2023:BHC-AUG:16737-DB

1 WP 3108.23

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 3108 OF 2023

Marathwada Legal and General

Education Society, Aurangabad
Through its Secretary
Dr. Smt. Kalpalata Patil Bharaswadkar,
Age : 54 Years, Occu. : Advocate,
R/o Plot No. 213, Parijat Nagar,
N-4 (South), Beside Pundlik Nagar
Police Station, CIDCO,
Aurangabad 431 003.
E-mail : [email protected]
Mobile No. 94222 03484. .. Petitioner

Versus

1. Dr. Babasaheb Ambedkar Marathwada

University, Aurangabad,
Through its Registrar,
University Campus, Aurangabad.

2. The State of Maharashtra,

Through the Principal Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai 400 032.

3. The Director of Higher Education,

Maharashtra State,
Central Building, Pune 411 001.

4. The Joint Director of Higher

Aurangabad Region, Aurangabad.

5. Assistant Commissioner,
B. C. Cell, in the office of the
Divisional Commissioner,
Aurangabad Region, Aurangabad. .. Respondents

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 2 WP 3108.23

Shri Ajay S. Deshpande, Advocate for the Petitioner.

Shri S. S. Thombre, Advocate for the Respondent No. 1.
Shri S. G. Sangle, A.G.P. for the Respondent Nos. 2 to 5.

CORAM : MANGESH S. PATIL AND

SHAILESH P. BRAHME, JJ.

CLOSED FOR JUDGMENT/ORDER ON : 21.07.2023

JUDGMENT/ORDER PRONOUNCED ON : 07.08.2023.

JUDGMENT (Per Shailesh P. Brahme, J.) :-

. Rule. Rule is made returnable forthwith. With the consent

of the parties taken up for final hearing at the admission stage.

2. The petitioner is an educational institution which runs

Manikchand Pahade Law College, Aurangabad (hereafter
referred as to the ‘Law College’) and Dr. (Smt.) Indirabai
Bhaskarrao Pathak Mahila Arts, Commerce and Science College,
Aurangabad (hereinafter referred as to the ‘Mahila college’).
Both the colleges are aided colleges. The law college was
established in the year 1956, whereas Mahila College was
established in the year 1971. The petitioner is challenging the
communications dated11.03.2022, 04.05.2022, 24.06.2022, and
14.09.2022 issued by respondent Nos. 1, 2 and 5 thereby insisting
the petitioner institution to get the roster verified from the
competent authority and treating the posts of Principal of these
two colleges amenable to the policy of reservation. The claim of
the petitioner that principal is an isolated post and reservation
policy is not applicable stands rejected, impliedly.

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3. It is the case of the petitioner that the post of principal in

the Mahila College fell vacant on 01.05.2022 because of the
superannuation. On 05.01.2022 a proposal was forwarded by the
petitioner seeking permission for the recruitment of the principal
directly. So far as the law college is concerned the acting
principal is to attain age of superannuation on 30.09.2023.

4. The age of superannuation for the principal in the senior

colleges is 62 years, same is extendable to 65 years as per the
Government Resolution dated 05.03.2011 and G. R. dated
23.03.2011. For extending the age from 62 years to 65 years, a
procedure is prescribed to be followed by the educational
institutions. An incumbent is required to be assessed by
performance review committee. It is also contemplated that
before granting extension beyond 62 years an attempt should
have been made for recruitment by publishing an advertisement.
It is the case of the petitioner that a care was taken that before
the said post falls vacant the communication was made to the
respondents to secure permission for publishing an
advertisement, which is a step towards direct recruitment.

5. It is further case of the petitioner that on 25.01.2022,

proposal was submitted to the respondent No. 1 seeking
permission for recruitment of principal as well as seeking
approval for publishing the advertisement. On 11.03.2022, the
respondent No. 1/University addressed a letter to the petitioner
stating that the proposal be submitted after securing no
objection from the Assistant Commissioner Backward Class Cell,

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Aurangabad. On 04.05.2022, the respondent No. 5 addressed a

letter to the respondent No. 1. A copy of which is forwarded to
the petitioner stating that the post of principal is amenable to
the policy of reservation and as per the new policy the
verification of the roster be done by submitting a proposal to its
office.

6. On 14.09.2022, the respondent No. 2 addressed a letter to

the respondent No. 2/Joint Director informing that the policy of
the reservation and the provisions of the Maharashtra
Educational Institutions (Reservation in Teachers Cadre) Act,
2021 (for short “Act of 2021”) are applicable to the post of
principal. It was further stated that as per Section 2(61) of the
Maharashtra Public Universities Act, 2016 (for short “Act of
2016”) the principal is included in the definition of teacher.
Similar kind of correspondence was made by the Director with
his subordinate officers and to the universities vide letter dated
14.09.2022.

7. It is the grievance of the petitioner that the petitioner was

directed to secure verification of roster for the post of principal in
both the colleges. After determining the point of roster for the
post of principal, the proposal for approval of the advertisement
is directed to be submitted to the university. The petitioner
claims that the post of principal is an isolated post and it is not
amenable to the policy of reservation. The contention of the
petitioner is turned down by the respondents vide the
communications which are under challenge.

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8. It is a matter of record that by letter dated 11.03.2022

university informed that the post of principal in Mahila College
has been declared as open to all after verification of roster by the
competent authority. However, by representation dated
09.05.2023 the petitioner refused to take steps for the
recruitment of the post of principal in the Mahila College as by
that time present petition was filed. Therefore, present status is
that the post of principal of the Law College is falling vacant on
01.10.2023. The post of principal in the Mahila college has
already fallen vacant on 01.05.2022. It is the case of the
petitioner that it is facing administrative problems. Besides the
petitioner is likely to suffer impediment for NAC accreditation in
fourth cycle.

9. The learned counsel for the petitioner has relied upon G. R.

dated 05.03.2011, which stipulates the extension of age of
superannuation from 58 to 65 years and the modality to be
followed for extending the same. Reliance is also placed on G. R.
dated 23.11.2011 to show that in pursuance of earlier G. R. dated
05.03.2011 performance review committee has been constituted
to assess the performance of principals and teachers of various
colleges in the State of Maharashtra. Further, reliance is placed
on G. R. dated 23.09.2016, which stipulates that the post of
principal is an isolated post in various streams of education and
it is open to all and to be filled in on merits.

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10. The learned counsel for the respondent No. 1 opposes the
petition by filing affidavit in reply. The respondent Nos. 2 to 5
also filed separate affidavits in reply. It is their case that the
policy of reservation is applicable to the post of principal
especially because of the provisions of the Act of 2021. The post
of principal is covered by the definition of ‘teachers cadre’ as
provided in Section 2(o) of the Act of 2021. As per Section 2(61)
of the Act of 2016 a principal is a teacher. According to them
total sanctioned posts in all the colleges run by the same
management are to be taken into consideration for providing
reservation for the post. The notification issued under Section
3(1) of the Act of 2021 is for implementation of the reservation
policy. The G. R. dated 11.04.2022 is made applicable for the
post of principal. According to them G. R. dated 23.09.2016 may
not help the petitioner as it has been superseded by the Act of
2021.

11. It is the case of the respondent Nos. 2 to 5 that the object of

applying reservation policy to the post of principal is to provide
equal opportunity to the unrepresented and backward class
candidates to officiate the post. If post of principal is not made
amenable to the reservation policy then the purpose of Act of
2021 would be frustrated.

12. It is relevant to quote relevant provisions of the statute

which are necessary to adjudicate the controversy involved in the
petition.

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A] The Maharashtra Public Universities Act 2016

1. ………

2. In this Act, unless the context otherwise requires,—

(1) ……..
(2) ……..

(61) “teacher” means full-time approved professor,

associate professor, assistant professor, reader,
lecturer, librarian, principal, Director of an
institution, Director of Knowledge Resource Centre,
Director of Centre of Lifelong Learning and
Extension, deputy or assistant librarian in the
university, college librarian, Director or instructor of
physical education in any university department,
conducted, affiliated or autonomous college,
autonomous institution or department or recognized
institution of the university;

B] The Maharashtra Educational Institutions

(Reservation in Teachers’ Cadre) Act of 2021

1. ………

2. In this Act, unless the context otherwise requires,—

(a) ……...
(b) ………

(o) “teachers’ cadre” means a class of all the

teachers of an Educational Institution, regardless of
the branch of study or faculty, who are remunerated
at the same grade of pay, excluding any allowance or
bonus.

3. (1) Notwithstanding anything contained in any other

law for the time being in force, there shall be reservation of
posts in direct recruitment out of the sanctioned strength in
teachers’ cadre in an Educational Institution to the extent
and in the manner as may be specified by the State
Government by notification in the Official Gazette.

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(2) For the purpose of reservation of posts, an

Educational Institution shall be regarded as one unit.

13. It is necessary to refer to notification dated 07.04.2022

issued under Section 3(1) of the Act of 2021. The relevant portion
of Clause 1 and Clause 1(vii) reads as under :

“1. All sanctioned posts in teacher’s cadre (in the same

scale of pay) in all subjects in the Educational Institutions
established, maintained or aided by the State Government,
shall be combined and the cadre-wise reservation shall be
made applicable in the following manner namely :--

(i) ……….
(ii) ……….

(vii) In case of Non-Government aided colleges, an

institution or college or a group of institutions or colleges
maintained by a society or trust or private management body
and receiving aid from the State Government, whether directly
or indirectly, shall maintain a single roster of all sanctioned
posts in teacher’s cadre.”

14. The G. R. dated 11.04.2022 stipulates the implementation

of the reservation policy as per the Act of 2021. The modalities
are prescribed for determining the reservation category wise for
recruitment and procedure to be adopted.

15. Before addressing the issue, it is necessary to state the

admitted facts which are as follows :

(a) Both the colleges of the petitioner impart education in

different streams of education and have independent post of
principal. One of which has already fallen vacant and another is

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to fall vacant in the near future.

(b) The petitioner is not permitted to recruit the post of

principal directly.

(c) The existence of the Government Resolutions and

notification are not disputed.

16. We have considered the rival submissions advanced by the

learned counsels for the respective parties. We are called upon
to address an issue whether the reservation policy and the
provisions of Act of 2021 are applicable to the post of principal in
a college which is an isolated post.

17. Section 2(61) of the Act of 2016 provides definition for

teachers. Going by the definition the principal is within its
ambit. It is a common knowledge that a principal is essentially a
teacher but has to discharge additional administrative duties.
Principal is administrative head. He is representative of the
college to the university, department of education, to the public
at large, etc. The grade pay of the principal is distinct from the
grade pay of the teacher. Considering the duties to be
discharged by the principal, he is placed on a highest pedestal.
There is no equal grade pay for the principal and other teachers.

18. The learned advocate for the petitioner has tried to point
out that the scale or the grade pay of the professor is higher than
a principal which is a paradox. For the adjudication of this

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matter, we need not go into the controversy whether grade of the

principal is more or less than the professor. However, it can
surely be seen that scale of a principal is different than the scale
of a professor also. The rest of the teaching staff is subordinate
to the principal. Now the post of principal has been made a
tenure post. The Government Resolution dated 23.11.2011
stipulates that there is separately constituted performance
review committee for extending age of superannuation to a
principal. Principal cannot be a post at par with other teachers.

19. Though by Section 2(o) of the Act of 2021, definition of a

teacher covers a principal, that is to be understood in the sense of
the duties to be performed as teaching or non teaching member.
In that limited sense a principal is included in the class of these
persons. The definition in Section 2(o) of the Act of 2021 cannot
be construed to mean that the principal is at par with the
teachers for all other purposes especially the reservation. It is
seen that the qualification, eligibility, age of retirement and
certain service conditions of a principal are distinct than a
teacher which includes lecturer, assistant professor, professor,
etc. In that view of the matter also the principal stands on a
different footing.

20. In order to ensure adequate representation of the reserved

categories in the direct recruitment in the teachers cadre in the
educational institutions the Government considered it expedient
to enact a law. Section 2(o) of the Act of 2021 defines ‘teachers
cadre’ with a qualification that they are to be remunerated at the

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same grade of pay. In other words, if there is different grade of

pay then an incumbent may not be covered by teachers’ cadre.
The same can be said to be a condition precedent because the
same qualifying clause is also adopted in a notification issued U/
Sec. 3(1) of the Act of 2021. As stated earlier clause 1 starts with
the words “All sanctioned posts in a teachers cadre (in the same
scale of pay) in all subjects in the educational institutions
established, maintained or aided by the State
Government”…………………. The principal though is a teacher
does not get same grade of pay. The post cannot be included in a
teachers’ cadre.

21. It is worthy to note the provisions of Section 3(1)of the Act

of 2021. It starts with a non-obstante clause. The provisions of
Act of 2021 are made applicable notwithstanding anything
contained in any other law. Therefore, the contention of the
respondents that the definition of Section 2(61) of the Act of 2016
covers the principal and he should be regarded as part and parcel
of teachers’ cadre is not correct. Section 3(1) of the Act of 2021
gives overriding effect to the provisions of Act of 2021 over the
Act of 2016.

22. Act of 2016 mainly pertains to establishment of

universities, its functionaries, affiliated colleges, etc. It does not
deal with the policy of the reservation, the modalities to be
followed and the category wise reservation, etc. The Act of 2021
has the object of applying the reservation policy subject wise in
the relevant teachers’ cadre in the educational institutions in the

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State. It seeks to provide the extent and the manner of the

reservation in direct recruitment. The object and the purpose for
which it is enacted is distinct from object and purpose of the Act
of 2016. We are of the view that Act of 2021 is a special Act for
the purpose of reservation and it prevails over the Act of 2016.

23. It is expedient to refer to the judgment of the Supreme

Court in the matter of Kaushalya Rani Vs. Gopal Singh reported
in AIR 1964 SC 260. Paragraph No. 07 of the above judgment is
worth to be followed. Same is reproduced as under :

“(7) It has been observed in some of the cases decided

by the High Courts that the Code is not a special or a
local law within the meaning of S. 29(2) of the Limitation
Act, that is to say, so far as the entire Code is concerned,
because it is a general law laying down procedure, gene-
rally, for the trial of criminal cases. But the specific
question with which we are here concerned is whether
the provision contained in S. 417(4) of the Code is a
special law. The whole Code is indeed a general law
regulating the procedure in criminal trials generally, but
it may contain provisions specifying a bar of time for
particular class of cases which are of a special character.
For example, a Land Revenue Code may be a general law
regulating the relationship between the revenue-payer
and the revenue- receiver or the rent-payer and the
rent-receiver. It is a general law in the sense that it lays
down the general rule governing such relationship, but it
may contain special provisions relating to bar of time, in
specified cases, different from the general law of
limitation. Such a law will be a 'special law' with
reference to the law generally governing the subject-
matter of that kind of relationship. A 'special law',
therefore, means a law enacted for special cases, in
special circumstances, in contradistinction to the general
rules of the law laid down, as applicable generally to all
cases with which the general law deals. In that sense,

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the Code is a general law regulating the procedure for

the trial of criminal cases, generally; but if it lays down
any bar of time in respect of special cases in special
circumstances like those contemplated by S. 417(3) &
(4), read together, it will be a special law contained
within the general law. As the Limitation Act has not
defined 'special law', it is neither necessary nor
expedient to attempt a definition. Thus, the Limitation
Act is a general law laying down the general rules of
limitation applicable to all cases dealt with by the Act;
but there may be instances of a special law of limitation
laid down in other statutes, though not dealing generally
with the law of limitation. For example, rules framed
under Defence of India Act, vide S. M. Thakur v. The
State of Bihar ILR 13 Pat 126 : AIR 1951 Pat 462);
Canara Bank Ltd. v. The Warden Insurance Co., ILR
(1952) Bom 1083 : (AIR 1953 Bom 35) dealing with the
special rule of limitation laid down in the Bombay Land
Requisition Act (Bom. XXXIII of 1948). These are mere
instances of special laws within the meaning of S. 29(2)
of the Limitation Act. Once it is held that the special rule
of limitation laid down in sub-sec. (4) of S. 417 of the
Code is a 'special law' of limitation, governing appeals by
private prosecutors, there is no difficulty in coming to the
conclusion that S. 5 of the Limitation Act is wholly out of
the way, in view of S. 29(2) (b) of the Limitation Act.”

24. The special Act always prevails over the general Act. We
are of the view that Act of 2021 being special act would prevail
over the Act of 2016. Therefore, definition of Section 2(61)of the
Act of 2016 will not help the respondents to bring principal
within the sweep of ‘teacher’ or ‘teachers’ cadre’.

25. Pertinently, the differential treatment given by qualifying

clause in definition to 2(o) of Act of 2021 is also reflected in the
provisions of G. R. dated 11.04.2022. Clause A of the said G. R.
reads as follows :

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 14 WP 3108.23

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Translation of the above portion in English is as under :

A) Calculation of Caste wise Reservation :

1) As per the provisions prescribed in the Government

Notification dated 07.04.2022 the sanctioned posts in
all disciplines in the teaching staff(in the same pay
scale) in each university as well as in all the colleges
under the control of same management should be
consolidated.

2) Caste wise reservation should be determined as per

the percentage prescribed in the prevailing

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reservation taking into consideration the total

numbers of sanctioned posts in the same cadre. Also
action should be taken as per the prevailing orders of
the Government regarding the parallel reservation.

3) Taking into consideration the total sanctioned posts

and working posts in the same cadre, the point list of
the cadre should be kept in the prescribe format along
with the summary of posts. After that as per the
Maharashtra Educational Institutions ( Reservation in
Teaching Cadre) Act, 2021 cadre wise reservation will
be applied in the total number of sanctioned posts in
the cadre. Also as per the Government Notification
dated 18.10.1997 the category wise reservation of
vacant post shall be fixed and approved by the
competent authority shall be mandatory for the said
list.

26. This provision corroborates the proposition that the posts

which are of equal grade pay are covered by teachers’ cadre and
consequentially reservation policy is applicable to only those.

27. So far as the application of reservation policy to the single

isolated post is concerned the law is settled in view of the
decision of the Supreme Court in the case of Post Graduate
Institute of Medical Education and Research, Chandigarh Vs.

Faculty Association reported (1998) 4 SCC 01. Paragraph No.

34 of the above judgment reads thus :

34. In a single post cadre, reservation at any point of

time on account of rotation of roster is bound to bring
about a situation where such a single post in the cadre will
be kept reserved exclusively for the members of the backward
classes and in total exclusion of the general members of the
public. Such total exclusion of general members of the
public and cent percent reservation for the backward classes
is not permissible within the constitutional frame work. The
decisions of this Court to this effect over the decades have

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been consistent.

28. While considering an issue of applying policy of reservation

to an isolated post, it is relevant to note guidelines of the
Supreme Court in the following cases.

(i) Dr. Chakradhar Paswan Vs. State of Bihar and others

reported in AIR 1988 SC 959. Para No. 16 of the judgment
reads thus :

“16. It is quite clear after the decision in Devadasan’s

case that no reservation could be made under Art. 16(4) so
as to create a monopoly. Otherwsie, it would render the
guarantee of equal opportunity contained in Arts. 16(1)
and 16(2) wholly meaningless and illusory. These
principles unmistakably lead us to the conclusion that if
there is only one post in the cadre, there can be no
reservation with reference to that post either for
recruitment at the initial stage or for filling up a future
vacancy in respect of that post. A reservation which would
come under Art. 16(4), pre-supposes the availability of at
least more than one post in that cadre.”

(ii) R. R. Inamdar Vs. State of Karnataka and others reported

in (2020) 2 SCC 8. Para Nos. 3 and 8 of this judgment read
thus :

3. At the outset, it would be necessary to note that the

decision of the two-Judge Bench of this Court in K
Govindappa (supra), which has been followed by the
learned Single Judge as well as by the Division Bench in
appeal, dealt with the issue as to whether all posts of
Lecturers taken together constituted a cadre for the
purpose of reservation or whether a solitary post of
Lecturer in History which was not interchangeable with
other posts constituted a separate cadre. The High Court
held that the post of a Lecturer in History could not be

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construed to be a cadre together with all other posts of

Lecturer. This Court noted that the Constitution Bench in
Post Graduate Institute of Medical Education and Research
v Faculty Association2 had approved the view in Dr.
Chakradhar Paswan v State of Bihar3 to the effect that
there could be no reservation in respect of a single post.
This was, however, sought to be distinguished by the State
in K Govindappa (supra). This Court held:

“22. While there can be no difference of opinion that

the expressions "cadre", "post" and "service" cannot
be equated with each other, at the same time the
submission that single and isolated posts in respect of
different disciplines cannot exist as a separate cadre
cannot be accepted. In order to apply the rule of
reservation within a cadre, there has to be plurality of
posts. Since there is no scope of inter- changeability
of posts in the different disciplines, each single post in
a particular discipline has to be treated as a single
post for the purpose of reservation within the
meaning of Article 16(4) of the Constitution. In the
absence of duality of posts, if the rule of reservation is
to be applied, it will offend the constitutional bar
against 100% reservation as envisaged in Article
16(1) of the Constitution.” (emphasis supplied)

The Court held that the case fell within the category of a
single or isolated post within a cadre in respect of which
the rule of reservation was inapplicable. In other words,
each discipline which consisted of a single post was
required to be dealt with as a separate cadre for the said
discipline, particularly, having regard to the fact that the
several disciplines were confined only to one college.

8. We are unable to accept the submission for more

than one reason. The circular dated 31 May 1991 is prior to
the decision of the Constitution Bench in Post Graduate
Institute of Medical Education and Research (supra). As a
matter of fact, the circular is prior to the decision in K
Govindappa (supra) as well. The principle which has been
enunciated by this Court is that there can be no
reservation of a solitary post and that in order to apply the
rule of reservation within a cadre, there must be a plurality
of posts. Where there is no interchangeability of the posts

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in different disciplines, each single post in a particular

discipline has to be treated as a single post for the purpose
of reservation within the meaning of Article 16(4) of the
Constitution. If this principle were not to be followed,
reservation would be in breach of the ceiling governed by
the decisions of this Court. A circular, of the nature that
has been issued by the State of Karnataka, cannot take
away the binding effect of the decisions of this Court
interpreting the policy of reservation in the context of
Article 16(4).

29. In view of the interpretation of different clauses and the

reasons assigned above there is no merit in the contention that
G. R. dated 23.09.2016 is superseded or enervated by the Act of
2021. The G. R. dated 23.09.2016 still holds the field and applies
with full force. It excludes the isolated post from applicability of
reservation policy. We are of the view that the posts of principals
rendering services in colleges are not covered by the reservation
policy. It is immaterial that multiple colleges are run by the
same institution. Being an isolated post, the principles laid
down in above referred judgments apply with full force.

30. The letters issued by the respondent No. 1 dated

11.03.2022 calling upon the petitioner to get the roster verified
first before proceeding with the selection for the post of principal
is unsustainable in law. The correspondence dated 04.05.2022
holding that the reservation policy is applicable to the post of
principal and directing the colleges to get examined the roster
from the competent authority is patently illegal and liable to be
quashed and set aside. We further do not approve the letter
dated 14.09.2022 issued by the Director of Education holding
that the post of principal is covered by Act of 2021 and provisions

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of reservation are applicable to it. The communication dated

24.06.2022 is consequential and it is in the form of opinion or
explanation which also cannot survive after quashment of the
above referred correspondences.

31. So far as prayer No. 22(B) of the memo of the petition is

concerned, the learned counsel for the petitioner has not made
any submissions. Therefore, we have not considered the said
prayer. The petitioner has challenged the explanation which is
at Exhibit – H. No submissions are made by the learned counsel
for the petitioner in that regard. As such, we do not propose to
consider it.

32. For the reasons stated above, we are inclined to allow the
petition as follows :

A. The writ petition is partly allowed.

B. The impugned letter dated 11.03.2022 issued by the

respondent No. 1, letter dated 04.05.2022 issued by the
respondent No. 5, letter dated 14.09.2022 issued by the
respondent No. 3 are quashed and set aside.

C. It is hereby declared that the posts of principals in the

colleges run by the petitioner institution are not governed by the
policy of reservation and the provisions of the Act of 2021.

D. The respondents are hereby directed to process the

proposal of the petitioner for approving advertisement and

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 20 WP 3108.23

granting permission to recruit the posts of principals by following

due procedure of law as early as possible and in any case within
a period of two (02) weeks from today.

E. The rule is made absolute in above terms. There shall be

no order as to costs.

[ SHAILESH P. BRAHME, J.] [ MANGESH S. PATIL, J.]

bsb/Aug.23

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