Bombay High Court
Rupali Sanjay Pawar vs The State Of Maharashtra And Others on 6 January, 2021
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, Shrikant D. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 504 OF 2019
Rupali D/o Sanjay Pawar,
Age : 27 Years, Occu. : Nil,
R/o 8-B, Vijay Police Colony,
Wadi Bhokar Road, Dhule,
Tq. & Dist. Dhule. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai 400 032.
2. The Commissioner,
Commissioner Office,
Nasik.
3. The Chairman
District Selection Committee,
Collector, Nandurbar.
4. The Member/Secretary,
District Selection Committee,
Deputy Collector, Nandurbar.
5. The Collector,
Collector Office, Nandurbar,
Nandurbar.
6. The Collector,
Collector Office, Gadchiroli,
Gadchiroli. .. Respondents
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Shri V. D. Sapkal, Senior Advocate i/by Shri J. M. Wagh,
Advocate for the Petitioner.
Mrs. M. A. Deshpande, Addl.G.P. for Respondent Nos. 1 to 6.
CORAM : S. V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATE : 06TH JANUARY, 2021.
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The respondent Nos. 3 and 4 published advertisement for filling fifteen posts of Talathi in Nandurbar district. The advertisement specified that out of fifteen posts, two posts are reserved for the Scheduled Tribe, one post is reserved for V.J.-A, one post for N.T.-B and eleven posts are reserved for general category. Out of eleven posts meant for the general category, three posts were reserved for General (Woman) category and out of two posts for S.T., one post was reserved for woman category. The petitioner pursuant to the advertisement applied for the post of talathi for Nadurbar region. The petitioner participated in the selection process. The name of the petitioner appeared at Sr. No. 3 of the provisional selection list for the post reserved for general woman category. The candidates at Sr. No. 1 and 2 are given appointment orders. The petitioner at Sr. No. 3 was not given the appointment order. The petitioner aggrieved thereby filed original application before the Maharashtra Administrative Tribunal at Aurangabad bearing O. A. No. 426 of 2015. The ::: Uploaded on - 08/01/2021 ::: Downloaded on - 06/02/2021 22:40:50 ::: 3 wp 504.19 Tribunal dismissed the original application under the impugned judgment. The petitioner has assailed the same in the present writ petition.
3. The gravamen of the argument of Mr. Sapkal, the learned senior advocate for the petitioner is that, the petitioner is entitled for the appointment as per the advertisement. Three posts are reserved for general woman category. The petitioner is at Sr. No. 3. The respondents have illegally denied appointment to the petitioner relying upon the notification dated 09 th June, 2014. According to the learned senior advocate, the notification would not apply to the present selection process. The present selection process commenced on 15.04.2014, much prior to the issuance of the notification. Under the notification dated 09 th June, 2014 all the seats in scheduled area were to be filled in from the S. T. candidates. In view of that the respondent realigned the number of posts reserved for general category and for general woman only two posts were earmarked. The same is illegal. The rules of the game cannot be changed, once the game is played. The learned senior advocate also relies on the communication dated 26.05.2015 issued by the State Government to the Collector Nandurbar and Gadchiroli. Under the said communication, it is clarified that if the selection process has commenced prior to 09.06.2014, then the appointment shall be given to the selected candidates on the vacant posts in non PESA area. According to the learned senior advocate the same is not referred and considered by the ::: Uploaded on - 08/01/2021 ::: Downloaded on - 06/02/2021 22:40:50 ::: 4 wp 504.19 Tribunal. It was erroneous on the part of the Tribunal to suggest that the respondents have every right to change the vacancy and reservation before actual appointments are made.
4. Mrs. Deshpande, the learned Additional Government Pleader for respondents/State submits that, the posts notified in the advertisement and earmarked for different categories were only probable posts. Before the selection process could be commenced in real sense, the notification is issued on 09.06.2014 directing appointment of S.T. candidates only in the scheduled area. No illegality has been committed in adhering to the notification dated 09.06.2014 by respondents. In view of the notification dated 09.06.2014, the posts were required to be realigned. When the advertisement was issued out of 234 posts, 197 posts were from the scheduled area and 27 posts were from non scheduled area. In the non scheduled area only 08 posts were vacant and only five could be provided for open category. Accordingly vacancy notified originally had to be changed and revised select list was published. The Tribunal has considered all these aspects in correct perspective.
5. We have considered the submissions canvassed by the learned counsel for respective parties.
6. The factual matrix to the extent of advertisement being issued, petitioner's name appearing at Sr. No. 3 in the select list of the persons from General (Woman) category, so also eleven ::: Uploaded on - 08/01/2021 ::: Downloaded on - 06/02/2021 22:40:50 ::: 5 wp 504.19 posts meant for general category and from the said eleven posts, three posts were reserved for general (Woman) are admitted facts. On the date the advertisement was issued and the petitioner filled in application form pursuant to the advertisement, the notification dated 09 th June, 2014 relied by the respondents had not seen the light of the day. The applications pursuant to the advertisement were to be filled in on or before 30th May, 2014.
7. The notification dated 09th June, 2014 was operative after the petitioner had filled in the application form.
8. It would also appear that, clarification was issued by the State Government to the Collector Nandurbar and Gadchiroli that, though for the post of talathi the selection process was completed after 09.06.2014, but to be fair to the candidates selected on merit, those candidates should be given appointment on non schedule/non PESA area and for that purpose there would not be impediment of notification dated 09.06.2014. It is submitted by the learned senior advocate for the petitioner that, same was implemented in Gadchiroli district. However, it was not implemented in Nandurbar district.
9. We had asked the learned Addl. G. P. to take instructions whether vacant posts exists in Nandurbar district. The learned Addl. G. P. on instructions submits that, after the selection process of 2014 was completed, further selection process for the ::: Uploaded on - 08/01/2021 ::: Downloaded on - 06/02/2021 22:40:50 ::: 6 wp 504.19 post of talathi was undertaken in the year 2015 and 2019 and even after conclusion of said selection process, four posts are vacant viz two posts in Nandurbar sub division and two posts in Shahada sub division. They are posts in non PESA area.
10. As per communication dated 26.05.2015, issued by the State Government to the Collector Nandurbar and Gadchiroli, the respondents in fact ought to have accommodated the petitioner on the vacant post, as the same was existing. The said communication dated 26.05.2015, it appears that, had not been brought to the notice of the Tribunal.
11. It is matter of record that, the petitioner was selected and was placed at Sr. No. 3 in the category of General (Woman). Three posts were earmarked for general woman as per the advertisement. There was no impediment for the respondents to appoint the petitioner on the vacant post as per the communication dated 26.05.2015 of the State Government to the Collector, more particularly as the petitioner is found qualified and was selected.
12. The petitioner had diligently approached the Tribunal in the year 2014 itself. The petitioner was prosecuting her grievance with the Tribunal. The delay in deciding the proceeding would not affect the right of the petitioner, more particularly when vacant posts are available and no other candidate is required to be dislodged.
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13. In the light of the above, we pass the following order.
14. The impugned order passed by the Tribunal is quashed and set aside. In case the petitioner is otherwise eligible and in case there is no other impediment, then the respondents shall appoint the petitioner on the vacant post of talathi on non PESA area. The steps to that effect shall be taken expeditiously and preferably within a period of four (04) weeks from today.
15. Rule is accordingly made absolute in above terms. No costs.
[SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.] bsb/Jan. 21 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 06/02/2021 22:40:50 :::