Bombay High Court
Smt. Savita Eknath Butle vs Dr. Panjabrao Deshmukh Krishi ... on 29 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2381/2015
Smt. Savita Eknath Butle,
Major, R/o.-House No.46, Satyanarayan Nagar,
Arni Road, Yavatmal- 445001. PETITIONER
.....VERSUS.....
1] Dr. Panjabrao Deshmukh Krishi Vidyapeeth Akola,
through its Registrar, Krishi Nagar, Akola- 444104.
2]
State of Maharashtra through its Secretary,
General Administration Mumbai-32.
3] Ku. Sarita Sunil Bobade,
Major, R/o.-Shriram Dal Mill, New Town, Badnera,
Dist. Amravati, 444701. R
ESPONDENTS
Shri Anjan De, Advocate for the petitioner.
Shri D.M. Kale, Advocate for the respondent no.1.
Shri C.A. Babrekar, Advocate for the respondent no.3.
Shri P.S. Tembhre, Assistant Government Pleader for respondent no.2.
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 29
August, 2016.
th
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The Writ Petition is heard
finally at the stage of admission with the consent of the learned Counsel for
the parties.
By this Writ Petition, the petitioner seeks a direction to the respondent-
Dr. Panjabrao Deshmukh Krishi Vidyapeeth, Akola to appoint the petitioner on
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the post of Assistant Registrar. The petitioner has challenged the action on the
part of the respondent-University of appointing the respondent no.3 on the
post that was reserved for the Open (Female) category.
Few facts giving rise to the Writ Petition are stated thus;
The respondent no.1-University, published an advertisement on
24-03-2012 inviting applications for appointment on the three posts of
Assistant Registrar. As per the advertisement, one post of Assistant Registrar
was earmarked for the open category, the second for the Other Backward
Classes and the third for the Open (Female) category. The petitioner is a
woman and she had applied for the post that was reserved for the Other
Backward Classes. There was some delay in the process of selection and the
provisional select list was published by the respondent no.1-University on
13-04-2015. Shri Khushal Bante who belongs to the Other Backward Classes
had secured the highest marks i.e. 131 and therefore he was appointed on the
post earmarked for the Open Category. Shri Sandip Gogate also belonged to
the Other Backward Classes and he had secured second highest marks
therefore, he was appointed on the post reserved for the Other Backward
Classes. The petitioner was placed at serial no.4 in the provisional merit list as
she had secured 119 marks. We are not concerned with the person placed at
serial no.3 in the merit list as he is a male and he belongs to the open category
and the post meant for the open category was filled by the appointment of
Shri Khushal Bante, who belongs to the Other Backward Classes. It is the case
of the petitioner, that being a woman she was entitled to be appointed on the
post earmarked for Open (Female) category as she had secured the highest
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marks from amongst the women candidates. According to the petitioner, the
petitioner had secured 119 marks and all other female candidates had secured
lesser marks then her. The petitioner expected that the respondent-University
would appoint her on the post of Assistant Registrar that was meant for Open
(Female) category, the respondent-University, however appointed Ku. Sarita
Bobade, the respondent no.3 who was placed at serial no.10 in the merit list
and had secured only 112 marks. The petitioner is aggrieved by the selection
and appointment of respondent no.3-Ku. Sarita Bobade on the post of
Assistant Registrar that was meant for the Open (Female) category.
Shri De, the learned Counsel for the petitioner submitted that the
respondent-University committed a serious error in appointing the respondent
no.3 on the post of Assistant Registrar that was earmarked for the Open
(Female) category. It is submitted that the petitioner is a woman and she
belongs to the Other Backward Classes. It is stated that as per the terms and
conditions of the advertisement, a backward class candidate was required to
pay the application fees of Rs.250/-, whereas a open category candidate was
required to pay the fees of Rs.500/-. It is stated that as per condition no.12 of
the advertisement, a candidate applying for a post of reserved category could
apply for more than one posts by paying additional fees for each application.
It is stated that as per condition no.12 of the advertisement, a reserved
category candidate was not required to make a separate application for
appointment on the post meant for the open category. It is stated that in view
of condition no.12, the petitioner was not required to separately apply for the
post that was earmarked for the Open (Female) category when she applied for
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the post that was earmarked for the Other Backward Classes. It is stated that
since the petitioner has secured the highest marks from amongst the women
candidates and since one post was earmarked for the Open (Female) category
the respondent-University ought to have appointed the petitioner on the post
that was earmarked for the said category. It is submitted that the respondent
no.3 is admittedly less meritorious than the petitioner, having secured only
112 marks as against 119 marks secured by the petitioner and since the post
was earmarked for Open (Female) category, the respondent-University should
have appointed the woman candidate that had secured the highest number of
marks. It is stated that the action on the part of the respondent-University in
appointing the respondent no.3 is clearly illegal and is liable to be set aside.
Shri Kale, the learned Counsel for the respondent-University has
supported the action on the part of the University. It is submitted that the
petitioner had applied for the post earmarked for the Other Backward Classes.
It is stated that as per the advertisement, a candidate applying for a open
category post was required to deposit the fees of Rs. 500/- and the petitioner,
had deposited the fees of Rs. 250/- only and hence her candidature was not
considered for the post meant for the Open (Female) category. It is submitted
that if the petitioner had desired to apply for the post meant for Open
(Female) category, the petitioner should have deposited the fees of Rs. 500/-.
Shri Babrekar, the learned Counsel for the respondent no.3 has also
supported the action on the part of the respondent-University. It is stated that
the petitioner had applied for the post meant for the Other Backward Classes
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and since the respondent no.3 belongs to the open category and is a woman,
the candidature of the respondent no.3 was rightly considered for
appointment. It is stated that the respondent no.3 had secured the highest
marks from amongst the Open (Female) category candidates and hence she
was appointed on the said post. The learned Counsel sought for the dismissal
of the Writ Petition.
On hearing the learned Counsel for the parties and on a perusal of the
advertisement as also the provisional merit list we find that the respondent-
University has committed a serious error in appointing the respondent no.3
on the post of Assistant Registrar, that was meant for Open (Female) category.
Admittedly, the petitioner and the respondent no.3, are women and the
petitioner has secured the highest marks from amongst the women candidates.
The petitioner had secured 119 marks as against 112 marks secured by the
respondent no.3. For appointing the respondent no.3, the respondent-
University has merely referred to the clause pertaining to the payment of fees
as according to the respondent-University a candidate applying for a post
meant for the open category was required to pay the fees of Rs. 500/-. The
aforesaid impression of the respondent no.1-University in regard to the clause
pertaining to the payment of fees is clearly incorrect. The clause pertaining to
the payment of fees merely provides that a Backward Class candidate would be
required to pay Rs. 250/- as fees whereas a candidate who does not belong to
Backward Classes would be required to pay the fees of Rs.500/-. The
payment of fees is not qua a post but the payment of fees is qua the
reservation or the category to which the candidate belongs. The clause
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pertaining to the payment of fees makes a reference to the Backward Class
candidate and the Non-Backward Class candidate. It does not make any
reference to the post for which a candidate is required to apply. As per the
policy of the Government, it appears that concession in the payment of fees is
provided for the reserved classes and in view of this condition a Backward
Class candidate is required to pay lesser fees of Rs. 250/- as against the
payment of fees of Rs. 500/- by an open category candidate. We find that the
respondent-University has not given any thought, whatsoever to the clause
pertaining to the payment of fees. Our finding is further fortified by condition
no.12 in the advertisement which provides that a candidate would be entitled
to apply for more than one posts however, while applying for more than one
posts the candidate would be required to tender the necessary documents and
also pay separate fees. This condition may be applicable, not in the case like
the one in hand. The condition may apply where a candidate is entitled to
apply for several posts (designations). In that case, the candidate would be
required to apply separately for each of the different posts and while making
such applications, he/she would be required to pay separate fees. Condition
no.12 further provides that a candidate applying for a post meant for a
reserved category would not be required to make a separate application for the
same post that, is earmarked for the open category. There is a distinction
between clause (1) and clause (2) of condition no.12. Clause, (1) of
condition no.12 provides that a candidate could apply for more than one
posts. Clause(1), provides that a backward class candidate applying for a post
meant for the reserved category would not be required to apply separately if
the same post is earmarked for the open category also. Admittedly, the post in
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this case is one post only, that is, the post of Assistant Registrar and we are not
concerned with more than one posts in this case. Admittedly, the petitioner,
belongs to the Other Backward Classes and she had applied for the post of
Assistant Registrar that was reserved for the Other Backward Classes.
Condition no.12, would apply to such a case, and therefore the petitioner
would not be required to separately apply for the same post of Assistant
Registrar, that is meant for the open category. The respondent-University has
made a lame attempt to justify the appointment of the respondent no.3 by
referring to condition no.12 of the advertisement as also the condition that
provides for payment of fees. Both the conditions, i.e., the condition
pertaining to the payment of fees and condition no.12 in the advertisement, do
not support the case of the respondents. It was necessary for the respondent-
University to have considered the candidature of the petitioner for the post
earmarked for the Open (Female) category. Since the petitioner is a woman
and since the post was earmarked for the Open (Woman) category, the
petitioner ought to have been appointed on the said post, as admittedly she
has secured the highest marks from amongst the women candidates that had
applied for the post of Assistant Registrar. We find that the action on the part
of the respondent-University in appointing the respondent no.3 on the post of
Assistant Registrar, that was meant for Open (Female) category is bad in law.
The appointment is liable to be set aside.
Hence for the reasons aforesaid the Writ Petition is allowed. The order
appointing respondent no.3 on the post of Assistant Registrar, Open (Female),
is hereby quashed and set aside. We direct the respondent no.1-University to
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appoint the petitioner on the said post within two weeks.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUD
GE
Deshmukh
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true
and correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 01/09/2016
P.A. to the Hon'ble Judge.
