1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4976 OF 2010 Dadasaheb S/o Gorakhnath Khade and others .. Petitioners Versus 1. The State of Maharashtra and others .. Respondents Shri V. J. Dixit, Senior Counsel with Shri S. G. Rudrawar, Advocate for Petitioners. Shri N. B. Khandare, Govt. Pleader for Respondent Nos. 1 to 3. CORAM : P. V. HARDAS AND N. D. DESHPANDE, JJ. DATE : 04TH AUGUST, 2010. PER COURT : . This is a petition under Article 226 of the Constitution of India taking exception to the order passed by the Aurangabad Bench of the Maharashtra Administrative Tribunal dated 03.04.2010, in Original Application No. 318 of 2010. The Tribunal dismissed the original application submitted by the applicants before it and confirmed the cancellation of the written 2 examination which was held on 05.04.2010 and the holding of fresh written examination on 05.05.2010 and consequential selection of the candidates therein. 2. It appears that on 02.02.2010 an advertisement came to be issued inviting applications for the post of Armed Police Constable. Initially 123 vacancies were notified but the same came to be increased to 142 vacancies. Pursuant thereto there were serveral applications and accordingly from 24.03.2010 to 03.04.2010 a physical test was conducted. Thereafter, the written examinations came to be conducted on 05.04.2010. Accordingly, the results were expected to be declared on 06.04.2010, but the results were not declared on 06.04.2010. It appears that one Shri Suresh Satpute had submitted a complaint before the authorities. In the said complainant Shri Suresh Satpute had alleged that he was a candidate belonging to reserved category and had secured 71 marks, while the candidate from the open category who had been called for written examination had secured 69 marks. He had also stated that the last candidate from the reserved category who had been called for the written examination had secured 72 marks. Thus, though he had secured 71 marks he was not called for written examination. It 3 also appears that on the basis of said complaint certain enquiry came to be made and it transpired that the authorities had misinterpreted the words "Open Category" appearing in the circular dealing with the recruitment dated 16th March, 1999. Obviously Clause 5 of the said circular has been drafted pursuant to the judgment of the Supreme Court. However, the judgment of the Supreme Court is not referred in the circular, but one can presume that it must be judgment of the Supreme Court rendered in Indra Sawhney v Union of India 1992 Supp (3) Supreme Court Cases 215. As per the dictum laid down in Supreme Court in Indra Sawhney case, all the vacancies which were available to be filled in particularly relating to the candidate belonging to open category were required to be filled first from amongst the candidate which include the candidates from open category as well as the candidates from reserved category. The Supreme Court further held that the candidate belonging to reserved category are entitled to be appointed on the seats which were reserved for reserved category candidates on the basis of merits. Obviously, a candidate belonging to open category could not be appointed on the seats which were reserved for candidates belonging to reserved category. 4 3. The affidavit in reply filed on behalf of respondents clearly indicates that the word "Open Category" was considered by the authorities as being restricted only to those candidates who belong to the open category i. e. candidates not belonging to reserved category. It also appears that in the recruitment process the candidates belonging to reserved category were not considered on merits in respect of the seats which were reserved for open category candidates. The entire recruitment process, therefore was scrapped for such flagrant deviation and ultimately came to be cancelled by directing the holding of fresh written examination. 4. The petitioners who were aggrieved on account of cancellation of the performance in the written examination held on 05.04.2010 and as they being not considered as eligible for the written examination held on 05.05.2010 submitted application before the Aurangabad Bench of Maharashtra Administrative Tribunal. The Tribunal after examining the law found that the authorities had corrected the error which had crept in the recruitment process and no fault could be found with the authorities in cancelling the written examination held on 05.04.2010 and directing the fresh examination on 05.05.2010. 5 The petitioners being aggrieved by the order of learned Tribunal have filed present writ petition. 5. Mr. V. J. Dixit, learned senior counsel appearing on behalf of petitioners has referred to Clause 5 of the circular dated 16th March, 1999. According to Shri Dixit, learned senior counsel for petitioners the word "Open Category" has been understood by the respondents correctly. It is urged before us that except the recruitment process held at Jalna, the recruitment process held elsewhere in the State of Maharashtra have held that the word "Open Category" was being restricted only to those candidates who did not belong to any of the reserved categories. It is also urged before us that the recruitment process is conducted as per the Government Policy and the Rules governing the recruitment process. The rules of the game could not have been changed, after the game had commenced. It is also urged before us that if different set of rules stopped mid way in the recruitment process, the subsequent cancellation of the examination held on 05.04.2010 stand vitiated. Learned Government Pleader appearing on behalf of respondents, deriving support from the affidavit in reply filed on behalf of respondents has urged before us that the wording of the circular, though may not be happily 6 worded, clearly indicates that it has been issued on the basis of the judgment of Supreme Court and therefore, word "Open Category" obviously means candidates belonging to the open category. The word "Open Category" does not exclude the candidate from reserved category competing for the posts which are reserved for open category candidates. It is also urged before us that there has been no alteration of the Rules after the "game" has begun and the "game" has been played as per the Rules. 6. We have perused clause 5 of the Government Circular adverted to above and upon close reading of the said circuler we do not find that any ambiguity exists in the Government Circular. The aforesaid clause 5 has been specifically introduced because of the judgment of the Supreme Court. Clause 5 clearly lays down the instructions in the recruitment process as per the judgment of the Supreme Court. The reading of clause 5 does not in any manner indicate that the word "Open Category" would exclude candidates belonging to other reserved class from competing for the posts which are reserved for open category candidate. In that light of matter, therefore according to us the Rules have not been changed mid way during the "game" nor have respondents applied new set of Rules. In fact, respondents 7 had misinterpreted "Open Category" to mean that candidates belonging to reserved category were excluded which was subsequently corrected by the respondents in cancellation of the written examination held on 05.04.2010. The learned members of the Tribunal have correctly applied the law and have correctly interpreted clause 5 and have dismissed the original application. We do not find any perversity in the reasoning of the learned Tribunal to warrant any interference in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India. 7. This petition, therefore being sans merit is summarily dismissed with no order as to costs. [ N. D. DESHPANDE, J.] [ P. V. HARDAS, J.] bsb/Aug.10