State of Orissa and Anr. v Surendranath Mallick

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
D. K. Jain
Judgment Date: 2007-07-23
Court Decision / Holding: Appeal allowed. The Court set aside both the Tribunal’s order and the High Court’s dismissal and remitted the matter to the Tribunal for fresh consideration after addressing the basic issues and the parties’ stand, with explicit directions to decide in light of the ORV Act/Rules and the roster.
Final Disposition: Appeal allowed; remitted to Tribunal for fresh consideration.

Parties to the Case

Appellants / Petitioners

State of Orissa
Anr.

Respondents

Surendranath Mallick

Legal Representation & Advocates

Counsels for Petitioners

• Jana Kalyan Das
• A. Vijeet Bhujabal

Counsels for Respondents

• Shibashish Misra

Case Synopsis & Summary

This appeal concerns the reversion of a government employee, Surendranath Mallick, to his former post after the return of Antaryami Acharya, a Section Officer, at the expiry of leave. The Orissa Administrative Tribunal had allowed the Original Application, holding that reversion would deplete the percentage of Scheduled Caste candidates in the rank of Section Officer Level II, and that since Antaryami Acharya was a general category candidate, the junior-most general candidate should be reverted to make room for the general candidate rather than the reserved category employee. The High Court of Orissa, while dismissing the writ petition, did not address the core issues, and instead focused on questions of reservation under the Orissa Reservation of Vacancies Act (ORV Act), 1975, and ORV Rules, 1975. In appeal, the appellants contended that both the Tribunal and the High Court neglected the basic issues and improperly treated the matter as a reservation question. The Court found that though the Tribunal formulated the right issues, it answered them incorrectly without addressing the fundamental dispute, and the High Court similarly erred. It remitted the matter to the Tribunal for fresh consideration, directing it to decide the core issues and the parties’ positions, in light of the ORV Act/Rules. The appeal is allowed with remand for reconsideration on basic issues.

Provisions of Law Cited

Orissa Reservation of Vacancies Act, 1975Orissa Reservation of Vacancies Rules, 1975Section 3(g) of Orissa Reservation of Vacancies Act, 1975

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the Tribunal and the High Court failed to address the basic issues and wrongly focused on reservation under the ORV Act/Rules. They contended that the core dispute was about the validity of reversion in light of roster-based reservation principles and did not hinge on the mechanics of reservation alone. The questions of appointment and vacancy created by the return of Antaryami Acharya, and the impact on SC representation in the rank, required consideration of the actual order and its consistency with the roster.

Contentions of Respondents

The respondent contended that although ORV Act/Rules were referenced, the core issues remained unaddressed and require examination of how reservation and vacancy rules apply to the reversion. They argued that the Tribunal’s approach to reversion should be informed by the roster/Reservation Act and the factual circumstances surrounding the promotion and reversion, rather than a narrow reading of the Act.

Extracted Judgment Text

Exact text extracted from official judgment records.

A ~ _v_ "" ,,. # ST A TE OF ORISSA AND ANR. # _v._ SURENDRANA TH MALLICK AND ORS. ## JULY 23, 2007 B [DR. ARIJIT PASA YAT AND D.K. JAIN,.JJ.] ## _Service Law:_ _Reversion-Tribunal framed issue as to whether applicant was to be_ c _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 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 candidate, the junior most candidate belonging to that category would be F reverted to make vacancy for the candidate who faces reversion consequent 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. F 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. G . .l... \-- '· H 470 _.. -(_ \ STATEOFORISSAv. SURENDRANATHMALUCK[PASAYAT,J.] 471 _J<_ 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. B 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. '"t _'y_ 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 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. F 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 \ \- _(_ 472 [2007) 8 S.C.R. SUPREME COURT REPORTS F A by the Tribunal and the High Court. ## 7. The Tribunal in para 9 of its order noted as follows: B c "The main issue to be decided is whether the applicant was to be reverted to his former post of Senior Assistant consequent on return 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 on the post/vacancy ceasing to exist" ## 8. But while deciding the application it held as follows: D E "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." G 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 H / _--{_ \ 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 D.G. Appeal allowed.