wp10693.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 10693 OF 2010 Balaji s/o Shankar Kamble .. PETITIONER VERSUS The State of Maharashtra & others .. RESPONDENTS Mr. P.G. Rodge, advocate for the petitioner. Mr. K.G. Patil, AGP for respondent nos. 1 and 2. Mr. V.R. Sonwalkar, advocate for respondent no. 3 Mr. A.R. Kale, advocate holding for Mr. R.B. Deshmukh, advocate for respondent no.5. CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 20 th DECEMBER, 2010 PER COURT : 1 The matter was listed on 2 nd December, 2010. The petition basically challenges an order passed by respondent no. 3 dt. 18-9-2010 thereby refusing to implement the order passed by the appellate authority i.e. respondent no. 2 vide which it was held that the order of appointment of petitioner dt. 20-3-2000 was valid. Respondent no. 2 had therefore directed respondent no. 3 to grant approval to the appointment of the petitioner from the date of his appointment and also to pay the salary. Inspite of that, respondent no. 3 refused to obey the order. While issuing notice, we have wp10693.10 2 specifically observed that when an appellate authority passes an order the subordinate authority is duty bound to comply with the same. Respondent no. 3 was also directed to personally remain present in the court on the next date and explain as to why he has refused to comply with the order passed by the appellate authority. 2 Accordingly, the matter was listed on 16 th December, 2010. When the matter was argued by Mr. Sonwalkar, learned counsel appearing on behalf of respondent no. 3, it was sought to be submitted that in view of the provisions of Maharashtra State Public Services (Reservation for S.C., S.T., Notified Vimukta Jatis, Nomaid Tribes, Special Backward Class & Other Backward Class) Act, 2001, if respondent no. 3 did not comply with the reservation policy, then he was liable to face the penal consequences and as such he has passed the order impugned in the petition. However, during the course of hearing itself, learned counsel Mr. Sonwalkar was pointed out with the provisions of Sub-Rule 3 of Rule 4 of the said Act of 2001 which provided interchanging of the reservation, in case a candidate of a particular reserved category was not available and the candidate from the other reserved category was available. Needless to state that though the wp10693.10 3 post is reserved for S.T. category, the petitioner belongs to S.C. category. Apart from that, Sub Rule 9(a) of Rule 9 of the MEPS Rules specifically provides filling of reserved post by interchange. 3 When the matter is listed today, though an affidavit of apology is placed on record, an order granting approval to the petitioner is also placed on record. Clause 1 of the said order states that approval granted is only till a candidate from S.T. category is available. 4 The legal position is no more res integra. The Apex Court in the case of Kankavali Shikshan Sanstha and others Vrs. M.R. Gavali and others reported in 2006(1) Mh.L.J. 713 while interpreting Sub-rule (9)(a) of Rule 9 of the MEPS Rules has categorically held that if a candidate from particular reserved category is not available then the post should be filled in by a candidate belonging to the other reserved category. It has categorically been held that when the post is being filled by a person from other category then the approval that is to be granted is permanent one and not temporary one. The question of temporary approval would only arise if the candidate from any of the reserved categories is not available and the post is being wp10693.10 4 filled from open category. Only in that event, approval is to be granted for the period of one year. 5 We, therefore, find that the conduct of respondent no. 3 namely Manohar s/o Narsing Kawale is contemptuous in nature. Not only he has tried to disobey the order of his superiors, but when an opportunity has been given by this court to him to rectify the error, he, with an attitude of adamancy has passed an order which is totally contrary to the settled position of law. We are, therefore, of the considered view that said Manohar s/o Narsing Kawale has ex-facie committed contempt of court. We, therefore, charge him for committing contempt of this court and issue a show cause notice to him calling upon him as to why punishment for acting in the manner which is in total disobedience to the settled position of law should not be taken against him. Mr. Sonwalkar, learned counsel appearing on behalf of Mr. Manohar Kawale who is personally present in the court accepts the notice and states that he will respond to the notice at 2.30 pm. today. Stand over to 2.30 pm. ( R. M. BORDE ) ( B. R. GAVAI ) JUDGE JUDGE dyb