(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 725 OF 2009 Lahu s/o. Baban Kanhere & 3 others. .. Petitioners. versus The State of Maharashtra, through Collector, Ahmednagar, & 4 others. .. Respondents. .......................... Mr. Sandeep S. Deshmukh, Advocate, for the petitioners. Mr. S.K. Kadam, Assistant Government Pleader, for respondent no.1. Mr. S.T. Shelke, Advocate, for respondent nos.2 and 3. Respondent nos.4 and 5 served (Absent). .......................... CORAM : B.R. GAVAI & R.K. DESHPANDE, JJ. DATE : 20TH JULY 2009. COURT'S ORDER : 1. By way of present petition, the petitioners have challenged the selection of respondent nos.4 and 5, from general category, for the post of (2) Assistant Civil Engineer. 2. The respondent no.3 i.e. Zilla Parishad had published an advertisement inviting applications for the post of 28 Assistant Civil Engineers. Out of them, 15 posts were reserved for vertical reservation. 13 posts were available for open category candidates. The horizontal reservation was also provided for certain categories like Ex-Servicemen, earthquake affected persons, project affected persons and sportsmen. Four posts were reserved for female candidates. 3. It is the contention of the petitioners, that though the respondent nos.4 and 5 have applied from reserved category of Other Backward Class, the respondent no.4 has been appointed against a post from open category and respondent no.5 has been appointed against a post from open category reserved for females. 4. Mr. S.S. Deshmukh, learned Counsel appearing for the petitioners, relying on the Government Resolution dated 25th May 2001, submits that if during the recruitment process, a woman candidate is not available, then there should not be interchange of reservation and that the post has to be filled in by a male candidate in the same category. He, therefore, submits that since the post was reserved for female open category, it ought to have been filed in by a candidate from open category. 5. It is a settled law that even if a particular person belongs to a reserved category, if he finds place in open merit, he has to be appointed against a post from open category and not against a post reserved for reserved category. A reliance in that respect can be placed on the judgment (3) of the Apex Court in the case of Indra Sawhney and others Vs. Union of India and others (1992 Supp (3) Supreme Court Cases 217). 6. From the perusal of the merit list annexed as Exhibit "R-1" to the affidavit in reply filed by respondent nos.2 and 3, it can be seen that both respondent nos.4 and 5 are more meritorious than the petitioners. In that view of the matter, they were entitled to be appoined against a post from open category, though they belong to reserved category. In that view of the matter, no merit is found in the petition. 7. Petition is, therefore, dismissed. ( R.K. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp725