Bombay High Court
Marathwada Shikshan Prasarak ... vs State Of Maharashtra And Others on 9 October, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3189 OF 2015
Marathwada Shikshan Prasarak Mandal,
A Public Trust, having its office at
Deogiri College, Aurangabad
Through its Secretary
Satish s/o Bhanudasrao Chavan PETITIONER
VERSUS
1] The State of Maharashtra
Through its Secretary,
Higher & Technical Education Deptt.,
Mantralaya, Mumbai
(Copy to be served on the
Govt. Pleader, High Court of
Judicature of Bombay,
Bench at Aurangabad)
2] The Joint Director,
Higher & Technical Education,
Aurangabad Division,
Aurangabad
3] Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad,
Through its Registrar
4] The Assistant Commissioner,
(B.C. Cell),
Office of the Divisional Commissioner,
Aurangabad RESONDENTS
...
Mr. N.B.Khandare, Advocate for the Petitioner
Mr. A.V.Deshmukh, AGP for the Respondent / State
Respondent No.3 served.
...
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2
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 28.09.2015
Pronounced on: 09.10.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
3] This Petition is filed with following prayers:
A) By issue of a writ of certiorari or any other
appropriate writ, order or direction in the nature
of writ of certiorari, call for record and
proceedings of the decision of the B.C.Cell,
Commissioner Office, Aurangabad and the Joint
Director (respondent No.2) and quash and set
aside the same holding that the post of
Principal being isolated post, reservation does
not apply.
B) By issuing a writ of mandamus or any other
appropriate writ, order or direction in the nature
of mandamus, hold and declare that the post of
Principal being isolated post, reservation does
not apply and the petitioner may be permitted
to fill the post of Principal at Majalgaon College,
Majalgaon accordingly by publishing the
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advertisement to fill up the same from open
category.
The background facts for filing the Writ Petition
are as under:
4] It is the case of the petitioner that, the
petitioner is a registered public trust and an educational
institution and a leading prestigious educational institution
in the region. The petitioner is running 23 colleges which
receive grants from the Government, 2 Law Colleges, 2
Engineering Colleges, 2 Polytechnic and 1 B.Ed. college.
Besides this, petitioner also is running various schools at
various places in Marathwada region and each college is an
independent unit and administered separately and
independently.
5] It is further the case of the petitioner that,
College at Majalgaon is run by the petitioner Institute
having Arts, Commerce and Science Faculties. One Dr.
H.D.Misal, working as Principal of the said College, resigned
from the post on 23.09.2013. Dr. Misal joined his original
post as Principal at Muktanand Mahavidyalaya, Gangapur
on 24.09.2013. As a result of it, the post of Principal at
Majalgaon College fallen vacant and, therefore, the
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petitioner wrote a letter to the University on 14.10.2013
and sought permission for filling up the post of Principal and
for permission to advertise the post. The Director, College
and Universities Development Board, vide communication
dated 18.11.2013, granted permission for advertising the
post and it is further clarified that, the post of Principal
being isolated post, be filled in, in the light of the Judgment
of the Hon'ble Bombay High Court, Bench at Aurangabad.
The petitioner has placed on record copy of the letter dated
14.10.2013 addressed by the Administrative Officer of the
petitioner to the Director, College and University Board, and
letter dated 18.11.2013 addressed by the the Director,
College and University Development Board to the
Administrative Officer of the petitioner, respectively.
6] It is further the case of the petitioner that, the
Administrative Officer of the petitioner, vide communication
dated 19.11.2013, informed the respondent No.2 Joint
Director and sought permission for filling up the post of
Principal at Majalgaon and also informed that, the
University has granted permission to fill up the post of
Principal from open category. Accordingly, the respondent
No.2 was requested to issue No Objection Certificate for
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advertising the post. In response to the request of the
petitioner, the respondent No.2 informed that, the
petitioner should get verified the roaster points from the
Backward Class Cell (B.C.Cell), Commissioner Office,
Aurangabad. Accordingly, the communication was made to
the B.C.Cell, Commissioner Office, Aurangabad for
verification of roaster and supply all information as sought
by the Cell. Vide letter dated 17.01.2014, the permission
was sought for appointment of the post of Principal as the
post is vacant and is required to be filled in as per the
orders of the High Court and the Hon'ble Supreme Court.
As no decision was communicated, a reminder was also
forwarded on 29.01.2014. In the meanwhile, vide letter
dated 15.01.2014, the Director, College and University
Development Board [for short hereinafter will be referred to
as 'BCUD'] asked the petitioner to make an appointment of
Principal up to 31.03.2014 and submit a report to the
University, failing which the affiliation would be cancelled.
7] It is further case of the petitioner that, the
roaster was verified by the B.C. Cell and accordingly, it was
communicated vide letter dated 13.11.2014 that, the post
of Principal would go to the Scheduled Caste Category
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candidate, and the same should be filled in by appointing
eligible candidate from the said category. In pursuance of
the said communication, the Joint Director (respondent No.
2) also issued a communication / No Objection stating that,
the petitioner should take appropriate steps for
appointment of Principal as per directions of B.C.Cell.
8] It is further the case of the petitioner that, the
petitioner again submitted a representation to the
respondent No.2 on 04.02.2015, and requested to issue No
Objection Certificate for filling up the post of Principal from
open category. However, no response is received by the
petitioner to the same. It is further the case of the
petitioner that, as per the directions of the University, the
post of Principal cannot be kept vacant and has to be filled
in at the earliest, otherwise, the University may cancel the
affiliation, as stated.
9] It is further the case of the petitioner that, the
law is well settled that, the post of Principal is a solitary
post under the cadre and is not amenable to reservation.
The post of Principal in each of the Colleges run by an
educational institution would be a single post in the cadre
and, therefore, the reservation would not apply. The
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respondent No.2 declared the permission to fill up the post
of Principal from reserved category is totally contrary to law
laid down by the High Court and Hon'ble Supreme Court.
10] It is further the case of the petitioner that, the
judgments of the High Court and the Hon'ble Supreme
Court were brought to the notice of the respondents,
however, the respondents, ignoring the Judgments and law
laid down therein, issued directions to fill up the post and
appoint the Principal from reserved category. The
respondent No.2 ought to have given no objection in clear
terms as sought by the petitioner to fill up the post and
appoint the Principal from open category, the post of
Principal being isolated post and no reservation would
apply. The decision communicated by the respondent No.2
to act as per the directions of B.C.Cell is totally in
contravention of the Judgment of the High Court and the
Hon'ble Supreme Court.
11] It is further the case of the petitioner that, the
law stands today is that, the post of Principal is a cadre post
and is an isolated post. Therefore, reservation does not
apply to the post of Principal. The petitioner is entitled to
fill up the post as per law declared by the Hon'ble Supreme
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Court. Therefore, the decision of respondent No.2 and the
decision of B.C.Cell is required to be quashed and set aside.
Hence, the Petition is filed, challenging the decision of the
respondent No.2 communicating that, the post of Principal
in Majalgaon College, Majalgaon should be filled in by
appointing a person belonging to reserved category, and
further sought direction to the respondents to allow the
petitioner to fill the post of Principal in Majalgaon College,
Majalgaon from open category.
12] In response to the notices issued to the
respondents, the respondent No.4 has filed affidavit-in-
reply. The learned AGP submits that, the petitioner has
submitted the roaster point to the office of the deponent for
final scrutiny. After final scrutiny, the deponent has given
roaster point to the petitioner on 14.11.2014. In the said
roaster, out of 9 posts, 8 posts were filled in and one post
was vacant. According to the reservation policy, the said
vacant post of the Principal is reserved for SC candidate. It
is submitted that, the petitioner educational society has 9
colleges having grant in aid. Out of 9 posts of Principal, 1
post of Principal is vacant and as per the reservation policy,
the said post is reserved for SC category candidate.
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Accordingly, the roaster points submitted by the petitioner
Institution is verified and returned to the petitioner.
13] We have heard the learned counsel appearing
for the petitioner, and the learned AGP appearing for the
Respondent - State. Though the respondent No.3 is served,
none appears for it. In the case of Marathwada Sarvoday
Shikshan Prasarak Mandal Vs. The State of Maharashtra &
others, in Writ Petition No.7333/2013, decided on
25.03.2014, and in the case of the Dr. Mohammad Jilanisha
Alisaheb Vs. The State of Maharashtra & others in Writ
Petition No.7191/2012 decided on 30th January, 2013, the
Bombay High Court Bench at Aurangabad, has ruled that,
the post of Principal of a college must be treated as an
isolated post and cannot be clubbed together with a post of
Principal in another college merely because the colleges are
run by the same trust or society.
14] Yet in another Judgment In the matter of "Shri
Sharda Bhavan Education Society V/s State of Maharashtra
and Another1, the Division Bench of Bombay High Court has
observed in paragraphs No.10 to 13 of the judgment thus;
10. The learned counsel appearing for
1 2011 [6] Mh.L.J. 259
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respondent No.2 University, has drawn
our attention to the judgment of the
Constitution Bench of the Supreme Court
in the case of post Graduate Institute
of Medical Education and Research,
Chandigarh Vs. Faculty Association and
Others, 1998 (2) Mh.L.J. (SC) 353 = AIR
1998 SC 1767. He submitted that there
are some observations in this judgment
which could lead to the inference that
when there is plurality of posts in a
cadre, reservations are necessary. He
drew our attention to the following
observations of the Supreme Court.
ig '35. In 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 single post
in the cadre will be kept reserved
exclusively for the members of the
backward classes and in total
exclusion of the 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 permissible within
the constitutional framework. The
decisions of this Court to this
effect over the decades have been
consistent.
36. Hence, until there is
plurality of posts in a cadre, the
question of reservation will not
arise because any attempt of
reservation by whatever means and
even with device of rotation of
roster in a single post cadre is
bound to create 100% reservation
of such post whenever such
reservation is to be implemented.
The device of rotation of roster
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in respect of a single post cadre
will only mean that on some
occasions there will be complete
reservation and the appointment to
such post is kept out of bound to
the members of a large segment of
the community who do not belong to
any reserved class but on some
other occasions the post will be
available for open competition
when in fact on all such
occasions, a single post cadre
should have been filled only by
open competition amongst all
ig segments of the society'
11. In our opinion, there can be no
doubt when there is plurality of posts
in a cadre, the reservation policy of
the State must be implemented. But in
our opinion, it is difficult to accept
that the single post cadre of Principal
of a college should be clubbed together
with the cadre of Principal in another
college, merely because it is being run
by the same institution. The
petitioner-institution is running three
colleges in the same Faculty,
affiliated to the same University.
However, no statutes have been framed
under the Maharashtra Universities Act,
requiring such reservation for the post
of Principal of the college. Each
college must be treated as a separate
entity and it cannot be clubbed with
another college for the purpose of
administration. Otherwise, nor only the
post of Principal, but also the posts
of teaching and non teaching staff
would have to be clubbed while
considering the reservation. Apart from
this, there is no provision in the
Maharashtra Universities Act for
clubbing such posts, as provided under
the Maharashtra Employees of Private
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Schools (Conditions of Service)
Regulation Act, (in short the MEPS Act)
for clubbing of total number of posts
in a cadre, including the cadre of Head
Master and implementing the reservation
policy. The Rules framed under the
later Act stipulate that reservation
must be to the extent of 24 per cent.
12. In the case of New English High
School Association, Nagpur Vs. Baldev
s/o Fakira Ade, 2006 (6) Mh.L.J. 882,
the Full Bench of this Court at Nagpur,
has held that the applicability of
reservation policy would depend upon
the number of posts in a cadre and the
percentage of reservation. The
reservation cannot be allowed to exceed
the percentage prescribed in the Rules
framed under the MEPS Act, as it would
result into injustice to the candidates
falling outside the reserved category.
13. As we have noted earlier, the
Maharashtra Universities Act does not
have a similar provision as is
available under the M.E.P.S. Act.
Therefore, in our opinion, the
contention of the respondents, is
unacceptable. Circulars and government
resolutions cannot supersede the
provisions of a statute. The post of
Principal of a college must be treated
as an isolated post and cannot be
clubbed together with the post of
Principal in another college, merely
because the colleges are run by the
same trust or society. The argument
advanced on behalf of the State is
fallacious. If an institution runs
several colleges affiliated to several
universities, can it be said that the
colleges should be clubbed together for
the purposes of appointing a Principal?
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Furthermore, an institution may run a
College of Arts, Science and Commerce,
as well as three separate colleges for
Arts and Sciences, would it mean,
therefore, that all such colleges would
have to be clubbed together for
implementing the reservation policy? In
our opinion, the answer is emphatically
in the negative."
15] The issue raised in the petition is no more res
integra in view of the Judgment cited at bar in case of Vidya
Prasarak Mandal Vs. University of Mumbai 2. The Division
Bench, while considering the identical issue, placing
reliance on the Judgment of the Apex Court in the case of
"Indra Sawhney V/s Union of India"3, has observed in
paragraph No. 5 and 6 as below:
5. It is further pertinent to be
noted that we not only find that there
is no authority or statutory provision
providing for reservation in the post
of Principal but we also find that the
observations made by the Supreme Court
in its judgment in the case of "Indra
Sawhney Vs. Union of India" AIR 1993 SC
477 go to show that there cannot be any
reservation in the post of Principal.
Specially the observations found in
paragraph 112 which is a judgment
delivered by Hon'ble Mr. Justice
B.P.Jeevan Reddy which is a majority
view, in our opinion, are pertinent,
they read as under:-
"112. While on Article 335, we are
2 2008 [5] Mh.L.J. 47
3 AIR 1993 SC 477
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of the opinion that there are
certain services and positions
where either on account of the
nature of duties attached to them
or the level (in the hierarchy) at
which they obtain, merit as
explained hereinabove, alone
counts. In such situations, it may
not be advisable to provide for
reservations. For example,
technical posts in research and
development organizations /
departments / institutions, in
specialities and super-
ig specialities in medicine,
engineering and other such courses
in physical sciences and
mathematics, in defence services
and in the establishments
connected therewith. Similarly, in
the case of posts at the higher
echelons e.g. Professors (in
Education), pilots in Indian
Airlines and Air India, Scientists
and Technicians in nuclear and
space application, provision of
reservation would not be
advisable.
As a matter of fact, the impugned
Memorandum dated 13th August, 1990
applies the rule of reservation to
"civil posts and services under
the Government of India" only,
which means that defence forces
are excluded from the operation of
the rule of reservation though it
may yet apply to civil posts in
defence services. Be that as it
may we are of the opinion that in
certain services and in respect of
certain posts, application of the
rule of reservation may not be
advisable for the reason indicated
hereinbefore. Some of them are :
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(1) Defence Services including all
technical posts therein but
excluding civil posts. (2) All
technical posts in establishments
engaged in Research and
Development including those
connected with atomic energy and
space establishments engaged in
production of defence equipments
(3) Teaching posts of Professors -
and above, if any (4) Posts in
super-specialities in Medicine,
engineering and other scientific
and technical subjects (5) posts
ig of pilots (and co-pilots) in
Indian Airlines and Air India. The
list given above is merely
illustrative and not exhaustive.
It is for the Government of India
to consider and specify the
service and posts to which the
Rule of reservation shall not
apply but on that account the
implementation of the impugned
Office Memorandum dated 13th August
1999, cannot be stayed or
withheld.
We may point out that the services
/ posts enumerated above, on
account of their nature and duties
attached, are such as call for
highest level of intelligence,
skill and excellence. Some of them
are second level and third level
posts in the ascending order.
Hence, they form a category apart.
Reservation therein may not be
consistent with "efficiency of
administration" contemplated by
Article 335".
The Supreme Court has, thus, stated
that application of the rule of
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reservations in relation to certain
services and certain posts is not
advisable. One of the posts indicated
by the Supreme Court is the post of
Principal which is above the post of
Professor. As we find that there is no
valid statutory provision providing for
reservation in the post of Principal,
it is not necessary for us to consider
whether for the purpose of reservation
of the post of Principal, the post of
Principal in different colleges run by
the same institution could have been
clubbed together. We find that the
University was not at all justified in
directing the petitioner to fill in the
post of Principal of the Arts and
Commerce College by reserving it for
backward class.
6. In the result, therefore, the
petition succeeds and is allowed. The
communication dated 20.08.2001 and the
circular dated 15.03.1999 are struck
down. Rule is made absolute
accordingly. No order as to costs."
16] Yet in another unreported Judgment in the case
of Modern Education Society Vs. The University of Pune
through Secretary & Ors. in Writ Petition No.444/2014,
decided on 6th January, 2015, the Division Bench of the
Bombay High Court at Principal Seat held that, the similar
issue raised in that Petition stands answered by the
Judgment of the Hon'ble Supreme Court in the case of Post
Graduate Institute of Medical Education & Research Vs.
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Faculty Association 4, which is followed by the Bombay High
Court in the order dated 30.11.2011 in Writ Petition No.749
of 1997. It is held that, unless there is a plurality of posts in
a cadre, the question of reservation would not arise. It is
further observed the, the post of Principal in each of the
colleges run by an education institution is a solitary post in
a cadre and is not amenable to reservation. These
observations have been made relying upon the Judgment in
the case of Post Graduate Institute of Medical Education &
Research Vs. Faculty Association [cited supra]. In the
present case also, the same issue is raised, therefore, we
have no hesitation to allow the Petition since the afore
mentioned expositions of the Supreme Court and the High
Court ruled that, the post of Principal in each of the
Colleges run by an education institution is a solitary post in
a cadre and is not amenable to reservation.
17] In that view of the matter, in the result the
communication dated 16.02.2015 issued by the Joint
Director, Higher Education, Aurangabad stands quashed
and set aside, and the Writ Petition is allowed in terms of
prayer clause 'B'.
4 AIR 1998 SC 1767
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18] Rule made absolute in above terms, and
accordingly same stands disposed of.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
