M.P. Public Service Commission vs Arun Kumar Pandey

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).

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.

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.

Per contra, Counsel for the respondent No. 1 petitioner Arun Kumar Pandey, has fully supported the order passed by the learned Single Judge, stating that according to the circular dated 18/2/1997 issued by the State Government of M.P. paragraphs 4 & 5 were silent on the point whether in case of the posts of the general category Ex-servicemen-General- Female remaining vacant, they could be filled up by candidates of the same General category Males; and whether there was no bar for consideration of candidates from the same category of Ex- servicemen-General category Male. And hence, there is no infirmity in the order passed by the learned Single Judge.

Besides, Counsel urged that even on merit an Ex-serviceman the petitioner was fighting for his right to employment in the said post since he was fully eligible having successfully qualified in the competent examination in the year 2003. Hence, Counsel submitted that the order was in accordance with the provision of law and did not call for any interference and prayed that the writ appeal be dismissed.

Considering the contentions of the Counsel for the appellant M.P. P.S.C. as well as the Counsel for the respondent No. 1, we find that admittedly there are three vacant posts in the same category of Ex-servicemen -General -Female and respondent No. 1 Arun Kumar Pandey is fully eligible for the same. However, it is equally true considering the fact that on the basis of the policy decision taken by the State Government of M.P. and the circular dated 18/2/1997 issued by the State Government, the stand taken by the M.P. Public Service Commission in paragraphs 4 & 5 of the circular indicates that the posts which are reserved for Ex-servicemen -General-Female category, if they remain vacant for want of candidates will not be carried forward and the persons from Ex-servicemen-General-Male category shall fill up the same. And keeping in view of the above circular the learned Single Judge has rightly come to the conclusion that as per the select list the petitioner was eligible for the post of Co- operative Inspector since the said rule is silent on the point. There is no express/specific bar to a male ex- serviceman being appointed for the said post left vacant in the Ex-servicemen-Female category.

However, although we do not disagree with the order of the learned Single Judge in spirit, we find that, direction could not be given directly to the State Govt. for the appointment of the petitioner and to grant consequential benefits, in accordance with the Rules and Circulars filed along with the reply. Therefore, we only modify the order to the extent that the name of the respondent No. 1 petitioner Arun Kumar Pandey shall be considered for appointment to the State Government, if the post is still lying vacant since Dr. Ravindra Kanhere, Exam Controller, M.P. Public Service Commission made a categoric statement that some posts were still lying vacant to be filled up on that date. The appellant M.P. Public Service Commission shall also give a sympathetic consideration to the findings of the learned Single Judge regarding the respondent No. 1 petitioner is being an Ex-serviceman candidate. We are however, constrained to make it clear that merely because the Rules prohibit horizontal and compartment-wise reservation, but the same should not stand in the way of the respondent No. 1 petitioner especially since the posts have been lying vacant from so many years.

With the above observations and directions, the appellant/M.P.S.C. Shall consider the claim of the respondent No. 1/petitioner Arun Kumar within a period of sixty days from the receipt of certified copy of this order and the present Writ Appeal stands partly allowed only to the extent herein above indicated.

C.c. as per rules.