1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.174 OF 2010 Murhari s/o Ganpatrao Mehetre .. Petitioner Versus The State of Maharashtra through Secretary, Department of Agriculture, Mantralaya, Mumbai 32 and ors. .. Respondents Mr.Ajay S.Deshpande, Advocate for petitioner Mr.K.J.Ghute Patil, A.G.P. for respondents 1 and 2 Respondent No.3 served Mr.H.A.Joshi, Advocate of respondent No.4 CORAM : P.V.HARDAS AND N.D.DESHPANDE, JJ. DATE : 30th June 2010 PER COURT : 1. This is a petition under Article 226 of the Constitution of India by which the petitioner impugns the order passed by the Aurangabad Bench of the Maharashtra Administrative Tribunal dated 25.8.2009, dismissing the Original Application No.75 of 2009 and the order passed by the Tribunal in Miscellaneous Application No.341 of 2009 filed by the petitioner herein. 2. An advertisement came to be issued some time in 2007 inviting applications for the post of Senior Clerk. From amongst the various posts, which were adversed, two posts were reserved for Ex-servicemen. Out of the two posts, one post was reserved for open category and one 2 was reserved for Other Backward Class candidate. The petitioner, who undoubtedly was not a candidate whose caste is reconginsed as Other Backward Class in Maharashtra, applied to the said post as a candidate belonging to N.T.-C. category, as the caste to which the petitioner belongs was recognised as N.T.-C in the Maharashtra. The petitioner as well as respondent No.3 secured equal marks i.e. 103. The respondent No.3 who was a candidate belonging to the open category came to be appointed to the post which was reserved for open candidates. Since the petitioner was not an Other Backward Class candidate, the petitioner was not appointed and accordingly, intimated by the respondents. The petitioner being thus aggrieved by the rejection of his candidature for the post of Senior Clerk, submitted an application before the Aurangabad Bench of the Maharashtra Administrative Tribunal. In the original application, there was practically no challenge to the appointment of respondent No.3. It was urged by the present petitioner before the Tribunal that the second post which was reserved for Other Backward Class could not have been filled in by a candidate who was not an Ex- serviceman though he may be a candidate belonging to Other Backward Class. Obviously, the fourth respondent who had been appointed as a candidate on the post which was reserved for other backward class, was not joined as a respondent to the original application. The Tribunal, accordingly repelled the contention of the present petitioner and dismissed the original application. Thereafter, the applicant/present petitioner filed an application before the Tribunal seeking recall of the 3 order of the Tribunal. The Tribunal came to the conclusion that a remedy of review was available, but since the limitation which was provided for seeking review had lapsed, the present petitioner has filed this writ petition seeking recall of the said order. This is how the petitioner is before us in the present petition. In the present petition for the first time respondent No.4 has been joined as a respondent whose appointment is challenged before us. 3. Mr.Ajay Deshpande, learned Counsel for the petitioner, by relying upon the judgment of the Supreme Court in Budhia Swain and others v. Gopinath Deb and others, 1999 AIR SCW 1814 has urged before us that the application seeking recall of the order of the Tribunal was practically competent and the Tribunal ought not to have dismissed the said application. 4. In the aforesaid judgment of the Supreme Court, the Supreme Court has made it clear as to in which cases an application seeking recall of an order would be available to a party. Paragraph 8 of the said judgment is reproduced as under : “8. In our opinion a Tribunal or a Court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there 4 has been a mistake of the Court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. Mr.Deshpande, learned Counsel for the petitioner has urged before us that the case of the present petitioner would be covered by (iii) of paragraph 8 where the Supreme Court has stated that there has been a mistake of the Court prejudicing the party. It is urged before us by the learned Counsel for the petitioner that the Tribunal proceeded on a wrong footing that four posts were available for Other Backward Class which was factually incorrect. According to us, the case of the petitioner does not fall in (iii) of paragraph 8 of the aforesaid judgment because it is not a mistake which has prejudiced the petitioner. 5. The petitioner has urged before us that the third respondent and the petitioner had secured equal marks i.e. 103 and since the petitioner was senior in age, the petitioner ought to have been preferred over respondent No.3 in the appointment as a Senior Clerk. The aforesaid fact 5 was not pleaded by the petitioner before the Tribunal nor was it substantially even argued before the Tribunal. This is a ground which is being raised for the first time. As pointed out by us above, there was virtually no challenge to the appointment of respondent No.3 and what was urged by the petitioner before the Tribunal was in respect of the post which was reserved for Other Backward Class and which was filled in by a person who was not an Ex-Serviceman. As pointed out by us above, respondent No.4 was never made party to the original application. In the present petition, it is urged before us that respondent No.4 could not have been legally appointed, as respondent No.4 was not an Ex-Serviceman. The aforesaid challenge was neither pleaded nor was it urged before the Tribunal nor was respondent No.4 joined as party. Respondent No.4 has been joined as a party to this petition for the first time. In that background, we cannot entertain to the challenge of selection of respondent No.4. 6. After giving our anxious consideration to the submissions advanced by the learned Counsel for the parties, according to us no case for interference is made out and consequently, this petition which is sans merit is summarily dismissed as no order as to costs. ( N.D.DESHPANDE, J.) ( P.V.HARDAS, J.) (vvr/174.10wp) 6