Shri Akshay Ashok Chaudhari v. Government of Maharashtra

Smt. Rohini Bhujang Gaikwad, Age 34 years, residing at Chimbale, Tal- Shrigonda, Dist. Ahmednagar.

2. Tejaswini Rajaram Awad, Age 28 years, At Post Raut Nagar, Akluj, Tal- Malshiras, Dist. Solapur.

4. Shri Gajanan Govindrao Pawar, Age 31 years, residing at Khatgaon, Tal- Biloli, Dist. Nanded. Shri Rameshshwar Subhash Nichal, Aged 35 years, At Post Raleras, Tal- Barshi, Dist. Solapur. V/s.

1. The Secretary of Revenue & Forest Department, Government of Maharashtra, Mantralaya, Mumbai 400 032. … Petitioners. skn 15 --WP-2722.2023---.docx

2. Maharashtra Public Service Commission, Cooperage Telephone Exchange Bldg., M.K.Road, Cooperage, Mumbai 400 021.

3. The Principal Chief Conservator of Forest, 3rd Floor, Van Bhavan, Ramgiri Road, Civil Line, C.B.I. Colony, Nagpur- 1.

4. Gajanan Santosh Chavan, Residing at post Shembal Pimpari, Taluka Pusad, Dist. Yevatmal.

7. Sikandar Inamdar, At post Shambhu Mahadev Nagar, Karve Naka, Karad (Rural), Dist. Satara. Sohel Ekramutulla Shaikh, Near Zama Majid, Khadakupura Galli, Vairag, Dist. Solapur. Satish Sukumar Patil, At Beghar Vasahat, Tal- Palus, P.O. Vasgade, Dist. Sangli.

8. Ashish Vikramsingh Thakur, 24/02, Vidhya Nagar, Shelgi, Solapur South, Solapur. … Respondents. WITH WRIT PETITION NO. 5521 OF 2023 Indrajeet Arjun Pawar, Age 32 years, residing at Islampur, Tal. Walwa, Dist. Sangli. V/s. … Petitioner. skn 16 --WP-2722.2023---.docx

1. The State of Maharashtra through the Secretary of Revenue & Forest Department, Government of Maharashtra, Mantralaya, Mumbai 400 032.

2. Maharashtra Public Service Commission, Cooperage Telephone Exchange Bldg., M.K.Road, Cooperage, Mumbai 400 021.

3. The Principal Chief Conservator of Forest, 3rd Floor, Van Bhavan, Ramgiri Road, Civil Line, C.B.I. Colony, Nagpur- 1.

4. Gajanan Santosh Chavan, Residing at post Shembal Pimpari, Taluka Pusad, Dist. Yevatmal.

7. Sikandar Inamdar, At post Shambhu Mahadev Nagar, Karve Naka, Karad (Rural), Dist. Satara. Sohel Ekramutulla Shaikh, Near Zama Majid, Khadakupura Galli, Vairag, Dist. Solapur. Satish Sukumar Patil, At Beghar Vasahat, Tal- Palus, P.O. Vasgade, Dist. Sangli.

8. Ashish Vikramsingh Thakur, 24/02, Vidhya Nagar, Shelgi, Solapur South, Solapur. WITH … Respondents. skn 17 --WP-2722.2023---.docx WRIT PETITION NO. 5614 OF 2023

1. Abhaysinh Babasaheb Patil, Age 25 years, Occ. Student, R/at. At Post Karange, Dist.Solapur, Maharashtra 413 203.

2. Gaurav Balasaheb Jagtap, Age 25 years, Occ. Student, R/at. Neharu Nagar, at Post Pravaranagar, Tal. Rahata, Pravaranagar, Ahmednagar 413 712. V/s.

1. Government of Maharashtra, Through Principal Secretary, General Administrtion Department, Mantralaya, Mumbai- 400 032.

2. Maharashtra Public Service Commission, Through its Secretary/ Chairman, Having its office at MTNL Building, Cooperage, Maharashi Karve Road, Mumbai 400 021.

3. Rajat Manohar Agrawal, R/o. Nityanand Nagar, Near Natraj Cinema, Dhule.

4. Devarshi Rohan Shashikant, R/o. At post Nanibai Chikhali, Tq. Kagal, Dist. Kolhapur.

5. Bhushan Rajendra Joshi, R/o. Vivekanand Nagar, Gondur Road, Near Walwadi, Devpur, Dhule.

6. Gaurav Ganesh Das Daga, skn 18 --WP-2722.2023---.docx R/o. At Post- Saur, Tq. Bhatkuli, Dist. Amravati.

7. Joglekar Piyush Vivek, R/o. Plot No.25, Dattatray Nagar, Behind Shivaji Hall, Tq and Dist. Nagpur.

8. Khandelwal Saurabh Sunil, R/o. At Post: Chikhli, Dist. Buldhana.

9. Lohiya Shailesh Balaprasad, R/o. Nera Rajashthani School, Vipra Nagar, Beed.

10. Shailesh Manmath Holdandge, R/o. At Post Chakur, Tq. Chakur, Dist. Latur.

11. Gholkar Omkar Shankar Add : Nikam Park, Devkar Panand, Kolhapur.

12. Hulkunde Manoj Sharnappa R/at. At Post : Ausa, Tq. Ausa, Dist. Latur.

13. Kulkarni Sayali Ravindranath, R/o. At post Herle, Tq. Hathkanangle, Dist. Kolhapur.

14. Nilesh Rajendra Patil, R/o. Swami Samarth Colony, Patil Galli, Warleswadi Miraj, Tq. Miraj, Dist. Sangali.

15. Naveed Ahmed Sajid Ahmed, R/o. Near Sonapur Masjid, Kranti Nagar, Malegaon Camp, Dist. Nashik. skn 19 --WP-2722.2023---.docx

16. Pooja Suresh Sabarad, R/o. At Post Jath, Tq. Jath Dist. Sangli.

17. Sarthak Tilokchand Zambad, R/o. At Post- Arni, Tq. Arni, Dist. Yavatmal.

18. Patil Abhilash Shantappa, R/o. At Post- Ambad, Tq. Ambad, Dist. Jalna.

19. Wadikar Saurabh Shivaji, R/o. At Somangaon, Post Chikurda, Dist. Latur.

20. Shaikh Salim Shaikh Rasul, R/o. At Post: Wadgaon, Dadahari, Tq. Parli, Dist. Beed.

21. Saurabh Laxmikant Joshi, R/o. Samata Colony, Indira Nagar Road, Near Ganesh Temple, Majalgaon. Tq. Majalgaon, Dist. Beed.

22. Mandlik Anuja Raviraj R/o.At post- Siddharth Nagar Airport Road, Nanded.

23. Amarnath Madhukar Havshette R/o. Badade Nagar, Near Tawarja Colony, Opposite Z.P. School No.03, Latur, Tq. & Dist. Latur.

24. Akash Chandrakant Bangiwar R/o. Maturchhaya Niwas, At Post: Kansari, Tq. Chamarshi, Dist. Gadchiroli 442 707. skn 20 --WP-2722.2023---.docx

25. Mohasin Hasan Mulla R/o. 61-A, A1 Hasan Manzil, Kurdhunda, Tq. Sangameshwar, Dist. Ratnagiri 415 611.

26. Azeem Khan Aleem Khan Pathan R/o. At Post : Wakad, Tq. Risod, Dist. Washim 444 506.

27. Toshniwal Vijay Shivnarayan R/o. Shree Raj Nivas, Plot No.07, Gudduraja Nagar, Pimprala Road, Jalgaon 425 001.

28. Karan Manoj Panchariya R/o. A/4606, Kotharwadi, Makhmalabad, Naka Road, Panchavati, Nashik 422 003.

29. Shaikh Mohseen Saleem R/o. Waknathapur, Tq. Beed, Dist. Beed 431 122.

30. Parmeshwar Khushal Rao Hawanna R/o. Hawana Niwas, Near Maruti Temple, Dongargaon, Dist. Latur. WITH WRIT PETITION STAMP NO. 11330 OF 2023

1. Humbe Tai Shahadev Age 27 years, Address: Juj Gavhan, Beed- 431 122.

2. Madan Mohan Awatade, Age 31 years, Address: Ujani Colony, Mangalwedha, Solapur- 413 305. skn 21 --WP-2722.2023---.docx V/s.

1. Maharashtra Public Service Commission, Through its Secretary, Address: MTNL, 5th, 7th, 8th Floor, Cooperage, Maharashi Karve Road, Mumbai 400 021.

2. State of Maharashtra, Through the Secretary of General Administrtion Department, Mantralaya, Mumbai- 400 032.

3. Rajat Manohar Agrawal, Age 25, R/o. Nityanand Nagar, Near Natraj Cinema, Dhule.

4. Devarshi Rohan Shashikant, Age 30, R/o. At post Nanibai Chikhali, Tq. Kagal, Dist. Kolhapur.

5. Bhushan Rajendra Joshi, Age 25, R/o. Vivekanand Nagar, Gondur Road, Near Walwadi, Devpur, Dhule.

6. Gaurav Ganesh Das Daga, Age 28, R/o. At Post- Saur, Tq. Bhatkuli, Dist. Amravati.

7. Joglekar Piyush Vivek, Age 24, R/o. Plot No.25, Dattatray Nagar, Behind Shivaji Hall, Tq and Dist. Nagpur.

8. Khandelwal Saurabh Sunil, Age 28, R/o. At Post: Chikhli, Dist. Buldhana.

9. Lohiya Shailesh Balaprasad, Age 26, R/o. Nera Rajashthani School, Vipra Nagar, Beed. skn 22 --WP-2722.2023---.docx

10. Shailesh Manmath Holdandge, Age 28, R/o. At Post Chakur, Tq. Chakur, Dist. Latur.

11. Gholkar Omkar Shankar Age 26, Add : Nikam Park, Devkar Panand, Kolhapur.

12. Hulkunde Manoj Sharnappa Age 29, R/at. At Post : Ausa, Tq. Ausa, Dist. Latur.

13. Kulkarni Sayali Ravindranath, Age 23, R/o. At post Herle, Tq. Hathkanangle, Dist. Kolhapur.

14. Nilesh Rajendra Patil, Age 27, R/o. Swami Samarth Colony, Patil Galli, Warleswadi Miraj, Tq. Miraj, Dist. Sangali.

15. Naveed Ahmed Sajid Ahmed, Age 26, R/o. Near Sonapur Masjid, Kranti Nagar, Malegaon Camp, Dist. Nashik.

16. Pooja Suresh Sabarad, Age 28, R/o. At Post Jath, Tq. Jath Dist. Sangli.

17. Sarthak Tilokchand Zambad, Age 26, R/o. At Post- Arni, Tq. Arni, Dist. Yavatmal.

18. Patil Abhilash Shantappa, Age 29, R/o. At Post- Ambad, Tq. Ambad, Dist. Jalna.

19. Wadikar Saurabh Shivaji, Age 23, R/o. At Somangaon, skn 23 --WP-2722.2023---.docx Post Chikurda, Dist. Latur.

20. Shaikh Salim Shaikh Rasul, Age 28, R/o. At Post: Wadgaon, Dadahari, Tq. Parli, Dist. Beed.

21. Saurabh Laxmikant Joshi, Age 25, R/o. Samata Colony, Indira Nagar Road, Near Ganesh Temple, Majalgaon. Tq. Majalgaon, Dist. Beed.

22. Mandlik Anuja Raviraj Age 24, R/o.At post- Siddharth Nagar Airport Road, Nanded.

23. Amarnath Madhukar Havshette Age 29, R/o. Badade Nagar, Near Tawarja Colony, Opposite Z.P. School No.03, Latur, Tq. & Dist. Latur.

24. Akash Chandrakant Bangiwar Age 29, R/o. Maturchhaya Niwas, At Post: Kansari, Tq. Chamarshi, Dist. Gadchiroli 442 707.

25. Mohasin Hasan Mulla Age 31, R/o. 61-A, A1 Hasan Manzil, Kurdhunda, Tq. Sangameshwar, Dist. Ratnagiri 415 611.

26. Azeem Khan Aleem Khan Pathan Age 29, R/o. At Post : Wakad, Tq. Risod, Dist. Washim 444 506.

27. Toshniwal Vijay Shivnarayan Age 28, R/o. Shree Raj Nivas, Plot No.07, Gudduraja Nagar, Pimprala Road, skn 24 --WP-2722.2023---.docx Jalgaon 425 001.

28. Karan Manoj Panchariya Age 25, R/o. A/4606, Kotharwadi, Makhmalabad, Naka Road, Panchavati, Nashik 422 003.

29. Shaikh Mohseen Saleem Age 31, R/o. Waknathapur, Tq. Beed, Dist. Beed 431 122.

30. Parmeshwar Khushal Rao Age 27, Hawanna R/o. Hawana Niwas, Near Maruti Temple, Dongargaon, Dist. Latur. WP No.2722/2023 with IA No.14323/2023: Mr.M.D.Lonkar i/b. Mr. Om M. Lonkar for Petitioners. Dr. Birendra Saraf, Advocate General with Mr.P.P.Kakade, Government Pleader and Mr.M.M.Pable, Assistant Government Pleader for Respondent No.1- State. Mr. Sayyed T. Yassen for Respondent Nos.3 to 30. Mr. Tejas D. Deshmukh with Mr. Anshuman Deshmukh and Mr. S.S. Mohanty for the Applicants. WP No.2859/2023 with IA No.13079/2023: Mr.V.A.Thorat, Senior Advocate and Special Counsel with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for the Petitioner- State. skn 25 --WP-2722.2023---.docx Mr. Saurav N. Katkar i/b Mr.Shantanu Raktate for the Respondent Nos.14 to 16 and 18. Ms. Sabiha Ansari with Ms. Aisha Shaikh, Ms. Tanvi Rane and Ms. Shraddha Khandare for Respondent Nos.1 to 5 and for Applicants. WP No.2861/2023 with IA(ST.) No.25732/2023: Mr. Mihir Desai, Senior Advocate and Special Counsel with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for the Petitioner- State. Mr. Sayyed T. Yassen for Respondents Mr. Laukik Pawar i/b Talekar & Associates for the Applicants. WP No.2862/2023: Dr.Birendra Saraf, Advocate General with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for the Petitioner- State. Mr. Sayyed T. Yassen for the the Respondents. WP No.2891/2023 with IA No.2427/2023: Mr. Saurav N. Katkar i/b. Mr.Shantanu Raktate for the Petitioner. Dr. Birendra Saraf, Advocate General with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP Respondent Nos.1 and 3- State. Ms. Sabiha Ansari with Ms. Aisha Shaikh, Ms Tanvi Rane and skn 26 --WP-2722.2023---.docx Ms. Shraddha Khandare for Respondent Nos.4 to 8 and for the Applicants. WP/5521/2023. Mr.Satyajeet Rajshirke with Mr. Nikhil Pawar for the Petitioners. Dr. Birendra Saraf, Advocate General with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for Respondent No. 1 and 3- State. Ms. Sabiha Ansari with Ms. Aisha Shaikh, Ms Tanvi Rane and Ms. Shraddha Khandare for Respondent Nos. 4 to 8. WP No.5614/2023: Mr.Sandeep Dere for the Petitioner. Dr. Birendra Saraf, Advocate General with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for Respondent No. 1- State. Mr. Sayyed T. Yassen for Respondent Nos. 3 to 30. WP(ST.) No.11330/2023: Mr. Narendra Bandiwadekar, Senior Advocate with Mr. Sachin Kadam, Mr. Sangharsh V. Waghmare, Mr. Rahul Salve and Mr. Santosh Shingare for Petitioners. Dr. Birendra Saraf, Advocate General with Mr.P.P.Kakade, GP and Mr.M.M.Pable, AGP for Respondent No. 2- State. Mr. Sayyed T. Yassen for Respondent Nos. 3 to 30. skn 27 --WP-2722.2023---.docx CORAM : NITIN JAMDAR, AND MANJUSHA DESHPANDE, JJ. RESERVED ON: 2 November 2023. PRONOUNCED ON: 22 December 2023. JUDGMENT : (Per Nitin Jamdar, J.) Rule in all the Petitions. Rule is made returnable forthwith. Taken up for final disposal as per the earlier order.

2. In the year 2018, the State of Maharashtra enacted the “Maharashtra State Reservation for Socially and Educationally Backward Class Act, 2018” (SEBC Act), which came into force on 30 November 2018. This legislation conferred a right on the individuals from the Maratha community, SEBC category, to 13% of total admissions in educational institutions and 16% of total appointments in direct recruitment for public services and posts within the State. The constitutional validity of the SEBC Act was challenged in this Court. After this Court upheld the validity, the challenge was taken further to the Hon'ble Supreme Court. The Supreme Court initially granted an interim order and then declared the SEBC Act to be unconstitutional. The State of Maharashtra issued Government Resolutions (GRs), regarding candidates who had applied under the SEBC category in the recruitment process for filling up public posts. These candidates were permitted to apply in the Economically Weaker Section category (EWS) for the process of recruitment of skn 28 --WP-2722.2023---.docx various posts advertised in the year 2019. The GRs and the actions taken by the State Government in this regard were challenged before the Maharashtra Administrative Tribunal by the candidates who had initially applied under the EWS category. The Tribunal upheld the challenge by the impugned order dated 2 February 2023. The Tribunal directed the State of Maharashtra to prepare a final list of the original EWS candidates along with further directions and disqualified the candidates who had initially applied under the SEBC category.

3. Challenging this order of the Tribunal dated 2 February 2023, the State of Maharashtra and the aggrieved SEBC candidates have brought these writ petitions before us. Intervention applications are filed. The Petitions and Applications are argued together as they arise from the common order passed by the Tribunal and are disposed of by this common judgment and order.

4. In this judgment, the Maharashtra Administrative Tribunal is referred to as the “Tribunal”. The Petitioner- the State of Maharashtra, through its different departments, is referred to as the “State”. The original Applicants before the Tribunal who had applied from the Economically Weaker Section category are referred to as the “EWS candidates”. The Respondents before the Tribunal who belonged to the SEBC category and were permitted to apply in the EWS category are referred to as the “SEBC candidates”. We have described the candidates in this manner solely for convenience skn 29 --WP-2722.2023---.docx and because the Tribunal has referred to them as such. However, it should not be construed that we have made a distinction between these SEBC candidates and EWS candidates when addressing the broader issue- an error, as we will expound upon later, that the Tribunal has fallen into.

5. A total of eight petitions are before us. Writ Petition Nos.2859 of 2023, 2862 of 2023 and 2862 of 2023 are filed by the State. The remaining petitions are filed by the SEBC candidates. Recruitment processes under three Advertisements were under challenge before the Tribunal. One for the posts of Sub-Inspector/Tax Assistant and Clerk-Typist. Second for the posts in the Forest Department. Third for the posts in the Engineering Services. These writ petitions can be grouped as per the Advertisements as under: (a) For the post of Tax Assistant and Clerk-Typist: (i) WP No.2862/2023 filed by the State. (b) For the posts in the Forest Department: (i) WP No.2859/2023 filed by the State. (ii) WP No.2891/2023 filed by SEBC candidates. (iii) WP No.5521/2023 filed by SEBC candidates. (c) For the posts in Engineering Services: (i) WP No.2861/2022 filed by the State. (ii) WP No.2722/2023 filed by SEBC candidates (iii) WP(ST.) No.11330/2023 filed by SEBC candidates. (iv) WP No.5614/2023 filed by SEBC candidates. skn 30 --WP-2722.2023---.docx

6. As stated earlier, three recruitment processes under the different Advertisements are subject matters of the petitions. The dates and events in these recruitment processes are marginally different in each of them. One factual narration would encompass the dates and events of each recruitment process. The second narration would be tracing the history of the legislative enactments, judicial orders and the various GRs issued by the State of Maharashtra. Both narrations will have to be interwoven, as the way the two streams have proceeded will have a bearing on the merits of the matter.

7. The State of Maharashtra had promulgated an Ordinance in the year 2014 granting reservation to the Maratha community in public employment and in the field of education titled Maharashtra State Reservation (of seats for admissions in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Ordinance, 2014. The ordinance was challenged in this Court, and its operation was stayed. The State legislature passed the ESBC Act of 2014 providing the identical benefits as the Ordinance. This Court stayed the implementation of the ESBC Act of 2014. Thereafter, the State Government set up a Backward Class Commission, which submitted a report on 13 November 2018. The State of Maharashtra enacted the SEBC Act, the subject matter of the petitions, which was brought in force on 30 November 2018. The skn 31 --WP-2722.2023---.docx enactment provided 13% reservation for the Maratha community in admissions in the education institutes and 16% reservation in the direct recruitment under the State. Several writ petitions were filed before this Court challenging the validity of the SEBC Act and other aspects connected to it on various grounds.

8. The objective of the SEBC Act was to provide for reservation of seats for admission in educational institutes and reservation of posts for appointment in public services. Section 2(j) of the SEBC Act defined who would be a socially and economically backward class in the State of Maharashtra and stated that they would be the one treated as educationally and socially backward by the ESBC Act of 2014 which included the Maratha community. Section 3 of the SEBC Act made the Act applicable to all direct recruitment and appointments made in public services except certain categories. Section 4 stipulated that a certain percentage of the total appointments in the direct recruitment separately reserved for SEBC, including the Maratha community. The other sections of the Act provided for modalities regarding recruitment and admission.

9. On 14 January 2019, the 103rd Amendment to the Constitution of India was brought into effect by the 103rd Amendment Act of 2019. The Parliament amended Articles 15 and 16 of the Constitution of India by adding two new clauses, clause (6) to Article 15 with explanation and clause (6) to Article 16. The Parliament provided a maximum of 10% reservation for the skn 32 --WP-2722.2023---.docx economically weaker section (EWS) of citizens specified therein. 103rd constitutional amendment enabled the State to provide for reservation for EWS prescribing the 10% ceiling limit. The relevant portion of Article 16 of the Constitution as amended, reads thus: “16. Equality of opportunity in matters of public employment. (1) ….. ….. ….. ….. ….. (2) ….. ….. ….. ….. ….. (3) ….. ….. ….. ….. ….. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (5) ….. ….. ….. ….. ….. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.". The reservation under Article 16(6) was for other than those who were mentioned in Clause (4) of Article 16 of the Constitution.

10. The Maharashtra Public Service Commission (MPSC) issued the subject Advertisements inviting applications for filling up the posts regarding the recruitment under challenge. For the Assistant Conservator of Forests and Range Forest Officer posts, the Advertisement was published on 8 March 2019 for a total of 100 posts in the Forest Department. For the Assistant Conservator of Forests (Group-A) post, 29 posts were to be filled in. 5 posts were skn 33 --WP-2722.2023---.docx reserved for SEBC and 3 for EWS. For the post of Range Forest Officer, 71 posts were to be filled in, out of which 11 posts were reserved for SEBC and 7 posts were reserved for EWS. On 3 April 2019, the MPSC issued an Advertisement for filling up 1145 posts in the Maharashtra Engineering Services, out of which 148 posts were reserved for SEBC candidates and 11 posts were reserved for EWS candidates. On 16 April 2019, the Advertisement was issued for 126 Tax Assistant and Clerk-Typist posts, of which 16 posts were reserved for SEBC candidates and 13 posts were reserved for EWS candidates.

11. The conditions and clauses of all three Advertisements were the same. The Advertisements first specified the table of the posts was to be filled in, and posts were reserved for each category. Then the general conditions regarding the number of posts and the reservation were prescribed. The Advertisements stated that the number of posts and the reservation are likely to change under the directions issued by the State, and if there was a change it would be included in the notification for the main examination. The Advertisements stipulated that the recruitment process would be undertaken subject to the outcome of the petitions pending in the Bombay High Court. Pursuant to the Advertisements, the EWS candidates applied from the EWS category, and the SEBC candidates applied from the SEBC category.

12. The challenge to the SEBC Act in the group of Petitions skn 34 --WP-2722.2023---.docx and the Public Interest Litigation was heard by the Division Bench of this Court. By the judgment and order in the case of Dr.Jaishri Laxmanrao PPatil v. The Chief Minister of State of Maharashtra1, and other petitions the Division Bench upheld the validity of the SEBC Act but reduced the extent of the reservation to 12% in educational institutes and 13% in direct recruitment. The petitioners therein challenged the judgment and order passed by the Division Bench of this Court dated 27 June 2019 in the Supreme Court by filing Civil Appeal No.3123/2020.

13. On 9 September 2020, the Hon’ble Supreme Court granted an interim order in Civil Appeal No.3123/2020 and others. The relevant paragraph of the said order reads thus: “17. In view of the foregoing, we pass the following orders:- (A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders. (B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to Post Graduate Medical Courses shall not be altered. (C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.” 1 PIL No.175/2018 and others decided by Bombay High Court on 27 June 2019 skn 35 --WP-2722.2023---.docx (emphasis supplied) Appointments to public services and posts under the Government were directed to be made without implementing the reservation as provided in the SEBC Act. There is a debate at the bar on the purport and implications of this interim order, which we have dealt with later.

14. On 23 December 2020, the State issued a GR, which, in its preamble, referred the history of prior GRs. Initially, it addressed the 10% reservation for public service posts designated for the Economically Weaker Sections (EWS). Subsequently, it clarified that this reservation applied to EWS candidates not falling under any other backward class reservation. Since SEBC candidates already had reservations, the 10% allocation did not apply to them, as they were ineligible for EWS benefits, and the Maratha community was not classified as a backward class by the Central Government. The GR then referred to the interim order granted by the Hon'ble Supreme Court on 9 September 2020. The GR directed that all recruitments should be carried out without enforcing the reservation under the SEBC category. It further referred to the fact that the State has prayed that the matter be placed before the larger Bench in the interest of the public; however, the interim order continues. The GR then stated that it was decided that those who had applied under the SEBC category before 9 September 2020, should be treated from the open category. Citing orders from petitions before the Aurangabad skn 36 --WP-2722.2023---.docx Bench, which mandated SEBC candidates to obtain EWS certificates, the GR also referred to the Division Bench's suggestion that the State determine whether EWS benefits should be extended to SEBC applicants. Consequently, in this GR, the State Government declared that, due to the interim order and prevailing conditions, SEBC category candidates for the year 2020-21 could apply for EWS certificates.

15. On 5 May 2021, the Hon’ble Supreme Court in Civil Appeal No.3123/2020, Dr. Jaishri Laxmanrao Patil v. Chief Minister and others2, declared the SEBC Act to be unconstitutional being over 50% of social reservation not covered by the exceptional circumstances as contemplated by the Constitution Bench in the case of Indra Sawhney v. Union of India3.

16. On 31 August 2021, the State Government issued a GR in reference to the decision of the Hon’ble Supreme Court dated 5 May 2021. It is stated that the Supreme Court had declared the reservation for the Socially and Economically Backward Classes (SEBC) as unconstitutional, consequently, candidates belonging to the SEBC category became eligible to compete for open posts. To benefit from the Economically Weaker Sections (EWS) reservation, these candidates had to fulfil the eligibility conditions outlined in the GR dated 12 February 2019. In response, the State amended the GR 2 3 (2021) 8 SCC 1 1992 Supp (3) SCC 217 skn 37 --WP-2722.2023---.docx of 12 February 2019 and issued corresponding directives. The GR specified that EWS reservation was contingent upon certain conditions, with the procedures outlined in the GR dated 12 February 2019 being applicable. Additionally, the EWS certificate had to pertain to the relevant financial year. Clause 7 of the GR indicated that SEBC candidates could avail themselves of EWS reservation benefits if they possessed the required certificate. Furthermore, the GR clarified that the benefits, as per the resolution of 23 December 2020, applied from the date of the interim order (9 September 2020) until the date of the final order (5 May 2021). In cases where recruitment processes were concluded before 9 September 2020, and final results were announced but appointment orders were pending, the resolution would retrospectively apply. However, if recruitment processes were completed, and candidates had already commenced their duties based on appointment orders before 9 September 2020, the GR was not applicable.

17. On July 5, 2021, the State Government issued instructions on the course of action to be followed after the decision of the Supreme Court of 5 May 2021. Subsequently, on 14 July 2021, the MPSC issued a notification revising the reservations for the Engineering Services in accordance with the Supreme Court's decision dated 5 May 2021. Similar notifications were issued on 12 July 2021 and other dates for the remaining categories. The SEBC category was consequently eliminated, and the positions were skn 38 --WP-2722.2023---.docx integrated into the general and open categories. Candidates from the SEBC category were classified either under the Open or EWS category based on their eligibility. The cut-off for the Open category was lowered, while the cut-off for the EWS category was raised due to an increased number of candidates.

18. The Recruitment was in three stages: Preliminary examination, Main examination and Interviews. As regards the dates of stages, there is some variance between the three recruitment processes. As regards all the exact dates, the order of the Tribunal does not provide guidance. Therefore, we have proceeded based on the information tendered by the learned Advocate General on behalf of the State which is not in dispute. The details are as follows. (A) Forest Department: The Advertisement was issued on 8 March 2019. On 26 May 2019, MPSC conducted the preliminary examination. On 15 September 2019, MPSC conducted the main examination. From 4 to 21 August 2020, MPSC conducted interviews. On 12 July 2021, MPSC published a revised reservation and the posts of SEBC were merged into the Open category. On 21 July 2021, revised results were published. The cut-off for the Open category was lowered from 230 to 224 and the cut-off for the EWS category became higher from 192 to 214. On 23 August 2021, interviews of the additional 38 candidates were held. On 29 September 2021, the final merit list was published by MPSC. On 17 December 2021, the skn 39 --WP-2722.2023---.docx final results were published. On 21 January 2022, recommendations were made to the Government by the MPSC. The recruitment being multi-cadre, an option of opting out was given to the candidates on 6 April 2022. On 20 June 2022, final revised results were published and on 29 June 2022, final recommendations were made to the Government. On 27 August 2022, the Original Application was filed in the Tribunal. (B) Engineering Services: The Advertisement was issued on 3 April 2019 for 1145 posts. On 23 June 2019, MPSC conducted the preliminary examination. On 27 September 2019, results of the preliminary examination were declared. The main examination was conducted by the MPSC on 29 November 2019. On 27 July 2020, the results of the main examination were declared. On 14 July 2021, MPSC published a revised reservation for the advertised posts. On 23 July 2021, revised results were published. The cut-off for the Open category was reduced from 258 to 246 and the cut-off for the EWS category was increased from 126 to 212. The revised results were challenged in Writ Petition No.2270/2021. Thereafter interviews were held up to 1 February 2022. On 12 February 2022, the final merit list was published by MPSC. On 4 March 2022, this Court disposed of the writ petition by granting liberty to the Petitioners to approach the Tribunal. In March 2022, the Original Application was filed. On 13 March 2022, the final results were published and on 10 June 2022, the final revised results were published by considering the skn 40 --WP-2722.2023---.docx options. Thereafter final recommendations were made on 15 June

2022. (C) Tax Assistant and Clerk-Typist: The advertisement was issued for 126 posts of Tax Assistant on 16 April 2019. On 16 June 2019, the MPSC conducted the preliminary examination. Results were declared on 27 August 2019. On 6 October 2019, MPSC conducted the main examination and on 3 November 2019, final results were published. On 12 July 2021, MPSC issued a publication for revised reservations for the advertised posts and 11 posts reserved for SEBC candidates were merged in the General/ Open category. On 17 September 2021, revised results were published. For the General/ Open Category, the cut-off was lowered from 137 to 135 and the cut-off EWS category was raised from 127 to 132. This was a result of the reduction and addition of candidates. On 20 September 2021, Writ Petition No.3370/2021 was filed which was disposed of on 4 March 2022 granting liberty to approach the Tribunal. In March 2022, the Original Application was filed. These dates have to be examined in the context of two relevant events, that is, the interim order was passed by the Hon’ble Supreme Court on 9 September 2020 and the final order on 5 May 2021.

19. On 8 September 2022, the State created supernumerary posts as per its decision of 24 August 2020 (as mentioned in the skn 41 --WP-2722.2023---.docx impugned order). As regards the Clerk-Typist, 12 supernumerary posts were created for the original EWS candidates on 27 September

2022. As regards Tax Assistant, 12 posts were earmarked for Tax Assistant and as per communication dated 14 October 2022, the candidates were appointed on supernumerary posts.

20. Meanwhile, in a separate development, several writ petitions were filed before this Court by candidates belonging to the EWS category, challenging the Advertisement issued by the Maharashtra State Electricity Distribution Company Limited (MSEDCL). They also challenged the GR dated May 31, 2021, aggrieved by the inclusion of SEBC candidates in the selection process of the EWS category. Simultaneously, SEBC candidates filed petitions seeking a directive to the MSEDCL to take the decision allowing their participation in the EWS category selection process to its logical conclusion. This group of writ petitions was disposed of by the Division Bench of this Court in Vikas Balwant Alase v. Union of India4, allowing the writ petitions filed by EWS category candidates. The Division Bench declared that the GRs impugned in those writ petitions did not apply to the concerned recruitment process initiated for appointment of the EWS category in furtherance of Advertisement Nos.04/2019, 05/2019 and 6/2019, which were the subject matters of the respective writ petitions. It was further declared that the action on the part of MSEDCL in applying the GRs impugned in those writ petitions retrospectively to the concerned 4 2022 SCC OnLine Bombay 1592 skn 42 --WP-2722.2023---.docx selection process was illegal and bad in law. Consequently, the impugned actions of MSEDCL were set aside and MSEDCL was directed to proceed with the selection process in consonance with the Rules prevailing when the advertisements were issued.

21. When the Original Applications came up for consideration before the Tribunal, the EWS candidates heavily relied on the decision in the case of Vikas Alase. In Original Application No.280 of 2022 and 281 of 2022, the Maharashtra Administrative Tribunal passed an interim order on 29 March 2022, whereby the joining of the Tax Assistants and Clerks was made subject to outcome of the decision in the Original Applications. In Original Application No.814 of 2022, an interim order was passed on 18 August 2022. Amongst 10 posts reserved for EWS, for Assistant Conservator of Forest 3 candidates, who were already sent for training, their services were made subject to decision in the Original Application and rest of the 7 posts for Range Forest Officer, whereby recommendations were made, were stayed till filing of reply. After considering the rival contentions, the Tribunal held that the GR dated 23 December 2020 was issued at a juncture when the SEBC Act had not been subject to a stay by the Supreme Court, consequently, the issuance of the GR on 23 December 2020 was incompatible with the SEBC Act. The Tribunal held that during the selection process, there was a retrospective application of a change in the rules which was impermissible. The Tribunal held that the skn 43 --WP-2722.2023---.docx SEBC candidates were bound to the position applicable as of the date of the Advertisements. The Tribunal held that the decision in Vikas Alase was a binding precedent in the present facts and circumstances before the Tribunal. The Tribunal disposed of the three Original Applications by the impugned judgment dated 2 February 2023 with the following order: “59. In view of the above, we pass the following order: (a) The Original Applications are partly allowed. (b) Being contrary to the provisions of Articles 16(4) & 16(6) of the Constitution of India, the G.R dated 23.12.2020 is illegal and void as it was issued when the S.E.B.C reservation was in existence. Hence, it is quashed and set aside. (c) The G.R dated 31.5.2021 is held as not applicable to the present selection process in these applications retrospectively. (d) The select list dated 20.6.2022 in O.A 814/2022, select list dated 23.7.2021 in. O.A 2800/2022 & select list dated 14.7.2022 in O.A 281/2022, qua E.W.S candidates are hereby quashed and set aside. The Respondents are directed to prepare the final select list of the originally E.W.S candidates and recommend within four weeks. Remaining select lists except E.W.S in respective examinations are kept intact. (e) The applicants in O.A 281/2022 cannot be appointed on supernumerary posts. The earlier recommendations given by M.P.S.C about the applicants are to be considered by the Respondent-State while filling up the posts. The names of the applicants, if found eligible are to be recommended to the Government, within one month.” skn 44 --WP-2722.2023---.docx Challenging the common judgment and order of the Tribunal dated 2 February 2023, the Petitioners are before us with their respective writ petitions.

22. This group of writ petitions came up for consideration before the Division Bench on 8 March 2023. In the order passed on that day, the Division Bench noted the controversy in short. The Division Bench referred to the argument of the Petitioners that the Tribunal had relied on the decision of this Court in the case of Vikas Alase, however, it was contrary to the legal and factual position. Observing that the matter would be required to be dealt with finally at the admission stage, while deferring the hearing, the Division Bench directed that the position on that day be maintained. Accordingly, we have taken up these petitions for final disposal.

23. We have heard the learned counsel for the parties. On behalf of the State, Dr. Birendra Saraf, Advocate General, Mr. V. A. Thorat, Senior Advocate and Mr. Mihir Desai, Senior Advocate, special counsels, advanced arguments. Mr. Narendra Bandiwadekar, Senior Advocate, Mr.M. D. Lonkar, Mr. Nikhil Pawar Mr. Saurav N. Katkar and Mr. Satyajeet Rajeshirke, learned Advocates appeared for the SEBC candidates. On Behalf of On behalf of EWS candidates, Mr. Sayyed T. Yassen and Ms. Sabiha Ansari, learned Advocates advanced their arguments. Mr. Tejas Deshmukh, Mr. Laukik Pawar, skn 45 --WP-2722.2023---.docx learned Advocates appeared for the Applicants.

24. For convenience, the arguments advanced by the Petitioners- State of Maharashtra and the Petitions- SEBC candidates, unless otherwise required, are referred to as the Petitioners' contentions. The arguments advanced on behalf of the EWS candidates are referred to as the contentions of the Respondent.

26. A summary of the Petitioners’ propositions is as follows. Petitioners contend: The impugned order has misdirected itself in law and facts. The rules governing the recruitment remained consistent throughout the selection process, with no modifications midway, and there is no retrospective application of the impugned GRs. The Advertisements explicitly conveyed that both, posts and reservations were subject to changes, contingent upon the decision regarding the challenge to the SEBC Act. Article 16(6) of the Constitution of India mandates that candidates falling within the SEBC category cannot opt for the EWS category even if eligible. When the Supreme Court initially directed recruitment without considering SEBC reservations and later invalidated the SEBC Act, eligible EWS candidates were afforded the option to benefit from EWS Reservations. The GRs of 23 December 2020, and 31 May 2021, formalized this option. It was known to the candidates that the recruitment process depended on the skn 46 --WP-2722.2023---.docx challenge to the SEBC Act, and candidates had no grounds for grievance in this regard. The Tribunal's error lies in holding that the impugned GR was applied retrospectively. The ongoing recruitment process was not subject to retrospective application, and the Resolutions gave SEBC candidates the option to switch to the EWS category as per eligibility. The Tribunal should have considered that there was no change in the rules of the game; the qualification, eligibility criteria, and EWS reservation remained unchanged. The GRs were a consequence of the position post the Supreme Court's decision, allowing eligible candidates to avail themselves of the pre- existing EWS reservation. Furthermore, the Tribunal failed to consider a series of judgments of the Supreme Court laying down permissible and impermissible changes in the recruitment process. Notably, all Respondents- EWS candidates were considered in the recruitment process. If there is no midstream change in the rules, the retrospective operation becomes inconsequential, constituting a permissible change in the recruitment process. Even assuming that there was retrospective application, the GRs do not violate any constitutional or statutory embargo. They were procedural directions to ensure that candidates eligible for EWS reservation were not unjustly deprived due to SEBC reservation being subsequently set aside. The objective was to uphold the principle of Article 16(6) of the Constitution, ensuring fair and equal opportunities. The GRs, far from being illegal or arbitrary, aim to promote equal opportunity. The law laid down by judgments of the Supreme Court would skn 47 --WP-2722.2023---.docx uphold the GRs and changes in the recruitment process that align with the constitutional mandate under Article 16 of the Constitution of India. The legal position also holds that change to promote the engagement of more meritorious candidates is acceptable, provided it does not exclude others from participating. The judgment in Vikas Alase is per incuriam for not taking into account the constitutional embargo in Article 16(6) of the Constitution of India. In essence, the inclusion of SEBC candidates in the EWS category for selection does not alter the established rules of recruitment. The fundamental criteria for eligibility, such as educational qualifications, professional qualifications, age limits, and specified percentages, constitute the norms governing the selection process. Any modifications to such fundamental eligibility criteria after the initiation of the selection process would constitute a change in the rules. But, in the present case, there has been no alteration to the eligibility criteria specified in the initial Advertisement. The percentage of reservations for EWS candidates remains unchanged. Allowing SEBC candidates to avail themselves of EWS reservations does not constitute a change in the reservation policy or the rules of the game. The advertised eligibility criteria, including age limits and educational qualifications, have remained the same. The Advertisements explicitly notified candidates that recruitment processes were subject to final decisions in various courts. The MPSC, at the outset of the selection process, clarified the potential for changes in the number of posts and reservations, as indicated in the Advertisements. Applicants who skn 48 --WP-2722.2023---.docx applied under the EWS category accepted these conditions by participating in the selection process without contesting these clauses. Therefore subsequent inclusion of SEBC candidates in the EWS category was as per the State's right to amend conditions outlined in the Advertisements. To issue GRs making them applicable retrospectively is within the competence of the State Government. The Tribunal's conclusion on their illegality is misplaced. The statistics of appointments on posts referred to in the impugned judgment indicate the selection of more meritorious candidates, underscoring the government's prerogative to appoint candidates based on merit. EWS candidates with lower merit cannot assert a right to appointment under the EWS quota. Their challenge arose only after realizing their non-selection on merit. In some instances, appointment orders have already been issued, with some being issued well before the Tribunal's interim order. Some candidates have commenced their services, and despite the passage of almost a year, the Respondents chose not to challenge these orders. They permitted all procedural steps to proceed, including medical examinations, document verification, and issuance of appointment orders for candidates. This delay in approaching the Tribunal is significant. The delay in challenging the GRs and notifications, coupled with active participation in the selection process, renders the Respondent's prayers subject to laches. This aspect is not considered by the Tribunal. The Supreme Court's interim order on 9 May 2020, effectively stayed the operation of the SEBC Act. The striking skn 49 --WP-2722.2023---.docx down of the SEBC Act, based on the violation of Fundamental rights, essentially means that the Act never existed. The SEBC candidates, even if they belong to the EWS category, would have been denied the benefit of reservation when competing with General category candidates despite their merit. The Tribunal did not examine whether any prejudice was caused to the EWS candidates. The Tribunal has stepped outside its jurisdiction as if it was considering a public interest litigation. There was no warrant to set aside the GR dated 23 December 2020 as the Respondents- EWS candidates did not show how they were directly affected. They were not selected because they scored lesser marks. The impugned order has caused grave prejudice, even to those who were not before the Tribunal. Thus the impugned order be quashed and set aside.

28. The gist of the Respondents’ arguments is as follows. Respondents submit: The impugned order passed by the Tribunal is correct and legal. In the Advertisements pertaining to the recruitment processes, the vacancies for SEBC and EWS were notified separately, and even the procedures prescribed for procuring the certificates under the said categories were different and distinct under the various GRs. For the EWS category, the procedure was as per the GR dated 12 February 2019 and for the SEBC category, it was as per the GR dated 7 December 2018. The State issued a GR dated 28 July 2020, reiterating that SEBC candidates cannot avail skn 50 --WP-2722.2023---.docx themselves of the benefit of the EWS category. Therefore, it was obvious that SEBC category candidates could not avail of the benefit of the EWS category, which was the mandate of Article 16(6) of the Constitution. In the Advertisements, the candidates were required to submit an EWS certificate before the cut-off date. The prescribed cut-off date was as per the GR dated 12th February 2019. From perusal of the Advertisements and the GR dated 12th February 2019, it is very clear that an EWS candidate acquired eligibility to be an EWS candidate only if the criteria prescribed by the said policy were met. Therefore, the candidates should have had the certificate as of the last date. The SEBC candidates were put on notice about the pendency of the challenge to the SEBC reservation before the Supreme Court. The issuance of the GR dated 23 December 2020 is arbitrary and unconstitutional. The SEBC Act was not stayed by the Supreme Court by the order dated 9 September 2020; it was only an interim direction for not making any appointments under the Act. It is important to note that the Supreme Court did not stay the entire recruitment process; instead, it intended to proceed with recruitment without implementing reservation as per the SEBC Act. However, the State stopped the process to provide undue advantage to a specific community, which goes against the Constitution and the Supreme Court's directions. Further, when there was no stay on the SEBC Act, the GR of 23 December 2020 could not have been issued. The Respondents, as citizens, are also entitled to challenge such actions of the State. The State modified the GR, allowing SEBC skn 51 --WP-2722.2023---.docx candidates to benefit from the EWS category, contradicting their own GR. On 5 May 2021, when the Supreme Court declared that the SEBC reservation was unconstitutional, the corollary was that those seats earlier reserved for SEBC were converted into the open category. Accordingly, the State also converted the seats into the open category in the present recruitment process. By the GR dated 31 May 2021, the State conferred eligibility of the EWS category by giving retrospective effect. When SEBC candidates did not possess the EWS certificate as required before the cut-off date and were made retrospectively eligible, it amounted to changing the rules of the game during the selection process. The GR dated 12 February 2019 was modified by deleting the word SEBC mentioned in the said GR, and Annexure-A of the undertaking was also modified to suit this retrospective operation. The final result was declared for Clerk- Cum-Typist and also for Tax Assistant before the interim order of the Supreme Court. Recommendation letters were issued. Letters for appointment orders were also issued to the original EWS candidates even before the interim order of the Supreme Court. In the case of the Engineering and Forest services, the impugned GRs affected the right of consideration for interviews for those who were qualified after successfully qualifying the preliminary and mains examination, whereas in the case of Tax assistants and clerks/typists, their right to appointment has been affected. The calculation method of income criteria for SEBC and EWS is not the same. The issuance of EWS eligibility certificates to SEBC candidates based on back dated skn 52 --WP-2722.2023---.docx income certificates, violating the rules, rendered the entire process void from the beginning. According to the Advertisements and GRs, candidates could submit eligibility certificates within six months of application, and changing eligibility criteria afterwards is not permissible. The selection process should continue on the same basis once an advertisement is issued based on the stated eligibility criteria. The petitioner's attempt to change the criteria after the Advertisements goes against this principle. The Respondents have not waived their right to challenge the outcome by participating in the recruitment process. The argument of the petitioners that GRs were issued to increase the competition and bring in more meritorious candidates is not stated, nor was it the purpose of the impugned GRs. All respective categories' cut-off marks were declared before the impugned policy decision. The cut-off marks were already declared for every category, and the SEBC to EWS policy was brought in afterwards. Admittedly, the open category's cut-off was much higher than the EWS category. Therefore, accommodating the SEBC category in a lower category was unfair and arbitrary after the cut-off was declared. The petitions are not maintainable because the issues raised have already been addressed and decided by the Hon'ble Division Bench in the Vikas Alase case. The judgement in Vikas Alase established that altering eligibility criteria during the selection process is not allowed. The judgment in the Vikas Alase case is a binding precedent on this coordinate bench on all the issues and is rightly considered binding by the Tribunal. The Supreme Court has skn 53 --WP-2722.2023---.docx dismissed the challenge against the decision in the Vikas Alase case having not found any error in the judgment of Vikas Alase. The grounds raised and argued before the Supreme Court were also the same as those advanced in these petitions. Despite the existence of a GR restricting SEBC candidates from EWS benefits, the State issued conflicting GRs. The State actions, like allowing migration of SEBC to EWS retrospectively, are not permissible at an advanced stage of the recruitment process. The SEBC reservation, already struck down by the Supreme Court, made the reserved seats for SEBC candidates irrelevant. To accommodate them, the State shifted them to EWS, contrary to the Advertisements. Migration from one reservation category to another is not allowed, but the State allowed such options for candidates in ongoing recruitment processes. In conclusion, there is no merit in the challenge and the Petitioner cannot raise these points in court since they have already been addressed in the Vikas Alase case. The petitions should be dismissed.

29. The Tribunal has set aside the GR dated 23 December 2020 on the ground that it is illegal and void as it was issued when the SEBC reservation was in existence. The GR dated 31 May 2021 is held as not applicable to the present selection process in these applications retrospectively. The select list qua EWS candidates is quashed and set aside. The Petitioner-State is directed to prepare the final select list of the original EWS candidates and recommend them within four weeks. The remaining select lists except EWS in skn 54 --WP-2722.2023---.docx respective examinations is kept intact. It is held that the applicants could not be appointed to supernumerary posts. When examining the challenge, it needs to be kept at the forefront that we are not considering a broad-based challenge akin to a public interest litigation to adjudicate upon the overall policies of the state. The petitions arise from the order of the Administrative Tribunal, which has to decide the matters in respect of services under the State within the jurisdiction conferred under the governing statute.

30. Both, the Respondents and the Tribunal have heavily relied on the decision of the Division Bench of this Court in Vikas Alase. According to the Respondents, the issues which Vikas Alase and confirmed by the Supreme Court cannot be reopened by the Petitioners. The Respondents contend that the law laid down in Vikas Alase in the identical fact situation is binding. According to the Petitioners, the decision in Vikas Alase has not considered the impact of the legal position and is also different on facts and, therefore, the same is per incuriam and distinguishable. In light of these rival contentions, we will have to first carefully examine the decision in Vikas Alase and the order passed by the Supreme Court dismissing the challenge to this decision.

31. In Vikas Alase, the Division Bench considered and disposed of a group of writ petitions. The writ petitions pertained to the recruitment process initiated by MSEDCL pursuant to skn 55 --WP-2722.2023---.docx Advertisement No.5/2019, dated 12 February 2019, and No.6/2019, dated 12 June 2019. The Division Bench grouped them into two categories, noting that common questions were involved. One group pertained to the challenge by EWS candidates, and the second to the directions sought by the SEBC candidates. The factual position in this group of petitions is narrated in paragraphs- 6 to 13, which read thus: “6. The MSEBC Act was brought into force on November 30, 2018. The State Government took a decision to extend the benefit of reservation in services to the SEBC. Likewise the State Government has extended the benefit of reservation in education and service to the EWS category within the State of Maharashtra vide Government Resolution (hereafter ‘G.R.’ for short) dated February 12, 2019 issued by the General Administration Department, Government of Maharashtra. The respondent no. 5 - MSEDCL issued an advertisement dated June 2, 2019 bearing No. MSEDCL-06/2019 inviting applications for various posts including that of ‘Diploma Engineer - Trainee (Distribution) (hereafter ‘the said post’ for short) to be filled at various offices of the MSEDCL. MSEDCL is a State owned company/entity. There is no dispute that the MSEDCL is a ‘State’ within the meaning of Article 12 of the Constitution of India and is amenable to the writ jurisdiction of this Court. The educational qualification prescribed for the said post was ‘Diploma in Electrical Engineering’. Out of the total 408 vacancies advertised for the said post, 40 posts were reserved for EWS category candidates and 53 posts were reserved for SEBC category candidates. A corrigendum to the advertisement due to certain changes in the vacancies/backlog position for the said post came to be issued. Consequently, for the said post, the vacancy position was reduced to 29 for EWS category and 43 for SEBC category.

7. A reference to some of the conditions of advertisement pertaining to SEBC and EWS categories is relevant. Clause 5.12 provides that for claiming the benefit of reservation under skn 56 --WP-2722.2023---.docx SEBC, the candidates have to produce the Caste Certificate issued by the appropriate authority and Caste Validity Certificate issued by Caste Scrutiny Committee. Also the concept of Non-creamy Layer Certificate is applicable to SEBC along with all Backward Class (other than SC/ST) categories. Clause 5.12 provides thus:— “It will be sole responsibility of the candidate to produce the appropriate documents to claim the benefit of reservation under SEBC.” Clause 5.13 stipulates thus:— “5.13 As per the guidelines vide GR dated 07/12/2018, the Caste Certificate issued to the candidate under Educationally and Socially Backward Category (ESBC) as per the G.R. No. CBC-10/2013/P.K.35/BCR dated 15/07/2014 earlier will be valid for availing reservation under SEBC under this recruitment.”

8. The caste certificate issued to the candidate under Educationally and Socially Backward Category as per earlier G.R. dated July 15, 2014 is made valid for availing reservation under SEBC under this recruitment.

9. Clause 5.14 provides thus:— “5.14 For claiming the benefit of reservation under EWS the candidates have to produce the Certificate within 6 months from the date of submission of application. The candidates shall produce certificate issued by the appropriate authority as prescribed under Annexure -‘A’ enclosed to Maharashtra Government Resolution dated 12/02/2019.”

10. Clause 5.16 stipulates that the candidate applying under SEBC should be a domicile of Maharashtra State as per G.R. dated 05/12/2018. Clause 5.21 stipulates that the reserved category candidates who avails concession in age will not be considered against the open/general category posts. The applicants were requested to observe the vacancies before submission of online application. Further, clause 5.23 of the advertisement mentions that recruitment process of the SEBC category candidates is subject to the order from the Hon'ble Supreme Court of India in the SLP (C) No. 015701/2019 and skn 57 --WP-2722.2023---.docx any instructions by the GoM accordingly are received. The tentative time schedule is provided under clause 7 which is as under:— “7. TENTATIVE TIME SCHEDULE: 7.1 Opening of submission of online applications : 07/08/2019 7.2 Last date of submission of online application : 20/08/2019 7.3 Candidates to download call letter for online : 10 days prior test to online test 7.4 Online Examination at Test Centre : During August 2019

11. Thus, the last date of submission of online application was August 20, 2019.

12. The procedure to apply is stated in clause 9. Clause 9.1 provides that “candidate applying for the posts advertised should ensure that they fulfill all eligibility criteria. Their admission to all the stages of the recruitment process will be purely provisional subject to satisfying the prescribed eligibility criteria mentioned in this advertisement.” The general conditions are prescribed by clause 12. Clause 12(a) stipulates that “mere submission/acceptance of online application and/or appearing for the exams do not ensure eligibility as well as does not confer any right for appointment”. Clause (d) provides that “once the application is submitted, no information can be corrected. Candidates should be careful in filling the online application and should cross-check and are responsible for correctness of information in continuation”. Clause (r) stipulates that “any request for change of address or any other information provided in online application will not be entertained”. Further, by virtue of clause (v), the MSEDCL has reserved the right to cancel the advertisement fully or partly on any grounds and such decision was not to be notified or intimated to the candidates.

13. The candidates appeared for online examination on November 13, 2019. The combined list of selected candidates was published on January 17, 2020. The names of the candidates selected from various categories including EWS and skn 58 --WP-2722.2023---.docx SEBC category was declared. The candidates received a communication through e-mail dated January 25, 2021 whereby they were informed by the MSEDCL that they are selected and further instructed to report for document verification process. As a result of the interim order passed by the Supreme Court, the MSEDCL did not proceed to issue appointment orders to the candidates selected from SEBC category. Even those from EWS category were not appointed.” The judgment notes that the combined list of selected candidates was published on 17 January 2020. Thereafter the developments which we have adverted to, that is, the order passed by the Aurangabad Bench of this Court, GRs dated 23 December 2020 and 13 January 2021 were noted. Then, two instructions which were issued by the State Government to MSEDCL were referred to in paragraphs- 17 and 18 as under: “17. The State Government through the Industries, Energy and Labour Department issued a letter dated February 10, 2021 addressed to the Managing Director, MSEDCL, instructing him to comply with the guidelines laid down therein. The relevant portion of the said guidelines read thus:- “a. To allow the S.E.B.C. candidates who had participated in the recruitment process in pursuance of the Advertisement No. 04/2019 (Electricity Assistant), Advertisement No. 05/2019 (Upkendra Sahayyak) and Advertisement No. 06/2019 (Diploma/Graduate Engineer Trainee) advertised by the M.S.E.D.C.L. in the year 2019 to obtain E.W.S. certificates for the purpose of their recruitment from the E.W.S. category for the aforesaid posts. b. To take abundant care and caution that no action in contravention and derogation of the Government Resolution dt. 23/12/2020 issued by General Administration Department be taken.”

18. Further, vide the aforementioned letter dated February skn 59 --WP-2722.2023---.docx 10, 2021, the Industries, Energy and Labour Department gave retrospective effect to the G.R. dated December 23, 2020 by allowing even the candidates who had participated in the recruitment process held in the year 2019 to obtain EWS category certificate and avail its benefits by changing their caste/reservation category from SEBC category to EWS category for the purpose of recruitment to the said posts. In pursuance of the letter dated February 10, 2021, the Chief General Manager, MSEDCL, issued a public notice dated February 11, 2021 that MSEDCL had activated the URL-line for the purpose of allowing SEBC category candidates to change their category either to “EWS category” or “Open category” with reference to their recruitment to various posts advertised by MSEDCL in the year 2019. The last date provided by MSEDCL for changing reservation category was March 20, 2021. This led to the filing of these writ petitions by the respective category of candidates.”

32. With the above factual backdrop, the Division Bench in Vikas Alase adverted to the rival contentions before it. The EWS candidates therein had urged that once the recruitment process had already commenced under the Advertisement, the selection process cannot be changed midway to the detriment of EWS candidates who have constitutional reservations in their favour. It was urged that SEBC candidates therein were aware of the challenge to the SEBC Act in the Supreme Court, and even the advertisement stipulated that the recruitment process was subject to the outcome of the proceeding pending in the Supreme Court. It was contended that the SEBC candidates consciously chose to apply against the posts reserved for SEBC candidates. It was contended that EWS being constitutional reservation and SEBC being a distinct class, there skn 60 --WP-2722.2023---.docx cannot be a change in midway for SEBC candidates. Various decisions were cited before the Division Bench, which are also being referred before us. These are the decisions in the cases of N.T. Devin Katti v. Karnataka Public Service Commission5; Union of India v. Tushar Ranjan Mohanty6; Gurdeep Singh v. State of J & K7; Madan Mohan Sharma v. State of Rajasthan8; State of Bihar v. Mithilesh Kumar9; Prakash Chand Meena v. State of Rajasthan10; Nalgonda Srinivas Rao v. Dr. B. Kishore11; Bishnu Biswas v. Union of India (UOI);12 Neil Aurelio Nunes (OBC RESERVATION) v. Union of India13, K. Manjusree v. State of A.P.14.

33. The SEBC candidates urged before the Division Bench in Vikas Alase, that there was nothing arbitrary or discriminatory in extending benefits of EWS candidates to eligible candidates of SEBC. All the candidates were informed that recruitment was subject to the outcome of the decision of the Supreme Court, and since no appointment from SEBC could be made in view of the interim directions of the Supreme Court, the State Government had to issue a Circular safeguarding the interest of the SEBC candidates who fulfil the eligibility of EWS category. The State and MSEDCL were sympathetic to the case of SEBC candidates who were directly 5 6 7 8 9 10