1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4635 OF 2009 The President, Sudhagad Education Society, Dist.Raigad & Ors. ...Petitioners vs. The Dy.Director of Education & Anr. ...Respondents with WRIT PETITION NO. 4637 OF 2009 The President, Sudhagad Education Society, Dist.Raigad & Ors. ...Petitioners vs. The Dy.Director of Education & Anr. ...Respondents Appearance in above matters :- Mr.N.V. Bandiwadekar i/b. Mr.Mandar Limaye for the Petitioners. Mr.A.P. Vanarase, AGP for Respondent Nos.1 and 2. CORAM : V.M. KANADE, J. DATED : JULY 16, 2009 P.C. :- 1 Heard learned Counsel for the petitioners 2 and learned AGP for the State. 2 Rule. Rule is made returnable forthwith. By consent of parties, petition is taken up for final hearing. 3 The petitioners in both these petitions are challenging the order passed by the Deputy Director of Education, Mumbai, dated 9.4.2009. By the said order, the Deputy Director of Education was pleased to refused to grant approval to the petitioners appointment as Shikshan Sevak/Assistant Teacher in the school run by the management. Since the order passed in both these petitions is common and the issue raised also is common, both the petitions are being disposed of by a common judgment. 4 The short question which falls for consideration before this Court is whether the Deputy Director of Education had erred in refusing to grant approval to teachers who are appointed from 3 the open category merely on the ground that the backlog of reserved category candidates has not been filled in by the management. Brief facts are as under :- 5 The petitioner no.1 is President of Sudhagad Education Society which is a trust registered under the Bombay Public Trusts Act and under the Societies Registration Act, 1860. The petitioners no.2 to 8 in Writ Petition No.4635 are employees in the school managed and run by the petitioner no.1 Institution. Similarly, in Writ Petition No.4637/2009, petitioner no.1 is the same management and petitioners no.2 to 4 are the teachers/employees of the school managed by the petitioner no.1. It is common ground that out of these 10 teachers/Shikshan Sevek, two teachers viz. Petitioner no.4 Devidas Raghunath Ubale, petitioner no.7 Mrs.Veenita Vilas Palvankar belonged to the Other Backward Category (OBC). 4 6 The respondent no.1 is a Deputy Director of Education, Mumbai Division, Mumbai, who has passed the impugned order. All these teachers have been appointed by the petitioner management from 1996 onwards and later on, they were appointed as Shikshan Sevak in the year 2000 and thereafter, they have completed two years as Shikshan Sevak and became eligible to be appointed as Assistant Teachers. The Deputy Director Education initially had granted approval, however, the said approval was unilaterally cancelled without giving any notice or hearing to the said teachers and/or to the management. 7 A writ petition was filed by the said teachers challenging the said order in this Court and this Court was pleased to allow the writ petition and impugned order cancelling the approval was set aside and the Deputy Director was directed to give hearing to the teachers/Shikshan Sevak and 5 thereafter, passed a reasoned order. Consequently, thereafter, hearing was given to the teachers/Shikshan Sevak and the Deputy Director was pleased to pass order dated 9.4.2009 rejecting the approval to the teachers on the ground that the backlog of reserved category candidates has not been filled in. Another fact which needs to be stated here that in view of Rule 9 of the MEPS Rules, the total posts which would be reserved by the management in respect of OBC, SC, ST was 34%. Thereafter, the Government increased the said percentage from 34% to 52%. Various petitions were filed and it was pointed out that in view of Rule 16 of the MEPS Rules, unless Rule 9 was amended, the Government should not rely on government decisions which were taken under Article 162 of the Constitution of India. Consequently, the Government Resolutions were set aside and thereafter, the Government amended the existing rule and the percentage of the reservation was thereafter changed from 34% to 52% with effect from 8.7.2008. It is a 6 matter of record that even otherwise there is no other rule, regulation, provision or even the Government Notification which states that appointments which are made against open category posts should not be approved if there is a backlog in respect of reserved category candidates. 8 In the present case, the petitioners have annexed the chart which has not been disputed by the respondents in which it is mentioned that the total number of posts of Shikshan Sevak in the category of SC which were available was 72 out of 46 posts where filled up and the backlog was of 26 candidates. In respect of ST, 39 posts were available out of which 2 were filled up and the backlog was 37. In respect of VCNT, the number of posts which were reserved was 22 and the 42 posts were filled up and therefore, there was excess of 20 posts in the said category, in respect of OBC, 56 posts were reserved and 233 posts were filled up, so there was excess of 177 posts and in respect of open category candidates, 7 368 posts were available out of which 234 posts were filled up and the balance posts which were available was 134. 9 The learned Counsel for the petitioners submitted that even if reservation at the rate of 52% was calculated, even then the open category post was still available in view of the backlog in respect of said open category post. 10 This Court in number of cases had directed the Deputy Director of Education not to refuse to grant approval only on the ground that the backlog of reserved category candidates was not filled in. This Court in the following cases gave the said direction :- Writ Petitions No.4747/2005 with 4752/2005 with 4755/2005 (orders dated 15.9.2005 and 23.9.2005). Similarly, in Writ Petitions No.9289/2004, 7244/2005, 2991/2004, 5687/2005, 5679/2005 (order 8 dated 15.9.2005 and 23.9.2005), 7454/2005, 2948/2009 alongwith other writ petitions has consistently taken the same view. 11 The learned AGP for the State invited my attention to the affidavit-in-reply filed by the Assistant Director of Education. In the said affidavit-in-reply, no reference has been made to any provision, rule, regulation or Government Notification justifying the stand taken by the Deputy Director Education in respect of the various directions given by this Court in various petitions from time to time. The learned AGP invited my attention to one Resolution dated 22.1.2004 wherein it has been stated that in the event of their being a backlog in respect of reserved category candidates of the posts which are earmarked according to roster framed for the said category, persons from the open category candidate should not be appointed. In the said affidavit in reply, though the percentage has been given of the posts which are to be filled in 9 from the reserved category candidates, the actual position in respect of open category candidate is not given. In my view, therefore, there was no justification for the Deputy Director of Education to refuse to grant approval to the teachers/Shikshan Sevak. It is an admitted position that all these posts which were filled in by the said teachers belonged to the open category. The Deputy Director of Education, therefore, was duty bound to follow the ratio of the judgments referred to hereinabove. These judgments were specifically cited before him by the said teachers which is evident from the impugned order itself which refers to the said judgments passed by this Court. However, though the law laid down by this Court was brought to his notice, he has not given any reasons why the said decision is not followed by him. 12 In my view, there is no justification for the Deputy Director of Education to refuse to grant approval to the said teacher. It is an admitted 10 position that so far as, two teachers who belonged to the OBC category are concerned, since they have applied and are permitted to apply as open category candidate, there was no justification for the Deputy Director to refuse to grant approval even these two OBC candidates who had applied to the open category posts. Taking into consideration, therefore, the view taken by the Division Bench of this Court and the learned Single Judge of this Court in the abovestated cases, the question will have to be answered in the affirmative. 13 The petitions are allowed. The Deputy Director of Education is directed to grant approval to the petitioners who are appointed as Shikshan Sevak/Assistant Teachers and to release their salary within four weeks from today. 14 The writ petitions are disposed of. (V.M. KANADE, J.) 11