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CASE NO.: Appeal (civil)  3203 of 2007

PETITIONER: State of Orissa and Anr

RESPONDENT: Surendranath Mallick and Ors

DATE OF JUDGMENT: 23/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

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 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 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

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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:

"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."

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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.