Bombay High Court
Dr. Sanghmitra Kumari Phule Alias ... vs Rekha D/O Narayanrao Mudkhedkar Alias ... on 2 May, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:20101-DB
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14222 OF 2024
RAMESHWAR Maharashtra Public Service Commission, }
LAXMAN Trishul Gold Field, Plot No.34, }
DILWALE Sector-11, Opp. Sarovar Vihar, }
CBD Belapur, Navi Mumbai }
...Petitioner
Digitally signed Versus
by RAMESHWAR
LAXMAN 1. Dr. Sanghamitra Kumari Phule @ }
DILWALE Sanghamitra Mahendra Gawde, }
Date: 2025.05.03 Age:52 Years, Occ: Service, }
13:12:39 +0530
Office at District Hospital Ratnagiri }
2. State of Maharashtra, }
Through Principal Secretary, }
Public Health Department, }
Mantralaya, Mumbai-400 032. }
3. State of Maharashtra, }
Through Principal Secretary, }
Women & Child Development Department, }
Mantralaya, Mumbai-400 032. }
4. Dr. Babita Sonaji Kamlapurkar }
Age:53 years, Occ:Service, }
Assistant Director (Malaria & Filariasis), }
Arogya Bhavan, In front of Vishrantwadi }
Police Station, Yerawada, Pune-411 006. }
5. Rekha Mudkhedkar Narayanrao }
Age: Adult, Occu: Service, }
R/o. Health and Family Welfare Training Centre, }
Bajrang Chowk, Income Tax Bhavan, CIDCO }
Sambhaji Nagar 431 003. }
.Respondents
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WITH
WRIT PETITION NO. 1284 OF 2025
Maharashtra Public Service Commission, }
Head Office, Trishul Gold Field, plot No.34, }
Sector-11, Opp. Sarovar Vihar, Belapur CBD, }
Navi Mumbai-400614. }
...Petitioner
(Orig. Respondent No.3)
Versus
1. Sarswati d/o. Keshavrao Makne }
Age:26 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
2. Naina d/o. Vrijendra Singh }
Age:30 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
At present-54, Gokibar Maidan, Phaltan, }
Tq. Phaltan, Dist. Satara. }
(Orig. Applicants)
3. The State of Maharashtra, }
Through its Secretary, }
Ministry of Women and Child }
Development Division, }
New Administrative Building, }
rd
3 Floor, Madam Cama Road, }
Hutatma Rajguru Chowk, Mantralaya, }
Mumbai-400 032. }
(Orig. Respondent No.1)
4. The Secretary, }
Department of Animal Husbandry, }
Madam Kama Road, Hutatma Rajguru Chowk }
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Nariman Point Churchgate, }
Mumbai-400032. }
(Orig. Respondent No.2)
.Respondents
WITH
WRIT PETITION NO. 10150 OF 2024
Smt. Rekha Narayanrao Mudkhedkar }
Age: 55 years, Occ: Deputy Director, }
Health Services, Pune. }
R/o. N-5, CIDCO, }
Chhatrapati Sambhajinagar-431003. }
..Petitioner
(Org. Res. No.5)
Versus
1. The State of Maharashtra, }
Through Principal Secretary, }
Public Health Department, }
Maharashtra State, Mantralaya, }
Mumbai-400 032. }
2. The State of Maharashtra, }
Through Principal Secretary, }
Women & Child Development Department, }
Maharashtra State, Mantralaya, }
Mumbai-400 032. }
3. Maharashtra Public Service Commission, }
Having office at: }
Trishul Gold Field, Plot No.34, }
Sarovar Vihar Lake, Sector-11, }
CBD Belapur, Navi Mumbai-400614. }
(Copy to be served on the Govt. Pleader, }
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High Court of Judicature of Bombay). }
4. Dr. Sanghamitra Kumari Phule @ }
Dr. Sanghamitra Mahendra Gawde, }
Age:52 Years, Occ: Service, }
Office at District Hospital Ratnagiri }
Dist. Ratnagiri-419 612. }
5. Dr. Babita Sonaji Kamalapurkar }
Age:53 years, Occ:Service as }
Assistant Director (Malaria & Filariasis), }
Aarogya Bhawan, Opp. Vishrantwadi }
Police Station, Yerawada, Pune-411 026. }
.Respondents
(Res. No.4 is Org. Applicant &
Res. No.5 is Org. Res. No.4)
WITH
WRIT PETITION NO.15515 OF 2024
1. The State of Maharashtra, }
Through The Secretary, }
Ministry of Women and Child }
Development Division, }
New Administrative Building, 3rd Floor, }
Madam Cama Road, Hutatma Rajguru }
Chowk, Mantralay, Mumbai-400 032. }
2. The Secretary, }
Department of Animal Husbandry, }
Madam Cama Road, }
Hutatma Rajguru Chowk, }
Nariman Point, Churchgate, }
Mumbai, Maharashtra-400 032 }
Versus
1. Sarswati d/o. Keshavrao Makne }
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Age:26 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
2. Naina d/o. Vrijendra Singh }
Age:30 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shella Road, Udgir, Dist. Latur. }
At present-54, Gokibar Maidan, Phaltan, }
Tq. Phaltan, Dist. Satara. }
3. Maharashtra Public Service Commission, }
Head Office :5, 7 & 8th Floor, Kruprej, }
Telephone Nigam Building, Maharshi }
Karve Marg, Kruprej, Mumbai }
4. Pratiksha Ramchandra Patil }
Age:25 years: Occ: Nil: }
R/o. Udyog Aditya Apartment, }
Aditya Nagar, Garkheda Parisar, }
Chhatrapati Sambhajinagar }
5. Snehal Sharadrao Motegoankar, }
Age:26 years: Occ: Nil }
R/o. Ganesh Nagar, Ring Road }
Ambejogai, Dist. Beed. }
..Respondents
WITH
INTERIM APPLICATION NO.15085 OF 2024
IN
WRIT PETITION NO.15515 OF 2024
1. Aishwarya Sivaraman Nair, }
Age:27 years, Occ: Nil, }
Residing at D-302, Serenity Gardens, }
Evershine City, Near St. Thomas }
Church, Vasai (East), District: Palghar }
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2. Mayank Diwakar Barde }
Age:27 years, Occ: Nil }
Residing at at Sainath Colony }
Vadsha Road, Lakhandur, Bhandara }
3. Sneha Shivaji Kale }
Age:28 years, Occ: Nil }
Residing at Survoday Hospital, }
Mauli Chowk, Akluj Road, }
Malshiras, District: Solapur }
..Applicants
IN THE MATTER OF:
1. The State of Maharashtra }
Through Secretary, }
Ministry of Women and Child }
Development Division, }
New Administrative Building, }
3" Floor, Madam Cama Road, }
Hutatma Rajgur Chowk, }
Mantralaya, Mumbai }
2. The Secretary, }
Department of Animal Husbandry, }
Mantralaya, Hutatma Rajguru Chouk, }
Church Gate, Mumbai }
Mr. Purushottam Dadaso Kokare }
..Petitioners
Versus
1. Sarswati d/o Keshavrao Makne }
Age: 26 years, Occ: Nil, }
R/o Matoshri Nivas, Sawarkar Chouk, }
Shella Road, Udgir, Dist. Latur. }
2. Naina d/o Vrijendra Singh }
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Age: 30 years, Occ: Nil }
R/o Matoshri Nivas, Sawarkar Chouk, }
Shella Road, Udgir, Dist. Latur. }
at present 54, Golibar Maidan, }
Phaltan, District: Satara. }
3. Maharashtra Public Service Commission }
Head Office: 5,7, & 8th Floor, Cooperage }
Telephone Nigam Building, Maharshi }
Karve Marg, Cooperage, Mumbai. }
4. Pratiksha Ramchandra Patil }
Age: 25 years, Occ: Nil, }
R/o Udyog Aditya Apartment, }
Aditya Nagar, Garkheda Parisar, }
Chatrapati Sambhaji Nagar }
5. Snehal Sharadrao Mategonkar }
Age: 26 Years, Occ: Nil }
R/o Ganesh Nagar, Ring Road, }
Ambejogai, Dist. Beed. }
..Respondents
WITH
INTERIM APPLICATION NO.15083 OF 2024
IN
WRIT PETITION NO.15515 OF 2024
1. Smt. Neha Vitthal Chikane, }
Age-29 yrs., Occ.-Nil, }
R/at. Vidyanagar, Bhor, }
Pune-412 206. }
2. Smt. Rutuja Rambhau Jadhav }
Age-30 yrs., Occ. Nil, }
R/at. Ram Nagar Washi, Washi }
At present R/at. A-7, 504 Mangal Bhairav, }
Nanded City, Sinhagad Road, }
Pune-411 068. }
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3. Smt. Sharwari Ajay Sangwai }
Age-28 yrs., Occ.-Nil }
R/at B-404, Pentagen Towers }
Shahu Colony, Lane No.1, }
Karve Nagar, Pune }
..Applicants
IN THE MATTER OF
State of Maharashtra }
Through the Secretary }
Ministry of Woman and Child }
Development Division, New Administrative }
Building, 3rd Floor, Madam Kama Road, }
Hutatma Rajguru Chowk, }
Mantralaya, Mumbai-400 032. }
..Petitioner
VERSUS
1. Sarswati d/o. Keshavrao Makne }
Age:26 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
2. Naina d/o. Vrijendra Singh }
Age:30 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
At present-54, Gokibar Maidan, Phaltan, }
Tq. Phaltan, Dist. Satara. }
3. Maharashtra Public Service Commission, }
Head Office :5, 7 & 8th Floor, Kruprej, }
Telephone Nigam Building, Maharshi }
Karve Marg, Kruprej, Mumbai }
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4. Pratiksha Ramchandra Patil }
Age:25 years: Occ: Nil: }
R/o. Udyog Aditya Apartment, }
Aditya Nagar, Garkheda Parisar, }
Chhatrapati Sambhajinagar }
5. Snehal Sharadrao Motegoankar, }
Age:26 years: Occ: Nil }
R/o. Ganesh Nagar, Ring Road }
Ambejogai, Dist. Beed. }
6. The Secretary, }
Department of Animal Husbandry, }
Madam Cama Road, }
Hutatma Rajguru Chowk, }
Nariman Point, Churchgate, }
Mumbai, Maharashtra }
..Respondents
WITH
WRIT PETITION NO.15559 OF 2024
Dr. Rekha d/o Narayanrao Mudkhedkar }
@ Rekha w/o Govardhan Gaikwad }
Age: 55 years, Occupation: Service as }
Dy. Director of Health Services, Pune. }
Kutumb Kalyan Bhavan, Behind Pune }
Railway Station Pune (Naidu Hospital Compound), }
R/o Flat No.101, A-Wing, Sahil Heights, }
Kranti Nagar, Pimple Nilakh, Pune. }
Mobile No. 9588429551 }
E-mail: [email protected] }
..Petitioners
VERSUS
1. The State of Maharashtra, }
Through the Secretary }
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Women & Child Development Division }
New Administrative Building, 3rd Floor, }
Madam Kama Road, Hutatma Rajguru Chowk, }
Mantralaya, Mumbai-400 032. }
2. The Secretary, }
Department of Animal Husbandry, }
Madam Kama Road, Hutatma Rajguru Chowk }
Nariman Point Churchgate, }
Mumbai-400032. }
3. Maharashtra Public Service Commission, }
Trishul Goldfield Building, }
CBD, Belapur, Dist. Thane-400 614, }
(Maharashtra). }
4. Pratiksha Ramchandra Patil }
Age:25 years: Occ: Nil: }
R/o. Udyog Aditya Apartment, }
Aditya Nagar, Garkheda Parisar, }
Chhatrapati Sambhajinagar }
5. Snehal Sharadrao Motegoankar, }
Age:26 years: Occ: Nil }
R/o. Ganesh Nagar, Ring Road }
Ambejogai, Dist. Beed. }
6. Sarswati d/o. Keshavrao Makne }
Age:26 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
7. Naina d/o. Vrijendra Singh }
Age:30 years, Occ. Nil, }
R/o C/o Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
At present-54, Gokibar Maidan, Phaltan, }
Tq. Phaltan, Dist. Satara. }
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8. The Principal Secretary, }
Public Health Department, }
Mantralaya, Mumbai-400 032. }
..Respondents
WITH
INTERIM APPLICATION (ST.) NO.35124 OF 2024
IN
WRIT PETITION NO.15559 OF 2024
1. Dr. Sanghamitra Kumari Phule @ }
Sanghamitra Mahendra Gawde, }
Age:53 Years, Occ: Service, }
Office at: Regional Mental Hospital }
Ratnagiri, Main Road, Jaisthamb, }
Dist. Ratnagiri-419 612. }
..Applicants
IN THE MATTER OF
Dr. Rekha d/o Narayanrao Mudkhedkar }
@ Rekha w/o Govardhan Gaikwad }
Age: 55 yrs, Occu: Service, as Dy. Director }
of Health Services, Pune. }
Kutumb Kalyan Bhavan, Behind Pune }
Railway Station Pune (Naidu Hospital Compound) }
R/at: Flat No.101, A-Wing, Sahil Heights, }
Kranti Nagar, Pimple Nilakh, Pune }
Mobile No.9588429551. }
VERSUS
1. The State of Maharashtra, }
Through the Secretary }
Women & Child Development Division }
New Administrative Building, 3rd Floor, }
Madam Kama Road, Hutatma Rajguru Chowk, }
Nariman Point, Churchgate, Mumbai }
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Maharashtra-400 032. }
2. The Secretary, }
Department of Animal Husbandry, }
Madam Kama Road, Hutatma Rajguru Chowk }
Nariman Point Churchgate, }
Mumbai-400032. }
3. Maharashtra Public Service Commission, }
Trishul Goldfield Building, }
CBD, Belapur, Dist. Thane-400 614, }
(Maharashtra). }
4. Pratiksha Ramchandra Patil }
Age:25 years: Occ: Nil: }
R/o. Udyog Aditya Apartment, }
Aditya Nagar, Garkheda Parisar, }
Chhatrapati Sambhajinagar }
5. Snehal Sharadrao Motegoankar, }
Age:26 years: Occ: Nil }
R/o. Ganesh Nagar, Ring Road }
Ambejogai, Dist. Beed. }
6. Sarswati d/o. Keshavrao Makne }
Age:26 years, Occ. Nil, }
R/o. Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
7. Naina d/o. Vrijendra Singh }
Age:30 years, Occ. Nil, }
R/o C/o Matoshri Nivas, Sawarkar Chouk, }
Shellal Road, Udgir, Dist. Latur. }
8. The Principal Secretary, }
Public Health Department, }
Mantralaya, Mumbai-400 032. }
..Respondents
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...
Mr. Ashutosh Kulkarni with Mr. Siddharth Shitole, Advocates for
the Petitioner in WP Nos.14222/2024, 1284/2025 and for the Re-
spondents in WP Nos.10150/2024, 15559/2024.
Mr. Nitin Gaware Patil with Mr. Divyesh Jain, Mr. Ajay S. Desh-
pande, Advocates for the Petitioner in WP Nos.10150/2024,
15559/2024.
Mr. Abhijeet Desai with Mr. Shrikant D. Patil, Mr. Digvijay
Kachare, Ms. Daksha Punghera, Mr. Vijay Singh, Ms. Mohini Reh-
pade, Mr. Karan Gajra, Ms. Sanchita Sontakke i/by Desai Legal
LLP for the Applicants in IA(ST) No.35124/2024 in WP
No.15559/2024 and for the Respondent No.1 in WP
No.14222/2024.
Mr. Sanjay Kshirsagar, Advocate for the Applicants in IA
No.15083/2024 in WP No.15515/2024.
Mr. B. V. Samant, Additional Government Pleader with Mr. A. R.
Deolekar, Assistant Government Pleader and Mrs. Ashwini A. Pu-
rav, Assistant Government Pleader for the Petitioner-State in WP
No.15515/2024 and for the Respondent-State in WP
Nos.14222/2024, 10150/2024.
Mr. B. V. Samant, Additional Government Pleader with Mrs. Ash-
wini A. Purav, Assistant Government Pleader for the Respondent-
State in WP/15559/2024.
Mr. B. V. Samant, Additional Government Pleader with Mr. N. K.
Rajpurohit, Assistant Government Pleader for the respondent-
State in WP/1284/2025.
Mr. Laxman S. Deshmukh, Advocate for the Applicant-Intervenor
in IA No.15085/2024 in WP No.15515/2024.
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Mr. S. G. Nandedkar, Advocate for the Respondent Nos.1 and 2 in
WP No.15515/2024 and for Respondent Nos.6 and 7 in WP
No.10150/2024, and for Respondent Nos.1 and 2 in WP
No.1284/2025.
Mr. M. D. Lonkar i/by Mr. Om M. Lonkar, Ms. Advaita M. Lonkar,
Advocates for the Respondent No.5 in WP/10150/2024.
...
CORAM : A.S. CHANDURKAR &
M.M. SATHAYE, JJ
Date on which the arguments concluded : 05 th MARCH 2025
Date on which the judgment is pronounced : 02 nd MAY 2025.
JUDGMENT :
( PER : A. S. CHANDURKAR, J)
1. Since all these writ petitions raise a challenge to the order
dated 10/05/2024 passed by the Maharashtra Administrative
Tribunal, (for short, 'The Tribunal'), Bench at Aurangabad in
Original Application No.932 of 2023. Hence these writ petitions
are being decided by this common judgment. Rule. Rule made
returnable forthwith.
2. The facts in brief giving rise to these writ petitions are that
on 14/02/2022, the Maharashtra Public Service Commission-
MPSC issued Advertisement No.12 of 2022 inviting applications
for filling in 212 posts of Live Stock Development Officer-Grade A.
By a Corrigendum dated 11/05/2022, the number of posts was
increased to 298. Ku. Sarswati Makne and Ku. Naina Singh-
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
Applicants participated in the said recruitment process. After
clearing the written examination they were interviewed. Their
names were shown in the preliminary merit list at Serial Nos. 135
and 181 respectively in the general category. The Applicants could
not submit the Non-Creamy Layer Certificate and hence they
made a representation to the MPSC to consider their candidature
in the un-reserved women quota. The Applicants relied upon the
Government Resolution-GR dated 04/05/2023 by which it was
not necessary to submit such Non-Creamy Layer Certificate while
claiming women reservation. According to the Applicants, though
the merit list was published on 29/09/2022, the same was revised
by taking into consideration GR dated 04/05/2023. The revised
merit list was published on 25/05/2023 which affected the
placement of the Applicants. Being aggrieved by the aforesaid, the
Applicants approached the Maharashtra Administrative Tribunal
by filing Original Application No. 932 of 2023.
3. The Tribunal took into consideration Clause 5 of GR dated
04/05/2023 and found that the benefit of the said GR in the
matter of submission of Non-Creamy Layer Certificate was
restricted to female candidates who had participated in the
recruitment process conducted pursuant to Advertisement No.83
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
of 2021 and the recruitments which had commenced after
29/09/2022 when the results of the recruitment process under
Advertisement No.83 of 2021 was completed. The Tribunal held
that Clause 5 resulted in depriving those female candidates who
had participated in the recruitment process which had
commenced after issuance of Advertisement No.83 of 2021 but the
results were declared prior to 29/09/2022. On that basis after
recording a finding that there was violation of the provisions of
Article 16 of the Constitution of India, it was held that Clause 5 of
the GR dated 04/05/2023 to the extent it restricted its
applicability to Advertisement No.83 of 2021 and the recruitment
process that had commenced after 29/08/2022 was un-
constitutional. It was declared that the benefit of the GR ought to
be made applicable to all recruitments that had commenced after
issuance of Advertisement No.83 of 2021. Consequently, the
Applicants were held entitled to the benefit of the said GR and
directions were issued to the statutory authority/ State
Government to issue appointment orders in their favour as against
seats reserved for open female candidates.
4. In Writ Petition Nos.10150 of 2024 and 14222 of 2024
challenge has been raised to the judgment of the Tribunal in
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
Original Application No.1139 of 2023. This Original Application
was filed by Ku. Sanghamitra Phule-Applicant who had
participated in the recruitment process pursuant to Advertisement
No.107 of 2021 that was issued on 08/10/2021. By the said
advertisement, nine posts of Deputy Director, Health Services-
Group A were advertised. By a Corrigendum issued on
25/02/2022 these posts were increased to twelve. On
23/08/2023, the merit list pursuant to the said recruitment
process was published and the name of the Applicant was shown
at serial no.1 in the open female category. However, her name did
not appear in the list of selected candidates and instead the name
of Dr. Babita Kamlapurkar from the reserved category who had
scored lessor marks than the Applicant was shown. According to
the Applicant, the said candidate was not required to produce the
Non-Creamy Layer Certificate and hence her name was shown in
the select list. The Tribunal took into consideration the judgment
passed in Original Application No.932 of 2023 dated 10/05/2024
wherein Clause 5 of the GR dated 04/05/2023 was held to be
unconstitutional. In view of that judgment, Original Application
No.1139 of 2023 was allowed and the MPSC was directed to
recommend the name of the Applicant from the open female
category in place of the earlier candidate as declared. The said
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
order dated 12/07/2024 has been challenged by the non-
applicant No.5 Mrs. Rekha Mudkhedkar in Writ Petition No.10150
of 2024. The MPSC has also challenged the said order by filing
Writ Petition No.14222 of 2024.
5. Mr. B. V. Samant, learned Additional Government Pleader
for the petitioners in Writ Petition No.15515 of 2024-State of
Maharashtra submitted the Tribunal committed an error in
interpreting the GR dated 04/05/2023 and thereby granted
benefit of that interpretation to the case of the Applicants. The
said GR was issued in light of the policy decision taken by the
State Government in view of grievances received from candidates
who had participated in the recruitment process pursuant to
Advertisement No. 83 of 2021. The said recruitment process had
commenced on 17/09/2021 while the Applicants had participated
in the recruitment process pursuant to Advertisement No. 12 of
2022, which was issued on 14/02/2022. The Applicants were
bound by the terms and conditions of Advertisement No. 12 of
2022 and it was not permissible for them to take a contrary stand
after commencement of the recruitment process and contend that
it was not necessary to furnish the Non-Creamy Layer Certificate.
Since it was the intention of the State Government that the rules
902-WP-14222-24 GROUP judgement.doc Rameshwar Dilwale
of the game ought not to be changed during the process of
recruitment, the GR dated 04/05/2023 was made applicable only
to Advertisement No. 83 of 2021 as well as those advertisements
published after 29/09/2022 when the select list pursuant to
Advertisement No. 83 of 2021 was published. Reference was made
to the pleadings of the parties before the Tribunal and it was
submitted that the Tribunal was not justified in holding that
Clause 5 of the GR dated 04/05/2023 was arbitrary. To support
his contentions, the learned Additional Government Pleader relied
upon the decisions of the Supreme Court in Gursharan Singh and
Others vs New Delhi Municipal Committee and Others 1996 INSC
166 and State of Bihar and Others vs Kameshwar Prasad Singh
and Another (2000) 9 SCC 94 and connected matters. It was thus
submitted that the impugned judgment of the Tribunal was liable
to be set aside and the Original Application preferred by the
Applicants ought to be dismissed.
6. Mr. Ashutosh Kulkarni, learned Counsel appearing for the
MPSC adopted the contentions raised on behalf of the State
Government and further submitted that the choice of the cut-off
date in the GR dated 04/05/2023 was a matter of policy and the
scope for interference in that regard was limited. The GR dated
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04/05/2023 was required to be considered as a whole and a
conscious decision was taken in so far as its applicability was
concerned. It was stated in clear terms that the said GR was
applicable only to Advertisement No. 83 of 2021 and
advertisements published after 29/09/2022. There was no basis
whatsoever for the Tribunal to have altered its applicability and
directed that the said GR would be applicable also to
Advertisement No. 12 of 2022. Between the period from
17/09/2021 when Advertisement No. 83 of 2021 was issued till
29/09/2022, about 285 to 300 advertisements had been issued. If
the interpretation of the Tribunal as regards Clause 5 of the GR
dated 04/05/2023 was applied, the same would result in creating
confusion amongst candidates who had participated in the
recruitment process between the aforesaid two dates. Further, if
the interpretation of the Tribunal was upheld, the recruitments
that had taken place after issuance of Advertisement No. 83 of
2021 would have to be either re-worked or cancelled. This was
likely to affect the administration and functioning of various
Government offices. The Tribunal failed to consider these relevant
aspects while allowing the Original Application preferred by the
Applicants. In support of his submissions, the learned Counsel
placed reliance on the decisions in cases of Dr. Ami Lal Bhat vs.
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State of Rajasthan and Others 1997 INSC 537, Government of
Andhra Pradesh & Ors. vs. N. Subbarayudu and Others 2008
INSC 514, Hirandra Kumar vs High Court of Judicature at
Allahabad and Another 2019 INSC 111 and Mohammad Ali Imam
and Others vs State of Bihar through its Chief Secretary and Others
2020 INSC 129. It was thus submitted that the impugned
judgment of the Tribunal was liable to be set aside and the
Original Application ought to be dismissed.
7. Mr. Nitin Gaware Patil, learned counsel appearing for the
petitioner in Writ Petition No.10150 of 2024 submitted that the
Tribunal was not justified in holding Clause 5 of the GR dated
04/05/2023 to be unconstitutional. Besides adopting the
submissions made on behalf of the State of Maharashtra and the
MPSC, it was submitted that the Tribunal committed an error in
causing interference with Clause 5 of the GR dated 04/05/2023.
Relying upon the judgments in M. P. Oil Extraction & Anr. Vs. State
of M. P. & Ors. 1997 INSC 557, Dr. Ashwani Kumar Vs. Union of
India & Anr. (2020) 13 SCC 585, State of H. P. Vs. HP Nizi
Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597 it was
submitted that the scope for judicial interference in policy matters
was limited. It was further submitted that candidates who had
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participated in the recruitment process pursuant to Advertisement
No.107 of 2021 dated 08/10/2021 were governed by the terms
and conditions stated therein. It was not permissible to change
"the rules of the game" after commencement of the recruitment
process. The Tribunal failed to take into consideration this
material aspect. To substantiate this contention, reliance was
placed on the decisions in Bedganga Talukdar Vs. Saifudaullah
Khan & Ors. (2011) 12 SCC 85 and Rekha Chaturvedi Vs.
University of Rajasthan & Ors. 1993 Supp (3) SCC 168. It was also
submitted that determination a cut-off-date was within the ambit
of the executive and that its choice could not be said to be
arbitrary merely because some hardship was caused to some
parties. Reference was made to the decision in Mohammad Ali
Imam & Others Vs. State of Bihar Through Its Chief Secretary &
Others 2020 INSC 129. On the aspect of giving retrospective effect
to the operation of the GR dated 04/05/2023, it was submitted
that the Tribunal was not justified in expanding the sphere of its
operation. Reference was made to the decisions in Goan Real
Estate and Construction Ltd. Vs. Union of India & Ors. (2010) 5
SCC 288 and Commissioner of Income Tax Vs. Vatika Township
Pvt. Ltd. (2015) 1 SCC 1. It was thus submitted that the order
passed by the Tribunal be set aside and the Original Application
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as preferred be dismissed.
8. Mr. S. G. Nandedkar, learned Counsel appearing on behalf of
the Applicants, supported the impugned judgment of the Tribunal.
According to him, after considering all relevant aspects, the
Tribunal rightly found that Clause 5 of the GR dated 04/05/2023
was arbitrary. There was no basis whatsoever for granting benefit
of the said GR only to candidates, who had participated pursuant
to the recruitment process under Advertisement No. 83 of 2021
and advertisements published after 29/09/2022. Since the
Applicants had participated in the recruitment process after
17/09/2021, they were rightly found eligible for benefit of the GR
dated 04/05/2023. Referring to the minutes of the meeting of the
State Cabinet dated 19/04/2023, he submitted that the same did
not indicate restricted application of the benefit of the said
decision. The Tribunal therefore rightly passed an interim order on
19/10/2023 and directed two posts of Live Stock Development
Officer-Grade A to be kept vacant. Referring to the judgment of the
Supreme Court in case of Jacob Puliyel vs Union of India and
Others 2022 INSC 503 it was submitted that there was no case
made out either by the State Government or by the MPSC to
interfere with the impugned judgment of the Tribunal. The writ
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petitions as filed therefore were liable to be dismissed.
9. Mr. Abhijeet Desai, learned counsel appearing for the
applicant who had preferred Original Application No.1139 of 2023
opposed aforesaid submissions and supported the order passed by
the Tribunal on 12/07/2024. According to him, the Tribunal
rightly found that Clause 5 of the GR dated 04/05/2023 was
unconstitutional as it created sub-classes amongst one common
class. According to him, the MPSC itself was not justified in
raising a challenge to the adjudication of the Tribunal as it was
merely the recruiting agency. Referring to the decision in Sub-
Inspector Rooplal & Anr. Vs. Lt. Governor Through Chief Secretary,
Delhi & Others (2000) 1 SCC 644 it was submitted that it was
expected that the MPSC would play an impartial role without
taking any sides whatsoever. The Appointing Authority was the
State Government which had issued GR dated 04/05/2023 and
hence there was no cause for MPSC to challenge the order passed
by the Tribunal. It was then submitted that the Tribunal did not
interfere with any policy decision of the State Government. It only
considered the challenge to the GR dated 04/05/2023. As Clause
5 was found to be unconstitutional it was set aside. Reference was
made to the decisions of the Constitution Bench in State of Punjab
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& Others Vs. Davinder Singh & others 2024 INSC 562 and All
Manipur Pensioners Association by its Secretary Vs. State of
Manipur & others 2019 INSC 748. It was thus submitted that the
Tribunal rightly granted benefit of its interpretation to the
Applicant and there was no case for interfering in exercise of writ
jurisdiction. The impugned order passed by the Tribunal was
liable to be confirmed.
10. Interim Application No.15083 of 2024 has been preferred
by three applicants seeking permission to intervene in Writ
Petition No.15515 of 2024 on the premise that the adjudication
of the said writ petition would affect their prospects. Mr. Sanjay
Kshirsagar, learned Counsel for the intervenors supported the
impugned judgment of the Tribunal and submitted that after
considering all relevant aspects, it was held that Clause 5 of the
GR dated 04/05/2023 was arbitrary in nature. He referred to the
affidavit-in-reply filed by the Divisional Deputy Commissioner for
Women and Child Development, Aurangabad Division,
Aurangabad in Original Application No. 932 of 2023 to submit
that as per the policy decision taken by the State Cabinet, the
requirement of submission Non-Creamy Layer Certificate by
candidates from the women category had been done away with.
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The intervenors were therefore also entitled to the benefit of
the adjudication by the Tribunal and no interference with the
same was called for.
11. Considering the fact that the above applicants had filed
Original Application Nos. 563 of 2024, 564 of 2024 and 937 of
2024 before the Tribunal and by the order dated 13/08/2024
relief was granted to the said applicants in view of the impugned
judgment of the Tribunal dated 10/05/2024 passed in Original
Application No. 932 of 2023, the Intervention Application is
allowed and the said applicants are also heard on merits.
12. Interim Application No.15085 of 2024 has been preferred
by three applicants who contend that they had responded to
Advertisement No.12 of 2022 dated 14/02/2022 and had applied
for the post of Live Stock Development Officer. According to them,
after the select list was published the candidates were called for
document verification. The first three candidates were absent for
document verification and therefore by communication dated
15/04/2024 the candidature of said candidates was cancelled. As
the applicants were on waiting list, their names were
recommended for document verification. The applicants thereafter
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submitted all the necessary documents. However, in view of the
interim order dated 19/08/2024 passed by the Aurangabad
Bench in Writ Petition No.8735 of 2024 preferred by the State of
Maharashtra and others challenging the judgment of the Tribunal
in Original Application No.932 of 2023, the applicants have not
been issued appointment orders. The applicants therefore seek
clarification that the interim order dated 19/08/2024 would not
affect their appointment. Mr. Laxman S. Deshmukh learned
counsel appeared for the applicants.
13. With the assistance of learned Counsel for the parties, we
have perused the documentary material on record. We have
thereafter given due consideration to the rival submissions. As
regards the factual aspects, it is not in dispute that Advertisement
No. 83 of 2021 had been published on 17/09/2021. Before the
said recruitment process could be completed, Advertisement No.
12 of 2022 was issued on 14/02/2022 in which the Applicants
participated. The recruitment process pursuant to Advertisement
No. 83 of 2021 was completed on 29/09/2022 but prior thereto,
the recruitment pursuant to Advertisement No. 12 of 2022 was
already completed. It is thus clear that though the process of
recruitment pursuant to Advertisement No. 12 of 2022
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commenced after Advertisement No. 83 of 2021 was issued, it was
completed prior to the merit list of recruitment process of
Advertisement No.83 of 2021 could be published. In the meeting of
the State Cabinet held on 19/04/2023, a policy decision was
taken that on posts that were reserved for women from the open
category as well as women from the reserved category, the
requirement of submitting a Non-Creamy Layer Certificate would
be dispensed with. The said decision was taken with regard under
the Department of Women and Child Welfare. Pursuant to that
decision of the State Cabinet, the GR dated 04/05/2023 came to
be issued. While dispensing with the requirement of furnishing a
Non-Creamy Layer Certificate by candidates seeking appointment
on the post reserved for women from the open category as well as
of backward class category, the manner in which the said decision
was to be applied was indicated. As per Clause 5 of the said GR it
was stated that the provisions of the GR dated 04/05/2023 would
be applicable to Advertisement No. 83 of 2021 published by
MPSC as well as for the advertisements that were published after
completion of the recruitment process pursuant to Advertisement
No. 83 of 2021. In other words, the GR dated 04/05/2023 was to
apply only to the recruitment that was undertaken vide
Advertisement No. 83 of 2021 and advertisements published after
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29/09/2022 on which date the recruitment vide Advertisement
No. 83 of 2021 was completed. The benefit of the said GR was not
made applicable to any advertisements published after
Advertisement No. 83 of 2021 till 29/09/2022.
14. The Tribunal while considering the challenge to Clause 5 of
the GR dated 04/05/2023 found that the said Clause created
three sub-classes from the broader class of females. The first sub-
class was female candidates who had participated in the
recruitment process pursuant to Advertisement No. 83 of 2021.
The second sub-class was of female candidates, who had
participated in the recruitment process that commenced after
publication of Advertisement No. 83 of 2021 but the results of
such recruitment were declared prior to 29/09/2022. The third
sub-class created was of female candidates who had participated
in the recruitment process which commenced after 29/09/2022.
The benefit of Clause 5 was extended to the first and third sub-
classes while such benefit was not granted to candidates in sub-
class two. The Applicants fall in sub-class two. The Tribunal found
that there was no rationale in creating such sub-classes within a
common class and that Clause 5 of the GR dated 04/05/2023 was
discriminatory in nature. On that basis, the Tribunal proceeded to
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hold that Clause 5 of the said GR to the extent its restricted its
applicability limited to Advertisement No. 83 of 2021 and the
recruitment process that commenced after 29/09/2022 was
unconstitutional. Benefit of Clause 5 was made applicable to all
recruitments that commenced from 17/09/2021 when
Advertisement No. 83 of 2021 was issued.
15. Perusal of the GR dated 04/05/2023 indicates that the
decision to do away with the submission of Non-Creamy Layer
Certificate by women candidates seeking appointment from the
open category as well as from the reserved category has been done
away with. This decision though taken on 04/05/2023, has been
made specifically applicable only to Advertisement No. 83 of 2021
and to advertisements published after completion of the
recruitment process under Advertisement No. 83 of 2021. This
process was completed on 29/09/2022. In effect therefore, the GR
has a retrospective operation from the publication of
Advertisement No. 83 of 2021 on 17/09/2021 and thereafter from
29/09/2022 onwards. There does not appear any justification
whatsoever for excluding the application of this GR to
advertisements issued alongwith or shortly after the
Advertisement No. 83 of 2021 was published.
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While there is no challenge to the retrospective applicability
of this GR, the issue pertains to excluding advertisements issued
after 17/09/2021 and where the recruitment process was
completed prior to 29/09/2022. It was incumbent upon the
Department of Women and Child Welfare to have placed on record
some material to indicate as to why such distinction in the
applicability of the said GR was made. In the matter of choice of a
cut-off date, it is well settled that such choice is within the domain
of the executive authority and that the choice of a cut-off date
should not be interfered with unless the decision appears to be
blatantly discriminatory or arbitrary. It is only if a violation of
Article 14 of the Constitution of India is found that there would be
a scope for interference. If it is found that a cut-off date has been
arbitrarily fixed or that it has been fixed without any rational basis
whatsoever, the same could be a reason for interference. At the
same time, merely on the ground that certain degree of
arbitrariness may appear to have resulted, the same by itself
cannot be the basis for the Court to interfere. Even if no particular
reason is given for the choice of a cut-off date, such choice cannot
be held to be arbitrary unless it is shown to be totally capricious
or whimsical.
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16. In the present case, however, the issue is not so much about
the choice of a cut-off date but it is with regard to creating various
sub-classes within a specified class so as to exclude one sub-class
fully from the benefit of the said GR. The applicability of the GR
dated 04/05/2023 from 17/09/2021 on which date
Advertisement No. 83 of 2021 was issued is not seriously
challenged. On the contrary, the Applicants before the Tribunal
were more aggrieved by the exclusion of benefit of the said GR
despite the fact that Advertisement No. 12 of 2022 was issued
after Advertisement No. 83 of 2021. It is therefore not necessary
for this Court to dwell further on the aspect of choice of a cut-off
date since the same has not been the subject matter of contest.
17. Another aspect on which there was considerable debate was
the aspect of changing "the rules of the game" after it had
commenced. It was urged that the Applicants were bound by the
terms and conditions stipulated in Advertisement No. 12 of 2022
and therefore on the commencement of said recruitment process
on 14/02/2022, the requirement of submitting a Non-Creamy
Layer Certificate could not have been dispensed with. It is well
settled that the selection process has to be conducted strictly in
accordance with the terms and conditions stated in the
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advertisement unless the power of relaxation of any terms and
conditions is specifically reserved. The Constitution Bench in case
of Tej Prakash Pathak and others (supra) has held that the
eligibility criteria that has been notified at the commencement of
the recruitment process cannot be changed midway through the
recruitment process unless the concerned rules so permit or if
permissible under the advertisement. Even if the change is
permissible, such change would have to meet the requirement of
Article 14 of the Constitution of India and satisfy the test of non-
arbitrariness.
18. In the present case however, this aspect need not detain us
for the reason that the State itself by issuing the GR dated
04/05/2023 has dispensed with the requirement of a Non-Creamy
Layer Certificate in respect of recruitment that had commenced
much earlier on 17/09/2021 vide Advertisement No.83 of 2021. In
fact, the said recruitment process concluded on 22/09/2022 after
which the said GR was issued. As a result of this GR, the
Applicants sought parity and claimed benefit of the same which
had been denied as their recruitment process had concluded prior
to 22/09/2022. Before the Tribunal, there was no challenge to the
GR dated 04/05/2023. Even before this Court, the GR dated
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04/05/2023 is not under challenge and it is only the judgment of
the Tribunal holding Clause 5 thereof to be arbitrary that is under
challenge. For these reasons therefore the Applicants cannot be
denied the relief which has been granted by the Tribunal.
19. Coming to the finding recorded by the Tribunal that Clause
5 of the GR dated 04/05/2023 was unconstitutional being
violative of Article 16 of the Constitution of India, it can be seen
that the GR does create sub-classes in one class without any
rationale behind it. There is also no nexus of dispensing with
furnishing of a Non-Creamy Layer Certificate by candidates who
had responded to Advertisement No.83 of 2021 while not granting
similar latitude to candidates under subsequent advertisements
issued up to 22/09/2022. In this regard, useful reference can be
made to the decision of the Constitution Bench in Davinder Singh
and others (supra). It has been observed as under:-
"85. The Constitution permits valid classification if
two conditions are fulfilled. First, there must be an
intelligible differentia which distinguishes persons
grouped together from others left out of the group.
The phrase "intelligible differentia" means difference
capable of being understood. The difference is
capable of being understood when there is a
yardstick to differentiate the class included and
others excluded from the group. In the absence of
the yardstick, the differentiation would be without a
basis and hence, unreasonable. The basis of
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classification must be deducible from the provisions
of the statute; surrounding circumstances or matters
of common knowledge. In making the classification,
the State is free to recognise degrees of harm.
Though the classification need not be mathematical
in precision, there must be some difference between
the persons grouped and the persons left out, and
the difference must be real and pertinent. The
classification is unreasonable if there is "little or no
difference". Second, the differentia must have a
rational relation to the object sought to be achieved
by the law, that is, the basis of classification must
have a nexus with the object of the classification.
93. The test that the Court must follow to determine
the validity of the sub-classification of a class is as
follows:
(a) Whether the class is "homogeneous" or
"similarly situated" for the purpose of the
specific law;
(b) If the answer to (a) above is in the
affirmative, the class cannot be sub-classified;
(c) If the answer to (a) above is in the negative,
the class can be sub-classified upon the
fulfilment of the following standard:
(i) There must be a yardstick (or
intelligible differentia) further classifying
the class; and
(ii) The yardstick must have a rational
nexus with the object of the statute."
20. Examined in the aforesaid context, we do not find that
the Tribunal committed any error in finding that there was no
basis whatsoever for excluding the recruitments that commenced
after 17/09/2021 and were completed before 22/09/2022 from
the purview of Clause 5 of the GR dated 04/05/2023. No
justifiable reason has been put forth by the State to deny benefit
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of the said GR to the recruitments which it sought to exclude from
its purview. The recruitment pursuant to Advertisement No.83 of
2021 is also not shown to be of such nature for it alone to be
granted the benefit of the GR dated 04/05/2023 to the exclusion
of other recruitments. Thus, seen from any angle, Clause 5 of the
GR dated 04/05/2023 has been rightly found to result in
discriminatory sub- classification within one homogeneous class
of women candidates and hence unconstitutional. The said finding
therefore does not deserve to be interfered with.
21. According to the State of Maharashtra and the MPSC, the
effect of declaring Clause 5 of the GR dated 04/05/2023
unconstitutional would affect all recruitments that commenced
from 17/09/2021. In other words, the recruitments that had
taken place from 17/09/2021 other than Advertisement No.83 of
2021 would have to be re-worked thus causing administrative
difficulties and inconvenience to the appointees.
In our view, this submission warrants consideration. It is seen
that before the Tribunal, it was only the present applicants who
participated in the recruitment process vide Advertisement Nos.83
of 2021, 107 of 2021 and 12 of 2022 had raised a grievance
regarding the applicability of Clause 5 of the GR dated
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04/05/2023. No other candidates who had participated in various
recruitments that commenced from 17/09/2021 and thereafter
raised any grievance in this regard. According to the MPSC, about
285 to 300 advertisments had been issued from 17/09/2021 till
29/09/2022. We are therefore of the considered opinion that the
effect of the interpretation of Clause 5 of the GR dated
04/05/2023 ought to be restricted only to the cases of the
applicants who had raised a grievance in that regard and had
approached the Tribunal by filing Original Application Nos.932 of
2023, 1139 of 2023, 563 of 2024, 564 of 2024 and 937 of 2024.
This is for the reason that declaring Clause 5 of the GR dated
04/05/2023 to be unconstitutional would definitely affect
recruitments that were undertaken after 17/09/2021. Since it is
only the Applicants who had approached the Tribunal by filing
their respective proceedings, it is clear that they alone were
aggrieved by the manner in which Clause 5 was being
implemented. It can thus be assumed that candidates who had
participated in the other recruitments from 17/09/2021 were not
so aggrieved by the operation of that Clause as they did not seek
any legal redress in that regard.
Thus, while upholding the finding recorded by the Tribunal
that Clause 5 of the GR dated 04/05/2023 was unconstitutional,
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the recruitments other than those that were the subject matter of
dispute before the Tribunal need not be disturbed or re-opened.
The consequential effect of such declaration therefore would
operate only qua Advertisement Nos.83 of 2021, 107 of 2021 and
12 of 2022 and limited to parties to the proceedings before the
Tribunal.
22. For aforesaid reasons, the following order is passed:-
i) The impugned judgments of the Tribunal in Original
Application No.932 of 2023 dated 10/05/2024, Original
Application No.1139 of 2023 dated 12/07/2024 and
Original Application Nos.563 of 2024, 564 of 2024 and 937
of 2024 dated 13/08/2024 holding Clause 5 of the GR dated
04/05/2023 to be unconstitutional is upheld.
ii) In the facts of the case, the declaration as granted by
the Tribunal shall operate only qua the parties to the
present proceedings with regard to Advertisment Nos.83 of
2021, 107 of 2021 and 12 of 2022. The other recruitments
that commenced from 17/09/2021 and thereafter which
were not the subject matter of proceedings before the
Tribunal shall not be re-opened by virtue of the judgments of
the Tribunal.
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iii) As the judgment of the Tribunal in Original Application
No.932 of 2023 dated 10/05/2024 has been upheld, the
order of status quo passed in Writ Petition No.8735 of 2024
by the Aurangabad Bench on 19/08/2024 stands vacated.
The consequences of the same would follow as regards the
applicants in Interim Application No.15085 of 2024 are
concerned.
iv) This judgment shall operate on the expiry of a period of
four weeks from today.
v) Rule in all the writ petitions is disposed of in aforesaid
terms with no order as to costs.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
