Nutan Vidyalaya Shikshan Sanstha ... vs State Of Maharashtra And Ors.
2002 Latest Caselaw 807 Bom

JUDGMENT

D.G. Karnik, J.

1. The petitioner No. 1 society runs a school known as Nutan Vidyalaya at Sailu District Parbhani and also runs another school known as L.L.R. Girls School which is a Girls Secondary. School. Petitioner No. 1 also runs Junior Colleges.

2. On 1st of May, 1987 the petitioner society appointed one Shri V.H. Datar who was then the senior most Assistant Teacher to the post of Head Master and appointed Shri R.A. Giri, the petitioner No. 2 to the post of an Assistant Head Master. Both the appointments were approved by the Education Officer, Zilla Parishad who is the respondent No. 3 herein, by a communication dated 24th September, 1987.

3. Shri V.H. Datar, the Head Master of Nutan Vidyalaya retired on 30th April, 1989, Shri R.A. Giri, the petitioner No. 2, who was then the Assistant Head Master informed the management in writing on 9th June, 1989 that on account of domestic difficulties he was unable to accept the post of a Head Master for a period of two years. Hence, the petitioner appointed Shri M. S. Kondapalli, the senior most amongst the Assistant Teachers, who was also working as a Supervisor, as the Head Master. The management sought the approval of the respondent No. 3 for appointment of Shri Kondapalli to the post of a Head Master but the respondent No. 3 declined to grant the approval on the ground that the post of the Head Master should be reserved for a scheduled caste candidate on a 50 point roster scale. The petitioner filed an appeal against the order of respondent No. 3 for reconsideration and the petitioner was, in turn, asked to approach the respondent No. 2 by the Director of Education vide his letter dated 21st May, 1991, In the meanwhile, Shri M. S. Kondapalli retired on 30th April, 1991 on reaching the age of superannuation. The petitioner No. 2 who belongs to the Nomadic Tribe category and who was already working as an Assistant Head Master was then appointed as the Head Master by the petitioner No. 1 management. Approval was sought for the appointment of petitioner No. 2 which also was rejected by the respondent No. 3 on the ground that the post was reserved for scheduled caste only. By the present petition the management of the school as well as the petitioner No. 2 have challenged the order of the respondent No. 3 refusing the approval.

4. In the case of Dr. Chakradhar Paswan v. State of Bihar and Ors., it was held by the Supreme Court that a single post cannot be reserved under Article 16(4) of the Constitution and such a reservation would render the guarantee of equal opportunity contained in Article 16(1) and 16(2) wholly meaningless and illusory. The petitioner had brought to the attention of the Director of Education, Nasik the law laid down by the Supreme Court in the case of Dr. Chakradhar Paswan (supra), in its appeal.

A constitution Bench of the Apex Court, in the case of Post Graduate Institute of Medical Education and Research v. Faculty Association held that in case of a single post cadre, reservation, at any point of time, on account of rotation of roster, is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permitted within the constitutional framework. This judgment was subsequently followed by the Apex Court in the case of S.R. Murthy v. State of Karnataka and Ors. .

5. It is not disputed that the petitioner No. 1 society runs two secondary schools viz. (i) Nutan Vidyalaya (Boys High School) at Sailu and (ii) Smt. L. L. R. Nutan Kanya Prashala (Girls High School). In the boys high school there is a post of Head Master as well as Assistant Head Master, whereas in the girls high school the post of Assistant Head Master does not exist as per the sanctioned staffing pattern and the petitioner society has been in the field of education for the last more than 60 years. Reservation of that post for a scheduled caste category would, thus, amount to 100% reservation. In case of a single post the roster rule cannot be applied and consequently the post of the Head Master could not have been reserved.

6. It was, however, contended by the respondent No. 4, who is the senior most amongst the scheduled caste Assistant Teachers, that the petitioner society runs two schools viz. Nutan Vidyalaya which is the boys school and L. L. R. Girls School which is a Girls Secondary School. Therefore, one post can be reserved for scheduled caste. The petitioner No. 1 society invited our attention to Rule No. 3 of Maharashtra Employees Private Schools Rules, 1981 (for short, MEPS Rules). Sub-rule (4) of Rule 3 mandates that in case of Girls Secondary School only a lady teacher is to be appointed as the Headmistress irrespective of her seniority vis-a-vis the male teachers. In other words, the post of the Head Master for Girls Secondary School is reserved only for lady teachers and male teachers are not entitled to the said post. Therefore, so far as male teachers employed by petitioner No. 1 society are concerned there is only one post of the Head Master in all the secondary schools run by the petitioner No. 1 society. There cannot be any reservation of the single cadre post. Assuming that there are two posts of Head Master/ Head Mistress reserving the post in the Nutan Vidyalaya would amount to reservation of both the posts; the post in case of L. L. R. Secondary Girls School would be reserved for a lady teacher and the post of a Head Master of Nutan Vidyalaya would be reserved for a scheduled caste. Thus, in that case also the reservation would become hundred per cent which is not permissible. It is for these reasons we hold that the post of Head Master in the boys secondary school is an isolated post which is required to be filled in on the basis of a common seniority list maintained for both the schools and by following the provisions of the M.E.P.S. Rules, 1981 and, therefore, the rule of reservation, as contemplated within the meaning of Article 16(4) of the Constitution, cannot be made applicable to the said post.

7. We are informed that during the pendency of this petition Shri R.A. Giri has retired. He continued in service on account of an interim order passed by this Court. On his retirement another senior most Assistant Teacher, who is senior to the respondent No. 4, is appointed as a Head Master. Perhaps the approval to the same is also pending on account of the pendency of this petition. The respondent No. 3 would have to consider the approval of such appointments on its own merits and would not be entitled to refuse the approval only on the ground that the post is reserved for scheduled caste.

8. In the circumstances the petition is allowed. The communication dated 2nd March, 1991, issued by the respondent No. 2, refusing the approval and directing the petitioner No. 1 to apply 50 point roster and the reservation of a single post of a Head Master in Nutan Vidyalaya, Sailu, District Parbhani, is quashed and set aside. The application made by the petition for the appointment of the assistant teacher to the post of a Head Master of Nutan Vidyalaya, Sailu shall be considered by the respondent Nos. 2 and 3 on its own merit, without applying the principle of reservation. Rule is accordingly made absolute. In the facts and circumstances of the case, no order as to costs.