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Judgment
Vyas, J.—By the first petition (No. 5274 of 1988) the petitioner, who is also a petitioner in the other writ petition (No. 3665 of 1993), has challenged the appointment of respondent No. 3 (who is also respondent No. 2 in Writ Petition No. 3665 of 1993) to the post of Assistant Headmaster in the Model Multi purpose High School, run and managed by the Saswad Mali Education Society who is the first respondent in both the Writ petitions. The second petitions are being disposed of by this common judgment.
The question which requires to be answered in these Writ petitions is, whether to an isolated post reservation can apply?
Briefly stated, the facts giving rise to both the petitions are as follows :
(a) On 9th June, 1965 the petitioner was appointed as an Assistant Teacher in the said school. On 27th July, 1977 the 3rd respondent was appointed as Assistant Teacher in the said School. In 1981 post of Assistant Head Master came to be created in the first respondent-society as students reached the requisite number. This was done under Schedule-F of Rule 12 of the Maharashtra Employees of private Schools (Conditions of Services) Rule, 1981. These rules are hereinafter referred to as the "said Rules".
(b) In 1981 one Shri R. S. Borate of open category was appointed as Assistant Head Master,. On 30th April, 1987 Shri S. D. Sabade of open category, who was then the Head Master of the first respondent-society retired. On 1st May, 1987 Shri Borate was appointed as Head Master on retirement of Shri Sabade. Thus, in 1987 post of Assistant Head Master fell vacant for second time. The first time was when it was created. On 1st May, 1987 the third respondent was appointed as Assistant Head Master on 30th April, 1987 the said post of Head Master was filed-in on 1st May, 1987 by promoting Shri Borade as Head Master from the post of Assistant Head Master. This was was done is accordance with rules and 50% roster. This was also done in view of the fact that in the year 1981 for the first time the post of Assistant Head Master was created and filled in by appointing Shri S. R. Borade from the open category and second time on the said post falling vacant the third respondent came to be appointed by the society. The third respondent is a scheduled caste candidate. There is no doubt as to the fact that there is only one school run by the first respondent society and the post in question is an isolated post. On 9th September, 1987 respondent No. 3''s appointment was approved by the Education Department. On 8th March, 1988 decision the case of Dr. Chakradhar Paswan was delivered and the said decision was subsequently reported in Chakradhar Paswan Vs. State of Bihar and Ors, . As a result of promotion of the third respondent to the post of Assistant Head Master, the petitioner filed petition No. 52764 of 1888 challenging the same on the ground that in view of the fact that there was only one isolated post, there cannot be reservation permissible in law. Although ad-interim reliefs were asked, they were not granted.
(c) Subsequently, as the position hitherto occupied by Shri Borade as the Head Master was due to become vacant on 30th September. 1993 on account of his retirement and as the petitioner apprehended that the said post was likely to be filed-in by the third respondent the petitioner filed the second petition No. 3665 of 1993 for the relief that the isolated post of the head of the first respondent society cannot be treated as ''reserved'' and the same to be treated as ''open'' and to be filled in by the first respondent society on the basis of Seniority based on the length of service and that the first respondent-society be directed to make appointment on the said post of Head Master of the said school on the basis of Seniority, and for further relief for directing the Education Department to give necessary recognition to the petitioner who is entitled to be appointed.
It was submitted on behalf of the petitioner by Shri Langote, the learned counsel appearing for the petitioner, that it is settled law that in respect of isolated post no reservation can be made. Shri Langote heavily relied on the decision of" Chakradhar Paswan Vs. State of Bihar and Ors, which has categorically laid down that no reservation could be made under Article 16(4) of the Constitution of India so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. It further laid down that if there is only one post in the cadre, there can be no reservation at the initial stage or for filling up a future vacancy in respect of that post and that a reservation which would come under Article 16(4), presupposes the availability of at least more than one post in that cadre. As far as the basic facts of the present matter are concerned, there is no dispute that the petitioner has joined the services of the first respondent society much earlier, almost 12 years before the third respondent in which case it would appear that the petitioner is senior and on the basis of seniority would be entitled to have been promoted to the post of Assistant Head Mistress, in which place the third respondent has been appointed. However, on behalf of the third respond Miss. Ujjwala Shirke strenuously submitted that admittedly the third respondent belonged to Scheduled Caste and as the initial appointment of Mr. Borade to the post of Assistant Head Master was made on the basis of open merit, on his retirement or on his further promotion she was rightly appointed on the said post as belonging to reserved category. It was further submitted on behalf of the third respondent that the said appointment had been approved by the Education Officer.
What was more strenuously submitted before us was the fact that the decision in Dr. Chakradhar Paswan''s case came to be delivered in March, 1988 whereas the third respondent had been promoted as far back as on 1st May, 1987. It was thus submitted that the subsequent decision, in the facts of the present case, would not disturb the promotion of the third respondent to the post of Assistant Head Master which had taken place much before decision in Dr. Paswan''s case. It was further submitted that the seniority list as prepared as on 1st January, 1988 clearly showed (which is at Exhibit-B to the affidavit in rely of the third respondent, who is second respondent in Writ Petition No. 3665 of 1993), that the same was signed by the petitioner and that in view thereof, the petitioner has only tried to take advantage of the subsequent decision of the Supreme Court in Chakradhar Paswan''s case although she had raised no objection to the same. On the other hand, Mr. Langote, on behalf of the petitioner, submitted, and according to us rightly, that the decision of the Supreme Court in Chakradhar Paswan''s case only explained the scope and application of Article 16 (4) and did nothing further. In view of the act the petitioner was, therefore, entitled to have benefit of the sad decision. We agree with Shri Langote and reading the said decision it is clear that the same decision only explains the position under article 16(4) in respect of an isolated post and is binding in respect of the facts of the present case. the Supreme Court, in fact, followed its earlier decisions on the subject and observed as above.
Shri Langote also pointed out that as far as the decision in Chakradhar Paswan''s case is concerned, the benefit thereof could be given in respect of promotions and appointments which have taken place prior to the decision in Chakradhar Paswan''s case (Supra). He relied on the decision of the Supreme Court in the case of "Bhide Girls Education Society v. Education Officer, Zilla Parishad, Nagpur and others" reported in "1993 M. L. J. at page 305" and pointed out that the filling up of vacancy which was the subject matter of the said decision had taken place on 1st October, 1984 and the Writ Petition in question was filed thereafter and the decision of the High Court was delivered on 11th May, 1988 wherefrom the appeal to the Supreme Court in the same matter was preferred. The said decision of the Supreme Court thus set aside the filing up of vacancy which had taken place as far back as on 30th September, 1984. The Supreme Court in the case of "Bhide Girls Education Society v. Education Officer (Supra) had followed the decision in the case of Dr. Chakradhar Paswan (Supra) He also relied on a decision of Nagpur Bench of this Court in case of "Vasant Shivrao Ghuge v. Shioram Shankar Padghan and others" (Writ Petition No. 1389 of 1988) in which also the decision earlier given on 28th September, 1987 was set aside as a result of a decision in Chakradhar Paswan''s case. We have considered these authorities and we have no doubt in our mind that the case before us is a fit case in which although the third respondent had been promoted as Assistant Head Mistress as far back on the 1st May, 1987 the action has to be quashed in the light of the decision of the Supreme Court in Chakradhar Paswan''s case (Supra).
As far as the second submission of the third respondent namely that the petitioner had signed the seniority list and it cannot be heard to complain, is concerned, the facts show that before the seniority list was finalised the third respondent was shown at serial No. 2 which fact was objected to by the teachers including the petitioner, and the management, therefore, in column No. 10 of the seniority list (Exhibit-B to the affidavit in reply in Writ Petition No. 3665 of 1993), by way of correction, showed third respondent''s seniority at "21". Therefore, this submission has no merit.
It was next submitted on behalf of the third respondent that the petitioner not being satisfied by the seniority list should have approached the Education Officer as provided by Rule 12 of the said Rules. Having not done so the present Writ Petition is not maintainable. Shri Langote on the other hand, submitted that this was not a case of dispute inter se falling within Rule 12 (3) of the said Rules. Shri Langote is right in his submission that the dispute related to promotion to an isolated post and could not have been taken before the Education Officer. On behalf of the third respondent reliance was placed on two decisions of thus Court namely decision in the case of "Shobha D/o Nathuji Chahande v. Education Officer, Zilla Parishad, Chandrapur and others" reported in "1990 M. L. J. 1122" and in the case of "Saramma Varghese v. Secretary/President, S. I. C. E. S. Society and Others reported in "1989 M. L. J. 951", in support of her contention. We have no quarrel with the said proposition of law. However, we are satisfied that the dispute before us is not of the nature which could have been referred under Rule 12 (3) to the Education Officer. In view of this, we are rejecting the submissions made on behalf of the third respondent.
Mrs. Shirke next contended that as far as the promotion to the post of Head Master is concerned, the 3rd respondent being senior most is eligible. This argument cannot be accepted inasmuch as that the 3rd respondent''s very promotion to the post of Assistant Head Mistress was not valid for reasons discussed above.
In view of the above, the petitioner succeeds in both the writ petitions. Rule in both the Writ Petitions made absolute. As far as Writ Petition No. 5274 of 1988 is concerned, the petition made absolute in terms of prayer clause (b), except that the benefits to run not from 1st March, 1988 but from 25th October, 1988, which is the date of filling of the petition No. 5274 of 1988 and prayer clause (BB) with no orders as to costs. As far as Writ Petition No. 3665 of 1993 is concerned, the same is made absolute in terms of prayer clauses (b) and (c) with no order as to costs.
As the request of Miss. Ujjwala Shirke the above order is stayed for the period of six weeks on the condition that no appointment will be made on the post of Head master of Model Multi Purpose High School by the first respondent, till then certified copy expedited.