1 W.P.No.4728/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4728 OF 2011. Hanumant S/o Anant Aarekar, Age 30 years, Occ.Service, R/o Ambi, Taluka Bhoom, Dist.Osmanabad. ... Petitioner. Versus 1. The President, Mahadev Shikshan Prasarak Mandal Ambi, Taluka Bhook, Dist. Osmanabad. 2. The Headmaster, Kalyani Madhyamik Vidyalaya, Kukadgaon, Taluka Paranda, Dist.Osmanabad. 3. The Education Officer (Secondary), Zilla Parishad, Osmanabad. 4. The Secretary, Mahadev Shikshan Prasarak Mandal, Ambi, Taluka Bhoom, Dist.Osmanabad. ... Respondents. ... Mr.S.S.Jadhavar, advocate for the petitioner. Mr.K.B.Choudhari, Addl.Govt.Pleader for the State. Mr.A.S.More, advocate for the Respondent No.2. ... 2 W.P.No.4728/11 CORAM : S.V.GANGAPURWALA,J. Date : 13.12.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The petitioner was appointed as an Assistant Teacher in the Respondent No.2 School on probation for a period of two (2) years on 16.6.2003. It is contended by the petitioner that after the completion of the probation period, he was made permanent. The Respondent No.2 School in the year 2008 forwarded proposals for approval to the appointments of all employees of the Respondent No.2 School. The Respondent No.3 rejected the proposal of approval of the petitioner on the count that there was backlog of reservation category and the appointment of the petitioner was against the reserved post. The management terminated services of the petitioner as the approval was 3 W.P.No.4728/11 rejected. The petitioner filed an appeal U/s 9 of the MEPS Act, bearing Appeal No.60/2009, before the School Tribunal. The Tribunal dismissed the said appeal. Aggrieved thereby, the present petition is filed. 4. Mr.Jadhavar, learned counsel for the petitioner submits that there were four (4) sanctioned posts of Assistant Teachers at the relevant time. The reservation was 34% but the Education Officer and Tribunal on the premise that reservation is 52% has held that two posts were meant for candidates from reserved category and two posts were for candidates from open category. Mr.Shinde, Asstt. Teacher was appointed from the reserved category. In view of the fact that reservation was 34%, the appointment of petitioner can not be said to be as against the reserved category. The learned counsel further contends that non-grant of approval can not be a ground to terminate the services of the petitioner. For the said purpose, the learned counsel relies on the judgment of this Court in a case of "Jagdamba 4 W.P.No.4728/11 Education Society Vs. Rajendra Gholar and others" reported in 2009 BCR 98. The learned counsel contends that the Education Officer has contended that for one post of Assistant Teacher, two teachers were appointed i.e. one Prakash Dnyanoba Phalke and the petitioner. The appeal of said Prakash Phalke was also dismissed by the School Tribunal. Against which he had filed Writ Petition bearing W.P.No.4859/2011, which he has withdrawn unconditionally. In view of that, the said objection also does not remain. 5. Mr.Ghuge, learned counsel for Respondent Nos.1 and 4 supports the case of the petitioner. 6. Mr.Choudhari, learned Addl. Govt. Pleader submits that as at the relevant time two teachers were appointed as against one sanctioned post, the Education Officer refused to grant approval. The reservation was also rightly applied. No fault can be found in the action of the Education Officer. The Management had also not followed the proper procedure as required U/s 5 W.P.No.4728/11 5 of the MEPS Act, while appointing the petitioner. 7. It is not disputed that the petitioner was appointed vide appointment order in the year 2003. It is not the case of management that before appointing the petitioner, no advertisement was issued. The management has nowhere raised the plea that the petitioner was not appointed by following due procedure of law. The ground on which the approval of the petitioner was rejected was that the Management has not followed 52% reservation and the appointment of the petitioner shall be deemed to be against the reserved posts. 8. It is not disputed by any party that at the relevant time in the year 2003, when the petitioner was appointed, the reservation applied was 34%. 52% reservation came to be applied in the year 2008. The reservation as on the date when the petitioner was appointed shall have to be taken into consideration and not the percentage of reservation which is enhanced 6 W.P.No.4728/11 subsequently. It is also not disputed that four posts of Assistant Teachers are sanctioned. One post i.e. of Mr.Shinde, is filled from reserved category. Three posts at the relevant time would be meant for candidates from open category. Mr.Prakash Phalke, has already withdrawn his Writ Petition unconditionally and accepted the order of termination. In view of that, even the objection of the Education Officer would not remain and the petitioner would be deemed to be appointed as against a clear vacant post. 9. In view of the above position, I do not see any impediment to allow the present petition. 10. In light of the above, the Writ Petition is allowed. Rule is accordingly made absolute in terms of prayer clauses (B), (C) and (D). However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp472811 7 W.P.No.4728/11