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2015 DIGILAW 1257 (BOM)

Arjun Gopa Rathod v. Vasant Shivramji Shinde

2015-06-10

A.S.CHANDURKAR

body2015
Oral Judgment: 1. Since the challenge in both these writ petitions is to the judgment dated 18.06.2014 passed by the School Tribunal, Nagpur, these writ petitions are being decided by common judgment. 2. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 3. While filling the post of Head on a reserved vacancy whether an Assistant Teacher who belongs to a reserved category that is higher in the order of categories as specified in Rule 9(10)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 is entitled to be promoted as per the roster point despite being junior in service to an Assistant Teacher who belongs to another reserved category which is lower in the order of categories mentioned in Rule 9 (10)(a) of the Rules of 1981 is the issue that arises for consideration. 4. The undisputed facts are that the petitioner – management in Writ Petition No.3852/2014 is running three schools. Each school is having the post of Head Master. One post of Head Master was held by a candidate belonging to the Scheduled Caste category. On his retirement said post became vacant. The management by Resolution dated 16.11.2012 promoted the petitioner in Writ Petition No.3849/2014 who belongs to Vimukta Jati (A) category to the post of Head Master. The respondent No.1 in said writ petition who belongs to the Nomadic Tribes (B) category challenged aforesaid order of promotion on the ground that he was senior in service than the petitioner and hence, he ought to have been promoted prior to the petitioner. In the appeal preferred by the respondent No.1, the School Tribunal held that said respondent No.1 was entitled to be promoted on the basis of his seniority. Hence, said appeal came to be allowed by judgment dated 18.06.2014. The same is impugned by the management as well as the Assistant Teacher whose promotion has been set aside. 5. Shri Gaurav Belsare, the learned counsel appearing for the petitioner in Writ Petition No.3849/2014 and Shri P.P. Thakare, the learned counsel appearing for the petitioner in Writ Petition No.3852/2014 submitted that the School Tribunal erred in setting aside the order of promotion issued by the management. 5. Shri Gaurav Belsare, the learned counsel appearing for the petitioner in Writ Petition No.3849/2014 and Shri P.P. Thakare, the learned counsel appearing for the petitioner in Writ Petition No.3852/2014 submitted that the School Tribunal erred in setting aside the order of promotion issued by the management. According to them, in terms of provisions of Rule 9 (10)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (for short the said Rules of 1981), the Assistant Teacher who was duly promoted belonged to Vimukta Jati (A) category as said category was at Sr. No. (iii) in the order of categories while the appellant before the School Tribunal belonged to Nomadic Tribes (B) which category was at Sr. No. (iv). It was therefore, submitted that in terms of the order mentioned in Rule 9(10)(a), a candidate belonging to the Denotified Tribes had been rightly promoted and the issue of seniority was not at all relevant. It was submitted that this specific stand had been taken before the School Tribunal in the pleadings but the same was not considered by the learned Presiding Officer. It was therefore, submitted that impugned judgment deserves to be set aside by restoring the order of promotion. 6. Shri R.L. Alone, the learned counsel appearing for the appellant before the School Tribunal supported the impugned judgment. It was submitted that the appellant before the School Tribunal being senior in service he was entitled to promotion. It was submitted that the said appellant was entitled to be promoted in view of Circulars dated 05.11.2009 and 18.10.1997. On the contrary, Circular dated 27.10.2008 had been set aside by this Court in Writ Petition No.3077/2011 and hence, the promotion granted to the petitioner in Writ Petition No.3849/2014 was contrary to law. He thus submitted that seniority was the only relevant criteria and the School Tribunal was justified in setting aside the order of promotion. 7. Shri M.A. Kadu, the learned AGP appearing for respondent No.3 – Education Officer (Sec.), Zilla Parishad, Bhandara relied upon the reply affidavit and submitted that the management had rightly promoted the petitioner in Writ Petition No.3849/2014 in terms of Rule 9(10) of the Rules of 1981. 8. I have carefully considered the respective submissions and I have gone through the documents filed on record. 8. I have carefully considered the respective submissions and I have gone through the documents filed on record. The provisions of Rule 9 (10)(a) and (b) being relevant the same are reproduced herein below: Rule: 9(10)(a): The Management shall reserve 33 per cent of the total number of posts (or vacancies) of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes Denotified Tribes (Vimukta Jatis), Nomadic Tribes and Special Backward Category as follows, namely:- (i) Scheduled Castes and Scheduled Castes converts to Buddhism 13 per cent (ii) Scheduled Tribes including those living outside the specified areas. 07 per cent (iii) Denotified Tribes (A) 03 per cent (iv) Nomadic Tribes (B) 2.5 per cent (v) Nomadic Tribes (C) 3.5 per cent (vi) Nomadic Tribes (D) 02 per cent (vii) Special Backward Category 02 per cent 33 per cent Rule: 9(10)(b): In case it is not possible to fill in the post of a Head or Assistant Head for which a vacancy is reserved for a person belonging to the Castes and Tribes specified in clause (a), the post may be filled in by promoting a candidate from the other remaining categories in the order specified in clause (a), so however that the percentage of filling up such vacancies does not exceed the limit laid down for each such category. If candidates belonging to any of these categories are not available, then the vacancy or vacancies (i) of the Head may be filled in by promoting any other teacher on the basis of seniority-cum-merit after obtaining previous approval of the Education Officer: (ii) of the Assistant Head shall be kept unfilled for a period of three years; unless such vacancy or vacancies could be filled in by promotion of any teachers belonging to such castes or Tribes becoming available during that period. It is relevant to note here that in clause (b) it has been mentioned that if it is not possible to fill in the post of a Head for which the vacancy is reserved then the post may be filled by promoting a candidate from the other remaining categories in the order specified in clause (a) of Rule 9(10) of the Rules of 1981. 9. A plain reading of Rule 9(10) indicates that various categories have been mentioned on the basis of which the post of Head have been reserved. 9. A plain reading of Rule 9(10) indicates that various categories have been mentioned on the basis of which the post of Head have been reserved. The order in which said categories are mentioned assumes importance and it has been expressly stated in clause (b) of Rule 9(10) that when a person from a particular reserved category is not available, the post has to be filled by promoting a candidate from the other remaining categories in the order specified in clause (a) of Rule 9(10) of the Rules of 1981. It is, therefore, clear that in terms of said provision the petitioner in Writ Petition No.3849/2014 belonged to a Denotified Tribe which is placed at Sr. No.(iii) while the appellant before the School Tribunal belonged to Nomadic Tribes (B) which is placed at Sr. No.(iv). Though the appellant was senior in service, said fact was not relevant while operating the provisions of Rule 9(10) of the Rules of 1981. The post of Head was to be filled as per the roster and as a candidate from the Denotified Tribes was available, though he was junior in service to the candidate who belonged to Nomadic Tribes, on the basis of the order of the respective categories he was entitled to be duly promoted. The management by passing a resolution in that regard had duly followed the provisions of Rule 9(10) of the Rules of 1981. 10. The School Tribunal in the impugned judgment failed to consider the provisions of Rule 9(10) of the Rules, 1981. Instead it misdirected itself by giving undue importance to the aspect of seniority. The aspect of seniority would be relevant in case of there being more than one person belonging to the same reserved category being available and the post of Head was required to be filled from said category. In the present case, the petitioner belonged to a Denotified Tribe which was at Sr. No.(iii), while the appellant before the School Tribunal belonged to the Nomadic Tribes which was at Sr. No.(iv). Hence, judgment of the School Tribunal setting aside the order of promotion made in accordance with provisions of Rule 9(10) of the Rules of 1981 cannot be sustained. 11. No.(iii), while the appellant before the School Tribunal belonged to the Nomadic Tribes which was at Sr. No.(iv). Hence, judgment of the School Tribunal setting aside the order of promotion made in accordance with provisions of Rule 9(10) of the Rules of 1981 cannot be sustained. 11. Though the learned counsel for parties referred to various Government Circulars to justify their respective stands, it is not necessary to advert to the same as the provisions of Rule 9 (10) of the Rules of 1981 clearly answer the issue that is raised. Accordingly, it is held that while filling the post of Head on a reserved vacancy an Assistant Teacher who belongs to a reserved category that is higher in the order of categories as specified in Rule 9(10)(a) of the Rules of 1981 is entitled to be promoted as per the roster point despite being junior in service to an Assistant Teacher who belongs to another reserved category which is lower in the order of categories mentioned in Rule 9(10)(a) of the Rules of 1981. 12. Hence, the following order is passed: [i] The judgment dated 18.06.2014 passed by the School Tribunal, Nagpur in Appeal No.STN-112/2012 is quashed and set aside. [ii] The order of promotion dated 28.11.2012 stands restored. [iii] The writ petitions are allowed in aforesaid terms but with no order as to costs.