{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5497 OF 2009 Vishwanath s/o Janardhan Dhotre Age-42 years, Occ-Service as Police Patil of village Kate Pimpalgaon Tq-Gangapur, Dist-Aurangabad PETITIONER VERSUS 1. The State of Maharashtra Through Secretary, Home Department, Mantralaya, Mumbai 2. The Sub Divisional Officer Vaijapur, Tq-Vaijpuar Dist-Aurangabad 3. Smt.Baby w/o Namdeo Chavan, Age-28 years, Occ-Nil Tq-Gangapur, Dist-Aurangabad RESPONDENTS ....... Mr.S.D.Dhongde, Advocate for petitioner Mr.V.B.Ghatge, AGP for respondents No.1 and 2 Mr.V.D.Salunke, Advocate for respondent No.3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE: 6th October 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at this stage. {2} 2. This petition, under Article 226 of the Constitution of India, impugns the order passed by the Aurangabad Bench of the Maharashtra Administrative Tribunal dated 06.08.2009 allowing the Original Application filed by respondent No.3. 3. It appears that the third respondent had filed Original Application No.657/2008, by which she had challenged the selection of the present petitioner as Police Patil pursuant to the proclamation dated 21.02.2008 which was published inviting applications for appointment to the post of Police Patil of village Kate Pimpalgaon. The proclamation, in terms, lays down the eligibility criteria, which includes minimum educational qualification of having passed 10th Standard and other conditions. Clause 6 further specifies that preference would be given to female candidates in tune with the government policy. A written examination was conducted on 23.03.2008 and thereafter the list of the candidates was to be displayed on the same day i.e. 23.03.2008. The petitioner, it appears, had secured 165 marks in the written examination while the third respondent had secured 162.5 marks. 4. The Tribunal proceeded on the assumption which we may reproduce below - “11. By nature female as against male is belongs to a weaker section of society. As such, if female and male candidate is at part in the selection process then only giving preference to female is not in tune with the concept of preference to female, being belongs to weaker section. 12. The dictionary meaning of preference as per Concise Oxford Dictionary is ‘favouring of one person before others’. {3} Thus, the concept of preference is with inbuilt concept of favouring oneself against others, which mean though not at par with others, he is chosen or accepted. 13. Even the policy of Government of giving preference to female is favouring the female being belongs to weaker section of society. 14. In view of the real meaning of concept of preference to female candidate, it can certainly be said that the applicant was entitled for preference being a female candidate for appointment. Even with Note-2 in the advertisement as referred herein above, the preference has to be given to a female candidate, if female candidate is a shade-less in merit to the male candidate. Consequently, I find that the appointment of respondent No.3 was an error committed by the concerned authority by not giving due consideration to the true and correct meaning of concept of preference to a female candidate, as contemplated by condition No.6 of the proclamation.” 4. The Tribunal proceeded to enunciate the doctrine of preference and came to the conclusion that since the third respondent is a female, was entitled to be given a preference. Mr.Dhongde, learned counsel for the petitioner has urged before us that the Tribunal has fallen into an error in not appreciating the doctrine of preference. According to learned counsel for the petitioner, the preference could have been given to the third respondent only in the event the petitioner and the third respondent were at par, as far as merit is concerned. According to the learned counsel for the petitioner, the petitioner stood at higher pedestal than the third respondent, as the petitioner has scored 165 as against 162.5 marks scored by the third respondent. In that light of the matter, therefore, it is urged before us that the preference could not have been given to the third respondent. Mr.Salunke, learned counsel for the 3rd respondent, countering the submission of the petitioner, has urged {4} before us that undisputedly, the petitioner and the 3rd respondent were both eligible as per eligibility, which is prescribed in the proclamation dated 21.02.2008 and since the petitioner and the third respondent were both eligible, the third respondent was entitled to be given preference. 5. We are unable to agree with the submissions of the learned counsel for the third respondent. A written examination was conducted and the appointment was to be made on the basis of the merit i.e. marks obtained by all the eligible candidates. Doctrine of preference cannot be applied at the stage of considering the eligibility. If this is done the very purpose of holding the written examination, for deciding the merits, would rendered redundant. After the written examination was held, it was noticed that the petitioner has secured 165 marks while the 3rd respondent has secured 162.5 marks. The third respondent, was thus lower in merit than the petitioner. If that is the case, the doctrine of preference could not have been invoked for allowing the original application filed by the third respondent and directing that she be appointed as Police Patil while upsetting the appointment of the petitioner. According to us, the doctrine of preference has been completely misapplied by the Tribunal. In the face of this, the order impugned in this petition is, therefore, unsustainable and hence liable to be quashed and set aside. 6. Accordingly, this petition succeeds and the impugned order passed by the Tribunal is hereby quashed and set aside. 7. Rule is thus made absolute on the above terms with no order as to costs. {5} 8. At this stage, Mr.V.D.Salunke, learned counsel for the third respondent, prays that our judgment be stayed for a period of 3 weeks to enable the petitioner to avail such remedies as are available in law, as pursuant to the order of the Tribunal the third respondent has been appointed as a Police Patil, We accordingly grant stay to our judgment for a period of 3 weeks. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp5497-09