The central legal point established in the judgment is that the appointment based solely on caste status, when candidates have secured equal marks, is arbitrary and unsustainable. The court emphasized the importance of considering age as a determining factor in such cases, as stipulated in Clause 6(6) of the Government Resolution dated 27.6.2008.

B.P. Dharmadhikari, J.

1. The matter was looked into by this Court on 12.1.2015 and following order came to be passed:

“Shri Naresh Kolhe, learned Counsel for petitioner, Shri N. Khubalkar, learned A.G.P. for respondent no.1, Shri N.L. Jaiswal, learned Counsel for respondent nos. 2 and 4 and Shri A.M. Qazi, learned Counsel for respondent no. 6.

Only question is – If for a vacancy for open category, two candidates have secured equal marks and one of them is belonging to a backward category, how their entitlement to the post can be worked out?

Petitioner as also respondent no. 2 Employer are relying upon Government Resolution dated 27.06.2008 for said purpose.

We direct the respondent no.1 to file appropriate affidavit explaining the position within a period of four weeks from today.

Copy of this order be furnished to learned Counsel for parties to act upon.

List the matter for further consideration on 09.02.2015.”

2. Accordingly, affidavit has been filed on behalf of respondent no.1 by Secretary, General Administration Department, Government of Maharashtra through Collector, Bhandara. We have heard Mr. Naresh Kolhe, learned Advocate for petitioner, Mrs. B.P. Maldhure, learned A.G.P. for respondent nos. 1 & 3, Mr. N.L. Jaiswal, learned Advocate for respondent nos. 2 & 4 and Mr. A.M. Qazi, learned Advocate for respondent nos. 5 & 6 finally by making Rule returnable forthwith.

3. The fact that the petitioner and respondent no.5 have secured equal marks in 2013 recruitment process for the post of Junior Assistant (Accounts) undertaken by respondent nos. 3 & 4 is not in dispute. The petitioner belongs to Open Category while the respondent no. 5 belongs to Special Backward Class. In list of candidates for document verification, published on 24.6.2013 name of petitioner as also respondent no.5 are shown in Open2 category.

Both of them have secured 172.5 marks as per list published on 16.6.2013.

4. However, while preparing waiting list petitioner has been placed at serial no.1 therein and appointment has been given to respondent no.5.

5. In the backdrop of question as noted by this Court in its order dated 12.1.2015 reproduced supra, the only question is whether respondent no.5 could have been placed above petitioner merely because he happens to be a S.B.C. candidate?

6. The learned Counsel for petitioner submits that roster was already applied and reserved candidates have already been selected and appointed. The candidature of respondent no.5 has been considered in open category along with petitioner and as such, there was no question of again looking into his caste while filling in open vacancy. He has invited our attention to Government Resolution dated 27.6.2008 to urge that as the petitioner is more in age, he needs to be appointed.

7. Mrs. B.P. Maldhure, learned A.G.P. for respondent nos. 1 & 3, Mr. N.L. Jaiswal, learned Advocate for respondent nos. 2 & 4 and Mr. A.M. Qazi, learned Advocate for respondent nos. 5 & 6, dispute this. They pointed out that though technically petitioner and respondent no.5 have been accepted as Open category candidates and their entitlement is being considered to fill in open vacancy, as both of them have secured same marks, for the purpose of said open category, the status of respondent no.5 as S.B.C. candidate has been given weightage. They also rely upon the very same Government Resolution dated 27.6.2008.

8. In addition, Mr. A.M. Qazi, learned Advocate points out that copy of reply placed on record by State Government after orders of this Court dated 12.1.2015 is not served upon him. He further adds that if respondent no.5 cannot be selected against open category post, his entitlement to occupy reserved category post needs to be evaluated. He submits that respondent no.5 appears to have secured highest marks and, therefore, is being considered against open category vacancy.

9. In so far as entitlement of respondent no.5 to be considered against reserved post is concerned, material on record is not suffi