PRAVAKAR MALLICK & Anr. v. THE STATE OF ORISSA & Ors.

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, the Gradation List dated 03.03.2008 was A B C D E F G H 224 SUPREME COURT REPORTS [2020] 5 S.C.R. prepared by altering the positions which were maintained in the List dated 16.05.2001. While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court. [Paras 12, 13] [231-D-H; 232-A-F]