IMPORTANT POINT
Candidates from reserved categories can claim horizontal reservations in open categories based on merit unless explicitly prohibited by law or policy.

JUDGMENT/ORDER

SHAILESH P.BRAHME, J. - Rule. Rule is made returnable forthwith. With the consent of the parties heard learned counsel for final disposal at admission stage.

2. The petitioner is challenging judgment and order dtd. 2/3/2016, passed by learned Members of the Administrative Tribunal, Mumbai bench at Aurangabad dismissing her Original Application No. 744 of 2015. The petitioner is aggrieved by exclusion of her name from the selection process for the post of Maharashtra Engineer (Civil Service) Group - A. She has also prayed for the directions to recommend her name as per merit from the open category and simultaneously to cancel the recommendations of the respondent Nos. 3 to 6.

3. The petitioner had filed Original Application No. 744 of 2015 with following contentions :

<WXY>i. She belongs to Other Backward Class (OBC) category. She was holding requisite educational qualification for the post advertised. The respondent no. 3 to 6 are the successful recommended candidates from the open category having less marks than the petitioner.

ii. The respondent No. 2 issued an advertisement No. 62 of 2018 on 13/9/2013 for recruitment of 682 posts. The advertisement provided for horizontal reservation. The petitioner had applied for Maharashtra Engineering (Civil Service) Group A. On 30/10/2013 the preliminary Exam was conducted. She was successful.

iii. On 19/12/2013 advertisement for mains was published. Petitioner applied for it. She was successful in the written test. She was called for interview.

iv. On 23/10/2015 the result was declared. She scored 242 marks with remark not recommended. The respondent nos. 3 to 6 were recommended, though they were having lesser marks.

v. She prayed for the direction that the respondent No. 2 ought to have recommended her having scored more marks than the recommended candidates from OBC and has been claiming horizontal reservation.</WXY>

4. The respondent No. 2 appeared before the Tribunal and contested the application on the ground that the petitioner had scored less marks in her category. She was not eligible for the recommendation. As per government circular dtd. 13/8/2014, the candidate from other vertical reservation category was not eligible to be considered for the post reserved for open female category. The respondent no. 6 also contested the matter by filing separate reply. A reliance was placed upon the decision rendered by the Tribunal at Aurangabad in Irfan Mustafa Shaikh Vs. State of Maharashtra (O. A. No. 301 of 2009 dtd. 26/8/2009). It was stated that the said decision was confirmed by High Court and Supreme Court also. She supported the reply of respondent No. 2.

5. The learned Members of the Tribunal relied upon the decision in case of Irfan Mustafa Shaikh Vs. State of Maharashtra (supra) and the circular dtd. 13/8/2014 to hold that only candidates from the open category and no other candidates like SC, ST, OBC, etc. would be entitled to horizontal reservation in open category. A finding was recorded by the Tribunal that horizontal reservation in open category can be filled up only from the candidates applying from open and open is one of the vertical categories for the purposes of horizontal reservation along with other categories like SC, ST and OBC. Thus, the original application was dismissed.

6. The petitioner has preferred this writ petition on 10/10/2019 challenging the judgment and order dtd. 2/3/2016. The petitioner has raised grounds that she had applied from OBC category. Being female which is horizontal reservation, she was entitled to be considered from unreserved category. The migration or the interchangeability was permissible which was overlooked. She was more meritorious than the selected candidates. It is further submitted that the circular dtd. 13/8/2014 was not applicable because the selection process had already commenced and the circular would operate prospectively.

7. The delay and laches are sought to be explained by relying upon the judgment of this Court in