ORDER :

Pradeep Mittal, J. 

The present writ appeals arise out of the order dated 03.07.2013 passed by the learned writ court in W.P. No. 610 of 2012, whereby the writ petition filed by writ petitioner Aditya Tiwari (respondent No. 1 herein) was allowed and direction was issued to appoint Aditya Tiwari against the post of ex- serviceman general category stating that against the general quota, no reserve quota candidate can be adjusted and appointment of Anurag Jahariya was cancelled stating that he was wrongly adjusted from reserve quota to general quota of ex-servicemen. Since both these writ appeals involve a common issue, they are heard and decided together by this common order. References to the annexures and documents are taken from W.A. No. 1156 of 2013 for the sake of convenience.

2. The facts leading to the filing of the present cases are that the examination for post of Sub Inspector was conducted by respondent no 1 in the writ petition. There were 30 posts reserved for filling up all the post of Sub Inspector (Radio) in which as per the reservation provided 20% for Scheduled Tribes, 16% for Scheduled Caste and 14% for O.B.C. Out of total 30 posts 15 belong to the unreserved category. The respondent No.1 herein Aditya Tiwari (writ petitioner in the writ petition) belongs to unreserved category. That it is not disputed that the total marks obtained by the writ petitioner is 226 but in written Exams he got less mark than Anurag Jahariya respondent No.14 herein.

3. That in the first scan, 18 candidates were considered for appointment in which 8 candidates were selected against the 9 unreserved quota as 3 candidates unreserved category and 5 candidates belonging to the reserved category on the basis of merit secure unreserved category, and one unreserved candidate for police persons. The last candidate in the open category who was granted appointment in the unreserved quota was Pramod Kumar Jatve who belongs to the reserved category but was treated to be unreserved due to his merit position as he has obtained 231 marks whereas against the writ petitioner who could only secure 226 marks. That all the 9 persons who were selected under the unreserved quota were admittedly having higher merit than the writ petitioner.

4. In the second scan 9 candidates were considered after posts reserved for 5 female candidates were reverted to male candidates due to non- availability of eligible female candidates. That in the second scan 4 persons were granted the benefit of appointment in the unreserved quota Namely : (1) Prashant Singh Parihar, (2) Gajendra Singh Raghuwanshi, (3) Vikash Upadhyay, (4) Sanjeev Pandey. Shri Sanjeev Pandey was having equal marks as granted to the respondent but was granted the benefit of appointment in the light of clause 1.11 of the recruitment rules wherein 2 candidates are having equal marks than the candidate having higher marks in the written examination will be considered for appointment. Shri Sanjeev Pandey had obtained 189 marks in the written examination as against the petitioner who obtained 182 marks thus Shri Sanjeev Pandey in the unreserved category against female quota was granted the benefit of appointment. Thus, in the first scan out of the total 15 posts reserved for general category 9 posts were filled up in which none of the candidates was lower in merit than the writ petitioner.

5. That 3 posts were reserved for ex-serviceman candidates could not be filled up therefore same were reverted to 1 post to unreserved, 2 posts to Scheduled Tribes and 1 post to Scheduled Caste. That against the unreserved category Shri Ajay Singh was granted the benefit of appointment though he was having equal marks of 226 as the respondent but had obtained 186 marks in his written examination whereas the petitioner only could secure 182 marks. Thus by virtue of clause 1.11 of the rules having obtained more marks in the written examination Shri Ajay Singh was selected for appointment.

6. It is submitted that by the Addi