1 W.P.No.3482/10 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3482 OF 2010. 1. Lokmanya Tilak Shikshan Sanstha Vasmat Sanchalit Shri Swami Vivekanand Mandhyamik Vidyalaya, Palasgaon, Taluka Vasmat, Dist.Hingoli, through its President. 2. The Secretary, Lokmanya Tilak Shikshan Sanstha Vasmat Sanchalit Shri Swami Vivekanand Madhyamik Vidyalaya, Palasgaon, Taluka Vasmat, Dist.Hingoli. 3. The Head Master, Shri Swami Vivekanand Madhyamik Vidyalaya, Palasgaon, Taluka Vasmat, Dist.Hingoli. 4. Shri N.M.Waghmare, Age 31 years, Occ.Assistant Teacher, Shri Swami Vivekanand Madhyamik Vidyalaya, Parasgaon, Taluka Vasmat, Dist.Hingoli. ... Petitioners. Versus 1. Ganpat S/o Bapurao Narwade, Age 29 years, Occ.Service, R/o Gunj (Asegaon), Taluka 2 W.P.No.3482/10 Basmat, Dist.Hingoli. 2. Education Officer, (Secondary), Zilla Parishad, Hingoli. ... Respondents. ... Mr.R.J.Godbole, advocate for the petitioners. Mr.S.S.Jadhavar, advocate for petitioner No.4. Mr.D.Y.Nandedkar, advocate for Respondent No.1 Mrs.R.K.Ladda, Asstt.Govt. Pleader for the State. ... CORAM : S.V.GANGAPURWALA,J. Date : 13.12.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. Being aggrieved by the order of termination dated 4.9.2008, issued by the management, the Respondent No.1 preferred an appeal. The same came to be allowed. Aggrieved thereby, the present petition is filed by the 3 W.P.No.3482/10 management and the original Respondent No.5. 4. Mr.Godbole, learned counsel for the petitioner submitted that the appointment of the Respondent No.1 was improper and was not as against the sanctioned posts. The learned counsel submits that the Respondent NO.1 could not have been accommodated in service under any circumstances for the reason that there were four sanctioned posts of Assistant Teachers. One post out of the said four posts, is a reserved post. The petitioner No.4 is a candidate from a reserved category and he was already appointed on 21.7.2005. He was also holding the B.PEd. degree. The present Respondent No.1 also holds B.PEd. degree. As only one candidate would have been accommodated and the petitioner No.4 is appointed earlier in point of time and also belongs to reserved category, his appointment will have to be held legal and the appointment of Respondent No.1 can not be said to be legal and valid. According to the learned counsel, the School Tribunal has not considered this aspect. 4 W.P.No.3482/10 5. Mr.Jadhavar, learned counsel for petitioner No.4 adopts the arguments of Mr.Godbole, learned counsel for the Management. 6. Mr.Nandedkar, learned counsel for the Respondent No.1 submits that the appointment of Respondent No.1 was legal and valid. It was against the sanctioned post. Even the advertisement was issued for two posts, the Respondent No.1 was legally and validly appointed. All these aspects have been taken into consideration by the School Tribunal. No error can be found in the judgment of the School Tribunal. Detail reasoning has been given by the School Tribunal in this regard. The Tribunal has come to the conclusion that the management has manipulated the record. 7. With the assistance of the learned counsel, I have gone through the judgment and various affidavits and documents filed on record. 8. It transpires from the judgment that the petitioner No.4 and Respondent were appointed 5 W.P.No.3482/10 on the same day. There are rival contentions in this regard. However, even if the said finding of the Tribunal is accepted, still, as there are four sanctioned posts, one post will have to be reserved in view of 34% reservation as was applicable at the relevant time. The petitioner No.4 being a candidate of a reserved category, his appointment will have to be protected as the other three Assistant Teachers are from open category. The Tribunal has come to the conclusion that even the appointment of Respondent No.1 was not illegal. The Respondent No.1 also would be required to be protected in view of the finding of the Tribunal. The Education Officer has filed affidavit and has submitted that out of these two, one can be accommodated i.e. out of petitioner No.4 and Respondent No.1. As the petitioner No.4 belongs to reserved category and he is the only candidate from the reserved category, the said appointment can not be disturbed. In view of all these facts, the only option open would be to declare the Respondent NO.1 as surplus candidate. 6 W.P.No.3482/10 9. In the result, the impugned order is quashed and set aside. It is observed and held that the Respondent NO.1 shall be declared as surplus as per Section 26 of the MEPS Act. Respondent No.1 shall be placed in the list of surplus candidates and shall be absorbed in aided Schools as per inter se seniority of the surplus candidates. 10. Rule accordingly made absolute in above terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp348210 7 W.P.No.3482/10