Bombay High Court
Asha D/O Sitaram Kale vs Dr. Panjabrao Deshmukh Krushi ... on 7 March, 2017
Bench: B.P. Dharmadhikari
wp.3028.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO.3028/2016
Asha D/o Sitaram Kale
Aged about 31 years, occu:Housewife
R/o Gajanan Nagar, Ward No.17,
Chikhli,Tah.Chikhli,Dist.Buldana. ..PETITIONER
v e r s u s
1) Dr.Panjabrao Deshmukh Krushi Vidyapeeth,
Akola, Through its Registrar
2) The Selection Committee
of C & D Grade employees for
selection of Agricultural Assistant
(Degree/Diploma),
Dr. Panjabrao Deshmukh Krushi Vidyapeeth,
Akola : Through its Chairman. ...RESPONDENTS
...........................................................................................................................
Mr. N.B. Kalwaghe, Advocate for petitioner
Mr. Abhay Sambre, Advocate for the respondents
............................................................................................................................
CORAM: B.P
. DHARMADHIKARI &
MRS . SWAPNA JOSHI, JJ .
DATED : 7th March, 2017.
ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. We had heard the parties for some time on 08.02.2017 and thereafter,
as requested by them, the matter was adjourned. Today, Shri Kalwaghe,
learned counsel for petitioner has, for convenience of Court, produced a chart
pointing out how reservation has been implemented.
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2. We have looked into that chart and also the chart at Annexure 'D', Page
46 of the petition. Heard respective counsel finally, by issuing Rule and making
it returnable forthwith, with consent.
3. It is not in dispute that petitioner belongs to NT-D category and had
applied for two posts reserved for partially deaf and partially dumb category
( i.e. PDPD category). In that category, one Balraj Gedam and Vinod Wankar,
who had scored 117 and 110 marks and placed at Sr.Nos.5 and 6 were
initially selected. During verification, their claim to PDPD category could not
be substantiated and hence they could not be appointed. With the result, two
other candidates belonging to Scheduled Castes category have been selected
and appointed. These two SC candidates do not suffer from any disability.
4. The petitioner, an NT-D (woman) category candidate, has scored 110
marks i.e. marks equal to selected SC candidate Vinod Wankar. At that stage,
the petitioner was not selected because of mandate of Clause No.(6) of
Government Resolution dated 27th June, 2008. As per that clause, if there
were two such candidates with same marks, a candidate possessing more
educational qualification on the last date prescribed for submitting the
application is to be given preference. It is not in dispute that Shri Vinod
Wankar was having better educational qualification than petitioner and,
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therefore, he was initially selected.
5. As ultimately, Shri Vinod Wankar, was found not qualified for seeking
employment in PDPD category, he could not be appointed. Not only this, the
candidate with 117 marks, namely, Shri Gedam, also could not be appointed.
With the result, two other SC candidates, who have secured 150 marks each,
namely, Shri Ghorpade and Shri Khandekar were selected. Thus, PDPD
benefit was recognized and implemented only in relation to SC category and
the moment two SC category candidates were found not fit, that benefit was
withdrawn and two other SC candidates not suffering from any disability have
been selected in order of merit.
6. It is apparent that S/Shri Gedam and Wankar were selected not
because they were belonging to SC category but because of their disability
and they were placed in SC category as they belonged to that category. This
is in accordance with law as explained by Hon'ble Apex Court (Larger Bench)
in the case of Rajesh Daria vs. Rajasthan Public Service Commission and
others, reported at(2007 ) Vol..8 SCC 785, more particularly in paragraph 6
and 7. PDPD candidate with 110 marks deserved to be selected and was, in
fact, selected. His status as SC was not decisive here.
wp.3028.16
7. With the result, the petitioner who had secured same marks as of Mr.
Wankar, has not been selected only because she belonged to NT-D category.
The principle that special or horizontal reservation cuts across the vertical /
social reservation is ignored. The above-referred judgment of the Hon'ble Apex
Court reveals that social reservation, in this situation, has hardly any
relevance. The candidate with particular disability and highest marks, after
selection needs to be placed against the roster-point prescribed for his caste.
That exercise has not been performed here.
8. It is not in dispute that in subsequent advertisement these two PDPD
vacancies are again notified and petitioner has also applied again for
consideration of her entitlement.
9. In this situation, we find exclusion of petitioner's claim from
consideration as PDPD candidate after non-selection of S/Shri Gedam and
Wankar, unjustified. We accordingly direct the respondent nos.1 and 2 to
consider said entitlement of petitioner and to give her posting in PDPD
category, if there is no other bar.
10. This exercise shall be completed within twelve weeks from today.
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11. Participation by petitioner in fresh selection process shall not prejudice
this arrangement and directions. Similarly, if on any account, she is found
not eligible to be appointed in PDPD category or as NT-D category candidate,
her participation in fresh round shall be adjudged on its own merit.
12. The Writ Petition is, thus, partly allowed and disposed of. Rule made
absolute accordingly. No costs.
JUDGE JUDGE
sahare
