P.R. Bora, J.

1) Heard. Rule. Rule made returnable forthwith, with the consent of the parties.

2) The Petitioner has filed the present petition, seeking directions against the Respondents to consider his case for promotion to the post of Traffic Controller from the open category, even though he belongs to the reserved class.

3) Most of the facts are undisputed. It is not in dispute that the Petitioner entered into the services of the Respondent Corporation, after completing the required formalities in the year 1981, as a Conductor. There is further no dispute that, the Petitioner belongs to ‘Rajput Bhamta’ Scheduled Tribe and the said caste is recorded in the service book of the Petitioner. There is further no dispute that, the caste certificate of the Petitioner has not yet been validated by the concerned Caste/Tribe Scrutiny Committee.

4) In the year 2011, the Respondent Corporation advertised the promotional post of Traffic Controller vide notice published on 30.06.2011. The Petitioner appeared for the departmental examination to be selected for the said post from the open category, as per the permission given to him by the Respondent No. 2. The Petitioner was selected and his name was incorporated in the select list in order of merit at Sr. No. 57. It is the contention of the Petitioner that, while preparing the select list, against the name of the Petitioner he has been shown belonging to the reserved category. It is the further contention of the Petitioner that, the Petitioner has never claimed any benefit on the basis of his caste and always competed from the open category. It is the further contention of the Petitioner that, when the Respondent Corporation permitted him to produce the caste validity certificate, he made it clear that, he is not claiming any benefit of reservation and wants to be considered as a candidate from open category. He further made it clear that, since he is not claiming any reservation, he need not be asked or compelled to produce on record the caste validity certificate.

5) In spite of the facts as noted above, the Respondents denied the promotion to the Petitioner to the post of Traffic Controller on the ground that, he did not submit the caste validity certificate. The said communication dated 27.11.2013 is impugned in the present Petition.

6) Perusal of the impugned order dated 25/27.11.2013 reveals that though the Petitioner has passed the Departmental Examination for the promotional post of Traffic Controller from the open class the Petitioner has been denied the said promotion for the sole reason that, he did not submit the caste validity certificate. One Shri Sanjay Wamanrao Supekar, Divisional Controller M.S.R.T.C., Aurangabad has filed the affidavit in reply on behalf of Respondents No. 2 and 3. The Respondents have not disputed that the initial appointment of the Petitioner is as a open class candidate. The Respondents No. 2 and 3 have not responded to the contention raised by the Petitioner in his Petition that, he has submitted representations on 24.11.2011, 03.07.2011 and lastly on 12.03.2012 contending therein that he does not want to claim any benefit on the basis of his caste which has been recorded in his service book as ‘Rajput-Bhamta’ (Scheduled Tribe). The respondents have, however, not disputed the fact stated on oath by the Petitioner that, in the examination held for the promotion to the post of Traffic Controller, the Petitioner has competed as an open category candidate and has succeeded in getting through the said examination. It has also not been disputed that, the name of the Petitioner is included in the list of the candidates who have successfully passed the examination for the departmental promotion to the post of Traffic Controller.

7) The respondents No.2 and 3 have, however, opposed the Petition contending that since, on insistence of the petitioner, his caste has been recorded as ‘Rajput-Bhamta’ (Scheduled Tribe) in the service book, the petitioner is duty