DR. D.Y. Chandrachud, J.

1. Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the Respondents waive service. With the consent of the learned counsel and at their request, the Petition is taken up for hearing and final disposal.

2. Thethree Petitioners before the Court – Shubhada Patil, Sharda Gadhari and Kshama Naik – were appointed as Shikshan Sevaks in the V.N. Sule Guruji English Medium School conducted by the Indian Education Society. The management is the Third Respondent while the School is impleaded through its Headmistress as the Fourth Respondent. The appointments were made during the academic year 200607. The qualifications, dates of appointment and the category to which the Petitioners belong are tabulated herein below for convenience of reference :

Table

3. The Shikshan Sevak scheme was introduced by the State Government by a resolution dated 13th October, 2000 and the Petitioners were appointed under the scheme for a period of three years. In 2007 the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 was amended in order to bring Shikshan Sevaks within the purview of the Act. Under the proviso to sub section (2) of Section 5 as amended, every appointment of a Shikshan Sevak is to be on probation for a period of three years. Under sub section (2A) of Section 5 a Shikshan Sevak, on completion of the probationary period, is deemed to have been appointed and confirmed as a teacher, subject to a satisfactory record of service.

4. The School submitted a proposal to the Education Department for seeking approval to the appointments of the Petitioners. By an order dated 12th April, 2007 the Education Inspector declined to grant approval on the ground that there was a backlog of 15 posts which were reserved for the Scheduled Tribes. The Education Inspector, however, granted his approval for the academic year 200607 by a communication dated 5th June, 2007.

5. At the material time Rule 9(7) of the Rules framed under the Act provided for a reservation of 34% of the total number of posts of teachers for persons belonging to different reserved categories. Rule 9(7) as it stood prior to 8th July 2008 was as follows:

“(7) The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non-teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes, Nomadic Tribes and other Backward Classes as follows, namely :

(a) Scheduled Castes and Scheduled Castes converts to Buddhism. 13%.

(b) Scheduled Tribes including those living outside the specified areas. 7%

(c) Denotified Tribes and Nomadic Tribes. 4%.

(d) Other Backward Classes, 10%.”

However, by a Government Resolution dated 19th June, 1996 the State had provided for a reservation of 52% posts. By a judgment dated 25th February, 2005 in Nishad Sadashiv Pawar v. Dnyanasadhana College (Writ Petition 3680 of 2004) a Division Bench of this Court held that a Government Resolution issued by the State Government which was referable to the exercise of the executive powers of the State under Article 162 of the Constitution could not override subordinate legislation framed pursuant to a delegation of powers by the State legislature under parent legislation. Consequently, a direction was issued to the authorities to strictly follow Rule 9(7) in the matter of recruitment to posts governed by the Act and the Rules. A similar view was reiterated in a judgment dated 15th September, 2005 of the Division Bench in Hira Shivaji Khulche vs. State of Maharashtra (Writ Petition 4747 of 2005 and connected matters).

6. The Petitioners challenged the order of the Education Inspector declining approval before this Court in a Writ Petition under Article 226 of the Constitution on the ground that if the reservation was confined to 34% of the posts as prescribed by Rule 9(7), there would be a sufficient number of posts avail