1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2610 of 2010 Date of decision:21/9/2010 For approval and signature HON'BLE MR. JUSTICE B.R.GAVAI HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.Paralikar) Private Secretary AGP/office/2610-10wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2610 OF 2010 Bhagwat Shivnarayan Pawar, Age: 25 Yrs., Occ: Nil, r/o. At Malgi, Post Bharosa, Tq.Chikhali, Dist. Buldhana. ...PETITIONER VERSUS 1. The State of Maharashtra, Through the Secretary, Energy Department, Mantralaya, Mumbai 400 032. 2. The Chief Engineer, Maharashtra State Electricity Transmission Co.Ltd., Aurangabad Zone, Aurangabad. 3. Maharashtra State Electricity Transmission Co.Ltd., Through its Managing Director, Prakashgad, Bandra (East), Mumbai 400 051 4. Smt.Ganga Dadarao Panat, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed. 5. Smt.Sheela Chimaji Shere, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed. 6. Smt.Maya Ambadas Dedhe, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed. 3 (R-4 to R-6 to be served through R-2, as their details regarding posting are available with R-2.) (Amendment, as to R-4 to 6, is carried out as per leave of the Court - Order dated 24.3.2010 in WP No.2610/2010) ...RESPONDENTS ... Mr.Ajay S.Deshpande, Adv., for the petitioner. Mr.G.K.Thigale (Naik), Adv., for R.2 and 3. Mr.S.K.Tambe, A.G.P., for respondent no.1. Respondent nos. 4 to 6 served. ... CORAM:B.R.GAVAI AND K.U.CHANDIWAL, JJ. DATE: 21/9/2010 *** ORAL JUDGMENT: (Per B.R.Gavai, J.) 1. By way of present petition, the petitioner challenges selection of respondent nos. 4, 5 and 6, as Line Helper. 2. Respondent no.3 had issued an advertisement, being advertisement No.1/2008, wherein Posts of Line Helpers were notified. Out of 317 posts, 10 posts were notified for the category of Physically Challenged Persons. The 4 said advertisement specifically provided that the selection would be purely on the basis of qualifying marks obtained by the candidates and no oral interviews would be held. In the said selection process the petitioner was not held to be selected and, as such, he filed the present petition. 3. During the pendency of the present petition, it was noticed by the petitioner that the three candidates, securing lesser marks than the petitioner, were appointed and, as such, by way of amendment, impleaded respondent nos. 4, 5 and 6, as party respondents. 4. Shri A.S.Deshpande, learned Counsel appearing on behalf of the petitioner, submits that in view of clause (5) of the said advertisement, a candidate from backward classes, if he is selected on his own merit, is required to be selected from Open Category. In view of the said clause, along with the Government Resolution dt.19th Oct.,2007, he submits that there cannot be reservation for women in the category of Physically Challenged persons. He submits that the appointment of the Physically Challenged Persons has to be purely on the basis of the marks obtained by them and the reservation of 30 per cent for women would not be permissible. 5 5. He further submits that there cannot be two parallel reservations an horizontal reservation, one for physically challenged and also, for women category candidates. 6. It is not in dispute that no male candidate belonging to Physically Challenged category, who has secured lesser marks than the petitioner, has been selected by the respondent Company. A categorical statement is made in the affidavit in reply on behalf of the respondent Board in that behalf and there is no counter filed by the petitioner to that. It is, therefore, admitted position that no male candidate belonging to Physically Challenged category, securing lesser marks than the petitioner, has been selected. It is also not in dispute that the candidates who have been selected, securing lesser marks than the petitioner, are all women. In that view of the matter, the only question that would arise for consideration before this Court is as to whether there can be a 30 per cent reservation for women candidates in the category of Physically Challenged persons. 7. In so far as the reliance placed by the learned Counsel on clause (5) of the advertisement is concerned, there cannot be a 6 dispute that a candidate belonging to backward class, if entitled to be selected from open category, has to be counted as being selected from Open Category and not from the reserved category. The Apex Court, in Indra Sawhney Vs.Union of India ( 1992 Supp.(3) SCC 217) held that, in so far as the reservation in favour of Scheduled Castes and Scheduled Tribes are concerned, they are Constitutional reservations and, as such, a candidate belonging to these categories, if entitled to be selected in the open category, has to be treated as selected from open category and not against reserved post. However, it is to be noted that, in so far as reservation for Physically Challenged persons is concerned, it is not a vertical reservation but a horizontal reservation. The Apex Court, in the case of Indra Sawhney's (supra) case itself has considered that the authorities, while providing horizontal as well as vertical reservation, the authorities will have to work out certain modalities and that, at times, both these reservations may overlap each other. The contention that, in one horizontal reservation, there cannot be another horizontal reservation, does not appeal to us. At a given point of time, the reservation for one horizontal reservation may overlap another horizontal reservation. If the contention of the learned Counsel for the petitioner that, a reservation for women cannot 7 be provided in a category of horizontal reservation for Physically Challenged Persons, is to be accepted then the very purpose for providing reservation to women would be frustrated. The reservation for women category is to be provided in all the categories; whether vertical or horizontal. Since we find that none of the candidates from male category, in the post reserved for Physically Challenged persons, is selected and that only candidates securing lesser marks than the petitioner are women candidates, we dismiss the petition. No costs. (K.U.CHANDIWAL) (B.R.GAVAI) JUDGE JUDGE agp/2610-10wp 8