18-WP-460-24.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 460 OF 2024 Kanchan Deelip Mule @ Joshi Sukanchan Purushottam ..PETITIONER VERSUS State of Maharashtra and Others ..RESPONDENTS .... Mr. U.S. Malte, Advocate for petitioner Ms. P.J. Bharad, A.G.P. for respondent nos.1 and 2 Mr. P.P. Kothari, Advocate for respondent nos. 3 to 5 Mr. Shrimant Mundhe, Advocate for respondent no.6 .... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ DATE : 30th JUNE, 2025 PER COURT : 1. With the consent of learned counsel for the parties, the petition is heard finally. 2. The petitioner joined as ‘Asha worker’ way back in February 2009. She continued to work as such. During her continuance in service, process of filling-up the post of Group Facilitator was undertaken. It was admittedly the Central Government sponsored scheme implemented by the State Government in the Department of Health. 3. A short question that fall for consideration in this writ petition is as to whether the petitioner, who has passed preparatory examination from 1 / 8 2025:BHC-AUG:20446-DB 18-WP-460-24.odt Yashwantrao Chavan Maharashtra Open University (‘YCMOU’) and first year of her graduation, is entitled for five marks equal to that of the candidate, who passed the HSC examination. Admittedly, on the date of her interview, the petitioner had completed graduation in Arts from YCMOU. As per the guidelines / communication dated 10th August, 2016, the marking criteria has been prescribed, which reads thus :- v- dz- efgyk mesnokjkps uko 10 oh mRrh.kZ vlY;kl 12 oh mRrh.kZ vlY;kl inoh/kj vlY;kl inO;qRrj inoh/kj vlY;kl ,e-,l-lh- vk;-Vh- dkslZ izek.ki= vlY;kl loksZRd`”V vk’kk Lo;alsfodk iqjLdkj feGkyk vlY;kl (dks.kR;kgh Lrjkojhy) vk’kk Lo;alsfo dk inkoj dk;Zjr vlY;kl LkkekU; Kku @ nkSjk {kerk @ {ks=h; dkekph vkoM ,dw.k xq.k 4. After the interviews were held, the petitioner was found to have secured highest marks, and therefore, she was given appointment. She even worked on the said post for three years. Respondent No.6 was also one of the candidates, who appeared for the interview for the said post. She made a grievance to the concerned authority complaining the petitioner to have not passed HSC examination. Cognizance of her complaint was taken and the decision was arrived at whereby five marks allotted to the petitioner on account of her having qualification equivalent to 12th standard, were withdrawn. As a result, Respondent No.6 stood secured highest marks and was given appointment order. Presently she has been working on that post. 5. Learned counsel for the petitioner would submit that the State Government in General Administrative Department (‘GAD’) issued a 2 / 8 18-WP-460-24.odt Government Resolution dated 20th May, 2011 whereby equivalence has been given to the candidates completing preparatory course and first year of graduation from YCMOU, with the Secondary or Higher Secondary Examination, as the case may be. Learned counsel would further submit that the petitioner had approached this Court in Writ Petition No. 6958 of 2021. The said writ petition was disposed of vide order dated 08th September, 2023 with the consent of the parties. Vide the said order, communications dated 9th/15th March, 2021 and 28th May, 2021 were set aside. One of those communications i.e. 9th/15th March, 2021 speaks about granting equivalence and five marks therefor. According to learned counsel, since Respondent No.2 withdrew those communications, now cannot be allowed to turn around and to rely on the same. He has also relied on the Full Bench Judgment of this Court passed in Writ Petition No. 6752 of 2021 (Vishnu Rambhhaji Harishchandre Vs. Bar Council of India and Others), to ultimately urge for allowing the writ petition. 6. Learned counsel for respondent – Zilla Parishad would submit that working as Asha worker or Group Facilitator cannot be termed as a service with government. He would submit that they were like volunteers and paid certain amount towards service rendered by them. According to him, the recruitment would be in terms of either rules or the scheme prescribed 3 / 8 18-WP-460-24.odt therefor. He relied on the scheme whereunder allocation of marks has been spelt out. We have referred to same hereinabove. In support of his submission he relied on the the judgment of the Supreme Court in case of Shifana P.S. Vs. State of Kerala and Ors., AIR 2024 SC 3724. He would further submit that the government resolution issued by GAD has no application since under the scheme itself the marking pattern has been given. He meant to say that the system is self-contained and nothing could be searched outside thereof. He, therefore, urged for dismissal of the writ petition. 7. Learned counsel for Respondent No.6 would submit that the petitioner cannot be allowed to be reinstated in the service. He has relied on the judgment of Patna High Court in case of Rita Kumari Vs. State of Bihar and Ors. in Civil Writ Jurisdiction Case No. 12764 of 2014 to submit that the recruitment took place in accordance with the guidelines. 8. Learned counsel would further submit that the petitioner has no right to any post. She, therefore, cannot claim any vested right. He would further submit that although the writ petition was allowed with the consent of the parties, a window was kept open to decide the matter afresh. Meaning thereby a relook at the matter was expected and those communications were not without having been given effect to. 4 / 8 18-WP-460-24.odt 9. We have considered the submissions advanced. Perused the documents on record. 10. The post of Block Facilitator was to be filled-up from amongst eligible Asha workers. At the relevant time, both, the petitioner and Respondent No.3 since were working as Asha workers, applied for the post of Block Facilitator. Both of them alongwith others were interviewed. The petitioner secured highest marks and was, therefore, given appointment order. She even worked on the said post for little over three years. We are not in agreement with learned counsel for the respondent that it is not a service. True, it may not be a permanent service or employment. The fact, however remains that the candidate selected to work as Block Facilitator was expected to render certain job for which he is to be paid in terms of money. This is nothing short of service rendered by such a candidate. 11. The petitioner, although not completed HSC examination, has passed preparatory examination of YCMOU and first year of Arts stream. She has also completed graduation from the very stream, whereas Respondent No.6 passed HSC first and then graduated from Arts stream. The government in GAD issued a government resolution. Clause (1) thereof reads as under :- “T;k inkaP;k lsokizos’k fu;ekr 10oh @ 12oh (ek/;fed @ mPp ek/;fed) ijh{kk mRrh.kZ vl.ks v’kh fdeku vgZrk fofgr dsysyh vlsy R;k ckcrhr] egkjk”V~ jkT; f’k{k.k eaMGkph ek/;fed o mPp ek/;fed ‘kkykar ijh{kk mRrh.kZ 5 / 8 18-WP-460-24.odt ulysyk ek=] ;’koarjko pOgk.k eqDr fo|kihBkph iwoZ ijh{kk mRrh.kZ gksmu inoh ijh{ksps izFke o”kZ mRrh.kZ >kysyk ok ;’koarjko pOgk.k eqDr fo|kihBkrwu inoh /kkj.k dsysyk mesnokj ik= let.;kr ;kok-” Close reading of the said clause would indicate that the candidate passing preparatory examination and the first year of graduation would be treated equal to that of the candidate who has passed HSC examination. In short, passing of preparatory examination and first year of graduation from the Open University has been given equivalence of HSC. In the constabulary in the State of Maharashtra, the said equivalence was treated and the candidates who have studied from the Open University were treated at par with the candidates who passed 10th or 12th standard examination held by the Secondary or Higher Secondary School Board. 12. In the case in hand, at first, the petitioner has been granted five marks for HSC since her qualification was at par with the same. It was only on the complaint made by Respondent No.6, the matter was reviewed and five marks granted to her were withdrawn. A hearing took place wherein the petitioner and the respondents participated and since five marks given to the petitioner were withdrawn, her appointment was cancelled. 13. In our considered view, when the State of Maharashtra itself treats the candidates, who passed preparatory examination and first year graduation from the Open University, as equal to clearing HSC examination, 6 / 8 18-WP-460-24.odt there ought not to have any discrimination in allotting the marks. A candidate possessing HSC examination certificate and a candidate holding equivalence would be entitled to equal marks. It is true that there may appear some anomaly because a candidate not from Open University, who has done graduation, was required to give an undertaking to have completed three years course post 12th standard examination whereas a candidate from Open University gets equivalence to HSC on passing preparatory examination and first year of graduation. The very candidate, who completes graduation after passing next two years examination would again be entitled for five marks. We, however cannot say anything in that regard, since graduation from Open University and the same degree from any other university are at par, both would be entitled for equal marks. 14. Since the petitioner had qualification equivalent to HSC, five marks granted to her ought not to have been withdrawn. Since the petitioner cleared the examination equivalent to the HSC and then graduation, she was entitled to five marks each on those counts. In view of the same, the order impugned herein terminating the petitioner’s services after withdrawing five marks on account of HSC, needs to be set aside. 15. We have considered the facts in the case of Rita Kumari (supra) relied on by learned counsel for Respondent No.6. The petitioner therein had 7 / 8 18-WP-460-24.odt secured more marks. In view of the same, we find the said authority to have no application to the facts and circumstance of this case. 16. In view of above, the petition is allowed. The petitioner be reinstated in the service. However, we are not inclined to grant her back wages. Appointment of the petitioner was for a limited duration. She may be appointed for the remainder thereof. Since Respondent No.6 has occupied the position, on her request, operation of this order stands stayed for next eight weeks. ( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. ) SSD 8 / 8