Bombay High Court
Sneha Gajananrao Farkade @ Sneha ... vs State Of Maha. Thr. Ministry Of ... on 11 September, 2017
Bench: V.A. Naik
WP 2670/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2670/2017
Sneha Gajananrao Farkade,
@ Sneha Sumit Watkar,
Aged 30 Years, Occ-Nil,
R/o Benoda, Warud, Dist. Amravati. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
Through Ministry of Higher &
Technical Education, Through its Secretary,
Mantralaya Extension, Mumbai - 400 032.
2. Maharashtra Public Service Commission,
Through its Secretary,
5 ½th, 7th, 8th Floor, Cooperage Telephone
Exchange Building, Maharshi Karve Road,
Cooperage, Mumbai - 400 021.
3. Nikita Ravindra Shetty.
4. Pooja Kalidas Shinde.
Through Maharashtra Public Service Commission,
Through its Secretary, 5 ½th, 7th, 8th Floor,
Cooperage Telephone Exchange Building,
Maharshi Karve Road, Cooperage, Mumbai - 400 021. RESPONDE
NTS
Mrs. M.R. Chandurkar, Counsel for the petitioner.
Shri P.S. Tembhare, Assistant Government Pleader for the respondent no.1.
Shri M.B. Kolpe with Shri Abhay Sambre, counsel for the respondent no.2.
Shri H.D. Dangre, counsel for the respondent no.4.
Shri A.P. Sadavarte, counsel for the applicants in CAW No.1195 of 2017.
CORAM :SMT.VASANTI A NAIK AND
M.G. GIRATKAR, JJ.
DATE : 11 TH SEPTEMBER, 2017.
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.
WP 2670/17 2 Judgment
2. By this writ petition, the petitioner challenges the order of the
Maharashtra Administrative Tribunal dated 25.04.2017 dismissing the
original application filed by the petitioner.
3. The respondent no.2-M.P.S.C. had published an
advertisement in the local newspapers inviting applications for
appointment in the vacant posts of Associate Professors in various
subjects. We are concerned with the advertisement for the posts of
Assistant Professors in Computer Engineering. For appointment to the
post of Assistant Professors in Computer Engineering, twelve posts were
advertised. Out of the twelve posts, six posts were meant for the open
category of which, two were reserved for women. Out of the remaining
six posts, one post was earmarked for the O.B.C. and one post was
earmarked for O.B.C. (Women). One post was earmarked for the V.J.,
one for the N.T.(B) category and two were earmarked for the scheduled
castes, out of which one was again earmarked for the women. The posts
were advertised as such:
Category Total Posts Reserved for Women
V.J. 1 -
N.T.(B) 1 -
WP 2670/17 3 Judgment
The petitioner is a woman and had applied for the post that
was earmarked for the Other Backward Classes. Since the petitioner was
not selected for appointment by the M.P.S.C., the petitioner had filed the
original application before the Maharashtra Administrative Tribunal
seeking appointment to the post of Assistant Professor from the women's
category. The Maharashtra Administrative Tribunal, on a reading of the
judgments of the Hon'ble Supreme Court and this Court dismissed the
original application filed by the petitioner. The order of the Maharashtra
Administrative Tribunal is challenged by the petitioner in the instant
petition.
4. Mrs.Chandurkar, the learned counsel for the petitioner,
submitted by taking this Court through the select list of all categories of
candidates annexed at Annexure-VII to point out that the petitioner ought
to have been appointed on a post meant for O.B.C.(Women). It is stated
that Sujata Supnekar was placed at Serial Number 9 in the general select
list and she had secured the highest marks from amongst the women
candidates. It is stated that Sangita Nemade had secured the second
highest marks and she had applied from the O.B.C. category. It is stated
that since two posts were earmarked for Open (Women) and since Sujata
Supnekar and Sangita Nemade had secured the highest marks from the
women category they ought to have been appointed on the post meant for
Open (Women). It is stated that Rekha Sahare had applied from S.C.
WP 2670/17 4 Judgment
category and since she had secured the third highest marks from amongst
the women candidates and since one post out of the two posts earmarked
for the S.C. category was reserved for women, Rekha Sahare should have
been accommodated on the post meant for S.C. (Women). It is stated
that the fourth highest marks from amongst the women were secured by
Nayana Borase and she had applied from the S.C. category. It is stated
that the petitioner had applied from the O.B.C. category and she had
secured the fifth highest marks from the women's category. It is stated
that since Rekha Sahare, who had secured the highest marks from the
S.C. (Women) category should have been appointed on the post meant
for the S.C. (Women) category, Naina Borase who had secured the fourth
highest marks and has applied from the S.C. (Women) category was not
entitled to be appointed from that category. It is stated that if Sangita
Nemade who had secured the second highest marks and had applied from
O.B.C. category was entitled to be appointed from the Open (Women)
category, the petitioner who had secured the fifth highest marks from
amongst the women candidates and had applied from O.B.C. category,
ought to have been appointed in the post meant for the O.B.C.(Women).
It is stated that the law laid down by the Hon'ble Supreme Court in
several judgments including the judgment in the case of Rajesh Kumar
Daria Versus Rajasthan Public Service Commission & Others, reported in
AIR 2007 SC 3127(1) was not properly considered by the Maharashtra
WP 2670/17 5 Judgment
Administrative Tribunal while dismissing the original application filed by
the petitioner.
5. Shri Kolpe, the learned counsel for the respondent no.2-
M.P.S.C., has supported the order of the Tribunal. It is submitted that
since the petitioner had applied from the O.B.C. category and so had
Sangita Nemade, the case of these candidates could not have been
considered for appointment on the post meant for Open (Women). It is
stated that when a reservation is made for women candidates and the
women apply for the post from the particular vertical reservation, they
are not entitled to be considered for a post meant for the Open (Women)
category. The learned counsel relied on the judgment of the Hon'ble
Supreme Court in the case of Anil Kumar Gupta Versus State of Uttar
Pradesh, reported in 1995 (4) Scale 573, and specially paragraph 18
thereof to substantiate his submission. It is submitted that when the
quota for the horizontal reservation is already specified, then there is no
question of further applying the overall horizontal reservation. It is stated
that the Tribunal has rightly considered these aspects of the matter while
dismissing the original application filed by the petitioner.
6. Shri Dangre, the learned counsel for the respondent no.4
and Shri Sadavarte, the learned counsel for the applicants in C.A.W.
WP 2670/17 6 Judgment
No.1195 of 2017, have also supported the order of the Tribunal and have
submitted by referring to the judgment in the case of Rajesh Kumar Daria
(Supra) that special reservations in favour of the physically handicapped,
women, etc. are horizontal reservations and where a vertical reservation
is made in favour of a backward class under Article 16(4), the candidates
belonging to such backward class, can compete for non-reserved posts
and if they are appointed to the non-reserved posts on their own merit,
their numbers will not be considered against the quota for the respective
backward class. It is stated that it is held by the Hon'ble Supreme Court
in the case of Rajesh Kumar Daria (Supra) that if the number of SC
candidates who by their own merit get selected to open competition
vacancies and equal or even exceed the percentage of posts reserved for
SC candidates, it cannot be said that the reservation quota for the SCs is
full. It is, however, stated that after holding so, the Hon'ble Supreme
Court has held that the principle applicable to vertical (social)
reservations will not apply to horizontal (special) reservations and where
a special reservation for women is provided within the social reservation
for the SC candidates, the proper procedure is to fill up the quota for SC
candidates in order of their merit and then find out the number of
candidates among them who belong to special reservation group of S.C.
(Women). It is stated that by applying the aforesaid position, the
petitioner would not be entitled for appointment.
WP 2670/17 7 Judgment
7. Even on the basis of the submissions made on behalf of the
respondents, the petitioner would be entitled to the appointment on the
post of Assistant Professor meant for O.B.C. (Women). It would be again
necessary to specify the vacancies that were advertised:-
Category Total Posts Reserved for Women
V.J. 1 -
N.T.(B) 1 -
It would now be necessary to consider the marks obtained by some of the
women candidates whose names were placed in the list of all the selected
candidates.
Number in order of Merit NAME Marks Obtained Category
9 Sujata Supnekar 99 NT (B)
19 Sangita Nemade 85 O.B.C.
20 Rekha Sahare 84 S.C.
21 Nayana Borase 84 S.C.
24 Sneha Farkade 83 O.B.C.
(Petitioner)
Since two posts are earmarked for Open (Women), by considering the law
laid down by the Hon'ble Supreme Court in the judgments in the case of
Anil Kumar Gupta Versus State of Uttar Pradesh, reported in 1995 (4)
Scale 573 and Rajesh Kumar Daria Versus Rajasthan Public Service
Commission & Others, reported in AIR 2007 SC 3127(1), Ms Sujata
WP 2670/17 8 Judgment
Supnekar and Sangita Nemade would be entitled to the appointment on
the two posts meant for Open (Women) category as they have secured the
first and second highest marks from amongst all the women candidates,
irrespective of the category from which they applied. Rekha Sahare had
applied from S.C. category and since one post out of the two posts meant
for the S.C. category was reserved for women, Rekha Sahare was entitled
to appointment on the post meant for S.C. (Women). Nayana Borase had
also applied from S.C. category and since Rekha Sahare needs to be
appointed on the post meant for S.C. (Women), Nayana Borase would not
be entitled to the post meant for the S.C.(Women) category as some male
candidates that have applied from the S.C. category, have secured much
more marks than Nayan Borase. Since the posts meant for S.C. (Women)
was one and the same would go to Rekha Sahare, Nayana Borase would
not be entitled to be appointed. Sneha Farkade, the petitioner herein,
had secured the fifth highest marks from amongst all the women
candidates and she had applied from the O.B.C. category. Since Sangita
Nemade had secured the second highest marks from amongst all the
women candidates and two posts were meant for Open (Women), Sangita
Nemade would be entitled to the appointment on the post meant for
Open (Women) and Sneha Farkade, the petitioner herein, who has
secured 83 marks and had applied from O.B.C. category would be entitled
to the appointment on the post meant for O.B.C. (Women). Since the
WP 2670/17 9 Judgment
reservation for women is a horizontal reservation, there is no question of
tinkering with the said reservation when it comes to the appointment of
two women from Open (Women) category. The two women who secure
the highest number of marks from the list of all women candidates would
be entitled to appointment on the post meant for Open (Women) by
applying the law laid down in Rajesh Kumar Daria (Supra) and the earlier
judgments including the judgments in the case of R.K. Sabharwal Versus
State of Punjab reported in AIR 1995 SC 1371 and Indra Sawhney
Versus Union of India reported in 1992 Supp(3) SCC 217, etc. After the
two women who secure the highest number of marks from amongst all
the women candidates are considered for appointment on the two posts
for Open (Women), then it would not be permissible for the respondent
no.2-Commission to tinker with the other vertical reservation posts that
are advertised. Hence, Rekha Sahare who has not secured either the first
highest or the second highest marks would be entitled only for
appointment on the post meant for S.C. (Women) and no other post.
Same will be the position in the case of Nayana Boarase who had applied
from the S.C. category. It would not be permissible, after filling up the
vacancies in the posts meant for Open (Women) to interchange the
reservation meant for the S.C., S.T., O.B.C., etc. that is, the vertical
reservation. Sangita Nemade who had applied as an O.B.C. candidate,
would be entitled to appointment on the post meant for Open (Women)
WP 2670/17 10 Judgment
as she had secured the second highest marks from amongst all the women
candidates and since the petitioner had applied from O.B.C. category, she
would be entitled to be appointed on the post meant for O.B.C. (Women),
that remained to be filled as Sangita Nemade was entitled to appointment
on the post meant for the Open (Women), having secured the second
highest marks. The Tribunal, however, did not consider this aspect of the
matter while dismissing the original application filed by the petitioner.
Even if we apply the law laid down in the case of Rajesh Kumar Daria
(Supra), the position would be that the petitioner would be entitled to
appointment on the post meant for O.B.C. (Women). It is well settled
that even where a vertical reservation is made in favour of a specific
backward class, the backward class candidate would still be entitled to
compete for the non-reserved or open post, with the result that any of the
women or men, who had applied from any social reservation like S.C.,
S.T. or O.B.C. would be entitled to be considered for the posts meant for
the Open category as per the available vacancies, in view of the law laid
down by the Hon'ble Supreme Court in the case of R.K. Sabharwal
(Supra), Inder Sawhney (Supra) and the other relevant judgments that are
rendered by the Hon'ble Supreme Court from time to time. We are not
inclined to accept the submission made on behalf of the M.P.S.C. that
none of the aforesaid five women candidates namely Sujata Supnekar,
Sangita Nemade, Rekha Sahare, Nayana Borase and Sneha Farkade were
WP 2670/17 11 Judgment
entitled to be appointed on the two posts meant for Open (Women) as
they had applied for the posts meant for specific backward classes,
though they had secured the highest marks from all women
candidates. Accepting the submission would result in non-consideration
of these women for open posts, despite their superior merit, only
because they belong to the backward classes. In the judgment in the
case of Rajesh Kumar Daria (Supra), the Hon'ble Supreme Court has
laid down that if ten posts are reserved for the scheduled castes and
out of ten posts three are reserved for the women, it would be necessary
to prepare the list of all the persons belonging to the scheduled castes,
both male and female, and then consider whether three women are
included in the list of first ten scheduled castes candidates in order of
merit and if the names of three women from the scheduled castes find
place in the list of ten candidates, further process in the matter of
appointing women from the S.C. category would not be necessary. In the
circumstances of the case, as we have narrated hereinabove and on the
basis of two charts pointing out the number of vacancies advertised by the
respondent no.2-M.P.S.C. and the number of marks secured by the
women candidates and the reservations provided for women, we find that
the Tribunal was not justified in dismissing the original application filed
by the petitioner.
WP 2670/17 12 Judgment
8. Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order of the Tribunal is hereby quashed and set aside. The
respondent no.2-M.P.S.C. is directed to recommend the name of the
petitioner for the post of Assistant Professor in Computer Engineering
meant for O.B.C (Women). In the circumstances of the case, there would
be no order as to costs.
With the disposal of the writ petition, civil application bearing
C.A.W. No.1195 of 2017 stands disposed of.
JUDGE JUDGE
APTE
