FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3160 OF 2011 "Rajkumar Sahebrao Sathe Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Mr. Anil P. Basarkar, Advocate holding for Mr. Umesh V. Jawalikar, Advocate for petitioner. Mrs. V.A. Shinde, Assistant Govt. Pleader for respondent No.1. Mr. M.V. Deshpande, Advocate for respondent No.2. CORAM :- D.B. BHOSALE & S.B. DESHMUKH, JJ. DATE :- 11TH AUGUST, 2011. ORAL JUDGMENT [ D.B. BHOSALE,J] :- 1] Heard learned counsel for the parties. 2] Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 3] The petitioner has challenged the oral communication dated 21/3/2011, whereby, he was informed that he had not been selected for the post of Civil Engineering Assistant, (for short “CEA”.) 4] The petitioner had applied for the said post in response to the advertisement dated 9/2/2011. At the time of applying for the post, he was holding one year Diploma in Construction Supervisor, and 2 year Diploma in Civil Draftsman, FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3160 OF 2011 "Rajkumar Sahebrao Sathe Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 which he did after passing SSC examination. The petitioner claims that he fulfills all the conditions for his appointment as CEA. In other words, the petitioner claims that he was eligible to be appointed as CEA. Admittedly, the petitioner was placed at Sr. No.34 in the select list and that he had secured 40.30% marks. The last candidate appointed from the said list was at Sr. No. 33 with 41.56% marks. The posts advertised were 54. Insofar as petitioner is concerned, he had applied for the post reserved for SC category. According to Mr. Deshpande, learned counsel for respondent No.2, out of 54, 7 posts were reserved for SC category. 5] It is against this backdrop, we have perused the entire material placed before us by the petitioner, so also, by respondent No.2 alongwith their reply affidavit. The list of candidates with remarks is annexed to the reply affidavit dated 7/7/2011. In the said list, petitioner's name appears at Sr. No.34 and in the remarks column, it is mentioned that, he does not hold the required qualification and hence, not eligible. 6] In para.4 to 7 of the reply affidavit filed by respondent No.2, they have stated as under :- FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3160 OF 2011 "Rajkumar Sahebrao Sathe Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 “4) As per the requirement the selection committee was constituted for holding interviews and selection. The selection committee after deliberations found candidates having two year diploma course only eligible as per the educational qualification advertised. 5). The petitioner in present writ petition holds one year diploma and he does not fulfill the basic educational qualification criteria. 6) In all this process the selection is made on purely merit basis and it is without any intention to deprive any one. 7) The candidates in merit list up to serial No.33 are selected having marks as 41.56 where as the petitioner Rajkumar Sathe is at Sr.No.34 and has secured 40.30 mars and therefore he could not be selected. The remarks against him as ineligible on qualification basis is due to above mentioned fact. A copy of merit list is annexed herewith and marked as Exhibit R-2A.” 7] From bare perusal of the reply affidavit, it is clear that the only grounds on which petitioner was denied appointment were, that the petitioner was not holding 2 years Diploma Course and that the candidates in the merits list up to Sr. No.33 only are selected and since the petitioner is at Sr. No. 34, having secured 40.30 % marks, could not be selected. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3160 OF 2011 "Rajkumar Sahebrao Sathe Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 8] In our opinion, the reply affidavit filed by respondent No.2 is not satisfactory. It does not reply the material contentions raised by the petitioner in the writ petition. In the reply affidavit, they have not disputed the claim of the petitoiner that he completed two years diploma. Learned counsel for respondent No.2, across the bar, could not and did not dispute the fact that the petitioner holds 2 years Diploma in Civil Draftsman. The petitioner has specifically stated that he holds even the qualification prescribed by the selection committee and so also the qualification, as mentioned in the advertisement. 9] Admittedly, out of 54 posts, only 41 posts were filled in, and recently respondent No.2 has issued an advertisement for filling the remaining 13 posts. No explanation whatsoever, is offered either in the reply affidavit or across the bar, as to why the petitioner was not appointed in the light of his claim that he holds the required qualification. 10] Mr. Deshpande, learned counsel for respondent No.2 submits that there is no other reason, than what is reflected in the aforementioned paragraphs of the reply affidavit, for denying appointment to the petitioner. However, he fairly submits that the petitioner holds two years diploma also, as prescribed by the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3160 OF 2011 "Rajkumar Sahebrao Sathe Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 selection committee. The affidavit records only one ground for rejecting the candidature of the petitioner, namely, that he does not hold 2 years Diploma, which according to us, is factually incorrect. Since the petitioner being immediate next in the merit list and that there are vacancies on which he can be accommodated, we find no justification for refusing him an appointment as Civil Engineering Assistant. 11] In the circumstances, the writ petition is allowed in terms of prayer clauses (D) and (F). Rule made absolute accordingly, with no orders as to costs. [S.B. DESHMUKH,J.] [D.B. BHOSALE, J.] grt/-