Bombay High Court
Mohd Akif Abrar Mohd Abdul Rauf vs The State Of Maharashtra And ... on 11 September, 2017
Bench: S.V. Gangapurwala
1 W.P.No.4102/16
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.4102 OF 2016
Mohd. Akif Abrar S/o Mohd.
Abdul Rauf. ... Petitioner.
Versus
The State of Maharashtra
and others. ... Respondents.
...
Mr.Avinash Deshmukh, advocate for the petitioner.
Mr.S.B.Pulkundwar, A.G.P. for the State.
...
WITH
WRIT PETITION NO.3029 OF 2016
Smt.Harshali D/o Harishchandra
Kavthekar ... Petitioner.
Versus
The State of Maharashtra
and others. ... Respondents.
...
Mr.S.S.Thombre, advocate for the petitioner.
Mr.S.B.Pulkundwar, A.G.P. for the State.
...
WITH
WRIT PETITION NO.3093 OF 2016
Shri Anil Daulatrao Solunke ... Petitioner.
Versus
::: Uploaded on - 14/09/2017 ::: Downloaded on - 17/09/2017 02:04:46 :::
2 W.P.No.4102/16
The State of Maharashtra
and others. ... Respondents.
...
Mr.S.K.Chavan, advocate holding for
Mr.A.R.Vyawahare, advocate for the petitioner.
Mr.S.B.Pulkundwar, A.G.P. for the State.
...
CORAM : S.V.GANGAPURWALA AND
MANGESH S. PATIL,JJ.
Date : 11.09.2017.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. Rule. Rule returnable forthwith. With
the consent of the learned counsel for the
parties, the petitions are taken up for final
hearing.
2. The petitioner in Writ Petition
No.4102/2016 had filed Original Application
seeking declaration and direction that the
petitioner is entitled to be appointed on the
post of Geographical Information System Assistant
from the open category pursuant to the final
merit list. The Tribunal went on the premise
that this petitioner in Writ Petition
No.4102/2016 has challenged the selection of
petitioners in Writ Petition No.3029/2016 and
Writ Petition No.3093/2016.
3. Mr.Deshmukh, learned counsel for the
petitioner submits that pursuant to the
advertisement dated 14.1.2013, the Original
Applicant before the Tribunal had applied for the
post of Geographical Information System Assistant
from open category. The petitioner stood at
serial No.1 of the merit list pursuant to the
selection process. Five posts were meant for the
Geographical Information System Assistant. From
the said five posts, one post was reserved for
Other Backward Class(female), one post was meant
for Scheduled Tribe (Ex-servicemen), three posts
were meant for open competition category and from
said three posts, one post was meant for ex-
serviceman, one for Sports person and one for
part timer. According to the learned counsel,
nobody could be selected for the post of ex-
serviceman (open). The petitioner being from
open category and having secured the highest
marks should have been given the appointment
letter. The Tribunal has failed to consider the
said aspect.
4. Mr.Thombre, learned counsel for the
petitioner in Writ Petition No.3029/2016 submits
that the petitioner had applied from open Sports
category and petitioner in Writ Petition
No.3092/2016 had applied from open (part-timer)
category. They were also in the select list.
The appointment orders were also issued to these
petitioners in Writ Petition No.3029/2016 and
Writ Petition No.3093/2016. The Tribunal
committed error in cancelling the appointment
orders.
5. Learned A.G.P. submits that the
petitioners in Writ Petition No.3029/2016 and
Writ Petition No.3093/2016 were rightly issued
with the appointment orders. As far as
petitioner in Writ Petition No.4102/2016 is
concerned, the said petitioner had applied from
open category and no post was meant for open
category.
6. We have considered the arguments
canvassed by the learned counsel for respective
parties. We have also perused the judgment
delivered by the Tribunal.
7. Reading the judgment of the Tribunal,
it appears that the Tribunal has travelled beyond
the scope of the petition. The appointment of
petitioners in Writ Petition No.3029/2016 and
Writ Petition No.3093/2016 was not challenged by
the petitioner. No such prayer was made before
the Tribunal. The Tribunal has gone a step
further and has commented upon the allocation of
reservation. In fact, the whole material was not
before the Tribunal. It states that the
reservation for the open category was not
properly provided on the ground that no post was
reserved for women.
8. The selection process was never the
subject matter before the Tribunal. The
advertisement was also not a subject matter
before the Tribunal. The candidates pursuant to
the said selection process and the reservation
provided in the advertisement had participated in
the selection process without any demur. It is
trite that after participating in the selection
process, the reservation as provided in the
selection process and the terms and conditions of
the advertisement could not have been challenged.
9. We will have to go as per reservation
provided in the advertisement. The State was
also not called upon to contend or to justify the
manner the reservation was provided. In view of
the fact that entire material was not before the
Tribunal with regard to the allocation of
reservation or otherwise, the Tribunal could not
have proceeded on the premise that the
reservation for women was not provided in the
open category.
10. We will have to take the reservation as
it was provided in the advertisement as none of
the parties at any material point of time
challenged the same. It would also have to be
considered that the entire selection process was
concluded as per the advertisement and
reservation provided in the advertisement. Even
appointment orders were issued to the candidates.
The petitioner in Writ Petition No.4102/2016, who
had filed the Original Application before the
Tribunal had not made any prayer for setting
aside the selection of the other candidates.
11. The gravamen of the original
applicant's contention was that no candidate was
available from open (ex-serviceman) category, the
said post would be available for open category
candidate. The said contention was on the
premise that if a post meant for horizontal
reservation is not filled in, the same would go
to the person standing in the vertical
reservation. It is also not disputed that the
petitioner had secured the highest marks and was
at serial No.1 of the merit list and he was from
open category.
12. The State no doubt, would have
clarified in the advertisement as to the manner
of filling the post going vacant. The said
clarification is lacking in the advertisement.
However, it would be seen that in the merit list
of 25 candidates, 11 candidates are from open
category. The list is also produced which shows
large number of candidates had applied from open
category and as no candidate was available from
the open (ex-serviceman) category. The said post
naturally, would go to the open category.
13. The Respondent State has also not
disputed that original applicant stands at serial
No.1 at merit list.
14. Considering above, we pass the
following order :
a) The impugned judgment and order passed
by the Tribunal is quashed and set aside.
b) The Respondent-State shall appoint the
petitioner of Writ Petition No.4102/2016 from the
open category for the post of Geographical
Information System Assistant in case there is no
other impediment. The Respondent-State shall
consider the case of the petitioner in Writ
Petition No.4102/2016 for appointment from open
category within four (4) weeks. As judgment of
the Tribunal is set aside, Writ Petition
No.3029/2016 and Writ Petition No.3093/2016 are
also allowed.
c) Rule is accordingly made absolute in
all these Writ Petitions. No costs.
(MANGESH S. PATIL,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp4102.16
