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2002 Supreme(Bom) 816
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Marlapalle B.H. Karnik D.G., JJ.
Nutan Vidyalaya Shikshan Sanstha another .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 3374 of 1991, decided on 8-8-2002.
Advocates appeared :
S.V. Natu, holding for A.H. Joshi, for petitioners.
K.B. Chaudhari, A.G.P., for respondent Nos. 1 to 3.
Sachin Deshmukh, holding for S.B. Talekar, for respondent No. 4.
Headnote:Constitution of India - Articles 16(1) and (2) - Reservation under Article 16 - Post of principal - Contention there are two colleges, two principals - So one post can be reserved - Boys college can have post filled on basis of seniority list - But in girls college only lady principal is needed - If it is reserved for ladies it is 100% reservation if boys side is reserved again it is 100% reserved - Which is not possible - Article 16 cannot be applied here. - 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 schools an L.L.R. Girls Schools which is a girls secondary school. Therefore, one post can be reserved for Scheduled Caste. The petitioner No. 1 society invited attention to Rule No. 3 of Maharashtra Employees Private School Rules, 1981 (for short, M.E.P.S. 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 headmistress 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/Headmistress 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 Schedule Caste. Thus, in that case also the reservation would become hundred per cent which is not permissible. It is for these reasons 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 lists maintained for both the schools and by following the provisions of the M.E.P.S. Rules, 1981 and, therefore, the rule of reservations, under Article 16(2) cannot be followed.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1990 - Rule 3(4) - Reservation under Article 16(4) - Not applicable - One post of principal - If can be reserved - Contention - Management has two colleges-one post out of two of Principals can be reserved for SC/ST candidates - There cannot be a reservation of a single post - If one post is reserved for SC/ST and other for a lady - It will become 100% reservation - It is not allowed - Such seats can be filled in on basis of common seniority - No scope for Article 16(4). - Sub-rule (4) of Rule 3 mandates that in case of girls secondary school only a lady teacher is to be appointed as the Head Mistress 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 LLR 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 the post of Head Master in the boys secondary school is an isolated post which is required to be filled in one the basis of a common seniority lists maintained for both the schools and by following the provisions of the M.E.P.S. Rules, 1981 and, therefore, the rule of reservations, under Article 16(2) cannot be followed.
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. Kondapalle 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 schedule 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 others)1, A.I.R. 1988 S.C. 959, 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)2, reported in A.I.R. 1998 S.C. 1767, 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 others)3, reported in 1999(8) S.C.C. 176.
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
