:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1776 OF 2009 WRIT PETITION NO. 1776 OF 2009 WRIT PETITION NO. 1776 OF 2009 Chandrakant Atmaram Chavan ..Petitioner versus Maharashtra State Road Transport Corporation, Dist : Sindhudurg ..Respondents Mr. M. S. Topkar for the Petitioner. Mr. G. S. Hegde i/b. G. S. Hegde & Associates for the Respondents. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 6TH MARCH, 2009 DATE : 6TH MARCH, 2009 DATE : 6TH MARCH, 2009 P.C. P.C. P.C. . Rule, returnable forthwith. Heard by consent. 2. The petitioner has challenged the Order of the Industrial Court, Kolhapur, dated 19.12.2008, dismissing his Complaint under the MRTU & PULP Act. 3. The petitioner had approached the Industrial Court with the grievance that he is proposed to be reverted from his post. According to the learned counsel for the petitioner, the petitioner who is :2: backward category candidate was promoted on the basis of the examination to the post of Driver from the post of Vehicle Examiner. He was appointed on a temporary basis. According to the petitioner he is proposed to be reverted because open category candidate who has passed examination subsequent to the petitioner has been promoted to that post. According to the learned counsel for the petitioner the only reason for proposed reversion is that the post to which he was appointed was not meant for backward category, but was meant for the open category. The learned counsel for the petitioner submits that the Rule which is applicable in this case requires that who has passed his examination and has been promoted earlier should be treated as senior to the one who has passed his examination subsequently. The learned counsel further submits that there may have been no backward category post available in the cadre of Vehicle Examiner; but the petitioner though backward candidate could have been appointed by promotion in the open category post. If that would have been done it would not have been necessary for the respondents to propose to revert the petitioner on the ground that they want to promote open category candidate to the said post. The learned counsel relies on the observations of :3: the Supreme Court in the case of Bihari Lal Rada Bihari Lal Rada Bihari Lal Rada versus Anil Jain (Tinu) & Ors. [CDJ 2009 SC 271] versus Anil Jain (Tinu) & Ors. [CDJ 2009 SC 271] versus Anil Jain (Tinu) & Ors. [CDJ 2009 SC 271] dated 13.2.2009, dated 13.2.2009, dated 13.2.2009, in which the Supreme Court has referred to their earlier Judgments and observed as follows :- "24. We may further refer by way of analogy to the settled legal position interpreting the provisions made for reservation of appointments or posts in favour of any backward class of citizens under Article 16(4) of the Constitution of India. In R. K. Sabharwal vs. State of Punjab [(1995) 2 SCC 745], a Constitution Bench of this Court held: "When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation." 25. The similar view is taken in Union of India & Ors. vs. Virpal Singh Chauhan [(1995) 6 SCC 684]. 26. In Indra Sawhney vs. Union of India [1992 Supp. (3) SCC 217], this Court held: "In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It :4: may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merits; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates." 4. The learned counsel for the respondents submits that this point was neither raised nor agitated by the petitioner before the Industrial Court and if at all this point will have to be argued before the Industrial Court. 5. Having regard to the importance of issue to the facts of the present case, I consider it appropriate in the interest of justice to set aside the impugned order and remand the matter back to the Industrial Court for a fresh decision in accordance with law on all the points. The parties shall be at liberty to amend their pleadings in accordance with law. The Industrial Court is directed to decide the matter within six months from the date the parties first appear before it. Parties are directed to appear before it on 30.3.2009. Order accordingly. 6. As regards the present status of the petitioner, it is an undisputed fact that the petitioner was reverted during the pendency of this :5: petition. It was obviously not permissible for the respondents to do so. In the circumstances, it is directed that the petitioner be restored to the position of Vehicle Examiner pending decision of the Industrial Court. Any interim order in that regard shall be made by the Industrial Court upon a proper application, if made by the petitioner. 7. Rule is made absolute in the above terms. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)