Bombay High Court
Sayali Nitin Inamke vs The State Of Maharashtra And ... on 5 September, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
2023:BHC-AUG:19231-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12532 OF 2019
Kum Sayali Nitin Inamke,
Age. 27 years, Occ. Service,
R/o. Osmanabad Medium Project
Division, Sinchan Bhavan, Anand Nagar,
Osmanabad,
Tal. & Dist. Osmanabad. .. Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
General Administration Department,
Mantralaya, Mumbai - 32.
2. Maharashtra Public Service Commission,
Having its Office at Bank of India
Building, 3rd Floor, Mahatma Gandhi Road,
Hutatma Chowk,
Mumbai - 400 001,
Through its Additional Secretary.
3. Jyoti Shamrao Bhillare,
Age. Major, Occ. Nil,
4. Seema Balasaheb Raut,
Age. Major, Occ. Nil,
5. Dipali Balasaheb Patil,
Age. Major, Occ. Nil,
6. Apurva Vilas Patil,
Age. Major, Occ. Nil,
Resp. Nos. 3 to 6 to be
served through respondent No.2
Maharashtra Public Service Commission,
Having its Office at Bank of India
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Building, 3rd Floor, Mahatma
Gandhi Road, Hutatma Chowk,
Mumbai - 400 001,
Through its Additional Secretary. .. Respondents
Shri S. S. Thombre, Advocate for the Petitioner.
Shri A.S. Shinde, A.G.P. for the Respondent Nos. 1 and 2.
Shri Avinash S. Khedkar, Advocate for the Respondent No. 6.
The Respondent Nos. 3 to 5 are served.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT/ORDER ON : 20.06.2023
JUDGMENT/ORDER PRONOUNCED ON : 05.09.2023.
JUDGMENT (Per Shailesh P. Brahme, J.) :-
. Rule. Rule is made returnable forthwith. With the consent
of the parties heard learned counsel for final disposal at
admission stage.
2. The petitioner is challenging judgment and order dated
02.03.2016, passed by learned Members of the Administrative
Tribunal, Mumbai bench at Aurangabad dismissing her Original
Application No. 744 of 2015. The petitioner is aggrieved by
exclusion of her name from the selection process for the post of
Maharashtra Engineer (Civil Service) Group - A. She has also
prayed for the directions to recommend her name as per merit
from the open category and simultaneously to cancel the
recommendations of the respondent Nos. 3 to 6.
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3. The petitioner had filed Original Application No. 744 of
2015 with following contentions :
i. She belongs to Other Backward Class (OBC) category. She
was holding requisite educational qualification for the post
advertised. The respondent no. 3 to 6 are the successful
recommended candidates from the open category having less
marks than the petitioner.
ii. The respondent No. 2 issued an advertisement No. 62 of
2018 on 13.09.2013 for recruitment of 682 posts. The
advertisement provided for horizontal reservation. The
petitioner had applied for Maharashtra Engineering (Civil
Service) Group A. On 30.10.2013 the preliminary Exam was
conducted. She was successful.
iii. On 19.12.2013 advertisement for mains was published.
Petitioner applied for it. She was successful in the written test.
She was called for interview.
iv. On 23.10.2015 the result was declared. She scored 242
marks with remark not recommended. The respondent nos. 3 to
6 were recommended, though they were having lesser marks.
v. She prayed for the direction that the respondent No. 2
ought to have recommended her having scored more marks than
the recommended candidates from OBC and has been claiming
horizontal reservation.
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4. The respondent No. 2 appeared before the Tribunal and
contested the application on the ground that the petitioner had
scored less marks in her category. She was not eligible for the
recommendation. As per government circular dated 13.08.2014,
the candidate from other vertical reservation category was not
eligible to be considered for the post reserved for open female
category. The respondent no. 6 also contested the matter by
filing separate reply. A reliance was placed upon the decision
rendered by the Tribunal at Aurangabad in Irfan Mustafa
Shaikh Vs. State of Maharashtra (O. A. No. 301 of 2009 dated
26.08.2009). It was stated that the said decision was confirmed
by High Court and Supreme Court also. She supported the reply
of respondent No. 2.
5. The learned Members of the Tribunal relied upon the
decision in case of Irfan Mustafa Shaikh Vs. State of
Maharashtra (supra) and the circular dated 13.08.2014 to hold
that only candidates from the open category and no other
candidates like SC, ST, OBC, etc. would be entitled to horizontal
reservation in open category. A finding was recorded by the
Tribunal that horizontal reservation in open category can be
filled up only from the candidates applying from open and open is
one of the vertical categories for the purposes of horizontal
reservation along with other categories like SC, ST and OBC.
Thus, the original application was dismissed.
6. The petitioner has preferred this writ petition on
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10.10.2019 challenging the judgment and order dated
02.03.2016. The petitioner has raised grounds that she had
applied from OBC category. Being female which is horizontal
reservation, she was entitled to be considered from unreserved
category. The migration or the interchangeability was
permissible which was overlooked. She was more meritorious
than the selected candidates. It is further submitted that the
circular dated 13.08.2014 was not applicable because the
selection process had already commenced and the circular would
operate prospectively.
7. The delay and laches are sought to be explained by relying
upon the judgment of this Court in Writ Petition No. 4159 of
2018, decided on 08.08.2019.
8. The respondent No. 6 has filed affidavit in reply. The
respondent Nos. 3 to 4 did not cause appearance despite service
of notice for final adjudication. The respondents reiterated that
petitioner having applied from OBC category was not eligible to
migrate to open category against the horizontal reservation. The
petitioner had availed concession in the fees being an OBC
candidate and her candidature could not have been considered
for filling the posts from open category. It is contended that in
the matters of compartmentalized reservation candidates cannot
be permitted to migrate to open category. A preliminary objection
was raised on the ground of delay and laches.
9. The petitioner is relying upon following judgments of the
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Supreme Court and this Court :
i. Suarav Yadav and others Vs. State of Uttar Pradesh ,
reported in (2021) 4 SCC 542 ;
ii. Charushila and others Vs, The State of Maharashtra and
others reported in 2019(6) Bom.C.R. 651.
iii. Sarla Madhukar Dhoke Vs. Maharashtra Public Service
Commission and others in Writ Petition No. 5721 of 2019.
10. The respondent No. 6 is relying upon following judgments
of the Supreme Court:
i. Sankar Mondal Vs. State of West Bengal and others
reported in MANU/SCOR/12400/2022.
ii. Chairman/Managing Director UP Power Corporation and
others Vs. Ram Gopal reported in MANU/SC/0108/2020.
iii. State of U.P. Vs. Arvind Kumar Shrivastava reported in
MANU/SC.0948/2014.
iv. Charushila and others Vs, The State of Maharashtra and
others (supra)
11. So far as the preliminary objection raised by the
respondents on ground of delay and laches is concerned, an
explanation is tendered by the petitioner in the memo of writ
petition. A similar issue was under consideration in Writ
Petition No. 4159 of 2018 before the High Court. It was finally
decided on 08.08.2019, prescribing modality for applying
horizontal and vertical reservations. The respondents
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accordingly revised the select list on 07.02.2019. The petitioner
did not find place in the revised list also. The petitioner filed
petition in this Court on 10.10.2019.
12. The learned counsel for the petitioner submits that the
cause of action is recurring one. He has drawn our attention to
the judgment of the Maharashtra Administrative Tribunal,
Mumbai in Original Application No. 1033 of 2015 of Tarkeshwari
Devkaran Tayade Vs. Maharashtra Public Service Commission
and others. The applicant in that matter had approached the
Tribunal being excluded from the selection process though she
was meritorious than the respondents. Pertinently, before the
Tribunal an identical selection process was under challenge. The
Tribunal allowed the original application and directed the
applicants to be placed in the list of recommended candidates.
13. The learned counsel has further drawn our attention
to the judgment of the Nagpur Bench in the matter of Sarla
Madhukar Dhoke Vs. Maharashtra Public Service Commission
and others in Writ Petition No. 5721 of 2019. The judgment of
the Nagpur Bench is relied upon by the Tribunal in Tarkeshwari
Tayade's case. The Nagpur Bench had allowed the writ petition
with a direction to include the petitioner's name in the list of
recommended candidates. In both the matters the issue was
pertaining to migration of reserved category candidates in
horizontal reservation in open category. We find that in the
present matter the petitioner has raised triable and arguable
points. It would not be appropriate to dismiss the petition on the
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technical ground of laches.
14. The judgment cited by the respondents in the matter
Sankar Mondal Vs. State of West Bengal and others, (supra) is
distinguishable. In that case, the candidate instead of
approaching the Court was waiting for 07 long years for getting
appointment letter and then suddenly filed proceedings. The
facts in hand are different. There were proceedings before
different forums for consideration during the interregnum
period. The next judgment of the Supreme Court in the matter
of Chairman/Managing Director UP Power Corporation and
others Vs. Ram Gopal (supra) is also distinguishable. There is
no unreasonable lapse of time and unexplained inordinate delay
on the part of present petitioner. The petitioner cannot be said
to be a fence seater and barged in the Courts. Last one judgment
cited of the Supreme Court in case of State of U.P. Vs. Arvind
Kumar Shrivastava (supra), also does apply to the facts of the
present case.
15. In the present matter the petitioner has explained
delay and laches satisfactorily. We prefer to adopt pragmatic
approach. The matter needs to be entertained on merits. We,
therefore, proceed to examine the matter on merit.
16. The petitioner had applied from vertical reservation
for OBC. There was horizontal reservation prescribed in the
advertisement for women. The petitioner was eligible to compete
from OBC women category. She had secured 242 marks. The
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marks secured by the respondent Nos. 3 to 6 were less and still
they were selected from unreserved (Open women) category.
17. The social or vertical reservations are provided by Article
15(4) and 16(4) of the Constitution. Whereas the horizontal
reservations or special reservations are provided by Article 16(1)
and 15(3) of the Constitution. The advertisement issued by the
respondent No. 2 does not provide the horizontal reservations.
No express instruction, memorandum, policy decision or the
communication is placed on record to suggest that there was
compartmentalized reservation. There is no reference of break
up of the post of horizontal reservation to be adjusted with
specific number of post from the vertical reservation. In other
words, there is no prohibition for interchangeability or migration
of horizontal reservation to any other category.
18. It is noticed that when petitioner applied for the post in
pursuance of first advertisement she had paid fees of Rs. 135/-
being from backward class category. The regular fees at the
relevant time was Rs. 260/-. When she applied for main
examination in pursuance of subsequent advertisement she paid
fees of Rs. 215/-, when it was Rs. 415/- for non backward class
category candidates. She availed the concession in fees. There is
no material on record to show that she enjoyed any other benefits
during the process of selection such as relaxation of age limit,
experience, qualification, permitted attempts etc.
19. It is necessary to examine whether there was any
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instruction, circular, memorandum or condition incorporated in
advertisement prohibiting migration of the reserved category
candidate to the open category by claiming horizontal reservation
for those who have availed the benefits during the process of
selection such as concession in fees, relaxation of age, relaxation
of experience or qualification, etc.
20. Though the petitioner has availed concession of fees that
does not affect her entitlement to migration or right to seek
interchange. The concession extended to the petitioner in fees
has no nexus to her performance on merit. The relaxation given
in payment of fees was only to bring her at par with other
candidates and to provide equal opportunity of competition and
nothing else. The concession has extremely limited role to play.
It is relevant to notice the observations of the Supreme Court in
the matter of Jitendra Kumar Singh and another Vs. State of U.
P. and others reported in (2010) 3 SCC 119. Para Nos. 72 and
75 of the above judgment read as under :
"72. Soon after the enforcement of the 1994 Act the
Government issued instructions dated 25.03.1994 on the
subject of reservation for Scheduled Caste, Scheduled Tribe
and other backward groups in the Uttar Pradesh Public
Services. These instructions, inter alia, provide as under:-
"4. If any person belonging to reserved categories
is selected on the basis of merits in open
competition along with general candidates, then
he will not be adjusted towards reserved category,
that is, he shall be deemed to have been
adjusted against the unreserved vacancies. It
shall be immaterial that he has availed any
facility or relaxation (like relaxation in age limit)
available to reserved category."
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75. In our opinion, the relaxation in age does not in any
manner upset the "level playing field". It is not possible to
accept the submission of the learned counsel for the
appellants that relaxation in age or the concession in fee
would in any manner be infringement of Article 16 (1) of the
Constitution of India. These concessions are provisions
pertaining to the eligibility of a candidate to appear in the
competitive examination. At the time when the concessions
are availed, the open competition has not commenced. It
commences when all the candidates who fulfill the eligibility
conditions, namely, qualifications, age, preliminary written
test and physical test are permitted to sit in the main written
examination. With age relaxation and the fee concession,
the reserved candidates are merely brought within the zone
of consideration, so that they can participate in the open
competition on merit. Once the candidate participates in the
written examination, it is immaterial as to which category,
the candidate belongs. All the candidates to be declared
eligible had participated in the Preliminary Test as also in the
Physical Test. It is only thereafter that successful candidates
have been permitted to participate in the open competition."
21. It is expedient for any employer or undertaker of the
selection process to declare expressly any stipulation of
restrictions or prohibition on a reserved category candidate
availing any concession in fees, age limit, experience, etc., before
hand. The participants and the people at large are necessarily to
be informed about such type of stipulation before commencement
of selection process. They can exercise their discretion or option
to take benefit of concession or not. Such a declaration before
hand would operate as estoppel for any subsequent claims of the
defeating candidates. This would ensure the fair play,
transparency and equality.
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22. In the present case there was no such an express
declaration. The respondents are unable to point out any
condition or stipulation that reserved category candidates
availing the concessions stated above would be ineligible to
migrate to an unreserved category. The petitioner cannot be
deprived of her eligibility of migration for claiming the horizontal
reservation in open category.
23. Both the parties have placed reliance upon the judgment
delivered by the High Court in the matter of Charusheela and
others Vs. The State of Maharashta and others. In that
judgment High Court considered the previous judgment of the
Supreme Court in the matter of Jitendra Kumar Singh and
another Vs. State of U. P. and others and Deepa E. V. Vs. Union
of India and others. The Supreme Court in the matter of
Jitendra Kumar Singh (supra) was dealing with the facts in the
context of U. P. Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Class) Act, 1994.
Whereas, in the matter of Deepa E. V. there was office
memorandum specifically stipulating the prohibition to the
candidates availing the benefits of concessions from claiming any
adjustment in the open category. The paragraph No. 34 and 40
in Charusheela's matter are as follows :
34. In the matter of Deepa E.V. Vs. Union of India
and others, (2017) 12 SCC 680, it is held that in the
event relaxation is granted to a reserved category
candidate in respect of agelimit, experience, criteria for
qualifying marks, etc., such candidate cannot claim right
to be appointed under open/general category. In the
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reported matter, the appellant before the Hon'ble Supreme
Court had secured 82 marks and she was placed in the list
of candidates belonging to OBC category. One Ms. Serene
Joseph from OBC category, who had secured 93 marks,
was selected and appointed. So far as general category is
concerned, no candidate had secured the minimum cufoff
marks i.e. 70 marks. The appellant filed a writ petition to
the High Court, which came to be dismissed. Being
aggrieved thereby, she approached the Hon'ble Supreme
Court. It was held by the Hon'ble Apex Court that the
appellant, who had applied from OBC category by availing
age relaxation and also attending the interview under the
OBC category, cannot claim right to be appointed under
the General category. The Office Memorandum specifically
records that the candidates securing relaxed standards in
respect of agelimit, experience, qualification, permitted
number of chances in written examination, extended zone
of consideration larger than what is provided for general
category candidates, they would be counted against the
reserved vacancies and such candidates would be deemed
as unavailable for consideration against unreserved
vacancies. So far as the applicability of principle in the
mater of Jitendra Kumar Singh Vs. State of Uttar
Pradesh, (2010) 3 SCC 119, it was held that the said
principle cannot be made applicable in view of the express
bar prohibiting consideration of the candidates from
general category. In the circumstances, the Court had
taken a view that the relaxation granted to reserved
category candidates will operate a level playing field.
40. Even in case of compartmentalized horizontal
reservations, the seats that are allotted to open category
or quota, can be claimed by anybody and everybody, who
is entitled to claim a seat or post on the basis of merit,
which will include candidates even belonging to open
category i.e. all candidates even belonging to any reserved
category whichever, horizontal or vertical. However, the
only exception can be carved out, as has been stipulated
in the judgment of the Hon'ble Supreme Court that if the
applicable rule or the advertisement specifically provide to
the contrary, such migration shall not be permitted from
the reserved category to the open category for claiming
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compartmentalized reservation provided for open
category. Those candidates belonging to reserved
category, who have already enjoyed the benefits during
the process of selection, such as concession in fees,
relaxation of age, relaxation in the merit criteria, would
not be eligible to claim benefits of migration from reserved
category to open category for claiming a seat or post."
24. If we see the decisions of the Supreme Court in the matter
of Jitendra Kumar, Deepa E. V. and Gaurav Pradhan then
irresistible conclusion can be drawn that there has to be
government circular or memorandum or policy or the statutory
provision for prohibiting migration of reserved category
candidate availing the benefit or concession to horizontal
reservation in open category. In absence of any such prohibition
to deprive reserved category candidate to migrate to the
horizontal open category on his/her merits is against the law laid
down in Saurav Yadav's case by the Supreme Court.
25. In Charushila's matter there was no express declaration or
stipulation prohibiting migration of reserved category candidate
to open category on the concession or benefit of extended age,
fees, qualification, etc. The judgment rendered therein was
approved by the Supreme Court in Saurav Yadav's case.
However, in the matter in hand there is only bald statement of
the respondent No. 6 in the reply that the petitioner had availed
the concession in fees and, therefore, her migration to open
category was impermissible. This defence is not substantiated by
the respondents. We have considered the principles laid down in
the Jitendra Kumar Singh's case. In that view of the matter, the
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defence raised by the respondent No. 6 cannot be accepted.
26. The interplay of vertical and horizontal reservation is
explained by the Supreme Court in the matter of Indra Sawhney
Etc. Vs. Union of India and others reported AIR 1993 SC 477.
The same was followed in various judgments. Inconsistent views
were expressed by various High Courts. The controversy was
ultimately settled by the Three Judges Bench of the Supreme
Court in the matter of Saurav Yadav and others (supra). In
paragraph No. 23 of the judgment two views are referred as
follows :
"23. The High Courts of Rajasthan, Bombay,
Uttarakhand, and Gujarat have adopted the same
principle while dealing with horizontal reservation
whereas the High Court of Allahabad and Madhya
Pradesh have taken a contrary view. These two views,
for facility, are referred to as the "first view" and the
"second view" respectively. The second view that
weighed with the High Courts of Allahabad and Madhya
Pradesh is essentially based on the premise that after the
first two steps as detailed in paragraph 18 of the decision
in Anil Kumar Gupta and Others13 and after vertical
reservations are provided for, at the stage of
accommodating candidates for effecting horizontal
reservation, the candidates from reserved categories can
be adjusted only against their own categories under the
concerned vertical reservation and not against the "Open
or General Category".
27. The first view is to the effect that while operating
horizontal reservation in open category, the candidates belonging
to any vertical category can be considered. Such candidate
having eligibility and merit can be adjusted in open category.
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28. The second view adopts different principle which is stated
in para 24, which reads as follows :
"24. Thus, according to the second view, different
principles must be adopted at two stages; in that:-.
(I) At the initial stage when the "Open or General
Category" seats are to be filled, the claim of all
reserved category candidates based on merit must be
considered and if any candidates from such reserved
categories, on their own merit, are entitled to be
selected against Open or General Category seats,
such placement of the reserved category candidate is
not to affect in any manner the quota reserved for
such categories in vertical reservation.
(II) However, when it comes to adjustment at the
stage of horizontal reservation, even if, such reserved
category candidates are entitled, on merit, to be
considered and accommodated against Open or
General Seats, at that stage the candidates from any
reserved category can be adjusted only and only if
there is scope for their adjustment in their own
vertical column of reservation.
Such exercise would be premised on following
postulates: -
(A) After the initial allocation of Open General
Category seats is completed, the claim or right of
reserved category candidates to be admitted in Open
General Category seats on the basis of their own merit
stands exhausted and they can only be considered
against their respective column of vertical reservation.
(B) If there be any resultant adjustment on
account of horizontal reservation in Open General
Category, only those candidates who are not in any
of the categories for whom vertical reservations is
provided, alone are to be considered.
(C) In other words, at the stage of horizontal
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reservation, Open General Category is to be
construed as category meant for candidates other
than those coming from any of the categories for
whom vertical reservation is provided."
29. Ultimately the Supreme Court upheld the first view and
disapproved the second view in para Nos. 31, 32, 33. Same are
reproduced as under.
"31. The second view is thus neither based on any
authoritative pronouncement by this Court nor does it
lead to a situation where the merit is given precedence.
Subject to any permissible reservations i.e. either Social
(Vertical) or Special (Horizontal), opportunities to public
employment and selection of candidates must purely be
based on merit. Any selection which results in candidates
getting selected against Open/General category with less
merit than the other available candidates will certainly be
opposed to principles of equality. There can be special
dispensation when it comes to candidates being
considered against seats or quota meant for reserved
categories and in theory it is possible that a more
meritorious candidate coming from Open/General
category may not get selected. But the converse can
never be true and will be opposed to the very basic
principles which have all the while been accepted by this
Court. Any view or process of interpretation which will
lead to incongruity as highlighted earlier, must be
rejected.
32. The second view will thus not only lead to irrational
results where more meritorious candidates may possibly
get sidelined as indicated above but will, of necessity,
result in acceptance of a postulate that Open / General
seats are reserved for candidates other than those coming
from vertical reservation categories. Such view will be
completely opposed to the long line of decisions of this
Court.
33. We, therefore, do not approve the second view and
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reject it. The first view which weighed with the High
Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is
correct and rational."
30. The method of calculation indicated by High Court of
Gujrat in the matter of Tammanaben Ashokbhai Desai was
declared to be the correct and appropriate procedure for
operating both types of reservation. In Saurav Yadav's case the
Supreme Court approved it as follows :
"36. Finally, we must say that the steps indicated by the
High Court of Gujarat in para 56 of its judgment in
Tamannaben Ashokbhai Desai29 contemplate the
correct and appropriate procedure for considering and
giving effect to both vertical and horizontal reservations.
The illustration given by us deals with only one possible
dimension. There could be multiple such possibilities.
Even going by the present illustration, the first female
candidate allocated in the vertical column for Scheduled
Tribes may have secured higher position than the
candidate at Serial No.64. In that event said candidate
must be shifted from the category of Scheduled Tribes to
Open / General category causing a resultant vacancy in
the vertical column of Scheduled Tribes. Such vacancy
must then enure to the benefit of the candidate in the
Waiting List for Scheduled Tribes - Female. The steps
indicated by Gujarat High Court will take care of every
such possibility. It is true that the exercise of laying down
a procedure must necessarily be left to the concerned
authorities but we may observe that one set out in said
judgment will certainly satisfy all claims and will not lead
to any incongruity as highlighted by us in the preceding
paragraphs."
31. Let us see the approved procedure laid down by Gujrat
High Court in Tamannaben Desai's case :
19 wp 12532.19
The High Court then laid down:-
"56. For the future guidance of the State Government, we
would like to explain the proper and correct method of
implementing horizontal reservation for women in a more
lucid manner.
"PROPER AND CORRECT METHOD OF IMPLEMETING
HORIZONTAL RESERVATION FOR WOMEN.
No. of posts available for recruitment. ..... 100
Social Reservation quota (49%)
Open Competition (OC) ..... 51
Scheduled Caste (SC ) ..... 12
Scheduled Tribe (ST) .....17
Socially and Educationally
Backward Classes (SEBC) .....20
Horizontal Reservation for Women (33% in each of
the above categories)
OC .....17
SC ....04
ST ....06
SEBC ....07
Step 1: Draw up a list of at least 100 candidates (usually a
list of more than 100 candidates is prepared so that
there is no shortfall of appointees when some
candidates don't join after offer) qualified to be
selected in the order of merit. This list will contain
the candidates belonging to all the aforesaid
categories.
Step 2: From the aforesaid Step 1 List, draw up a list of
the first 51 candidates to fill up the OC quota (51)
on the basis of merit. This list of 51 candidates may
include the candidates belonging to SC, ST and
SEBC.
20 wp 12532.19
Step 3: Do a check for horizontal reservation in OC quota.
In the Step 2 List of OC category, if there are 17
women (category does not matter), women's quota
of 33% is fulfilled. Nothing more is to be done. If
there is a shortfall of women (say, only 10 women
are available in the Step 2 List of OC category), 7
more women have to be added. The way to do this is
to, first, delete the last 7 male candidates of the
Step 2 List. Thereafter, go down the Step 1 List after
item no. 51, and pick the first 7 women (category
does not matter). As soon as 7 such women from
Step 1 List are found, they are to be brought up and
added to the Step 2 List to make up for the shortfall
of 7 women. Now, the 33% quota for OC women is
fulfilled. List of OC category is to be locked. Step 2
List list becomes final.
Step 4: Move over to SCs. From the Step 1 List, after item
no. 51, draw up a list of 12 SC candidates (male or
female). These 12 would also include all male SC
candidates who got deleted from the Step 2 List to
make up for the shortfall of women.
Step 5: Do a check for horizontal reservation in the Step 4
List of SCs. If there are 4 SC women, the quota of
33% is complete. Nothing more is to be done. If
there is a shortfall of SC women (say, only 2 women
are available), 2 more women have to be added. The
way to do this is to, first, delete the last 2 male SC
candidates of the Step 4 List and then to go down
the Step 1 List after item no. 51, and pick the first 2
SC women. As soon as 2 such SC women in Step 1
List are found, they are to be brought up and added
to the Step 4 List of SCs to make up for the shortfall
of SC women. Now, the 33% quota for SC women is
fulfilled. List of SCs is to be locked. Step 4 List
becomes final. If 2 SC women cannot be found till
the last number in the Step 1 List, these 2 vacancies
are to be filled up by SC men. If in case, SC men are
also wanting, the social reservation quota of SC is to
be carried forward to the next recruitment unless
21 wp 12532.19
there is a rule which permits conversion of SC quota
to OC.
Step 6: Repeat steps 4 and 5 for preparing list of STs.
Step 7: Repeat steps 4 and 5 for preparing list of
SEBCs."
32. If we see step No. 3 referred above, then it becomes clear
that the migration of reserved category woman candidate is
permissible to the open category, in case there is shortfall of
candidate from horizontal category. It candidly professes
migration of horizontal category candidate and his/her
adjustment in open category. We are faced with same situation
in the present matter.
33. In view of the law laid down by the Supreme Court in the
matter of Saurav Yadav and others (supra) the findings recorded
by the Tribunal that horizontal reservation in open can be filled
in only from the candidates applying from open is unsustainable
and perverse. Similarly the inference drawn by the Tribunal
from Irfan Mustafa's judgment that candidates from open
category and no other categories like S.C. S.T. OBC, etc. will be
entitled to reservation in horizontal category is also illegal.
34. In Irfan Mustafa's matter the circular of 16.03.1999 was in
force. Thereafter there was circular dated 13.08.2014. The
appropriate and correct procedure laid down in Tammannaben
Desai's case governs the field and would prevail over circulars.
The subsequent developments in the legal scenario by
22 wp 12532.19
Tammannaben Desai's case and Saurav Yadav's case, annul the
decision of Irfan Mustafa's case. In that view of the matter, the
impugned judgment and order is unsustainable.
35. The learned counsel for the petitioner has relied upon the
judgment delivered by the Nagpur Bench of this Court in the
matter of Sarla Madhukar Dhoke @ Mr. Sarla W/o Anil Farkade
Vs. The M.P.S.C. and others in Writ Petition No. 5721 of 2019.
In that judgment there is reference to the decision of the
Supreme Court in Saurav Yadav's case. The judgment in that
matter was founded on the matter of Seema Munjewar's case
decided in Writ Petition No. 3290 of 2019. It was emanating
from the same selection process. The petition was allowed by the
Nagpur Bench. We also propose to concur with the view taken
by the coordinate Bench of this Court. As the learned counsel for
parties have argued the matter relying upon various judgments,
we have assigned elaborate and separate reasons.
36. It is further submitted by the respondents that the
selection process was concluded long back. The impugned
judgment was passed on 02.03.2016. Thereafter, on 07.09.2019,
there was revision of final list. Considering the inordinate time
spent after the finalization of the selection process it is not
appropriate to grant any relief to the petitioner.
37. We have noticed that the Nagpur Bench decided Sarla
Dhoke's matter on 25.08.2021. The petitioner in that case was
directed to be included in the select list. The Tribunal also in a
23 wp 12532.19
distinct matter of Tarkeshwari Tayade has shown indulgence
and directed to incorporate name of the then applicant in the list
of recommended candidates by judgment dated 05.09.2022.
These two judgments pertain to the self same selection process.
In the present case the petitioner has made out a case on the
basis of law laid down by the Supreme Court. She is illegally
deprived of her entitlement. Therefore, we do not find any
impediment in directing the respondents to incorporate the name
of the petitioner in the list of recommended candidates and to
take further steps as permissible in law.
38. For the reasons narrated above, we are of the considered
view that the writ petition deserves to be allowed by passing
following order.
ORDER
A. The judgment and order dated 02.03.2016 passed by the
Maharashtra Administrative Tribunal, Bombay Bench at
Aurangabad in Original Application No. 744 of 2015 is quashed
and set aside.
B. The respondents shall incorporate the name of the
petitioner in the list of recommended candidates from open
category according to her merit and to process her claim in
accordance with law.
C. The respondent Nos. 1 and 2 are at liberty to consider the
entitlement/eligibility of the respondent Nos. 3 to 6 and to take
24 wp 12532.19
appropriate action as permissible in law.
D. Rule is made absolute in above terms. There shall be no
order as to costs.
[ SHAILESH P. BRAHME, J.] [ MANGESH S. PATIL, J.]
bsb/Sept. 23
