Bhagwan S/O. Lahuji Bawane vs State Of Maha. Thr. Secretary, ...
2016 Latest Caselaw 3594 Bom

     WP1619.16 [J].odt                             1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                                   NAGPUR BENCH : NAGPUR
                              WRIT PETITION NO.1619 OF 2016




                                                         
     Bhagwan s/o Lahuji Bawane,
     Aged 30 years, Occ. Unemployed,
     R/o. Plot No.56, Sarvashree Nagar,




                                                        
     Khobragade Layout, Umred Road,
     Dighori, Nagpur-440 034.                             ..             Petitioner

                                    .. Versus ..




                                                  
     1]     State of Maharashtra, through
            its Secretary, Department of 
                             
            Medical Education & Drug,
            Mantralaya, Mumbai-400 032.
                            
     2]     Director, Medical Education & 
            Research, St. George Hospital Premises,
            Opp. Govt. Technical College Building,
            Near CST Mumbai.                                 (Original Respondent Nos.1 & 2)
      

     3]     Aparna Deorao Ghugare,
            Aged 32 years, Occ. Nil,
   



            R/o. Anand Nagar,
            Sitabuldi, Nagpur.                                             (Original Applicant)
                                                          ..                Respondents

                             ..........





     Shri P.A. Gode, counsel for the petitioner,
     Shri J.Y. Ghurde, A.G.P. for respondent nos.1 and 2,
     Shri P.D. Meghe, counsel for respondent no.3.
                             ..........





                                    CORAM :  SMT. VASANTI  A. NAIK  AND
                                             MRS. SWAPNA JOSHI, JJ.

DATED : JULY 05, 2016.

ORAL JUDGMENT : (Per : SMT. VASANTI A. NAIK, J.)

Rule. Rule is made returnable forthwith. The 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 challenges the order of the

Maharashtra Administrative Tribunal, Nagpur, dated 1.9.2015 allowing the

original application filed by the respondent no.3 and directing the respondent

nos.2 and 3 to consider the candidature of the respondent no.3 for the post of

Physical Training Instructor against the vacancy reserved for the scheduled

castes. By the impugned order, the Tribunal further directed the respondent

nos.1 and 2 i.e. the State and another to appoint the respondent no.3 on the

post of Physical Training Instructor, if she is otherwise eligible.

Few facts giving rise to the petition are stated thus :

An advertisement was issued by the respondent nos.1 and 2

seeking applications for appointment on the two posts of Physical Training

Instructors in June-2012. One of the post was earmarked for the open

category and the other was earmarked for the scheduled tribes. Neither the

petitioner herein nor the respondent no.3 belong to the scheduled tribes, as

they belong to the scheduled castes. The respondent no.3, however, applied

for the post of Physical Training Instructor in pursuance of the said

advertisement and the name of the respondent no.3 was placed in the select

list of candidates that were eligible for appointment on the post earmarked for

the scheduled castes. The respondent nos.1 and 2 received certain objections

and after realizing the mistake that one post could not have been earmarked

for the scheduled tribes, when the vacancy was for the scheduled castes, they

rectified their mistake and in stead of appointing the selected candidate on the

post that was reserved, they issued fresh advertisement in 2014. The

petitioner herein had applied for the post of Physical Training Instructor, that

is reserved for the scheduled castes. Since the respondent no.3, whose name

was placed in the select list for scheduled castes candidates, was not appointed

by the respondent nos.1 and 2 on the vacant post meant for the scheduled

castes, but advertised for the scheduled tribes, the respondent no.3 filed an

original application before the Maharashtra Administrative Tribunal, Nagpur

seeking a direction against the respondent nos.1 and 2 to appoint the

respondent no.3 on the post of Physical Training Instructor, that was meant for

the scheduled castes. The Tribunal, on an appreciation of the material on

record, allowed the original application filed by the respondent no.3. While

holding so, the Tribunal relied on the statement made on behalf of the

respondent nos.1 and 2 that while inviting the candidates for verification of

documents, it was brought to the notice of the candidates that one of the post

that was reserved was not reserved for the scheduled tribes, but was reserved

for the scheduled castes. On the basis of the said statement, the Tribunal

allowed the original application filed by the respondent no.3 and directed the

respondent nos.1 and 2 to consider appointing the respondent no.3 on the post

of Physical Training Instructor, that was meant for the scheduled castes.

Shri Gode, the learned counsel for the petitioner, submitted that

the Tribunal was not justified in allowing the original application filed by the

respondent no.3. It is stated that in the advertisement of the year 2012, the

post was reserved for the scheduled tribes and not for the scheduled castes. It

is stated that in view of the reservation of the post for scheduled tribes, the

scheduled caste candidates were not in a position to apply for the said post. It

is stated that no corrigendum was ever issued by the respondent nos.1 and 2,

to the advertisement of the year 2012, thereby rectifying the mistake and

earmarking the post for the scheduled castes. It is stated that the respondent

nos.1 and 2 rightly issued a fresh advertisement in the year 2014, thereby

cancelling the earlier process initiated in pursuance of the advertisement of the

year 2012, so far as the reserved seat was concerned and invited applications

from the candidates belonging to the scheduled castes. It is stated that the

petitioner had applied in pursuance of the advertisement of the year 2014 and

has secured the first position in the select list of candidates belonging to the

scheduled castes. It is stated that, in the circumstances of the case, the order

of the Tribunal is liable to be set aside and a direction to the respondent nos.1

and 2 to consider appointing the petitioner on the post of Physical Training

Instructor earmarked for the scheduled castes, is necessary.

Shri Ghurde, the learned Assistant Government Pleader appearing

for the respondent nos.1 and 2, fairly admitted that by advertisement of the

year 2012, one post was earmarked for the scheduled tribes, though there was

no vacancy in that category. It is stated that mistakenly the post was shown to

have been earmarked for the scheduled tribes due to typing error though the

post was meant for the scheduled castes. It is, however, fairly admitted that

after the issuance of the advertisement of the year 2012, no corrigendum was

issued by the respondent nos.1 and 2 bringing it to the notice of all concerned,

that the post was not earmarked for the scheduled tribes but was earmarked

for the scheduled castes. It is stated that though the respondent no.3 was

selected for the said post, the respondent nos.1 and 2 realized that they cannot

appoint the respondent no.3 on the post reserved for the scheduled castes,

when the same was not advertised for the scheduled castes and was advertised

for the scheduled tribes. It is admitted that the petitioner has applied in

pursuance of the advertisement of the year 2014 and is placed at the top,

in the select list.

Shri Meghe, the learned counsel for the respondent no.3, opposed

the prayers made in the petition. It is stated that the writ petition would not

be maintainable at the behest of the petitioner who was not a party before the

Maharashtra Administrative Tribunal. It is stated that the petitioner would be

required to file a review application before the Maharashtra Administrative

Tribunal seeking a review of the impugned judgment. It is stated that the

respondent no.3 was selected in pursuance of the first advertisement in which

there was a mistake, as she was the most meritorious candidate from the

scheduled castes. 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 impugned order, we find that the Tribunal was not justified in allowing the

original application filed by the respondent no.3. Admittedly, the post for

which the respondent no.3 was selected was earmarked in the advertisement

for the scheduled tribes and the respondent no.3 belongs to the scheduled

castes. Since the advertisement invited applications from the scheduled tribes

candidates, there was no opportunity for the scheduled caste candidates to

apply and compete for the said reserved post. It is not in dispute that the

respondent nos.1 and 2 had desired to advertise the post for the scheduled

castes, but due to typing mistake, as stated on behalf of the respondent nos.1

and 2, the post was shown to have been earmarked for the scheduled tribes. If

there was a typing error in the advertisement and there was no vacancy for the

scheduled tribes, it was necessary for the respondent nos.1 and 2 to issue a

corrigendum to the advertisement and/or issue a fresh advertisement

immediately pointing out that the post was not earmarked for the scheduled

tribes, but was earmarked for the scheduled castes. However, this was not

done and while calling candidates for verification of the documents, a note

appears to have been simply circulated to inform the candidates that a

scheduled castes candidates could also appear before the concerned authority

for verification of the documents for appointment on the post that was meant

for the scheduled castes, though it was advertised for the scheduled tribes.

The procedure followed by the respondent nos.1 and 2 is not only erroneous

but is also illegal. The respondent nos.1 and 2 realized their mistake and

hence instead of appointing the respondent no.3, they rightly issued a fresh

advertisement inviting applications from the scheduled caste candidates. The

petitioner is one of such applicants, who has secured the highest marks and is

placed at the top of the select list. Though, in the circumstances of the case,

the respondent no.3 could not have been entitled for appointment on the post

meant for the scheduled castes, he approached the Tribunal for a direction

against the respondent nos.1 and 2 that he be appointed on the post meant for

the scheduled castes. The Tribunal was aware that a fresh advertisement was

issued by the respondent nos.1 and 2 inviting applications from the scheduled

caste candidates. However, without giving much weightage to these important

and relevant facts, the Tribunal allowed the application filed by the respondent

no.3 and directed the respondent nos.1 and 2 to consider the candidature of

the respondent no.3 for appointment on the post, meant for the scheduled

castes. We are of the clear view, even if a second advertisement was not

issued by the respondent nos.1 and 2, still the respondent no.3 was not

entitled to be appointed on the post meant for the scheduled castes, when the

advertisement clearly mentioned that the post was earmarked for the

scheduled tribes. When, by an advertisement, applications are mistakenly

called from the candidates belonging to a particular reserved category, though

the vacancy arises in some other reserved category, it would not be permissible

for the employer to change the rules of the game without intimation and

consider appointing the candidates, who belong to a category for which the

vacancy arises but for which the post was not advertised. In the admitted

facts of the case, in our view, the respondent no.3 could not have been

appointed on the post meant for the scheduled castes, when advertisement had

clearly earmarked the post for the scheduled tribes only. Since the

advertisement invited applications only from the scheduled tribes candidates,

several meritorious eligible scheduled caste candidates were prevented from

applying for the post. The respondent nos.1 and 2 rightly took a decision, in

the absence of the issuance of the corrigendum to the earlier advertisement of

the year 2012, to again earmark the post for the correct category, that is the

scheduled castes. In the circumstances of the case, the order of the Tribunal is

liable to be set aside. In such circumstances, we are not inclined to accept the

statement made on behalf of the respondent no.3 that the writ petition would

not be maintainable. In the given set of facts, we are of the view that the

correctness of the order of the Tribunal could be examined.

Hence, for the reasons aforesaid, the writ petition is allowed. The

order of the Tribunal is hereby quashed and set aside. The respondent nos.1

and 2 are directed to consider appointing the petitioner on the post of Physical

Training Instructor earmarked for the scheduled castes, as early as possible.

Rule is made absolute in the aforesaid terms with no order as to

costs.

                              JUDGE                                       JUDGE
     Gulande