1 wp5118.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5118 OF 2009 Shri Sharda Bhavan Education Society duly registered society and public trust, having its office at ITM Building, VIP road, Nanded, through its Secretary Shri Dattatraya Pandurang Sawant, age 45 years, occupation : business, r/of Shivaji Nagar, Nanded. Petitioner versus 1. The State of Maharashtra, through the Secretary, Higher Education, Mantralaya, Mumbai - 400 032. 2. Swami Ramanand Teerth, Marathwada University, Nanded, through the Registrar. Respondents ---- Shri R.R. Mantri, Advocate, for the petitioner. Shri S.V. Kurundkar, Addl.G.P. for Resp no. 1. Shri R.V. Ghuge, Advocate, for Resp no. 2. ----- Coram: Smt. Nishita Mhatre and M.T. Joshi, JJ. Judgment reserved on : 14.7.2011 Judgment pronounced on : 27.7.2011 Judgment (Per : Smt. Mhatre, J.) 01. Rule. Rule made returnable forthwith, with the consent of parties. 2. This petition has been filed against the communication dated 19.4.2009 from Swami Ramanand Teerth Marathwada University, Nanded 2 wp5118.09 (Respondent No.2), directing the petitioner to advertise the vacancy of the post of Principal as a reserved vacancy. 3. The petitioner is an educational institution registered under the Public Trusts Act. Its aim and object is to impart education through several colleges and schools run by it. In June 2001, the petitioner started a new college in District Nanded, namely, the Rajiv Gandhi Mahavidyalaya, Mudkhed. The college was duly approved and is affiliated to Respondent No.2-University. It receives 100 per cent grant- in-aid from the State. The petitioner desired to appoint a regular permanent Principal for its college. Accordingly, the draft of the advertisement to be published for filling up the post of Principal, was submitted to the Respondent-University for its approval. The University informed the petitioner that the post of Principal be filled in from the category reserved for the backward classes. Accordingly, the petitioner issued two advertisements for filling up the posts from the reserved category. Since no suitable candidate was available, the petitioner moved the University again to approve its proposed advertisement to fill in the post of the Principal from the open category. The petitioner had drawn the attention of the University to the judgement of this Court in the case of Vidya Prasarak Mandal vs. University of Mumbai, reported in 2008 (5) Mh.L.J. 47, in support of its contention that since the post of Principal was an isolated post, it need not be reserved. However, the Respondent-University refused to approve the draft of the advertisement. The request was repeated on 12.5.2009 by the petitioner. As the University has paid no heed to the petitioner's request, 3 wp5118.09 it has preferred the present petition, seeking an order to quash the condition imposed by the University, for issuing an advertisement for the post of Principal for the backward classes only. 4. An affidavit has been filed by the in-charge Administrative Officer working in the office of the Joint Director, Higher Education, Nanded, in reply to the petition. He has averred that the reservation policy is not applicable to an isolated post i.e. where an institution has only one college. However, where the institution runs more than one college for the same stream of subjects, the post of Principal cannot be treated as an isolated post. Such a post would have to be filled in, considering the roster point and the reservation available. According to the deponent, the petitioner is running more than one college for the same Faculty and hence, the need to reserve the post of Principal for the backward classes. 5. There is no dispute that the petitioner-institution is running several colleges in Nanded. It is running four colleges for Arts, Commerce and Science, including the Rajiv Gandhi Mahavidyalaya, Mudkhed, in which the post of Principal is vacant. Besides this, the petitioner is also running a law college, a college of pharmacy, a college for B.Ed. and also an institute for management studies in the District of Nanded. 6. The question, therefore, is whether merely because an institution runs several colleges of the same Faculty, is it obligatory for 4 wp5118.09 each such college to fill in the post of Principal by taking into account the reservation policy of the State. It would be necessary, therefore, to consider whether all such colleges of the institution have to be clubbed together while filling in the vacancy for the post of principal or would they have to treated as individual colleges having an isolated post for the principal. 7. Admittedly, the 2nd Respondent-University is governed by the Maharashtra Universities Act,1994. No statutes have been framed under this Act, as yet. The Act itself does not specify any reservation for the post of Principal. In these circumstances, would a college be obliged to reserve the post of Principal for the backward classes? 8. In the case of Vidya Prasarak Mandal (supra) the Division Bench of this Court at its Principal Seat at Bombay has considered this issue. Two independent colleges were being run by an Institution and were affiliated to the University of Mumbai. The petitioner-institution in that case contended that all five colleges, which it was running, were managed independently both, administratively and financially. They were considered separate and distinct entities. Indisputably, the two colleges were teaching science. The University informed the institution that the post of Principal for the Arts and Commerce College had been identified as a post reserved for the backward classes and, accordingly, an appointment should be made from the reserved category. It was contended on behalf of the University that if an institution runs more than one college, where common subjects are 5 wp5118.09 taught, then the post for such subjects should be filled in, according to the consolidated reservation policy. It was further contended that, the post has to be clubbed, for the purposes of implementing the reservation policy, with the post of Principal of other colleges; the post of Principal of such a college is not to be treated as an isolated post. After considering the statute framed under the Bombay University Act, 1974, and the provisions of the Maharashtra Universities Act, 1994, the Court observed that so far as the post of Principal of an affiliated college was concerned, a provision for reservation for that post could have been made by the University by framing a statute under the scheme of the Maharashtra Universities Act. Such a statute was not framed, and instead, what was provided was that the appointments to the posts should be made purely on merit and not on any caste considerations. The court, therefore, set aside the circular dated 15.3.1999 requiring the post of Principal to be reserved by clubbing together, all the colleges run by the institution. The Court observed that the circular had been issued without any authority of law. The Court then considered the observations of the Supreme Court in the case of Indra Sawhney vs. Union of India, AIR 1993 SC 477. On the basis of the observations made therein, this Court held that the post of the Principal, which is the highest post in a college, cannot be reserved and in these circumstances, the colleges could not have been clubbed together to implement the reservation policy. 9. Though the issue as to whether the posts of Principal of several colleges run by the same institution can be clubbed together, is 6 wp5118.09 no longer res-integra, the State and the University have refused to follow the judgement in the case of Vidya Prasarak Mandal. An intimation has been sent to the Vice Chancellor of the Bombay University on 11.4.2006 by the State, indicating that when there are two or more colleges run by the same institution, each college would be treated as a separate entity and the Principal's post would be treated as an isolated post, provided the colleges taught disparate subjects. However, when the colleges offer the same subjects to the students, they were to be clubbed together and the Principal's post would not be treated as an isolated post, and the reservation policy would have to be implemented in such cases. 10. The learned Counsel appearing for Respondent No.2- University, has drawn our attention to the judgement of the Constitution Bench of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and others, AIR 1998 SC 1767 (1). He submitted that there are some observations in this judgement which could lead to the inference that when there is a plurality of posts in a cadre, reservations are necessary. He drew our attention to the following observations of the Supreme Court. "35. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward 7 wp5118.09 classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent. 36. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of a single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. " 11. In our opinion, there can be no doubt that when there is plurality of posts in a cadre, the reservation policy of the State must be implemented. But, in our opinion, it is difficult to accept that the single 8 wp5118.09 post cadre of Principal of a college should be clubbed together with the cadre of Principal in another college, merely because it is being run by the same institution. The petitioner-institution is running three colleges in the same Faculty, affiliated to the same University. However, no statutes have been framed under the Maharashtra Universities Act, requiring such reservation for the post of Principal of the college. Each college must be treated as a separate entity and it cannot be clubbed with another college for the purposes of administration. Otherwise, not only the post of Principal, but also the posts of teaching and non teaching staff would have to be clubbed while considering the reservation. Apart from this, there is no provision in the Maharashtra Universities Act for clubbing such posts, as provided under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, (in short the MEPS Act) for clubbing of total number of posts in a cadre, including the cadre of Head Master and implementing the reservation policy. The Rules framed under the latter Act stipulate that reservation must be to the extent of 24 per cent. 12. In the case of New English High School Association, Nagpur vs. Baldev s/o Fakira Ade, 2006 (6) Mh.L.J.882, the Full Bench of this Court at Nagpur, has held that the applicability of reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The reservation cannot be allowed to exceed the percentage prescribed in the Rules framed under the MEPS Act, as it would result into injustice to the candidates falling outside the reserved category. 9 wp5118.09 13. As we have noted earlier, the Maharashtra Universities Act does not have a similar provision as is available under the M.E.P.S. Act. Therefore, in our opinion, the contention of the Respondents, is unacceptable. Circulars and government resolutions cannot supersede the provisions of a statute. The post of Principal of a college must be treated as an isolated post and cannot be clubbed together with the post of Principal in another college, merely because the colleges are run by the same trust or society. The argument advanced on behalf of the State is fallacious. If an institution runs several colleges affiliated to several universities, can it be said that the colleges should be clubbed together for the purposes of appointing a Principal? Furthermore, an institution may run a College for Arts, Science and Commerce, as well as three separate colleges for Arts and Science, would it mean, therefore, that all such colleges would have to be clubbed together for implementing the reservation policy? In our opinion, the answer is emphatically in the negative. 14. The Supreme Court in the case of Indra Sawhney (supra) has opined that the rule of reservation may not be advisable in a situation where merit must prevail over caste considerations. Such posts are, technical posts in research and development organisations, or institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and the posts of Professors and above, pilots etc. 10 wp5118.09 15. In our opinion, therefore, the reservation policy cannot be implemented in the present case. There is no plurality of posts in the cadre as the cadre in one college will have to be reckoned. 16. In these circumstances, the petition is allowed in terms of prayer (B). Rule made absolute, accordingly. No orders as to costs. (M. T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp5118.09