: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.8643 OF 2005 WRIT PETITION NO.8643 OF 2005 WRIT PETITION NO.8643 OF 2005 Shekhar Kheru Sonawane ...Petitioner. Shekhar Kheru Sonawane ...Petitioner. Shekhar Kheru Sonawane ...Petitioner. V/s. V/s. V/s. The State of Maharashtra & Ors. ...Respondents. The State of Maharashtra & Ors. ...Respondents. The State of Maharashtra & Ors. ...Respondents. Shri N.V.Bandiwadekar for the Petitioner. Shri N.V.Bandiwadekar for the Petitioner. Shri N.V.Bandiwadekar for the Petitioner. Shri P.P.Kakade, A.G.P. for the Respondent Nos.1 and 2. Shri P.P.Kakade, A.G.P. for the Respondent Nos.1 and 2. Shri P.P.Kakade, A.G.P. for the Respondent Nos.1 and 2. Shri U.B.Nighot for the Respondent Nos.3 and 4. Shri U.B.Nighot for the Respondent Nos.3 and 4. Shri U.B.Nighot for the Respondent Nos.3 and 4. Shri Niranjan Shimpi for the Respondent Nos.3 and 4. Shri Niranjan Shimpi for the Respondent Nos.3 and 4. Shri Niranjan Shimpi for the Respondent Nos.3 and 4. CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & J.H.BHATIA, JJ. J.H.BHATIA, JJ. J.H.BHATIA, JJ. DATE : 20th November, 2006. DATE : 20th November, 2006. DATE : 20th November, 2006. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the respective 1. Heard the learned counsel for the respective 1. Heard the learned counsel for the respective parties. parties. parties. 2. The petitioner is seeking a writ of mandamus 2. The petitioner is seeking a writ of mandamus 2. The petitioner is seeking a writ of mandamus against the Respondent Nos.2 to 4 to allow him to join against the Respondent Nos.2 to 4 to allow him to join against the Respondent Nos.2 to 4 to allow him to join in the post of clerk on the basis of the purported in the post of clerk on the basis of the purported in the post of clerk on the basis of the purported appointment of 5-7-2005 issued by the Respondent No.3. appointment of 5-7-2005 issued by the Respondent No.3. appointment of 5-7-2005 issued by the Respondent No.3. 3. The Management has filed affidavit-in-reply and 3. The Management has filed affidavit-in-reply and 3. The Management has filed affidavit-in-reply and has pointed out that the appointment of the petitioner has pointed out that the appointment of the petitioner has pointed out that the appointment of the petitioner was not as per the rules or the selection procedure was not as per the rules or the selection procedure was not as per the rules or the selection procedure undertaken and the chairman in his personal capacity had undertaken and the chairman in his personal capacity had undertaken and the chairman in his personal capacity had issued the said appointment order. We, therefore, issued the said appointment order. We, therefore, issued the said appointment order. We, therefore, called upon the Education Officer (Secondary) , Zilla called upon the Education Officer (Secondary) , Zilla called upon the Education Officer (Secondary) , Zilla Parishad, Thane who is impleaded as the Respondent No.2 Parishad, Thane who is impleaded as the Respondent No.2 Parishad, Thane who is impleaded as the Respondent No.2 : 2 : to file his reply and in his affidavit, he has pointed to file his reply and in his affidavit, he has pointed to file his reply and in his affidavit, he has pointed out that the appointment of the petitioner is illegal. out that the appointment of the petitioner is illegal. out that the appointment of the petitioner is illegal. One Shri Deepak Sadashiv Landge was employed as a junior One Shri Deepak Sadashiv Landge was employed as a junior One Shri Deepak Sadashiv Landge was employed as a junior clerk under the Respondent No.4-School up to 15-2-2000 clerk under the Respondent No.4-School up to 15-2-2000 clerk under the Respondent No.4-School up to 15-2-2000 and subsequently, he remained absent. As a result, his and subsequently, he remained absent. As a result, his and subsequently, he remained absent. As a result, his services were dispensed with and one Smt. Chhaya Namdeo services were dispensed with and one Smt. Chhaya Namdeo services were dispensed with and one Smt. Chhaya Namdeo Gangurde came to be appointed in the same post with Gangurde came to be appointed in the same post with Gangurde came to be appointed in the same post with effect from 1/10/2005. Record further shows that the effect from 1/10/2005. Record further shows that the effect from 1/10/2005. Record further shows that the appointment of Smt. Chhaya N. Gangurde has been appointment of Smt. Chhaya N. Gangurde has been appointment of Smt. Chhaya N. Gangurde has been approved on temporary basis. approved on temporary basis. approved on temporary basis. 4. Mr.Bandiwadekar, the learned counsel for the 4. Mr.Bandiwadekar, the learned counsel for the 4. Mr.Bandiwadekar, the learned counsel for the petitioner has invited our attention to the petitioner has invited our attention to the petitioner has invited our attention to the advertisement on 24.5.2004 and also the notice of the advertisement on 24.5.2004 and also the notice of the advertisement on 24.5.2004 and also the notice of the same date dispensing with the service of Shri Landge. same date dispensing with the service of Shri Landge. same date dispensing with the service of Shri Landge. He claims that the applications were invited and the He claims that the applications were invited and the He claims that the applications were invited and the selection process was undertaken. But the fact remains selection process was undertaken. But the fact remains selection process was undertaken. But the fact remains that the procedure as contemplated under the MEPS Act, that the procedure as contemplated under the MEPS Act, that the procedure as contemplated under the MEPS Act, 1977 and the Rules framed thereunder were not followed 1977 and the Rules framed thereunder were not followed 1977 and the Rules framed thereunder were not followed and admittedly, the post is reserved for the candidate and admittedly, the post is reserved for the candidate and admittedly, the post is reserved for the candidate belonging to the scheduled tribe. Both the petitioner belonging to the scheduled tribe. Both the petitioner belonging to the scheduled tribe. Both the petitioner as well as Smt. Chhaya N. Gangurde belong to the as well as Smt. Chhaya N. Gangurde belong to the as well as Smt. Chhaya N. Gangurde belong to the scheduled caste and both are under graduates. scheduled caste and both are under graduates. scheduled caste and both are under graduates. 5. Having considered the rival submissions 5. Having considered the rival submissions 5. Having considered the rival submissions addressed before us of the respective parties, we are of addressed before us of the respective parties, we are of addressed before us of the respective parties, we are of : 3 : the view that the post of junior clerk under the the view that the post of junior clerk under the the view that the post of junior clerk under the respondent no.4 should be advertised afresh clearly respondent no.4 should be advertised afresh clearly respondent no.4 should be advertised afresh clearly pointing out that it is reserved for the candidate pointing out that it is reserved for the candidate pointing out that it is reserved for the candidate belonging to scheduled tribe and the petitioner as well belonging to scheduled tribe and the petitioner as well belonging to scheduled tribe and the petitioner as well as Smt.Chhaya N. Gangurde may apply so as to stand for as Smt.Chhaya N. Gangurde may apply so as to stand for as Smt.Chhaya N. Gangurde may apply so as to stand for considerations in case, the scheduled tribe candidate is considerations in case, the scheduled tribe candidate is considerations in case, the scheduled tribe candidate is not available. not available. not available. 6. Hence, we dispose off the petition by directing 6. Hence, we dispose off the petition by directing 6. Hence, we dispose off the petition by directing the management to release an advertisement for the post the management to release an advertisement for the post the management to release an advertisement for the post of junior clerk in the local Marathi newspaper to fill of junior clerk in the local Marathi newspaper to fill of junior clerk in the local Marathi newspaper to fill in the post of junior clerk and pointing out that the in the post of junior clerk and pointing out that the in the post of junior clerk and pointing out that the post is reserved for scheduled tribe. On receipt of the post is reserved for scheduled tribe. On receipt of the post is reserved for scheduled tribe. On receipt of the applications, the procedure as required under the advice applications, the procedure as required under the advice applications, the procedure as required under the advice of the respondent no.2 shall be complied with and the of the respondent no.2 shall be complied with and the of the respondent no.2 shall be complied with and the post shall be filled in as expeditiously as possible but post shall be filled in as expeditiously as possible but post shall be filled in as expeditiously as possible but in any case, before 31st January, 2007. in any case, before 31st January, 2007. in any case, before 31st January, 2007. (J.H.BHATIA,J.) (B.H.MARLAPALLE,J.) (J.H.BHATIA,J.) (B.H.MARLAPALLE,J.) (J.H.BHATIA,J.) (B.H.MARLAPALLE,J.) : 4 :