1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.924 OF 2011 Tejaswini Raghunath Galande Age: 27 years, Occupation Service, residing at: N-9, R-26-83, Raigad Nagar, Mhada Colony, Cidco, Aurangabad, .. Petitioner V/s 1. State of Maharashtra (through Govt.Pleader, High Court, A.S., Bombay), 2. The Vice Chancellor, Solapur University, Solapur-Pune National Highway, Keogoan, Solapur 413 255. 3. Anandrao Bhiru Pawar Adult, presently working as Section Officer, Solapur University, Solapur-Pune National Highway, Keogoan, Solapur 413 255. 4. Mahaveer Bhupal Patil, Adult, presently working as Section Officer, Solapur University, Solapur-Pune National Highway, Keogoan, Solapur 413 255. .. Respondents Mr.P.J.Thorat for the petitioner. Ms.S.S.Bhende, AGP for Respondent No.1. Mr.A.G.Damle i/by Mr.Nitin Muley for Respondent No.2. Mr.I.M.Khairdi for Respondent No.3. Mr.M.S.Topkar for Respondent No.4. 2 CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 15th November, 2011. JUDGEMENT: (Per R.G.Ketkar, J.) 1. Heard Mr.P.J.Thorat, learned counsel for the petitioner, Ms.S.S.Bhende, learned AGP for Respondent No.1, Mr.A.G.Damle, learned counsel for Respondent No.2, Mr.I.M.Khairdi, learned counsel for Respondent No.3 and Mr.M.S.Topkar, learned counsel for Respondent No.4. 2. Rule. Learned counsel for the Respondents waive service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 3. By this petition, the petitioner has challenged the selection of Respondent Nos.3 & 4 to the posts of the section officer from the open category in Solapur University and has further sought direction against Respondent No.2 University to appoint her to the post of section officer. The relevant and the material facts necessary for disposal of the writ petition, briefly stated, are as under:- 4. On 12.07.2010 the 2nd Respondent issued advertisement for filling 3 up various non teaching Class I and Class II posts. In the said advertisement, applications were invited for appointment of section officers, Class II posts. In all there are four posts, out of which two posts are for open category and one is reserved for scheduled caste and one is reserved for scheduled tribes. Out of two posts earmarked for open category, one of the posts is reserved for female candidate. The last date for submitting applications was 13.08.2010. The educational qualification and experience for the post of section officer is was as under:- (i) Graduate Degree of any Statutory University, (ii) At least five years experience in Administrative Cadre, (iii) Proficiency in Marathi and English Languages. 5. The age limit for the post of section officer is minimum 25 years and the maximum 35 years. The age limit in respect of reserved candidates is relaxed by five years. In so far as the employees working either in the University or affiliated Colleges on regular/ permanent basis is concerned, the condition of age limit was not applicable. It is the case of the petitioner that pursuant to the application made by her, she was short listed for a written examination and interview. For the posts of sections officer 47 candidates were short listed, out of which the petitioner and one 4 Ms.Sunita Wangikar were the only female candidates. The controversy in the present petition relates to the filling of one post of section officer which is reserved for ladies out of the two posts earmarked for the open category. 6. The written examination for the post of section officer was held on 18th & 19th September, 2010. In the written examination, petitioner secured 42 marks, Respondent No.3 secured 57 marks and Respondent No.4 secured 35 marks. The other female candidate viz.Sunita Wangikar secured 35 marks. 7. The petitioner was thereafter called for interview on 04.11.2010. It is the case of the petitioner that during the interview she satisfactorily answered all the questions that were put to her. It is the case of the petitioner that she fulfilled all the requirements laid down for appointment to the post of section officer. However to her shock and surprise, 2nd Respondent published the list of selected candidates on 04.11.2010 and Respondent Nos.3 & 4 were selected for the post of section officers from the open category inspite of the fact that one post was reserved for female candidate. The petitioner has basically challenged the appointment of Respondent No.4 who is the male candidate and 5 who has secured lesser marks than the petitioner in the written examination. 8. On 04.02.2011 this Court issued notice to the Respondents and the learned A.G.P.waived service for Respondent No.1 and the learned counsel for Respondent No.2 waived service. On behalf of the University an affidavit of Capt. (Dr.) Nitin Pandurang Sonaje, presently working as Registrar was made. In paragraph 6 it was asserted that merely because the 4th Respondent secured less marks in written test as compared to the petitioner, the petitioner cannot claim any priority inasmuch as the selection process is based on the overall performance of written test and viva-vosa test. Considering overall performance, the marks scored by Respondent Nos.3 & 4 were much more than the petitioner and accordingly they were selected. It was further contended that one post was reserved for female candidate which was subject to the availability of suitable candidate. Since the total marks obtained by Respondent Nos.3 & 4 are substantially more than the marks obtained by the petitioner, the petitioner was not found suitable. 9. On behalf of 3rd Respondent, an affidavit was filed contending 6 interalia that he had secured highest marks from the open category and he was rightly selected. The 4th Respondent has filed an affidavit contending interalia that he secured 35 marks out of 100 marks in the written test. He secured 46 marks in the oral interview. Considering the overall marks, he was issued appointment letter dated 04.11.2010. Having received the appointment letter, he resigned from the post of Office Superintendent from the college of Sahyadri Charitable Trust. The said resignation was accepted on 11.11.2010 and he was relieved from duties. He has thereafter reported and joined on the post of section officer on 12.11.2010. It was further contended that the petitioner and Ms.Sunita Wangikar were ineligible and could not qualify for appointment considering their total marks in the written test and the interview. It is also submitted that the petitioner has not attributed any bias and malafide to the selection Committee. The selection of woman candidate presupposes the selection of eligible woman candidate. The term ‘eligible’ has to be read as per the Government Resolution dated 25.05.2003. It was therefore prayed for dismissal of the writ petition. 10.Pursuant to the direction issued by this Court, Mr.Damle has 7 produced original record for our perusal. The seat number of the petitioner was SC-42, seat number of Respondent No.3 was SC-31, seat number of Respondent No.4 was SC-41 and seat number of other female candidate Sunita Wangikar was SC-7. The details of marks secured by these candidates in the written as well as oral test are as under:- Seat No. Written Test Oral Test Total marks SC-42 (Petitioner) 42 12 54 SC-31 (Res.No.3) 57 45 102 SC-41 (Res.No.4) 35 45 80 SC-7 SunitaWangikar 35 15 50 11.Thus the petitioner has secured in all 54 marks, Respondent No.3 has secured 102 marks, Respondent No.4 has secured 80 marks and the other female candidate Sunita Wangikar has secured 50 marks. Admittedly, two posts were earmarked against the open category, out of which one post was reserved for female candidate. Having regard to the total marks secured by Respondent No.3, learned counsel for the petitioner has not seriously pressed this petition against Respondent No.3. He 8 however submitted that in so far as selection of Respondent No.4 is concerned, even if he has secured more marks as compared to the petitioner, still the selection of Respondent No.4 is illegal. He submitted that selection of Respondent No.4 is in open category and one of the post is admittedly reserved for a female candidate. The Respondent No.2-University was therefore not justified in selecting Respondent No.4. 12.Mr.Thorat relied upon the judgment of the Apex Court in the case of Government of A.P.V/s.P.B.Vijaykumar, AIR 1995 SC 1648 to contend that the reservation of posts for women is permissible under Article 15(3) of the Constitution of India. He also relied upon the judgment of the Apex Court in the case of Neelima Shangla V/s.State of Haryana, (1986) 4 SCC 268, to contend that in an appropriate case, the High Court, in exercise of power under Article 226 of the Constitution of India, can direct the appointing authority to appoint the petitioner on the post of section officer. 13.On the other hand Mr.Damle submitted that considering the overall performance of the candidates and the fact that Respondent No.4 admittedly secured more marks than the petitioner, the Respondent No.2 University is justified in selecting 9 Respondent No.4. He further submitted that one post from the open category was reserved for female candidate and the same was subject to availability of a suitable candidate. Since Respondent No.4 secured more marks than the petitioner, he was found suitable and consequently the University was justified in not selecting the petitioner. 14.Mr.Damle relied upon the following judgments:- (1) Balkrishna Behera & Another V/s Satya Prakash Dash, (2008) 1 SCC 318, (2) Shankarsan Dash V/s.Union of India, (1991) 3 SCC 47, (3) Jetinder Kumar V/s. State of Punjab, (1985) 1 SCC 122. 15.We have considered the submissions made by learned counsel appearing for the parties. It is not in dispute that Respondent No. 2 University issued advertisement for filling up four posts of section officers which is a Class II post. Out of these four posts, two posts are earmarked for open category, one post is reserved for scheduled caste and one post is reserved for scheduled tribes. Out of two posts earmarked for open category, one post is reserved for a female candidate. Now it is also not in dispute that two female candidates participated in the selection process 10 including the petitioner. The question is whether the Respondent No.2 University is justified in filling up two posts that are earmarked against the open category by appointing the male candidates. In our opinion, the Respondent No.2 University was not justified in appointing both male candidates in the open category. The argument canvassed on behalf of the University that the reservation for female candidate was subject to availability of a suitable candidate, is stated to be rejected. Really speaking it was not open for the University to select Respondent No.4 as he secured lesser marks as compared to Respondent No.3. The University was justified in appointing Respondent No.3 in one of the two posts earmarked against the open category. However, the other post from open category was reserved for a female candidate and therefore the University ought not to have selected and appointed Respondent No.4. The appointment of Respondent No.4 is therefore liable to be quashed and set aside. 16.In so far as further prayer of the petitioner that she should be appointed on the post is concerned, having regard to the judgment of the Apex Court in the case of Balkrishna Behera (supra), Shankarsan Dash (supra) as also Jetinder Kumar (supra), 11 it is not possible for this Court to issue direction to the University to appoint petitioner on the post of section officer. The candidate included in the merit list has no indefeasible right to appointment even if the vacancy exists. The petitioner has no vested right for appointment. Considering this position, the prayer sought by the petitioner to appoint her cannot be granted. The Petition is disposed of in the following terms. (1) The appointment of Respondent No.4 Mahavir Bhupal Patil as section officer in Respondent No.2-Solapur University, is hereby quashed and set aside. (2) Respondent No.2-Solapur University is hereby directed to fill one post of section officer in accordance with law, by inviting the applications from the female candidates only. (3) Rule is made partly absolute in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs. (4) It would be open to the 2nd Respondent - Solapur University to allow Respondent No.4 to continue on the post of Section Officer till the selection of a suitable female candidate is made and the said candidate is appointed on that post. (R.G.KETKAR, J.) (D.B.BHOSALE, J.)