1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3234 OF 2002 Shri Nitin Bhosale ..... Petitioner. V/s State of Maharashtra and others. ..... Respondents. ----- Mr. Prathamesh Bhargude i/b Mr. A.R. Anturkar for the Petitioner. Ms. S.S. Bhende, AGP for Respondent Nos. 1 and 2. Ms. S. Shah with Ms. Swati Deshpande i/b Mr. G. Kulkarni for Respondent No.3. ----- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 29th January, 2008. P.C.: 1. The Petitioner, in this Petition, who belongs to Scheduled Caste is in the service of the respondent No. 3 - University and he is working under respondent No.4. The Petitioner was occupying the post of a junior clerk. According to the Petitioner, there are posts of five senior clerks which are to be filled-in by promotion from the post of junior clerk. According to the Petitioner, as there are only five posts, as per the Government Resolution dated 18th October, 1997 only two of the five posts can be reserved for the persons belonging to the backward class. Accordingly, two out of the five posts were reserved and they were filled-in by promotion of the candidates belonging to Scheduled Caste and Scheduled Tribe. He submitted that when the post, which 2 was occupied by the candidate belonging to Scheduled Caste became vacant, the Petitioner was eligible for being considered for promotion to that post in terms of the Government Resolution dated 18th October, 1997. However, because the Government issued letter dated 4th May, 2002, the Petitioner was not considered and that post was filled-in by promotion of the person belonging neither to Scheduled Caste nor to Scheduled Tribe. According to the Petitioner, the letter dated 4th May, 2002 is contrary to the Government Resolution dated 18th October, 1997. The Petitioner has subsequently been promoted to the post of senior clerk in the year 2005. The case of the Petitioner, however, is that if the letter dated 4th May, 2002 is ignored and promotion is to be made in accordance with the Government Resolution dated 18th October, 1997, he is entitled to be considered for promotion against the reserved post of senior clerk in the year 2002. Two affidavits have been filed on behalf of the Government. The Government does not dispute that the Government Resolution dated 18th October, 1997 is applicable. It, however, submits that in order to give opportunity of getting promotion against reserved posts to the other categories of backward class, it is necessary to fill in the vacancy by promoting the persons who belonged to other backward classes such as Nomadic Tribe, De-notified Tribe etc. 2. We have heard the learned Counsel on both sides. Perusal of the Government Resolution dated 18th October, 1997 shows that it has been issued by the State Government after the decision of the Constitutional Bench of the Supreme Court in the case of R.K. Sabharwal V/s. State of Punjab reported in AIR 1995 SC 1371. 3 Perusal of the Government Resolution shows that, according to the scheme of that Government Resolution, number of posts to be reserved are to be decided on the basis of total complement of the post and not on the basis of existing vacancies. It further lays down that the roster is being applied till the required percentage is achieved or reserved posts are filled-in and, thereafter, the roster should not be operated. It further recites that, thereafter, when the post, which was occupied by the candidate belonging to a particular backward class, becomes vacant then the post should be filled-in by promoting a person belonging to that category of backward class. The letter of the Government dated 4th May, 2002 about which the Petitioner has a grievance, however, departs from the Government Resolution and states that when the post which has been filled-in by promotion of a candidate belonging to either Scheduled Caste or Scheduled Tribe becomes vacant, that post should be filled-in by rotation from the candidates belonging to backward class such as Nomadic Tribe, De-notified Tribe etc. We find that the letter dated 4th May, 2002 is a clear departure from the rule which is laid down by the Government Resolution dated 18th October, 1997. The Resolution dated 18th October, 1997 clearly states that after the required percentage is achieved, the roster is not to be operated and, thereafter, vacancy is to be filled-in by appointing the candidate belonging to the category to which the candidate who held the post belonged. It means that when there are small number of posts reserved, candidates from the Scheduled Caste and Scheduled Tribe for whom 13% and 7% of the posts are to be reserved would only get reservation. As we find that the letter dated 4th May 2002 is clearly 4 contrary to the Resolution dated 18th October, 1997, that will have to be set aside. 3. In the result, therefore, Petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). The respondent No. 3 - University is directed to consider the case of the Petitioner for promotion to the post of Senior Clerk, ignoring the letter dated 4th May, 2002 and grant to the Petitioner all consequential benefits. Rule is made absolute accordingly. No order as to costs. (D.K. DESHMUKH, J.) (V.M. KANADE, J.) 5