Bombay High Court
Sarla D/O Madhukar Dhoke @ Mrs. ... vs The Maharashtra Public Service ... on 25 August, 2021
Bench: S.B. Shukre, Anil S. Kilor
Judgment 1 wp5721.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5721 OF 2019
Sarla D/o. Madhukar Dhoke @
Mrs. Sarala W/o. Anil Farkade,
aged about 39 years, Occupation:
Service (Asst.Engr. Grade-I),
R/o. 301, Swapnapurti Apartment,
Janaki Nagar, NAGPUR - 440 034.
.... PETITIONER.
// VERSUS //
1. The Maharashtra Public Service Commission,
through its Chairman/Authorised Officer,
3rd Floor, Bank of India Building, Hutatma
Circle, Mahatma Gandhi Road, MUMBAI.
2. The State of Maharashtra, through
the Secretary, Water Resources Department,
Mantralaya, MUMBAI.
3. Sonali Raosaeb Patil, aged major, Occ.Service,
4. Kshitija Sayajirao Suryawanshi, aged major,
Occ.: Service,
5. Anuradha Anandrao Jadhav, aged major,
Occ.: Service,
6. Mayura Subhash Joshi, aged major, Occ.Service,
7. Vinaya Dattatray Badani, aged major, Occ.:Service,
8. Surekha Bhimrao Rorke, aged major, Occ.:Service,
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Judgment 2 wp5721.19.odt
9. Prajakta Sanjay Patil, aged major, Occ.:Service,
10. Aparna Ashok Kapse, aged major, Occ.:Service,
11. Sonal Sanjay Patil, aged major, Occ.:Service,
Respondents No.3 to 11 C/o. Respondent No.2,
The State of Maharashtra, Water Resources
Department, Mantralaya, MUMBAI,
through its Secretary.
.... RESPONDENTS.
______________________________________________________________
Shri Sayaji Jagtap, Advocates for Petitioner.
Shri A.S.Fulzele, Addl. G.P. for Respondent Nos. 1 and 2.
______________________________________________________________
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATED : AUGUST 25, 2021
ORAL JUDGMENT : (Per : Anil S. Kilor, J.)
1. Heard.
2. RULE. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
3. In this petition, the challenge is raised to the order dated 15 th
March 2019 passed by the Maharashtra Administrative Tribunal in
Original Application No. 660 of 2015, dismissing the Original
Application preferred by the petitioner raising a grievance that the
Maharashtra Public Service Commission ("MPSC" for short) illegally
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denied selection of the petitioner in Open Category though found more
meritorious that some Open Category candidates and wrongly
considered her in Backward Category, contrary to the well settled
principles of law.
4. The facts in brief which gave rise to the present petition
are as follows:
5. The petitioner, who was working as Assistant Engineer Grade-
I (AE-1) at Irrigation Project Investigation Sub-Division, Nagpur, had
applied for the Maharashtra Engineering (Civil Services), Group-A
examination under Other Backward Classes (OBC) in Water Resources
Department ("WRD" for short) in Open Category to be appointed as
Assistant Executive Engineer (AEE) with the respondent WRD.
Consequently, she has cleared the Preliminary Examination and Main
Examination, however, at the time of declaration of the results and
recommendations, the petitioner was held not to be selected in Open
Category though the petitioner scored 274 marks equal to two Open
female candidates at Sr.Nos. 73 and 74 in the recommendation list of
WRD and more marks than 9 female Open Candidates recommended
to WRD from Sr.No.75 onwards and the petitioner was considered in
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OBC category which gave cause for filing Original Application No.660
of 2015 before the Maharashtra Administrative Tribunal.
6. The Maharashtra Administrative Tribunal passed the
impugned order on 15th March 2019, dismissing all the connected
Original Applications including O.A. No.660 of 2015 preferred by the
petitioner, the same is under challenge in this petition.
7. We have heard the learned counsel for the respective parties.
8. Shri Sayaji Jagtap, learned counsel for the petitioner points
out that the common judgment dated 15/03/2019 was passed in the
case of petitioner and in a matter of one Seema Sudhakar Munjewar,
the same was challenged before this Court in Writ Petition No.3290 of
2019 at the instance of Seema Sudhakar Munjewar. It is further
pointed out that in view of the judgment passed by the Hon'ble
Supreme Court of India in the case of Saurav Yadav and others vs..
State of Uttar Pradesh and others , reported in 2020 Law Suit (SC) 784
and considered by this Court in Lata Shyamrao Sangolkar ..vs.. State of
Maharashtra and others, reported in 2021(3) ABR 246, the said writ
petition was disposed of with declaration in favour of the petitioner in
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that case. Hence, the learned counsel for the petitioner prays for
similar order in this matter.
9. Learned A.G.P. Shri A.S.Fulzele appearing for respondent
Nos. 1 and 2 fairly accepts that this case is covered by the judgment of
this Court in Writ Petition No. 3290 of 2019.
10. In the above facts and circumstances, the judgment in Writ
Petition No. 3290 of 2019 is squarely applicable to the case of the
petitioner herein. The relevant paras of the aforesaid judgment are as
follows:
"6. The decision in Saurav Yadav and others
(supra)was considered by a co-ordinate Bench of
this Court in Lata Shyamrao Sangolkar Vs. State of
Maharashtra and others, reported in 2021 (3) ABR
246. The relevant paragraphs from such decision
are quoted below :-
"10. Law is well settled that if a candidate
belonging to a reserved category is entitled to
be selected on the basis of his own merit, his
selection cannot be counted against the quota
reserved for the category for vertical
reservation to which he belongs. The question
as to whether such legal position would also
apply to individuals selected on the basis of
their own merit but belonging to reserved
categories for which horizontal reservation has
been provided, came up for consideration
before the Supreme Court in Saurav Yadav
(supra) and the question was answered in the
affirmative.
Judgment 6 wp5721.19.odt
12. Today, we have heard Mr. Kumbhakoni. He
has, in his usual fairness, submitted that the
contents of the reply affidavit filed by the State
does not reflect the correct position of law and
that the petitioner had been illegally denied of
appointment by not accommodating her in any
of the 'unreserved' or 'open' category vacancies
for women, regard being had to the fact that
belonging to the OBC category and securing
more marks than the candidates who have
been appointed securing lesser marks, i.e., the
respondents 2 to 7, she ought to have been
offered appointment in preference to them."
7. The aforesaid extract would reveal the
submissions advanced on behalf of the State by Mr.
Kumbhakoni, learned Advocate General for the
State of Maharashtra who had, in similar
circumstances, submitted that candidates like the
petitioner ought to be accommodated on posts
where horizontal reservation applies, subject to
merit."
11. In the facts and circumstances, we pass the following
order:
The impugned judgment and order dated 15/03/2019 to
the extent, it affects the petitioner is hereby quashed and set aside. The
respondent No.1 is directed to place the petitioner in the list of the
recommended candidates, dated 24/09/2015, for the appointment on
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the post of Assistant Executive Engineer (Civil) Group-A Water
Resources Department in Open Category with all consequential
benefits.
Rule accordingly. No costs.
( ANIL S. KILOR, J ) ( SUNIL B. SHUKRE, J.)
RRaut..
