- (1.)BY this Writ Appeal under Section 2 of M.P. Uchh Nyalaya (Khand Nyapeeth Ko Appeal) Adhiniyam, 2005, the appellant Madhya Pradesh Public Service Commission is being aggrieved by the order dated 23/4/2015 passed by the learned Writ Court in Writ Petition No. 3761/2007(s).
(2.)BRIEFLY stated the facts of the case are that respondent No. 1/petitioner Arun Kumar Pandey had filed Writ Petition No. 3761/2007(s) before the learned Single Judge being aggrieved by the fact that despite being eligible he was not being considered for the appointment to the post of Co -operative Inspector / Jailor / Excise Sub -Inspector/Naib Tehsildar. Besides it was observed by the learned Single Judge that as per advertisement dated 22.112003 (Annexure P/1) in the writ petition and as per G.A.D. Circular dated 18/7/1997 (Annexure P/6), the respondent No. 1 petitioner Arun Kumar Pandey had gone through the entire selection process and placed at Sr. no. 22 of the select list (Annexure P/5). It was stated that another person at Sr. no. 21 Shri Sunil Kumar Chouhan was appointed to the post having secured 899 marks; whereas the present respondent No. 1 petitioner Arun Kumar Pandey secured 884 marks. And hence, the respondent petitioner Arun Kumar Pandey did not find place for the appointment. Whereas respondent petitioner Arun Kumar claimed that there are three posts in the category of Co -operative Inspector meant for Ex - serviceman -General -Female remained vacant. According to condition 5 of the circular dated 18/2/1997 issued by the M.P. Public Service Commission, the vacant posts of such women could be considered by the General -Male category. The learned Single Judge was also of the opinion that ex - servicemen (males) could also be considered and hence directed thus: -
"Resultantly, the writ petition is allowed. M.P. Public Service Commission is directed to forward name of the petitioner for appointment to the State Government and the respondent/State is directed to issue consequential appointment order appointing the petitioner on the post of co -operative Inspector. It is needless to mention that the petitioner shall be entitled for seniority and other consequential benefits by treating his seniority at par from other identically placed persons who have been appointed on the post of Co -operative Inspector.

The respondents are directed to comply with this order within a period of sixty days from the date of receipt of certified copy of this order. It is also needless to mention that the petitioner shall be entitled for all consequential benefits like seniority, notional fixation of salary and promotion, if any. However, the petitioner will not be entitled for back wages.

Certified copy as per rules."

Counsel for the appellant/M.P. Public Service Commission has vehemently urged the fact that according to the Madhya Pradesh Ex -Servicemen (Reservation of Vacancies in the State Civil Services and posts Class III and Class IV) Rules 1985, the appointment in the State Government service, the reservation is on the principle that reservation of Ex - Serviceman is Horizontal and Compartment -wise and the posts were not interchangeable for appointment. And as per Circular and advertisement for the vacancies are published from time to time. Counsel vehemently urged the fact that as already stated above, the respondent/petitioner Arun Kumar Pandey was placed at sr. no. 22 of post of Sub -jailor and Shri Sunil Kumar Chouhan was placed at sr. no. 21. Whereas respondent/petitioner Arun Kumar Pandey has placed at sr. no. 22 as Excise Sub Inspector. Despite such reservation Shri Sunil Kumar Chouhan was given appointment as Sub -jailor and Counsel urged that the respondent petitioner could not claim parity to the post of Sub -jailor. Besides considering the fact that the respondent No. 1 petitioner Arun Kumar Pandey claimed that he should be considered for renewed post of Ex -servicemen -General -Female category to the post of Co -operative Inspector. However the learned Single Judge without considering the Rules or the fact that the appointment to this category was horizontal and compartment - wise reservation allowed the petitioner. Counsel for the appellant MPPSC urged that even if the circular dated 18/2/1997 is considered, paragraphs 4 & 5 indicate that for the reservation for Ex -serviceman - General -Female category as well as reservation for Ex -serviceman -General -Male category; it states that in case of non -availability of such women candidates it shall not be filled up by women from other reserved categories or unreserved categories, but shall be subject to selection from other male candidates. Thus, it was vehemently argued by Counsel for the appellant M.P. Public Service Commission that the learned Single Judge has committed an error apparent on the face of the record directing respondent No. 1 petitioner Arun Kumar Pandey be appointed to the post by the State government within a period of sixty days from the date of receipt of the certified copy of the order.

(3.)COUNSEL further urged that the learned Single Judge had failed to consider the candidature of the respondent petitioner Arun Kumar Pandey was that the case of Ex -servicemen General Male category; and whereas the reservation of such candidates is horizontal and Compartment -wise and not interchangeable according to rule 4 of Madhya Pradesh Ex -Servicemen (Reservation of Vacancies in the State Civil Services and posts Class III and Class Iv) Rules 1985. Also in this view of the matter, no candidates in other category can be posed Ex - serviceman General Female category. The learned Single Judge has also erred in not considering Annexure P/10 and R -2/3 which clearly indicate that the posts are not transferable. Hence, Counsel for the M.P. Public Service Commission prayed that the impugned order be set aside.