1 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 9919 OF 2010 *** Madhubala D/o Gangadhar Mulge, Age: 27 years, Occu.: Education, And un-employed, R/o Ganesh Niwas, Samarth Nagar, Latur, Tq. and Dist. Latur. ... PETITIONER. Versus 1. The State of Maharashtra, Department of Higher Technical Education, Mantralaya, Mumbai. (Copy to be served oN G.P. High Court of Judicature of Bombay, Bench at Aurangabad). 2. The Principal Secretary, Department of Higher Technical Education, Maharashtra State, Mantralaya, Mumbai-32. 3. The Secretary, Maharashtra Public Service Commission, Bank of India Building, 3rd Floor, Mahatma Gandhi Street, Hutama Chowk,m Mumbai -400 001. ... RESPONDENTS *** Mr. B. V. Thombre, Advocate for the Petitioner. Mrs. A. V. Gondhalekar, A.G.P. for Respondent Nos.1 and 2. 2 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. *** CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ. DATED:- 15th JUNE, 2011. ORDER [PER DESHMUKH, J.]: 1. We have heard learned counsel for the parties. 2. The petitioner did file Original Application No. 238 of 2010 before the Maharashtra Administrative Tribunal, Aurangabad Bench at Aurangabad (the Tribunal, for short). This original application was taken up for admission before learned Tribunal on 11th June, 2010. Following is the order passed by learned Tribunal:- "ORAL ORDER: Advocate Shri B. V. Thombre, for Applicant. Presenting Officer Shri S. B. Pawar, for Respondents. 2. Ld. P. O. seeks time to file reply. Time granted. 3. As interim relief we direct respondents to allow applicant to compete by appearing for the interview for both posts, since we are informed that, result for the 1st post in which interviews are held is yet not 3 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. declared. 4. S. O. 6.7.10." 3. The petitioner claims 55% permanent disability (Orthopaedical Natural Handicap Person). The petitioner has contended in her original application that she has completed Bachelor of Engineering. Secured 73.94% marks. Was placed in first class with distinction. She possesses degree certificate accordingly. She had secured admission for M.E. somewhere in 2008 and appeared for Part II of M.E. 4. The Petitioner has served with Computer Polytechnic College, Latur with effect from 16th January, 2006 to 5th September, 2009 as Lecturer. There, she was working on contract basis. However, her work was without blame and with the satisfaction of the employer. Her service with said employer was for about 2 years and 7 months. 5. On 30th May, 2008 advertisement No.39 of 2008 was published by Respondent No.3. Applications were invited for two posts of Lecturer in Computer Technology/ Engineering and Information Technology. 4 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. This was in Government Engineering College, Maharashtra Engineering College, Teachers Service Group-A (Junior) 2008. According to the Petitioner she is eligible and qualified and, therefore, applied for the post of Lecturer in Computer Technology/ Engineering and information Technology. 6. Advertisement No.102 of 2009 for the post of Lecturer in Government Polytechnic, Maharashtra Polytechnic Teachers Service Group-A (Junior) was published somewhere on 20th April, 2009. In response to this advertisement also petitioner applied. According to the petitioner, the post of Lecturer in Computer Technology/ Engineering and Information Technology is reserved for Physically Handicapped candidate to which she is eligible and has a right to seek an appointment. She, therefore, applied from this reserved category i.e. physically handicap category. Her application was rejected by Respondent No.3 for the post of Lecturer in Computer Technology and Information Technology. Rejection was by the letter dated 5th February, 2010 and 6th February, 5 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. 2010. Ground of rejection was "Petitioner is physically handicapped type entry is not eligible for this Post". The petitioner, being aggrieved and dissatisfied by these two letters or communications filed Original Application No.238 of 2010. Initially interim relief as quoted herein above was granted. However, learned Tribunal, after hearing the parties, dismissed original application No.238 of 2010 by its judgment and order passed on 21st September, 2010 which is challenged by the petitioner/ original applicant in this writ petition. 7. We have heard learned counsel for the parties at great length. Counsel appearing for the Petitioner invited our attention to the orders passed by the learned Tribunal. According to him, the order is per-se illegal. He took us through the judgment of learned Tribunal and the documents placed on record in support of his submission. Per-contra, the learned counsel appearing for Respondent No.1 and 2 supported the judgment of learned Tribunal. 8. Indisputably, interim relief was granted by 6 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. learned Tribunal. In view of the orders passed, counsel appearing for the Respondent Nos.1 and 2, made available some documents showing performance of the present petitioner in an interview. We have seen the original documents, shown to us by learned A.G.P. Photocopy thereof is made available to us. It is marked by letter "X" collectively for identification and taken on record. In this document, interview number of the petitioner is shown as 315. It appears that her candidature was considered from the category "OBC" P.H. (Physically handicapped). In remarks column it has been mentioned "OBC PH/ Both legs affected". Marks she has secured in this interview are shown as 35. This document is signed by Dr. Dhananjay Yedekar, Member, Maharashtra Public Service Commission, Mumbai. 9. As we have referred to in the forgoing paragraphs, petitioner was interviewed and copy of her performance is also placed on record. 11. The learned counsel appearing for the petitioner took us to the Exhibit-P (page 79). It is a select 7 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. list prepared by the Respondent No.2 Counsel appearing for the petitioner challenges this select list. This select list is dated 14th July, 2010. Dates of interview of the candidates appearing from the select list were 15th, 16th, 17th, 18th, 22nd and 23rd April, 2010. This list pertains to the post of Lecturers in Computer Technology and Information Technology. It is further submitted by the learned counsel appearing for the Petitioner that another select list Exhibit-P in relation to advertisement No.003 of 2010 is also on record. This select list pertains to the post of Lecturer which was redesignated as Assistant Professor as per Sixth Pay Commission. There also name of the petitioner does not appear. The petitioner thus in view of the orders passed by learned Tribunal could participate during the process of recruitment, however, could not succeed. Her challenge to selection process/ lists Exhibit-P needs to be considered on this background. 11. In our opinion, petitioner could participate in selection process, could not perform, and on failure, 8 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. is challenging the select list. Scope of her challenge, thus, is limited. 12. With the assistance of the learned counsel we have seen copies of the advertisements placed on record. There is no dispute regarding dates of publication of both these two advertisements. Exhibit-G (Page 53) is the advertisement No.039 of 2008. By this advertisement applications for 116 posts of Lecturer, were invited. In this advertisement we are concerned with the Item No.6 for the post of Computer Technology/ Engineering. 10 posts were available. The Government Resolution dated 1st January, 2009 is referred to by the petitioner. It has also been taken note of in affidavit in reply filed on behalf of Respondent NO. 3. According to Respondent No.3 Government Resolution dated 1st January, 2009 indicates that those persons who will belong under Lokomotor disability "one leg affected" is only eligible for the post of Lecturer in information technology. According to affiant, Respondent No.3, Applications 9 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. filed by petitioner for both the posts were received and were duly scrutinised for both the subjects. Scrutiny was in accordance with conditions mentioned in the Government Resolution dated 1st January, 2009 and advertisement. According to Respondent No.3, petitioner's case did not come under the category of disability i.e. "one leg affected". Therefore, she was declared ineligible and accordingly was informed. The affiant opined that case of the petitioner fall under the category of Physically challenged having both leg affected. The Government Resolution, makes such disable person i.e. physically challenged person having both legs disability ineligible. The rejection of the petitioner's claim for both the posts by the communication dated 5th February, 2010 and 6th February, 2010 has been supported in affidavit in reply by the Respondent No.3. 13. According to Respondents, posts for both these subjects were not reserved for the person who fall under the category of "both leg affected". Respondent, however, fairly admit that one post was 10 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. reserved for Lecturer in information technology to the person belonging to physically challenged person with category of "one leg affected only". According to affiant petitioner has secured 72.93% marks only in Bachelor of Engineering in Computer Science and not 73.94% as she has claimed. Alleged qualification of the petitioner as G.A.T.E., is not essential for the post she had applied. Petitioner's claim that she had acquired Master Degree is denied by the Respondent No.3 in its affidavit. 14. In response to advertisement No.102 of 2009 Petitioner had applied, said application was also scrutinised by the Respondent. According to Respondent, both these advertisements are totally different, and for different purposes. First advertisement is for the Government Engineering Colleges and another i.e. Advertisement No.102 of 2009 is for Government Polytechnics. In short, first advertisement is for appointment of a person/ Lecturer to teach on degree course and the second advertisement is for appointment of a person/ 11 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. Lecturer to teach on Diploma course. The recruitment process for both these posts are totally different. According to affiant, in response to advertisement No.039 of 2008 for the post of Lecturer in Computer Technology/ Engineering and Lecturer in Information Technology, the petitioner claim as physically challenged person with disability of both legs affected. Such claim of the petitioner was made in both the application forms in response to the advertisements. A categorical statement is made that there is no post reserved for the category of person with both leg affected under the physically challenged person category. 15. We have seen both the advertisements and Government Resolutions referred to by the learned counsel for the petitioner. Counsel appearing for the petitioner could not point out reservation of post of Lecturer, for the category of a person with both leg affected, under the physically challenged person category. We are conscious of the fact that there was one post reserved for the person belonging 12 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. to physically challenged person category with one leg affected for Lecturer in Information Technology. However, there was no post reserved for the person belonging to physically handicapped for Lecturer in Computer Technology/ Engineering. Counsel appearing the the petitioner fairly concedes that the petitioner belongs to the disability with the category of both leg affected. The physically challenged persons with disability with the category of both leg affected is not identified as eligible, more so in the advertisement for the reason there being the Government Resolution dated 1st September, 2009. We have also noticed from advertisement No.102 of 2009 for the post of Lecturer in information technology in Government Polytechnics. There the candidates belonging to disability of one leg affected and one arm affected are/ were only eligible to apply to this post. The petitioner belongs to the disability of both leg affected and, therefore, for this advertisement also she is not eligible and accordingly has been so declared by the respondent. 13 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. 16. With the assistance of learned counsel for the parties we have also seen Government Resolution dated 13th August, 2009. We are agree with the observations of the learned Tribunal that advertisement No. 039 of 2008 was published by the authorities as per the then prevailing Government Resolution and in particular Government Resolution of October, 2006. There, in that Government Resolution, the specific categories were made regarding disabled candidates. The learned Tribunal has justifiably rejected the contention of the petitioner that such advertisement was not in tune with Government policy or Government Resolution. We also agree with observation of the Tribunal in para 24 regarding advertisement no.039 of 2008 of the application of Government Resolution dated 13th August,m 2009. Learned Tribunal has also considered the case of the petitioner in relation to advertisement No.102 of 2009 for the post of Lecturer in Computer Engineering and Information Technology. This advertisement was published prior to Government Resolution dated 13th 14 WRIT PETITION NO.: 9919 OF 2010 Madhubala D/o Gangadhar Mulge Versus State of Maharashtra and others. August, 2009. Tribunal was justified in rejecting the contention of the petitioner regarding alleged discrimination. 17. In our opinion, the order passed by learned Tribunal is well reasoned order, considering the advertisements and Government Resolutions placed on record. Petition filed on behalf of the present petitioner is devoid of substance. 18. Writ petition is, therefore, dismissed. [S. B. DESHMUKH, J.] [D. B. BHOSALE, J.] Dated:15/06/2011. ans/9919