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11. Learned Counsel Shri Deshpande alternatively states that even otherwise, in view of Sub-rule (10)(a) of Rule 9 of the MEPS Rules, Management can reserve 24 per cent of the total number of posts (or vacancies) of Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes and manner of reservation is provided in the said provision. It is contended that even if it is assumed for the sake of argument that the post of Head Mistress in the Girls' School can be clubbed with the posts of Head in other two Schools in the instant case, the reservation of the post of Head in the Girls' School for Scheduled Caste candidate whether by applying roster or otherwise, would amount to 33% of reservation in three posts of Head. Since there are three posts of Head insofar as present case is concerned, 33% of reservation would be much more than the maximum limit of 13% of reservation for Scheduled Caste category as provided in the above referred Rule and would violate guarantee provided under Articles 14 and 16(1) of the Constitution. In order to substantiate this contention, reliance is placed by the learned Counsel on the judgment of the Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors., .

12. It is submitted by Shri Deshpande, learned Counsel for the petitioner, that percentage of reservation has to be worked out in relation to number of posts, which form cadre strength and the concept of vacancy has no relevance in operating percentage of reservation. In order to substantiate this contention, reliance is placed by the learned Counsel on the judgment of the Apex Court in R.K. Sabharwal v. State of Punjab, . It is further contended that in the instant case, even if it is assumed that cadre of Head in all the three Schools is one, cadre strength would be of three posts and one of them, if it is reserved for candidate belonging to reserved category, the percentage of reservation would be much more than prescribed for that category in Sub-rule (10)(a) of Rule 9 of the MEPS Rules, which is impermissible in law.

16. Learned Counsel Shri Kendurkar further states that in the instant case, Management is running two co-educational Schools and one Girls' School, but common seniority list of all the three Schools is maintained by the Management and in view of Rule 41 of the MEPS Rules, Management is entitled to transfer any of its employees from one School to another on administrative grounds, promotion or at the request of the concerned employee. The posts are undoubtedly interchangeable and, therefore, contention canvassed by Shri Deshpande, learned Counsel for petitioner Smt. Asha Raut, that the post of Head of the Girls' School is an isolated single post cadre and is also not interchangeable is incorrect and cannot be accepted. It is contended that Rule 41 of the MEPS Rules confers power on the Management to transfer its employees. from one School to another and, therefore, posts in all these Schools including those of the Head are clearly interchangeable and hence, they do not remain isolated. It is, therefore, contended that policy of reservation contemplated as per Government Resolution dated 17-9-1980 of 50 point roster as well as percentage of reservation provided under Rule 9(10)(a) of the MEPS Rules for backward classes is applicable in the instant case and hence, decision of the Education Department in this regard is bad in law and petitioner Smt. Kamal Gaikwad is entitled to get the approval to the post of Head Mistress, which is held by her with effect from 1-6-1991.

34. If we consider this hypothetical situation and suppose we apply policy of reservation either through roster point contemplated in view of Government Resolution dated 17-9-1980 or as provided in Sub-rule (10)(a) of Rule 9 of the MEPS Rules to the post of Head of the Girls' School, then so long as the head of the co-educational School is a lady, only during such time the interchangeability of posts may be possible subject to eligibility to such post, in such rare situation. However, in the normal set of circumstances, the post of Head in the Boys' School or co-educational School is held by the senior-most male teacher and, therefore, in view of restrictions contained in Sub-rule (4) of Rule 3 of the MEPS Rules, the post of Head of the Girls' School during such time is not interchangeable with that of the post of the Head of the Boys' School or co-educational School held by the male teacher and such reservation, which is made applicable to the post of Head of the Girls' School would result in complete exclusion of lady teacher belonging to the open category, which would finally result in hundred per cent reservation of such post during such period and would undoubtedly result in violation of fundamental rights guaranteed by the Constitution under Articles 14 and 16(1) of the Constitution and, therefore, is impermissible in law.