Judgment:
F.I. Rebello, J.
1. Rule. Heard forthwith by consent of the parties.
2. Petitioners have approached this Court to challenge the appointment of respondent No. 6 to the post of Head Master in respondent No. 5 - school. The schools run by respondent No. 5 are recognised and aided schools. The petitioners as also respondent No. 6 are trained teachers. The petitioners are at Sr. Nos. 2,3,5 & 9 of the seniority list in category 'C' maintained by the school. Respondent No. 6 stands at Sr. No. 11 of the same seniority seniority list. According to petitioners, therefore, respondent No. 6 is junior to them. A vacancy arose in the post of Head Master in 2005 on account of retirement of Shri Kautik Mitharam Mahajan. Respondents instead of following the order of seniority, appointed respondent No. 6 as Head Master vide order dated 13.1.2006 on the basis of the letter given by respondent No. 4 on 29.12.2005. The appointment of respondent No. 6 was approved by the Education Officer by order dated 12.2.2006. Respondent No. 6 was then transferred from the post of Head Master, New English School to Shri Rajaram Dhondu Madhyamik Vidyalaya vide order dated 25.5.2006. Though initially respondent No. 6 was shown as junior pursuant to his appointment to the post of Head Master, he was shown at Sr. No. 2 in the seniority list published on 31.7.2006.
3. According to petitioners, the percentage of reservation to the post of teachers in recognised aided schools is governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, hereinafter referred to as MEPS Rules. Rule 9 Sub-rule (10), has fixed 24% reservation of the total number of posts or vacancies of Heads or Assistant Heads for members of the Scheduled Caste, Scheduled Caste converts to Buddhism, Scheduled Tribes, De-notified Tribes and Nomadic Tribes in terms of the percentages as set out therein. According to petitioners, the rule clearly indicates that there can be no claim of reservation for the post of Head Master when there are only two posts. Respondent No. 5 runs two schools and as such there are only two posts of Head Masters. Considering the percentage of reservation, none of the vacancies could be filled in on the basis of reservation. The issue of reservation under the MEPS Act had come up for consideration before Full Bench of this Court in New English High School Association Nagpur and Anr. v. Baldev Fakira Ade and Anr. : 2007(1)BomCR6 , where the law pertaining to reservation in recognised aided schools has been declared. According to petitioners, based on the Full Bench judgment, respondent No. 1 has issued a circular on 23.10.2007 clarifying that till rules are amended, reservation can not exceed 24% and, therefore, unless there are four posts of Head Master, no reservation could be applied.
4. In terms of the seniority list, one Suresh Rancchod Badgujar being the senior most ought to have challenged the appointment of respondent No. 6 as he has a right to be considered. He has chosen, however, not to challenge the promotion of respondent No. 6. Petitioner No. 1 is next to Suresh Rancchod Badgujar. Similarly, the other petitioners are senior to respondent No. 6. Petitioners waited for Shri Suresh Badgujar to challenge the said order and, therefore, the delay in filing this petition.
5. Reply has been filed on behalf of respondent No. 6. It is contended that as the respondent No. 6 was appointed by order dated 13.1.2006, the judgment of the Full Bench which is dated 14.11.2006 would not be applicable. The petition further is not maintainable on the following grounds. The petitioners have moved the Court with inordinate delay and consequently the petition is also hit by laches. The petitioners, it is submitted, have not exhausted the statutory remedy available under the MEPS Act, 1977 and Rules, 1981. Shri Suresh Rancchod Badgujar, who is a necessary party has not been added as a necessary party and consequently, the petition on the ground of non joinder of necessary party. A joint petition is not maintainable at the behest of petitioners as the cause of action can not be one and the same for all the petitioners. It is then pointed out that one Mr.Dilip Ganpat Badgujar from open category came to be promoted in the year 1982, who was junior to the petitioners. At that time, they have not objected or made any grievance about supersession of their claim. The respondent No. 5 promoted the respondent No. 6 after having sought guidance of respondent No. 4 - Education Officer. The respondent No. 5, pursuant to the circular dated 23.10.2007, had also sought guidance of respondent No. 4. It is not necessary to refer to the other averments. It is then submitted that the Division Bench of this Court in Writ Petition No. 4157/2006 in the case of Jagannath Yeshwant Kumbhar v. State of Maharashtra and Ors. decided on 16.10.2006, had upheld the promotion of Head Master when there were only two posts. The aggrieved party there had filed a special leave petition before the Supreme Court, which came to be dismissed by order dated 5.10.2007. The case of the petitioner is squarely covered by that judgment.
6. The first issue, therefore, we have to consider is whether the petition is hit by laches. We may point out that the Full Bench Judgment of this Court was pronounced on 14.11.2006 by the Nagpur Bench of this Court. The Government thereafter issued the notification on 23.10.2007. In the petition, the petitioners have pointed out that they expected the senior amongst of the Assistant Teachers one Suresh Rancchod Badgujar to challenge the appointment. As he did not choose to challenge the appointment and as petitioner No. 1 is the next senior most and the other petitioners are also senior, they have approached this Court. The petition was filed on 8.2.2008. In our opinion, therefore, it cannot be said that considering the date of the judgment of the Full Bench of this Court, the date of issue of notification by the State Government and the averments by the petitioners that they expected Shri Suresh Rancchod Badgujar to have moved to challenge the appointment of respondent No. 6, that the petition suffers from any laches. That contention, therefore, ought to be rejected.
7. The other preliminary objection raised are that the petitioners have not exhausted the statutory remedy available under the MEPS Act, 1977 and Rules made thereunder. It may be mentioned that the person immediately aggrieved by the act of the management in appointing respondent No. 6 would have been Shri Suresh Rancchod Badgujar. The petitioners would not be persons aggrieved in the context of the provisions of the MEPS Act and Rules atleast till 31.5.2008, the date of retirement of Shri Suresh R. Badgujar and as such could not have maintained the appeal. It is, therefore, not possible to dismiss the petition on the ground that the petitioners have an alternative and efficacious remedy available. The other contentions raised are that Suresh Rancchod Badgujar is not made a party. It is submitted that he is a necessary party and in the absence of the necessary party, the petition ought to be dismissed. We have considered the reliefs as prayed for by the petitioners. The relief sought for is to quash the appointment of respondent No. 6 and thereafter to consider to promote the candidates on the basis of their seniority. In other words, the petitioners themselves are not seeking that they be appointed to the post of Head Master, but that promotion should be based on the order of seniority. The presence, therefore, of Shri Suresh Rancchod Badgujar is not necessary for disposing of the relief sought in the petition. That objection has to be rejected. It is then set out that the joint petition is not maintainable at the best of the petitioners. The petitioners here are all senior to the respondent No. 6. Their contention is that considering the reservation provided for in the rules, which is 24% and as there are only two posts of Head Master, reservation could not have been given effect to. The cause of action is the same. Therefore, there is no mis-joinder of cause of action. The relief prayed for in the petition being based on the same cause of action, the petition as filed is maintainable.
8. We may now deal with the main contention as urged on behalf of the petitioners that considering the Full Bench judgment in New English High School Association (supra), the appointment of the respondent No. 6 is void ab initio. There is no dispute that the respondent No. 6 in the order of seniority of Assistant Teachers is at Sr. No. 11 and the petitioners are senior to him in category 'C' - trained Assistant Teachers. There is also no dispute that in terms of Rule 9(10) of the MEPS Rules, the reservation is to the extent of 24%. We may gainfully refer to the rule as learned Counsel has sought to stress on the language of the rule to submit that the learned Full Bench did not notice that Rule 10(a) uses the expression 'posts or vacancies'. Rules 10(a) and 10(b) read as under:
(10) (a) The Management shall reserve 24 percent 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 and Nomadic Tribes as follows, namely:
(i) Scheduled Castes and Scheduled Castes converts to Buddhism - 13 per cent
(ii) Scheduled Tribes including 7 per cent outside the specified areas
(iii) Denotified Tribes and 4 per cent Nomadic Tribes
(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.
9. Before the Full Bench, there were two questions for consideration - (1) whether the rule of 50% roster will apply to the cases where total number of posts in the cadre are three or less, and (2) what should be the minimum strength of the cadre for the applicability of 50 point roster. The learned Full Bench relied on the judgments of the Supreme Court including in (1) Dr.Chakradhar Paswan v. State of Bihar and Ors. : (1988)IILLJ66SC (2) Prabhash Chand Jain v. State of Haryana and Ors. : (1996)8SCC105 ; (3) R.K. Sabharwal and Ors. v. State of Punjab and Ors. : [1995]2SCR35 as also various other judgments. The learned Full Bench, based on these judgments, held that whereas it is Constitutionally permissible to have reservation upto 50%, what has to be considered is the reservation made by the State. In the instant case, as can be seen, the reservation is 24%. The learned Full Bench then considered the law as to the filling of posts falling vacant and the requirement of applying the percentage of reservation. After having considered judgments cited, the MEPS Act and Rules, the learned Full Bench was pleased to answer the reference as under:
(1) In case the cadre consists of three or less number of posts and the total percentage of reservation is 24%, there cannot be any reservation in such a case and it would be only in case of four posts that one of those will have to be filled in by the reserved category candidate.
(2) The applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The 50 point roster can be made applicable only when the applicability thereof would not result in implementation of reservation policy in excess of the percentage statutorily prescribed for the reserved category candidates. The position of law in appointment to the post of Head of School, therefore, requires no further elaboration.
10. We may now deal with the arguments advanced on behalf of learned Counsel for respondent No. 6 based on Rule 10(a). It is submitted that the Full Bench did not note the distinction between posts and vacancies. In our opinion, the issue as to whether reservation is against posts or vacancies is no longer res integra, having been considered by several judgments of the Supreme Court itself and having been directly answered in the judgment in R.K. Sabharwal (supra). We may gainfully reproduce para 6 of the said judgment: 'The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The -concept of 'vacancy' has no relevance in operating the percentage of reservation.' It will, thus, be clear that what has to be taken into consideration is the post as the expression vacancy' means an unoccupied post or office. Though the rule uses two different expressions, it will have to be read in the said context of the judgment of the Supreme Court in R.K. Sabharwal (supra), which has decided that the reservation is based on the number of posts in a cadre. In our opinion, therefore, it can not be said that the learned Full Bench did not consider this aspect though such a contention rightly appears not to have been raised before the learned Full Bench, considering the law decided by the Supreme Court.
11. Having held that the judgment of the Full Bench will squarely apply, the only other contention, which will have to be dealt with is the submission of the learned Counsel that considering the judgment in Jagannath Y. Kumbhar (supra) against which the special leave petition has been dismissed and as the petitioner's appointment was made during this period, the same should be upheld. We may firstly note that a judgment in the case of Jagannath Y. Kumbhar was delivered on 16.10.2006 whereas the judgment of the Full Bench, as noted earlier, was delivered on 14.11.2006. The learned Division Bench, therefore, had no occasion to consider the effect of the Full Bench judgment. The learned Division Bench referred to some other judgments of the Division Bench of this Court when reference was made to the judgment of the Supreme Court. The Full Bench was constituted in view of the conflict of judgments. It is also true that against this judgment, special leave petition was preferred, which was dismissed. It is now well settled that dismissal of special leave petition is not affirmation of the judgment of the High Court. The doctrine of merger in case of dismissal of SLP also would not apply as was sought to be contended on behalf of learned Counsel for the respondent No. 6. The doctrine of merger, however, if at all is applicable, would be in respect of the judgment in Writ Petition No. 4157/2006 amongst those parties. The law as settled, is that when a law is declared, the declaration is not from the date the law is declared, but the Court declares what the position of law ought to have been from the inception. It, therefore, relates back to the date of the enactment. The power to declare a judgment prospective is a power conferred on the Supreme Court. The law pertaining, therefore, to reservation under the MEPS Act and Rules in this State would be in terms of the judgment in New English High School Association (supra) and as now regulated in the circular issued by the State Government on 23.10.2007. The submission, therefore, on behalf of respondent No. 6 by learned Counsel that the judgment of the Full Bench would not be applicable to the facts of the present case, in our opinion, will have to be rejected. Apart from that, the principle that the policy of reservationis based on posts has long been settled by the Supreme Court as in the case of R.K. Sabharwal (supra).
12. The legal contentions having been answered, the question is as to what relief if at all has to be granted. Once we hold that the appointment of respondent No. 6 was contrary to the law declared by the Supreme Court, which has been restated by this Court in the judgment of its Full Bench, the appointment of respondent No. 6 would be null and void as there could have been no reservation when there are only two posts.
The petition is, therefore, allowed. Rule is made absolute in terms of prayer Clauses (A) & (B) and consequentially in terms of prayer Clause (C). There shall be no order as to costs. We, however, make it clear that as the respondent No. 6 has worked in the post and discharged functions of the post and his appointment was not on account of any fraud practised by him, the respondent - State not to recover any amount paid to the respondent No. 6, both as salary and other benefits during the period he worked as Head Master.
Learned Counsel for the respondent No. 6 sought stay of operation of the judgment. Petitioners oppose the same. In our opinion, considering the judgment of the Constitution Bench in R.K. Sabharwal (supra), prayer, as sought for, is rejected.