B.R. GAVAI, J.

1. Rule. Rule is made returnable forthwith and by consent, the petition is taken up for hearing.

2. The petitioner has approached this Court being aggrieved by the order passed by the learned Maharashtra Administrative Tribunal ('MAT') in O.A. No. 119 of 2016, vide which the learned MAT has rejected the said Original Application filed by the present petitioner.

3. The present petitioner had filed two petitions challenging the advertisement issued by the Maharashtra Public Service Commission ('MPSC'); viz., (i) advertisement dated 17th March 2015 to fill vacancy to the post of Assistant Commissioner/Project Officer- Grade-II, Group -B; and (ii) advertisement dated 31st March 2015 to fill vacancy to the post of Assistant Commissioner/Project Officer-Grade-II, Gr-A.

4. Since the petitioner has withdrawn Writ Petition No.5396 of 2016 regarding the post of Assistant Commissioner/Project Officer-Grade-II, GrA, we are not going to refer the facts with regard to the said challenge.

5. In so far as advertisement regarding the post of Assistant Commissioner/Project Officer- Grade-II, Group-B is concerned, out of total 20 posts, 11 posts were reserved for Open Category, 2 posts for Scheduled Caste, 1 post for Scheduled Tribe, 4 posts for Other Backward Class (OBC), 1 post each was reserved for VJ-A and N.T.-B categories and 1 post was reserved for physically challenged person. The advertisement also provided for 4 posts for horizontal reservation for Open Women Category, 1 post each was earmarked for Scheduled Caste and OBC woman, respectively. The applicant, who is the petitioner herein, is a woman and belongs to N.T. (C.) category. In the relevant column, the applicant has also stated that she would like to be considered from Open Category. The applicant has also paid fees for open candidate.

6. Xxx

7. The applicant had approached the learned Tribunal contending that the action of respondent No.1-MPSC, not permitting the petitioner to apply from Open Female Category was not in accordance with law.

8. The learned Tribunal, relying on the judgment of the Hon'ble Apex Court in case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors., (2007) 8 SCC 785 held that the action of the respondent No.1-MPSC in respect of the applicant, who belong to N.T.(C.) category, in not permitting the applicant to apply from the quota against 'Open Women Category' could not be faulted with and as such the learned Tribunal had rejected the Original Application. Being aggrieved by the said order, the present petition is filed.

9. We have heard Shri Sagar Ghogare, learned counsel for the petitioner/applicant and Shri Ashish Kamath, learned counsel appearing on behalf of respondent No.1-MPSC and Shri Bandiwadekar, learned counsel appearing on behalf of respondent No.4-who is the last woman selected from 'Open Women Category'.

10. Shri Sagar Ghogare, learned counsel for the petitioner submitted that the learned Tribunal has erred in holding that the petitioner, who belong to N.T.(C.) category, is not entitled to compete against the 'Open Women Category' category. The counsel submitted that the view taken by the learned Tribunal is totally contrary to the law, as laid down by the Hon'ble Apex Court in the case of Indra Sawhney & Others Vs. Union of India, (1992) Supp3 SCC 215, so also in the judgment of a Division Bench of this Court in case of Asha D/o. Ramnath Gholap Vs. The President, District Selection Committee & Ors., (2016) 3 AIRBomR 376 and a judgment of a Division Bench (Nagpur Bench) of this Court in Kanchan Vishwanath Jagtap and Another Vs. Maharashtra Administrative Tribunal and Others, (2016) 1 MhLJ 934.

11. Shri Kamath, learned counsel for respondent No.1 and Shri Bandiwadekar, learned counsel for respondent No.5, on the contrary, submit that the view taken by the learned Tribunal is in consonance with the law laid down by the Apex Court in the case of Rajesh Kumar Daria (Supra). It is further submitted that a Division B