-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.8236 OF 2007 NO.8236 OF 2007 NO.8236 OF 2007 Chandrakant N. Ghare and ors. ...Petitioners v/s State of Maharashtra and ors. ...Respondents Mr U.P. Warunjikar for Petitioners. Mr C.R. Sonawane, AGP for Respondent Nos.1, 3 and 4. Mr S.D. Rupawate for Respondent No.9. CORAM : D.K. DESHMUKH AND R.Y. GANOO JJ. DATE : 9TH JUNE 2008. -2- P.C. :- 1. By this petition, the petitioners basically challenge that part of the Government Resolution dated 26th October 2004 by which the Government directs that while filling in promotional post on the basis of seniority-cum-merit, when the authority finds that the vacancy that is to be filled in is not reserved for any backward class category but is for open category and if the person due for promotion belongs to backward class category, that person should not be denied promotion only because the vacancy is for open category and he belongs to backward class category. It appears that a similar controversy was considered by the Aurangabad Bench of this Court in writ petition No.4359 of 2006 (Atul V. Mane and ors. v/s State of Maharashtra and ors.) alongwith other connected matters, decided on 5th April 2007. Even independently of that judgment, we find that in view of the following observations in the decision of the Supreme Court in the case of Indra Sawhney v/s Union of India, reported in AIR 1991 SC 477, no exception can be taken to the Government policy : "605. Constitution of India aims at equality of status and opportunity for all citizens including those who are socially, economically -3- and educationally backward. If members of backward classes can maintain minimum necessary requirement of administrative efficiency not only representation but also preference in the shape of reservation may be given to them to achieve the goal of equality enshrined under the Constitution. Article 16(4) is a special provision for reservation of appointments and posts for them in Government services to secure their adequate representation. The entry of backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. When two persons one belonging to the backward class and another to the general category enter the same service through their respective channels then they are brought at par in the cadre of the service. A backward class entrant cannot be given less privileges and similarly a general class candidate cannot claim better rights because he has come through a tougher ladder. After entering the service through their respective sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of -4- employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative of Article 16(1)." . In our opinion, the Government Resolution is in consonance with the law that is laid down by the Supreme Court from time to time and lastly in the case of Indra Sawhney’s case that if a person belonging to backward class category, though he may have entered the services as a person belonging to backward class category, cannot be denied promotion against an open seat to which he may be entitled on his own seniority and merit. In our opinion, that will amount to creating disqualification for reserved category candidates which is not contemplated by law. In the present case, what has happened is that the Zilla Parishad, Satara has denied promotions to candidates belonging to reserved category though they were entitled to be considered on the basis of seniority against the vacancies meant for open category candidates. Pursuant to the Resolution issued by the State Government dated 26th October 2004, the Zilla Parishad has now undertaken the exercise of correcting their mistake by giving promotion to those candidates who were denied it on wrong understanding of law by giving deemed date of their promotions. In our -5- opinion, therefore, there is nothing wrong with the Government Resolution or consequent action taken by the Zilla Parishad. However, a statement has been made by the learned counsel appearing for petitioners that the question involved in writ petition No.4364 of 2007 was identical to the question raised in the present petition. In view of this statement therefore, inspite of our prima facie observation above, the petition has to be admitted. Hence rule. To be heard with writ petition No.4364 of 2007. 2. So far as grant of interim relief is concerned, in this petition there is an ad-interim order granted, directing the parties to maintain status-quo. In our opinion, considering that that part of the Government Resolution dated 26th October 2004 which is challenged in the petition and which we prima facie find to be valid and in consonance with the provisions of the Constitution of India and the law laid down by the Supreme Court, the ad-interim order does not deserve to be confirmed. In our opinion, one more aspect is relevant. What is done by impugned action is that the deemed date of promotion is being given to some of the candidates. No doubt, by giving the deemed date of promotion, the placement of the petitioners in seniority list will get disturbed. But, even if the petitioners have an arguable case on merit, there was no -6- justification for grant of interim order by which correction in seniority list is stayed because as a consequence of carrying out correction in the seniority list, the petitioners may suffer disadvantage which is capable of being cured by giving directions at he time of final hearing of the petitioner. However, in case the interim order is granted and corrections are not carried out and ultimately petition is dismissed, the prejudice that will be caused to the respondents is not capable of being remedied. Taking overall view of the matter therefore, we do not find that this is a fit case where interim order should be granted to the petitioners. Hence, no interim relief. However, at the request of the learned counsel appearing for petitioners, as the petitioners desire to approach the Apex Court, operation of the ad-interim order is continued for a period of eight weeks from today. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( R.Y. GANOO J.)