2005 Supreme(Bom) 1553

IN THE HIGH COURT OF BOMBAY
VINAYAK KRISHNAJI JOSHI
VERSUS
AKOLA EDUCATION SOCIETY
Decided no: November 14, 2005

Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 3 and 9 - Promotion - As Head Master - Respondent society getting aid to run schools - Reservation applicable on basis of rotation - Promotion of ’X’ as Head Master - Appeal by SC employee - Records indicate post was for backward seat employee - Promotion of ’X’ reverted to be given to reserved category - ’X’ to be considered in open vacancy. - Parties have not challenged application of reservation/roster to the cadre of Head Master by rotation and only contention of Advocate on behalf of LRs. of deceased 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 Head Master in either school may be reserved as per the roster point when vacancy arises. In this case, after cut-off date, first vacancy was filled in at Akola school through open category promoting Shri ’M’. The second vacancy occurred when said Shri ’M’ retired in 1991. As per roster point, the said vacancy ought to have been filled in by promoting Seniormost Assistant Teacher from backward category. The post of Head Master at Akola did not get earmarked for open category for all times to come. The arguments of Advocate therefore, need to be rejected. It is thus apparent that deceased ’V’ could not have been promoted 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 therefore becomes available in open category and it was not reserved as per roster as the first vacancy of ’M’ was open one. Hence, in place of Shri Mural, deceased ’V’ ought to have been promoted as Head Master. Thus, though the order of School Tribunal directing reversion of deceased ’V’ needs to be maintained.

       Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 3(3) and 9(10)(a) and (b) and Government Resolution (Education and Employment Department) dated 17.9.1980 - Promotion to post of Head Master - Scheme of reservation by rotation - Emphasis is on vacancy and not on post. - Where the respondent-Education Society is running two schools one at Akola and the other at Murtizapur, having two posts of Head Master, 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 Head Master 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 1.1.1968 by promoting ’M’. The second vacancy occurred when said ’M’ retired in October, 1991. As per roster point, the said vacancy ought to have been filled in by promoting seniormost Assistant Teacher from backward category. The post of Head Master at Akola did not get earmarked for open category for all times to come. It is thus apparent that deceased ’V’ 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 ’M’ was open one. Hence, on 30.4.1994, in place of ’S’, deceased ’V’ ought to have been promoted as Head Master. Thus, though the order of School Tribunal directing reversion of deceased ’V’ needs to be maintained, ’V’ would get benefit of promotion to the post of Head Master from the date on which said promotion was given to ’S’ i.e. with effect from 1.5.1994. Deceased ’V’ stood retired on superannuation on 30.4.1995. Thus, deceased ’V’ is given benefit of promotion as Head Master from 1.5.1994 till he retired on superannuation on 30.4.1995 with all consequential benefits. ’S’ will stand promoted from 1.11.1991 till his retirement on superannuation on 28.2.1999 with all consequential benefits. Vacancy arising on account of retirement of deceased ’V’ and ’S’ is required to be filled in by applying the roster point as per 50 point roster. Presently respondent No. 3 is working as Head Master from 1.3.1999 who 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.

       Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 3(3), 9(10)(a)(b) - Reservation of vacancies. - Once it is accepted that post had to go to reserved OBC candidate, it to be gone to seniormost OBC teacher and merely because said seniormost teacher not objected to promotion, promotion cannot be denied.

       Government Resolution - Government Resolution (Education and Employment Department) dated 17.9.1980 - See Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rules 3(3) and 9(10)(a) and (b).