1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5983/2008 Sangita Laxmanra Borkar .. PETITIONER VERSUS The State of Maharashtra and others .. RESPONDENTS .... Shri V.D.Salunke, Advocate for petitioner Shri V.H.Dighe,A.G.P. for Respondents 1 & 2 Shri Milind Patil,Adv.for R.3. .... CORAM : NARESH H.PATIL & N.D.DESHPANDE,JJ. DATE : 22/3/2010 ORAL ORDER : [PER PATIL,J.] 1] Heard learned counsel for respective parties. 2] The petitioner has challenged appointment of respondent no.3 Smt.Indumati Zarekar as Police Patil of village Mouje Hatadi, Tq.Partur, Dist.Jalna on the ground that petitioner secured equal 2 marks i.e. 74% alongwith respondent no.3 Zarekar in written examination. The name of petitioner was placed at Sr.No.1 and the name of respondent no.3 Zarekar was at Sr.No.2. It is also contended that respondent Zarekar is not physically fit to discharge her duties as Police Patil. The medical fitness certificate produced by respondent Zarekar was challenged on the ground that the respondent Zarekar suffers from 42% blindness. The said certificate was issued on 25/4/2005 (Exh.E). 3] Learned counsel Shri V.D.Salunke submitted that as petitioner and respondent Zarekar secured same marks in the written examination, selection of respondent no.3 Zarekar and her consequent appointment is against Rules viz. The Maharashtra Village Police Act 1967 and Recruitment and Appointment of Kotwals, Rules 1959. 4] The respondent no.2 filed affidavit in reply through Sub Divisional Officer, Partur Division, Partur. The learned A.G.P. Shri Dighe submitted that though petitioner and respondent no.3 secured same marks in the written examination but the 3 authorities, while considering merit of the candidates and on evaluating the case, selected respondent no.3, after considering the requirements as envisaged in law, more particularly her physical fitness to discharge duties as Police Patil. 5] The learned counsel for respondent no.3 submitted that the Original Application is not annexed to the petition, therefore, it is not known as to whether the issue was raised by the petitioner before Maharashtra Administrative Tribunal. The mandatory requirements were considered by the authorities concerned and therefore, the authorities exercised their discretion in selecting respondent no.3 and consequently appointed her as Police Patil. The counsel submitted that the respondent no.3 is successfully functioning as Police Patil and the authorities have not raised any objection in respect of her functioning as Police Patil. The respondent no.3 Zarekar has already completed more than 2 years of her tenure of 5 years service. We have considered the provisions of the Act and the Rules 1967. 6] Admittedly, both petitioner and respondent no.3 secured 4 same maraks i.e. 74% in written examination. Both the candidates alongwith third candidate seem to have been interviewed by Sub Divisional Officer. By an order dated 4/6/2008 the respondent no.3 Zarekar was appointed as Police Patil and since then she is discharging her duties as Police Patil. Considering the Order/Rules framed under the provisions of Section 5 of the Maharashtra Village Police Act, 1967, the authorities i.e. the Sub Divisional Officer selected the respondent no.3 Zarekar as Police Patil. 7] We find that the terms and conditions in the advertisement issued for recruiting Police Patil, are not strictly in adherence to the provisions of the Order 1968. It must be clearly mentioned by the authorities as to what are the mandatory conditions and what are the conditions which are discretionary/flexible, while selecting the candidates. The conditions enumerated in the present advertisement reflects as if all the conditions are mandatory in nature. 8] We therefore, direct Collector,Jalna and Sub Divisional 5 Officer, Partur, to take abundant precautions before framing the clauses of the advertisements, calling applications from persons, to the post of Police Patil. 9] In respect of other contentions raised by the petitioner, we do not find that interference is required. The petitioner has been functioning for more than 2 years, as Police Patil. The authorities are always at liberty to re-verify physical fitness of a candidate and take an appropriate action in case it is found that the candidate working as Police Patil has ceased to be physically fit to discharge duties. 10] In that view of the matter, no interference is called for, by this Court. Petition is accordingly dismissed. 11] Registry of this Court is directed to forward copy of this order to the Collector,Jalna and Sub Divisional Officer,Partur. [N.D.DESHPANDE] [NARESH H.PATIL] JUDGE JUDGE umg/wp5983-08