JUDGMENT B.P. Dharmadhikari, J.
1. The petitioners who are legal heirs of deceased employee of respondent No. 1 and 2 who had in this writ petition challenged the order/judgment dated 21-9-1993 passed by School Tribunal whereby School Tribunal allowed appeal of present respondent No. 3 and held that promotion of deceased employee by order dated the 23-11-1991 to the post of Headmaster at Akola school was illegal and in turn directed respondents 1 and 2 to promote respondent No. 3 as Headmaster in place of said employee. This Court granted interim order on 14-1-1994 and that order continues to operate even today. During pendency of petition original petitioner/employee expired and his legal heirs have been brought on record. The respondent No. 1 and 2 run another school at Murtijapur and post of Headmaster therein became vacant in 1994. Against that post, another employee by name Shri Mural has been promoted as respondent Nos. 1 and 2 found him senior most from backward/reserved category. Shri Mural has also retired on superannuation but he contends that as he happens to be senior than respondent No. 3 Shri Bagade, he needs to be promoted before respondent No. 3 and for this purpose he had filed Civil Application No. 2554/1993 in Writ Petition 3465/1993. The latter writ petition was filed by management challenging the very same judgment of School Tribunal with prayer to restore its promotion order dated 23-11-1991. As the parties are common and the common questions arise for consideration, both the petitions were requested to be taken up for hearing together. However, after perusal of record, it was found that on 30-7-2004 Division Bench discharged rule in that matter nobody appeared for petitioner on that day.
2. The facts which are not in dispute can be briefly stated thus. The respondent No. 1 society runs two schools as mentioned above and both the schools are recognised and admitted to grants by State Government. The deceased employee joined the services on 1-7-1959 and he obtained training qualification in 1962. Respondent No. 3 who belongs to Schedule Caste category was initially appointed as Assistant Teacher in some other school where he was declared surplus and was absorbed with respondent No. 1 on 12-11-1976. As per Government Resolution dated 17-9-1980 prescribing 24 percent reservation, 3-6-197.7 has been treated as cut-off date for the purposes of working out and implementation of the roster and carrying forward the reservations. The year of first appointment of Headmaster/Assistant Headmaster effected after 3-6-1977 has been treated as "initial year of recruitment". In High school at Akola the post of Headmaster fell vacant in December 1977 and one Morshikar from open category was appointed as Headmaster from 1-1-1978. Shri Morshikar retired on superannuation on 31-10-1991 and his appointment/promotion as Headmaster was never challenged by anybody including present respondent No. 3. Against that vacancy, deceased petitioner Vinayak was promoted as he was Seniormost Assistant Teacher and also from open category. This promotion came to be challenged by present respondent No. 3 by filing appeal vide appeal No. 17 of 1992-A before School Tribunal, Aurangabad. In the meanwhile post of Headmaster in another school i.e. at Murtijapur became vacant because of retirement of Shri Deshmukh. The intervenor Shri Mural in Writ Petition 3465/1993 was therefore appointed as in-charge Headmaster on 1-5-1994 and he retired on 28-2-1999. After this retirement; respondent No. 3 came to be appointed as Headmaster at Murtijapur from 1-3-1999 and Education Officer also granted approval to this appointment. After retirement of deceased Vinayak, one Shri Kavishwar and after his retirement Shri Jaltare from 1-5-1996 were appointed as Headmasters from open category. As the appeal of respondent No. 3 was pending, Education Officer did not grant approval to these appointments. Lastly one Shri S. G. Pande was appointed as Headmaster from 1-5-1997 and he was also from open category. Education Officer did to grant approval even to this appointment. However, it has been approved after promotion of respondent No. 3 as Headmaster from 1-3-1999. Thus deceased petitioner received salary only as Assistant Teacher and subsequent open category candidates also received similar treatment. Only Shri Pande got salary as Headmaster from 1-3-1999. After retirement of Shri Pande, Shri Kshirsagar has been working as Headmaster at Akola.
3. The School Tribunal has found that provisions of Rule 3(3), Sub-rule 10(a) and (b) of Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules of 1981 (hereinafter referred to as the Rules) are relevant in the situation. After considering the facts and the law on the point, it has found that 50 point roster was applicable as there are two post of Headmaster and vacancy which arose after 3-6-1977 should have been filled in by promoting Seniormost backward class candidate. It has considered the claim of Shri Mural also and found that said employee did not assert his seniority and did not file any appeal before School Tribunal. Accordingly it held that present respondent No. 3 (appellant before it) was aggrieved person and roster applied by rotation and therefore respondent No. 3 was entitled to be promoted by reverting deceased-employee Shri Vinayak. It further held that there was no question of jumping promotion in view of express provisions of the Rules. It therefore, directed respondent Nos. 1 and 2 to promote respondent No. 3 as Headmaster of its school at Akola. It is this order which has been impugned in present petition.
4. I have heard Advocate H. A. Deshpande for petitioner, Advocate Smt. Jawalkar for respondent No. 3 in Writ Petition 3448/1993. Advocate Parchure argued for intervenor Shri Mural in W. P. 3465 of 1993, later on found to be dismissed in default by the Division Bench. Advocate Deshpande represented the management in both cases. Learned AGP has appeared for respondent No. 5 School Tribunal. It appears none of the advocates here were aware of dismissal of Writ Petition 3465 of 1993 in default on 30-7-2004. However arguments of Advocate Parchure and Advocate Deshpande can be considered to find out correct legal position and in the interest of justice.
5. Advocate H. A. Deshpande for petitioner in Writ Petition 3448/1993 argued that in view of judgment of Hon'ble Apex Court in case of R. K. Sabharwal reported at , once the post of Headmaster falling vacant after 3-6-1977 was filled in by open category candidate by promoting Shri Morshikar on 1-1-1978, subsequent vacancies in said post are to be filled in only by open category candidate. Therefore, according to him deceased petitioner rightly substituted Shri Morshikar upon his retirement from 1-11-1991. He states that in view of 50 point roster next vacancy in said cadre was to be given to reserved category candidate and said vacancy became available on 30-4-1994 when Headmaster of Murtijapur High School retired. He contends that said vacancy has been rightly given to reserved category candidate and according to him, that vacancy/post at Murtijapur High School will always remain reserved. He further points out that promotion given to Shri Morshikar was not challenged by respondent No. 3. Without prejudice to this argument and in the alternative, he stated that if this Court comes to the conclusion that respondent No. 3 ought to have been promoted as Headmaster from 1-11-1991, then next vacancy which arose on 30-4-1994 will be required to be given to deceased Vinayak and he would be entitled to salary and benefits of the post of Headmaster accordingly.
6. Advocate Parchure for Shri Mural has supported action of management. He argues that the management rightly promoted Shri Mural on 1-5-1994 when the post was vacant. He states that management was duty bound to decide about the claim of promotion by Seniormost backward class Assistant Teacher and accordingly after decision of School Tribunal everything was open for consideration. He argues that there is nothing wrong in promoting Shri Mural. He states that Education Officer should be directed to release approval in favour of Shri Mural. Advocate Parchure for Shri Mural has contended that the School Tribunal was not right in ordering promotion of respondent No. 3 Shri Bagade. He states that once the School Tribunal found that promotion given to deceased Vinayak was illegal, it only could have directed management to promote Senior most teacher from reserved category. He states that respondent No. 3 who is junior to Shri Mural could not have been ordered to be promoted. He therefore states that his client is entitled to approval and salary with consequential benefits as Headmaster from 1-5-1994.
7. Advocate Deshpande for management has supported the contentions of petitioner and it is argued that post at Akola will always be for open category Headmaster while the post at Murtijapur will always remain reserved for backward category. He stated that at present one Kshirsagar is working at Akola while respondent No. 3 is working at Murtijapur. According to in this position should not disturbed.
8. Advocate Smt. Jawalkar for respondent No. 3 has stated that the School Tribunal has correctly found that respondent No. 3 ought to have been promoted on 1-11-1991 in place of deceased Vinayak. She points out that after cut-off date first vacancy was rightly given to open category candidate as per roster and subsequent vacancy ought to have been given to respondent No. 3 instead of Vinayak. She states that next vacancy arising at Murtijapur could have been given to open category candidate. She further states that intervener Mural who also has filed independent petition, did not challenge promotion given to deceased Vinayak and as such, he cannot make any grievance about the directions issued by School Tribunal in favour of respondent No. 3. She argues that approval is rightly not given to other open category Headmasters at Akola till 1-3-1999. She further states that in view of 50 point roster, reservation will apply by rotation and post in any particular School will not always remain reserved or open. She further states that as first vacancy occurring after 3-6-1977 has been correctly treated as for open category, there was no occasion and reason for respondent No. 3 to challenge promotion given to Shri Morshikar w.e.f. 1-1-1978.
9. It is now necessary to consider the legal provisions on which the case rests. These provisions are contained in Rule 3 and Rule 9 of the Rules. Rule 3 deals with qualifications and appointment of Headmaster. Sub-rule (3) thereof states that management has to appoint the Seniormost member of teaching staff in accordance with guidelines laid down in Schedule "F". Rule 9(10)(a) requires management to reserved 24% of total number of posts (or vacancies) of Headmaster and Assistant Heads for members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes. The sub-rule also prescribes 13 percent for Scheduled Castes, 7 percent for Scheduled tribes and 4 percent for Denotified tribes and Nomadic tribes. Sub-clause (b) also provides that if it is not possible to fill in the post of Headmaster or Assistant Head for which a vacancy is reserved from a person belonging to that caste or tribe, it may be filled in by promoting the candidate from other remaining categories in the order specified in sub-clause (a).
10. Government Resolution dated 17 September, 1980 issued by Education, Employment department lays down the procedure for these reservations. It is mentioned that management has to earmark the vacancies existing/occurring on or before the date of issue of said orders for the 3 section of backward classes according to model roster. The backlog is required to be worked out with reference to total number of vacancies filled in the cadre of Headmaster/Assistant Headmaster on or after 3-6-1977 to adjust the carried forward vacancies while making future promotions to these posts. A separate 50 point roster has been prescribed for that purpose. On 25th August, 1981, said department has issued another resolution on the point of promotion and reservation and in it, relevance of date 17-94980 and 3-6-1977 mentioned in above referred Government Resolution with reference to appointments made prior to 17 September, 1980 to the post of Assistant Headmaster and Headmaster and for carrying forward of backlog is explained. The explanation shows that such appointments made prior to 17-9-1980 as per rules then in force are not to be disturbed. It is further mentioned that all vacancies filled in the cadre from 3rd June, 1977 are to be taken into consideration for the purpose of working out and carrying forward the backlog. In this resolution it is further stated that the year of appointment of Headmaster effected after 3-6-1977 is to be treated as initial year of recruitment as the orders prescribing the procedure for promotion to the post of Headmaster/Assistant Headmaster were issued on 3-6-1977. It is made clear in this resolution that 50 point roster will apply for promotion. On 11th September, 1981, the Government has given the procedure to be followed to maintain the prescribed percentage of reservation of posts for Backward Classes in aided non-Government secondary schools irrespective of the total strength of the school. It is mentioned that in the schools where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be reserved for any of the category of Backward Classes, it should be treated as unreserved and filled in accordingly and the reservation should be carried forward to subsequent recruitment year (s), but in the subsequent year (s), even if there be only one vacancy, it should be treated as reserved against carried forward reservation from the initial recruitment year and should be filled in by the candidate belonging to the Backward Class for whom that carried forward vacancies was reserved. Government has prescribed that similar procedure should be followed in respect of subsequent vacancies and reservation for various sections of Backward Classes, should be made strictly in accordance with the roster points by rotation. On 29-3-1997 State Government has issued new 50 point roster for promotion. All these resolutions and rosters are not in challenge in present petition. Parties thereto agreed that as there are two posts of Headmasters, 50 point roster will apply.
11. Dispute between parties is about rotation. According to petitioner post of Headmaster at Akola filled in after 3-6-1977 by open category candidate will now always remain open and the post at Murtijapur which became vacant thereafter, will always remain reserved. Perusal of relevant case law is therefore necessary.
12. In , R. K. Sabhanval v. State of Punjab, Hon'ble Apex Court has considered the following two arguments:--
(1) The object of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out the percentage of reservation the promotees/appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the General category posts or against the reserve posts are to be counted. In other words if more than 14% of the Scheduled Caste candidate are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservations in the said cadre having been achieved the Government instructions providing reservation would become inoperative. (2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category reserve or general due to retirement etc. of whose member the post fell vacant.
After holding that there is no force in first argument, the Hon'ble Apex Court has considered the second argument as under --
5. We see considerable force in the second contention raised by the Learned Counsel for the petitioners. The reservation provided under the impugned Government instructions are to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts..." are reserved for members of the Scheduled Caste and Backward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate base on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15, retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the General category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.
6. The expressions "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.
13. However, the Learned Counsel for petitioner could not explain relevance of this citation and its utility while considering the small cadres like in present case. On the contrary, here Government Resolution dated 17 September, 1980 expressly requires roster to be maintained in the form of running account year by year. Government has also given illustration by stating that if recruitment stops at point 24 at end of a year, recruitment in the following year should begin at point 25. The resolution of State Government dated 29-3-1997 issued by General Administration Department also does not make any change in this respect. The counsel for petitioner Advocate H. A. Deshpande has himself contended that initial vacancy in first post arose in 1977 and second vacancy in only other post arose in 1994. None of the parties have challenged the above referred Government Resolutions and clarifications. In case of cadre with only two posts, the observations made by Hon'ble Apex Court will not apply because those observations do not consider the case of roster application/reservation by rotation. The scheme of reservation by rotation reveals that emphasis thereof is on vacancy and not on post.
14. In this respect, reference can be made conveniently to ruling reported at between Prabhash Chand Jain v. State of Haryana and Ors.. The Hon'ble Apex Court was considering the validity of letters dated 27-5-1988 and 8-3-1989 prescribing that whenever there were two posts, the same were not to be filled in by applying the reservation policy. It was stated that reservation benefit was not admissible in that case. In paragraph 7, arguments on these lines by Learned Counsel appearing for State of Haryana have been rejected and Hon'ble Apex Court has observed that it is possible, to implement roster even in such circumstances. Hon'ble Apex Court has found that the authorities issuing letter did to apply their mind either to the roster and the roster points or to the law on the subject. In paragraph 8, the Hon'ble Apex Court has considered the argument based upon judgment of R. K. Sabarwal (supra) that reservation policy is to be applied to the posts and not to the vacancies. The said paragraph reads :
8. The last submission made by the Learned Counsel for the appellants and the respondent - State was backed the resent judgment dated 10-2-1995 of the Constitution Bench in R, K. Sabarwal v. State of Punjab supports their contention, inasmuch as, according to them, as per the said circular, the reservation policy is to be applied to the posts and not to the vacancies. We find no such observation made in the said judgment. In fact, in the very beginning, the Court had stated that expressions "posts" and "vacancies" are often used in the executive instructions providing for reservation, problematically. The Court has then gone on to explain that word "post" means the position to which the person is to be appointed. The vacancy means a non-occupied post or office. The plain meaning of the two expressions makes it clear that there must be posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in the cadre. As a consequence, the percentage of reservation has to be worked out in relation to number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in the cadre can be filled in only when the vacancies occur and not otherwise. Hence the observation made in the said judgment relating to percentage of reservation in posts has to be understood in that sense. It is not the contention of respondent-employees belonging to reserve category that the percentage of reservation is to be calculated de-hors the number of posts. However, while filling the posts, it is the vacancies which are to be taken into consideration and these vacancies have to be filled in, according to roster points. That is precisely what is sought to be done in present case by circular of 9-2-1979.
15. In present case, parties have not challenged application of reservation/roster to the cadre of Headmaster by rotation and only contention of Advocate H. A. Deshpande on behalf of L.Rs. of deceased Vinayak is that out of total two posts, one at Akola will always remain open while the other at Murtijapur will always remain reserved. This is contrary to the 50 point roster and it is apparent that the vacancies occurring in these two posts will be required to be filled in as per roster point in use at the time of occurrence of such vacancy and by rotation. Thus, the post of Headmaster in either school may be reserved as per the roster point when vacancy arises. In this case, after cut-off date i.e. 3-6-1977, first vacancy was filled in at Akola school through open category on 1-1-1978 by promoting Shri Morshikar. The second vacancy occurred when said Shri Morshikar retired in October, 1991. As per roster point, the said vacancy ought to have been filled in by promoting Senior most Assistant Teacher from backward category. The post of Headmaster at Akola did not get earmarked for open category for all times to come. The arguments of Advocate H. A. Deshpande therefore need to be rejected. It is thus apparent that deceased Vinayak could not have been promoted on 1-11-1991 and that vacancy ought to have been given to Seniormost backward class Assistant Teacher. This finding of School Tribunal therefore needs to be maintained. However, vacancy arising still thereafter i.e. on 30-4-1994 therefore becomes available in open category and it was not reserved as per roster as the first vacancy of Shri Morshikar was open one. Hence, on 30-4-1994, in place of Shri Mural, deceased Vinayak ought to have been promoted as Headmaster. Thus, though the order of School Tribunal directing reversion of deceased Vinayak needs to be maintained, Vinayak would get benefit of promotion to the post of Headmaster from the date on which said promotion was given to Shri Mural i.e. with effect from 1-5-1994. Deceased Vinayak stood retired on superannuation on 30-4-1995.
16. The School Tribunal has noticed that Shri Mural was senior to appellant before it i.e. present respondent No. 3 and qualified for promotion to the post of Headmaster. However, it has not given him said promotion and ordered promotion of present respondent No. 3 because he did not approach School Tribunal in appeal. It is apparent that this approach of School Tribunal is erroneous. The moment it found that deceased petitioner could not have been promoted from 1-11-1991, it should have directed respondent Nos. 1 and 2 (management) to consider the case of Senior most eligible backward class candidate by reverting deceased Vinayak. It could not have directed respondent No. 1 and 2 to promote present respondent No. 3 though he was junior only because he brought the cause in appeal before it. Thus, present respondent No. 3 is not entitled to promotion from 1-11-1991 and in his place, Shri Mural will stand promoted from that date till his retirement on superannuation on 28-2-1999.
17. Vacancy arising on account of retirement of deceased Vinayak and of Shri Mural is required to be filled in by applying the roster point as per 50 point roster. Presently respondent No. 3 is working as Headmaster from 1-3-1999 and Shri Kshirsagar is other Headmaster after retirement of Shri Pande since year 2002. Both of them already have approval of Education Officer. The respondent No. 3 will have to be promoted as per his claim in the seniority list in accordance with roster point for reserved category by giving him deemed date of promotion with all consequential benefits. The entitlement of other open category Headmasters like Shri Kavishwar (retired on 30-4-1996), Jaltare (retired on 30-4-1997) and Pande (from 1-5-1997 to 28-2-1999) for grant of approval will be required to be considered accordingly by Education Officer (Secondary) Zilla Parishad, Akola who is also respondent before this Court. The question about the applicability of roster point by rotation if both posts are required to be allotted to backward category because of vacancy position or "carry forward rule" and reservation has not been addressed to by parties and, hence, has not been considered here.
18. Thus, deceased Vinayak is given benefit of promotion as Headmaster from 1-5-1994 till he retired on superannuation on 30-4-1995 with all consequential benefits. Shri Mural will stand promoted from 1-11-1991 till his retirement on superannuation on 28-2-1999 with all consequential benefits. Respondent No, 3 Shri Bagde shall continue and shall not be disturbed as Headmaster but he will be entitled to grant of deemed date with all consequential benefits as per roster point if becoming available prior to 1-3-1999 for reserve category as per his seniority/claim in accordance with law. Education Officer (Secondary) Zilla Parishad, Akola shall work out entitlement of other open category Headmasters like Shri Kavishwar (retired on 30-4-1996), Jaltare (retired on 30-4-1997) and Pande (from 1-5-1997 to 28-2-1999) in accordance with availability of roster point for their accommodation in the cadre of Headmaster and if required, shall give them appropriate deemed date accordingly with all consequential benefits. The impugned order of School Tribunal is thus modified to the extent mentioned above.
19. Writ Petition is thus partially allowed. Rule made absolute accordingly. No costs.