Bombay High Court
Balaji Vithalrao Savalkar vs The State Of Maharashtra And ... on 2 August, 2016
Bench: S.S. Shinde
1309.16WPJ
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1309 OF 2016
Balaji S/o Vithalrao Savalkar
Age : 40 years, Occ : Labour,
R/o Ujani, Tq. Ausa, Dist. Latur.
PETITIONER
VERSUS
1. The State of Maharashtra
Through : Secretary
Rural Development Mantralaya,
Mumbai.
2. The Collector,
Beed, Tq. & Dist. Beed.
3. The Chief Executive Officer,
Zilla Parishad, Beed,
Tq. & Dist. Beed.
4. Vikas S/o Bhagwanrao Dongare
Age : major, Occ : Nil,
R/o Rashid Colony, Pathri,
Tq. Pathri, Dist. Parbhani.
RESPONDENTS
...
Mr. M.L. Dharashive, Advocate for petitioner.
Mr. P.N. Kutti, A.G.P. the Respondent/State
Mr. M.C. Syed, Advocate for Respondent No.4.
...
CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : 27th JUNE, 2016
PRONOUNCED ON : 2nd AUGUST, 2016
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JUDGMENT : (S.S. SHINDE, J)
Rule. Rule made returnable forthwith. By
consent of the learned counsel appearing for
the parties, heard finally.
2. By way of filing this Writ Petition,
the petitioner seeks direction to the
Respondent Authorities to cancel the
appointment of Respondent No.4 and appoint
himself to the post of Arogya Sevak from
handicapped (Deaf) category in the Health
Department, Zilla Parishad, Beed.
3. It is the submission of the learned
counsel appearing for the petitioner that
pursuant to the advertisement issued by
Respondent Nos. 2 and 3 on 2nd November, 2015
to fill up the various posts, Online
applications were invited from the qualified
candidates. He invites our attention to the
copy of the said advertisement and submits
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that three posts are meant for handicapped
category and out of the three posts, one is
for deaf category. It is submitted that the
petitioner filled in Online application and
appeared for the written test and scored 90
marks out of 200 marks. He secured minimum
marks required for passing of the said
examination. The petitioner is the only
candidate for the appointment to the post of
Arogya Sevak from handicapped (deaf) category
and no other candidate submitted an
application for the said post from that
category. Therefore, the petitioner is
entitled for the appointment to the said
post. It is submitted that even the
petitioner was called for verification of the
documents and he appeared for verification of
the documents before Respondent Nos. 2 and 3.
It is submitted that at the relevant time,
the petitioner was having the certificate of
the Competent Authority showing that the
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petitioner is from handicapped (deaf)
category and extent of the said disability
shown in the said certificate is of 83%.
However Respondent Nos. 2 and 3 ignoring the
claim of the petitioner appointed Respondent
No.4 to the said post. It is submitted that
Respondent No.4 is not from the handicapped
category, and therefore, his selection should
be cancelled and the Respondents may be
directed to appoint the petitioner on the
post of Arogya Sevak from handicapped (deaf)
category. It is submitted that the petitioner
is from the Scheduled Caste Category and
physically handicapped (deaf), and therefore,
there was no reason for Respondent Nos. 2 and
3 to reject his candidature for the said
post.
4. On the other hand, the learned
counsel appearing for Respondent No.4 submits
that Respondent No.4 is also from the
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reserved category. He invites our attention
to the corrigendum issued by Respondent Nos.
2 and 3, and submits that the posts were made
available for the candidates from
reserved/open category. He submits that the
petitioner secured only 90 marks, however
Respondent No.4 secured 154 marks, and
therefore, Respondent No.4 was selected.
Respondent No.4 is from Scheduled Caste
(General) category. He submits that there was
proper selection by the Selection Committee.
Therefore, he submits that the Petition is
devoid of any merits and the same may be
rejected.
5. The learned A.G.P. appearing for
Respondent Nos. 1 and 2 and the learned
counsel appearing for Respondent No.3,
jointly submit that the selection process was
properly carried out. There was no infirmity.
The petitioner is less meritorious candidate,
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in as much as, he secured only 90 marks and
Respondent No.4 secured 154 marks. Therefore,
they submit that the Petition may be
rejected.
6. We have heard the learned counsel
appearing for the petitioner, the learned
A.G.P. appearing for the Respondent/State and
the learned counsel appearing for the
respective Respondents. With their able
assistance, we have perused the
pleadings/grounds in the Petition, annexures
thereto, reply filed by Respondent Nos. 3 and
4 and the Government Resolution dated 14 th
January, 2011 issued by Rural Development and
Water Conservator Department, Government of
Maharashtra (which is placed on record at
Exhibit `R-2'), which provides for 3%
reservation for the appointment on the class-
III and Class-IV posts.
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7. It appears that Respondent No.3
issued advertisement No. 2/2015) on 2 nd
November, 2015, thereby inviting Online
applications for the various posts including
the post of Arogya Sevak. Upon careful
perusal of the clause (4) of the said
advertisement, it appears that the
recruitment for three posts of Arogya Sevaks
(40%) namely the candidates belonging to
Scheduled Caste, Scheduled Tribe and N.T. (B)
are earmarked. So far one post from the
Scheduled Caste is concerned, it is mentioned
in the said column as under :-
"lnj laoxkZr viaxkpk 2 inkapk ¼eqdc/[email protected]/khj 1] vYin`"Vh 1½
vuq"ks'k f'kYyd vls ueqn izoxkZrwu ik= viax mesnokj miyC/k >kY;kl
R;kph fuoM dj.;kr ;sbZy o viax mesnokj miyC/k >kyk ukgh rj
loZlk/kkj.k mesnokjkph xq..kiRrsuqlkj fuoM dj.;kr ;sbZy-"
8. Therefore, it follows from the said
advertisement that the posts, which are
reserved for Scheduled Caste category, are to
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be filled in from the candidates, who are
dumb, hearing impaired and low vision. It is
not in dispute that the petitioner belongs to
the Scheduled Caste category. The petitioner
has placed on record the copy of the
disability certificate in Form-IV issued by
the Government of Maharashtra signed by the
three Competent authorities in the field.
Therefore, it is undisputed position that the
petitioner's disability is hearing
impairment, affected part of body is both
ears and diagnosis stated in the said
certificate is Bilateral severe sensorineural
hearing loss and disability is 83%. It is
also mentioned that, the above condition is
permanent, non-progressive, not likely to
improve. Reassessment of disability not
necessary. Therefore, it is crystal clear
that the petitioner is entitled for the seat
reserved for said category.
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9. Even if the corrigendum dated 4th
November, 2015 issued to the Advertisement
No.2/2005, in that case also, there is 3%
reservation provided for candidates from
handicapped category. There are four posts
earmarked for handicapped category namely
three posts for dumb and hearing impaired and
one post for low vision. For the candidates
belonging to the scheduled caste category,
total 15 posts are made available. It appears
that in all there are 65 posts of class-III
and class-IV are advertised. However, subject
to appointment of four candidates from
handicapped category, three candidates from
dumb and deaf and hearing impaired and one
post from low vision.
10. In the light of discussion
hereinabove, there is no manner of slightest
doubt that the petitioner, who belongs to
scheduled caste and physically impaired,
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ought to have been selected for the post
reserved for the said category. The
petitioner was only candidate from the said
category. The petitioner secured 90 marks.
Requirement of passing is 45% and he achieved
that benchmark. For the reasons aforesaid,
inevitable conclusion is that the selection
of Respondent No.4 on the post reserved for
scheduled caste meant for physical impaired
and handicapped category was not keeping in
view the posts advertised in the
advertisement. In the result, the selection
of Respondent No.4 from the said category
stands quashed and set aside. Respondent Nos.
2 and 3 are directed to issue appointment
letter in favour of the petitioner, as
expeditiously as possible, however, within
two weeks from receiving the copy of the
order of this Court. In case, there is vacant
post from the social reservation category
from which Respondent No.4 belongs to, it
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will be open for Respondent Nos. 2 and 3 to
consider his candidature for the said post.
11. The Petition is allowed to the above
extent. Rule is made absolute accordingly. No
costs.
Sd/- Sd/-
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
SGA
