Priya Rameshrao Makode and Others vs The Maharashtra Administrative Tribunal and Others

V.A. Naik, J.—Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the parties.

Since these writ petitions arise from the order passed by the Maharashtra Administrative Tribunal in the original application bearing O.A. No. 912/2012 and since the issues involved in these petitions are identical, they are heard together and are decided by this common judgment.

The respondent No. 2 - Collector, Yavatmal had issued an advertisement inviting applications for appointment on 95 posts of clerk-cum-typists. Of the 95 posts that were advertised, 65 posts were earmarked for open category. Of the 65 posts that were earmarked for the open candidates, 20 were earmarked for women. In pursuance of the advertisement issued by the respondent No. 2, the petitioners as also the respondents applied for the post of clerk-cum-typist. Admittedly, the petitioners are women and had applied from SC, ST, OBC and NT-C categories. Since 65 posts were earmarked for open category candidates and since the petitioners were far more meritorious, though they belong to the reserved classes, their names were included in the select list for appointment of 65 candidates in the open category, that was prepared solely on the basis of merit. As per the advertisement, merit was to be considered on the basis of the marks secured by the candidates in the written examination. Since the petitioners were much more meritorious than some of the women candidates belonging to the open category, the petitioners'' names were included in the select list for appointment of 65 candidates in the open category. The petitioners were selected and appointed on the said posts. The respondents, who belong to the open category and who had secured much lesser marks than the petitioners, filed an original application before the Maharashtra Administrative Tribunal, challenging the appointment of the petitioners. Solely on the basis of the judgment rendered by the Hon''ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, the original application filed by the respondents was allowed. The Tribunal set aside the select list of open (female) candidates and directed the respondent No. 2 - Collector to prepare a fresh list for the open category candidates by following the law laid down in the case of Rajesh Kumar Daria. The order of the Tribunal is impugned in the instant petition.

The learned Counsel for the petitioners submitted that the Tribunal was not justified in allowing the original application filed by the respondents. It is submitted that the last candidate in the select list of open category had secured 134 marks and the respondents, who had applied from the open category, had secured only 124 marks. It is submitted that since 65 posts were earmarked for open category of which 20 posts were earmarked for women, the respondent No. 2 - Collector rightly prepared a list of the most eligible candidates solely on the basis of their merit i.e. the marks secured by them in the written examination, irrespective of the reserved class to which they belong. It is submitted that the select list of the candidates from the open category was based on several judgments rendered by the Hon''ble Supreme Court from time to time. It is submitted that though the petitioners had applied for the posts reserved for SC, ST, OBC and VJ candidates, the petitioners were rightly placed in the select list of general category candidates on the basis of their superior merit. It is submitted that the judgment of the Hon''ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, has been misread by the Tribunal while deciding the original application. It is submitted that if the order of the Tribunal is to be followed, the candidates from the reserved classes would be seriously prejudiced though they are more meritorious than the candidates applying from the general category.

The learned Assistant Government Pleaders supported the order of the Tribunal. It is submitted that the Tribunal has rightly considered the law laid down by the Hon''ble Supreme Court in the judgment in the case of Rajesh Kumar Daria, specially in paragraph Nos. 7 and 8 of the said judgment. It is submitted that when horizontal as well as vertical reservation is required to be followed while making the appointments, there cannot be a shifting of the candidates applying from different reserved classes, from one class to another.

Shri Dhengale, the learned Counsel for the respondent also supported the order of the Tribunal and submitted that the same is based on the judgment reported in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, . It is stated that this Court has also taken a similar view, by the order dated 15.11.2010 in W.P. No. 272/2010. The learned Counsel sought for the dismissal of the writ petitions.

On hearing the learned Counsel for the parties, it appears that the Tribunal committed a serious error while applying the ratio laid down by the Hon''ble Supreme Court in the judgment reported in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, . In the case of Rajesh Kumar Daria, of the total seats that were advertised, 59 were earmarked for the general category (open competition) candidates and of the 59, 11 were earmarked for women. In the said case the respondents therein listed the first 59 meritorious candidates from amongst the 261 successful candidates, in the select list of candidates for the general category, as 59 posts were reserved for the general category. In the list of 59 most meritorious candidates from amongst the 261 successful candidates, 11 women candidates had already secured a place. Despite the said position, the respondents in that case removed the last 11 meritorious candidates from the select list for the general category and replaced them by women candidates. As a result, instead of 11 women candidates, 22 women candidates were selected, the last 11 candidates not being selected on the basis of their merit but only because they were women. The Hon''ble Supreme Court had observed in the case of Rajesh Kumar Daria that this was clearly impermissible. The Hon''ble Supreme Court held that once 11 women had found place in the select list of 59 most meritorious candidates of the successful candidates, there was no propriety in removing the last 11 meritorious candidates from the select list for general category and substituting them by women candidates, though the reservation for women candidates already stood fulfilled, with the selection of 11 women candidates in the general list of open candidates. The Hon''ble Supreme Court, by referring to the judgments, specially in the case of Indra Sawhney Vs. Union of India (UOI) and Others, , Anil Kumar Gupta and Others Vs. State of U.P. and Others, , held that the proper and correct course is to fill up the open competition quota on the basis of merit and then to fill each of the social reservation quota and then proceed to find out how many candidates belonging to special reservation have been selected on the above basis. In our view, the facts involved in Rajesh Kumar Daria''s case are similar to the facts involved in this case. In that case also, the Hon''ble Supreme Court did not frown upon the selection of the most meritorious candidates from amongst the successful candidates while preparing the select list of general category candidates. All that, the Hon''ble Supreme Court held was that once the list of general (open) candidates was prepared and it included and fulfilled the special reservation in regard to the posts that were earmarked for women, there was no need of further selection of women candidates under the special reservation for women in the open category. The judgment in the case of Rajesh Kumar Daria does not lay down that it would not be permissible for the appointing authority to place the candidates applying from the reserved categories (social reservation) in the select list of candidates for the general (open) category though they are far more superior and meritorious than the candidates applying from the open category. If the decision rendered by the Tribunal is to be followed, as rightly submitted on behalf of the petitioners, a candidate applying in view of social reservation would be prejudiced, merely because he belongs to the reserved class. For example, if 20 posts are reserved for each category i.e. open category, OBC category, SC category and some reservation is provided for women candidates and if the 20th selected candidate applying from open category secures only 80 marks and the candidates applying from SC and OBC category and placed in the waiting list of those categories secure 140 and 150 marks, still by the principle applied by the Tribunal, the candidates applying from SC and OBC categories and securing 140 and 150 marks would not be entitled for appointment as they cannot be shifted to the open category though the 20th candidate in the select list of open category candidates has secured only 80 marks. It is true that when horizontal as well as vertical reservation is provided, there cannot be an interchange of candidates, from one vertical reservation to another, for satisfying the horizontal reservation. However, in case of posts earmarked for open category, candidates applying from reserved categories could be considered on the basis of their superior merit. This position is well settled. In all the cases that have been referred to, in the case of Rajesh Kumar Daria it has been laid down by the Hon''ble Supreme Court that the open competition quota has to be filled in from the list of successful candidates irrespective of the social reservation, under which they have applied. We find that the Tribunal has misread the judgment in the case of Rajesh Kumar Daria. We have already mentioned that the facts in the case of Rajesh Kumar Daria are similar to the facts involved in these cases. The women petitioners are much more meritorious than the respondents and they belong to the reserved classes. In the circumstances of the case, the respondent No. 2 - Collector had rightly included the names of the petitioners in the select list of general category candidates. As the names of 20 women were already included in the select list of 65 candidates that was prepared solely on the basis of merit, for appointment on the posts earmarked for the open category, there was no propriety in interfering with the select list.

For the reasons aforesaid, the writ petitions are allowed. The impugned order of the Tribunal is quashed and set aside.

Rule is made absolute in the aforesaid terms with no order as to costs.