1 wp 2014.16.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 2014 OF 2016 Deepanjali D/o Bhujangrao Lomate Age : 40 years, Occ : Service (Associate Professor), R/o C/o : Department of Pharmacology, Shribhausaheb Hire Government Medical College, Chakkarbardi, Dhule, Tal. and Dist. Dhule. ..PETITIONER -VERSUS- 1. The State of Maharashtra Through it’s Secretary, Ministry of Medical Education and Drugs, Mantralaya, Mumbai-32. 2. The Secretary, Ministry of Women and Child Development, Mantralaya, Mumbai-32. 3. The Directorate of Medical Education and Research, Gokuldas Tejpal Hospital Premises, 9th Floor, Mantralaya, Mumbai – 01 4. The Director of Health Services, Directorate of Health Services, `Arogya Bhavan’, St. George’s Hospital, P. D’milo Rd., Mumbai-01 5. Shribhausaheb Hire Government Medical College, (Through its Dean, Department of Pharmacology), Chakkarbardi, Dhule, Tal. and Dist. Dhule. ..RESPONDENTS ... Advocate for the petitioner : Miss. Pradnya Talekar h/f Mr. S.B. Talekar AGP for Respondent- State : Mr. S.R.Yadav Lonikar … 2025:BHC-AUG:4121-DB 2 wp 2014.16.odt CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ. RESERVED ON : 04th FEBRUARY, 2025. PRONOUNCED ON : 13th FEBRUARY, 2025 JUDGMENT (PER SHAILESH P. BRAHME, J.) : . Heard both sides finally at the admission stage considering exigency for the petitioner. 2. The petitioner, who is working as Associate Professor with respondent no.5 – Government Medical College, has approached this Court under Article 226 of the Constitution of India, seeking relief of quashment of clause nos.9 and 10 of the Government Resolution dated 25.05.2001 being unconstitutional and quashment of notice dated 21.01.2015 calling upon her to submit fresh Non-Creamy Layer Certificate (Hereinafter referred to as “NCL Certificate” for sake of brevity and convenience). By way of interim relief, petitioner was granted protection against coercive action for non-submission of NCL certificate. 3. The relevant facts, which are not disputed, are that Government Resolution dated 25.05.2001 was issued which is comprehensive policy for implementation of 30% of reservation for 3 wp 2014.16.odt women in the recruitment. Its clause nos.9 and 10 mandate 30% of reservation for women would not be available for person of creamy layer. The term ‘family’ was also defined. Accordingly advertisement for the recruitment was published on 01.04.2015 for various posts of Professors and Associate Professors. In pursuance of the same, petitioner applied from open category through 30% of reservation for women on the basis of NCL certificate issued to her father Bhujangrao Abasaheb Lomte on 18.05.2015. 4. After following due procedure of law, she was selected as Associate Professor considering her previous experience of four years as Professor, vide order dated 07.10.2015. She was issued with notice dated 21.01.2016 by respondent no.1 calling upon her to submit revised NCL certificate as per Government Resolution dated 25.05.2001 as her earlier NCL was defective. Being aggrieved present petition is filed challenging the relevant clauses of the policy and the notice. 5. It is brought to our notice that during pendency of the petition, though coercive action was not taken against petitioner because of the interim protection, petitioner was deprived of service benefits like increments, benefit of permanency, relieving her from the post of Associate Professor for joining the post of Director, Students 4 wp 2014.16.odt Welfare with the Health University. For non-compliance of the impugned notice, the probation period of petitioner has not been held to be completed satisfactorily. To make out a case of discrimination various Government Resolutions are placed on record. Lastly, pivotal subsequent development of issuance of Government Resolution dated 04.05.2023 is brought on record, thereby repudiating the clause nos.9 and 10 of the Government Resolution dated 25.05.2001. 6. Learned counsel Miss. Pradnya Talekar for petitioner submits that petitioner was in service for four years as Professor. It could not have been possible to produce NCL certificate of herself. Therefore, clause nos.9 and 10 of the Government Resolution dated 25.05.2001 are absurd, arbitrary and unconstitutional. Those clauses violates Article 19 of the Constitution of India and liable to be struck down. The impugned clauses nullifying 30% reservation of the women violates Article 15(3) of the Constitution of India. She would submit that the NCL certificate of her father ought to have been accepted by the authorities. She would further submit that impugned clauses are discriminatory in view of the Government Resolutions dated 17.08.2013, 15.12.2017 and 11.09.2019. 7. Learned counsel for the petitioner would emphatically 5 wp 2014.16.odt submit that in view of Government Resolution dated 4th May, 2023 expressly cancelling clause nos.9 and 10 of Government Resolution dated 25.05.2001, petitioner is bound to succeed as very same clauses are sought to be struck down by her in the petition. She has placed reliance on the judgment of Dr. (Major) Meeta Sahai Vs State of Bihar and others reported in (2019) 20 SCC 17. 8. Per contra, learned A.G.P. Mr. Lonikar repels the submissions of the petitioner on the basis of affidavit-in-reply and sir- rejoinder. He would submit that impugned notice issued to petitioner was in accordance with the extant policy. She did not challenge impugned clauses before participating in the selection process. Without any demour, she submitted to the conditions of the advertisement and selection process and now she is estopped from challenging impugned clauses. It is further submitted that Government Resolution dated 04.05.2023 is not retrospective and no benefit would enure to petitioner. He would further submit that petitioner failed to comply with the notice impugned, and therefore, she is not entitled to further service benefits. 9. We have considered rival submissions of the parties. When the petitioner had applied for recruitment, Government Resolution 6 wp 2014.16.odt dated 25.05.2001 was in force. Petitioner was married. She had produced her father’s NCL certificate instead of her own. It is evident that the petitioner had experience for the post of Associate Professor and she was not eligible for NCL certificate in her name as she was rendering services as Professor for preceding three years. 10. The relevant clauses which are under challenge are as follows :- ¼9½ [kqY;k izoxkZrhy mUur vkf.k izxr O;Drh @dqVqackrhy ¼fdzehysvj½ efgyk lnL;kauk efgykalkBh vlysys 30 % vkj{k.k vuq’ks”k jkg.kkj ukgh- rlsp] ekxkloxhZ; izoxkZrhy brj ekxkloXkZ] HkVD;k tekrh ¼d½ vkf.k HkVD;k ¼M½ ;k izoxkZrhy mUur vkf.k izxr O;Drh vFkok xVkrhy efgyk lnL;kauk efgykaps 30 % vkj{k.k vuq’ks”k jkg.kkj ukgh- ¼10½ [kqY;k izoxkZrhy T;k O;Drhps @dqVaqckps loZ ekxkZuh ;s.kkjs ,dw.k okf”kZd mRiUu lyxP;k ekxhy rhu o”kkZe/;s izR;sd o”khZ : nksu yk[k fdaok R;kis{kk vf/kd vlsy rh O;Drh @dqVaqc vkf.k izxr O;Drh @xV Eg.kwu let.;kr ;sbZy- ;k lnHkkZrhy dqVwackP;k O;k[;se/;s fookfgr efgysP;k ckcrhr irh] iRuh o eqys ;kapk lekos’k jkghy- vkf.k vfookfgr eqyhP;k lanHkkZr vkbZ] oMhy o vfookfgr HkkoaMs ;kapk lekos’k jkghy- 11. Though petitioner has tried to cite various Government Resolutions to make out a case for discrimination and various subsequent events indicating loss caused to her, the latest Government Resolution dated 4th May, 2023 is decisive. We do not find it necessary to go into other niceties and factual details, which are tried to be shown 7 wp 2014.16.odt from rejoinder filed by petitioner. It is expedient to refer to Government Resolution dated 4th May, 2023. Its prologue is as follows :- izLrkouk %& ‘kkldh;] fue’kkldh; o ‘kklu vuqnkfur laLFkkae/khy lsokae/khy Hkjrhe/;s efgykalkBh 30 Vdds lekarj vkj{k.kkph vaeyctko.khckcr efgyk o ckyfodkl foHkkxkdMwu ‘kklu fu.kZ; fnukad 25-05-2001 fuxZfer dj.;kr vkyk vlwu R;ke/;s vkj{k.kklkBhP;k vVh @’krhZ fofgr dj.;kr vkY;k vkgsr- 2- egkjk”Vª yksdlsok vk;ksxkekQZr tkfgjkr dz- 83 @2021 P;k vuq”kaxkus izk/;kid] lektlsoh vkS”k/k oS|d’kkL= inkojhy Hkjrh izfdz;spk fudky fn-29-9-2022 jksth tkghj dj.;kr vkyk vkgs- ;k fudkyke/;s vjk[kho ¼ efgyk½ ;k inkoj xq.koRrk dz-3 ojhy efgyk mesnokjkdMs ‘kklu fu.kZ; fn-25-05-2001 uqlkj vko’;d ukWu fdzehysvj izek.ki= ulY;keqGs R;kaph fuoM u djrk xq.koRrk dz-6 ojhy mesnokjkph fuoM dj.;kr vkyh vkgs- ;k fudkykckcr xq.koRrk dz-3 ojhy mesnokjkdMwu egkjk”Vª yksdlsok vk;ksx rlsp oS|dh; f’k{k.k o vkS”k/kh nzO;s foHkkxkdMs vk{ksi uksanfo.;kr vkyk- ;k vk{ksikP;k vuq”kaxkus izk/;kid] lektlsoh vkS”k/k oS|d’kkL= inkojhy use.kwd izyafcr Bso.;kr vkyh- 12. It is relevant to refer to further clauses of the Government Resolution, which are as under :- ‘kklu fu.kZ; %& [kqY;k izoxkZrhy efgykadjhrk vkjf{kr vlysY;k inkojhy fuoMhdfjrk [kqY;k izoxkZrhy efgyk rlsp loZ ekxkl izoxkZrhy efgykauh ukWu&fdzehysvj izek.ki= lknj dj.;kph vV ek- eaf=eaMGkP;k ekU;rsus ;k ‘kklu fu.kZ;kUo;s jí dj.;kr ;sr vkgs- 2- ‘kkldh;] fue’kkldh; o ‘kklu vuqnkfur laLFkkae/khy lsokae/;s HkjrhlkBh efgykadfjrk 30 VDds tkxk vkjf{kr Bso.;kckcr ‘kklu fu.kZ; fn-25@05@2001 fuxZfer dj.;kr 8 wp 2014.16.odt vkyk vkgs- ;k ‘kklu fu.kZ;ke/;s [kkyhy rjrqnh jnn dj.;kr ;sr vkgsr- 1½ ¼ ,d ½ vkj{k.kkph O;kIrh@ vVh o ‘krhZ e/khy vV dzekad &9 o vV dzekad&10] 2½ ¼ nksu ½ izek.ki=s e/khy laiw.kZ ¼ v ½ & [kqY;k izoxkZrhy efgykalkBh fdzfeysvjps izek.ki= o R;kph rikl.kh] 3½ ¼ nksu ½ izek.ki=s e/khy ¼ d ½ & ekxkloxhZ; mesnokjkaph [kqY;k izoxkZrhy efgykaP;k vkjf{kr inkoj fu;qDrh >kY;kl R;kckcrph izek.ki=s o R;kph rikl.kh e/khy ¼ 1½ e/khy ¼ v ½ ;sFkhy ifjPNsnkrhy ß v’kk efgyk mesnokjkadMwu [kqY;k izoxkZrhy efgykadfjrk fofgr dsysys fdzfeysvjps izek.ki= ns.;kph vko’;drk jkg.kkj ukgh- Þ ] gh rjrwn] 4 ½ ¼ nksu ½ izek.ki=s e/khy ¼ d ½ & ekxkloxhZ; mesnokjkaph [kqY;k izoxkZrhy efgykaP;k vkjf{kr inkoj fu;qDrh >kY;kl R;kckcrph izek.ki=s o R;kph rikl.kh e/khy ¼ 1½ e/khy ¼ c ½ 3 [kqY;k xVkrhy efgykadjhrk vkjf{kr vlysY;k inkoj fuoM >kysY;k efgykaP;k ukWu fdzfeysvj izek.ki=kaph rikl.kh dj.;kckcr ;s.kk&;k vMp.khaps fuokj.k dj.;kP;k vuq”kaxkus ‘kklu fu.kZ; fn- 25-05-2001 e/;s vko’;d rjrqnh dj.;klkBh ‘kklu fu.kZ; fn- 15@12@2017 fuxZfer dj.;kr vkyk vkgs- rlsp] ;k ‘kklu fu.kZ;ke/khy rjrqnhackcr ;s.kk&;k vMp.khaP;k vuq”kaxkus Li”Vhdj.kkRed lwpuk ‘kklu fu.kZ; fn-11-01-2019 vUo;s fuxZfer dj.;kr vkY;k vkgsr- vkrk] [kqY;k xVkrhy efgykadfjrk vkjf{kr vlysY;k inkojhy fuoMhdfjrk ukWu fdzfeysvj izek.ki= lknj dj.;kph vV jí dj.;kr vkyh vlY;kus ‘kklu fu.kZ; fn-15-12- 2017 o ‘kklu fu.kZ; fn – 11@01@2019 ;k ‘kklu fu.kZ;k}kjs fujflr dj.;kr ;sr vkgsr- 13. It is eloquent from Government Resolution dated 04.05.2023 that a conscious decision was taken for revoking clause nos.9 and 10 of Government Resolution dated 25.05.2001. It was noticed that women candidate aspiring for 30% reservation of different 9 wp 2014.16.odt categories were regulated by different parameters. The difficulty faced by them working as Assistant Professor or Associate Professor earning more than Rs.8 Lakh was noticed. In order to eradicate the anomalies and inconsistencies, respondent no.1 came out with a policy of eliminating clause nos.9 and 10 of Government Resolution dated 25.05.2001. No sooner than petitioner received impugned notice, she approached this Court raising challenge to the notice as well as clause nos.9 and 10 of the Government Resolution dated 25.05.2001. By Government Resolution dated 04.05.2023 expressly impugned clauses are revoked by citing elaborate reasons. In view of express decision, we find that the cause of the petitioner has been subserved. 14. The evil contained in clause nos.9 and 10 of the Government Resolution dated 25.05.2001 is sought to be done away with vide Government Resolution dated 04.05.2023. We do not approve the submissions of learned A.G.P. that Government Resolution dated 04.05.2023 is not retrospective. The said policy contains the reasons for to be retrospective and it is focused at hardship caused by impugned conditions. If the arguments of AGP are accepted then that would amount to perpetuating the evil of impugned clauses. That is not the purport of subsequent resolution. 10 wp 2014.16.odt 15. We have gone through the eligibility condition of the advertisement for the post in question. Experience of four years in recognized medical college was the requirement. For married women, the definition of the family was extended to herself, her husband and children. Her parents did not come within its ambit. Petitioner was possessing the experience and obviously she was not eligible for NCL certificate. Not only petitioner but the aspirants claiming horizontal reservation of 30% who are similarly circumstanced would have been ineligible for the NCL certificate. The definition of ‘family’ prescribed in clause no.10 of Government Resolution dated 25.05.2001 is nullifying very object of reservation for women. It is against the spirit of Article 14 of the Constitution of India. It does not stand to the test of reasonableness. 16. Petitioner has relied on the judgment of Surinder Singh Vs. Punjab State Electricity Board, Patiala and others reported in (2014) 15 SCC 76. The words creamy layer were considered by the Supreme Court, but those are in different context. This judgment is not helpful to the petitioner. 17. Petitioner did not challenge impugned clause of Government Resolution or the conditions of advertisement. Without 11 wp 2014.16.odt expressing any demour, she submitted to the selection process. Under normal circumstances, it is not permissible for the candidate, who voluntarily accepts the conditions of recruitment to turn around and challenge conditions. However, this principle of estoppel cannot be made applicable to the facts and circumstances of the present case. Firstly, the petitioner succeeded in making out the case that impugned conditions are absurd and unconstitutional. Those are against the reservation policy. Secondly, in view of supervening event of Government Resolution dated 04.05.2023 revoking impugned clauses of earlier resolution, plea of estoppel is inapplicable. 18. Our attention is adverted to the judgment of Dr. (Major) Meeta Sahai Vs. State of Bihar and others reported in (2019) 20 SCC 17 by learned counsel for the petitioner. In that case, petitioner had participated in the selection process for the post of General Medical Officer. She had work experience of Army Medical Corporation Hospital instead of Government Hospital and she was not allocated marks for work experience. She was unsuccessful in securing the place in merit list. She was unsuccessful before single Judge as well as Division Bench. Then, she went to the Apex Court. A plea of estoppel was raised against her by the respondent. Under those circumstances, following relevant observations are made in para nos.16 and 17 :- 12 wp 2014.16.odt “16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as reiterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584, para 16) “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. 17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate 13 wp 2014.16.odt alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” 19. The ratio laid down is squarely applicable to the facts of the present case. Petitioner could not have challenged the impugned clauses of Government Resolution dated 25.05.2001, had she been not confronted and called upon to furnish revised NCL produced by her. Therefore, the technicality of estoppel would not be impediment for granting relief to the petitioner. 20. Before closing matter, we find it necessary to express that the approach of the respondent in insisting for revised NCL certificate or doubting certificate produced by petitioner is against the object of women empowerment. The horizontal reservation of 30% has emerged as a constitutional policy to safeguard, uplift and empower women in the country. The policies of the State Government are needed to be in tune with the object sought to be achieved by Article 15(3) of the 14 wp 2014.16.odt Constitution of India. Hence, we are of the considered view that the petition is bound to succeed. We pass following order :- ORDER (i) Writ Petition is allowed in terms of prayer clauses “A” and “B”. (ii) The respondents are directed to treat NCL certificate already produced by the petitioner at the time of recruitment as valid and effective and they are directed to disburse all consequential benefits to the petitioner. (iii) Rule is made absolute in above terms. (iv) There shall be no order as to costs. [SHAILESH P. BRAHME, J.] [ S.G. MEHARE, J.] bsb/Feb.25