Bombay High Court
Sukumar Ganpatrao Bansode vs State Of Mah & Ors on 27 September, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 2703 OF 2005
Sukumar s/o Ganpatrao Bansode
Age 36 years, occup. service as
Police Constable, B. NO. 35,
Police Head Quarters, Osmanabad,
R/o Bharni Bldg., 3rd Floor,
Room No. 21, Near Devl Temple,
Police Line, Osmanabad .. Petitioner
versus
1) The State of Maharashtra
2) The Maharashtra Public Service
Commission, Mumbai,
through it's Secretary,
Bank of India Bldg., 3rd Floor,
M. G. Road, Mumbai
3) The Director General of Police,
Maharashtra State, Mumbai .. Respondents
-----
Mr. S. B. Bhapkar, Advocate for petitioner
Respondent no. 2 is served.
Ms S.S. Raut, Asstt. Govt. Pleader for respondents no.1 and 3
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 27th September, 2017
ORAL JUDGMENT :
1. Petition has been preferred against the order passed by
the Maharashtra Administrative Tribunal, Aurangabad, dated
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11-03-2005 in Original Application no. 835 of 2004, whereunder
request of present petitioner seeking direction to respondent
no. 2 - Maharashtra Public Service Commission ( ''MPSC'') to
recommend his name to respondent no.1 - State government for
appointment as Police-sub-Inspector pursuant to his
performance in limited departmental examination - 2002 as well
as direction to respondent no. 3 - Director General of Police to
send to respondent no. 2 MPSC the names of next-in-line
candidates from the list of qualified candidates prepared in
accordance with performance in limited departmental
examination - 2002, has been turned down.
2. Learned counsel for petitioner submits that only 37 posts
from 300 posts advertised had been reserved for scheduled
caste category while pursuant to advertisement 13 per cent
reservation is allotted and kept for scheduled caste category
candidates to which petitioner belongs which in terms of number
of posts comes to 39. In limited departmental performance
examination-2002 about three (3) candidates from scheduled
caste category including petitioner had secured equal marks but,
only the two others from scheduled caste category had been
recommended by respondent no. 2 MPSC. He submits that the
petitioner was next-in-line in the performance in said limited
departmental examination and in such a case, had there been
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reservation in true sense of 13 per cent as referred to in the
advertisement, total 39 posts would have been available for the
scheduled caste category candidates and in that eventuality
petitioner could certainly have been recommended. He,
therefore, urges to this court to consider the request, contending
that it is petitioner's constitutional right.
3. Learned counsel submits that in the face of such situation,
the recommendation of rigid fixation only to 300 candidates,
acts counter to intention underlying reservation and ought to be
approached with leniency and petitioner ought to be allowed to
assume the post of Police-sub-Inspector since he belongs to
scheduled caste category or in the alternative, the directions as
were sought before the Maharashtra Administrative Tribunal
ought to have been issued.
4. Learned Assistant Government Pleader appearing on
behalf of respondents no. 1 and 3 submits that the
advertisement had been issued in respect of 300 posts making
it clear in the same that 37 posts are reserved for scheduled
caste category and upon such advertisement the petitioner
without questioning its validity, had entered his appearance at
the requisite examination and while he could not stand in
competition and figure in the 300 recommended candidates, is
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coming back and contending that reservation ought to have
been of 39 posts. She submits that once the petitioner had
submitted himself to the entire selection process pursuant to
advertisement and if he is not selected, he would not be able to
question the advertisement and the reservation of the posts as
shown in the same.
5. Learned Assistant Government Pleader refers to paragraph
8 of the reply submitted on behalf of respondents no. 1 and 3
pointing out that though the petitioner had secured 269 marks
equal to those of the two other scheduled caste category
candidates recommended yet, his name did not figure in the list
of recommended candidates according to the criteria and the
standing order dated 28-08-2001 issued by MPSC - respondent
no.2. In said standing order, there is stipulation about criteria
to be considered for ranking of candidates securing equal marks
and under its application, petitioner's name did not find place in
the three hundred recommended candidates.
6. Learned Assistant Government Pleader relies on two
decisions, however, only the decision in the case of Bihar State
Electricity Board vs Suresh Prasad and others, AIR 2004 SC 1724 is
relevant for present matter wherein it has been observed by the
supreme court that the posts falling vacant for want of selected
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candidates joining cannot be filled up by candidates who are
qualified but are not placed in the final list. It has further been
observed that a successful candidate does not get indefeasible
right.
7. It appears that the petitioner is not a graduate and the
two other recommended candidates were graduate and by
application of criteria under standing order referred to earlier,
the petitioner stood below said two recommended candidates
albeit he has secured equal i.e. 269 marks in the limited
departmental examination - 2002.
8. Perusal of impugned decision rendered by the Maharashtra
Administrative Tribunal would show, it has been observed that
cut off number of candidates had been 300 pursuant to the
procedure adopted by the State government. The requisition of
300 candidates had been satisfied by 300 recommended
candidates.
9. The tribunal further has referred to decision of Bihar State
Electricity Case (supra) and found that the facts in the present
case and those in cited case were almost identical and as such,
the principle therein would also regulate and govern present
case.
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10. Having regard to aforesaid, we consider that while the
petitioner had appeared at the concerned examination with
understanding about reservation of only 37 posts for scheduled
caste category and while he could not figure in the merit list of
recommended candidates, he would not be able to come back
and say that, in fact, the reservation ought to have been of 39
posts and not 37.
11. Having regard to observations of the apex court in the
case of Bihar State Electricity Case (supra), we do not see that the
petition carries any merits and the challenge supposedly posed
to the order of the tribunal is thus unsustainable. The tribunal's
order is proper and correct and does not call for any interference
with.
12. Writ petition as such stands dismissed.
13. Rule stands discharged.
SANGITRAO S. PATIL SUNIL P. DESHMUKH,
JUDGE JUDGE
pnd
