ST A TE OF ORISSA AND ANR. v. v

SURENDRANA TH MALLICK AND ORS.

JULY 23, 2007

[DR. ARIJIT PASA YAT AND D.K. JAIN,.JJ.]

"" Service Law: ,,.

c Reversion-Tribunal framed issue as to whether applicant was to be reverted to his former post on return of Section Officer after expiry of his leave-However, Tribunal proceeded to deal with question of reservation and applicability of 1975 Act and Rules-High Court dismissed the writ le

petition-On appeal, held: Tribunal formulated right issue but gave wrong answer without considering basic issues involved-High Court also lost .D sight of basic dispute-Matter remitted to Tribunal for fresh consideration- Orissa Reservation of Vacancies Act/Rules, 1975.

A " y Respondent No.1, aggrieved by the order of his reversion, challenged the same before the Tribunal. Tribunal noted that the main issue for decision was whether the respondent No.I-applicant was to be reverted to his former E post of Senior Assistant consequent on return of' A' Section Officer level-I after expiry of his leave. But while deciding the OA, it held that the reversion of the respondent No.1 consequent on return of Section Officer was not sustainable as it would cause depletion in the percentage of SC candidates in the rank of Section Officer Level II and that since 'A' is a general category

F candidate, the junior most candidate belonging to that category would be reverted to make vacancy for the candidate who faces reversion consequent . .l... on expiry of leave of'A' and not the respondent No.1 who is a reserved category candidate. The High Court also lost sight of the asic challenge and dismissed the writ petition. '

G In appeal to this Court, appellant contended that both the Tribunal and the High Court did not consider the basic isst1es and erroneously proceeded to deal with a question of reservation and the applicability of Orissa Reservation of Vacancies Act, 1975 and Orissa Reservation of Vacancies \-- Rules, 1975.

H 470

.. -(

'"t

STATEOFORISSAv. SURENDRANATHMALUCK[PASAYAT, J.] 471

Allowing the appeal and remitting the matter to the Tribunal, the Court A

HELD: Though the Tribunal formulated the right issues, it gave a wrong answer without considering the basic issues involved. The High Court has also lost sight of the basic dispute. (Para 10) (473-B, q

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3203 of2007.

From the Judgment & Order dated 21.09.2001 of the High Court of Orissa at Cuttack in Original Jurisdicition Case No. 8259 of 2000.

Jana Kalyan Das and A vijeet Bhujabal for the Appellants. c Shibashish Misra for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASA Y AT, J. I. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of D

Orissa High Court upholding the view taken by the Orissa Administrative Tribunal (in short the 'Tribunal').

3. The respondent No. I had questioned the order of the appellants reverting him to the former post of Senior Assistant because of joining of one E Antaryami Acharya, Section Officer Level-I after the expiry of his leave, before the Tribunal.

4. The Original Application was allowed by the Tribunal. The order of the Tribunal was questioned before the High Court which as noted above dismissed the same.

5. Learned counsel for the appellants submitted that both the Tribunal and the High Court did not consider the basic issues and em; meously proceeded to deal with a question of reservation and the applicabil/ty of Orissa Reservation of Vacancies Act, 1975 (in short the 'ORV Act') and Orissa Reservation of Vacancies Rules, 1975 (in short the 'ORV Rules'). According G to the appellants those questions were not relevant.

6. Learned counsel for respondent No .. I submitted that though the Tribunal and the High Court referred to the ORV Act and the ORV Rules, in reality they had no relevance, but .the basic issues have not been addressed H

SUPREME COURT REPORTS

[2007) 8 S.C.R.

A by the Tribunal and the High Court.

7. The Tribunal in para 9 of its order noted as follows:

"The main issue to be decided is whether the applicant was to be reverted to his former post of Senior Assistant consequent on return B of Antaryami Acharya, Section Officer Level-I after expiry of his leave The learned Counsel for the applicant has contended that the promotion of the applicant by annexure-4 order dated 16.4.1990 was not made against any leave vacancy nor was there any stipulation in the said order that the applicant would be reverted to his former post consequent c

on the post/vacancy ceasing to exist"

8. But while deciding the application it held as follows:

"12. Following the above dictum of the Supreme Court, the reversion of the applicant by annexure-5 order consequent on return from leave of Antaryami Acharya is not sustainable as it will cause depletion in the percentage of S.C. candidates in the rank of Section Officer Levell!. Since Antaryami Acharya is a general category candidate, the junior most candidate belonging to that category is to be reverted to make room for the candidate who faces reversion consequent on expiry of leave of Antaryami Acharya, Section Officer Level-I and not the applicant who is a reserved category candidate. We, therefore, set aside annexure-5 order of reversion of the applicant and direct that he be deemed to be continuing in the post of Section Officer Level-II and his differential salary from 1.6.1990 till date or till the date of his subsequent promotion to the rank of Section Officer Level-II made in the meantime whichever is earlier, be drawn and paid to him within three months from the date of receipt of a copy of this order. As regards annexure-6 order, since the promotion was made on adhoc basis for 44 days and the provisions of reservation are not applicable to the same according to Section 3(g) of said Act, we make no comments on the same."

9. The High Court also lost sight of the basic challenge and dismissed

the writ petition with the following observations:

"4. The question for determination is whether in such a situation when · a general category candidate returns from leave, reserved category candidate whose promotion was not made against a leave vacancy

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ST ATE OF ORISSA v. SURENDRANA TH MALLICK [PASA Y AT, J.) 4 73

should be reverted. It is the case of opposite party No. I that there A were several representations of reserved category candidates in the rank of Section Officer Level-II in the - Directorates of Agriculture, Horticulture and Soil Conservation alleging violation of the provisions of Orissa Reservation of Vacancies Act and non-maintenance of reservation roster. As the opposite party No. I was promoted against B a reserved category post as per the roster, his reversion to accommodate a general candidate cannot be sustained.

Therefore, the Tribunal rightly set aside the reversion and restored him to his previous post."

10. Though the Tribunal fonnulated the right issues, it gave a wrong answer without considering the basic issues involved. The High Court has C also lost sight of the basic dispute and has made observations as quoted above. Above being the position, we set aside the order of the Tribunal and the High Court and remit the matter to the Tribunal to decide the matter afresh after considering the basic issues and the respective stand of the parties.

11. The appeal is allowed with no order as to costs.

D.G.

Appeal allowed.