1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.3244 OF 2010 Vaibhav s/o Mohiniraj Joshi, Age 34 years, Occ. Service, R/o E/1, New Mukundnagar, Gajanan Housing Society, Ahmednagar, Taluka and District Ahmednagar ... PETITIONER VERSUS 1. The State of Maharashtra, through its Principal Secretary, Urban Development Department, Maharashtra State, Mantralaya, Mumbai – 32. (Copy to be served on Government Pleader, High Court of Judicature of Bombay, Bench at Aurangabad) 2. The Commissioner, Ahmednagar Municipal Corporation, Ahmednagar. 3. Ajay s/o Rangnath Satpute, Age 38 years, Occ. Service, R/o 4498, Near Maruti Temple, Tange Galli, Ahmednagar, Taluka and District Ahmednagar ... RESPONDENTS ..... Shri R.N. Dhorde, Advocate holding for Shri P.S. Dighe, Advocate for the petitioner Shri S.K. Tambe, A.G.P. for respondent No.1. Shri S.S. Jadhavar, Advocate for respondent No.3. ..... 2 CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATED: 19th July, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.): 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2. The petitioner herein was respondent No.6 in Writ Petition No.6033/2008, which came to be filed by one Ajay Rangnath Satpute, who is respondent No.3 to the present petition. The aforesaid petition had been filed by the petitioner challenging the selection of respondent No.5 to the said writ petition as also the selection of the present petitioner, to the post of Assistant Town Planner. The Division Bench of this Court ultimately came to the conclusion that one Prabhune who had been selected against the post reserved for Scheduled Tribe candidates, ought to be considered as a candidate from open category as he had secured more marks than other selected candidates. The Division Bench of this Court to which one of us (N.D. Deshpande, J.) was a party, relied upon the dictum laid down by the Supreme Court in Indra Sawhney Vs. Union of India, reported in AIR 1993 SC 477. The 3 Division Bench, therefore, by its judgment dated 1.10.2009, allowed Writ Petition No.6033/2008 and made rule absolute in terms of prayer clauses B-1 & C to the petition. As a result of the judgment of the Division Bench of this Court, adverted to above, the order of termination came to be issued to the petitioner, dated 3.4.2010. The aforesaid order was necessitated on account of the fact that the present respondent No.3 was directed to be appointed in place of the petitioner to the post of Assistant Town Planner. 3. The present petition has been filed by the petitioner challenging the order of termination and it is now contended before us by Shri R.N. Dhorde, learned counsel for the petitioner that, perusal of the affidavit-in-reply filed by respondent No.3 would indicate that respondent No.3 is not interested in joining the post to which he was ordered to be appointed by the Division Bench of this Court. It appears from perusal of the affidavit-in-reply that respondent No.3 came to be selected as Civil Engineering Assistant in the Public Works Department of the Government of Maharashtra and has chosen not to join the present post of Assistant Town Planner in the respondent Corporation. It is therefore, the submission of the learned counsel for the petitioner that the post which was held by the petitioner and the post to which subsequently the present respondent No.3 came to be 4 selected, is lying vacant on account of the fact that the respondent No. 3 is not interested in joining the said post. It is further urged before us that the order terminating the services of the petitioner came to be issued principally on the ground of the judgment of the Division Bench of this Court. It is, therefore, urged before us that a writ of mandamus be issued directing the respondents to appoint the petitioner to the said post which had been held earlier by the petitioner, by quashing the order of termination. 4. The judgment of the Division Bench of this Court was challenged before the Supreme Court by filing a Special Leave Petition, which came to be dismissed. The order of termination has been issued principally on the ground that the Division Bench of this Court had set aside the selection of the present petitioner. It is no doubt true that the post which had been originally held by the petitioner is even now lying vacant on account of the fact that respondent No.3 has expressed his disinclination to join the said post. However, such a writ as is prayed for by the petitioner cannot be issued. We may at the most direct the respondents to consider appointing the petitioner on that vacant post and if necessary, by withdrawing his termination order since the petitioner had worked on the said post earlier till his selection came to be quashed and set aside 5 by the judgment of this Court. Since the respondent No.3 is not interested in joining the post, the respondent/ Corporation may consider appointing the petitioner to that post. 5. Rule is thus made absolute on above terms with no order as to costs. (N.D. DESHPANDE, J.) (P.V. HARDAS, J.)