1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Review Application No.25 Of 2010 In Writ Petition No.328 Of 2010 Shripad S/o Narayan Kulkarni And Others. .. Petitioners Versus The State of Maharashtra And Others. .. Respondents. -------- Shri. Nitin N. Chitlange with Shri. D.M. Shinde, Advocates for petitioners. Shri. V.D. Godbharale, Assistant Government Pleader for respondent No.1. Shri. A.S. Bajaj, Advocate for respondent No.2. ------- CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE: 3rd MARCH 2010 2 PER COURT : 1) This review petition has been filed on the ground that the Court has disposed of the writ petition on erroneous premise and reasons which are not relevant to consider the issue raised by the petitioners. Inasmuch as, the petitioners had never raised the issue regarding separate reservation for the Project Affected Persons. This grievance of the petitioners, we may candidly accept, is correct. But the mistake has occurred on account of the fact that six matters were heard together as one group pertaining to the respondent No.2 – Company. This writ petition was tagged along with the said group at the request of the petitioner as is noted in the order dated 14th January 2010. However, when the matter was argued the contention taken in the present writ petition, no specific arguments were advanced before us. It is a 3 different matter that the counsel appearing for the petitioners maintains that he had argued the point raised in the present writ petition but the Court has overlooked the same. We will give benefit to the petitioners and take the blame on ourselves and would not hesitate to recall the order dated 22nd January 2010. 2) Even so, the question is whether the point raised in this writ petition merits any consideration. The grievance of the petitioners essentially is that the petitioners belong to category of “Project Affected Persons”. As per Government Resolution dated 3rd February 2007 the age limit for such category of persons is relaxed and the upper age limit up to 45 years has been provided. That Government Resolution was followed by the erstwhile MSEDCL. However, the respondent No.2 in the advertisement issued to 4 invite applications for appointment on the posts of Junior Operator and Technician has not provided for such relaxation with regard to the category of Project Affected Persons. We have no difficulty in accepting the stand of the petitioners that there is no provision in the impugned advertisement regarding age limit up to 45 years for the Project Affected Persons. 3) The respondents, in particular respondent No.2, has filed reply affidavit in the writ petition and has categorically stated that the Government Resolution dated 3rd February 2007 was not binding on the respondent Company. It is asserted in the said reply that the respondent No.2 – company is an independent entity and have independent status. The Board of Directors of the Company have taken a conscious decision after considering all aspects of the matter to fix 5 the upper age limit up to 30 years only and no relaxation regarding age was to be given to any categories including to the category of Project Affected Persons save and except to the Scheduled Castes and Scheduled Tribes categories. It is stated in the reply affidavit that the policy of the erstwhile company was not automatically binding on the respondent No.2 – Company. The respondent No.2 – Company, after demerger, has been taking its independent decisions and formulate independent policy for the purpose of recruitment, its working etc. Besides, it is stated in the reply affidavit that in response to the advertisement in question, as many as 1953 candidates have been registered for the post of Junior Operator. Out of the said number, around 109 were claiming under the category of “Project Affected Persons” and were fulfilling necessary conditions. There is 6 already reservation provided for the Project Affected Persons. It is 5 percent. It is also stated that in response to the advertisement published by the Chief Engineers, about 75,881 candidates have been registered for the posts of Junior Operator and Junior Technician out of which 2203 are Project Affected persons who are fulfilling the above conditions. Besides, considering the five percent reservation for the Project Affected Persons, the number of applications received claiming benefit under the said category are excess in number, and it is possible that after the selection process is complete more than 5% Project Affected Persons would be selected on the basis of merit alone. 4) As aforesaid, the question is whether the issue raised in the present writ petition is covered by the decision in the companion matters. In Writ Petition No.138 of 2010 7 specific argument regarding the policy decision of the respondent No.2 was under challenge. In that case the grievance was that the respondent No.2 was not following Government Resolution dated 17th August 2004 which provides relaxation of age limit up to 32 to 33 years. After examining all aspects of the matter we have held that, fixing the upper age limit by the respondent No.2 is a conscious decision taken by the management, who, after demerger, is an independent Company. We have observed that the Circular or Resolution issued by the Government would be only in the nature of recommendatory and cannot be treated as binding on the respondent No.2 – Company. We have also found that the respondent No.2 has taken a policy decision after the the Board of Directors considered all relevant Circulars including Government Resolutions. The argument of the petitioners 8 herein that there was complete ban on the appointment since 1999 for which reason the respondent No.2 was obliged to grant relaxation in age limit has been considered while deciding the said Writ Petition No.138 of 2010 and answered against the petitioners. 5) Suffice it to observe that, in our opinion, the conclusion reached in the companion matters would squarely apply to the fact-situation of the present case. 6) The counsel for the petitioners was at pains to persuade us in the present case that the Government Resolution is applicable to the Project Affected Persons. The fact remains that after demerger, the respondent No.2 has been taking independent decisions. The Board of Directors, as was stated before us, and also as stated in the reply- affidavit, considered all the Government 9 Resolutions before taking the conscious decision regarding its policy to fix the upper age limit of 30 years. As has been held in the companion matters it is not open to this Court to take a different view of that policy decision. The subtle distinction sought to be made by the petitioners, in our opinion, is completely ill-advised and misplaced. We, therefore, conclude that the petitioners, who admittedly have crossed the age of 30 years on the relevant date, were ineligible to participate in the selection process. 7) Accordingly, there is no substance in the grievance made by the petitioners to challenge the impugned advertisement. Hence the review petition as well as the writ petition is disposed of accordingly. (S.S. SHINDE, J.) (A.M. KHANWILKAR, J.) rsl/ ra.25.10