R.M. Savant, J.@mdashRule. Rule with the consent of the parties made returnable forthwith and heard. The above petition filed under Article 226 of Constitution of India raises an issue as regards promotion to the post of Headmaster in the school run by respondent institution. The petitioner seeks to challenge the order dated 14-2-2005 passed by the Education Officer Zilla Parishad, Jalgaon rejecting the approval to the petitioner''s appointment on the grounds mentioned in the said letter. The said letter is sought to be challenged on grounds which we would advert to later on in this order.
2. Brief facts giving rise to the filing of the above petition are:- The petitioner was appointed as Assistant Teacher sometime in the year 1980 in one of the Schools run by the respondent No. 2 institution. The petitioner rendered service as Assistant Teacher between 1980-2004. On 1-2-2004 the petitioner was promoted to the post of Deputy Headmaster at Sharda Madhyamik Vidyalaya Kalamsare. The said appointment was approved by the respondent No. 3 Education Officer vide his order dated 16-8-2004 with retrospective effect from 1-2-2004. At this stage it would be relevant to note that the respondent No. 2 institution runs two schools one at Kinod and one at Kalamsare. On account of superannuation of the Headmaster on 31-1-2005 of the school at Kalamsare Shri G. R. Choudhari, the petitioner was promoted to the said post of Headmaster and there was inter se transfer between the Headmaster in the Kalamsare school and the petitioner. The petitioner was promoted and transferred to Kinod and the Headmaster at Kinod was transferred to Kalamsare vide resolution No. 4 dated 25-1-2005 of the respondent No. 2. The petitioner joined the duties of Headmaster at Kinod on 1-2-2005. Thereafter the respondent No. 2 submitted the proposal of the petitioner for approval to his appointment and promotion as Headmaster. In the interregnum the respondent No. 2 granted interim approval to the petitioner to work as in-charge Headmaster for the academic year 2005-2006. On consideration of the said proposal dated 5-2-2005 of the respondent No. 2 for grant of approval to the petitioner''s appointment/promotion the respondent No. 3 vide it''s letter dated 14-2-2005 rejected the said proposal of the petitioner on three grounds namely (i) There was a backlog for Scheduled Caste in the post of Headmaster (ii) The appointment is not as per roster and (iii) The appointment should be made as per roster. It is this order which is impugned in the above petition.
3. On behalf of the respondent Nos. 1 and 3 an affidavit has been filed by one Shivaji Deoram Patil working as Deputy Education Officer, Zilla Parishad, Jalgaon. In the said affidavit it has been stated that as per Government Resolution dated 18-10-1997 and the Government resolution issued by the School Education Department dated 29-5-1988 roster point has been prescribed for promotion to the post of Headmaster and the same has to be given effect to from the date of the Government Resolution. It has been further stated that the School Education Department vide circular dated 21-4-2004 has also issued clarification that when there are two or more posts of Headmaster in the institution, the same are to be filled as per the roster point. The affidavit further goes on to state that on verification being carried out by the Divisional Commissioner, Nasik Region, Nasik it was found that there was backlog of Scheduled Caste category in the post of Headmaster in the schools run by the said institution and that the said institution was called upon from time to time to fill up the said backlog. The affidavit further states that the first roster point was meant for the Scheduled Caste category and therefore since the petitioner does not belong to the said Scheduled Caste category the proposal submitted by the management vide it''s letter dated 5-2-2005 came to be rejected.
4. On behalf of the petitioner the learned Advocate Shri B. R. Warma raised two contentions. It is the contention of Shri Warma that said post of Headmaster was to be filled in accordance with Rules 3(1)(b) and 3(1)(3) of the M.E.P.S. (Conditions of Service) Rules, 1981 and as per Rule 9(10) of the said Rules 24% reservation is prescribed for promotional post. Basing his argument on the said rules it is the contention of Shri Warma that since the petitioner is admittedly the seniormost teacher he was entitled to be promoted to the said post of Headmaster as per Rule 3(1)(3) of the said Rules.
5. It was further contended by Shri Warma that as per Rule 9(10) of the said Rules 24% reservation is prescribed for promotional post and since the school has two posts of Headmaster if one of the post is filled by reservation it would mean 50% reservation which would exceed 24% reservation as mentioned in Rule 9(10) of the said Rules. The second contention of Shri Warma is that the said Resolutions (supra) issued by the Department of the State Government are executive instructions and therefore they cannot take place of the aforesaid statutory rules. Therefore promotion if any effected on the basis of the said circulars would be illegal.
6. The learned Advocate for the petitioner relied upon the Division Bench judgment of this Court reported in the matter of Somsingh Chandrasingh Thakur v. Head Master, Captain R.M. Oak School and Ors. Learned Advocate relied upon paragraph 10 of the said judgment, which is reproduced hereinbelow for convenience sake:
10. That apart, the appellant was appointed as a Head Master on 21st November, 1992. The English Medium School was started much later in 1995. Thus, at the relevant time, the school management was running only one school and as held by the Apex Court in Dr. Chakradhar Paswan (supra), a reservation could not be lawfully made to an isolated post. This position has been reiterated by a Constitution Bench of the Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association 1998 (2) Mh.L.J. 353. Mr. Apte has alternatively submitted that assuming that the subsequent setting up of the English Medium School is to be considered and one post out of the two posts of Head Masters is to be given to the appellant, it would mean 50% reservation which is not permissible. He pointed out that under Rule 9(10) of the MEPS Rules permissible reservation is only 24% and therefore only one out of 4 such posts can be subjected to reservation. The submissions of the respondents are well founded. It is therefore not possible to accept the submission of the appellant to treat this post as subject to reservation.
The learned Advocate further relied upon the judgments reported in 2001 DGLS 609 in the matter of Rajender Singh v. State of Punjab and judgment reported in (2005) 9 SCC 323 in the matter of Mangat Ram v. State of Punjab and Ors.
7. On behalf of the Education Officer i.e. respondent No. 3 the learned AGP submitted that promotions are to be effected on the basis of the Rules and the Resolutions issued from time to time. It was further submitted by the learned AGP that the said Resolutions are in aid to achieving the reservation prescribed under the said rules. The learned AGP further contended that the said Resolutions do not supplant the said rules but supplement them as they are only an aid in achieving the constitutional reservation.
8. We have heard the learned Counsel for the parties at length. What stares us in the face is the question that since one post of Headmaster is already occupied by a candidate belonging to the open category, therefore whether the second post in a school run by the same institution can go to a reserved candidate? To answer the said question the relevant rules cited supra and the said Government Resolutions would have to be seen. Rule 9(10) of the MEPS Rules mandates the reservation of 24 percent of the total number of posts of Heads and Assistant Heads for the member of the S. C, S. C. converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes as per the percentage mentioned in the said Rule for each category. By Resolution dated 18th October, 1997 which has been issued pursuant to the judgment of the Apex Court in the case of R.K. Sabharwal v. State of Punjab the State Government has directed that reservation is applicable to posts and not vacancies. The said Resolution further lays down in Clause (1) thereof that the roster point should be operated till the percentage of reservation for a particular category is exhausted. The Resolutions dated 29-5-1998 is of a clarificatory nature and in furtherance of the Resolution dated 18-10-1997. The Circular dated 21-4-2004 issued by the School Education Department specially deals with the issue of reservation if two posts are involved. It has been specially directed by the said Circular that if two posts are involved then the posts should be filled as per roster point mentioned in Resolution dated 18-10-1998. A reading of the said Rule and the Resolution leads to an irresistible conclusion that petitioner''s arguments are not tenable. What the petitioner is losing sight is of the fact that since there are two posts of Headmaster in the said institution one post obviously has to go to the reserved category. The computation of reservation as has been laid down by the Hon''ble Supreme Court of India has to be seen both vertically and horizontally. The submission of Shri Warma therefore that if one post of Headmaster is filled by promotion would amount to 50% reservation is therefore fallacious. It is well settled that reservation applies to posts and not vacancies. The outer limit of reservation as per Rule 9(10) would therefore apply to the posts in the institution. The Resolutions issued by the State Government are in furtherance of the policy of the State Government of reservation and the constitutional mandate. The said circulars are therefore only an aid in effecting the policy of the reservation as contained in the said rules. The said circulars therefore cannot be said to supplant the said rules but can only be said to be an aid to effectuate the said policy of reservation.
9. As can be seen from the affidavit of the Education Officer, verification was done and the Divisional Commissioner has come to a conclusion that there was a backlog of Scheduled Caste category in the post of Headmaster in the said institution.
10. The reliance of Shri Warma on the judgment of the Division Bench of this Court in the matter of Somsingh Thakur v. Head Master (supra) is also misplaced. The observations made by the Division Bench in paragraph 10 of the judgment have to be read in the context of the facts in that case. Though there were two schools run by the management in the said case one of the school was started in the year 1995 much after the petitioner in that case came to be promoted in the year 1984. The Division Bench therefore accepted the contention of the respondents that on the day when the petitioner in the said petition came to be promoted there was only one school and one post of Headmaster. Relevant facts are reproduced in paragraph 10 itself. After observing that the said post of Headmaster could not go by roster the Division Bench went to uphold the appointment of the petitioner in that case as Headmaster purely on the ground of the long lapse of time between his appointment and challenge to the said appointment. After citing various judgments on the issue of belated challenge to an appointment the Division Bench recorded a finding in paragraph 23 of the said judgment as follows:
23. In the present case, as pointed out above, we are not saying for a moment that the concerned post could go by the roster. We however cannot ignore the fact that the appellant was promoted as an Assistant Head Master way back in the year 1984 and nobody protested against the same. In view of that promotion, he was on a position higher than that of respondent No. 4 who is otherwise the seniormost teacher. He occupied that post until October/November, 1992, i.e. over eight years when he became Head Master. Mr. Apte submitted that the appellant is taking advantage of his posting after the interim order. The submission is not correct. The appellant was to be appointed only if he was entitled as per the rules as recorded in the minutes. It cannot be said that he was appointed on the post of Head Master on the strength of the interim order passed in the earlier writ petition filed by Smt. Duraphe. The interim order did not mandate that the appellant should be appointed as the Head Master. The 2nd respondent Management did not oppose his posting as Head Master nor did anybody nor the Education Officer. We do not find anything on record to indicate that anybody or for that matter respondent No. 4 objected except the bald assertion of the 2nd respondent Management in its written statement to the School Tribunal that the respondent No. 4 had objected to the appellant''s elevation as Head Master and which was not supported by any document whatsoever. There is nothing to indicate that the appellant did not discharge his duties as Head Master satisfactorily where he worked over 10 and half years. He was being demoted to the post of Assistant Teacher after working in higher posts over 18 years. The School Management appointed the appellant as the Head Master on an isolated post in the year 1992 in spite of the judgment in Chakradhar Paswan rendered in 1988. If it decided to implement it, the same had to be done prospectively. The management was undoubtedly in error in reducing him from the post of Head Master to that of Assistant Teacher in 2003 after allowing him to work for over 18 years as Assistant Head Master and Head Master. The School Tribunal has ignored this fact of delayed action on the part of the Management. In view of the observations of the Apex Court in Mudhol''s case (supra), in our view, it was improper and unjustified to disturb the appellant from the post of Head Master which he was occupying for such a long time. The learned Single Judge has also committed an error of law in ignoring this aspect.
We are therefore of the view that the judgment of the Division Bench (supra) is not of any assistance to the petitioner.
11. The learned Advocate for the petitioner also relied upon the judgment in the case of Rajender Singh (supra). There can be no quarrel with the proposition that executive instructions cannot supplant the statutory rules and can only supplement them. However in the instant case as observed above the State Government circulars can only be an aid in implementation of Rule 9(10) of the said Rules providing for reservation. The said judgment therefore is also of no assistance to the petitioner. Reliance of the petitioner on the judgment in the case of Mangat Ram (supra) is also misplaced and in fact the said judgment nullifies the case of the petitioner inasmuch as by the said judgment it has been held by the Apex Court that the reservation has to be worked out in relation to the post and not vacancies.
12. In view of the foregoing we have no hesitation in coming to the conclusion that the petitioner''s challenge to the said letter dated 4-2-2005 is thoroughly misconceived and untenable. We therefore hold that the second post of Headmaster in the school run by the respondent No. 2 institution has to be filled by a reserved candidate as per roster. We therefore dismiss the petition and discharge the rule with no order as to costs.
