THROUGH the judgement in the writ petition – Shri Akshay Ashok Chaudhari and Others along with interim application by Maharashtra General Administration Secretary and Forest & Revenue Secretary v. Gajanan Chavan and others and 7 other petitions raising similar challenges, have been allowed by Justices Nitin Jamdar and Manjusha Deshpande, at the Bombay High Court at Mumbai on December 22, 2023, holding that the petitioners were at the wrong end of the impugned judgment delivered by the Maharashtra Administrative Tribunal on February 2, 2023, which has created an “inequitable situation”, in which they find themselves and the said order is required to be set aside. Three recruitment processes under the different advertisements are subject-matters of these petitions, the dates and events in these processes are marginally different in each of them. The candidates from the Maratha community (Socially and Educationally Backward Class –SEBC) seeking reservation benefits had to apply for the subject advts. under the SEBC category, even if they belonged to the Economically Weaker Section-EWS in view of the constitutional bar. The recruitment process proceeded without implementing the SEBC Act, 2018, which was later declared unconstitutional. Consequently, seats reserved for SEBC candidates were allocated to the Open category without lapsing.

 

The seats reserved for Maratha (SEBC) candidates were integrated into the general category and those Maratha (SEBC) candidates, who were in EWS category, upon getting the due certificate were allowed by the State to apply under the EWS category with a merit-based approach. However, the consequence of the impugned order is that candidates who belong to the economically Weaker Section (EWS) despite securing higher marks are disqualified. The State’s action in permitting the economically and socially backward segment of society and issuing the impugned GR cannot be deemed arbitrary. While affirming reservation in favour of EWS segment, the Supreme Court has in the case-Janhit Abhiyan v. Union of India – (2023) 5 SCC 1, noted that in the intricate, achieving genuine and tangible equality requires continuous efforts to eliminate existing inequalities in any form. Hence, the State has been entrusted with the responsibility of affirmative action aimed at mitigating discrimination and ultimately eradicating it to achieve true and substantial equality. This approach has led to the adoption of reservations in recruitment. The State attempted to address a one-time situation by allowing a class that, according to it was prejudiced to compete for the benefits of reservation. The Tribunal has not given any specific finding on how it considers the State’s actions as arbitrary.

 

The HC has noted further, the impugned order has not considered the fundamental reason and objective behind providing reservation as a form of affirmative action. The reservation under Article 16(6) is designated for the EWS Category. The SEBC candidates before the Tribunal were part of the EWS, meaning that all of them belonged to the EWS category. However, throughout, the Tribunal has consistently distinguished between two groups of EWS candidates: those, who originally applied under the EWS category and those who gained permission to apply under this category through the impugned GR. By drawing this distinction, the impugned order effectively excluded candidates belonging to the EWS category, who are otherwise entitled to The benefits of constitutional reservation and scored more marks. Earlier, the State Government was of the opinion that in view of the predicament faced by the SEBC candidates, the most appropriate action was to allow them to apply under the EWS category provided they obtained the necessary certificates. In one of the petitions, there is a mere suggestion that the State might have done this to favour a particular community resembling an implication of mala fides.

 

However, this aspect lacks detailed support in pleadings and asserting mala fides requires a substantial burden of proof, which the respondents did not discharge. The State has sought to address the cause of those, who are economically weaker and entitled to EWS reservation. The State through MPSC made necessary adjustments. Consequently, the seats reserved for SEBC candidates were integrated into the general category. The selection process for the additional posts was meant to be based on merit even for the Other Backward Class category. However, when a similar merit based approach was applied to the EWS category, the Tribunal found fault with it. Thus, the impugned order disqualifies candidates despite they obtaining higher marks and possessing necessary certificates as EWS, because initially they had applied under the SEBC category, albeit without a choice. The only finding in the impugned order is that the original EWS candidates were completely sidetracked, and in the decision of the Government, giving supernumerary posts to EWS candidates is illegal and if these posts were to be offered, it should be given to those SEBC candidates, who have shifted to EWS category. In conclusion, the decision in the case –Vikas Balwant Alase v. Union of India-(2022) SCC OnLine Bombay 1592, relied upon by the Tribunal, does not comprehensively address all the issues presented before the HC.

 

While this decision emphasised the principle akin to estoppels and conscious choice for SEBC candidates therein, it has not taken into consideration the implications of Article16(6) and the decision is based on a different set of facts where the entire selection process was complete. The Tribunal acknowledged this difference but followed the decision in Alase’s case, emphasising the principle of impermissibility of changing rules after the selection process has commenced. However, this principle is not universally inflexible and can be deviated from in certain circumstances. The Central question before the Tribunal was whether the facts and circumstances of this case justified such a deviation. The impugned order has wrongly concluded that that the eligibility and qualification were changed retrospectively due to the impugned GRs. The record would show there were no changes made to the eligibility or qualification criteria for EWS candidates. They remained eligible, albeit competed with a widened competition pool. The State took corrective action to address this one-time situation. The SEBC candidates with higher marks secured posts, while those with fewer marks were not selected.

 

The Tribunal had extended the scope of inquiry to set aside the GR of December 23, 2020 beyond parameters of s service dispute even though the respondents did not demonstrate how they were directly prejudiced by it, resembling a Public Interest Litigation. The HC has commented that the impugned order has deviated from established legal principles, leading to cascading effects and negatively impacting a substantial number of candidates. The High Court has set aside the impugned judgment and order. In response to the prayers by the counsel for the respondents for continuing the interim order for six weeks, the HC observed that if the State proceeds to appoint candidates within 4 weeks from the date of this judgement, then in that event, those appointments would be subject to further challenge that the respondents intend to raise in the higher forum.