Bombay High Court
Smt. Nayana Krushnarao ... vs The State Of Maharashtra, Through ... on 31 March, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:9993-DB Nayana K Nangare v The State of Maharashtra & Anr
8-aswp-3079-2019-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3079 OF 2019
Nayana Krushnarao Nangare,
[Nayana Netaji Patil],
Aged 40 years, Occ. Service, C/o NV Patil,
2016, Ashtavinayak Colony, Vidya Nagar,
Karad, Dist Satara 415 125. ...Petitioner
~ versus ~
1. The State of Maharashtra,
Through the Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
2. The Deputy Director of
Education,
Kolhapur Region,
Kolhapur.
3. Rayat Shikshan Sanstha,
Satara
Through its Chairman/Secretary. ...Respondents
A PPEARANCES
for the petitioner Mr NV Bandiwadekar, Senior
Advocate, with Vinayak
Kumbhar, i/b AN
Bandiwadekar.
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for respondents An Advocate, i/b Milind Deshmukh.
nos. 1 & 2.
for respondent- Mr NC Walimbe, AGP.
state
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 31st March 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Rule. Rule returnable forthwith.
2. The Petitioner seeks a direction to the 3rd Respondent's
management to appoint her as a Shikshan Sevak in its aided higher
secondary schools/junior college based on merits, i.e., the marks
that the Petitioner obtained in a selection process conducted by the
3rd Respondent. The Petitioner has a B.A. in English, a B.Ed and an
M.A. in English. She also has an M.Ed degree. She belongs to the
Maratha caste, recognized as an educationally and socially backward
category ("ESBC") under the Government Resolution ("GR") of
15th July 2014. She also has a certificate of 3rd December 2014
declaring that she does not fall in the open category creamy layer.
She thus has a non-creamy layer certificate.
3. On 26th August 2014, the 3rd Respondent published an
advertisement in the daily Pudhari newspaper. A version was also
made available online. A copy of that advertisement is at Exhibit
"C" at page 23, and from page 24 we find a listing of the terms and
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conditions. The advertisement invited application for the posts of
Shikshan Sevaks in various subjects in the 3rd Respondent's higher
secondary schools and junior colleges. The 3rd Respondent is a
public charitable trust. The advertisement listed 28 available posts
for English and three additional ones were shown as proposed posts.
Altogether, a total of 69 posts across various subjects were notified.
Of these, 24 posts were earmarked for the open category. Another
14 posts were reserved for the ESBC (Maratha) reserved category.
Now condition 9 of the advertisement, which we find at page 25,
said that if a candidate from a reserved category was selected on
merits it would be presumed that their selection was in an open
category. We understand this to mean that a high-scoring reserved
category candidate would, based on merit, be entitled to an
appointment in the open category.
4. The Petitioner applied. She described herself as belonging to
the ESBC (Maratha) category. The necessary documents were
annexed and this is not contentious. That application was
scrutinized. There was an online examination admission letter. That
examination was held. It had a possible 60 marks. Altogether 1448
candidates applied and appeared for the examination in the English
subject.
5. In December 2014, the 3rd Respondent published a
provisional merit list for English. A copy of this is at Exhibit "F".
The Petitioner had scored 49 marks out of 60 in that examination.
She was placed at Serial No. 10. This provisional merit list was a
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combined merit list of candidates from open categories and from all
reserved categories.
6. This meant, Mr Bandiwadekar, learned Senior Counsel for
the Petitioner argues, and we think correctly, that the Petitioner,
because of her marks was entitled to be selected and appointed
notwithstanding the fact that she had applied against a reserved
category, i.e., ESBC (Maratha).
7. The Maratha caste reservation was under challenge before
this Court. There was an interim stay on the Government decision.
Candidates who had claimed the ESBC (Maratha) reserved category
were not called to an interview though their names were on the
provisional merit list. The Petitioner too was not called for an
interview. The difference, Mr Bandiwadekar submits, is that since
she had scored sufficiently high marks in the written examination,
she was entitled to be selected on the basis of merit and more
particularly since condition 9 of the advertisement said specifically
that where reserved category candidates had scored on merits they
would be appointed in the open category. Other reserved category
candidates and open category candidates were called for interviews
and seem to have been issued appointment orders.
8. An oral examination or viva was held on 22nd May 2016. On
account of the High Court stay, Petitioners and other ESBC
(Maratha) category candidates were not interviewed.
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9. On 6th November 2017 the Petitioner made a representation
to the State Government through the School Education Department
and also to the 3rd Respondent, in which she said that she had
scored sufficiently high marks to be considered for selection and
appointment on merit, i.e., to be called to the interview and
appointed. The Petitioner also made other approaches to other
authorities. On 3rd February 2018 she made another representation
to the 1st Respondent. There was no response. Meanwhile, the
Petitioner filed a query with the 3rd Respondent under the Right to
Information Act, 2005. The information she sought was given to her
by a letter of 5th February 2018. A list of the candidates interviewed
for the posts of Shikshan Sevaks in English was annexed. The
information revealed that those who were interviewed were all
appointed.
10. For the reasons that we have discussed the Petitioner's name
does not find place in this list. The persons at Sr. Nos. 2, 10 and 11
were also ESBC (Maratha) category, and had their names kept blank
meaning that they were not being interviewed. Mr Bandiwadekar
points out that more interviews were held on 1st July 2015 and 3rd
September 2015 when persons from the Nomadic Tribes (C) and
the Special Backward Classes category were interviewed for the
same posts of Shikshan Sevak in English.
11. On 22nd December 2017 the 3rd Respondent published a list
of candidates appointed as Shikshan Sevaks for English. The first
list has 25 candidates and reflects names of persons both from the
open category and various reserved categories.
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12. On 2nd July 2015, the 3rd Respondent published another list
for various subjects which included two candidates for English, one
from SBC and one from NT(C).
13. Of the 25 candidates appointed on the first list, four did not
accept the appointment, one each from NT(C) and open category
and two from SBC. Therefore only 21 candidates accepted the
appointment and joined the service. When the second list was
declared on 2nd July 2015, the 3rd Respondent made these two
appointments, one each from SBC and NT(C). The total number of
appointments for English were 23 against the advertised posts of 28.
Five posts thus remained vacant. Of the 25 candidates in the first
list, four did not accept the appointment including one candidate
from the open category. That post still remains open.
14. The Petitioner made another representation on 26th February
2018 and sent a reminder on 19th April 2018. She complains that
there is no action and she has therefore approached this Court.
15. The only point that Mr Bandiwadekar canvasses is that the
stay by the High Court on the ESBC (Maratha) reservation cannot
result in what is effectively a disqualification or an elimination from
appointment. Mr Bandiwadekar points out that even if the
Petitioner had applied in the ESBC (Maratha) category, if she had
secured sufficiently high marks she was entitled to be interviewed
and appointed in the open category. That is what condition 9 plainly
says. It was impermissible, he argues, for the management to
entirely exclude the Petitioner from consideration. Had the
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Petitioner not scored sufficiently high marks, then condition 9
would not apply, and she would not be entitled to be called for an
interview because of the stay on the reservation. In another manner
of speaking, condition 9 removes the reservation requirement
altogether because of the achievement on merit. This is why it says
that meritorious reserved category candidates will be appointed in
the open category.
16. What is particularly disturbing is that there is evidence even
on the record here to show that other persons though in some
reserved category were in fact called for an interview and received
an appointment in the open category. The list at Exhibit "F"
features the name of the Petitioner at Sr. No. 10. The person at Sr.
No. 15 was in the NT(C) category but by applying and operating
condition 9 was appointed in the open category. That person had
scored 48 marks (as against the Petitioner's 49 marks). Mr
Bandiwadekar also points out that candidates in the open category
itself with less marks than the Petitioner, i.e., less meritorious on a
pure merit-based ranking have got appointments in the open
category. The Petitioner may once have claimed to be ESBC
(Maratha) but on merits she is ahead of others in the open category;
because she applied in the ESBC (Maratha) category she has been
left out of the procedure entirely.
17. This is not an issue with the Government at all. We are unable
to understand why the management has not followed its own
condition 9 and proceeded to assess candidates on merits. We are
not shown any order of the High Court that could have prevented
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the management from treating the Petitioner as an eligible candidate
for an open category appointment on the basis of what she scored in
the written examination.
18. The Affidavit in Reply really has no answer to this case.
Prayer clause (c) does not seek a direct appointment. Neither does
the prayer clause (b). They both only ask that the 3rd Respondent
should consider the case of the Petitioner, that she be interviewed
and then, obviously subject to the results of the interview and
aggregation of marks, be appointed in the open category.
19. Today there are, we are told, five vacancies.
20. Thus, while we make Rule absolute in terms of prayer clauses
(b) and (c) and direct the 3rd Respondent to call the Petitioner for an
interview, we take the liberty of fixing the date of the interview with
at least four days advance notice before 21st April 2023. Until that
date, at least one of the existing vacancies must be maintained and is
not to be filled in the open category. We do not permit the 3rd
Respondent to exhaust all currently available open category posts
before 21st April 2023.
21. In the event that the Petitioner is appointed to the post a
proposal for approval to the Government must be sanctioned no
later than by 9th June 2023.
22. We clarify that in a matter like this there is no question of the
appointment of the Petitioner, if accepted and done by the 3rd
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Respondent, being required to be done through the online Pavitra
Portal and the Education Officer will not raise a grievance in that
regard.
23. The Petition is disposed of in these terms. No costs.
(Neela Gokhale, J) (G. S. Patel, J)
31st March 2023
