CHAUGONDA YESHAVANTA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners are members of teaching staff in a school known as Secondary School at Bhilawadi, Taluka Tasgaon, District - Sangli and is being run and administered by Bhilavadi Shikshan Sanstha, a society registered under the Societies Registration Act, 1861 and under the Bombay Public Trust Act, 1950 - the Respondent No.4. THE petitioners instituted the present petition challenging the appointment of Respondent No.3 on the promotional post of Head Master with effect from 5th May 1987. According to the petitioners, a large number of teachers in seniority were brushed aside while appointing Respondent No.3, on the basis that the said post ought to be filled in from teacher belonging to reserved category. He was appointed as Head Master of the School and that too at the behest of the Education Officer and the State of Maharashtra-Respondents Nos. 2 and 1 respectively, despite opposition from Respondent No.4. THE petitioners, therefore, in the present petition pray for a declaration that the rule of reservation in favour of Nomadic Tribe or Scheduled Caste and Scheduled Tribe and other de-notified categories is not applicable to an isolated post of Head Master of that school, and at the same time seek a further direction that Respondent No.4 - Sanstha be directed to promote and appoint a teacher belonging to open category in accordance with the Rules in the field and further require Respondents Nos. 1 and 2 to grant approval for such promotion with retrospective effect with all the monetary and other benefits of the said post.

(2.) TO understand the gamut of controversy in the present petition, a brief reference to facts which are not in dispute be made. It is the claim of the petitioners that as Assistant Teachers in the said school they are all senior to Respondent No.3. For that matter, Seniority List (Ex. B. page 36 of the Paper Book) has been placed on record which suggests that Respondent No.3 is at serial No.12 of the seniority list. In the year 1986, Shri. N.H. Mainkar was the Head Master of the school and he was due for retirement on 30th April 1986 on reaching superannuation. It appears that on 18th April 1986, large number of teachers made representation to the 4th Respondent - Sanstha that resultant vacancy to be caused on retirement of Shri. Mainkar be filled in accordance with the Rules in the field viz. seniority-cum-merit from amongst the Assistant Teachers. It appears that for a long time, the post fallen vacant had not been filled in and by communication dated 17th March 1987, the 2nd Respondent directed the 4th Respondent-Sanstha to appoint the 3rd Respondent as Head Master on the ground that the post of Head Master was to be filled in by reserved category. It is otherwise common ground that there is no member of Scheduled Caste and Scheduled Tribe available and Respondent No.3 being a member of Nomadic Tribe was the only person from the reserved category came to be appointed to that post and it is common ground that the 4th Respondent-Sanstha has required of them by 2nd Respondent made appointment of the 3rd Respondent on 28th April 1987 appointing the 3rd Respondent with effect from 5th May 1987 and that too on probation for a period of 2 years. It is equally common ground that in compliance with the order dated 28th April 1987 the 3rd Respondent took charge as Head Master of the school.

(3.) RESPONDENT No.3 has filed affidavit opposing petition and on behalf of RESPONDENTs Nos.1 and 2 Shri. Jayvant Dnyanu Salunkhe, Deputy Education Officer, Sangli Zilla Parishad, Sangli has filed affidavit. Shri. Lad, learned Counsel for RESPONDENT No.3 submitted that ratio in Dr. Chakradhar Paswan's case cannot be made available to the case of the petitioner on the ground that promotion of RESPONDENT No.3 was made earlier in point of time. According to the learned Counsel, there cannot be any retrospective operation given to a judgment delivered by the Supreme Court and, therefore, he contended that despite the fact that the Supreme Court held that reservation policy does not apply to an isolated post, it makes no difference in so far as promotion to 3rd RESPONDENT is concerned as promotion was effected on 5th May 1987. Mr. Lad then contended in any event, statutory provisions in the Act made by the State Government is attracted proportion being 24% for reservation and in that he relied upon Rule 9(10)(a) of the M.E.P.S. Rules, 1981. Mr. Lad now contended that inasmuch as there is statutory recognition to reservation of 24% and when no candidate either from Scheduled caste or Scheduled Tribe was available, in the fitness of thing inasmuch as Nomadic Tribe is also included in the statutory provisions, promotion of RESPONDENT No.3 cannot be faulted with. According to him, even though the post of Head Master in the Secondary School at Bhilavadi is an isolated post, it makes no difference and, therefore, the Court ought to protect promotion and appointment in terms of Rule 9(10)(a) of Rule of 1981.