Bombay High Court
Bharat Shikshan Sanstha, ... vs State Of Maharashtra And Others on 8 September, 2015
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5795 OF 2015
Bharat Shikshan Sanstha, Omerga,
Taluka Omerga, District Osmanabad,
through its President
Shivajairao s/o Shridharrao More,
age 54 years, occu. Agri..,
r/o c/o office of Bharat Shikshan Sanstha,
Omerga, Taluka Omerga,
Dist. Osmanabad. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Higher & Techinical Education,
Mantralaya, Mumbai-32.
2. Dr.Babasaheb Ambedkar Marathwada University,
Aurangabad,
through its Registrar.
3. The Director,
College & University
Development Board,
Dr.Babasaheb Ambedkar
Marathwada University,
Aurangabad.
4. The Joint Director of Higher Education,
Aurangabad Division, Aurangabad. ...RESPONDENTS
...
Mr. S.S. Jadhavar, Advocate for petitioners.
Mr.A.V. Deshmukh, AGP for respondents 1 and 4.
Mr.S.G. Chapalgaonkar, Advocate for Respondents 2 and 3.
...
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CORAM: S.S. SHINDE &
A.M. BADAR, JJ.
RESERVED ON : 03/09/2015
PRONOUNCED ON: 08/09/2015
JUDGMENT : [ PER : S.S. SHINDE, J.]
. Rule. Rule made returnable forthwith. By consent
heard finally.
2.
This writ petition has been filed challenging the
communication/order dated 16/04/2015 issued by respondent
No.3 with further prayer to quash and set aside the said
communication/order, with further direction to the respondents to
allow the petitioner-institution to fill up the post of Principal from
open category candidate in both the Colleges run by the petitioner-
institution.
3. It is the case of the petitioner that, the petitioner
society is registered under the Maharashtra Public Trusts Act,
1950 and Societies Registration Act. The petitioner trust is
working in the field of Education and runs two colleges; one at
Omerga namely Shri Chhatrapati Shivaji College, Omerga and
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another at Makani namely Bharat Shikshan Sanstha's college,
Makani, taluka Lohara, dist. Osmanabad. wherein the posts of
Principals are vacant.
4. It is further case of the petitioner petitioner institution
sought permission to fill up the post of Principal. The respondent
No.3 by the communication / order dated 16.4.2015 refused to
grant permission as sought in the application dt.2.2.2015 and
asked the petitioner to reserve one post for S.T. Category. Hence,
this petition.
5. The learned Counsel for the petitioner has placed reliance on
the judgment dated 25.03.2014 delivered by this Court in the case
of Marathwada Sarvoday Shikshan Prasarak Mandal vs.
State of Maharashtra & ors. in Writ Petition No.7333 of
2013, as also the judgments referred therein and submitted that
this petition deserves to be allowed. The learned Counsel for the
petitioner submitted that, similar issue was involved in the case of
Vidya Prasarak Mandal vs. University of Mumbai 1 and in the
said judgment, it is held that, there cannot be reservation to the
post of Principal. He further submitted that, in the case of Indra
1 2008 (5) Mh.L.J. 47
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Sawhney vs. Union of India 2 the Apex Court has also held that, the
certain services and positions on account of nature of duties attached to
them or the level (in hierarchy) at which they obtain merit as explained
above, in such situation, it may not be advisable to provide for the
reservation. The learned Counsel for petitioner further invited our
attention to the judgment in Writ Petition Nos. 5118 of 2009 and 7191 of
2012 wherein similar issue was involved. The Division Bench of the
Bombay High Court has held therein that, the post of Principal is single
cadre post and reservation policy cannot be applied for filling up the post
of Principal though the institution runs various colleges which are
governed by same University. Learned Counsel for the petitioner further
submitted that, the communication issued by respondent No.3 is
contrary to the law laid down by the Apex Court and the Bombay High
Court.
6. Learned Counsel appearing for the petitioner invited
our attention to the pleadings in the petition, annexures thereto
and submitted that, respondent No.3 herein, has no authority to
direct the petitioner to reserve one post of Principal for the
candidates from reserved category. It is submitted that, colleges
run by the petitioner-society are separate and independent
colleges. Each college has separate entity and post of Principal has
2 AIR 1993 SC 477
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to be considered as a single post. Learned Counsel appearing for
the petitioner submitted that, the issue raised in this petition is no
longer res integra and is covered by the authoritative
pronouncements of the Supreme Court and the Bombay High
Court, which are referred to in the foregoing paragraphs.
Therefore, learned Counsel appearing for the petitioner submited
that, the petition deserve to be allowed.
7.
Respondent Nos. 2 and 3 has vehemently opposed the
prayer of the petitioner and submitted that the petition deserves to
be dismissed.
8. We have given anxious consideration to the
submissions of the learned Counsel appearing for the petitioner,
the learned Counsel appearing for respondent Nos. 2 & 3 and also
learned A.G.P. appearing for respondent Nos. 1 and 4. We have
carefully perused the pleadings in the petition, annexures thereto,
and judgments cited across the Bar. Upon careful perusal of the
documents placed on record and in particular, judgment and order
in Writ Petition No. 2558/2003 ( Vidya Prasarak Mandal vs. The
University of Mumbai and others), in our opinion, the issue raised
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in the present petitions is no longer res integra and is covered by
the aforementioned authoritative pronouncements.
. In the facts of the Vidya Prasarak Mandal (supra),
the petitioner therein, is a public trust registered under the
Bombay Public Trust Act. The said trust runs Arts, Commerce and
Science Colleges affiliated to Pune University. The College was
bifurcated in the year 1976 into two independent colleges and both
colleges were affiliated to Bombay University because territory
jurisdiction of the Bombay University was extended to Thane. The
petitioner-institution therein, was running three more colleges.
The petitioner therein, was running in all five faculties which are
managed independently, administratively and financially and they
are separate and distinct entities. On superannuation of the
Principal of one college, the petitioner therein, submitted proposal
for appointment of Principal to the Bombay University. The
Bombay University informed the Chairman of the petitioner
therein, that, the post of Principal has been identified as a post
reserved for backward class and that, the petitioner should take
steps to make appointment of Principal on regular basis obviously
from reserved category.
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9. After considering the facts involved in the said case
and appreciating the contentions of the parties, this Court in
paragraphs-4 and 5 held thus:
"4. So far as the circular
dated 15.3.1999 issued by the Director of Education is
concerned, firstly we have not been pointed out any
authority-conferred on the Director of Education b
y any law authorizing him to issue such circular. In our
opinion, this being a matter of policy either such decision
could have been taken by an authority which is authorised
by Law to take such a decision or such a decision can be
taken by the State Government itself. We have not been
pointed out any decision taken up by the State Government
in relation to the reservation in the post of Principal of
affiliated colleges. In our view, the circular dated 15.3.1999
is clearly without any authority of law. Really speaking the
decision of the University to reserve the post of Principal of
Arts and Commerce College of the petitioner which is clearly
based on the circular dated 15.3.1999 is liable to be set
aside only for this reason that the Circular dated 15.3.1999
is without any authority of law.
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
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Court in its judgment in the case of "Indra Sawhney Vs. Union
of India, AIR 1993 Supreme Court 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 Art.335, we are 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 organisations/ departments/
institutions, in specialties and super-specialties 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 for 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
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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: (1) Defence
Services including all technical therein but excluding civil
posts. (2) All technical posts in establishments engaged
in Research and Development including those connected
with atomic energy and space and establishment
engaged in production of defence equipment. (3)
Teaching posts of Professors - and above, if any. (4)
Posts in super-specialties in Medicine, engineering and
other scientific and technical subjects.
(5) Posts 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,1990, 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.
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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 Art.335."
The Supreme Court has, thus, stated that
application of the rule of reservation 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."
10. In the facts of the present case also petitioners has
clearly stated in the petition that, both the colleges are
administered separately and run independently. In the light of
authoritative pronouncement of this Court in the case of Vidya
Prasarak Mandal (supra), in our considered opinion the issue
raised in the petition is no longer res integra, and is covered by the
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aforementioned authoritative pronouncement.
11. In the result, the writ petition succeeds and the same
is allowed. The communication/order dated 16/04/2015 is
quashed and set aside. Rule made absolute in the above terms
with no orders as to costs.
[ A.M. BADAR, J.] [S.S. SHINDE, J.]
kadam/
