Orissa High Court
Aryan Kumar Bal vs State Of Odisha And Another ... Opposite ... on 23 February, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.1040 of 2024
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Aryan Kumar Bal ... Petitioner
- Versus -
State of Odisha and another ... Opposite parties
For Petitioner ... Mr. Budhadev Routrary,
Senior Advocate.
M/s. S.K. Samal, S. Routray,
S. Sekhar, J. Biswal &
A.K. Das.
For Opposite Parties ... Mr. N.K. Praharaj,
Additional Government Advocate
(For O.P. No.1)
Mr. Arnav Behera, Advocate
(For O.P. No.2)
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PRESENT:
THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing: 07.02.2024 : Date of judgment : 23.02.2024 A.K. Mohapatra, J. The present writ petition has been filed by a candidate who has successfully completed B.Tech in Civil // 2 // Engineering in the Academic Year, 2022-23 and who has attained the age of 21 years on 22.08.2023. The claim of the present Petitioner is that he fulfills all the eligibility criteria as laid down in the advertisement under Annexure-2 to the writ petition published by Odisha Public Service Commission (in short 'OPSC') for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) in Group-'A' of Odisha Engineering Service under the Water Resources Department. Although such advertisement was published on 28.12.2023, however with regard to the age criteria, it has been stipulated in the said advertisement that the candidates who have attained the age of 21 years as on 01.01.2023 and who are not above the age of 38 years as on 01.01.2021, are eligible to participate in such recruitment process. The Petitioner being aggrieved by the fixation of minimum age criteria w.e.f. 01.01.2023 has approached this Court by filing the present writ petition.
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2. The present writ petition has been filed with a prayer to issue a rule NISI calling upon the Opposite Parties, more particularly, Opposite Party No.2 to show cause as to why the Clause-3 of the advertisement under Annexure-2 shall not be modified to the extent of fixing the minimum age limit to 21 years as on the date of advertisement and if the Opposite Parties fail to show insufficient cause, the aforesaid rule be made absolute by issuing first a writ of certiorari by modifying the Clause-3 of the advertisement under Annexure-2 and further issuing an appropriate writ directing the OPSC to modify the aforesaid Clause-3 by refixing the minimum age limit to 21 years as on the date of advertisement. The Petitioner has also prayed for issuance of writ of mandamus directing the Opposite Party No.2 to issue necessary corrigendum to the advertisement under Annexure-2 regarding fixation of minimum age and further to accept the candidature of the Petitioner pursuant to the advertisement under Annexure-2 and in the event the // 4 // Petitioner is declared successful, to issue an appointment order to him within a stipulated period of time.
3. The factual matrix of the present writ petition, as culled out from the body of the writ petition, in short, is that the Petitioner has completed B.Tech in Civil Engineering in academic year 2022-23. The Petitioner was born on 22.08.2002. It further appears that the Petitioner has completed the 10th ICSE Board in the year 2017 and the 12th CBSE Board in the year 2019. Having successfully completed the +2 Degree, the Petitioner took admission in B.Tech Civil Engineering Course in Orissa University of Technology and Research (OUTR), Bhubaneswar. The Petitioner has successfully completed the B.Tech in Civil Engineering in the academic year 2022-23. It has also been stated in the writ petition that on the basis of the certificate of the Petitioner, the Petitioner has completed 21 years of age on 22.08.2023.
4. While the matter stood thus, the Petitioner after completing his B.Tech Degree Course was searching for a // 5 // suitable employment under the State-Government. Accordingly, he came across the advertisement dated 28.12.2023 issued by the Opposite Party No.2-OPSC for recruitment to the post of Assistant Executive Engineer (Civil) of Odisha Engineering Service by the Water Resources Department. On careful scrutiny of the said advertisement, the Petitioner found that the applications are to be submitted through online mode and the starting date for submission of such online application is 12.01.2024. Accordingly, the last date for such submission has been fixed to 12.02.2024. The said advertisement has been published to fill up 580 posts of Assistant Executive Engineer (Civil) and 41 posts of Assistant Executive Engineer (Mechanical).
5. On further scrutiny of the advertisement under Annexure- 2 to the writ petition, the Petitioner noticed that Clause-3 of the said advertisement prescribes the minimum age limit of a candidate. The said Clause-3 provides that a candidate must have attained 21 years as on 01.01.2023 and the upper age limit // 6 // has been fixed at 38 years as on 01.01.2021. The educational qualification of the candidates has been prescribed under Clause-4 of the advertisement which provides that the candidates must possess a Degree in Engineering in Civil for the post of AEE (Civil) and Degree in Engineering in Mechanical for the post of AEE (Mechanical) or an equivalent qualification from any recognized University of the State. Since the other factors in the impugned advertisement are not disputed by the Petitioner, the same is not being discussed in detail here in this judgment.
6. Mr. Budhadev Routray, learned Senior Counsel along with Mr. S. Routray, learned counsel, appearing on behalf of the Petitioner submitted that Clause-5 of the advertisement provides that in the matter of selection of candidates for the advertised post, GATE Examination's score shall be taken into consideration. So far the present Petitioner is concerned, it was contended that the Petitioner appeared in the GATE Examination of the Year 2023 and he has been declared // 7 // qualified in such examination as he has secured 29.35 marks out of 100. The general qualifying mark in GATE 2023 was 26.6 marks. Thus, it was contended that as required under the rules as well as in the advertisement, the Petitioner was possessing a valid GATE score thereby making the Petitioner eligible to apply for appointment to the advertised posts.
7. Learned Senior Counsel appearing for the Petitioner further contended that the recruitment to the post, as has been advertised under Annexure-2 to the writ petition, is governed by the Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Rules, 2012 (hereinafter referred to as "2012 Rules"). Further, specifically referring to Rule-6(c) of the 2012 Rules, it was contended that a candidate must have attained 21 years of age and must not be above the age to 32 years as on the 1st day of January of the year of recruitment. Therefore, it was contended that the rule provides that to offer candidature for the post in question, a candidate must have // 8 // attained 21 years as on the 1st day of January of the recruitment year.
8. Learned Senior Counsel appearing for the Petitioner, at the outset, contended that by misinterpreting the words "recruitment year", the Opposite Parties have not permitted the Petitioner to submit his candidature. Being aggrieved by such illegal conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ petition.
9. With regard to the words "recruitment year" as used in the 2012 Rules, learned Senior Counsel appearing for the Petitioner submitted that the same has not been specifically defined in the 2012 Rules under Annexure-4 to the writ petition. Rule-2(j) of the 2012 Rules only defines the term "Year" to mean "the Calendar Year". Since the words "recruitment year" has not been specifically defined in the 2012 Rules, learned Senior Counsel appearing for the Petitioner contended that the words "recruitment year" is to be interpreted in such a manner which would appear to be reasonable. In other words, the contention // 9 // of the learned Senior Counsel appearing for the Petitioner is that the entire recruitment process shall be carried out in the year 2024 which is evident from the fact that the applications are required to be submitted w.e.f. 12.01.2024. Accordingly, the entire recruitment process is to be carried out in the year 2024.
10. In the aforesaid background, learned Senior Counsel appearing on behalf of the petitioner contended that the words "recruitment year" in the context of the present case is to be interpreted and understood to be the year 2024 and not 2023. Therefore, it was contended that Clause-3 of the advertisement which provides for the minimum age of 21 years as on 01.01.2023 is erroneous and the same is not in consonance with the 2012 Rules. It was also argued that fixation of 01.01.2023 to ascertain the minimum age of a candidate while the recruitment would take place from the year 2024 onwards and the conduct of the OPSC in publishing the advertisement towards the fag end of the year 2023, i.e. on 28.12.2023 is // 10 // highly irrational, arbitrary and unreasonable. Therefore, the same is unsustainable in law.
11. Learned Senior Counsel appearing for the Petitioner further contended that the present Petitioner who is having a brilliant academic carrier and, as such, eligible in all respect to submit his candidature for the post advertised under Annexure- 2, particularly for appointment to the post of AEE (Civil), he is unable to submit his candidature or his candidature is not being accepted by the OPSC on the ground that the Petitioner had not attained the minimum age of 21 years as has been prescribed in Clause-3 of the advertisement. He further contended that there exists no logic/justification in publishing the advertisement towards the fag end of the year 2023 and then fixing the date 01.01.2023 as the date on which a candidate must have attained 21 years of age to submit his application. He further contended that acceptance of 2023 as the year of recruitment, as has been in the present case, would not pass the test of reasonableness.
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12. Learned Senior Counsel appearing for the Petitioner further contended that it is manifest from the record itself that the entire recruitment process shall take place in the year 2024 except the advertisement which was published towards the fag end of the year 2023. Therefore, he also contended that it was never the intention of the lawmakers while framing rule to impose such an embargo with regard to the age. He further emphatically argued that the recruitment year in the present case is to be interpreted by taking into consideration the year in which the actual recruitment pursuant to the advertisement under Annexure-2 is to take place. Therefore, it was submitted that fixing 01.01.2023 as the cut-off date for the minimum age is highly arbitrary and illegal and the same is not in tune with the spirit of the 2012 Rules.
13. A lot was argued with regard to publication of the advertisement on 28.12.2023 as well as with regard to interpretation of the recruitment year by referring to Clause-6(c) of the 2012 Rules. Learned Senior Counsel appearing for the // 12 // Petitioner assiduously argued that since the entire recruitment process pursuant to advertisement under Annexure-2 would take place from January, 2024 onwards starting with submission of application from 12.01.2024, this Court should not entertain any doubt with regard to the interpretation of the recruitment year and, accordingly, this Court should hold that the recruitment year is to be understood as the year 2024 and, accordingly, the cut-off date for finding out the minimum age should be 01.01.2024 instead of 01.01.2023, as has been prescribed in the impugned advertisement.
14. In course of his argument, learned Senior Counsel appearing for the Petitioner also went to the extent of arguing that in the absence of any specific rule defining the words "recruitment year", in view of the settled position of law, this Court should accept the last date of fulfilling the eligibility is the last date of submission of application. Finally, learned Senior Counsel appearing for the Petitioner contended that the fixing of the cut-off date to 01.01.2023, in the impugned // 13 // advertisement, is highly illegal and arbitrary and, as such, the same is unsustainable in law. He also argued that as a result of such wrong interpretation by the Opposite Parties, a valuable right of a deserving candidate is being taken away by the Opposite Parties by not permitting him to compete with other eligible candidates for the post advertised to be filled up and, as such, the Petitioner has been grossly discriminated against and thereby the principles of Article 14 of the Constitution of India are clearly violated in the present case. He further contended that it is also uncertain as to when in future another advertisement would be published to fill up the vacancies.
15. Per contra, Mr. Arnav Behera, learned counsel representing the Opposite Party No.2-OPSC submitted that the Opposite Party No.2 has not committed any illegality in publishing the advertisement under Annexure-2 to the writ petition. He further contended that Advertisement No.19 of 2023/24 has been published on 28.12.2023 with a purpose. It was also contended that the advertisement under Annexure-2 is // 14 // strictly in consonance with the 2012 Rules. In such view of the matter, learned counsel appearing for the Opposite Party No.2- OPSC contended that the Opposite Party No.2-OPSC has not committed any illegality and they have not violated the provisions of 2012 Rules while publishing the advertisement under Annexue-2 to the writ petition.
16. In course of his argument, Mr. Arnav Behera, learned counsel appearing for the OPSC also contended that the advertisement was published in the year 2023 keeping in view the fact that many candidates, who could not apply for the post due to COVID-19 pandemic and the consequential lockdown and shutdown, were given an opportunity by the State Government by giving them age relaxation upto 3 years by amending the Odisha Upper Age (Fixation of Upper Age Limit) Rules, 2022. Such age relaxation is likely to be expired by end of 2023. In the aforesaid factual background, learned counsel for the OPSC submitted that if the advertisement is pushed further to the year 2024, then the candidates who have become // 15 // age barred, and as such could not get a chance to participate in the recruitment process for appointment to the post of AEE, would be debarred from participating in any such recruitment test for all time to come. Keeping in view the plight of many such candidates, who have become age barred due to restrictions imposed by the Government on account of COVID- 19 pandemic, an opportunity has been given to them to participate in the recruitment process for appointment to the post of AEE. It was also contended that in the event the date of advertisement is pushed further and the recruitment year is changed, then such candidates may not get the benefit of the age relaxation granted by the State by amending the relevant provisions of the rules.
17. In course of his argument, learned counsel for the OPSC referred to all the important provisions of the 2012 Rules. Further, referring to Rule-6(c) of the 2012 Rules, it was contended that the rule provides for the age limit. The age limit as provided in Rule-6(c) reveals that the candidate must have // 16 // attained the age of 21 years and must not be above the age of 32 years on the 1st day of January of the year of recruitment. He further contended that although the upper age limit is 32 years, in Rule-6(c) of 2012 Rules, the same is extended to 38 years by taking into consideration the amendment made in the year 2022 in the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989.
18. He further contended that if in order to accommodate the present Petitioner the year of recruitment is changed to revise the cut-off date for application, then many deserving candidates, who had not got any opportunity to participate in such recruitment process due to COVID-19 pandemic and they have become over-aged in the meantime, would be debarred from participating in such recruitment process. So far the present Petitioner is concerned, learned counsel for the OPSC submitted that he had attained 21 years in August, 2023 and as such he was not eligible to appear in the recruitment process. Moreover, the Petitioner would get many opportunities to // 17 // participate in many recruitment process in future subject to Petitioner's eligibility and suitability. Therefore, the Petitioner is in no way prejudiced by the fixation of the cut-off date in the impugned advertisement under Annexue-2 to the writ petition.
19. With regard to the interpretation of recruitment year, learned counsel for the OPSC submitted that Rule-6(c) of the Rules, 2012 provides the age of candidates as on 1st day of January of the year of recruitment is to be taken into consideration. He further contended that the provision of Rule-6 of the 2012 Rules has been quoted verbatim under Clause-3 of the advertisement. Although the rule does not define the words "recruitment year", however, it certainly defines the word 'Year' which means the calendar year. So far as the calendar year is concerned, learned counsel for the Opposite Party No.2- OPSC submitted that the same is to be read in the context of the present advertisement. Since the advertisement was published on 28.12.2023, the calendar year is to be taken as 1st January, 2023 to 31st December, 2023. In such view of the matter, // 18 // learned counsel for the Opposite Party No.2 submitted that the Opposite Parties have not committed any illegality in fixing the cut-off date as on 01.01.2023 by taking into consideration the word 'Year' as has been defined in Rule-2(j) of the 2012 Rules.
20. In addition to the above argument, learned counsel for the Opposite Party No.2 referred to the judgment of the Hon'ble Supreme Court in A.P. Public Service Commission, Hyderabad and Another v. B. Sarat Chandra and Others, reported in (1990) 2 SCC 669. By referring to the aforesaid judgment, learned counsel for the Opposite Party No.2-OPSC submitted before this Court that the Hon'ble Supreme Court was called upon to decide an identical issue in an identical factual scenario. The Hon'ble Supreme Court was examining the finding of the Tribunal to the effect that a selection can be said to have been done only when the list is prepared and in that view of the matter, the eligibility of the candidate as to age has to be determined at that stage. While considering the aforesaid observation of the Tribunal, the Hon'ble Supreme Court // 19 // observed that round phrases cannot give square answers. It was also observed that before accepting that meaning, they must see the consequences, anomalies and uncertainties that it may lead to.
21. This court further observes that it is not disputed that the selection process includes various steps like inviting application, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Thus, the selection process involves different steps and that the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. It was also observed that if the final stage of selection is delayed, and more often it happens for various reasons, then the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of their own. Therefore, the Hon'ble Supreme Court has finally held that the date of // 20 // attaining the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinize applications and, accordingly, it was held that it would be unreasonable to construe the word selection only as the factum of preparation of the select list.
22. Having heard the learned counsels appearing for the parties and on a careful examination of the writ petition as well as the materials on record, further taking into consideration the terms and conditions in the advertisement as well as the provisions of the relevant rules, this Court is required to consider the validity of fixation of the cut-off date by the OPSC in the advertisement under Annexure-2 to the writ petition. As has been discussed hereinabove, the OPSC published the advertisement on 28.12.2023 under Annexure-2 for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) wherein the age criteria has been fixed in the Clause-3 of the said advertisement.
// 21 // The aforesaid Clause-3 provides that the candidate must have attained 21 years of age as on 01.01.2023 and must not be above the age of 38 years as on 01.01.2021. The fixation of the age criteria in Clause-3 of the advertisement is pursuant to Rule-6 of the 2012 Rules under Annexure-4. Rule-6 of 2012 Rules, which prescribes the eligibility criteria for direct recruitment, under Clause-6(c) also prescribes the age limit for such recruitment.
23. On a perusal of clause-(c) of Rule-6, it is observed that the rule provides that the candidate must have attained the age of 21 years and must not be above the age of 32 years on the 1st day of January of the year of recruitment. On a comparative study between the age criteria fixed in the advertisement and the one prescribed in Rule-6(c), this Court observed that the minimum age must be 21 years on the 1st day of January of the year of recruitment. So far the maximum age is concerned, although the rule prescribes 32 years, however, the advertisement prescribes 38 years as on 01.01.2021. The // 22 // enhanced upper age limited is pursuant to the amendment to the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989 by an amending Rule of the year 2023 granting age relaxation. Due to COVID-19 pandemic, the aforesaid rule of the year 1989 was amended by granting age relaxation to the candidates for recruitment in respect of the years 2021, 2022 and 2023. The aforesaid relaxation was in respect of the 3 years mentioned hereinabove as an one time measure and the same shall come to an end as on 31.12.2023.
24. On a careful analysis of the submission made by learned counsel appearing for the OPSC, this Court is of the considered view that the argument advanced on behalf of the OPSC has enough substance in it, particularly the justification that was given on behalf of the OPSC that the advertisement was required to be published in the year 2023 itself to give benefit to the candidates who have become over aged and could not participate in the recruitment process due to COVID-19 pandemic. Further, such relaxation to the over aged candidates // 23 // is supported by the amending rules of the year 2022. In such view of the matter, the contention of the counsel appearing for the OPSC that the advertisement had to be published by 28th of December, 2023 appears to be more acceptable and the same has been done with a definite purpose to be achieved thereby. Moreover, had the advertisement been published anytime in the year 2024, then the candidates who have become over aged in the meantime and to whom relaxation has been granted by virtue of the impugned advertisement under Annexure-2 to the writ petition, would not have received such relaxation. Learned Senior Counsel appearing for the Petitioner although argued that the actual recruitment process would start on 12.01.2024 and further he also referred to the definition of the recruitment year as given in the O.R.V. Act to support his contention that the recruitment year should be 2024, however, the same is not acceptable in view of larger public interest involved in publishing the advertisement in 2023.
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25. On a careful analysis of the aforesaid legal as well as factual position, this Court is of the considered view that the Opposite Parties have not committed any illegality in publishing the advertisement in the year 2023 and thereby fixation of the cut-off date for age criteria as 01.01.2023 is legal and valid. This is more so, unless the recruitment is not commenced in the year 2023, many candidates who have become over aged in the meantime and, as such, are entitled to one-time benefit of upper age relaxation would be ineligible to apply for the post under Annexure-2. On the contrary, the Petitioner who has just attained 21 years of age very recently would get enough opportunity to participate in future recruitment process. Further, keeping in view the principle enunciated by the Hon'ble Supreme Court in the case of A.P. Public Service Commission's case (supra), this Court is constrained to hold that there has to be a certainty in the cut-off date as provided in the rules of the year 2012.
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26. In view of the aforesaid analysis, this Court is neither persuaded nor finds any justification to interfere with the impugned advertisement under Annexure-2. In the aforesaid facts and circumstances, the only logical conclusion would be to dismiss the writ petition and, accordingly, the same is hereby dismissed. In the facts and circumstances of the present case, there shall be no order as to costs.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 23rd February, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 23-Feb-2024 18:59:08