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13. The learned counsel for the petitioner relied on a judgment of this Court in Priyadarshini Education Trust and others v. Ratis (Rafia) Bano d/o Abdul Rasheed and others [2007(6) Mh.L.J. 667], which resolves most of the issues and in which this Court held as under :

"Para 12 : ...In view of the provisions as contained in section 5 of the MEPS Act and Rule 9 of MEPS Rules read with Articles 14 and 16 of the Constitution and the observations of the Hon'ble Apex Court in the reported judgment which guide us, we draw following conclusions;

14. In my humble opinion, "eligible" is not to be restricted to eligibility as regards academic qualification but eligibility in all senses -

including belonging to a category/caste for which the vacancy was reserved. The question whether the petitioner in this case at hand was so eligible would be shortly dealt with while considering arguments based on Rule 9 of the MEPS Rules.

15.1 The learned counsel for the petitioner relied on a judgment of this Court in Hindi Vidya Bhavan, Mumbai and others v.

37. The learned counsel for the respondent further submitted that Rule 9(a) of Rule 9 of the MEPS Rules, which is only an enabling provision, does not confer right on a person not belonging to a category for which the post is reserved for being appointed to such a post. He submitted that this provision, which was meant to ensure that the posts are filled up, if allowed to be abused by permitting appointments of candidates belonging to the category other than that for which the post is reserved, would result in breaking down the entire scheme of reservation. He pointed out that different percentage of posts are reserved for different categories and it is not that all the reserved posts could be filled up by candidates belonging to any of the reserved categories. An an illustration, he submitted that even Nomadic Tribes could not be considered as one class. The State has prescribed reservations of 2.5% for Nomadic Tribe Category B; 3% for Category C; and 3% for Category D. This, according to the learned counsel, was meant to ensure that even amongst the Nomadic Tribes, there is no imbalance and one caste or community does not eat up the entire quota meant for Nomadic Tribes as a whole. He submitted that if a person belonging, to say OBC, was allowed to be appointed on a post meant for Scheduled Caste, merely because a candidate from Scheduled Caste was said to have been not available, it would result in encroachment on the posts meant for Scheduled Caste. Therefore, according to him, first, in face of Division Bench judgment in Gajanan Uddhaorao Garole v. State of Maharashtra and others, reported at 2009(1) Mh.L.J. 300, and secondly, also on account of the observations of the Division Bench in Priyadarshini Education Trust and others v. Ratis (Rafia) Bano d.o Abdul Rasheed and others, reported at 2007(6) Mh.L.J. 667, discussed earlier, such appointments can be only temporary and not permanent.

But before going to the judgments, relevant part of Rule 9 of the MEPS Rules may be reproduced for ready reference as under :

Rule 9 of the MEPS Rules :

"Appointment of staff - (1) The teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein.

(2) ...