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S.M. Modak, J.
1. The issue involved in this petition is whether the directions given in a Government Resolution prevail over the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short ‘MEPS Rules’). It pertains to the issue of appointment on the post of Headmaster in a private school. On one hand, we have got the provisions of sub-rule 10 of Rule 9 of MEPS Rules which prescribe 33% reservation from total number of posts of the Heads and Assistant Heads. Whereas on the other hand, we have Government Circulars dated 26th September 2017 and Government Resolution dated 29th May 2017. The Government Resolution dated 29th May 2017 prescribes the procedure for filling up the posts of Headmaster by considering the roster position whereas, in the Government Circular dated 29th July 2017 there are directions to verify the roster and then make the appointment of Headmaster and Assistant Headmaster.
2. This issue cropped up when Petitioner No.2 – Society had appointed Petitioner No.1 to the post of Headmaster vide order dated 29th May 2018 with effect from 1st June 2018. The existing Headmaster was due to retire on account of superannuation on 31st May 2018. Petitioner No.2 submitted the proposal for approval to Respondent No.2-Education Officer, Raigad vide its letter dated 20th June 2018.
3. The Education officer (Secondary) passed the order dated 13th August 2018 and refused to give approval to the proposal of Petitioner No.1 mainly because of roster point and on account of not submitting documents by Petitioner No.2-Society. There is a challenge to this order by both the Petitioners.
4. We have heard Mr. Vinayak Kumbhar, the learned counsel appearing for the Petitioner and Mr. Walimbe, the learned AGP appearing for the State.
5. Our attention is invited to the relevant correspondence and the contents of the affidavit-in-reply. The learned AGP has supported the decision and placed reliance on various Government Resolutions and Government Circulars. We have also gone through the rejoinder affidavit.
6. The learned Advocate for the Petitioner relied upon the observations in the case of Smt. Swati Ravindra Walawalkar v/s. The State of Maharashtra and others in WP No.10841/2017 decided on 14th February 2018 (A.K. Menon, J). For ready reference sub-rule (10) of Rule-9 of the said Rules is quoted:
“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 Schedule Castes converts
to Buddhism
| 13 per cent.
| (ii)
| Scheduled Tribes including those living outside
the specified areas
| 07 per cent.
| (iii)
| Denotified Tribes (A)
| 3 per cent.
| (iv)
| Nomadic Tribes (B)
| 2.5 per cent.
| (v)
| Nomadic Tribes( C)
| 3.5 per cent.
| (vi)
| Nomadic Tribes (D)
| 0.2 per cent.
| (vii)
| Special Backward Categories
| 0.2 per cent.
| | | 33 per cent.
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7. How the reservation has to be bifurcated amongst the various castes and tribes is prescribed therein. In total there has to be reservations for 33%. Roughly it comes to 1/3rd of the total posts. In the case before us there were two posts of Headmaster. It is undisputed fact. According to learned AGP one post should be reserved for SC, ST, VJ,NT and SBC by rotation. If it is accepted then one post will be unreserved. It means there will be 50% reservation which is more than 33%. It is a settled law that we are bound by the MEPS Rules which were framed as per the delegated powers of the State Government as per Section-16 of the MEPS Act.
8. It is a settled law that the executive cannot issue any directions which are not in consonance with the statutory rules. Ultimately, the statutory rules will prevail over the executive instructions. Verification of the roster is required in order to ascertain the position in respect of reservation. It is for the purpose of ascertaining to which category that post is reserved by considering the roster point. But once we have concluded that when there are two posts of Headmaster, reservation will not be applicable, then there is no necessity to verify the roster for ascertaining the reservation. Hence, the decision taken by the Education Officer cannot be sustained in the eyes of law. The Petition needs to be allowed. Hence, the order.
ORDER
(i) The Writ Petition is allowed.
(ii) The order dated 13th August 2018 passed by Respondent No.2 thereby refusing approval to the name of the Petitioner No.1 for the post of Headmaster is set aside.
(iii) Respondent No.2 is directed to grant approval to the name of Petitioner No.1 to the post of Headmaster in the school from 1st June 2018 within six weeks from the date of the communication of the order.
(iv) The Petitioner is entitled to all consequential reliefs.
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