Wp 9211.2010 1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9211/2010 Rajendra B.Babar Petitioner Vs. The State of Maharashtra &Ors. Respondents Mr.N.V.Bandiwadekar for petitioner Mr.Ajit Kenjale for Res.3,4,5 Mr.A.B.Vagyani,AGP for Res.1 & 2 CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE - 30th MARCH,2011 P.C. . Heard counsel for the parties. Rule. Rule made returnable forthwith by consent . Mr. Kenjale waives service for respondent nos. 3,4 and 5. Mr.Vagyani waives service for respondent nos.1 and 2. As short question is involved,the petition is taken up for final disposal by consent . 2 This petition takes exception to the decision of the Dy. Director of Education dated 12/11/2010 ,Exh.K which in Wp 9211.2010 2 turn concludes that the petitioner is a surplus employee and for which reason directs transfer of the petitioner to some other neighbourhood school. The said authority examined the matter in the light of the decision of this Court dated 13/4/2009 in W.P.no.4219/2008 which was filed by the petitioner. By the said petition the petitioner had challenged the decision of the authority refusing to grant approval to the appointment of the petitioner for the post of Assistant Teacher,Biology. The petitioner was appointed in the said post on 29/12/2006. By the said decision dated 13/4/2009, this Court declared that the petitioner would be entitled for approval but issued further direction to the said authority to consider whether the petitioner and respondent no.5 both or either of them have been rendered surplus and if so to transfer them to the neighbourhood school. 3 The grievance of the petitioner in the said petition was that the reservation provided in the extract of roster prepared by the management indicates that reservation was up to 52%,whereas at the relevant point of time when the petitioner was appointed on 29/12/2006,as per the prevailing Wp 9211.2010 3 regulations, the reservation was only up to 34% . If these contentions of the petitioner were to be accepted, the position stated in the extract of roster prepared by the school will have to be ignored and directions to prepare fresh roster on the basis of provisions applicable at the relevant time providing for reservation only up to 34% would become inevitable. From the impugned decision of the Dy.Director of Education, Kolhapur Division it appears that this aspect of the matter has not been considered at all. Whereas, he proceeded to examine the question regarding surplus or otherwise on the basis of the roster prepared by the school ,Exh.H ,at page 35. Learned AGP invited our attention to the fact that government resolution has been issued on 8/7/2008 and the relevant rule came to be amended which provides for reservation up to 52% . However,in our opinion, the said amendment will have no application to the case in hand as the petitioner has been appointed on 29/12/2006 as also respondent no.5 has been appointed on 16/6/2008. In other words, the matter will have to be considered on the basis of the provisions and regulations as were applicable at the relevant time in particular in December,2006 when the petitioner came to be Wp 9211.2010 4 appointed. If the appointment of the petitioner was against reserved post as per the computation to be done as per prevailing regulations applicable during December,2006, in that case, it will be open to the Dy.Director of Education to transfer the petitioner to the neighbouhood school as the appointment of the petitioner would be surplus. These are matters to be enquired into which was the purport of the decision dated 13/4/2009. 4 Accordingly, the impugned decision is set aside and the parties are once again relegated before the Dy.Director of Education for reconsideration of the issue ‘ whether the appointment of the petitioner on 29/12/2006 was against open post or reserved post’ by redrawing the roster on the basis of provisions applicable in December,2006 . Depending on the opinion with regard to the said issue, appropriate consequential orders will have to be passed by the said authority. 5 Needless to observe that the Dy. Director of Education shall afford opportunity to the petitioner, Wp 9211.2010 5 respondent no.5 as well as respondent school before taking final decision in the matter. However, the final decision on relevant aspect be taken by the Dy.Director of Education as expeditiously as possible and not later than 31/5/2011 . The petitioner, respondent no.5 and respondent school shall appear before the Dy.Director of Education on 11/4/2011 at 11 a.m.. The parties through their counsel waive notice for the said date of hearing before the Dy.Director of Education and also assures to extend full co-operation to the said authority for early disposal of the remanded matter. 6 Respondent no.3 shall submit the redrawn roster on the basis of provisions applicable in December, 2006 by the Dy.Director of Education on or before 11/4/2011 . The petition is disposed of on above terms. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR ,J.)