1 5960.10 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5960 OF 2010 Shri.Mohan Amarsing Titore ...Petitioner Versus The State of Maharashtra & Ors. ...Respondents ...... Mr.N.V.Bandiwadekar for Petitioner. Ms.Sandhya Bhende, A.G.P. for Respondent Nos.1 and 2. ...... CORAM:- A.M.KHANWILKAR AND R.Y.GANOO, JJ. DATED:- JUNE 9, 2011. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mrs.Bhende, A.G.P. waives notice for respondents 1 and 2. Respondents 3 and 4 inspite of service have not chosen to appear. For the nature of order that we propose to pass, the absence of respondents 3 and 4 will not be an impediment. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 2 5960.10 4. The grievance in this Petition is that although the petitioner was appointed against the open category, the Appropriate Authority has not given approval to his appointment on the ground that at the relevant time, there was still backlog of reservation. The petitioner is relying on the decision in the case of Machchindranath Gopal Thorat v. The State of Maharashtra in Writ Petition No.9239 of 2009 and companion cases decided on November 13, 2009, which order was subsequently corrected on 20th November, 2009. 5. According to the petitioner, the principle stated in the said decision applies on all fours to the case of the petitioner, in that, the petitioner was admittedly appointed against open category. According to the petitioner, at the relevant time, the reservation quota was specified as 34%. On that basis, it is argued if the said reservation quota of 34% is to be kept in mind, at the relevant time, there would be vacancy for open post. The petitioner has given the computation in paragraph 10 of the Petition in this behalf. It is on that assertion, the petitioner submits that the Appropriate Authority committed manifest error in not granting approval to the petitioner. 3 5960.10 6. We are in agreement with the submission made by the petitioner that if the facts stated by the petitioner are to be accepted as it is, the case of the petitioner would be governed by the principle stated in the decision in Machchindranath’s case (supra). In that event, the Appropriate Authority may have to reckon the vacant open post on the assumption of reservation of 34% specified at the relevant point of time and if that there was vacancy for open category, the question of declining approval to the appointment of the petitioner would not arise. 7. For the aforesaid reason, we dispose of this Petition by relegating the petitioner before the respondent No.2, who is the competent Authority to examine this factual aspect, by setting aside the impugned decision dated 30th April, 2010. We direct the said Authority to examine the matter in the light of the principle stated in the decision of this Court in Machchindranath’s case (supra) and pass order or issue direction as may be necessary in the fact situation of the present case. That be done as expeditiously as possible, in any case, within six weeks from today. All questions that may arise for consideration of the respondent No.2, the competent Authority, are left open to be decided on its own merits. 4 5960.10 8. Needless to observe that the respondent No.2 may decide the proceedings after giving due opportunity to the petitioner and the management or any other person likely to be affected by its decision. (R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)