1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.3853 OF 2009 1. Tekchand Sudam Gaure, Head Master, Arvind Vidyalaya, Bagheda, Tah. Tumsar, Dist. Bhandara. .. PETITIONER. // VERSUS // 1. Shri Ramdas Ambarsao bhorgade, R/o. C/o. Arvind Vidyalaya, Bagheda, Tah. Tumsar, Distt. Bhandara. 2. Arvind Memorial Education Society, Tumsar, District : Bhandara, through its Secretary, Shri K.S. Borkar. 3. The Education Officer (Sec.), Zilla Parishad, Bhandara. .... RESPONDENTS. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri A.Z.Jibhkate, Advocate for Petitioner. CORAM : R.C.CHAVAN, J. DATED : SEPTEMBER 29, 2009. 1. This petition by Headmaster is directed against order passed by School Tribunal allowing appeal of respondent No.1 and setting aside order of promotion of petitioner as Headmaster directing the management to appoint respondent No.1 as Headmaster of the school concerned. 2 2. Respondent No.2 management runs two schools. It cannot be disputed that in one of the schools post of Headmaster is occupied by a person belonging to general category. The petitioner belongs to Scheduled Caste category. The management, therefore, appointed the petitioner as Headmaster. Respondent No.1 challenged the said order by preferring an appeal before the School Tribunal. The School Tribunal held that such reservation could not be done and the petitioner was not entitled to be promoted by- passing the claim of respondent No.1. Respondent No. 1 Bhorgade is at Sr.No.3 in the seniority list having been appointed in the year 1978, whereas petitioner is at Sr.No.12 in the seniority list having been appointed in 1979. Relying on full bench judgment of this Court in N.E.H.S. Association Vs. Baldev, reported at 2006(6) Mh.L.J. 882 the School Tribunal allowed the appeal. 3. The learned counsel for the petitioner submits that after the Full Bench judgment came Rule 9 and 10 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules came to be amended, and in place of 24 % reservation now 33% of posts are reserved. He submitted that the Full 3 Bench had not taken into consideration the effect of fraction exceeding 50% and therefore, the judgment would not be applicable, as rendered sub-silentio. He relied on a judgment of Full Bench in Ashok vs. Collector, Amravati, reported at 1988 Mh.L.J. 378 under the Maharashtra Municipalities Act, which was not on the question of reservation, where the effect of fraction was considered in light of certain sections in the Maharashtra Municipalities Act. Though ordinarily if a fraction is more than 50% it is rounded up to the next integere, it is not an inexplicable rule and therefore, would not automatically apply. Further it cannot be said that the Full Bench was oblivious to the effect of fraction in excess of 0.50. The observations of the Full Bench in New English High School’s case in paragraphs 26 and 27 of the judgment may be usefully reproduced as under : “26.If out of two posts, one post is reserved by applying the roster, it would obviously exceed 24%. Besides, the reservation is not 24% in favour of any one particular category. The maximum reservation is in favour of the Scheduled Castes which is to the extent of 13%, whereas the minimum is 4% in case of the Denotified and the Nomadic Tribes. As rightly submitted by the learned Advocate Shri A.D. Mohgaonkar, if the reservation in the categories of Denotified and Nomadic Tribes is considered as one unit, it would consist of 4% i.e. 8 out of 100. If there are only two posts, and one of them is specified for reservation in favour of the Denotified Tribes or the Nomadic Tribes, who 4 are entitled for reservation to the extent of only 8 out of 100, it would virtually amount to granting reservation by 42% in excess of the statutory entitlement in favour of the said category, which is not permissible and it would be in excess of the reservation under the statutory provision. Similar is the case in relation to the Scheduled Castes which is entitled for 13% reservation. In other words, 26 out of 100 and even reservation of one post would be in excess of total reservation of 24%. 27. Undoubtedly, the Constitution mandates implementation of reservation policy. However, at the same time, it assures opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed while implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S.C., 7% for the S.T. And 4% for the D.T./ N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, we are in respectful agreement with the view expressed by the 5 Division Bench in Somsingh’s case that 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise.” 4. It may be seen that even with 24% reservation, while holding that if the posts are three or less reservation would not apply, the Court cannot held to be oblivious to the fact that with three posts, applying 24% reservation, the fraction would come to 72% and thus, the Court could have held that one post could have held to be reserved. But it has not done so. Therefore, in face of this judgment, it would be impermissible to conclude that with increased reservation of 33%, out of two posts one can be reserved and could have gone to the petitioner. 5. The learned counsel for the petitioner next submitted that 50 points roster would require that the first post would go to Scheduled Caste and second to Open Category etc. Now, this question of roster has also been considered by the Full Bench and it has observed that this reservation percentage is to be applied and 50 points roster is to be followed taking into consideration the total number of posts in the cadre. 6 6. Having categorically held that 50 points roster can be made applicable only when applicability thereof would not result in implementation of reservation policy in excess of percentage statutorily prescribed for the reserved category, it is not open to support the petitioner’s claim on the basis of such roster. 7. In view of this, the petition is dismissed. JUDGE RR.