of Orissa and Anr
Vs. Surendranath Mallick And Ors  Insc 755 (23 July 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
CIVIL APPEAL NO. 3203 OF 2007 (Arising out of SLP (C) No. 20247 of 2003) Dr.
ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of Orissa
High Court upholding the view taken by the Orissa Administrative Tribunal (in
short the 'Tribunal').
3. The respondent No.1 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
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 erroneously proceeded to
deal with a question of reservation and the applicability 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 to the appellants
those questions were not relevant.
6. Learned counsel for respondent No.1 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 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 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
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 Level-II. 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 should be reverted. It is
the case of opposite party No.1 that there 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.1 was promoted against 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 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 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.