1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 4931/2009. Nitin Manoharrao Gawhane and another -versus- State of Maharashtra and others. __________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : B.P.DHARMADHIKARI & A.P. BHANGALE, JJ. DATED : OCTOBER 14, 2011. The matter is for final disposal. Accordingly we have heard Shri K.V. Deshmukh, learned Counsel for petitioners, Shri Kankale, learned Counsel for respondent nos. 1 to 3 and Shri Kalra, learned Counsel for respondent nos. 4 and 5, by making Rule, returnable forthwith. The selection to the post of Platoon Commander (Paltan Nayak) has been effected as per proclamation dated 06.08.2009, which lays down 2 certain terms and conditions. Condition no.5 therein specifically requires the aspirant/person to have completed his preliminary and revised training, as also advance training conducted by the Central Training Institute. Petitioners have completed that training. They contend that respondent nos. 4 and 5 who had not completed that training were selected, and later on have been permitted to complete that advance training. This according to them is in violation of Article 14 of the Constitution of India, and arbitrary. Respondent nos. 4 and 5 were earlier represented by Shri Ghule, learned Counsel. Shri Ghule, learned Counsel was permitted to withdraw his vakalatnama and thereafter Shri Kalra, learned Counsel has filed vakalatnama for them. Shri Kalra, learned counsel has contended that petitioners and respondent no.4 have joined on same date as Home Guards and respondent no.4 has thereafter been promoted in the year 2003, thus 3 respondent no.4 is placed above petitioners. He further states that bare perusal of the proclamation dated 06.08.2009 is sufficient to show that conditions laid down therein are only directory. He also invites attention to condition no.9 to show that In-charge Officer/ Coordinator has been specifically directed not to effect any change in the respective seniority/posting of candidates. In this background, he has also invited attention to communication dated 08.02.2005 issued by the Headquarters of Maharashtra State Home Guards and Civil Defence. Placing reliance upon the norms for selection prescribed vide Schedule-B therein, learned counsel has contended that this directory nature of qualifications prescribed or eligibility conditions prescribed is apparent therefrom. He has invited attention to the chart of selection at Annexure-R1, filed by respondent no.3 to show that respondent no.4 secured total 55 marks, while respondent no.5 had secured 58 marks. Both the petitioners have 4 secured 22 and 36 marks respectively. Thus according to him, both the petitioners have secured less marks and have not been selected. Attention is also involved to a candidate Shri Lodam, whose name appears at Sr. No.10 to show that because that person was holding superior post, though he has secured 60 marks, he has not been selected. Learned A.G.P. appearing for respondent nos. 1 to 3 is also supporting the arguments advanced by Shri Kalra, learned Counsel. He places reliance upon the affidavit filed by respondent no.3 and contends that as respondent nos. 4 and 5 were found better placed, they have been selected. Affidavit filed subsequently is also pressed into service to show that this requirement of possessing advance training qualification has been relaxed. After hearing the respective counsel, we find that facts are not much in dispute. Respondent nos. 4 and 5 have completed the advanced training as contemplated by the proclamation between 5 04.12.2009 to 24.12.2009 i.e. after their selection as Platoon Commander. The proclamation specifically states that the candidate must have completed this training. This proclamation is dated 06.08.2009 and last date for submission of the application form by such candidate was 10.08.2009. Therefore, candidate ought to have completed this advance training at least by 10.08.2009. perusal of the promotion order dated 14.08.2009 reveals that the respondent nos. 4 and 5 are promoted with knowledge that they had not complete this training. A condition asking them to complete that training within 6 months and warning to them of cancellation of promotion in default, is also incorporated in the promotion order. These facts therefore show that the qualification as required is mandatory. The only question is, whether such qualification can be secured after promotion ? The proclamation published on 06.08.2009 has not given any such notice. There 6 may be several such persons who could have applied had they knowledge that in absence of that qualification, they can apply. The standards prescribed by which respondent nos. 1 to 3 wanted themselves to be judged in the selection process, are violated by them. In this situation, we do not find any substance in the argument of Shri Kalra, learned counsel and learned A.G.P. for respondents. The impugned promotion order dated 14.08.2009 is, therefore, quashed and set aside as respondent nos. 4 and 5 were not eligible for consideration on the date prescribed i.e. 10.08.2009. Respondent nos. 1 to 3 shall apply their mind afresh to the interview proceedings and result thereof and pass appropriate orders in the matter, in accordance with law. Writ Petition is thus partly allowed. Rule is made absolute in the aforesaid terms with no orders as to costs. JUDGE JUDGE Rgd.