Smita Anand Tiwari vs The State Of Maharashtra And Ors

2026:BHC-AS:20481-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition No. 12417 of 2015
With
Interim Application (st) No.13283 of 2024

Dr. Smita Anand Tiwari … Petitioner
V/s.
The State of Maharashtra
through the Commissioner, Women
and Child Development Department,
Pune and others … Respondents.
Mr. Mihir Desai, Sr. Advocate a/w. Ms. Sanskruti Yagnik and Mr.
Moosa Izzat for the petitioner.
Mr. B.V.Samant, Addl.G.P. a/w. Smt. G.R. Raghuwanshi, AGP for
respondent Nos.1 to 3.
Mr. Anoop Patil a/aw. Mr. Darpan Gupta for respondent No.4.
CORAM : M.S. KARNIK &
S.M. MODAK, JJ.
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DATE : 28 April 2026.
ORAL JUDGMENT: (Per M.S. Karnik, J)
1. Heard Mr. Mihir Desai, learned Senior Advocate appearing for
Digitally
signed by
LATA
SUNIL
PANJWANI
Date:
2026.04.29
18:58:01
+0530
LATA
SUNIL
PANJWANI
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
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(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
st th
Resolutions dated 1 August 1997 and 25 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.
nd
Government Medical College, Pune on 22 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)
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Certificate by Respondent No.2 on 20 May 2015. Based on this
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reservation eligibility, the petitioner was subsequently appointed as
an Associate Professor (Pharmacology) at Grant Govt. Medical
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College, Mumbai, on 9 October 2015. However, following a
complaint by respondent No.4, respondent No.2 passed the
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impugned order dated 30 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.
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4. During the pendency of this petition, on 4 May 2023, the
State of Maharashtra, Women and Child Development Department,
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Mumbai issued a Government Resolution dated 25 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
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13 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
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13 February 2025. The petitioner and Dr. Deepanjali Lomate are
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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
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approve the submissions of learned AGP that G.R. dated 4 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
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appointment order dated 7 October 2015 which is on page-22 of
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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
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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.
(S.M.MODAK,J.) (M.S.KARNIK, J.)
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