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. -------- Shri. A.D. Sugdare, Advocate, for petitioner. Shri. V.D. Rakh, Assistant Government Pleader, for respondents. -------- 2 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 3 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. 4 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. 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. 5 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. 6 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, 7 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