Orissa High Court
P.S.: Dhamanagar vs State Of Odisha on 27 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.27353 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Dr. Lopamudra Nanda Aged about 23 years Daughter of Padmanava Nanda Village: Mundida, P.O.: Chasapada Via: Kaduapada, P.S.: Balikuda District: Jagatsinghpur.
2. Dr. Pallavi Mishra Aged about 26 years Daughter of Rajani Kanta Mishra At: Nagbhan, P.O.: Bhalubasa P.S.: Rairangpur District: Mayurbhanj, PIN: 757 050.
3. Dr. Archana Agrawal Aged about 25 years Daughter of Kamalesh Agrawal At: Putiapali, P.O.: Baduapali Via: Dhanupali, P.S.: Dhama District: Sambalpur, PIN: 768 113.
4. Dr. Limonlisa Dey Aged about 24 years Daughter of Bidyapati Dey At: Deulipanchughanta W.P.(C) No.27353 of 2023 Page 1 of 80 P.O.: Jaleswar, P.S.: Jaleswar District: Balasore, PIN: 756 032.
5. Dr. Tanaya Dor @ Dora Aged about 23 years Daughter of Benudhara Dora At: Uchhabahal, P.O.: Rinbachana P.S.: Loisingha District: Bolangir, PIN: 762 002.
6. Dr. Ananya Nanda Aged about 25 years Daughter of Dhirendra Kumar Nanda At: Town Planning Colony P.O.: Dhenkanal R.S., P.S.: Dhenkanal District: Dhenkanal, PIN: 759 013.
7. Dr. Suprava Kumbhar Aged about 23 years Daughter of Manoranjan Kumbhar At/P.O.: Saranda, P.S.: Attabira District: Bargarh, PIN: 768 027.
8. Dr. Manini Behera Aged about 24 years Daughter of Diga Behera At: Mahulpali P.O.: A. Katapali, P.S.: Burla District: Sambalpur, PIN: 768 006.
9. Dr. Pragyan Prabartika Mallick Aged about 25 years Daughter of Gouranga Charan Mallick At: Bada Patuli, P.O.: Dala P.S.: Korai District: Jajpur, PIN: 755 019.
W.P.(C) No.27353 of 2023 Page 2 of 8010. Dr. Vijayalaxmi Marndi Aged about 26 years Daughter of Lal Mohan Marndi At: Chandida, P.O.: Kumudasole Via: Hatbadra, P.S.:Rairangpur (R) District: Mayurbhanj, PIN: 757 050.
11. Dr. Sandhya Bahalia Aged about 25 years Daughter of Sudam Charan Bahalia At: Pandua, P.O.: Jaraka P.S.: Dharmasala District: Jajpur, PIN: 755 050.
12. Dr. Ipsita Jena Aged about 25 years Daughter of Bibhuti Bhusan Jena At: Benjarapur, P.O.: Mandari P.S.: Bari District: Jajpur, PIN: 755 003.
13. Dr. Sitaram Meher Aged about 26 years Son of Artatrana Meher At: Jandol, P.O./P.S.: Bheden District: Bargarh, PIN: 768 104.
14. Dr. Badal Bagarty Aged about 25 years Son of Rameswar Bagarty At: Sagarpara, P.O.: Balangir P.S./District: Balangir, PIN: 767 001.
15. Dr. Tusarakanta Muna Aged about 25 years Son of Subhakara Muna W.P.(C) No.27353 of 2023 Page 3 of 80 At/P.O.: Birjam, P.S.: Melchamunda District: Bargarh, PIN: 768 034.
16. Dr. Subhendu Mohanty Aged about 24 years Son of Panchanana Mohanty At: Mandrada, P.O.: Chakrada P.S.: Basta District: Balasore, PIN: 756 022.
17. Dr. Sudipta Kumar Patra Aged about 24 years Son of Karunakar Patra At: Mulakhamba, P.O.: Damodarpur P.S.: Sukinda District: Jajpur, PIN: 755 018.
18. Dr. Pasupati Mohanta Aged about 29 years Son of Mahendranath Mohanta At: Balimunduli P.O./Via: Shamakhunta P.S.: Baripada Sadar District: Mayurbhanj, PIN: 757 049.
19. Dr. Dibya Prakash Bal Aged about 28 years Son of Gagan Chandra Bal At: Baliapashi, P.O.: Laxmi Nagar P.S.: Jajpur Road District: Jajpur, PIN: 755 015.
20. Dr. Atmajyoti Nayak Aged about 26 years Son of Pradeep Kumar Nayak At: Tampala, P.O.: Chudakuti Palasa W.P.(C) No.27353 of 2023 Page 4 of 80 P.S.: Dhamanagar District: Bhadrak, PIN: 756 117.
21. Dr. Akash Bhoi Aged about 25 years Son of Ganesh Bhoi At/P.O.: Resham P.S.: Bheden, District: Bargarh PIN: 768 104.
22. Dr. Rajashree Meher Aged about 26 years Daughter of Janak Lal Meher At: Shanti Nagar, Padampur P.O.: Rajborasambar, P.S.: Padampur District: Bargarh PIN: 768 036. ... Petitioners.
-VERSUS-
1. State of Odisha Represented through Commissioner-cum-Secretary Department of Health & Family Welfare Government of Odisha Lokseva Bhawan Bhubaneswar District: Khordha.
2. Odisha Public Service Commission Represented through its Secretary At: 19, Cantonment Road Buxibazar, Cuttack Odisha - 753 001.
W.P.(C) No.27353 of 2023 Page 5 of 803. The Principal Gopabandhu Ayurveda Mahavidyalaya, Puri At/P.O/Dist-Puri. ... Opposite parties Counsel appeared for the parties:
For the Petitioners : M/s. Lalatendu Samantray, Satyabrata Mohanty, Tapan Kumar Kamila, Advocates For the Opposite party: : Mr. Ashok Kumar Apat, No.1 Additional Government Advocate For the Opposite party : Mr. Pradipta Kumar Mohanty, No.2 Senior Advocate assited by M/s. Pronoy Mohanty, S.K. Sahu, K.T. Mudali, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 12.11.2024 :: Date of Judgment : 27.01.2025 J UDGMENT Assailed in this writ petition is the Order in File No.HFW-AYUR-CASE-0013-2023/8678/H, dated
04.08.2023, passed by the Commissioner-cum-Secretary to Government of Odisha in Health & Family Welfare Department, rejecting the representation of the petitioners vis-à-vis relaxation invoking Rule 18 of the W.P.(C) No.27353 of 2023 Page 6 of 80 Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013, pursuant to the direction contained in Order dated 21.06.2023 of this Court in W.P.(C) No.18965 of 20231, the petitioners have knocked the doors of this Court craving to exercise extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, with the following prayer(s):
"It is therefore humbly prayed that your Lordships may be graciously pleased to admit the writ application, issue rule nisi in the nature of a writ of mandamus and any other writ or writs as deemed fit and proper to quash the impugned Order No.18678/H, dtd.04.08.2023 as under
Annexure-14 and further be pleased to direct the Opp. Parties to permit the petitioners to participate in the recruitment process in pursuance of the Advertisement No.3 of 2023-24 as under Annexure-6 Series;
And further be pleased to direct the Opp. Party No.3 to treat the three dates as mentioned in Paragraph-24 & 25 as on duty;
And, further be pleased to pass any other writ(s), order(s), direction(s), and relief(s) as deemed fit and proper.
And, for this act of kindness, the petitioners shall, as in duty bound, ever pray."
Facts:
2. Facts, as adumbrated in the pleadings, reveal that the Central Council for Indian Medicine, New Delhi vide 1 Dr. Lopamudra Nanda and 21 Others Vrs. State of Odisha and Others.W.P.(C) No.27353 of 2023 Page 7 of 80
Notification No.28-14/2011-Ay (UG Regu)., dated 25.04.2012 promulgated Indian Medicine Central Council (Minimum Standard of Education in Indian Medicines (Amendment) Regulations, 20122, which provided compulsory internship3 for one year for Ayurvedacharya (―Bachelor of Ayurvedic Medicine and Surgery Doctors‖) (for brevity, ―BAMS‖).
2.1. Upon completion of four parts of professional Course, a final examination of the petitioners along with other students for the Session July, 2017 to December, 2021 was held as per Schedule from 30.03.2022 to 13.04.2022 vide Utkal University Notification No.4710 dated 22.03.2022. Separate Notification for practical/oral examination was published vide Notification No.1205 dated 16.04.2022. Having acknowledged that the petitioners have been ―declared passed in Final BAMS Examination-December, 2021 from Utkal University, Vani Vihar, Bhubaneswar vide Notification No. EC.I/11284/2022, dated 09.06.2022, the Principal, Gopabandhu Ayurveda Mahavidyalaya, 2 These rules amend the ―Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 1989, subsequently 2005, 2010 and 2011‖ with effect from 26.04.2012, being published in the India Gazette, Extraordinary No.108, dated 26.04.2012. 3 Rule 7 of ibid. provides as follows:
"Compulsory Internship:
Duration of Internship: 1 year The student will join the compulsory internship programme after passing the final professional examination. The internship programme will start after the declaration of the result of final professional examination. The period of the internship will be of one year."W.P.(C) No.27353 of 2023 Page 8 of 80
VIP Road, Puri in Letter No.2999 dated 13.06.2022 (Annexure-4) forwarded the names of 28 candidates including the petitioners to the Registrar, Odisha State Council of Ayurvedic Medicines, Bhubaneswar (―OSCAM‖, for short) to register their names in terms of Section 20 of the Indian Medicine Central Council Act, 1970, so as to enable them to join the internship training for a period of 12 months in the College and attached Hospital.
2.2. Accordingly, the petitioners were issued with ―Provisional Certificate of Registration‖ on 13.06.2022 by the OSCAM, indicating that the said Licence shall remain valid ―till completion of internship‖. The petitioners were allowed to undergo internship programme for ―twelve months compulsory rotating Housemanship training with effect from 16.06.2022 to till completion in the outdoor and indoor of Hospital this Institution and District Headquarters Hospital, Puri‖, vide Notice No.3036/GAM, Puri, dated 16.06.2022 issued by the Principal, Gopabandhu Ayurveda Mahavidyalaya, Puri.
2.3. The Odisha Public Service Commission floated an Advertisement bearing No.03 of 2023-24 on 28.04.2023 being published on 29.04.223 in local Odiya daily ―The Prameya‖ (for short, ―Advertisement‖) inviting Applications from the prospective candidates for W.P.(C) No.27353 of 2023 Page 9 of 80 recruitment of 116 posts of Ayurvedic Medical Officers (for convenience be referred to as, ―AMO‖) in the rank of Group-B under the Health and Family Welfare Department.
2.4. Clause-4 of said Advertisement prescribed requisite educational qualification as follows:
"A candidate must possess a Bachelor‟s Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from a University or Institution recognized by Central Council of Indian Medicine.
He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines."
2.5. Clause-8 of the Advertisement prescribed the following other eligibility conditions:
"(i) The candidate must be a citizen of India;
(ii) A candidate must be able to read, write and speak Odia; and have--
(a) passed Middle School Examination with Odia as a language subject; or
(b) passed Matriculation or equivalent Examination with Odia as medium of Examination in non-language subject; or
(c) passed in Odia as language subject in the final Examination of Class VII or above; or
(d) passed a test in Odia in Middle English School Standard conducted by the School and Mass W.P.(C) No.27353 of 2023 Page 10 of 80 Education Department of the Government of Odisha/Board of Secondary Education, Odisha;
(iii) A candidate if married must not have more than one spouse living:
Provided that the State Government may, if satisfied that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule.
(iv) Government servants, whether temporary or permanent, are eligible to apply provided that they possess the requisite qualification and are within the prescribed age-limit as provided under Paragraphs 3 and 4 of the Advertisement. They must inform their respective Heads of Offices in writing regarding submission of their applications for this recruitment and submit „No Objection Certificate‟ during document verification.
(v) If a candidate has at any time, been debarred for a certain period/chance(s) by the Odisha Public Service Commission or other State Public Service Commission or U.P.S.C. from appearing at any examination/interview, he/she shall not be eligible for such recruitment for that specified period/chance(s).
(vi) Only those candidates, who are within the prescribed age limit and fulfil the requisite qualification etc. by the closing date of submission of online application will be considered eligible;W.P.(C) No.27353 of 2023 Page 11 of 80
(vii) A candidate must have to register himself/ herself under the Odisha State Council of Ayurvedic Medicines on or before the Last date of Submission of Online Application Form.
(viii) A candidate who claims change in his/her name after having passed the H.S.C. Examination or equivalent Examination, is required to furnish copy of publication of the changed name in the local leading daily newspaper as well as copy of notification in the Gazette in support of his/her change of name."
2.6. The last date for submission of Registered Online Application was fixed to 08.06.2023.
2.7. Since the petitioners have passed BAMS (Ayurvedacharya) Examination and were provided with Provisional Certificate of Registration which remained valid till completion of internship, due to the delay caused attributable to the authorities concerned, they claiming to be eligible to participate in the recruitment process approached this Court in W.P.(C) No.15177 of 2023 with a prayer for direction to the opposite parties to allow them to submit application forms and to appear in the recruitment process for the post of AMO in response to the Advertisement. This Court disposed of the said writ petition on 11.05.2023 with the following order and direction:
W.P.(C) No.27353 of 2023 Page 12 of 80"7. Considering the submissions made by learned counsels for the respective parties, keeping in view the factual background of the present case, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Commissioner-cum-Secretary to Government, Health and Family Welfare Department, Odisha, Bhubaneswar-Opposite Party No.1 to consider the representations of the petitioners under Annexure-7 dated 02.05.2023 in accordance with law within a period four weeks from the date of production of certified copy of this order.
8. Further, OPSC is directed accept the off-line forms of the petitioners and allow them to participate in the recruitment process. However, acceptance of the off- line forms subject to the final decision taken by the Opposite Party No.1 within the aforesaid time stipulated.
9. Further, it is also made clear that permission to appear in the recruitment process shall not create any equity by the petitioners.
10. With the aforesaid observation/direction, the writ petition is disposed of."
2.8. The representations came to be rejected vide Order No.HFW-AYUR-CASE-0013-20233/13110/H, dated 01.06.2023 by ascribing following reasons:
"And whereas, the recruitment and conditions of service of the persons appointed to the post of Ayurvedic Medical Officer are governed under the provisions of Odisha Ayurvedic Medical Service (Method of Recruitment and W.P.(C) No.27353 of 2023 Page 13 of 80 Conditions of Service) Rules, 2013 published in the extra ordinary issue of the Odisha Gazette dated 09.07.2013.
And whereas, as per Rule 8(4) of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 the recruitment for the post of Ayurvedic Medical Officer shall be made by the Odisha Public Service Commission.
And whereas, as per Rule 7 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 in order to be eligible for appointment to the post of Ayurvedic Medical Officer he/she must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or Institution recognized by the Central Council of Indian Medicine. He/she must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.
And whereas, the Petitioners have not completed their Internship Training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines.
And whereas, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission are to conduct examination for appointment to various posts of State Civil Services etc. The State Government have no jurisdiction over the power and function of the Odisha Public service Commission with regards to the recruitment procedure.W.P.(C) No.27353 of 2023 Page 14 of 80
And whereas, the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 does not provide any scope or power to the opposite party No.1 to consider the claim of the petitioners for allowing them to appear in the recruitment examination for Ayurvedic Medical Officers by extending the last date of submission of application for 15 days.
Now, therefore, taking into the grounds observed as above, the claim of the petitioners under Annexure-7 dated 02.05.2023 has no merit in the eyes of law for consideration hence rejected."
2.9. Although the petitioners have successfully completed the course having passed the final examination, as their internship was continuing as on the last date of submission of Registered Online Application, the Odisha Public Service Commission did not accept the candidature of the petitioners. On the petitioners approaching this Court vide Order dated 11.05.2023 disposed of W.P.(C) No.15177 of 2023, by permitting the petitioners to participate in the recruitment process and the Odisha Public Service Commission [―Commission‖, as defined under Rule 2(a) of the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013] was directed to accept the Offline Applications of the petitioners and to allow the petitioners to participate in such recruitment process.
2.10. Though the petitioners were directed to be allowed to participate in the recruitment process by accepting W.P.(C) No.27353 of 2023 Page 15 of 80 Offline Applications, the same was subject to consideration of representation of the petitioners by the State Government and the Commission expressed its inability to permit them to participate in the recruitment process inasmuch as the representation of the petitioners got rejected by the State Government on 01.06.2023.
2.11. This Court in consideration of the plight of the petitioners and predicament of the opposite parties (the State Government as well as the Commission), disposed of W.P.(C) No.18965 of 2023 vide order dated 21.06.2023 with the following observation:
"7. In reply to the aforesaid submission made by the learned Senior Counsel appearing for the Opposite Party No.2-Odisha Public Service Commission as well as learned counsel for the State-Opposite Parties, learned counsel for the Petitioner submitted that the delay in issuing the final certificate on the ground that the Petitioners have not completed their internship for one year cannot be attributed to the Petitioners. He further submitted that because of the delay in conducting the examination and permitting the Petitioners to go for internship, the Petitioners are most likely to suffer for none of their fault. It is further submitted by the learned counsel for the Petitioners that the relevant Rules, i.e., Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 provides under Rule 18 that the State Government in exercise of its power can relax any of the provisions of the W.P.(C) No.27353 of 2023 Page 16 of 80 rules, if the same is found to be in public interest. However, while considering the representation of the Petitioners pursuant to the order passed by this Court earlier, the Opposite Parties have not considered the case of the Petitioners in the light of the provision contained under Rules 18 of the 2013 Rules. For better appreciation, the provision contained in Rule 18 of the 2013 Rules is quoted herein below: ***
8. On perusal of the Rule 18 of the 2013 Rules, this Court observes that the rule confers power on State Government to grant any relaxation, if such relaxation is necessary or expedient so to do in the public interest. Therefore, the submission made by the learned counsel for the Petitioners that there was a delay in conducting the examination and publication of the advertisement and there was a short gap between the conducting the examination and publication of advertisement for recruitment. This Court is of the considered view that the same needs to be considered by the State Government under Rule 18 of the 2013 Rules.
9. Considering the submissions made by the learned counsels appearing for the respective parties and upon a careful examination of the background facts of the present case and also on careful examination of the documents annexed to the writ petition, this Court with the consent of the learned counsel for the parties deems it proper to dispose of the writ petition at the stage of admission. Accordingly, the Petitioners are directed to file a fresh representation before the Opposite Party No.1 W.P.(C) No.27353 of 2023 Page 17 of 80 taking therein the grounds for relaxation under Rule 18 of the 2013 Rules. In the event such a representation is filed within a period of two weeks from today, the same shall be considered by the Opposite Party No.1 in accordance with Rule 18 of the 2013 Rules. Further, the Opposite Party No.2-Odisha Public Service Commission is directed to allow the Petitioners to further participate in the recruitment process. However, such participation shall be subject to the final outcome of the decision to be taken by the Government as has been directed hereinabove on the representation of the Petitioners.
10. With the aforesaid observations and directions, this writ petition stands disposed of."
2.12. Relevant portion of contents of the fresh representation dated 01.07.2023 of the petitioners as required to be furnished as directed in said Order dated 21.06.2023 of this Court in W.P.(C) No.18965 of 2023 is extracted hereunder:
"*** Mam, we bring to you kind notice that in pursuance to Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 we have applied for the post wherein Clause-7(d) of the said Rules specifically states about eligibility criteria, i.e., "he must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent degree from an University or Institution recognised by the Central Council of Indian Medicine. He must have registered himself/ herself under Odisha State Council of Ayurvedic Medicine."W.P.(C) No.27353 of 2023 Page 18 of 80
We are eligible in view of such criteria to apply for the aforementioned post. However, Rule 18 of the aforesaid Rule envisages Relaxation which is quoted herein below for kind reference. *** Furthermore, as per instruction received, State Government had earlier permitted candidates undergoing internship to participate in the recruitment process of the year 1979, 1983 and 1990.
In the present case we further bring to your kind notice that 4th Semester Examination of the year December, 2021 was conducted in March, 2022 and result was published on 09.06.2022 and delay occurred in such process is solely attributable to the college/university authorities for which we are no way responsible. More so, Advertisement to the post is also not regularly published by OPSC. As per our instruction it was published in year 2016, 2018 and 2021 respectively and we will lose a valuable chance in the present advertisement if we are not permitted to participate in the present recruitment process.
In such view of the matter we honestly request you to consider our case sympathetically and allow us to participate in the recruitment to the post of Ayurvedic Medical Officers in pursuant to advertisement No.03/2023-24 of Odisha Public Service Commission, Cuttack and extend the last date of submission for two weeks in view of Rule 18 of the 2013 Rules, which has been well observed by the Hon‟ble High Court in the Judgment dated 21.06.2023 passed in the W.P.(C) No.18965 of 2023, for which act of kindness we shall be highly grateful to you."
W.P.(C) No.27353 of 2023 Page 19 of 802.13. In order to carry out the direction contained in the Order dated 21.06.2023 in W.P.(C) No.18965 of 2023, the Commissioner-cum-Secretary to Government in Health and Family Welfare Department (for brevity, ―Government‖) rejected said representation vide Order No.18678-- HFW-AYUR-CASE-0013-2023/H, dated 04.08.2023, relevant portion of which reads as under:
"*** And whereas, Rule 18 of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 inter alia provides that when it is considered by the Government that it is necessary or expedient so to do in the public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of the employees.
And whereas, the Petitioners have not completed their internship training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines.
And whereas, relaxation of eligibility for appointment to the post of Ayurvedic Medical Officer as required under Rule 7 of Odisha Ayurvedic Medical Service (Method of recruitment and Conditions of Service) Rules, 2013 could not be accommodated since the same involves the interest of individual and also contravene the provision of clause (a) i.e. "the public interest behind the proposed relaxation" of GA & PG Department Letter No.8543/Gen dated 11.03.2020.W.P.(C) No.27353 of 2023 Page 20 of 80
And whereas, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission are to conduct examination for appointment to various posts of State Civil Services etc. The opposite party No.1 has no jurisdiction over the power and function of the Odisha Public Service Commission with regards to the recruitment procedure.
Therefore, taking into the grounds observed as above, the claim of the petitioners for relaxation of Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 by invoking the powers conferred under Rule 18 of the said rules has no merit in the eyes of Law for consideration, hence rejected."
2.14. Questioning the propriety of Order of rejection of representation by the Government, the petitioners have moved this Court by way of filing the instant writ petition beseeching indulgence in the Order dated 04.08.2023 (Annexure-14).
Hearing:
3. On being noticed, the opposite parties have filed counter affidavit, additional affidavit and the petitioners have also filed rejoinder affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on their consent, this matter is taken up for final hearing at the stage of admission.W.P.(C) No.27353 of 2023 Page 21 of 80
3.1. Heard Sri Lalatendu Samantray, learned counsel along with Sri Satyabrata Mohanty, learned counsel appearing for the petitioners, Sri Ashok Kumar Apat, learned Additional Government Advocate appearing for the opposite party No.1 and Sri Pradipta Kumar Mohanty, learned Senior Counsel being assisted by Sri Pronoy Mohanty, learned counsel appearing for opposite party No.2.
3.2. Upon hearing, the matter stood reserved for preparation and pronouncement of Judgment.
Rival contentions and submissions:
4. Reiterating the contention as recorded by this Court in the Order dated 21.06.2023 passed in W.P.(C) No.18965 of 2023, Sri Lalatendu Samantray, learned Advocate along with Sri Satyabrata Mohanty, learned Advocate appearing for the petitioners submitted that delay in issuing final certificate on the ground that internship was not completed and delay in conducting the examination led to delay in completion of internship cannot prejudice the petitioners. He submitted that it is undeniable fact that the petitioners have passed the final BAMS and their names were provisionally registered with the OSCAM (statutory body constituted by the Government of Odisha). It has clearly been mentioned in the said Provisional Certificate of Registration issued on W.P.(C) No.27353 of 2023 Page 22 of 80 13.06.2022 that ―the Licence is valid till completion of internship‖, i.e., 18.06.2023. It is strenuously argued that for the petitioners had passed the final BAMS examination by the last date of furnishing applications for recruitment to the post of AMOs vide Advertisement No.03 of 2023-24, i.e., 08.06.2023, and were issued with Provisional Certificate of Registration, their candidature should not have been discarded.
5. Sri Ashok Kumar Apat, learned Additional Government Advocate appearing for the State referred to paragraphs 9, 11, 12 and 14 of the counter affidavit filed by opposite party No.1, wherein it has been affirmed as follows:
―9. That in reply to the averments made in Paragraph 10 of the Writ Petition, it is humbly submitted that, as per Rule 7 of the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 in order to be eligible to be appointed in the post of Ayurvedic Medical Officer, he/she must possess a Bachelors‟ Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or Institution recognized by the Central Council of Indian Medicine. He/she must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines and as the petitioners have not completed their Internship Training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines.W.P.(C) No.27353 of 2023 Page 23 of 80
11. That in reply to the averments made in Paragraph 19 of the Writ Petition, it is humbly submitted that, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission is "to conduct examination for appointment to various posts of State Civil Services etc. The State Government have no jurisdiction over the power and function of the Odisha Public Service Commission with regards to the recruitment procedure."
Hence, keeping in view the above constitutional provisions along with the provisions contained in the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 the order No.18678/H, dt.04.08.2023 under Annexure-14 to the Writ Petition has been issued.
12. That in reply to the averments made in Paragraph 20 of the Writ Petition, it is humbly submitted that, as per Section 28 of Indian Medicine Central Council. Act, 1970, the candidates have to register their names (provisionally) under the respective State Register of Indian Medicines by the board concerned in order to enable them to join the Internship training to practice Indian Medicine for the purpose of such training for a period of 12 months in an approved college and attached hospitals and for no other purpose for the aforesaid period and as at the time of publication of advertisement and as on the date of receiving the Application Form pursuant to the Advertisement, i.e., 08.06.2023 in respect of the posts of Ayurvedic Medical Officer by the Odisha Public Service Commission, the petitioners have not W.P.(C) No.27353 of 2023 Page 24 of 80 completed their Internship Training, as per the requirement, hence, their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines and for which their entitlement to apply for the said posts does not come within the purview of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 guiding the recruitment and conditions of service of the persons appointed to the post of Ayurvedic Medical Officer.
Moreover, it is not out of place to mention here that the process of recruitment is done in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and hence, it is not ultra-vires.
14. That in this context it is worthwhile to mention here that, Rule 18 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 inter alia provided that when it is considered by the Government that it is necessary or expedient so to do in the public interest, it may, by order, for reason to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of the employees.
Relaxation of eligibility for appointment to the post of Ayurvedic Medical Officer as required under Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 could not be accommodated since the same involves the interest of the individual and also contravene the provision of clause (a) i.e. "the public interest behind the proposed relaxation" of G.A. & P.G. Deptt. Letter No.8543/Gen, dt.11.03.2020.
W.P.(C) No.27353 of 2023 Page 25 of 80Further it is submitted that the petitioners have not completed their internship training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines.
Therefore, taking into the grounds observed as above, the claim of the petitioners for relaxation of Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 by invoking the powers conferred under Rule 18 of the said Rules has no merit in the eyes of law for consideration. As such, the O.P. No.1 has rightly rejected the representation of the petitioners vide Order No.18678, dated 04.08.2023 under Annexure- 14 of the writ petition."
6. Sri Pradipta Kumar Mohanty, learned Senior Advocate being assisted by Sri Pronoy Mohanty, learned Advocate appearing for opposite party No.2-Commission referred to paragraphs 3, 5, 11 and 12 of the counter affidavit, which read as under:
"3. That, the Government in Health & Family Welfare Department have reported the vacancy position to OPSC to conduct recruitment for 116 posts of Ayurvedic Medical Officer 30.01.2023. Basing upon the requisition & Rule 7(d) of the Odisha Ayurvedic Medical Service (Method of Recruitment & Conditions of Service) Rules, 2013, the following eligibility criteria has been incorporated at Para-4 of the Advertisement No.03 of 2023-24.
„A candidate must possess a Bachelor‟s Degree in Ayurvedic Medicine and Surgery (B.A.M.S.) or equivalent Degree from a University or Institution W.P.(C) No.27353 of 2023 Page 26 of 80 recognized by Central Council of Indian Medicine. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.‟ As per Clause-4 of IMCC (Amendment) Regulation, 2012, the candidate shall be awarded BAMS Degree after passing the final examination, and thereafter satisfactorily completing the compulsory Rotatory Internship extending over 12 months.
5. That, the last date of submission of online application form is 08.06.2023 for the post of Ayurvedic Medical Officer. As per the norms of advertisement the candidates, who have completed their BAMS Degree, Compulsory Rotatory Internship and registered themselves under Odisha State Council of Ayurvedic Medicines within the last date i.e. 08.06.2023 can be eligible for the said post.
11. That, the eligibility criteria as prescribed in Rules 7(d) of OAMS Rules 2013 is as follows:
„A candidate must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from a University or Institution recognized by the Central Council of Indian Medicine. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.‟ As per Clause-4 of IMCC (Amendment) Regulation, 2012, the candidate shall be awarded BAMS Degree after passing the final examination, and thereafter satisfactorily completing the compulsory Rotatory Internship extending over 12 months.W.P.(C) No.27353 of 2023 Page 27 of 80
Without completion of 12 months compulsory Rotatory Internship, one cannot be awarded with a valid BAMS Degree and Permanent Registration Certificate under Odisha State Council of Ayurvedic Medicines.
Rules 6(2) & 8(3) of OAMS Rules envisages the following procedure of direct recruitment:
„The Commission shall, on receipt of the vacancy position from the Government, invite applications from the eligible candidates in such manner as may be decided by them.‟ „The application forms, the manner of submission of application, the documents required to be accompanied with the application form, fee required and scrutiny of applications shall, as may, be decided by the Commission.‟ ***"
6.1. Learned Senior Counsel for the Commission vehemently contended that on the last date of submission of Online Application Forms, i.e., 08.06.2023, the petitioners neither have possessed a valid BAMS Degree Certificates and completion certificate of compulsory rotatory internship training, which is a part of the Degree curriculum nor did they possess valid registration certificates. They were not eligible to participate in the process of recruitment for the post of AMO. He further contended that the Order dated 04.08.2023 (Annexure-
14) rejecting the representation of the petitioners for relaxation under Rule 18 of the Odisha Ayurvedic W.P.(C) No.27353 of 2023 Page 28 of 80 Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 (―OAMS Rules‖, for convenience) is for just reasons as there is no public interest involved in the matter.
Analysis and discussions:
7. The Central Council of Indian Medicine vide Notification bearing No.28-14/2011-Ay (UG Regu), dated 25.04.2012 framed the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012 in exercise of power under the Indian Medicine Central Council Act, 1970 read with Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 1989, which provides as follows:
―4. Degree to be awarded:
Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-B.A.M.S.) The candidate shall be awarded Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-- B.A.M.S.) degree after passing the final examination, after completion of prescribed course of study extending over; prescribed period and thereafter satisfactorily completing the compulsory rotatory internship extending over twelve months."W.P.(C) No.27353 of 2023 Page 29 of 80
7.1. For better appreciation, it may be relevant to refer to Rules 6, 7 and 8 of the OAMS Rules, 2013, provisions of which are reproduced hereinbelow:
―6. Procedure for Direct Requirement:
(1) The Government shall intimate in each year the total vacancy position to the Commission during the recruitment year in the last week of January indicating the posts to be reserved for different reserved category of candidates mentioned under Rule 5.
(2) The Commission shall, on receipt of the vacancy position from the Government, invite applications from the eligible candidates in such manner as may be decided by them.
7. Eligibility Criteria:
In order to be eligible for appointment to the service by directed recruitment a candidate must fulfil the following conditions, namely:
(a) he must be a citizen of India;
(b) he must have attained the age of 21 years and must not be above 32 years on the 1st day of January of the year in which the applications are invited by the Commission:
Provided that the upper age limit in respect of reserved categories of candidates referred to in Rule 5 shall be relaxed in accordance with the provisions of the Act, rules, orders or instructions, for the time being in force, for the respective categories.W.P.(C) No.27353 of 2023 Page 30 of 80
(c) he must be able to read, write and speak Odia;
and have
(i) passed Middle School examination with Odia as a language subject; or
(ii) passed Matriculation or equivalent examination with Odia as medicum of examination in non-language subject; or
(iii) passed in Odia as language subject in the final examination of Class VII or above; or
(iv) passed a test in Odia in Middle School Standard conducted by the Board of Secondary Education, Odisha / School & Mass Education Department;
(d) he must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or institution recognised by the Central Council of Indian Medicine.
He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines;
(e) he/she if married, must not have more than one spouse living:
Provided that the State Government may, if satisfied, that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule;W.P.(C) No.27353 of 2023 Page 31 of 80
(f) he must be of sound mental and physical health, good physique and active habits and free from organic defects or bodily infirmity and communicable diseases which would likely to interfere with his/her discharge of his/her duties in the service. A candidate, who after such medical examination is not found to satisfy those requirements, shall not be appointed to the service.
8. Method of Recruitment to Group-"B" posts:
(1) The Government shall intimate to the Commission the number of vacancies of Ayurvedic Medical Officer, Drugs Inspector, Scientific Officer likely to occur in that year, indicating therein the number of posts required to be filled up by way of reservations of posts for persons belonging to different categories.
(2) On receipt of the intimation, the Commission shall publish advertisement at least in two vernacular daily newspapers having wide circulation in Odisha, inviting applications for selection.
(3) The application forms, the manner of submission of application, the documents required to be accompanied with the application form, fee required and scrutiny of applications shall be as may decided by the Commission.
(4) Recruitment for post Ayurvedic Medical Officer by the OPSC shall be based on career marking and written test conducted in the manner provided in these rules and an accordance with the syllabus as specified in Appendix-"A".W.P.(C) No.27353 of 2023 Page 32 of 80
(a) Career marking shall be for 30% (10% each for class-10th, class-12th and BAMS) and 70% for written test.
(b) Computerized question paper for objective, multiple test shall be prepared by the Commission at their level. But, questions will be as per the Bachelor of Ayurvedic Medicine and Surgery (BAMS) curriculum.
(5) The Commission shall prepare a list of candidates in order of merit on the basis of career marking and written test which shall be equal to the number of advertised vacancies:
Provided that, if two or more candidates secure equal marks then the candidate securing higher marks in BAMS Examination shall find place above the others in the merit list and in case marks obtained in BAMS Examination is also the same, the candidate elder in age shall be placed above the younger.
(6) The list recommended by the Commission shall remain valid for one year from the date of the recommendation or till the next recruitment made by the Commission."
7.2. A conjoint reading of the aforesaid OAMS Rules, 2013 and the clauses contained in the Advertisement, as referred to above, it is manifest that a candidate making an Application for the post of AMO, inter alia, required to possess a Bachelor Degree in Ayurvedic Medicine and Surgery or equivalent Degree from an University or an Institution recognized by the Central Council of Indian W.P.(C) No.27353 of 2023 Page 33 of 80 Medicine with additional requirement of registering himself/herself under the OSCAM.
7.3. Perusal of record shows that the Principal, Gopabandhu Ayurveda Mahavidyalaya, Puri has issued Letter dated 13.06.2022 (Annexure-4) indicating that the petitioners were ―declared passed in Final BAMS Examination December, 2021 from Utkal University, Vani Vihar, Bhubaneswar vide Notification No.EC.I/11284/2022, dated 09.06.2022‖. The internship commenced on 16.06.2022. The same was supposed to be completed on 15.06.2023, but due to certain anomalous position, the same was certified to be completed on 18.06.2023.
7.4. The Provisional Certificate of Registration reflected that the petitioners ―passed the final BAMS (Bachelor of Ayurvedic Medicine and Surgery)/Ayurvedacharya Examination from Gopabandhu Ayurveda Mahavidyalaya, Puri under Utkal University, held in December, 2021 is provisionally registered with this Council for employment in a resident medical capacity in any approved Institution of the State of Odisha. *** The Licence is valid till completion of internship‖.
7.5. Cumulative reading of Rule 7(d) of the OAMS Rules, 2013 and Clause-4 of the Advertisement, would lead to demonstrate that the eligibility criteria for the candidates for the present purpose are:
W.P.(C) No.27353 of 2023 Page 34 of 80i. A candidate must possess a Bachelor's Degree in Ayurvedic Medicine and Surgery (BAMS); and ii. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.
7.6. So far as the first criterion of having in possession Bachelor's Degree in Ayurvedic Medicine and Surgery is concerned, it transpires from the Letter dated 13.06.2022 of the Principal Gopabandhu Ayurveda Mahavidyalaya that the petitioners have passed Final BAMS Examination held in December 2021 from Utkal University. Such fact is also reflected in the Provisional Certificate of Registration. However, Regulation 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012 with amendments in the years 1989, 2005, 2010 and 2011 (Annexure-1) framed with previous sanction of the Central Government in exercise of powers conferred by clauses (i), (j) and (k) of Section 36 of the Indian Medicine Central Council Act, 1970 (48 of 1970) on the Central Council of Indian Medicine, requires fulfilment of the following conditions:
"The candidate shall be awarded Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-- BAMS) degree after passing the final examination, W.P.(C) No.27353 of 2023 Page 35 of 80 after completion of prescribed course of study extending over; prescribed period and thereafter satisfactory completing the compulsory rotatory internship extending over twelve months."
7.7. Regulation 7 of said Regulations, 1989 specifies that the duration of ―compulsory internship‖ is one year.
7.8. Regulation 4 and Regulation 7 unequivocally stipulate that for construing a candidate to possess the qualification of BAMS Degree, he or she not only shall have to complete prescribed course of study for the specified period, but also has to satisfactorily complete the compulsory rotatory internship of a duration of one year.
7.9. The last date as specified in the Advertisement was 08.06.2023. The Principal of Gopabandhu Ayurveda Mahavidyalaya by Letter dated 13.06.2022 clarified that the petitioners passed Final BAMS Examination held in December, 2021 from Utkal Universify, but they were required to undergo internship training for a period of 12 months (or one year) in the College and attached Hospital. From Letter dated 16.06.2022 of the said Principal (Annexure-5) it is surfaced that the compulsory rotating Housemanship training commenced with effect from 16.06.2022. Undisputedly the same came to an end on 18.06.2023.
W.P.(C) No.27353 of 2023 Page 36 of 807.10. Unflinchingly the award of Degree in BAMS can be said to have been made after the date of completion of compulsory internship in terms of Regulation 4 read with Regulation 7 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012.
7.11. The events discussed above clarifies that on the last date stipulated for submission of Applications, the petitioners though passed the Final Examination, they were not in possession of BAMS Degree Certificate as by then the internship was not completed. The petitioners have not challenged the vires of the Regulations.
7.12. So far as the second condition is concerned, the Provisional Certificate of Registration depicts that the petitioners are registered with the OSCAM which remained valid till completion of internship.
7.13. It has already been stated that the Provisional Certificate of Registration made it clear that the petitioners have been registered under the OSCAM being assigned with registration numbers on 13.06.2022. The Letter dated 13.06.2022 of the Principal of the Gopabandhu Ayurveda Mahavidyalaya read with the contents of the Provisional Certificate Registration is unambiguous that the petitioners have passed the Final BAMS Examination held in December, 2021 from Utkal University. In terms W.P.(C) No.27353 of 2023 Page 37 of 80 of Regulation 4 and Regulation 7 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012, read with the Letters of the Principal, Gopabandhu Ayurveda Mahavidyalaya, it is crystal clear that Degree in Ayurvedacharya (BAMS) can only be awarded only after requirements stipulated therein are fulfilled. Thus, the requirement of Clause-4 of the Advertisement read with Rule 7(d) of the OAMS Rules, 2013, cannot be said to have been satisfied till completion of compulsory internship and Degree in Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-- BAMS) is awarded.
8. With the above position with respect to status of the petitioners as on the last date of submission of Application as per the Advertisement, i.e., 08.06.2023 and the internship of the petitioners were completed on 18.06.2023 (even if their explanation is considered, it would be 15.06.2023), it cannot be asserted that they possessed the Degree in Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-- BAMS), as on 08.06.2023. Therefore, the claim of the petitioners has no substance.
8.1. This Court is now called upon to consider whether the decision of the Commissioner-cum-Secretary to Government of Odisha in Health and Family Welfare Department vide Order dated 04.08.2023 is tainted with W.P.(C) No.27353 of 2023 Page 38 of 80 misconception and said Order has been passed on misdirected approach.
8.2. Rule 6(1) of the OAMS Rules, 2013 provides that the Government shall intimate in each year the total vacancy position to the Commission during the recruitment year in the last week of January indicating the posts to be reserved for different category of candidates mentioned under Rule 5. Sub-rule (2) thereof makes it further clarified that the ―Commission‖ shall, on receipt of the vacancy position from the Government, invite Applications from eligible candidates in such manner as may be decided by them. Thus, discretion has been granted to the Commission for taking appropriate decision with regard to manner of inviting Applications.
8.3. The Advertisement No.03 of 2023-24 has been issued inviting Applications for recruitment to the post of Ayurvedic Medial Officer in the rank of Group-B under the Health and Family Welfare Department specifying the vacancy position as follows:
Sl. Category No. of posts
No.
1 2 3
1. UR 70 (23 - W)
2. SEBC 13 (04 - W)
3. SC 11 (04 - W)
4. ST 22 (07 - W)
Total 116 (38 - W)
W.P.(C) No.27353 of 2023 Page 39 of 80
8.4. There is no pleading nor averment or even suggestion by the petitioners that there was non-compliance or non- adherence to requirements by the opposite parties as envisaged under Rule 6 of the OAMS Rules.
8.5. What is perceived from the impugned Order dated 04.08.2023 of the Government for rejection of representation of the petitioners is non-completion of internship training as envisaged under Rule 7 and required under Rule 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012. Such being policy through Regulations, exercising the power of judicial review, this Court can only examine the decision making process, but not the decision itself. This Court has little scope left for exercise of jurisdiction to show indulgence.
8.6. It may deserve to be noted that the OAMS Rules, 2013, have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Article 309 is a self-contained code for regulating the recruitment and the conditions of service of the persons appointed to public services and posts in connection with the affairs of the Union or State. It only delegates the power to the President or the Governor and declares them as competent to regulate in the cases of services and posts in connection with the affairs of the State to W.P.(C) No.27353 of 2023 Page 40 of 80 make Rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until the provisions in that behalf is made by or under any Act by the appropriate Legislature. It only succinctly lays that because of Article 309 of the Constitution, the Union Government or the State Government are not divested of their powers of legislating a statute regulating the recruitment and conditions of service of a person appointed to the public services and posts in connections with the affairs of the Union or of any State.
8.7. It is illuminatingly clarified by the Hon'ble Supreme Court in CMD/Chairman, B.S.N.L. Vrs. Mishri Lal, (2011) 5 SCR 317 that, "12. Rules under Article 309 can be changed even during the subsistence of the old Rules. As held in Raj Kumar Vrs. Union of India, AIR 1975 SC 1116 (vide para 7), „Rules made under the proviso to Article 309 of the Constitution are legislative in character, and therefore can be given effect to retrospectively.‟ Thus, Rules under the proviso to Article 309 are Constitutional rules, not like rules under a statute. Hence they have the same force as a Statute, though made by the executive.
13. It is well settled that the Legislature can legislate retrospectively vide M.P.V. Sundararamier & Co. Vrs.
W.P.(C) No.27353 of 2023 Page 41 of 80State of Andhra Pradesh, AIR 1958 SC 468, J.K. Jute Mills Vrs. State of Uttar Pradesh, AIR 1961 SC 1534, Jadao Bahuji Vrs. Municipal Committee, AIR 1961 SC 1486, Government of Andhra Pradesh Vrs. Hindustan Machine Tools Ltd., AIR 1975 SC 2037 (para 8), Nandumal Girdharilal Vrs. State of Uttar Pradesh, AIR 1992 SC 2084, etc.
14. Hence, the approach of the High Court, in our opinion, was totally incorrect. In State of Punjab and others Vrs. Arun Aggarwal and others, (2007) 10 SCC 402, it was observed (in para 30):
„There is no quarrel over the proposition of law that the normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not the new Rules. However, in the present case, we have already held that the Government has taken a conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case.‟
15. In the present case, a conscious decision was taken in 2005 providing that all the posts in question should be filled up by Limited Internal Competitive Examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions.
16. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in W.P.(C) No.27353 of 2023 Page 42 of 80 character vide Raj Kumar Vrs. Union of India AIR 1975 SC 1116 the Rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect.
17. In our opinion the expression „vested right‟ could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the Rules.
18. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board Vrs. C.R. Rangadhamaiah, (1997) 6 SCC 623. It was held therein that pension is no longer treated as a bounty but was a valuable Constitutional right under Articles 19(1)(f) and 31(1) of the Constitution, which were available on 01.01.1973 and 01.04.1974 (that is before the 44th Constitution Amendment). Since this was a Constitutional right it could not be taken away by amendment of the Rules. The Constitution is the supreme law of the land, and hence a Constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute.
19. Hence in view of the aforesaid Constitution Bench decision the other decisions of this Court of smaller benches must be understood to mean that a vested Constitutional right cannot be taken away by amendment of the Rules. It follows that if the vested right is not a Constitutional right it can be taken away by retrospective amendment of the Rules. A legislative Act can destroy existing rights, (unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India Vrs. Madangopal, W.P.(C) No.27353 of 2023 Page 43 of 80 AIR 1954 SC 158, Jawaharlal Vrs. State of Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel Co. Ltd. Vrs. State of Bihar, AIR 1958 SC 452, D.G. Gouse & Co. Vrs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. Vrs. Collector, AIR·1979 SC 1972 (para 6-7), etc.
20. A Rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated legislation like a rule made under a statute. Hence it can be amended retrospectively."
8.8. It is manifest from the OAMS Rules, 2013, that the Rules have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, whereas the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012 has been made in exercise of the powers conferred on the Central Council of Indian Medicine by Section 36 of the Indian Medicine Central Council Act, 1970 with the previous sanction of the Central Government.
8.9. Conditions for ―Degree to be awarded‖ in respect of Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-- BAMS) are envisaged under Regulation 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012. Rule 7(d) of the OAMS Rules, 2013 read with Clause-4 of the Advertisement W.P.(C) No.27353 of 2023 Page 44 of 80 No.03 of 2023-24 clearly evinces the fact of requirement of possession of Bachelor's Degree in Ayurvedic Medicine and Surgery (BAMS) for making Application.
8.10. Clause 10 of the Advertisement No.03 of 2023-24 required certificates and documents to be attached to the Application Form, inter alia:
"(ii) BAMS Degree Certificate issued by the concerned University;
(v) Internship Training Completion Certificate within last date of submission of Online Application Form
(vi) Medical Registration Certificate under the Odisha State Council of Ayurvedic Medicines."
It is also made clear in Note-1 appended thereto that:
"(a) The candidates have to upload their relevant documents as required by the system while filling up Online Application Form, failing which their candidature shall be rejected."
8.11. Clause-11 of aforesaid Advertisement provides for ―Grounds of rejection of Application‖, inter alia, "(f) Not having requisite qualification as provided under Paragraph-4 of Advertisemnt.
(g) Not furnishing copies of certificates/documents as provided under Paragraph-10 of Advertisement."
8.12. As the petitioners did not have in their possession Bachelor‟s Degree in Ayurvedic Medicine and Surgery W.P.(C) No.27353 of 2023 Page 45 of 80 (BAMS) and registration under the OSCAM as on 08.06.2023, i.e., last date stipulated for making Application, the decision of the Government cannot be gainsaid as tainted.
8.13. The decision in Monu Singh Vrs. Union of India, 2024 SCC OnLine Del 8181 may deserve to be referred to in the context where the conditions stipulated or requirements specified for making Application for the post advertised are not fulfilled or satisfied:
"12. The petitioner has not disputed that the experience certificate that was uploaded by him along with this application, did not meet the eligibility criteria. The new certificate that the petitioner sought to produce before the respondents could not be taken cognizance of and, therefore, the candidature of the petitioner was rightly rejected by the competent authority of the respondents.
13. We are of the opinion that the advertisement clearly spelt out the requirements for the post, including the experience. It also required the candidates to upload their experience certificate at the time of filling up the application form. The document verification stage is for verifying the documents that have been so uploaded by the petitioner. The petitioner at that stage cannot produce new documents to claim his eligibility. Though, it may seem to be a minor infraction by the petitioner in not uploading the correct experience certificate, we cannot lose sight of the fact that there may be other candidates who may have been rejected, and in fact, we have been W.P.(C) No.27353 of 2023 Page 46 of 80 informed that other candidates were rejected on this ground of discrepancy, or even would not have applied as they did not possess the requisite experience certificate on the date of their application. Giving relief to the petitioner would be doing injustice to these candidates."
8.14. This Court again may make note of the fact that the vires of such provision contained in Rules/Regulations has not been questioned in this writ petition.
8.15. The observations made in B.S. Vadera Vrs. Union of India, (1968) 3 SCR 575 may have significance in the present context:
"22. The matter must be considered, in the light of the provisions of Article 309, of the Constitution. That Article provides:
„309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to W.P.(C) No.27353 of 2023 Page 47 of 80 such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.‟ We may emphasize the words "and any Rules so made shall have effect subject to the provisions of any such Act," which must receive their due weight. To that aspect, we shall come, presently.
23. We have already pointed out, that Annexure 4 was issued on February 5, 1957, and Annexure 7, on March 30, 1963, and that the initial constitution of the Service was to be from December 1, 1954, and it is, on that basis, that the promotions, or appointments, to the Service, are to be made. In this case, there is no Act of the appropriate Legislature, regulating the recruitment and conditions of service, under the 2nd respondent and, therefore, the main part of Article 309 is not attracted. But, under the Proviso therein, the President has got full power to make Rules, regulating the recruitment, and conditions of service, of persons, under the 2nd respondent Further, under the Proviso, such person, as may be directed by the President, can also make rules, regulating the recruitment and conditions of service, of persons, under the 2nd respondent. The rules so made, either by the President, or such person, as he may direct, will have currency, until provision, in that behalf, is made by or under an Act, of the appropriate Legislature, under Article 309.
24. It is also significant to note that the proviso to Article 309, clearly lays down that „any Rules so made shall have effect, subject to the provisions of any W.P.(C) No.27353 of 2023 Page 48 of 80 such Act‟. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning, unless hedged-in, by any limitations. The rules, which have to be „subject to the provisions of the Constitution, shall have effect, „subject to the provisions of any such Act‟. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate legislature, on the matter, „in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively, and, retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such-rules. In other words, the Rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority."
8.16. A Constitution Bench of the Hon'ble Supreme Court of India in B.N. Nagarajan Vrs. State of Mysore, AIR 1966 SC 1942 = 1966 3 SCR 682 laid down as follows:
"It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words „shall be as set forth in the Rules of recruitment of such service specially made in that behalf‟ clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make Rules of recruitment, etc., before a service can be W.P.(C) No.27353 of 2023 Page 49 of 80 constituted or a post created or filled. This is not to say that it is not desirable that ordinarily Rules should be made on all matters which are susceptible of being embodied in Rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power to make laws. It follows from this that the State Government will have executive power in respect of List-II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur Vrs. State of Punjab, (1955) 2 SCR 225 that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory Rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or Act contrary to that Rule or Act."
8.17. Noteworthy here to consider the status of Rules and Regulations and have reference to Vidya Dhar Pande Vrs. Vydut Grih Siksha Samiti, AIR 1989 SC 341, wherein it has been observed that, "7. Two questions therefore, fall for consideration namely whether the regulations framed pursuant to a statute can be said to have a statutory force, the breach of which will entitle the aggrieved employee to get a declaration that the impugned order was invalid and illegal and the employee should be W.P.(C) No.27353 of 2023 Page 50 of 80 allowed to continue in service or should be reinstated in service. The High Court has relied upon the decision of this Court in Dr Ram Pal Chaturvedi Vrs. State of Rajasthan, (1970) 1 SCC 75 as well as Indian Airlines Corporation Vrs. Sukhdeo Rai. (1971) 2 SCC 192. In the case of Dr Ram Pal Chaturvedi Vrs. State of Rajasthan, (1970) 1 SCC 75 the appointment of three respondents namely Dr D.G. Ojha, Dr P.D. Mathur and Dr Rishi as Principals of Sr. Patel Medical College. Bikaner, Rabindra Nath Tagore Medical College, Udaipur and Medical College, Jodhpur respectively was challenged on the ground that though they fulfilled the qualifications prescribed by Rule 30(4) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, they had not the requisite experience as provided in Ordinance 65 framed under the University of Rajasthan Act of 1946 and as such their appointments were not valid and legal. The Syndicate of the Rajasthan University constituted under Section 21 of the Act is empowered under Section 29 read with Section 30 to make ordinances, consistent with the Act and statutes, to provide for the matters listed in Section 29. These matters include in clause VI "emoluments and conditions of service of University teachers". The Syndicate made the ordinances pursuant to the provisions of this section. It was held that: (SCC p. 80, para 4) „The field of operation of this Ordinance appears to us to be restricted to the question of affiliation of the colleges concerned with the Rajasthan University. It is noteworthy that the University has not thought fit to object to these appointments. If there is any violation of a provision of this Ordinance then that W.P.(C) No.27353 of 2023 Page 51 of 80 may appropriately be taken into account by the Rajasthan University for the purpose of withdrawing or refusing to continue affiliation of the colleges in question. But clearly that would not render the impugned appointments null and void a fortiorari that cannot confer any right on Dr Ram Pal Chaturvedi to approach the High Court by means of petition for writ of quo warranto to challenge the appointments of these three persons.‟
8. This decision is not an authority for the proposition that Regulations framed pursuant to a statute do not have a statutory force. High Court was in error in holding otherwise. This question is, however, concluded in favour of the appellant by a decision of this Court rendered by a three-Judge Bench.
9. The question whether a regulation framed under power conferred by the provisions of a statute has got statutory power and whether an order made in breach of the said regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh Vrs. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 = (1975) 3 SCR 619. In this case it was held that: [SCC p. 438, para 33] „There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Industrial Finance Corporation are all required W.P.(C) No.27353 of 2023 Page 52 of 80 by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the conditions.‟
10. There is, therefore, no escape from the conclusion that regulations have force of law. The order of the High Court must, therefore, be reversed on this point unhesitatingly.
11. In Indian Airlines Corporation Vrs. Sukhdeo Rai, (1971) 2 SCC 192 the respondent who was an employee of the Indian Airlines Corporation was found guilty of certain charges and dismissed from service after an enquiry held in breach of the procedure laid down by the Regulations made by the appellant under Section 45 of the Air Corporation Act, 1953. A suit was filed by the respondent challenging the order of termination. It was decreed by the trial court holding that the dismissal was illegal and granted a declaration that he be continued to remain in service. The appellate court W.P.(C) No.27353 of 2023 Page 53 of 80 as well as the High Court confirmed the decree. On appeal this Court held that the relationship between the appellant, Indian Airlines Corporation and the respondent would in such cases be contractual i.e. as between a master and servant and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined. The termination though wrongful in breach of the terms and conditions which governed the relationship between the Corporation and the respondent yet it did not fall under any of the three well-recognised exceptions and therefore the respondent was only entitled to damages and not to a declaration that his dismissal was null and void. The respondent has sought support from this decision. We are afraid the contention is wholly untenable. The decision in Indian Airlines case, (1971) 2 SCC 192 has in terms been declared to be no longer good law and has in terms been overruled in Sukhdev Singh case, (1975) 1 SCC 421 = (1975) 3 SCR 619 by the Constitution Bench. Says Ray, C.J. speaking for the Court: [SCC pp. 437-38, paras 30 and 31] „In the Indian Airlines Corporation case, (1971) 2 SCC 192 this Court said that there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the employment could be exercised the employee could not contend that he was entitled to a declaration that the termination of his employment was null and void. In the Indian Airlines Corporation case, (1971) 2 SCC 192 reliance was placed upon the decision of Kruse Vrs. Johnson, (1898) 2 QB 91 for the view that not all bye-laws have the force of law. This W.P.(C) No.27353 of 2023 Page 54 of 80 Court regarded regulation as the same thing as bye- laws. In Kruse Vrs. Johnson, (1898) 2 QB 91 the court was simply describing the effect that the county bye-laws have on the public. The observations of the court in Kruse Vrs. Johnson, (1898) 2 QB 91 that the bye-law „has the force of law within the sphere of its legitimate operation‟ are not qualified by the words that it is so--
„only when affecting the public or some section of the public. . . ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance.‟ In this view a regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation. The regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature.
In U.P. Warehousing Corporation Vrs. C.K. Tyagi, (1969) 2 SCC 838 and Indian Airlines Corporation case, (1971) 2 SCC 192 the terms of the regulations were treated as terms and conditions of relationship between the Corporation and its employees. That does not lead to the conclusion that they are of the same nature and quality as the terms and conditions laid down in the contract of employment. Those terms and conditions not being contractual are imposed by one kind of subordinate legislation, viz.
W.P.(C) No.27353 of 2023 Page 55 of 80regulations made in exercise of the power conferred by the statute which constituted that Corporation. Terms of the regulations are not terms of contract. In the Indian Airlines Corporation case, (1971) 2 SCC 192 under Section 45 of the Air Corporations Act, 1953, the Corporation had the power to make regulations not inconsistent with the Act and the rules made by the Central Government thereunder. The Corporation had no power to alter or modify or rescind the provisions of these regulations at its discretion, which it could do in respect of the terms of contract that it may wish to enter with its employees independent of these regulations. So far as the terms of the regulations are concerned, the actions of the Corporation are controlled by the Central Government. The decisions of this Court in U.P. Warehousing Corporation Vrs. C.K. Tyagi, (1969) 2 SCC 838 and Indian Airlines Corporation, (1971) 2 SCC 192 are in direct conflict with decision of this Court in Mafatlal Naraindas Barot Vrs. Divisional Controller, STC, AIR 1966 SC 1364 = (1966) 3 SCR 40 which was decided by the Constitution Bench.‟ ***"
8.18. In Directorate of Film Festivals Vrs. Gaurav Ashwin Jain, (2007) 4 SCC 737 = (2007) 5 SCR 7, it has succinctly been held as follows:
"The scope of judicial review of Governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The W.P.(C) No.27353 of 2023 Page 56 of 80 scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. [Vide: Asif Hameed Vrs. State of J&K, (1989) Supp.2 SCC 364; Shri Sitaram Sugar Co. Ltd. Vrs. Union of India, (1990) 3 SCC 223; Khoday Distilleries Vrs. State of Karnataka, (1996) 10 SCC 304, Balco Employees Union Vrs. Union of India, (2002) 2 SCC 333, State of Orissa Vrs. Gopinath Dash, (2005) 13 SCC 495 and Akhil Bharat Goseva Sangh Vrs. State of Andhra Pradesh, (2006) 4 SCC 162]."
8.19. This Court feels it expedient to have regard to the following observation in the case of Devesh Sharma Vrs. Union of India, 2023 LiveLaw (SC) 633:
"36. The introduction of B.Ed. as a qualification by NCTE on the directions of the Central Government is a policy decision of the Government, as has been submitted before this Court, and is also evident from the sequence of events, the minutes of the various meeting and the order passed in this regard. Section 29 of NCTE Act which mandates that NCTE must follow the directions of the Central Government in discharging of its functions. It is a policy decision which binds NCTE.
We have absolutely no doubt in our mind that policy decisions of the Government should W.P.(C) No.27353 of 2023 Page 57 of 80 normally not be interfered with, by a constitutional Court in exercise of its powers of judicial review. At the same time if the policy decision itself is contrary to the law and is arbitrary and irrational, powers of judicial review must be exercised.
A policy decision which is totally arbitrary; contrary to the law, or a decision which has been taken without proper application of mind, or in total disregard of relevant factors is liable to be interfered with, as that also is the mandate of law and the Constitution. This aspect has been reiterated by this Court time and again.
Judicial review becomes necessary where there is an illegality, irrationality or procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions Vrs. Minister for the Civil Service, (1984) 3 All ER 935 :
1985 AC 374 : (1984) 3 WLR 1174 (HL) (commonly known as CCSU case). The above decision has been referred by this Court in State of NCT of Delhi Vrs. Sanjeev, (2005) 5 SCC 181. This view was reiterated again by this Court in State of M.P. & Ors. Vrs. Mala Banerjee, (2015) 7 SCC 698:
„6. We also find ourselves unable to agree with the appellants‟ submission that this is a policy matter and, therefore, should not be interfered with by the courts. In Federation of Railway Officers Assn. Vrs. Union of India, (2003) 4 SCC 289, this Court has already considered the scope of judicial review and has enumerated that where a policy is contrary to law or is in violation of the provisions of the W.P.(C) No.27353 of 2023 Page 58 of 80 Constitution or is arbitrary or irrational, the courts must perform their constitutional duties by striking it down...‟ In Brij Mohan Lal Vrs. Union of India, (2012) 6 SCC 502 this Court reiterated on this aspect and made out a distinction as to where an interference to a decision is required, and whereas it is not:
„100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or legislations.
(VI) If the delegate has acted beyond its power of delegation.W.P.(C) No.27353 of 2023 Page 59 of 80
101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with Government policy."
The decision whether to include or exclude B.Ed. as a qualification for teachers in primary school is an academic decision, which has to be taken after proper study by the academic body i.e. NCTE and should be better left to this expert body."
8.20. Judicial review vis-à-vis non-uploading requisite documents being discussed in Rohit Kumar Vrs. Union of India, 2022 SCC OnLine Del 1219 requires to be taken note of:
"10. The petitioner was declared successful in Stage I i.e. "written examination" conducted on 28-9-2021 and Stage II i.e. physical fitness test (PFT) held on 16-11- 2021. Stage II was to be followed by document verification but was declared failed during scrutiny/verification of documents. The petitioner W.P.(C) No.27353 of 2023 Page 60 of 80 was declared unsuccessful in document verification conducted on 16-11-2021 on two counts as OBC certificate uploaded by the petitioner was not as per the format as mentioned in para 6(c) (v) Note (aaa) of advertisement Cgept-1/2022 Batch i.e. the format mandated for appointment to the posts under Government of India despite it was mentioned in the advertisement that no other format will be entertained and candidature would be cancelled if OBC certificate in any other format is submitted and the petitioner mentioned date of issuance of OBC certificate as 10-5-2021 in online application whereas in two OBC certificates submitted by the petitioner, the dates of OBC certificate were mentioned as 10.05.2018 and 20.07.2021 which was not in accordance with Para 5(c)(i) of the advertisement. The petitioner did not dispute these facts. The representation submitted by the petitioner was rejected on 30.11.2021.
11. The petitioner is seeking judicial review of acts of the respondents in cancelling his candidature for post of Navik (DB) as arbitrary, mala fide and against principles of natural justice. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected. Judicial review is designed to prevent the excess and abuse of power by public authorities. It was held in Chief Constable of North Wales Police Vrs. Evans, (1982) 1 WLR 1155 = (1982) 3 All ER 141 that the purpose of judicial review is to ensure that the individual receives fair treatment. In Laker Airways Ltd. Vrs. Deptt. of Trade, 1977 QB 643 = (1977) 2 WLR 234 = (1977) 2 All ER 182, it was observed that W.P.(C) No.27353 of 2023 Page 61 of 80 discretionary power is to be exercised for the public goods and this exercise can be examined by the courts. Lord Diplock in Council of Civil Service Unions Vrs. Minister for the Civil Service, 1985 AC 374 = (1984) 3 WLR 1174 observed that administrative action is subject to judicial review on the grounds which are "illegality", "irrationality" and "procedural impropriety".
12. In India, negation of arbitrariness in the exercise of public power is considered to be cardinal component of the rule of law. The courts in India have invalidated arbitrary exercise of administrative power. Article 14 of the Constitution strikes at arbitrariness in State action and ensures fairness and equality of treatment. In E.P. Royappa Vrs. State of T.N., (1974) 4 SCC 3 = AIR 1974 SC 555, the Supreme Court observed that Article 14 embodied a guarantee against arbitrariness. The Supreme Court in Maneka Gandhi Vrs. Union of India, (1978) 1 SCC 248 = AIR 1978 SC 597 observed that Article 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It was also observed in S.R. Bommai Vrs. Union of India, (1994) 3 SCC 1 = AIR 1994 SC 1918 that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority and is basic feature of the Constitution.
13. However judicial review is concerned with legality rather than merit of the case. The courts cannot substitute its own view in exercise of power of judicial review. The judicial review is not an appeal against the decision taken by the authority concerned. Judicial review is stated to be protection W.P.(C) No.27353 of 2023 Page 62 of 80 and not a weapon. In Tata Cellular Vrs. Union of India, (1994) 6 SCC 651 observed that judicial review is concerned with reviewing and not with merits of the decision.
14. The recruitment refers to the process of finding possible suitable candidates for a job or function to be undertaken by the recruiters and advertising is common part of the recruiting process. It is for the employer to prescribe modalities of selection process, eligibility criteria and conditions for potential candidates.
15. The Supreme Court in various decisions considered relevance of conditions prescribed for recruitment to any post. The Supreme Court in J. Ranga Swamy Vrs. Govt. of A.P., (1990) 1 SCC 288 observed that it is not for the court to consider the relevance of qualifications prescribed for various posts. In Yogesh Kumar Vrs. State (NCT of Delhi), (2003) 3 SCC 548, the Supreme Court observed that recruitment to public service should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any and further deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. The Supreme Court in Bedanga Talukdar Vrs. Saifudaullah Khan, (2011) 12 SCC 85 observed as under:
„It is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour W.P.(C) No.27353 of 2023 Page 63 of 80 being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates, who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.‟
16. The Supreme Court in Punjab National Bank Vrs.
Anit Kumar Das, 2020 SCC OnLine SC 897 held as under:
„It is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the courts to consider and assess. The greater latitude is permitted by the courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an institution or an industry or W.P.(C) No.27353 of 2023 Page 64 of 80 an establishment as the case may be. The courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts.‟ ***
18. This Court in various decisions also considered deviation in terms and conditions prescribed by any public authority for recruitment of any post. This Court in Union Public Service Commission Vrs. State (NCT of Delhi), 2010 SCC OnLine Del 293 held that no deviation from the terms and conditions of an advertisement and rules for the recruitment for a public office shall be permitted, as such deviation would result in gross injustice to other candidates.
This Court again in decision delivered in Union Public Services Commission Vrs. Tarun Arora, 2017 SCC OnLine Del 12884 has held that while there is no straitjacket precept to balance the administrative difficulties that may arise as a result of rectifying a lapse, the court would give precedence to the compelling difficulties which may arise upon considering the application. It was observed as under:
„15. We appreciate and can understand the frustration of the respondent as he has the requisite qualifications yet would suffer for the lapse and error on his part in filling the online application form. At the same time, to accept the plea of the respondent in the present case would lay down the wrong precedent, which would lay the foundation for administrative W.P.(C) No.27353 of 2023 Page 65 of 80 confusion and chaos. The selection process would halt, get stalled, and would possibly collapse.
16. The courts, while examining such issues have to maintain a right balance between the mistake and chance to rectify the lapse, and the administrative difficulties and consequences. Administrative difficulties, thus, should be balanced with the adverse impact befalling the candidate. A straitjacket precept in Pradeep Kumar Vrs. Union of India, (2022) 1 HCC (Del) 287 p. 8 of 8 may not be universally applicable. The nature of the selection process, the terms stipulated, whether the rectification and amendment would make the selection process unyielding and unmanageable, are different facets which must be considered.
Where the application forms are vague and unclear, the benefit must and should be given to the applicant.
17. In the present case, the administrative difficulties which are compelling must be given primacy, for otherwise the selection process would be impede, become disorderly and crumble. The present case does not warrant indulgence and concession to the respondent.‟
19. The counsel for the petitioner cited Ram Kumar Gijroya Vrs. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754 by the Supreme Court of India. The said appeals were arisen out of the impugned common judgment and order dated 24.01.2012 passed by the High Court of Delhi in Delhi Subordinate Services Selection Board Vrs. Ram W.P.(C) No.27353 of 2023 Page 66 of 80 Kumar Gijroya, 2012 SCC OnLine Del 472 whereby the High Court had set aside the judgment and order dated 24.11.2010 passed in Ram Kumar Gijroyer Vrs. Govt. of NCT of Delhi, 2010 SCC OnLine Del 4780 wherein the learned Single Judge had allowed the writ petition and directed the respondents to accept the OBC certificate of the appellants therein. The important question of law to be decided in those appeals was whether a candidate who appears in an examination under the OBC category and submits the certificate after the last date mentioned in the advertisement was eligible for selection to the post under the OBC category or not.
20. In the said case, the respondent Delhi Subordinate Services Selection Board (hereinafter referred to as "the Dsssb") invited applications for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Government of NCT of Delhi. The appellant submitted the application before the due date and was shortlisted for selection but his name did not appear in the final list of selected candidates. The appellant was informed that he was not selected to the post as he did not submit OBC certificate along with application form before the last date of submission of application form.
21. The appellant, along with the other aggrieved candidates, filed WP (C) No. 382 of 2009 before this Court seeking the issuance of a writ of mandamus commanding the respondent Dsssb to accept the OBC certificates after cut-off date for selection to the post of Staff Nurse as provided in the advertisement.
W.P.(C) No.27353 of 2023 Page 67 of 80The appellant relied on Pushpa Vrs. State (NCT of Delhi), 2009 SCC OnLine Del 281 by this Court whereby the court had granted OBC benefit to the petitioners therein. The respondent Dsssb filed Letters Patent Appeal No. 562 of 2011 before the Division Bench of this Court. This Court has set aside the order of the learned Single Judge and allowed the letters patent appeal filed by the respondent Dsssb by holding that as the appellant herein applied for OBC certificate only ten days prior to the cut-off date and hence, no case for grant of relief in favour of the appellant was made out and also observed that decision in Pushpa Vrs. State (NCT of Delhi), 2009 SCC OnLine Del 281 is not applicable.
22. The Supreme Court observed that the Division Bench of this Court erred in not considering the decision rendered in Pushpa Vrs. State (NCT of Delhi), 2009 SCC OnLine Del 281 wherein the learned Single Judge had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. ***
23. We are of the considered opinion that the decision delivered in Ram Kumar Gijroya Vrs. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754 is not applicable in present case under given facts and circumstances due to reasons stated in Ram Kumar Gijroya Vrs. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754, the appellant was permitted to submit OBC certificate after ten days from the last date of submission of application for the post of Staff Nurse whereas, in the present W.P.(C) No.27353 of 2023 Page 68 of 80 case, the petitioner submitted OBC certificate at the time of submission of online application but OBC certificate was not in accordance with format as prescribed in advertisement for post of Navik (DB) and date of issuance of OBC certificate as mentioned in online application was not matching with date of issuance of OBC certificate as mentioned in OBC certificate submitted at time of verification of the documents.
24. A Division Bench of this Court in Pradeep Kumar Vrs. Union of India, (2022) 1 HCC (Del) 287 considered disqualification of the candidature of the petitioner therein for recruitment in the Indian Coast Guard (ICG) due to supply of incorrect details at the time of filling up the application form. The petitioner therein pursuant to a notification issued by the ICG applied for the post of Navik (GD). The petitioner after clearing the Stage I of the recruitment process was directed to report on 16-11-2021 at Gandhinagar, Gujarat for Stage II of the recruitment process which included a physical fitness test and document verification. The petitioner was declared as "pass" in Stage II of the recruitment process as well but later received an e-mail from the recruitment section, Cgrhq (NW), Gandhinagar on 24.11.2021 enclosing a show-cause notice as to why petitioner be not failed in document verification for discrepancy of uploading self-photograph in place of the ID proof (Aadhar card) thereby not meeting the criteria as mentioned in Para 5(B)(b) of Cgept 1/2022 Batch advertisement and Para 14(b)(xxi) of the e-admit card. The petitioner duly replied to the said show- cause notice and enclosed therewith a copy of his Aadhaar card. The petitioner received another e-mail W.P.(C) No.27353 of 2023 Page 69 of 80 stating that his action of uploading the self- photograph in place of his ID proof (Aadhar card) was in violation of the criteria mentioned in Para 5(B)(b) of the Cgept 1/2022 Batch advertisement as well as Para 14(b)(xxi) of the e-admit card issued to the petitioner and that his candidature was cancelled. The petitioner sought directions to the respondents to consider the petitioner as qualified and to consider his candidature in further stages of the recruitment process. The Division Bench after considering relevant clauses of advertisement and referring T. Jayakumar Vrs. A. Gopu, (2008) 9 SCC 403 observed that despite clear warning given to the petitioner, he was clearly negligent in uploading his self-photograph instead of his photo identity proof with the application and the petitioner cannot claim any special equity only because such mistake went unnoticed at the earlier stage of the recruitment process and was noticed only at document verification stage. The petition was accordingly dismissed. (Also refer Aman Yadav Vrs. Union of India, 2022 SCC OnLine Del 493 by this Court)."
8.21. A Co-ordinate Bench of this Court made observation as follows in the case of Smita Panda Vrs. State of Odisha, W.P.(C) No. 20670 of 2011, vide Judgment dated 19.11.2019:
"9. In Bhupinderpal Singh Vrs. State of Punjab, AIR 2000 SC 2011, the apex Court in paragraph-13 ruled as follows:
„Placing reliance on the decisions of this Court in Ashok Kumar Sharma Vrs. Chander Shekhar & Anr.W.P.(C) No.27353 of 2023 Page 70 of 80
JT 1997 (4) SC 99; A.P. Public Service Commission Vs. B. Sarat Chandra & Ors. 1990 (4) SLR 235; The Distt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. Vs. M. Tripura Sundari Devi 1990 (4) SLR 237; Mrs. Rekha Chaturvedi Vs. University of Rajasthan & Ors. JT 1993 (1) SC 220; Dr. M.V. Nair Vs. Union of India & Ors. 1993 (2) SCC 429; and U.P. Public Service Commission, U.P., Allahabad & Anr. Vs. Alpana JT 1994 (1) SC 94, the High Court has held
(i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications;
(ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.
The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.‟ W.P.(C) No.27353 of 2023 Page 71 of 80
10. It has been specifically stated by the apex Court that if there was no such date of appointment then the eligibility criteria shall be applied by reference to the last date of appointment by which the application has to be received by the competent authority. Therefore, in absence of any rules and guidelines or materials on record, the last date of submission of application by which the applications have to be received by the competent authority, being 09.10.2009, by that time the petitioner had not produced the disability certificate, thereby she herself incurs disqualification for submission of application, which ought not have been taken into consideration by the authority. Learned Addl. District Magistrate, while considering the appeal in Annexure-4, has lost sight of this fact. Therefore, order so passed in Annexure-4 cannot sustain in the eye of law and the same is hereby quashed. Accordingly, engagement of opposite party no.4 also cannot sustain and the same is hereby quashed. The opposite parties are directed to take necessary steps with regard to engagement of anganwadi worker in respect of Thakurpatna Mini Anganwadi centre of Daipur Gram Panchayat taking into consideration the selection made pursuant to the application submitted by 09.12.2009 in accordance with law. The entire exercise shall be done within a period of four months from the date of passing of this judgment."
8.22. In the instant case, the Rules framed under proviso to Article 309 of the Constitution of India and Regulations made in exercise of power under a statute prescribed the conditions of eligibility of candidates for making W.P.(C) No.27353 of 2023 Page 72 of 80 Application for recruitment of AMO, which is policy of the Government-employer. The petitioners have not made out case in their favour to hold that any of the contentions and averments satisfies the parameters laid down by the Hon'ble Supreme Court India to interdict in exercise of judicial review under Article 226/227 of the Constitution of India.
Conclusion:
9. With the delineated perspective of settled position of law as enunciated by different Courts and the factual matrix of the instant case as discussed above with the reasons ascribed herein above, on conjoint reading of Rule 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012, Rule 7(d) of the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 and Clause-4 read with Clause-8 of the Advertisement No.03 of 2023-24 finds no merit in the contention of the petitioners as the award of Bachelor's Degree in Ayurvedacharya/BAMS, could only be made in respect of the petitioners only after 18.06.2023 which fell after the last date for submission of the Application Forms, i.e., 08.06.2023. As material on record evinced that the petitioners had no requisite eligibility on the said last date specified in the W.P.(C) No.27353 of 2023 Page 73 of 80 Advertisement, their candidature was rightly not accepted by the opposite parties.
9.1. This Court vide Order dated 25.08.2023 passed in the instant writ petition clarified as follows:
"12. As an interim measure, it is further directed that the order vide Notice No.24.08.2023 shall not be allowed to participate in the recruitment process, however, their results shall not be published by the Odisha Public Service Commission and further their participation shall be subject to result of the present writ petition.
13. It is further made clear that the participation by virtue of this interim order shall not confer any equity on the petitioners at the time of final hearing of the present writ petition and this interim order is confined to the present petitioners only."
9.2. As it is perceived by this Court that since on the last date of submission of Application Form for recruitment to the post of AMO, the petitioners did not possess requisite qualification, their candidature was rejected. But considering the direction for invocation of Rule 18 of the OAMS Rules, 2013 vide Order dated 21.06.2023 in W.P.(C) No.18965 of 2023, and referring to fresh representation dated 01.07.2023 as considered by the Government in the impugned Order dated 04.08.2023, this Court would wish to take note of Rule 18 of the OAMS Rules, 2013, which stands thus:
W.P.(C) No.27353 of 2023 Page 74 of 80―18. Relaxation:
When it is considered by the Government that it is necessary or expedient so to do in the public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these Rules in respect of any class or category of the employees."
9.3. Having perused the other reason assigned by the Government while rejecting the representation dated 01.07.2023 is that the invocation of said Rule 18 for relaxing any provisions of the Rules has to have public interest, which is lacking in the present case.
9.4. Sri Lalatendu Samantaray and Sri Satyabrata Mohanty, learned Advocates drew attention of this Court to paragraph 22 of the writ petition, wherein it has been averred as follows:
"That, as per information received by the Petitioners, the State Government on earlier occasions i.e. during the year 1979, 1983 and 1990 have allowed the candidates undergoing Housemenship training to take part in the interview for the post of Ayurvedic Medical Officers. The learned State Administrative Tribunal, Bhubaneswar in O.A. No. 1068 of 1990 (Dayanidhi Dwibedi Vs. Director of Indian Medicine and Others) in its Judgment dated 04.01.1993 while referring to the Counter Affidavit filed by the opposite party No.1, has been pleased to observe that during the year 1979, 1983 and 1990 opposite party No.1 has allowed the candidates undergoing Housemenship training to take part in the interview. In view of the above precedents, the case of poor petitioners W.P.(C) No.27353 of 2023 Page 75 of 80 should also be allowed to take part in the recruitment process in pursuance to the present advertisement."
9.5. This Court was taken to consider the tenor of Order dated 04.01.1993 passed in O.A. No.1068 of 1990 (Dayanidhi Dwivedi & 20 others Vrs. Director of Indian Medicines and Homeopathic, Orissa, Bhubaneswar) wherein similar objections as arose in the present case have been considered by the Odisha Administrative Tribunal, Bhubaneswar (Division Bench). It was observed that the applications of the candidates were rejected for non-completion of Housemanship course. At paragraphs 15 and 16 of the said order, the following observations are made:
―15. The stand of the opposite parties as stated above in opposition to our direction, is two-fold:
(1) Without registration as envisaged under Rule 39(2), there cannot be any appointment and (2) Without being sponsored by the Employment Exchange there cannot be any appointment.
So far as the first objection is concerned we have not stated anywhere that in relaxation of the rule as envisaged under Rules 39 regarding registration as a medical practitioner, any one of the petitioners should be appointed. After the interview if a selected candidate is found to have not registered his name as a medical practitioner, he is bound to be discarded. So far as the second objection is concerned, we have never stated anywhere that W.P.(C) No.27353 of 2023 Page 76 of 80 there should be any relaxation so far as the Employment Exchange regulation is concerned. For any public employment, the regulation of the Employment Exchange cannot be given a go by such persons who names were sponsored by the Employment Exchange were duly considered along with the present petitioners. Their names could not have possibly been sponsored by the Employment Exchange as they had not completed the Housemanship course. It is only after completion of the Housemanship course, a candidate can register his name in the Employment Exchange. We have explained in the proceeding paragraphs clearly and vividly the hazards which the present petitioners faced for not completing the Housemanship course in time for or fault of theirs only due to the inordinate delay in conducting the examination and publishing result thereof. Under such circumstances we had directed the competent authority to allow them to appear at the interview/test. Once we directed the Opposite Parties to allow the petitioners to appear at the interview/test, the authorities concerned examined thoroughly the eligibility and proficiency of each candidate appearing at the test and selections are made solely on the basis of merits. Therefore, there was no compromise either with the merit or with the eligibility.
16. For the discussions made in the foregoing paragraphs, we would direct that as per the selection list in order of merit, the competent authority shall be at liberty to appoint persons to the post of Ayurvedic Medical Officers.
W.P.(C) No.27353 of 2023 Page 77 of 80With the above direction, the application is finally disposed of. We make no order as to costs."
9.6. While disposing of W.P.(C) No. 18965 of 2023, this Court vide Order dated 21.06.2023 has made it clear that on the petitioners filing fresh representation before the opposite party No.1 taking therein the grounds for relaxation under Rule 18 of the 2013 Rules, the same would be considered by the said opposite party in accordance with said Rule.
9.7. It does not seem from the Order dated 04.08.2023 passed by the Commissioner-cum-Secretary, Government of Odisha in Health and Family Welfare Department (Annexure-14) that the aforesaid decision of learned Odisha Administrative Tribunal was brought to his notice for consideration of invocation of Rule 18 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013. The said opposite party with a terse order assigned reason that the cause of the petitioners is ―individual‖, but not involving public interest. To discern rational application of mind vis-à-vis consideration of scope relaxation of provisions of the Rules invoking Rule 18 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 with reference to earlier considered occasions for such relaxation in view of Order dated 04.01.1993 passed in O.A. No.1068 of W.P.(C) No.27353 of 2023 Page 78 of 80 1990 (Dayanidhi Dwivedi & 20 others Vrs. Director of Indian Medicines and Homeopathic, Orissa, Bhubaneswar) passed by the Odisha Administrative Tribunal, this matter deserves to be remitted for reconsideration by the opposite party No.1.
9.8. Therefore, this Court, in the interest of justice, deems it appropriate to direct the opposite party No.1- Commissioner-cum-Secretary, Health and Family Welfare Department to reconsider the grievance of the petitioners by invoking power under Rule 18 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 to relax any provisions of the Rules keeping in view that the Government on earlier occasions took decision by relaxing the conditions contained in the Rules and in the light of decision of the Odisha Administrative Tribunal vide Order dated 04.01.1993 passed in O.A. No.1068 of 1990 (Dayanidhi Dwivedi & 20 others Vrs. Director of Indian Medicines and Homeopathic, Orissa, Bhubaneswar). It may be impressed upon the opposite party No.1 that while considering the plight of the petitioners as directed above, the said opposite party take into consideration the factual aspects that ―4th Semester Examination of the year December, 2021 was conducted in March, 2022 and result was published on 09.06.2022‖ and ―Advertisement to the post is also not W.P.(C) No.27353 of 2023 Page 79 of 80 regularly published by OPSC‖ as found mentioned in the representation of the petitioners dated 01.07.2023.
10. In the wake of the above, the opposite party No.1- Commissioner-cum-Secretary, Health and Family Welfare Department is directed to reconsider the case of the petitioners for invoking Rule 18 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013, as observed supra, within a period of eight weeks from today.
11. With the above observation and direction, the writ petition stands disposed of, but in the circumstances, there shall be no order as to costs.
Signature Not (MURAHARI SRI RAMAN) Verified JUDGE Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-Jan-2025 15:52:17 High Court of Orissa, Cuttack The 27th January, 2025//Aswini/MRS/Laxmikant W.P.(C) No.27353 of 2023 Page 80 of 80