Orissa High Court
State Of Odisha And Another vs Sudipta Kumar Mohanty And Others on 19 July, 2017
Equivalent citations: AIRONLINE 2018 ORI 261
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.8516 of 2015
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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State of Odisha and Another ...... Petitioners.
- Versus-
Sudipta Kumar Mohanty and Others ...... Opposite Parties.
Counsel for Petitioners : Mr. M. S. Sahoo, Additional Government
Advocate.
Counsel for Opp.Parties : M/s. S. Das, S. Jena, K. Mohanty, S. D.
Routray & S. K. Samal, M/s. Dr. J.K. lenka
& P.K. Behera, M/s.Arjun Ch. Behera, B. K.
Barik, S. K. Parida, R. K. Dash & K.K.
Mohant, Mr. Pradipta Kumar Mohanty (Sr.
Advocate), M/s. D. N. Mohapatra, Smt. J.
Mohanty, P.K. Nayak, S. N. Dash & A. Das,
M/s. Pramod Kumar Mishra, N. Behera & A.
B. Mallick, M/s.N. R. Rout, J. P. Behera &
Pami Rath, Mr. Shiba Sankar Pradhan,
M/s.Alok Kumar Mohapatra, Mrs. B. Panda,
J. Mohanty, S. Mohanty, S. P. Mangaraj, T.
Dash, S. Samal, S. K. Barik & S. Nath, M/s.
Biswabihari Mohanty, M. R. Harichandan, B.
Tripathy and B. Samantaray.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 19.07.2017
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S. N. Prasad, J.This writ petition is by the State of Odisha, through its Principal Secretary to Government, Home Department under Articles 226 and 227 of the Constitution of India wherein the order dtd.19.12.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.4048(C) of 2012 and batch cases are under challenge whereby and where under the Tribunal, while disposing of the original applications, held that the candidates who were eligible for year 1998 to 2010 in respect of vacancies of Jr. Assistants / Assistant Section Officers, which were caused in these years are eligible to take the examination pursuance to advertisement dtd.06.10.2010, participate in the selection process and their results, if kept in sealed cover, be declared along with result of the others.
2. The brief fact of the case of the applicants is that their applications may be accepted by relaxing the upper age limit for recruitment to the post which was not held from 1998-2012 and also prayed for a declaration that the Rule 8 of Orissa Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 (herein after referred to as the Rules, 2010) be declared as ultra-virus to Article 14 and 16 of the Constitution of India and in consequence thereof to quash the said rule and clause 4 of the advertisement under Annexure-2 and 3.
It has also been prayed for a direction to the respondents to accept the candidature of the applicants for the post of Assistant Section Officers in terms of the advertisement dtd.06.10.2012 by considering the age of the applicants with effect from the date of resolution dtd.30.09.2008 or by relaxing the age of the petitioners in terms of pre-amended Sub-Rule (2) of the Orissa Civil Service 3 (Fixation of Upper Age Limit) Rules, 1989, (herein after referred to as the Rules, 1989) and allow the applicants to participate in the process of selection in terms of the Rules, 1989.
It is the case of the applicants that the entry level in the ministerial service cadre in the Secretariat was designated as Asst. Section Officer in the scale of pay of Rs.5000-150-8000/- and the existing cadres of Jr. Assistants and Sr. Assistants were merged in this cadre of Asst. Section Officer vide Home Department resolution dtd.30th September 2008. The Government of Odisha thereafter has come out with a Rule in exercise of power conferred under Article 309 of the Constitution of India known as the Orissa Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010, came into force w.e.f. 06.04.2010.
So far as the age limit to apply for the post of Asst. Section Officer is concerned, Rule 8(2) of the Rules, 2010 provides that a candidate must have attained the age of 21 years and must not above the age of 32 years on first day of January of the year of recruitment.
Provided that the upper age limit in respect of reserved categories of candidates referred in Rule 6 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.
The resolution was issued in 2008 and the Rules, 2010 came into force w.e.f.06.04.2010 but no step was taken to fill up the post of Assistant Section Officers till the year 2012. In the meantime an advertisement bearing No.8 4 of the 2012-13 was issued by the Odisha Public Service Commission on 6.10.2012 inviting applications to fill up 811 posts of Assistant Sections Officers, lying vacant in the Governor‟s Secretariat as well as in the State Secretariat wherein it was stipulated that online application forms would be available till 30 th November 2012 by 11.59 P.M. and last date for receipt of application was 3.12.2012.
The grievance of the applicants is that earlier the post of Assistant Section Officers was governed by a set of Rules, namely The Odisha Ministerial Service (Method Of Recruitment and Conditions of Service of Jr. Assistants in the Offices of the Departments of Secretariat) Rules, 1951 and as per Rule 3 of the said Rules, 1951 it was required for the respondents to conduct competitive examination to fill up such posts once in every year and it was mandatory on the part of the respondents to determine the vacancies and then advertise the same inviting applications from the eligible candidates. So far as the relaxation of the eligibility criteria is concerned, it was governed by the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989 and Rule 2 of the said Rules provides that the upper age limit for entry into Government service shall be 32 years except where a higher upper age limit has been prescribed for any such service or post.
Provided that the upper age limit in case of Scheduled Castes/Scheduled Tribes shall be relaxed by 5 years as provided under the Orissa Reservation of Posts and Services, Act, 1975, as amended from time to time.
Provided further that if for any reason applications have not been invited by the authority, competent to conduct examination during any particular year to fill up the vacancies of the year, applicants, who would have been eligible if 5 applications were invited during that period, shall be eligible to compete at the examination held in the subsequent years.
On the basis of the above proviso in the last advertisement for the post of Jr. Assistants, the candidates were otherwise eligible to appear at the examination for the vacancies caused pre 1997 recruitment years but could not appear in the examination due to advertisement having not been notified. In that view of the matter the grievance of the applicants is that since the vacancy is prior to the Rule 2010 came into effect, as such they are entitled to be given the relaxation in age in view of the second proviso to Rules 1989 because for no fault of the candidates like the applicants they have been deprived from appearing in the competitive examination due to notification to fill up the vacancies having not been notified by the government.
The applicants have approached to the Tribunal after the advertisement having been notified on 06.10.2012 fixing age range for applicants to be in between 21 years to 32 years as on 01.01.2012 since they were not coming under the consideration zone being age barred.
3. The applicants had approached to the Tribunal for redressal of their grievance, the Tribunal, after noticing the opposite party - State, who is petitioner herein, has passed an order taking into consideration the relevant date of vacancies of the post of Jr. Assistants which ultimately been merged to the post of Asst. Section Officer on 30th September, 2008.
The stand of the State before the Tribunal was that since the Government has come out with new Rule effective w.e.f. 06.04.2010 and the 6 advertisement has come on 06.10.2012, as such the vacancies are to be filled up in pursuance to the new Rule having came into effect wherein there is no provision like that of the second proviso of the Rule 2 of the Rules, 1989, the Tribunal, after negating the plea of the State and taking into consideration the definition of „year‟ as defined under the recruitment rule and second proviso to Rules, 1989 and also considering the fact that in between 1997 to 2010 there was no vacancy having been advertised by the state authorities for fulfilling the post of Jr. Assistants / Sr. Assistants which subsequently been merged to the post of Asst. Section Officers, passed an order directing the authorities to allow the applicants to participate in the examination pursuance to the advertisement dtd.06.10.2012.
4. The said order is under challenge before this court by way of the instant writ petition having been questioned by the State of Odisha through the Secretary to Government, Home Department inter alia on the ground that when new Rule has came into force w.e.f. 06.10.2010, there is no dispute in the settled proposition that the vacancies advertised after the implementation of the new Rule, the post is to be filled up on the basis of the criteria laid down in the new Rule and the provision of the old Rule which has been substituted by the new Rule will not govern the recruitment process.
5. While on the other hand, the plea of the applicants who are opposite parties herein is that although the Rule has come on 06.04.2010 but it is settled proposition of law that the Rule which was prevalent at the time of the occurrence of the vacancies will be applicable for filling up of the vacancies of that particular year. According to them, the vacancies are of the year 1997 to 2010, as such the 7 provision of recruitment rule prevalent during that period will be applicable and admittedly during that period the Rules 1989 was prevalent, as such they are entitled to be given chance to appear in the examination in view of the provision of second proviso to Rule 2 of the Rules, 1989.
In the light of these submissions the order passed by the tribunal is before us for its judicial scrutiny.
6. We have heard the learned counsels for the parties and perused the documents available on record.
We thought it proper to refer the relevant rules before scrutinizing the legality and propriety of the order passed by the Tribunal.
The State of Odisha has come out with a Rule in exercise of power conferred under Article 309 of Constitution of India on 27 th October, 1989, known as the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 1989 wherein the provision has been made under Rule 2 which is being reflected hereunder as:-
"2. Notwithstanding anything contained in any recruitment rule regulating the method of recruitment in Civil Services and / or Civil Posts in Pensionable establishment under the State Government, the upper age limit for entry into Government Service shall be Thirty-two year except where a higher upper age limit has been prescribed for any such service or post:
Provided further that if for any reason applications have not been invited by the authority competent to conduct examination during any particular year to fill up the vacancies of the year, applicants, who would have been eligible if applications, were invited during that year, shall be eligible to complete at the examination held in the subsequent year. This proviso will also apply to cases where advertisements have already been issued for recruitment to services and posts under Government but the process of recruitment has not commenced."
It is evident from the said provision that the Government has taken a conscious decision by making a statute in exercise of power conferred under 8 Article 309 of the Constitution of India providing therein that if for any reason applications have not been invited by the authority to conduct examination during any particular year to fill up the vacancies of the year, applicants who would have been eligible if applications were invited during that year, shall be eligible to compete at the examination held in the subsequent year, meaning thereby the Government is supposed to advertise the vacancies year-wise subject to availability of vacancies and if it would not be advertised, the candidates who intend to participate in the selection process would not be deprived due to latches on the part of the authorities.
The issue pertains to the instant writ petition is regarding recruitment to the post of Assistant Section Officer. The state of Odisha has come out with a Rule known as Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Jr. Assistants in the Offices of the Departments of Secretariat) Rules, 1951 wherein the provision has been made to make recruitment every year.
This Rule has came into effect with effect from 12.12.1951 wherein under Rule 5 the provision has been laid down for determination of number of vacancies which provides as under:-
"5. Determination of number of vacancies - On the first day of September, each year the Departments of Secretariat shall communicate to the Home Department in the form as prescribed in Appendix III, the total number of vacancies including the number of vacancies to be specifically kept reserved for Scheduled Castes and Scheduled Tribes candidates in the service found at the time or likely to occur during the twelve months commencing from the ensuing months of April."
Rule 6 provides the provision for advertisement of vacancies which reads as follows:-
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"6. Advertisement of Vacancies - The Government in Home Department, on receipt of the requisite information from all Departments shall report, not latter than the 15th day of September the number of vacancies to the Secretary to Commission who shall thereafter issue advertisement in the Orissa Gazette and in such newspapers as may be considered necessary inviting application in the prescribed form for the general competitive examination.
In case required number of Scheduled Castes and Scheduled Tribes candidates are not available in the general recruitment examination for filling up the vacancies kept reserved for Scheduled Caste and Scheduled Tribe candidates, the Commission at the request of Home Department may issue a fresh advertisement in the Orissa Gazette and in such news papers as may be considered necessary inviting fresh application from Scheduled Castes and Scheduled Tribes candidates only in the prescribed form for conducting a special competitive examination."
It is evident from conjoint reading of the provisions of Rule 5 and 6 that the vacancies are to be ascertained on the first day of September of each year and thereafter the same shall be reported to the Secretary to Commission, not latter than the 15th day of September, who shall issue advertisement in the Odisha Gazette and in such newspapers as may be considered necessary inviting application in the prescribed form for the general competitive examination.
The Rules, 1951 has been superseded by Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 notified w.e.f. 6th April, 2010 wherein the definition of „year‟ has been made as the "Calendar Year". Under the heading „Eligibility Condition‟ the provision of minimum or maximum age has been made under provision of Rule 8(2) which reads as under:-
"8. Eligibility conditions - (1) Nationality: A candidate must be a citizen of India.
(2) Age Limits: A candidate must have attained the age of 21 years and must not be above the age of 32 years on 1 st day of January of the year of recruitment.
Provided that the upper age limit in respect of reserved categories of candidates referred to in rule 6 shall be relaxed in accordance with the 10 provisions of the Act, rules, orders or instructions, for the time being in force, for the respective categories."
In the light of these statutory provisions the grievance of the applicants and the grounds taken by the applicants vis-à-vis the finding of the Tribunal have been scrutinized by us.
7. The fact in the instant case, which is not in dispute, is that the vacancies for the post of Assistant Section Officers have been advertised by virtue of advertisement No.8 of the year 2012-13 inviting applications to fill up the said posts to the extent of 800 from different categories, published on 6.10.2012, wherein the age limit has been prescribed under clause No.4 of the advertisement published by the Odisha Staff Selection Commission, Bhubaneswar prescribing the age limit as not less than 18 years and more than 32 years of age as on 01.01.1997, however a candidate completing 18 years of age as on 01.01.2010 shall also be eligible to apply.
The grievance of the petitioners is that the day when the advertisement was published they have become over age, as such they were not in a position to participate in the selection process for consideration of their candidature to the post advertised in terms of the said advertisement. The main grievance of the applicants was that in view of the provision of Rules, 1951 the vacancy was to be filled up by calculating the vacancies in the month of September of each year and the authorities kept mum from the year 1997 to 2010 by not publishing the advertisement for the vacancies which has occurred during the intervening period from 1997 to 2010, as such they cannot be deprived from participating in the selection process in the light of the provision of Rules, 2010 regarding the upper age limit as provided under column no.4 of the advertisement. 11
There is no dispute about the settled proposition of law that the post which is lying vacant is to be filled up on the basis of the prevalent rule at the time of the vacancies of the said post, reference in this regard may be made to the judgment rendered by Hon‟ble Apex Court in the case of Y.V. Rangaiah Vrs. J. Sreenivasa Rao, reported in (1983) 3 SCC 284 wherein the Hon‟ble Apex Court dealing with the case of promotion and the consideration on the basis of the rule as to whether on the day of vacancy to fill up the post, which rule will be applicable if the rule has been amended in the meanwhile. While answering the issue it has been held that the rule which will be in vogue at the time of the vacancies would be taken into consideration for fulfilling the post.
In the Case of State of Rajasthan Vrs. R. Dayal and Others, reported in (1997) 10 SCC 419 the Hon‟ble Apex Court dealing with the similar situation and putting reliance upon the judgment rendered in the case of Y.V. Rangaiah (supra) has been pleased to hold that the post which fell vacant prior to the amendment of rules would be governed by the original rule and not by the amended rules. The vacancies that arose subsequent to the amendment of rules are required to be filled up in accordance with the law existing as on date when the vacancies arose.
In the case of P. Mohanan Pillai Vrs. State of Kerala and Others, reported in AIR 2007 SC 2840 the Hon‟ble Apex Court has been pleased to hold that the eligibility criteria as also the procedure as they are prevailing on the date of vacancies should ordinarily be followed.
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We, in the light of the proposition laid down by the Hon‟ble Apex Court and after going through the factual aspect of the case wherein the fact is not in dispute regarding availability of vacancies and no initiative has been taken by the state authorities to fill up the post from 1997 to 2010 and in the meanwhile the 1951 rule has been superseded by new rule of the year 2010 wherein the upper age limit has been prescribed from 18 years to 32 years.
We after going through the rule 1951, have not found the prescription of age minimum or maximum which does suggest that the provision of Rules, 1989 regarding the upper age limit with the relaxation will be applicable as per second proviso to Rules, 1989.
It is also admitted position that the advertisement has been issued on 6.10.2012, i.e. after coming into effect the Rules, 2010 and on this ground the State authorities are opposing the claim of the petitioners on the ground that since the advertisement has come after promulgation of the Rules, 2010 wherein the minimum and maximum age has been prescribed without any relaxation as has been reflected in the second proviso to Rules, 1989 which was the prevalent rule prior to promulgation of Rules, 2010 so far as it relates to the age, reason being that in the Rules, 1951 there is no stipulation of either minimum or maximum age, we are not in agreement with the ground of the State authorities for the reason of the settled proposition of law that the rule which is prevalent on the date of occurrence of vacancies will be applicable for the purpose of fulfilling the post and admitted position in this case is that no advertisement was issued in between the year 1997 to 2010 while the vacancy occurred during this intervening period which ought to have been notified each year in the month of September as per the 13 provision made under Rules, 1951, but reason best known to the State authorities, they have not come out with any advertisement providing opportunity to such candidates who are anticipating for issuance of notification for fulfilling the said post so that their candidature may be considered and the advertisement has come only when they have become more than 32 years, being age barred, as per the provision of Rules, 2010.
The tribunal, after taking into consideration the provisions of Rules, 1951 read with Rules 1989, occurrence of vacancies during the subsistence period of the Rules 1951 read with Rules 1989 and also considering the fact that the petitioners cannot be deprived from the right to be considered for engagement in the light of advertisement dtd.06.04.2012 merely on the ground of being age barred, has came to conclusion regarding the right of consideration of the applicant in the competitive examination in pursuance to the advertisement No.8 / 2012-13.
8. Learned Sr. Counsel appearing for the applicants has relied upon the judgment rendered by a coordinate bench of this court in the case of State of Odisha and Others Vrs. Manoj Kumar Panda and Others, reported in 2013 (II) OLR 760 wherein the subject matter was for fulfilling the post under different Class-II services under the State and the same issue has been involved in the said case, the coordinate bench of this court, after taking into consideration the relevancy of the rule as on the date of occurrence of vacancy, has allowed the candidature of such candidates who have become age barred due to non- advertisement of the post and according to him the order passed by this court in 14 the said writ petition has been implemented by the State authorities without challenging the same, as such the state authority now cannot take different stand.
Learned Additional Government Advocate has fairly submitted that the issue involved in the instant case is covered with the issue raised in the case of State of Odisha and Others Vrs. Manoj Kumar Panda and Others (supra) and the direction passed by this court in the said writ petition has been given effect to.
9. In view of the discussion made by us herein above, taking into consideration the reasoning given by the Tribunal in the order impugned as also the fact that the State in similar situation has implemented the order passed by this court in the case of Manoj Kumar Panda, we are in agreement with the finding and direction passed by the Tribunal and accordingly found no error apparent on the face of record, rather we are of the view that the Tribunal has taken into consideration the factual aspect, the proposition of law as has been discussed by us herein above and the applicability of the rule and has passed the order.
In view thereof we find no reason to interfere with the same, accordingly the writ petition fails.
In the result the writ petition stands dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 19th July, 2017/Manas