WP No. 6303/09 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6303 OF 2009 Raju s/o. Asaram Pawar, Age 38 yrs., Occu. Agri., R/o. Jalgaon, Tq. Vaijapur, Dist. Aurangabad. ....Petitioner. Versus 1. The State of Maharashtra through the Sub Divisional Officer, Vaijapur, Tq. Vaijapur, Dist. Aurangabad. 2. Smt. Sumitra w/o. Vitthalrao Barsale, Age 40 yrs., Occu. Agri., R/o. Jalgaon, Tq. Vaijapur, Dist. Aurangabad. ....Respondents. Mr. G.N. Chincholkar , Advocate for petitioner. Mr. T.S. Lodhe, A.G.P. for respondent No. 1. Mr. Sachin Deshmukh, Advocate for respondent No. 2. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 15th December, 2011. ORAL JUDGMENT : [PER NARESH H. PATIL, J.] 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. 2. The petitioner participated in the selection process against an advertisement issued for appointing Police Patil for village Jalgaon, Taluka Vaijapur, District Aurangabad. The said WP No. 6303/09 2 advertisement was published on 21st February 2008 by Sub Divisional Officer, Vaijapur. As per the condition No. 6 in the said advertisement, in accordance with the State's policy of reservation for women, priority would be given to a woman candidate. The respondent No. 2 - Sumitra also participated in the selection process. Admittedly, petitioner secured 152.5 marks and respondent No. 2 secured 147.5 marks. The authorities thought it fit to select respondent No. 2 and appointed her, being a woman candidate to be Police Patil for the said village on 30th May 2008. Since then respondent No. 2 is discharging duties as Police Patil of the said village. 3. The petitioner questioned the appointment of respondent No. 2 by filing Original Application No. 487/2008 before the Maharashtra Administrative Tribunal, Aurangabad. By judgment and order dated 19.6.2009 the original application came to be dismissed. Aggrieved thereby the petitioner prefers this writ petition. 4. Shri. Chincholkar, learned counsel for the petitioner submits that in the advertisement the said post was not reserved for a woman candidate. If both the candidates i.e. petitioner and respondent No. 2 secure equal marks, the State under the clear policy adopted for the said purpose, would give preference to WP No. 6303/09 3 respondent No. 2. But, in the present case, neither the advertisement stipulates such preference nor the respondent No. 2 secures higher marks than the petitioner. The counsel submits that the Tribunal committed an error in dismissing the Original Application filed by the petitioner. 5. Shri. Sachin Deshmukh, learned counsel for the respondent No. 2 submits that respondent No. 2 has been discharging her duties with the best of her capabilities since the date of her appointment i.e. 30th May 2008. Broadly, the State adopted a policy to reserve certain posts for women candidates and the subject post of Police Patil was reserved for woman candidate. In other words, the counsel submits that even after the petitioner participated in the selection process and secured more marks than the respondent No. 2, still the authorities were entitled to give preference to a woman candidate. The counsel submits that in this view of the matter, at this stage, appointment of respondent No. 2 would not be cancelled. 6. Shri. T.S. Lodhe, learned A.G.P. for State submits that the petitioner is appointed in accordance with the State policy. The A.G.P. has adopted the affidavit in reply in support of his contentions. WP No. 6303/09 4 7. We have perused the relevant documents placed on record. We find that in the advertisement a vague reference was given to the State's policy of giving preference to a woman candidate. In the facts of the case, no seat was reserved for woman candidate for the post of Police Patil. Nothing is placed on record to show that there are rules to indicate that even after the petitioner secures more marks than the respondent No. 2, the State authorities still have power to appoint respondent No. 2 as Police Patil. The plea of giving preference to the respondent No. 2, being a woman candidate, cannot be accepted and made applicable to the facts of the case when two contesting candidates did not secure equal marks. Admittedly, petitioner secures more marks than the respondent No. 2. Considering from both these angles and in the light of specific terms of the advertisement placed at Exh. "A", we find that the Maharashtra Administrative Tribunal committed an error in dismissing the original application. 8. The learned counsel for the petitioner places reliance on judgment of this Court [Coram : P.V. Hardas & A.V. Potdar, JJ.] in Writ Petition No. 5497/2009 dated 6th October 2009. We have perused the same. 9. In view of the above reasoning, the impugned WP No. 6303/09 5 judgment and order dated 19.6.2009 of Maharashtra Administrative Tribunal in O.A.No. 487/2008 is quashed and set aside. The appointment order issued in favour of respondent No. 2 on 30th May 2008 is quashed and set aside. 10. We direct the respondent No. 1 - Sub Divisional Officer, Vaijapur to issue appointment order in respect of the post of Police Patil in favour of the petitioner forthwith. Rule is made absolute in above terms. No costs. 11. At this stage, the learned counsel for respondent No. 2 prayed for stay to the execution and operation of the order. The said prayer is rejected. 12. Registry is directed to forward the copy of this judgment to the Principal Secretary, Revenue and Forest Ministry, State of Maharashtra. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/