1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6033 OF 2008 Ajay s/o. Rangnath Satpute Age 35 years, Occ. Service, R/o. 4498, Near Maroti Temple, Tange Galli, Ahmednagar. .. petitioner/s Versus 1] The State of Maharashtra through its Secretary Department of Town Plalnning and Valuation, Mantralaya, Mumbai-32. 2] The Director of Town Planning and Valuation, Department of Town Planning and Valuation, State of Maharashtra Central Building, Near Pune Station, Pune. 3] The Ahmednagar Municipal Corporation, Ahmednagar, District Ahmednagar, through it's Commissioner. 4] The Selection Committee for selection of candidtes for the post of Assistant Town Planner, Ahmednagar Municipal Corporation Ahmednagar, District Ahmednagar, through its President i.e. Deputy Commissioner, Ahmednagar Municipal Corporation, Ahmednagar, District Ahmednagar. 5] Mir Asif Sultan Sardar (Deleted) 2 6] Vaibhav s/o. Mohniraj Joshi Age Major, Occ. Service, R/o. E-1, New Mukundnagar, Gajanan Housing Society, Ahmednagar, District Ahmednagar. --- Respondents. Mr. S.S. Jadhavar, Advocate for the petitioner, Mr. B.V. Wagh, AGP for the respondent Nos. 1 and 2 Mr. Pradeep Shahane, Advocate for the respondent No.6 Mr. A.N. Sabnis Advocate holding for Mr. S.P. Shah, Advocate for respondent Nos. 3 and 4. CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : - 1st October, 2009. JUDGMENT [PER B.R. GAVAI,J.] :- 1] The petitioner had initially challenged the selection of the respondent No.5, against a post of Assistant Town Planner, by the respondent No.4 Selection Committee and the consequent appointment to the post of Assistant Town Planner. However, it appears that during the pendency of the petition, the respondent No.5 had tendered his resignation as is disclosed in the affidavit in reply filed by the respondent Nos. 3 and 4 and on the said post, which fell vacant, the respondent Nos. 3 and 4 appointed respondent No.6. The petitioner, therefore, amended the petition under the leave of this court, thereby challenging the appointment of the respondent No.6. 3 2] Facts in brief, giving rise to the present petition are as under :- . That the respondent NO.3 had published an advertisement on 13th January, 2008 inviting applications from the qualified and eligible candidates to fill up the posts of Assistant Town Planner. Out of the 3 posts, one was reserved for SC category and 2 posts were for open category. In response to the advertisement, the petitioner applied. The petitioner was successful in the written examination, conducted on 14th February, 2008. He was therefore called for the interview held on 22nd February, 2008. 3] From the result declared it could be seen that out of the total 100 marks in selection, 75 marks were for written examination, whereas,25 marks were for the oral interview. In so far as the reserved category is concerned, there were 2 candidates including the petitioner, who have secured marks as under : 1. Prabhune Shrikant Thakan: 57% 2. Satpute Ajay Rangnath 56.16% (Petitioner) 4] In so far as the open category candidates are concerned, they have secured marks as under :- 1. Karpe Pranav Babanrao 57% 2. Mir Asif Sultan Sardar 53% 4 3. Joshi Vaibhav Mohniraj 50.5% 5] In the selection list, name of the petitioner was shown in the waiting list against a post reserved for SC category. The petitioner had approached this court by way of Writ Petition NO. 2709/2008, thereby challenging the selection of Shri Prabhune on the ground that the said Shri Prabhune did not possess 5 years experience as was the necessary requirement in the advertisement. . During the pendency of the said petition, the petitioner received information that the respondent No.5, who was selected against an open post, was having less marks than the petitioner and Shri Prabhune. The petitioner, therefore, sought leave to amend the petition. 5] We have heard Shri Jadhavar, learned counsel for the petitioner and Shri P.M. Shah, Senior Counsel for the respondent and Shri Shahane for the respondent NO.6. 6] Shri Jadhavar, the learned counsel for the petitioner submits that the petitioenr has secured 56.16 marks, whereas, both, the respondent Nos. 5 and 6, who are appointed against open category posts, have received 53 and 50.5 marks, respectively. He submits that in view of the judgment of the Apex Court in the case of “Indra Sawhney vs. Union of India” reported in AIR 1993 SC 477 since the petitioner was more meritorious than the respondent Nos. 5 and 6, he was entitled to be appointed against an open category post and as such, the action of the respondent Nos. 3 and 4 in 5 initially appointing the respondent Nos. 5 and subsequently, the respondent No.6, is not permissible in law. 7] As against this, it is the contention of the respondent Nos. 4 and 6, that the petitioner had applied for a post reserved for Scheduled Caste category and as such, he was considered only for a post reserved for Scheduled Caste and his name was also shown in the waiting list for the said category. It is also contended on behalf of the respondent Nos. 3 and 4 that the earlier petition of the petitioner being W.P. No. 2709/2008 came to be rejected by this court and, therefore, the present petition,was not tenable. 8] The learned counsel also relied on the judgment of the Apex Court, in the case of “Union of India and others. Vs. Dalbir Singh and another” in Civil Appeal No. 3409/2009 (Arising out of S,L.P.(C) No. 19321 of 2005). 9] The issue involved in the petition is no more res-integra. The Constitution Bench of the Apex Court consisting of 9 Judges, in the case of Indra Sawhney Vs. Union of India, cited supra, has observed thus :- “In this connection, it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for 6 Scheduled Castes; they will be treated as open competition candidates. It can thus be seen that the Constitution Bench of the Apex Court has clearly held that the reservations under Article 16(4) does not operate like a communal reservation. It is clearly held that if a scheduled caste candidate gets selected in the open competition, on the basis of their own merit, he will not be counted against the quota reserved for scheduled caste and he will be treated as open competition candidate. 10] It is pertinent to note that in the present case, the selection procedure for all the 3 tests was the same. The written examination for all the 3 posts was common. So also, the selection committee which conducted the oral interviews consisting of the 6 members, was also common. It can thus be seen that the 2 candidates, had received equal highest marks i.e. 57 and one of them, namely, Prabhune Shrikant, belonged to scheduled caste, whereas one Karpe Pranav belonged to open category. The remaining two candidates belonging to open category , namely, Mir Asif Sultan Sardar and Joshi Vaibhav Mohniraj, have admittedly secured 53 and 50.5 marks, which are less than the one obtained by the said Shri Shrikant Prabhune and the petitioner. 11] It can thus clearly be seen that since the 2 seats were available for open category candidates, Shri Prabhune Shrikant and Karpe Pranav who 7 had scored 57 marks each, were entitled to be selected against the said 2 open posts. 12] As such, the petitioner was the only eligible person who could have been appointed on the post reserved for scheduled caste category. IN any case, it is to be noted that even on merits, the petitioner had secured much more marks than the one secured by the respondent Nos. 2 and 3. In view of the law laid down by the Apex Court in the case of “Indra Sawhney Vs. Union of India “ the action of the respondent Nos. 3 and 4 in initially appointing the respondent No.5 against an open seat and thereafter appointing the respondent NO.6 on the resignation of respondent No.5, was totally illegal. In very first instance itself, the respondent Nos. 3 and 4 ought to have appointed the said Shri Prabhune against an open category post. 13] In so far as the reliance placed on the judgment of the Apex Court in the case of “Union of India Vs. Dalvir Singh and another” is concerned, the facts in the said case are totally different. In the said case, separate board proceedings were held for open category candidates and candidates claiming the concession on the basis of OBC certificate. The candidate concerned therein had applied against the seat reserved for OBC candidate. It was, however, found that the OBC certificate furnished by them was from a different State and upon enquiry regarding the authenticity of the said certificate it was intimated by the SDO (C) Ambala, that the said 8 certificate was not issued by their office. In view of this discrepancy in the said caste certificate produced, the candidature of the candidate concerned came to be rejected and no letter of appointment was issued to him. The candidate, therefore, approached the Central Administrative Tribunal ( CAT for short), praying that he be provided employment for the post of Mazdoor with all consequential benefits either by including his name in the list of candidates prepared for general category, and in the alternative, to direct the respondents therein, to accept the OBC certificate issued by SDOC(C), Ambala, dated 14/8/2000. In the said case, the learned Central Administrative Tribunal, while accepting the assertions made by the Union of India regarding the non- suitability of the certificates furnished by the respondent therein, still directed the appellants to issue letter of appointment to the respondent. It is thus clear that in the said case, the posts were separately advertised for general and OBC categories. The candidates therein had applied pursuant to the advertisement for a post reserved for OBC. However, since his certificate was found to be illegal, he was denied appointment in the OBC category. In the said case separate Boards were constituted for selection of general category candidates and OBC category candidates. As stated earlier, such is not the case here. In the present case, the posts are advertised by a common advertisement and the selection procedure adopted for selection of the candidates was common one. In any case, the present case is squarely covered by the judgment of the 9 Constitution Bench of the Apex Court in the matter of “Indra Sawhney” (supra). 14] That leads us to the question as to whether the present petition is tenable or not in view of the rejection of the earlier writ petition, i.e. W.P. No. 2709/2008. As stated hereinabove, in the said petition, the petitioner had initially challenged the selection of said Shri Prabhune who was selected against the post reserved for Scheduled Caste category on the ground that he did not possess the requisite experience as provided in the advertisement. This court, accepting the contention of the respondents that experience was not necessary for Degree holders, did not find favour with the petitioner and rejected his claim. 15] However, in the said case itself, the petitioner had sought leave to amend the petition, contending that the petitioner was more meritorious than the respondent No.5 therein. However, the court found that allowing such an amendment would change the cause of action and did not permit the petitioner to amend the petition. It would be necessary to reproduce paragraph 3 of the said order, which reads thus :- “Petitioner then contends that the petitioner, though belonging to reserved category (S.C.), one-the-less, was also eligible to be considered in respect of the seats available to open category candidates. Learned counsel has sought to take out an application today to contend that the petitioner was more meritorious than another candidate, namely, one Shri Mir Asif Sultan Sardar. That was not a cause of action based upon which the petitioner approached 10 this Court. Permitting amendment of the application on that count would amount to change of cause of action, in so far as the present petition is concerned. We are, therefore, not permitting the petitioner to amend the present petition. However, we make it clear that the dismissal of the present petition would not stand in the way of the petitioner, if he has any grievance against the candidates selected, if in law he is entitled to pursue remedy available to him. With the above observations, petition disposed of.” 16] It is thus clear that though the petitioner had sought to amend the petition for raising the ground which he has raised in the present petition, the court did not permit him to do so. However, this court had itself clarified that the dismissal of that petition would not stand in the way of the present petitioner, if he has any grievance against the candidates selected, to pursue a remedy, if available to him in law. It is thus clear that the court had not decided the issue which is sought to be raised in the present petition. The said issue is squarely covered by the judgment of the Apex Court in the case of “Indra Sawhney” (supra). 17] Rule is, therefore, made absolute in terms of prayer clauses (B-1) and (C). However, in the circumstances there shall be no orders as to costs. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/- 11