chart is not disputed by learned AGP. Mr. Bandiwadekar, learned counsel appearing on behalf of the petitioners relied upon old Rule 9(7) of MEPS Rules coupled with the above said chart and submitted that since reservation in petitioner no.2 school is more than 34% of the strength, the approval to the petitioner no.3’s appointment could not have been rejected. He also relied upon order dated 15th September 2005 and subsequent corrected order dated 23rd September 2005, passed by the Division Bench of this Court in Writ Petition 4747 of 2005 and other connected WPs. I have gone through the unamended Rule 9(7) of the Rules. I have also gone through undisputed chart on page no.19. It is clear from the chart that petitioner no.2 school has complied with the reservation as contemplated under old Rule 9(7) of MEPS Rules, 1981. In similar set of facts, the Division Bench has directed the management to submit fresh proposal for approval to the Education Officer and Education Officer was directed to work out the reserved quota of 34%, and if there be vacant posts in open category, to grant approval to the appointment of the petitioners. The facts of the present case and the aforesaid WP disposed of by the Division Bench, are similar and therefore the directions given by the Division -: 4 :- wp-3846/10 Bench can also be given in the present Writ Petition. In the light of that, petition is disposed of by passing following order. ­: O R D E R :­ (1) Petitioner No.1 – Management shall, within the period of three weeks from today, submit to the Education Officer a fresh proposal for approval to the appointment of petitioner no.3. (2) The Education Officer shall decide the proposal submitted by petitioner no.1, within the period of four weeks from the date of receipt of same. (3) The Education Officer shall work out the reserved quota of 34% and accordingly if there be a vacant post in open category will grant approval to the appointment of petitioner no.3. (4) The approval should not be refused on the ground that there is backlog of ST category. (5) Mr. Bandiwadekar, learned counsel for the petitioners, undertakes on behalf of petitioner no.1, that next vacancy will be filled up by the candidate from ST candidate. Undertaking of Petitioner no.1 is accepted. 5. Writ petition is disposed of with aforesaid directions. (R.V. MORE, J.)