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before this Court, it is urged that her appointment was not in a post reserved for Scheduled Caste category. The question, which falls for consideration, is whether the appointment of the petitioner on 19-11-1992 was in a permanent vacancy reserved for Scheduled Caste candidate and, therefore, she was required to be appointed on probation in terms of sub-section (2) of Section 5 of the MEPS Act read with Rule 9(8) of the MEPS Rules.

22. In exercise of rule-making power conferred by Section 16 of the MEPS Act, the rules are framed called as "the MEPS Rules", which, however, lay down a separate procedure for appointment of persons belonging to several backward class categories, like SC, ST, DT/NT, OBC and SBC, as are specified under sub-rule (7) of Rule 9 in tune with the constitutional objects wp3428.04.odt of providing reservations under Articles 15 and 16 of the Constitution of India in the matter of employment. Sub-rules (8) and (9)(a) of Rule 9 of the MEPS Rules being relevant, are reproduced below :

"(9)(a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily or an year-to-year basis by a candidate not belonging to the Backward Classes.' Sub-rule (8) of Rule 9, reproduced above, is directed to provide an equal opportunity in the matter of employment, as guaranteed by Articles 14 and 16 of the Constitution of India, to the persons belonging to different backward class categories, for which specific percentage of reservation is stipulated under sub-rule (7) of Rule 9 of the MEPS Rules. If a person belonging to a particular category of backward classes for which the post is wp3428.04.odt reserved becomes available and found suitable, then his appointment cannot be made on a temporary or an year-to-year basis, but it has to be made on probation for a period of two years, as stipulated under sub-section (2) of Section 5 of the MEPS Act.

This point is no longer res integra, in view of the decision of the Apex Court in case of Shakuntala G. Shirbhate v. Industrial Weaving Co-operative Society, reported in AIR 1994 SC 36.

23. It is not the case of the Management that the appointment of the petitioner was not made by following the provisions of sub-rule (8) of Rule 9 of the MEPS Rules. The advertisement was issued in the newspaper showing the reservation for the post of Scheduled Caste category in terms of sub-rule (8) of Rule 9, and the petitioner was selected and appointed to the said post on 19-11-1992. There is no dispute that wp3428.04.odt the petitioner was qualified for appointment to the post, which was filled in the manner prescribed for filling in the permanent vacancy, as contemplated by sub-section (1) of Section 5 of the MEPS Act read with sub-rule (8) of Rule 9 of the MEPS Rules. It is the specific stand of the Education Officer, as reproduced in para 7 above "that the post was reserved for Scheduled Caste and it was obligatory on the part of the respondent No.1 Management to appoint the Scheduled Caste candidate on two year probation period and not for specific period without reason." The appointment of the petitioner on 19-11-1992 has, therefore, to be treated as an appointment on probation in a permanent vacancy.