# ST A TE OF ORISSA AND ANR. ~ v. SURENDRANA TH MALLICK AND ORS

- **Citation:** [2007] 8 S.C.R. 470
- **Court:** Supreme Court of India
- **Decided:** 2007-07-23
- **Case number:** Civil Appeal No. 3203 of2007
- **Bench:** Dr. Arijit Pasa Yat, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-a-te-of-orissa-and-anr-v-surendrana-th-mallick-and-ors-23072
- **Pages:** 4

## Headnote

""
Service Law:
,,.
c
Reversion-Tribunal framed issue as to whether applicant was to be
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
le
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 considerationOrissa 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
F
candidate, the junior most candidate belonging to that category would be
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.
'·
G
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.
H
470
.. -(
\
J<
"'
'"t
'y
\
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

## Text

,-
A
ST A TE 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:
,,.
c
Reversion-Tribunal framed issue as to whether applicant was to be
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
le
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 considerationOrissa 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
F
candidate, the junior most candidate belonging to that category would be
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.
'·
G
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.
H
470
.. -(
\
J<
"'
'"t
'y
\
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
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.
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 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
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
c
D
E
F
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 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
H
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
\-
(
/
--{
\
\
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.G.
Appeal allowed.
D