Holding

The Tribunal erred; the vacancy cannot be treated as excess of 50% reservation, and the State must consider the respondent for the temporary vacancy but not as a regular candidate.

Summary

The respondent, Sangram Das, applied for a vacancy of Assistant Law Officer in Orissa and, after a merit-based appointment to another post, sought direction from the Administrative Tribunal to be appointed to a subsequent vacancy. The Tribunal ordered the State to appoint him, but the State appealed to the Supreme Court, contending that the vacancy could not be treated as an excess of 50% reservation under the Orissa Reservation of Vacancies in the Post of Service (for SC & ST) Act, 1975. The Court examined Section 7 of the Act, which allows carry‑forward of unfilled reserved vacancies for up to three recruitment years and permits de‑reservation only when the reserved vacancies exceed 50% in a recruitment year. It held that no recruitment had been conducted since 1990, so the provision for carry‑forward did not arise, and the Tribunal’s classification of the vacancy as excess of 50% was illegal. Consequently, the Court directed the State to consider the respondent for the temporary vacancy but not to treat him as a regular candidate for consequential benefits. The appeal was allowed and no costs were awarded.

Issues considered

Whether a vacancy for SC/ST can be deemed excess of 50% reservation when no recruitment has occurred for several years under Section 7 of the Orissa Reservation of Vacancies Act, 1975.
Whether the Administrative Tribunal erred in directing the State to appoint the respondent to the vacancy.
Interpretation of the carry‑forward and de‑reservation provisions of the Act.

Subjects

reservationSC/STvacancyde‑reservationcarry forwardservice lawadministrative tribunalcontempt petitionappointmentexcess of 50 percentOrissa

Judgment

STATE OF ORISSA A
v.
SANGRAM DAS

JANUARY 2, 1995

[K. RAMASWAMY AND N. VENKATACHALA, JJ.] B

Service Law : Orissa Rese1vation of Vacancies in the Post of Service
(for S.C. & S.T.) Act, 1975-Section-7 -Recmitment in excess of 50% of
Reservation for S. C. & S. T. treating the vacancies vacant for S. C. to be excess
of 50% under the provisions, where there was no recruitment for several c
years-Held : illegal.

Respondent and another were competing candidates for the post of
Assistant Law Officer in the State of Orissa. The post was filled up by a
candidate selected on merit. When another post became vacant respondent
approached Administrative Tribunal, se~king a direction to appoint him D
in that post. The Tribunal allowed the petition by its order dated 27.4.1992,
directing the Appellant to appoint the-.iRespondent in a regular vacancy.
The appellant carried the matter on appeal to this court and. this court
dismissed the appeal.
E
Thereafter respondent filed a Contempt Petition for implementation
of the order of Tribunal and the Tribunal by its order dt. 13.5.94 directed
the State to appoint the respondent in the resultant vacancy. Hence this
appeal by State.

Allowing the appeal, this Court F
HELD : 1. As per the provisions of Orissa Reservation of Vacancies
in the Post of Service (for S.C. & S.T.) Act, 1975 when a general recruit·
ment is sought to be made, the rule of reservation shall be applied for and
notification be issued calling the candidates from reserved quota to apply
for recruitment. If no candidates is recruited or found eligible in terms of G
the provisions of the Act, the reserved vacancy should be carried forward
.A. for three recruitment years. In the recruitment year in question if the
reserved vacancies exceed 50% then the resultant excess vacancies would
be de-reserved throwing open to the general candidates and the excess
vacancies should be forwarded for future recruitment. In other words, at H
1
2 SUPREME COURT REPORTS [1995] 1 S.C.R.

A each recruitment year, attempt shall be made to notify the reserved vacan-
cies for recrµitment. In case the candidates are not available nor are found
suitable, then the question of carrying {onvard would arise. [3-F-H]

2. In the instant case it could be seen that there was no recruitment
till 1990; therefore the question of carry fonvard of the reserved vacancies
B for SC & ST did not arise. [4-B)

3. It is seen that a general candidate was temporarily appointed
otherwise than according to rules. Therefore the Government have to
consider the case of the respondent in that temporary vacancy. Under the
C circumstances, the appellant is directed to consider the case of the respon-
dent for appointment in the temporary vacancy till the regular vacancy of
a general candidate arises and then to consider his case. He cannot at
present be treated to be a regular candidate and seek for consequential
benefits. [4-C]

D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 103 of
1995.

From the Judgment and Order dated 13.5.94 of the Orissa Ad-
ministrative Tribunal in O.A. No. 80 of 1991.

E N.S. Hegde and Raj Kr. Mehta for the Appellant.

Janaranjan Das for the Respondent.

The following Order of the Court was delivered :

F Leave granted.

Heard counsel for the parties.

For recruitment made to a post of Assistant Law Officer in the State
G of Orissa, the respondent and another were competing candidates. The
post was filled up by a candidate selected on merit. When another post
became vacant, the respondent filed C.A. No. 80/91 in the Administrative
Tribunal, Orissa seeking issuance of a direction to appoint him in that post.
The Tribunal by its order dated April 27, 1992 allowed the petition and
directed the appellant to appoint the respondent in a regular vacancy. The
H appellant carried the matter in appeal in C.A. No. 8626/92 and this Court
STATEOFORISSAv. S. DAS 3

dismissed the appeal. Thereafter, the respondent filed a contempt petition A
for direction to implement the order passed by this Court. The Tribunal in
the impugned order dated 13.5.94 directed to appoint the respondent in
:.
the resultant vacancy. Thus this appeal.

It is not in dispute that the State of Orissa made the Orissa Reser- B
vation of Vacancies in the post or Service (for SC & ST) Act, 1975. Section
7 of the Act provides that if in any recruitment year, the number of
candidates either from Scheduled Castes or Scheduled Tribes is less than
the number of vacancies reserved for them, even after exchange of reser-
vation between the Scheduled Castes and Scheduled Tribes, the remaining
vacancies may be filled up by general candidates after de-reserving the C
vacancies in the prescribed manner, but the vacancies so de-reserved may
be carried forward to subsequent three years of recruitment provided that
in the years following the recruitment year the normal reserved vacancies
together with the vacancies carried forward shall not exceed fifty per cent
of the total number of vacancies of the year in which recruitment is made D
and the excess over fifty per cent of the reserved vacancies shall be carried
forward to subsequent years of recruitment. It is contended that there are
three vacancies reserved for ST and SC and as such there cannot be
recruitment in excess of 50% reservation. In that resultant vacancy the
respondent should be appointed in a substantive capacity, we find no force
in the contention. One Mr. D. Mullick, ST was.appointed on 5.7.1978. E
Thereafter, in the vacancy reserved for SC one G.L. Chakraborty, general
candidate was appointed on January 27, 1986. Another vacancy for ST has
arisen in 1986, one Mr. B.N. Mohanty, general candidate was appointed
on September 24, 1986. Recruitment was made for general candidates in
March, 1990 and one Mr. P.K. Nanda was appointed as a general can- F
didate. As per the provisions of the Act, when the general recruitment is
sought to be made, the rule of reservation shall be applied for and the
notification be issued calling the candidates from reserved quota to apply
for recruitment. If no candidate is recruited or found eligible in terms of
the provisions of the Act, the reserved vacancy should be· carried forward
for three recruitment years. In the recruitment year in question if the G
rel'erved vacancies exceed 50% then the resultant excess vacancies would
be de-reserved throwing open to the general candidates and the excess
vacancies should be carried forward for future recruitment. In other words,
at each recruitment year, attempt shall be made to notify the reserved
vacancies for recruitment. In case the candidates are not available nor are H
4 SUPREME COURT REPORTS [1995) 1 S.C.R.

A found suitable, then the question of carrying forward would arise.

Thus it could be seen that there was no recruitment till 1990. The
question of carry forward of the reserved vacancies for SC and ST did not
arise. -The Tribunal has committed an illegality in treating the vacancy
meant for SC to be excess of 50% under the provision. But one fact that
B remains on record is that one Mr. L.B. Misra, a general candidate was
temporarily appointed otherwise than according to rules. Therefore, the t
Government have to consider the case of the respondent in that temporary
vacancy. Under these circumstances, the appellant is dllected to consider
the case -of the respondent for appointment in the temporary vacancy till
C the regular vacancy of a general candidate arises and then to consider his
case. He cannot at present be treated to be a regular candidate and seek
for consequential benefits. The appeal is accordingly allowed. No costs.

K.S.D. Appeal allowed.

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