Dismissed

Sanjay Ramchandra Kamble v. the State of Mah and Ors.

Bombay HC21 Apr 2014WP/939/2013

Case brief

AI extract

What is this about?

Writ Petition challenging advertisement for Principal post and seeking direction for reservation. Court rejected prayers, holding no statutory basis for reservation in Principal posts and ruling that judiciary cannot direct the State to frame such reservation policy, citing Indra Sawhney and Vidya Prasarak judgments.

What did the court decide?

Prayer to quash advertisement and direct adoption of reservation policy dismissed.

Sanjay Ramchandra Kamble Vs the State of Mah… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 939 OF 2013

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Sanjay Ramchandra Kamble, Age: 45 years, Occ: Service, R/o. Kalam, Taluka Kalam,

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Dist. Osmanabad. ...PETITIONER

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VERSUS

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The State of Maharashtra, Through its Secretary, Department of Higher & Technical Education, Mantralaya, Mumbai and others. ...RESPONDENTS

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... Mr. S.S. Jadhavar, Advocate for petitioner. Mrs. M.A. Deshpande, A.G.P. for respondent/State.

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CORAM: S.S. SHINDE, &

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V.K. JADHAV, JJ.

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DATE: 21st APRIL, 2014

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PER COURT :

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. This petition is filed with following main prayers.

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"(B) By issuing writ of certiorari or any other appropriate writ, order or direction in the nature of writ, advertisement issued by respondent No.3 in daily 'Sakal' dated 16.11.2012, inviting applications from the candidates qualified for the post of Principal, Yogeshwari Mahavidyala, Ambajogai, may kindly be quashed and set aside;

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(C) By issuing writ of mandamus or any other appropriate writ, order or direction in the nature of writ, respondents may kindly be directed to adopt policy of 52% reservation in the appointment on the post of Principal of the colleges of equal cadres."

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Learned Counsel appearing for the petitioner submits that, in view of roster, vacancy of the Principal of respondent No. 3 college ought to have been reserved for S.C. category, however, said vacancy kept open. He further submits that, this Court may direct the respondents to adopt policy of 52% reservation in the appointment on the post of Principal of colleges of equal cadre.

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We have considered the submissions of the

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learned Counsel appearing for the petitioner and also

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pleadings in the petition, annexures thereto. So far prayer clause (B) is concerned, the petitioner has not shown any provision wherein the post of Principal of respondent No.3

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college is required to be filled in from S.C. category. So far

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prayer clause (C) is concerned, this Court cannot direct the Legislatures/Executives to frame rules or relevant provisions to fill in post of Principal from reserved category thereby directing the respondents to adopt policy of 52% reservation. The said function is not within the domain of the judiciary and therefore, no such relief can be granted by this Court.

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The contention of the petitioner that, post of Principal in respondent No. 3 college should be reserved for the candidate from reserved category, deserves no consideration in view of

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the judgment of the Supreme Court in the case of Indra

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Sawhney vs. Union of India 1 and also by this Court in the

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case of Vidya Prasarak Mandal vs. University of Mumai 2,

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SSB Education Society vs. State 3 and also in unreported

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judgment in the case of Marathwada Sarvoday Shikshan

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Prasarak Mandal, Partur vs. The State of Maharashtra

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and others in Writ Petition Nos. 7333 of 2013 and 7882 of 2013 decided on 25/03/2014. This Court while deciding Writ Petition No.7333 of 2013 relying upon the judgment of this

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Court in the case of Vidya Prasarak Mandal vs. University

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of Mumai (supra) held in paragraphs-8 and 9 thus:

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Mandal (supra), the petitioner therein, is a public trust registered under the Bombay Public Trust Act. The said trust runs Arts, Commerce and Science Colleges affiliated to Pune University. The College was bifurcated in the year 1976 into two independent colleges and both colleges were affiliated to Bombay University because territory jurisdiction of the

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1 AIR 1993, SC 477

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2 2008(5) Mh.L.J.477

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3 2011(6), Mh.L.J. 259

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Bombay University was extended to Thane. The petitioner-institution therein, was running three more colleges. The petitioner therein, was running in all five faculties which are managed independently, administratively and financially and they are separate and distinct entities. On superannuation of the Principal of one college, the petitioner therein, submitted proposal for appointment of Principal to the Bombay University. The Bombay University informed the Chairman of the petitioner therein, that, the post of Principal has been identified as a post reserved for backward class and that, the petitioner should take steps to make appointment of Principal on regular basis obviously from reserved category.

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After considering the facts involved in the said case and appreciating the contentions of the parties, this Court in paragraphs-4 and 5 held thus:

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" 4. So far as the circular

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dated 15.3.1999 issued by the Director of Education

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is concerned, firstly we have not been pointed out

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any authority-conferred on the Director of Education by any law authorizing him to issue such circular. In our opinion, this being a matter of policy either such decision could have been taken by an authority which is authorised by Law to take such a decision or such a decision can be taken by the State Government itself. We have not been pointed out any decision taken up by the State Government in relation to the reservation in the post of Principal of affiliated colleges. In our view, the circular dated 15.3.1999 is clearly without any authority of law. Really speaking the decision of the University to reserve the post of Principal of Arts and Commerce College of the petitioner which is clearly based on the circular dated 15.3.1999 is liable to be set aside only for this reason that the Circular dated 15.3.1999 is without any authority of law.

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It is further pertinent to be noted that we not only find that there is no authority or statutory provision providing for reservation in the post of

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Principal but we also find that the observations made by the Supreme Court in its judgment in the case of

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“Indra Sawhney Vs. Union of India, AIR 1993 Supreme Court 477” go to show that there cannot be any reservation in the post of Principal. Specially the observations found in paragraph 112 which is a judgment delivered by Hon'ble Mr. Justice B.P.Jeevan

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Reddy which is a majority view, in our opinion, are

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pertinent, they read as under:-

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“112. While on Art.335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/ departments/ institutions, in specialties and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in

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the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.

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As a matter of fact, the impugned Memorandum

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dated 13th August,1990 applies the rule of reservation to “civil posts and services under the Government of India” only, which means that defence forces are excluded from the operation of the rule of reservation though it may yet apply to civil posts in defence services. Be that as it may we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: (1) Defence Services including all technical therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishment engaged in production of defence equipment. (3) Teaching posts of Professors – and above, if any. (4) Posts in super-specialties in Medicine, engineering and other scientific and technical subjects.

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(5) Posts of Pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of the impugned Office Memorandum dated 13th August,1990, cannot be stayed or withheld.

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We may point out that the services/posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with “efficiency of administration” contemplated by Art.335.”

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The Supreme Court has, thus, stated that application of the rule of reservation in relation to certain services and certain posts is not advisable. One of the posts indicated by the Supreme Court is the post of Principal which is above the post of professor. As we find that there is no valid statutory provision providing for reservation in the post of Principal, it is not necessary for us to consider

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whether for the purpose of reservation of the post of Principal, the post of Principal in different colleges run by the same institution could have been clubbed together. We find that the University was not at all justified in directing the petitioner to fill in the post of Principal of the Arts and Commerce college by reserving it for backward class."

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Therefore, in view of the various judgments

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referred hereinabove, there cannot be reservation for the post of Principal of College. In that view of the matter, the writ

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petition sans merit, hence rejected.

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[ V.K. JADHAV, J.] [ S.S. SHINDE, J.]

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Tupe/

Sanjay Ramchandra Kamble v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Sanjay Ramchandra Kamble v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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