Holding

The Tribunal gave a wrong answer to the correctly framed issue and the High Court also erred; the matter must be remitted to the Tribunal for fresh consideration of the basic reversion question.

Summary

The case concerned the reversion of Surendranath Mallick, a reserved‑category employee, to his former post of Senior Assistant after a general‑category Section Officer returned from leave. The Tribunal had held that Mallick should remain as Section Officer Level‑II to preserve the SC quota, and the Orissa High Court upheld that decision. On appeal, the Supreme Court observed that while the Tribunal correctly identified the issue of reversion, it answered it incorrectly by focusing on reservation percentages and ignoring the fundamental question of whether Mallick’s promotion, which was not made against a leave vacancy, could be undone. The Court also held that the High Court had similarly lost sight of the basic dispute. Consequently, the Supreme Court set aside both the Tribunal’s and the High Court’s orders and remitted the matter to the Tribunal for fresh consideration of the core issues, allowing the appeal without costs.

Issues considered

Whether a reserved‑category employee promoted on an ad‑hoc basis, not against a leave vacancy, must be reverted to his former post upon the return of a general‑category employee from leave.
Whether the Orissa Reservation of Vacancies Act, 1975 and its Rules are applicable to the reversion decision.
Whether the Tribunal and the High Court erred by deciding the case on the basis of reservation percentages rather than the basic reversion issue.

Subjects

service lawreversionreservationOrissa Reservation of Vacancies Actpromotionleave vacancyadministrative tribunalappellate jurisdiction

Judgment

,-

A STATE OF ORISSA AND ANR. ~
v
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 ~
le
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 ..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. '·

In appeal to this Court, appellant contended that both the Tribunal and
G
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
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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. B
From the Judgment & Order dated 21.09.2001 of the High Court of
J< Orissa at Cuttack in Original Jurisdicition Case No. 8259 of 2000.
"' Jana Kalyan Das and Avijeet Bhujabal for the Appellants.

Shibashish Misra for the Respondents.
c
The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of
D
'"t Orissa High Court upholding the view taken by the Orissa Administrative
'y
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. 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

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472 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
on the post/vacancy ceasing to exist"
c
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
D the percentage of S.C. candidates in the rank of Section Officer Level-
l!. 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
E
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
F 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
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STATE OF ORISSA v. SURENDRANATH MALLICK [PASA YAT, J.) 473
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.

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