RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
( 1 ) wp 14522.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 14522 OF 2023 Mokind s/o Bapurao Dahiphale,Age: 40 years, Occu: Service as Assistant ProfessorR/o Sant Janabai Nagar,Water Tank, Tq. Gangakhed,District Parbhani....PETITIONERV/s.1.The State of MaharashtraThrough its Principal Secretary,Higher & Technical Education Dept.Mantralaya, Mumbai – 400 032.2.Joint Director,Higher Education, Nanded.3.Swami Ramanand Teerth,Marathwada University,“Dnyanteerth” Vishnupuri,Nanded – 431 606.Through its Registrar. 4.Dnyanopasak Shikshan Mandal’sDnyanopasak Arts, Commerce &Science College, Parbhani,Through its President. ... RESPONDENTS...Mr. S.S. Thombre, Advocate for the PetitionerMr. P.K. Lakhotiya, AGP for Respondent-StateMr. U.S. Malte, Advocate for Respondent No.3Mr. P.S. Dighe, Advocate for Respondent No.4… ( 2 ) wp 14522.23CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON :5th January, 2024 PRONOUNCED ON :10th January, 2024JUDGMENT (Per: Y.G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.2.By the present petition, the Petitioner has impugned orders/lettersdated 23rd August, 2023 and 26th September, 2023 issued by the RespondentNo.3 - Swami Ramanand Teerth University, thereby refusing to grant approvalto the appointment of the Petitioner on the post of Assistant Professor inEnglish subject.3.In nutshell, the Petitioner’s grievance is that, he belongs to NT-Dcategory. He possess all requisite educational and technical qualifications forappointment to the post of Assistant Professor. He cleared NET/SETexaminations in first class and is having ample teaching experience in saidsubject. He also presented the Research Papers in various Seminars /Conference and Symposium. In pursuance to the permission granted byRespondent No.3 - University, the Respondent No.4 - Management issued anadvertisement on 8th February, 2023 inviting applications from the eligiblecandidates for the post of Assistant Professors in various subjects. Accordingly,
Legal Reasoning
( 3 ) wp 14522.23the Petitioner submitted his candidature for the post of Assistant Professor inEnglish subject. The Respondent No.4 - Management conducted interviews ofvarious candidates on 11th June, 2023 for the advertised post. One candidateShri Popat Devidas Patil from reserved category Nomadic Tribe “C” was enlistedat sr.no. 4 for the post of “English” and the Petitioner’s name appeared in waitlist at sr.no.7. However, the selected candidate Shri Popat Devidas Patilrefused to join duty. Therefore, Respondent No.4 sought approval from theRespondent No.3 - University for selection of the Petitioner, who belongs to thenext inter-changeable reserved category NT “D” and has secured 72.89% marksand was more meritorious than other candidates. However, on 23rd August,2023, the Respondent No.3 - University issued the impugned communicationinforming that the subject post was reserved for NT-C category and in theGeneral Merit List, the Candidate belongs to NT-C. Therefore, though thecandidate figuring in the select list refused to resume duty, the appointmentcannot be given to the Petitioner, who belongs to NT-D category and refused theproposal. 4.Adv. S.S. Thombre, the learned counsel appearing for the Petitionersubmits that, on 5th September, 2023, the Respondent no. 4 - Managementissued a communication to the Respondent No.3 - University with properexplanation and justifying the Petitioner’s appointment that the Selected ( 4 ) wp 14522.23candidate Shri Popat Devidas Patil from NT “C” refused to join the post. Thename of another candidate Shri Amol Ashokrao Shrirame belonging to NT “C”category appearing at sr.no. 87 but in interview he secured 37.44% marks,which is less than 50% cut-off percentage. Therefore, as per the Governmentpolicy, the reserved post for NT “A” “B” “C” and “D” categories areinterchangeable, if the candidate from either of four categories is not availableor any one refused to join after the selection, however, the Respondent No. 4illegally refused to grant approval for appointment of the Petitioner, which iscontrary to sub-clause 4 to the 2nd proviso of Sec. 4 of the Maharashtra StatePublic Services (Reservation For Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Categoryand Other Backward Classes) Act, 2001. (In short Maharashtra Act No. VIII of2004). 5.To buttress his case, the learned counsel for the Petitioner relied onorders passed by Coordinate Bench of this Court in (1) W.P. No. 6393 of 2011dated 13th March, 2012 - Baban Pralhadrao Kadre Vs. The State of Maharashtra& Ors., and (2) W.P. No. 6968 of 2006 dated 20th March, 2007, Sanjay s/oKondibarao Kolekar Vs, The State of Maharashtra & Ors., wherein it has beenheld that, interchangeability from NT “B”category and NT“D” category is notprohibited by law. ( 5 ) wp 14522.236. Refuting the submissions made on behalf of the Petitioner, thelearned Counsel for the Respondent No. 3 Mr. Malte submits that, one post ofAssistant Professor was advertised under reserved NT “C” for English subject,however, the candidate enlisted at sr.no.4 - Popat Ganpatrao Patil allegedlyrefused to join but there are other candidates belonging to NT “C” category.However, the Respondent No. 4 - Management intended to appoint thecandidate other than NT “C” category. Since, no candidate from reserved NT“C” category is available in such circumstances, the Respondent No.4 can re-advertise the post and invite applications from said category by givingopportunity to the candidates from said category. The reserved post for NT “C”category is not changeable, therefore, the Respondent No.4 passed theimpugned order and declined to accord approval. Hence, he prayed fordismissal of the petition.7.It is not in dispute that the Petitioner is in possession of allrequisite and technical qualifications for appointment to the post of AssistantProfessor. The Petitioner also cleared NET/SET examinations and is havingample teaching experience to teach English subject. On 08.02.2023, theRespondent No.4 - Management issued an advertisement and invitedapplications from the eligible candidates for appointment to the post ofAssistant Professors for various subjects. The Petitioner who is from reserved ( 6 ) wp 14522.23category Nomadic Tribe “C” submitted his candidature for the post of AssistantProfessor in English subject. Accordingly, the Respondent No.4 - Managementconstituted selection committee and conducted interviews of various candidateson 11th June, 2023. It is not out of place to mention here that one candidatenamely Shri Popat Devidas Patil was selected from reserved category NomadicTribe “C” and enlisted at sr.no. 4 for the post of “English” subject and name ofthe Petitioner appeared at sr.no.7. The Respondents have fairly admitted thatthe selected candidate Shri Popat Devidas Patil refused to join the duty.Therefore, the Respondent No.4 - Management issued a communication dated15th June, 2023 for seeking approval from the Respondent No.3 - University forgrant of approval to selection of the Petitioner. However, Respondent No.3issued the impugned communication informing that the subject post wasreserved for NT-C category and in the General Merit List, other two candidatesfrom NT-C are appearing. Therefore, bypassing the reservation of NT “C”category, no appointment order can be issued to the Petitioner. 8.It needless to say that the Selection Committee duly conductedinterviews of all the candidates and maintained the marks-sheet recording themarks scored by all the candidates. The extract of marks-sheet from various NTcategories as appearing in merit in list, is as under:- ( 7 ) wp 14522.23Sr.No.Name of CandidatesCategorySubjectMarks obtained %4Patil Poat Devidas NT-CEnglish83.897Mokind Bapurao DahiphaleNT-DEnglish72.8915Syeda Tarrannum Syed GaniNT-BUrdu58.6746Khandu Dnyandev WaradeNT-CChemistry46.2559Dattatrya Ashruba ChadarNT-CChemistry44.6366Sangale Gitanjali BharatraoNT-DEnglish42.2285Vijay Ashok HemadeNT-DEnglish38.3387Amol Ashokrao ShrirameNT-CEnglish37.449.On perusal of the merit list of the all candidates, it appears that thecandidate at sr.no. 4 from NT-C category scored 83.89 % marks, but he refusedto join the duty. The candidates appearing at sr.no. 15, 46 and 59 are beingnominated for different subject than English. The other candidates at sr. nos.66, 85 and 87 are from NT D & C categories for English Subject, but theyscored 42.22%, 38.33% and 37.44%, which is less than the cut-off percentage.As per the Governing Terms And Conditions of Services of Teachers Working inUniversity Schools, University Departments, Conducted Colleges and UniversityInstitutions [Framed under Section 72(10) r/w Section 71 (20) of theMaharashtra Public Universities Act, 2016], minimum marks of 50% is requiredto be scored. Sub-section 5 of Section 10 provides that the candidate havingaverage score of at least 50 % shall only be considered as eligible for selectionin the order of merit. In the case in hand, the Petitioner scored 72.89%.Therefore, he is at 2nd number in merit of NT category. Since the candidate atsr. no. 1 from NT-C category refused to join, therefore, the Respondent No.4 - ( 8 ) wp 14522.23Management intended to appoint the Petitioner from NT-D category and issuedcommunication dated 5th September, 2023 to the Respondent No.3 seekingapproval with proper explanation and justifying the Petitioner’s appointment.10.Sub-clause 4 to the 2nd proviso of Section 4 of the MaharashtraState Public Services (Reservation For Scheduled Castes, Scheduled Tribes,De0notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Categoryand Other Backward Classes) Act, 2001 (In short Maharashtra Act No. VIII of2004), provides that in all posts at the divisional level or district level, thepercentage of reservation occurring in a recruitment year in such categories ofGroup-C and Group-D posts as may be notified by the Government in thisbehalf, has to be maintained at such divisional or district level only. However,said enactment does not prohibit inter-changeability from NT-C to NT-D, if thecandidate from NT- C is not available.11.Vide order dated dated 13th March, 2012 passed in W.P. No. 6393 of2011, Baban Pralhadrao Kadre Vs. The State of Maharashtra & Ors., theCoordinate Bench of this Court [Coram: B.R. Gavai (as His Lordship then was)and Sunil P. Deshmuk, JJ.] observed as under: “1.The petitioner challenges the selection of respondent no.5. Itis the contention of the petitioner that respondent no. 5 had neverapplied for the post of Assistant Professor in Sociology, which wasreserved for NT-B category. He further submitted that respondentno. 5 does not belong to NT-B category, but belong to NT-Dcategory.
Decision
( 9 ) wp 14522.232.The perusal of the report of the selection committee, whichalso includes the Government nominee, Vice Chancellor’s nomineesand subject experts, who are independent persons, would reveal thatin the selection process respondent no.5 has secured much moremarks as compared to the petitioner. It is also not in dispute that aninter-changeability from NT-B category and NT-D category is notprohibited by law.”12.In an another order dated 20th March, 2007 passed in W.P. No.6968 of 2006, Sanjay s/o Kondibarao Kolekar Vs. The State of Maharashtra &Ors., the Coordinate Bench of this court [Coram: Naresh H. Patil (as HisLordship then was) and R.M. Borde, JJ.] held that, as per GovernmentResolution the post reserved for NT-A, B, C, D categories are interchangeable.13.Therefore, considering the facts of the present case as well as thesettled law that post reserved for NT-A, B, C, D categories are interchangeable,hence, refusal to grant approval for appointment of the Petitioner by theRespondent No.3 - University under impugned orders dated 23rd August, 2023and 26th September, 2023 is contrary to Sub-clause 4 to the 2nd proviso ofSection 4 of the Maharashtra Act No. VIII of 2004 as well as GovernmentResolution.14.Hence, the Writ Petition is allowed. The impugned orders / lettersdated 23.08.2023 and 26.09.2023 are hereby quashed and set aside. TheRespondent No.3 - University is hereby directed to grant approval to the ( 10 ) wp 14522.23selection of the Petitioner for the post of Assistant Professor in English Subject,within 15 days from today.15.Accordingly, the Rule is made absolute in above terms. Parties tobear their own costs. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub