Bombay High Court
* Shivaji vs The State Of Maharashtra on 30 November, 2010
Bench: Naresh H. Patil, Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.6561 Of 2009
* Shivaji S/o Ramrao Pawar, ]
Age 38 years, ]
Occupation Nil, ]
R/o Kankori, ]
Taluka Gangapur, ]
District Aurangabad. ] .. Petitioner
Versus
1) The State of Maharashtra, ]
Through the Secretary, ]
Department of Technical ]
Education, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Deputy Director, ]
Vocational Education and ]
Training, Bhatkal Gate, ]
Post Box No.77, ]
Aurangabad. ]
]
3) The Regional Selection ]
Committee, ]
Through the Chairman, ]
District Vocational ]
Education Training, ]
ITI, Near Vedant Nagar, ]
Aurangabad. ] ... Respondents.
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Shri. A.D. Sugdare, Advocate, for petitioner.
Shri. V.D. Rakh, Assistant Government Pleader, for
respondents.
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CORAM: NARESH H PATIL &
SHRIHARI P DAVARE, JJ.
DATE: 30th NOVEMBER 2010
ORAL JUDGMENT (PER NARESH H PATIL, J.) :
1) Heard learned counsel for the parties.
2)
Rule, made returnable forthwith.
3) The petitioner claims that he is nominee of
freedom fighter namely Dhondiram Tryambak Kale. The
freedom fighter Dhondiram Kale died in the year 1970.
Vide clause 4 of government Circular dated 4th March
1991 wife of deceased freedom fighter, namely Asrabai was
entitled to nominate a person for the purpose of
employment. Asrabai nominated Rajendra Govind Wable on
11-3-1992, who happened to be son of sister of deceased
Dhondiram. Asrabai thereafter decided to cancel
nomination issued in favour of Rajendra by nominating
present petitioner namely Shivaji Ramrao Pawar.
Accordingly, the petitioner was nominated by Asrabai on
29-11-2004. The State Government by a communication
dated 22nd November 2004 addressed to the Collector,
Aurangabad, granted approval to the change in nomination
by Asrabai by way of last opportunity and as an exceptional
case.
4) The petitioner filed application consequent to
advertisement issued by the office of Deputy Director of
Vocational Training dated 20th September 2008.
According to the conditions stipulated in the advertisement
the applicant's age ought to be minimum 18 years and
ought not to be more than 33 years on the date of
publication of the advertisement.
5) The petitioner accordingly applied for the post
of Instructor in Tool and Die Maker. The application of the
petitioner came to be rejected by the Scrutiny Committee
on the ground that the petitioner was over age and there
was no age relaxation in cases of nominees of freedom
fighter.
6) The petitioner filed Original Application No.76
of 2009 before the Maharashtra Administrative Tribunal,
Aurangabad against the said order / communication. By
an order dated 12-8-2009 the Tribunal dismissed the
Original Application. The Tribunal considered the case on
two grounds. Firstly on the ground of age limit and
secondly in respect of competency of Asrabai to nominate
the petitioner.ig
7) During the course of hearing, learned counsel
for the petitioner submitted that on 6th October 2010 the
State Government had issued a Government Resolution
wherein the age limit for nominees of freedom fighters was
increased up to 45 years. In the light of the Government
Resolution the petitioner's first grievance is redressed in
respect of age relaxation.
8) In regard to second ground learned counsel for
the petitioner submits that, in the light of the Government
Circular dated 4th March 1991 and the State Government's
approval dated 22nd November 2004 the petitioner's
nomination was legal and proper.
9) The learned Assistant Government Pleader
appearing for the respondents submits that, the view of
the Tribunal in respect of age relaxation was incorrect as
under the Government Circular dated 4th March 1991 the
relaxation in age for 5 years was permissible in cases of
freedom fighters and not in the cases of their nominees. As
regards the second aspect of the matter, the learned
Assistant Government Pleader submits that, appointment
of suitable candidate must have been made to the post
against which the petitioner applied for employment and,
therefore, at this stage petitioner has no cause of action for
challenging the impugned order passed by the Tribunal.
10) The learned counsel for the petitioner submits
that, the intervenor who opposed the Original Application
before the Tribunal was appointed to the post. Therefore
the petitioner now does not want to reopen that issue. The
petitioner's prayer is that in future if vacancy arises then
petitioner must be in a position to apply for particular post.
As the impugned order would come in the way of the
petitioner, petitioner prays for necessary observations and
directions in this regard.
11) We have perused the Government Circulars,
Government Resolution dated 6th October 2010, necessary
communication made by the State Government to the
Collector and nomination form in the prescribed proforma
wherein Asrabai nominated the present petitioner. We
have perused the impugned order of the Tribunal.
12) We are satisfied that the petitioner fulfills
condition in respect of candidate falling under category of
freedom fighter's nominee. The Tribunal observed that,
"petitioner being son of sister of freedom fighter, does not
feed any of the character, which are entitled to the
nomination by the freedom fighter for the purpose of
appointment to the Class III and Class IV ."
Clause 5 of Government Circular dated 4th March 1991
refers to one more category of nominee of freedom fighter
i.e. son of sister of freedom fighter.
13) In this view of the matter we find that there is
factual error in appreciation of the facts by the Tribunal
which is apparent on the face of record. We are, therefore,
inclined to allow the prayer of the petitioner in respect of
entitlement to participate in the recruitment which would
be undertaken by the State agencies in future as a nominee
of freedom fighter. In the light of Government Resolution
dated 6th October 2010 the petitioner would be entitled to
apply as a nominee of freedom fighter as the age limit is
increased up to 45 years.
14)
We hold that the petitioner is entitled to apply
and participate in recruitment process in future as
nominee of freedom fighter subject to petitioner's fulfilling
other eligibility conditions as prescribed in the
advertisement.
15) The impugned order dated 12th August
2009passed by the Maharashtra Administrative Tribunal,
Aurangabad, in Original Application No.76 of 2009 is
quashed and set aside. Rule is made absolute in the above
terms with no order as to costs.
Sd/- Sd/-
(SHRIHARI P DAVARE, J.) (NARESH H PATIL, J.)
rsl/ wp.6561.09
