(1) WP 4909.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4909 OF 2011 Nagnath S/o Madhavrao Chalwade PETITIONER VERSUS The State of Maharashtra and ors. RESPONDENTS ..... Mr. C.R. Thorat,Advocate for the Petitioner Mr. K.S. Patil, A.G.P. for the Respondent-State. Mr. A.R. Nikam, Advocate for respondent no.2 Mr. S.B. Pulkundwar, Advocate for respondent no.3 ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 16TH NOVEMBER, 2011 ORAL ORDER: 1. Rule. Rule made returnable forthwith. By consent, the Petition is heard finally. 2. The petitioner has approached this Court for a writ of mandamus, seeking a direction to the respondents to appoint the petitioner as a Primary Shikshan Sevak in the establishment of respondent no.3. The petitioner who has passed D.Ed. examination in English medium, has secured 71% marks. The petitioner appeared for the Common Entrance Test, conducted by respondent no.2 for appointment as (2) WP 4909.2011 Shikshan Sevak throughout the State of Maharashtra. The petitioner had applied from quota reserved for Sportsmen. Though the petitioner was selected against the said post, however, the selection of the petitioner came to be cancelled on the ground that the petitioner's certificate was not in consonance with the requisite provision for appointment in the Sports category. 3. However, during the pendency of the present Petition, the petitioner has submitted that even if the petitioner is not eligible to be appointed from the category reserved for Sports persons, even then he is eligible to be appointed inasmuch as he has secured 125 marks, whereas the last candidate appointed has secured only 93 marks. In view of this factual situation, we had requested learned counsel for the respondent no.3 to take instructions as to whether there was any vacancy of Shikshan Sevak in Hingoli Zilla Parishad. Learned counsel for the respondent no.3, on instructions, states that there is only one vacancy from the Sports category and not from the Open English Category. (3) WP 4909.2011 4. By now it is settled position of law that a candidate, who applies from a reserved category, if is eligible to be appointed in Open Category, can not be denied the appointment in the Open category. A reference in this respect could be made to the judgment of the Constitution Bench of the Supreme Court in the case of "Indra Sawhney v. Union of India reported in AIR 1993 S.C. 477". If the petitioner who has secured 125 marks is denied the appointment, it will lead to injustice, inasmuch as a candidate who has secured less marks i.e. 93 marks, has already been appointed from the Open English Category. 5. In that view of the matter, we find that in the peculiar facts and circumstances of the present case, the Petition deserves to be allowed. Respondent no.3 is directed to appoint the petitioner against the post which is available with the respondent no.3. However, it is further directed that the appointment of the petitioner will be considered against Open English Category. It is further directed that the next available vacancy in the respondent no.3 will be earmarked for Sports category. The appointment order (4) WP 4909.2011 will be issued to the petitioner within a period of three (3) weeks from today. Rule is made absolute in the aforesaid terms, with no order as to costs. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/