1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1424 OF 2009 Bhaskar s/o. Atmaram Salunke, Age 43 yrs., Occu. Assistant Teacher, R/o. Georai (Marda), Tq. Paithan, Dist. Aurangabad. ....Petitioner. Versus 1. The State of Maharashtra Through the Director of V.J.N.T. and O.B.C. Welfare, Maharashtra State, Pune. 2. Divisional Social Welfare Officer, Aurangabad Division, Aurangabad. 3. Special District Social Welfare Officer, Aurangabad Division, Aurangabad. 4. Paithan Taluka Gramin Vikas Sanstha, New Kavasan, Paithan, Tq. Paithan, Dist. Aurangabad. Through Secretary/President. 5. Sant Eknath Ashram School, Georai (Marda), Tq. Paithan, Dist. Aurangabad Through its Head Master. ....Respondents. Shri. B.L. Sagar Killarikar, Advocate for petitioner. Shri. T.S. Lodhe, Advocate for respondent Nos. 1 to 3. Shri. V.D. Sapkal, Advocate for respondent No. 4. Shri. Pahune-Patil h/f. Shri. A.B. Tele, Advocate for respondent No. 5. CORAM : R.K. DESHPANDE, J. DATE : 28th June 2010. 2 PER COURT : 1. The petitioner claims that he belongs to "Kunbi" which is Other Backward Class category. According to him, he had applied for appointment as an Assistant Teacher from open category. He was selected for the said post and was appointed on 1st July 1996. Since then he is working on the post of Assistant Teacher. It seems that the explanation was called from the petitioner in respect of his appointment as a candidate belonging to open category. The management proceeded on the footing that the petitioner belonged to "Kunbi" other backward class category and hence, in relaxation of his age, he was appointed from that category. However, the petitioner claimed that his appointment was from open category and therefore, show cause notice was issued to him, stating that he was overage on the date of appointment and he was not entitled to relaxation in age. The petitioner maintained his stand that his appointment was from open category. The management, taking this stand to be correct, terminated the services of the petitioner by an order dated 28.4.2008, on the ground that at the time of appointment, the petitioner was not eligible as he was overaged by three years and one month and therefore, his appointment was not legal and proper. 2. This order of termination dated 28.4.2008, was challenged by the petitioner by filing an appeal before the competent authority i.e. the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad. It was registered as appeal No. 2/2008. This appeal No. 2/2008 was decided 3 by an order dated 23rd December 2008. In the said order, it was observed that the petitioner belongs to "Kunbi" OBC category and accordingly, his appointment was approved from the said category. The petitioner was directed to submit his caste certificate for verification by the Scrutiny Committee. The stand taken by the petitioner that his appointment was from open category was not accepted by the concerned authority. Accordingly, the appeal was allowed by the order dated 23rd December 2008 and the petitioner was directed to submit his caste certificate for verification and scrutiny by the Scrutiny Committee. This order dated 23rd of December 2008 is the subject matter of challenge in this petition by the petitioner. 3. The petitioner submits that the lower authority ought to have accepted his claim that his appointment was from open category and should not have treated the same from "Kunbi" OBC category. Shri. Killarikar, learned counsel appearing for the petitioner submits that even if the maximum age for employment in open category is prescribed as 28 years for the post of Assistant Teacher, still there is power vested with the competent authority to condone this age limit and permit the appointment. According to him, this exercise has been carried out in this case and accordingly, although the petitioner was beyond the age of 28 years, his age was relaxed, with the approval of competent authority. 4. Notice in this matter was issued. The learned A.G.P. appears in 4 response to the notice for respondent Nos. 1 to 3. Shri. Sapkal, learned counsel appears for respondent No. 4 and Shri. Pahune-Patil holding for Shri. A.B. Tele appears for respondent No. 5. This Court has passed an order on 3rd July 2009, granting time to the learned A.G.P. to file affidavit of respondent Nos. 2 and 3, pointing out, as to whether the appointment of the petitioner was against the post of reserved for OBC category. Accordingly, an affidavit dated 27.8.2009 has been filed which is sworn in by Special District Social Welfare Officer, Aurangabad. 5. The stand in the affidavit by the department is that as per the advertisement, the age of the candidate was not mentioned for reservation. However, in the proposal submitted by the management, it was clearly mentioned in the caste column that the petitioner belongs to "Kunbi" OBC category and the caste certificate was also forwarded. It is further stated that in the letter dated 25.11.2008 issued by the office, mistake is committed in stating that the caste of the petitioner is mentioned as "Maratha" in the caste column and accordingly, an approval was granted to the appointment, showing that the petitioner is from open category. It is stated that the petitioner was 33 years old at the time of joining and has taken the benefit of age relaxation as a candidate belonging to "Kunbi" OBC category. It is further stated that if the appointment of the petitioner was not from the OBC category then he was not eligible for the appointment, on the ground that he was overage. Hence, the stand is that the petitioner can either claim that he belongs to 5 OBC category or should show that he was below the age of 28 years on the date of appointment. 6. Shri. Sapkal, learned counsel appearing for respondent No. 4, submits that the contention of the petitioner that he was granted relaxation in respect of age by the competent authority for appointment as a candidate belonging to open category, is not correct. According to him, there is no provision for seeking relaxation in age for appointment in respect of open category candidate nor any such order of relaxation for appointment has been passed by the competent authority. He further submits that in the instant writ petition, the claim of the petitioner is that he belongs to open category and on that count, the petitioner has challenged this order impugned in the present petition. He submits that if this contention of the petitioner is accepted, then there was no justification for the lower authority to allow the appeal filed by petitioner and termination was justified, as the order of termination proceeds on this footing that the petitioner belonged to open category and at the time of his appointment, he was not eligible for appointment, as he was overaged by three years and one month. 7. Shri. Killarikar, learned counsel appearing for the petitioner, submits that the petitioner has obtained caste validity certificate from the competent authority, which is dated 15.9.2009. However, the same is the subject matter of challenge by the management in Writ Petition No. 6 7770/2009, pending before the Division Bench of this Court. He further submits that the management has also filed Writ Petition No. 3380/2009, challenging the said order dated 23rd December 2008, allowing appeal of petitioner, which is impugned in this petition, holding that the appointment of the petitioner was from "Kunbi" OBC category. 8. The position which emerges from the rival contentions is that the claim of the petitioner that he belongs to "Kunbi" OBC category is substantiated as per the validity certificate dated 15.9.2009. The matter in that respect although is subjudice, it is the fact that the petitioner had produced caste certificate showing that he belongs to "Kunbi" OBC category at the time of his appointment. It is also not disputed that the petitioner has been insisting that he was appointed from open category. Shri. Sapkal, the learned counsel for management submits that the petition be allowed, holding that the petitioner was appointed as a candidate belonging to open category and its effect would be that his appointment is rendered illegal. Faced with this situation, the learned counsel for the petitioner has filed a pursis dated 27th June 2010 signed by the petitioner, seeking permission to withdraw this petition with liberty to file the petition afresh. It is taken on record and marked as "X" for identification. 9. Shri. Sapkal, learned counsel appearing for respondent No. 4, although has no objection for grant of permission to withdraw this 7 petition, he strongly opposes the grant of liberty to file any such petition afresh, as sought for. He submits that if at all the petitioner is interested in pursuing this matter, then his petition be allowed and it be held that appointment of the petitioner is from the open category, as he claimed in the petition. He further submits that if petitioner wants to withdraw the petition, it should be unconditional. 10. In view of the stand taken by the respondents and undisputed factual position pointed out above, it is not possible to grant liberty to file a petition afresh, based upon the same cause of action. However, the petitioner cannot be prevented from withdrawing the instant writ petition without condition. Hence, the relief claimed for granting liberty to file a fresh petition is rejected. The petitioner is permitted to withdraw this petition. Hence, the petition is dismissed as withdrawn. No order as to costs. However, it is made clear that if the petitioner wants to pursue the claim as a candidate belonging to "Kunbi" OBC category in accordance with law, then withdrawal of this writ petition will not come in his way, if the petitioner is otherwise entitle to it. [ R.K. DESHPANDE, J. ] ssc/wp1424.09