Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITON NO.6460 OF 2009 Smt.Kavita Krishna Khopkar ...Petitioner Vs. Khalapur Taluka Shikshan Prasarak Mandal & Ors. ..Respondents Mr. M.S. Karnik, for the Petitioner. CORAM : F.I. REBELLO & K.K.TATED, JJ. DATED : 6TH NOVEMBER, 2009 P.C. The petitioner is aggrieved by the action of Respondent Nos. 1 and 2 in appointing Respondent No.3 to the post of Head Clerk. It is the case of the petitioner that she joined the service on 1st January, 1981 whereas the respondent No. 3 had joined a service on 8th August, 1981. Respondent No.3 belongs to reserved category. Respondent No.3 thereafter was promoted against reserved post on 1st August, 1986 as Senior Clerk whereas the petitioner was promoted as Senior Clerk on 2nd August, 1993 on a vacancy arising in the post of Head Clerk, the Respondent Nos. 1 and 2 have appointed the Respondent No.3 to the post of Head Clerk being the senior most by order of 1st April, 2009. The petitioner is aggrieved by this action. 2. At the hearing of this petition on behalf of the petitioner the learned Counsel submits that the respondent No.3 came to be promoted by way of fortuitous circumstances on a reserved vacancy being available in the post of Senior Clerk. The petitioner submitted that she was senior to the respondent No.3 when she was appointed as Junior Clerk. In these circumstances the learned Counsel for the petitioner submits that considering Rule 12 of the M.E.P.S., Rules she be treated as senior. The learned Counsel also placed reliance on a judgment of a learned Bench of this Court in Writ Petition No.126 of 2001 decided on 15 th September, 2006 in the case of Chalisgaon Education Society & Ors. vs. State of Maharashtra & Ors.,. At the outset we may point out that the learned Division Bench there placed reliance on the judgment of the Supreme Court Ajit Singh and Others (II) vs. State of Punjab and others, (1999) 7 SCC 209. The issue before the Supreme Court in that case was on quota-rota rule between direct recruit and promotees. The issue there was not promotion of a person appointed to a reserved post. In our opinion therefore, that judgment would be of no avail in construing Rule 12 and Schedule F. Rule 12 of the M.E.P.S. Rules enjoins upon the management to prepare the seniority list in accordance with the guidelines laid down in Schedule F. In so far as Schedule F is concerned para.3 fixes the guidelines for fixation of seniority of non-teaching staff. What the guidelines state is that the post of senior most clerk shall be filled in by promotion of senior most junior clerk. In other words by a clerk who was appointed against a substantive post. Similarly, the post of Head Clerk shall be filled in respectively by promotion of the senior most senior clerk. In the instant case admittedly the respondent No.3 having been appointed on 1st August, 1986 is senior to the petitioner who was appointed on 2nd August, 1993 as Senior Clerk. The reliance placed on the judgment in Chalisgaon Education Society (supra) was in respect of teachers and not non-teaching staff. We are considering the non-teaching staff which issue was not considered by the learned Division Bench. Apart from that in our opinion the Rule is clear. The Rule speaks about the senior most clerk. It is not open to this Court to read down that Rule in the absence of any challenge to that Rule. 3. For the aforesaid reasons we find no merit in this petition which is accordingly dismissed. There shall be no order as to costs. (K.K. TATED, J.) (F.I. REBELLO,J.)