-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.6372 OF 2008 Mrs.Chitra Nitin Pendharkar : Petitioner (Orig.Appellant) V/s. The Maharashtra Education Society & Ors. : Respondents ... Mr.N.V.Bandiwadekar for the petitioner. Mrs.A.N.Helekar for respondent nos.1 & 2. Mrs.S.S.Bhende, Asstt. Govt. Pleader for resp. no.3. ... CORAM : S.A. BOBDE, J. DATE : JANUARY 29, 2009. ORAL ORDER: Rule, returnable forthwith. Mrs.Helekar for the respondent nos.1 & 2 and Mrs.Bhende, the learned Asstt. Govt. Pleader for the respondent no.3, waive service. Heard by consent. 2. The petitioner has challenged the order of the School Tribunal dated 17.7.2008 dismissing the petitioner’s appeal. The petitioner’s appointment as a Teacher on open category has been held to be beyond the prescribed percentage for reserved category candidates. -: 2 :- 3. There are three units of deaf and dumb students which are sanctioned in the school. The petitioner was employed in one of the units. Her services were terminated. The petitioner challenged the termination. The School Tribunal held that each of the aforesaid units will have to be taken separately for applying prescribed percentage of reservation. When it is so applied, the petitioner’s appointment cannot be sustained because there are already two open category teachers in the unit and, therefore, the third teacher will have to be a reserved category candidate which the petitioner is not. Taking this view, the School Tribunal has held that the petitioner’s appointment is illegal and non est in the eyes of law. 4. Having heard the parties, it appears that the order of the School Tribunal suffers from an error of law apparent from the face of the record, in that rule 9 has not been correctly applied. Rule 9(7), as it read at the relevant time, is as follows:- "(7) The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non-teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, -: 3 :- Scheduled Tribes, Denotified Tribes, Nomadic Tribes and other Backward Classes as follows, namely: (a) Scheduled Castes and Scheduled Castes converts to Buddhism. 13% (b) Scheduled Tribes including those living outside the specified 7% areas. (c) Denotified Tribes and Nomadic Tribes. 4% (d) Other Backward Classes. 10%" The mandate of the Rule is that 34 per cent of the total number of posts of the teaching as well as non-teaching staff in the school should be reserved for the categories mentioned therein. It does not warrant the breaking up of any category of teachers into specific units and applying the prescribed percentage of reservation to such a unit. The mandate of the Rule is that the prescribed percentage shall be applied to the entire teaching and non-teaching staff in the school. Had this rule been properly applied, it would not have been possible for the -: 4 :- Tribunal to hold that the petitioner’s appointment is in contravention of the prescribed percentage because there are already two teachers belonging to the open category in the unit where the petitioner is working. 5. The learned Asstt. Govt.Pleader, however, argued that the defect arose on account of the practice of the respondent-management in maintaining a separate roster for the three units. The learned counsel for the management submits that this practice is followed because of a direction from the Department of Education. Whatever be the reason, in case the respondent-management is not maintaining a roster, in accordance with law, the Department of Education may call upon it to do so. That is no reason for permitting a breach of rule 9(7), as it stood at the relevant time, under which the total number of teaching and non-teaching staff has to be taken as a whole for calculating the prescribed percentage of reservation. 6. In this view of the matter, the impugned order is set aside, since there is no other justification put forth by the respondents for termination of the petitioner’s service, except that her appointment was not as per the roster and was in violation of the rule of reservation. The respondent no.3 is directed to consider and grant the -: 5 :- petitioner’s approval, in accordance with law. Upon such grant of approval, the petitioner shall be entitled to all benefits therefrom. 7. Rule is made absolute in the above terms. S.A. BOBDE, J.