Oral Judgment:

M.S. Karnik, J.

1. Heard Mr. Mihir Desai, learned Senior Advocate appearing for the petitioner, Mr. Samant, learned Additional Government Pleader for respondent Nos.1 to 3 and Mr. Patil appearing for respondent No.4.

2. The petitioner seeks reliefs in terms of prayer clauses (a) and (b) which reads thus:

                   (a) That this Hon’ble Court may be pleased to issue a Writ of Certiorari or any other direction or order in the nature of Writ of Certiorari calling for the records and proceedings in the matter of issue and cancellation of Non-Creamy Layer Certificate by the Respondent No.2 and after scrutiny of the records and proceedings and the relevant Government Resolutions to quash and set aside the impugned order bearing No. Rohayo/Kavi/907/2015, Pune-2 dated 30/10/2015.

                   (b) That this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India ordering and directing the Respondents by themselves, their agents, servants and/or officers, subordinates and/or successors in office to forthwith withdraw and rescind the impugned Government Resolutions dated 1st August 1997 and 25th May 2001;

3. The facts in brief are as follows.

The petitioner is a highly qualified professional residing in Pune. The petitioner was regularised as a Lecturer at B.J. Government Medical College, Pune on 22nd January 2009. Pursuant to the State’s policy of providing 30% reservation for women, the petitioner applied for and was issued a Non-Creamy Layer (NCL) Certificate by Respondent No.2 on 20th May 2015. Based on this reservation eligibility, the petitioner was subsequently appointed as an Associate Professor (Pharmacology) at Grant Govt. Medical College, Mumbai, on 9th October 2015. However, following a complaint by respondent No.4, respondent No.2 passed the impugned order dated 30th October 2015, cancelling the petitioner’s NCL certificate without granting her an opportunity of being heard. This was cancelled on the basis that for computing income for considering non creamy layer certificate the applicant’s own income and not just parental income has to be taken into account. In the submission of learned Senior Advocate for the petitioner, such requirement is not there for NCL granted to OBC candidates. The cancellation of the NCL certificate is under challenge in this petition.

4. During the pendency of this petition, on 4th May 2023, the State of Maharashtra, Women and Child Development Department, Mumbai issued a Government Resolution dated 25th May 2001 regarding requirement of a Non-Creamy Layer Certificate.

5. Learned counsel for the petitioner relied upon the decision of this Court in the case of Deepanjali D/o Bhujangrao Lomate v/s. The State of Maharashtra decided by Aurangabad Bench of this Court on 13th February 2025 in Writ Petition No.2014/2016.

6. With the assistance of Mr. Desai, learned Senior Advocate and Mr. Samant, learned AGP, we have carefully perused the order dated 13th February 2025. The petitioner and Dr. Deepanjali Lomate are absolutely similarly situated. This Court in para-14 of the order has observed thus:

                   “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.”

7. Thus, their Lordships in Deepanjali Lomate’s case did not approve the submissions of learned AGP that G.R. dated 4th May 2023 is not retrospective. It is in such circumstances Dr. Deepanjali Lomate was granted the benefit of the G.R. retrospectively. The decision in Deepanjali Lomate would cover the present case as well as the facts are identical. The only distinction which is sought to be drawn is there was stay operating in favour of Dr. Deepanjali Lomate and she continued to get her promotions. So far as the present petitioner is concerned, the stay initially granted was vacated.

8. Learned counsel for the petitioner invited our attention to the appointment order dated 7th October 2015 which is on page-22 of paper-book which reveals that the petitioner’s name is on Sr. No.5 and by the very same appointment order, Dr. Dipanjali Bhujangrao Sangde (before marriage Deepanjali Bhujangrao Lomate) were appointed as Associate Professors on the terms and conditions mentioned therein.

9. It is submitted by learned AGP that as a consequence of impugned order, respondent No.4 was appointed in place of petitioner as an Associate Professor. After respondent No.4 was appointed as a result of vacating the stay which was earlier granted, the petitioner continued to work in the reverted post as an Assistant Professor. Learned AGP submits that thus the petitioner stands on a different footing than the respondent No.4 as Deepanjali Lomate was protected by an interim order.

10. Learned counsel for respondent No.4 supported the submissions of learned AGP and submitted that so far as respondent No.4 is concerned, since he has been working from 2015, respondent No.4 should not be disturbed.

11. In our opinion, the decision in Deepanjali Lomate’s case (supra) squarely covers the petitioner's case. Learned AGP does not dispute this position. The respondents in such circumstances were not justified in depriving the petitioner the benefits of the post of Associate Professor in the manner sought to be done by the impugned order. It may be that the petitioner failed to secure any interim-relief but in the ultimate analysis the petitioner has succeeded. The petitioner cannot be deprived of what is rightfully due to her as a consequence of the order passed by the respondents which has to be set aside. That the petitioner failed to secure continuation of the interim relief earlier granted cannot operate to the petitioner’s prejudice.

12. We, therefore, direct that the petitioner be restored forthwith to her original post of Associate Professor from the date she was deprived of her post with all consequential benefits including promotion due to her from time to time with all consequential benefits. Undoubtedly, the respondents should then consider the case of the petitioner for promotions which she was otherwise entitled to from time to time in accordance with the rules. The petitioner’s case be considered expeditiously and in any case within a period of 4 months from today.

13. The Petition is allowed in terms of prayer clauses (a) and (b) and is disposed of accordingly. Pending Interim Application, if any, also stands disposed of.