1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6458 OF 2006 Nitin s/o. Dattu Mahajan, Age 32 years, Occ. Nil R/o. Navin Super D-16/2, Deep Nagar, Tq. Bhusawal District Jalgaon. .. petitioners Versus 1] The State of Maharashtra through its Secretary 2] The Zilla Parishad, Jalgaon through its Chief Executive Officer, Zilla Parishad, Jalgaon Tq. And Dist. Jalgaon. 3] The President or Collector, Jalgaon Tq. and Dist. Jalgaon. 4] The Secretary, District Selection Committee, or Dy Chief Executive Officer(Gram Pachayat), Zilla Parishad, Jalgaon. ---- Mr. R.R. Mantri, Advocate for the petitioner Mr. N.B. Suryawanshi, Advocate for respondent Nos. 2 and 4 Mr. K.M. Suryawanshi, Advocate for respondent Nos. 1 and 3 .. Respondents. 2 CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : 26th August, 2009. ORAL JUDGMENT:- [PER B.R. GAVAI,J.] 1] Rule. Rule made returnable forthwith. By way of present petition the petitioner is seeking directions to the respondents to appoint the petitioner as a Gram Sevak on contract basis, and grant him arrears of pay, deemed date of appointment and all other consequential benefits. 2] The petition arises out of peculiar circumstances. 3] The respondent Nos. 2,3,4 had advertised the post for appointment of Gram Sevak on contract basis. The said advertisement was issued on 1/8/2005. In the said advertisement, we are concerned with the category of OBC. 4] 64 posts in all were made available for the said category. Out of them, one post was reserved for the category of Project Affected Persons, belonging to OBC category. Since we are not concerned with the rest of the categories, we need not advert to the other details. 5] The petitioner was qualified in the said selection process. However, since there was one post available in OBC-PAP(Other backward 3 Class-Project Affected Persons ) category and one more person namely, Pravin Kadu Teli, was above him in the said category, the petitioner was shown at Sr. No.1 in the waiting list. 6] The petitioner, being aggrieved with his non-selection, approached this court. 7] Shri Mantri, learned counsel for the petitioner, though has raised several grounds in support of the petition, he has restricted the claim to a limited ground that since the said Pravin Kadu Teli, had secured more marks than the various candidates who were selected from the OBC Category, the said Pravin Kadu Teli ought to have been appointed from OBC- General Category and on his appointment in OBC General Category, since the next available candidate was the petitioner, he was liable to be appointed from the OBC-PAP category. 8] Shri Suryasanshi, learned counsel appearing on behalf of the respondents, submits that the select list was to operate only for a period of one year and after the period of one year, the select list would automatically lapse. He submits that since the select was prepared on 14th September, 2005, the said list lapsed on 14th September, 2006 and as such the petitioner does not have any claim on the said post. He further submits that since there are separate lists prepared for OBC-General and OBC-PAP category, the said Shri Teli could not have been accommodated in OBC category. 4 9] The Apex Court, in the case of “Indira Sawhney Vs. Union of India” reported in AIR 1993 SC 477, while dealing with the question of reservation, has observed thus :- “94A. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%. . While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situation inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be teated in a different way, need to be teated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. . In this connection, it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates. 95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture : all reservations are not of the same nature. There are two types of reservations, which may, for the sake of 5 convenience, be referred to as `vertical reservations ' and `horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations, whereas, reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations – what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons, this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments.” 10] The Apex Court in para.95, has considered the adjustment to be made in vertical and horizontal reservation. The Apex Court has clearly observed that the person selected against the quota reserved for horizontal reservation will be placed in an appropriate category. It is also clearly held that if a person belonging to the reserved category is entitled to be selected in the open competition on the basis of his merit, he is to be treated as an open category candidate. In the present case, it is not in dispute that the petitioner as well as said Shri Pravin Teli are belonging to OBC category as well as OBC-PAP category. The said Shri Pravin Teli got 71.75 marks in the 6 examination. In the select list, which is placed on record there are atleast 30 persons who have secured less than 71.75 % marks. 11] We are, therefore, of the considered view that in view of the law laid down by the Apex Court in “Indira Sawhney's case (supra), the said Shri Pravin Teli ought to have been accommodated in OBC General Category. Had said Shri Pravin Teli been accommodated in OBC general category, then the petitioner was the only person available for being appointed from the OBC-PAP category. 12] Normally, we would have required the petitioner to implead the last person who is selected from OBC General category, as party respondents, inasmuch as, for accommodating the petitioner, the appointment of that person would have been required to be cancelled. However, the respondent Zila Parishad themselves, in their advertisement, issued on 20th April, 2007 have notified that one post is kept vacant for the OBC-PAP category and the same shall be filled in, subject to decision of the present petition. Undisputedly, now, there is one post available with the respondent Zilla Parishad for a candidate belonging to OBC-PAP category. In so far as the contention of Shri Suryawanshi regarding preparation of separate list for OBC general category and and OBC-PAP category is concerned, we are not inclined to accept the said submission in view of the law laid down by the Apex Court in Indira Sawhney's case (supra). The respondents ought to have first prepared the list of OBC general category candidates on the basis of the marks obtained by all the candidates 7 belonging to the OBC category, including the candidates, who could have been considered for the horizontal reservation earmarked for various categories. 13] In that view of the matter, we find that it will not be necessary to uproot the last candidate selected from the OBC general category, even after the absorption of the said Teli in OBC General category. In the peculiar facts and circumstances of the case, we, therefore, find that the petitioner is entitled to the reliefs claimed in the petition. In so far as the grounds raised by the Zilla Parishad regarding the select list having validation for a period of one year, we find no merit in the said submission inasmuch, as the petitioner was before this court prior to the completion of one year from the select list. 14] In that view of the matter, we allow the petition, by directing the respondents to issue appointment to the petitioner on the post of Gram Sevak, which is kept vacant for OBC -PAP (Project Affected Persons) category. The appointment shall be issued within 4 weeks from today. In the peculiar facts ad circumstances of the case, though we are not inclined to direct appointment of any back wages, we direct that the petitioner shall get the deemed date of appointment from the date, on which the said Shri Teli Pravin Kadu, has joined the services. 15] Rule made absolute in above terms with no orders as to costs. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] 8 Grt/-