PRAVAKAR MALLICK & ANR. versus THE STATE OF ORISSA & ORS.

Citation: [2020] 5 S.C.R. 222 · Decided: 17-04-2020 · Supreme Court of India · Bench: MOHAN M. SHANTANAGOUDAR · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 5 S.C.R.
PRAVAKAR MALLICK & ANR.
v.
THE STATE OF ORISSA & ORS.
(Civil Appeal No. 3240 of 2011)
APRIL 17, 2020
[MOHAN M. SHANTANAGOUDAR
AND R. SUBHASH REDDY, JJ.]
Constitution (Eighty-Fifth) Amendment Act, 2001 –
Art.16(4A) – Respondents were appointed to Orissa Administrative
Service-II (OAS-II) posts – They were senior to appointees
belonging to SC/ST category and were subsequently promoted in
next higher category, OAS-I(JB) – Appellants and others belonging
to SC/ST category, recruited with the respondents in subsequent
batches, were given promotion to the rank of OAS-I(JB) against
reserved vacancies during 1995 & 2000 – Original seniority
position in the cadre of OAS-II prepared by Public Service
Commission was retained without any changes – Irrespective of
getting promotion in subsequent years, the inter se seniority of
respondents and the SC/ST roster point promotees in the rank of
OAS-I was maintained in the seniority list dated 16.05.2001 –
Art.16(4A) was amended by 85th amendment –  State of Orissa
issued Resolution dated. 20.03.2002 issuing instructions to all the
departments to extend the benefit of seniority for SC/ST govt.
servants on promotion by virtue of rule of reservation – Gradation
List dated. 03.03.2008 prepared by altering the seniority of
respondents, contrary to the list dated.16.05.2001 – OA filed by
respondents – Dismissed by Tribunal – Writ petition allowed – Held:
Seniority for general category officers was restored in the
Gradation List of OAS-I(JB) dated 16.05.2001, by extending the
benefit of “Catch Up Rule”, evolved by Supreme Court in the case
of Virpal Singh Chauhan, subsequently accepted in Ajit Singh (II) –
Validity of 85th amendment was upheld in the case of M.Nagaraj –
After the said amendment, amending Art.16(4A) which enabled the
State to extend the benefit of promotion with consequential seniority
by examining the adequacy of representation to SCs/STs in the State
services, the State of Orissa has admittedly not made any provision,
either by way of legislation or an executive order, to extend such
   [2020] 5 S.C.R. 222
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benefit in the Class-I Services – Government Resolution dated
20.03.2002 is issued merely based on the instructions issued by
Govt. of India, without examining the adequacy of representation
in posts – It has no legal basis – Seniority/Gradation List dated
16.05.2001 of OAS-I (JB) was prepared correctly following the
ratio laid down by Supreme Court – In absence of any law or
decision by way of executive order based on acceptable material
for conferring additional benefit of consequential seniority, the
Gradation List dated 03.03.2008 was prepared by altering the
positions maintained in List dated 16.05.2001 – Well reasoned
judgment of the High Court is not interfered with – Service Law.
Dismissing the appeals, the Court
HELD: 1.1 The seniority for general category officers was
restored in the Gradation List of OAS-I(JB) which was prepared
on 16.05.2001, by extending the benefit of “Catch Up Rule”,
evolved by this Court in the case of Virpal Singh Chauhan which
is subsequently accepted in the case of Ajit Singh (II). After
Constitution (Eighty-Fifth) Amendment Act, 2001, amending
Article 16(4A) of the Constitution which enabled the State to
extend the benefit of promotion with consequential seniority by
examining the adequacy of representation to scheduled castes
and scheduled tribes in the State services, the State of Orissa
has not made any provision, either by way of legislation or by
an executive order, to extend such benefit in the Class-I
Services. The advocate for State specifically admitted that the
Govt. has not issued any executive order or has passed any
legislation. The Government Resolution dated 20.03.2002 is
issued merely based on the instructions issued by the
Government of India, without examining the adequacy of
representation in posts. Government Resolution dated
20.03.2002 can neither be termed as law made in exercise of
enabling power of the State under Article 16(4A), nor does it
satisfy the parameters laid down in the various decisions of this
Court. The Resolution has no legal basis. The Seniority/
Gradation List dated 16.05.2001 of OAS-I (JB) was prepared
correctly by following the ratio laid down by this Court and in
absence of any law or decision by way of executive order based
on acceptable material for conferring additional benefit of
consequential seniority, th

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