In a writ petition challenging the selection of three women as Line Helpers in the Physically Challenged category despite the petitioner securing higher marks, the High Court of Bombay held that horizontal reservations for women and physically challenged persons can overlap and dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2610 of 2010
Date of decision:21/9/2010
For approval and signature
HON'BLE MR. JUSTICE B.R.GAVAI
HON'BLE MR.JUSTICE K.U.CHANDIWAL
| 1. Whether the Reporters of Local Papers may be allowed to see the Judgment ? |
Yes/ |
|---|---|
| 2. To be referred to the Reporter or not ? | No |
| 3. Whether Their Lordships wish to see the fair copy of the Judgment ? |
No. |
| 4. Whether this case involves a substantial? question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? |
No. |
| 5. Whether it is to be circulated to the Civil Judges ? |
No. |
| 6. Whether the case involves an important question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? |
No |
| (A.G.Paralikar) Private Secretary AGP/office/2610-10wp |
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.2610 OF 2010
Bhagwat Shivnarayan Pawar,
Age: 25 Yrs., Occ: Nil,
r/o. At Malgi, Post Bharosa,
Tq.Chikhali, Dist. Buldhana.
...PETITIONER
VERSUS
1. The State of Maharashtra, Through the Secretary, Energy Department, Mantralaya, Mumbai 400 032.
2. The Chief Engineer, Maharashtra State Electricity Transmission Co.Ltd., Aurangabad Zone, Aurangabad.
3. Maharashtra State Electricity Transmission Co.Ltd., Through its Managing Director, Prakashgad, Bandra (East), Mumbai 400 051
4. Smt.Ganga Dadarao Panat, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed.
5. Smt.Sheela Chimaji Shere, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed.
6. Smt.Maya Ambadas Dedhe, Age: Major, Occ: Service as Line Helper (Probation), Recently appointed.
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(R-4 to R-6 to be served through R-2,
as their details regarding posting are
available with R-2.)
(Amendment, as to R-4 to 6, is carried
out as per leave of the Court - Order
dated 24.3.2010 in WP No.2610/2010)
...
Mr.Ajay S.Deshpande, Adv., for the
petitioner.
Mr.G.K.Thigale (Naik), Adv., for R.2 and 3.
Mr.S.K.Tambe, A.G.P., for respondent no.1.
Respondent nos. 4 to 6 served.
...
CORAM:B.R.GAVAI
AND
K.U.CHANDIWAL, JJ.
DATE: 21/9/2010
***
ORAL JUDGMENT: (Per B.R.Gavai, J.)
1.By way of present petition, the
petitioner challenges selection of respondent
nos. 4, 5 and 6, as Line Helper.
2.Respondentno.3hadissuedan
advertisement, being advertisement No.1/2008,
wherein Posts of Line Helpers were notified. Out
of 317 posts, 10 posts were notified for the
category of Physically Challenged Persons. The
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said advertisement specifically provided that the
selection would be purely on the basis of
qualifying marks obtained by the candidates and
no oral interviews would be held. In the said
selection process the petitioner was not held to
be selected and, as such, he filed the present
petition.
3.During the pendency of the present
petition, it was noticed by the petitioner that
the three candidates, securing lesser marks than
the petitioner, were appointed and, as such, by
way of amendment, impleaded respondent nos. 4, 5
and 6, as party respondents.
4.Shri A.S.Deshpande, learned Counsel
appearing on behalf of the petitioner, submits
that in view of clause (5) of the said
advertisement, a candidate from backward classes,
if he is selected on his own merit, is required
to be selected from Open Category. In view of
the said clause, along with the Government
Resolution dt.19th Oct.,2007, he submits that
there cannot be reservation for women in the
category of Physically Challenged persons. He
submits that the appointment of the Physically
Challenged Persons has to be purely on the basis
of the marks obtained by them and the reservation
of 30 per cent for women would not be
permissible.
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5.He further submits that there cannot be
twoparallelreservationsanhorizontal
reservation, one for physically challenged and
also, for women category candidates.
6.It is not in dispute that no male
candidate belonging to Physically Challenged
category, who has secured lesser marks than the
petitioner, has been selected by the respondent
Company. A categorical statement is made in the
affidavit in reply on behalf of the respondent
Board in that behalf and there is no counter
filed by the petitioner to that. It is,
therefore, admitted position that no male
candidate belonging to Physically Challenged
category, securing lesser marks than the
petitioner, has been selected. It is also not
in dispute that the candidates who have been
selected, securing lesser marks than the
petitioner, are all women. In that view of the
matter, the only question that would arise for
consideration before this Court is as to whether
there can be a 30 per cent reservation for women
candidates in the category of Physically
Challenged persons.
7.In so far as the reliance placed by the
learned Counsel on clause (5) of the
advertisement is concerned, there cannot be a
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dispute that a candidate belonging to backward
class, if entitled to be selected from open
category, has to be counted as being selected
from Open Category and not from the reserved
category. The Apex Court, in Indra Sawhney
Vs.Union of India ( 1992 Supp.(3) SCC 217) held
that, in so far as the reservation in favour of
Scheduled Castes and Scheduled Tribes are
concerned, they are Constitutional reservations
and, as such, a candidate belonging to these
categories, if entitled to be selected in the
open category, has to be treated as selected from
open category and not against reserved post.
However, it is to be noted that, in so far as
reservation for Physically Challenged persons is
concerned, it is not a vertical reservation but a
horizontal reservation. The Apex Court, in the
case of Indra Sawhney's (supra) case itself has
considered that the authorities, while providing
horizontal as well as vertical reservation, the
authorities will have to work out certain
modalities and that, at times, both these
reservations may overlap each other. The
contention that, in one horizontal reservation,
there cannot be another horizontal reservation,
does not appeal to us. At a given point of time,
the reservation for one horizontal reservation
may overlap another horizontal reservation. If
the contention of the learned Counsel for the
petitioner that, a reservation for women cannot
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be provided in a category of horizontal
reservation for Physically Challenged Persons, is
to be accepted then the very purpose for
providing reservation to women would be
frustrated. The reservation for women category
is to be provided in all the categories; whether
vertical or horizontal. Since we find that none
of the candidates from male category, in the post
reserved for Physically Challenged persons, is
selected and that only candidates securing lesser
marks than the petitioner are women candidates,
we dismiss the petition. No costs.
(K.U.CHANDIWAL) (B.R.GAVAI) JUDGE JUDGE
agp/2610-10wp
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2 issues framed by the court
Whether there can be a 30 per cent reservation for women candidates in the category of Physically Challenged persons.
Whether horizontal reservations for women and physically challenged persons can overlap.
Colour shows how this judgement treated each authority
Indra Sawhney Vs. Union of IndiaReferred¶48
Indra Sawhney Vs. Union of India ( 1992 Supp.(3) SCC 217) · Who else cites this
2 provisions across 2 enactments
Bhagwat Shivnarayan Pawar
State of Maharashtra
Chief Engineer, Maharashtra State Electricity Transmission Co.Ltd.
Maharashtra State Electricity Transmission Co.Ltd.
Smt.Ganga Dadarao Panat
Smt.Sheela Chimaji Shere
B.R.Gavai
K.U.Chandiwala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court