WP 9289/11 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9289/2011 Maharashtra Public Service Commission, through its Deputy Secretary, Smt.Nilima S. Patwardhan, having its office at Bank of India Building, 3rd Floor, M.G. Road, Fort, Mumbai - 400 001. ...Petitioner.. Versus 1] Mohammad Raza Khan, aged 43 yrs., occu.Architect, r/o at P.W. Quarter No.43, Opp.Gurudwara, Osmanpura, Aurangabad - 431 005. 2] The State of Maharashtra, through its Secretary, Urban Development Department, Mantralaya, Mumbai. ...Respondents... ..... Shri P.M. Shah, Senior Counsel i/b Shri Mukul S.Kulkarni, Advocate for petitioner. Shri S.B. Talekar, Advocate for respondent no.1. Shri K.G. Patil, AGP for respondent no.2. ..... CORAM: B.R. GAVAI & M.T. JOSHI, JJ. DATE: 20.12.2011 PER COURT : 1] Heard learned counsel for the parties. 2] The petitioner - MPSC assails the order dated 7.9.2011. Vide the said order, WP 9289/11 - 2 - the learned Maharashtra Administrative Tribunal has directed the petitioner - Commission to declare the result of the petitioner for the post for which he had applied and was interviewed. 3] There have been various rounds of litigation between the petitioner and the respondent no.1. In pursuance to the advertisements issued by the petitioner in 2008 for the post of Deputy Director of Town Planning Group A reserved for scheduled tribe, the respondent no.1 - candidate had applied. Relying on the Rules, the respondent no.1 - candidate had requested for relaxation of the age. Since that was not granted, he approached the learned Tribunal. The learned Tribunal had allowed the Original Application of the respondent no.1. 4] Again in the year 2011, the petitioner - MPSC had invited applications for the same post. Undisputedly, only two applications were received by the MPSC from the category of scheduled tribe, out of which, one was that of the respondent no.1. Again a request by the respondent no.1 - candidate for relaxation of age was rejected by the MPSC, which compelled the respondent no.1 - candidate to approach the learned Tribunal. The learned Tribunal, by way of interim order, directed to conduct interview of the respondent no.1 - candidate. At the stage of final hearing, the Original Application came to be allowed and the result of the respondent no.1 - candidate has been directed to be declared. WP 9289/11 - 3 - 5] Shri P.M. Shah, the learned Senior Counsel, submits that the learned Tribunal has erred in repeatedly holding that the petitioner is entitled to relaxation of upper age limit. He further submits that unless a candidate possesses exceptional qualification, the upper age limit cannot be relaxed. 6] Shri S.B. Talekar, the learned counsel appearing on behalf of the respondent no.1 - candidate, on the contrary, submits that the respondent no.1 does possess an exceptional qualification inasmuch as he possesses Master's degree from Indian Institute of Town Planning and Architecture. 7] The learned Tribunal in its earlier order dated 21.1.2010 had elaborately discussed as to how the respondent no.1-candidate possesses the exceptional qualification. It is undisputed that the requisite qualification provided by the petitioner is a Diploma in Town Planning, whereas the petitioner possesses the Master's degree from a premier institute of town planning and architecture. 8] Apart from that, it is to be noted that the post in question is reserved for scheduled tribe. The post is lying vacant since 1983. Even in pursuance to the present advertisement, there were only two applicants from the scheduled tribe category. 9] In that view of the matter, we had requested Shri Mukul S. Kulkarni, who had WP 9289/11 - 4 - appeared on the last date, to produce the result sheet. Accordingly, today the result is produced in a sealed envelope. We have perused the result sheet. Out of two candidates from S.T. category, another candidate namely Aakash Tikaram Bagul has secured only 30 marks, whereas the respondent no.1 has secured 41 marks. Shri P.M. Shah, the learned Senior Counsel, has fairly conceded that the cut-off determined by the MPSC for the present interviews is of 40 marks. When due to non-availability of candidate from S.T. category, the post is lying vacant from 1983 and when an eligible candidate and that too who possesses a specialized qualification from the scheduled tribe category is available, we see no reason as to why he should be denied the appointment to the said post. 10] If the petition is to be entertained, it will again perpetuate the injustice to the scheduled tribe candidate community inasmuch as for eternity, the post would lie vacant on account of non-availability of candidate from that category. 11] Apart from that, we have already discussed hereinabove that the learned Tribunal in its order dated 1.7.2009 had itself elaborately discussed as to how the respondent no.1 - candidate can be considered to possess an exceptional qualification so as to entitle him for age relaxation. It can clearly be seen that the learned Tribunal has not generalized the issue of age relaxation and has only WP 9289/11 - 5 - restricted it to the facts of the present case since the respondent no.1 - candidate was found to possess exceptional qualification. In any case, no Court including the Maharashtra Administrative Tribunal or this Court can frame any general policy so as to guide the discretion, which is vested in the MPSC to exercise the powers regarding relaxation of upper age limit. It shall be always open for the MPSC to determine as to whether in the particular facts and circumstances of the case, a case is made out for age relaxation or not. 12] In view of above position, we are not inclined to entertain the petition. The petition is rejected. The result sheet is returned to Shri Mukul S. Kulkarni, the learned counsel appearing on behalf of the petitioner. Since even according to the petitioner, the cut-off marks are 40 and since the respondent no.1 - candidate has received 41 marks, we direct the petitioner to recommend his selection to the State Government for appointment as Deputy Director, Town Planning Group A, within a period of four weeks from today. On the State Government receiving the recommendation from the MPSC, the State Government shall issue necessary appointment order, after verifying the other conditions regarding eligibility, within a period of three months from today. (M.T. JOSHI, J.) (B.R. GAVAI, J.) ndk/c20121113