Orissa High Court
Dr. Bijaya Ketan Sahu vs State Of Odisha & Others .... Opp. ... on 29 August, 2023
Author: M.S. Sahoo
Bench: M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.1316 of 2016
Dr. Bijaya Ketan Sahu .... Petitioner
Mr. M.K. Dash, Advocate
-versus-
State of Odisha & Others .... Opp. Parties
Mr. Nikhil Pratap, ASC
(for O.Ps.1 & 3)
Mr. Bibhu Prasad Tripathy, Advocate
(for O.P.2-OPSC)
CORAM:
JUSTICE M.S. SAHOO
ORDER
29.08.2023 Order No. Hybrid Mode
05. 1. The Original Application was filed by the petitioner then aged about 41 years seeking a direction against the opposite party no.2-Orissa Public Service Commission to accepts his application for the post of Orissa Ayurvedic Medical Service.
It is stated in the petition that post advertisement of 2013, the petitioner applied, after having crossed the age of upper age limit of 32 years as on 1st day of January, 2016. It is stated in the petition that since after 1994 and 2003, no further advertisement has been made for the said posts. Therefore, the over-age of the persons having crossed the age of 32 years should be condoned for appearing at the examination. The petitioner has further stated that similar relaxations have been made for Page 1 of 6 // 2 // recruitment of post for the department of Animal Husbandry.
2. Having stated, thus, the relief sought for before the learned Tribunal as indicated in the petition at paragraph-7 is as follows:
"7. Relief (s) sought for:
In view of the facts mentioned above in Para-6 and grounds stated there in the applicant prays for the following reliefs:-
(i) The Hon'ble Tribunal be please to admit the Original application and direct the Respondents to entertain the candidature/application of the applicant relaxing the age limit and consequently to consider the applicant for the post of Ayurvedic Medical Officer, pursuant to Advertisement dated 11.02.2016 under Annexure-2.
(ii) The Hon'ble Tribunal further be please to declare the Rule 7(b) of the Orissa Ayurvedic Service Rule 2013 as ultra virus and Respondent No.2 be directed to publish corrigendum by relaxing the upper age limit as 44 years.
(iii) Respondent No.2 be directed to extend the date of submission of application for the recruitment and the Hon'ble Tribunal may pass such other order as deemed just and proper."
Learned Tribunal by order dated 05.04.2016 passed the following order:-
"Heard learned counsel for the applicant, learned Govt. Advocate and learned counsel for the O.P.S.C. Issue notice on the question of admission. Counter be filed within a period of four weeks. Rejoinder, if any, be filed within a period of two weeks thereafter.
List this matter after six weeks.
So far as prayer for interim relief is concerned, learned counsel for the applicant submitted that the applicant may be allowed to participate in the examination with the stipulation that the result shall not be published.
Learned Standing Counsel so also learned counsel for the O.P.S.C., on the other hand, argued that no such interim order has been passed in some Page 2 of 6 // 3 // O.As.on earlier dates, though some orders have been passed in the month of March, 2016.
Considering the submission of both sides, it is felt that this applicant should have approached the Tribunal much earlier and since no interim order has been passed in earlier O.As.it will not be possible to pass any interim order presently. However, the applicant will be at liberty to approach the O.P.S.C.in this regard who will be at liberty to take appropriate decision in the matter.
Send copies.
Notices be issued at the cost of the applicant."
3. It would be apparent from the order of the learned Tribunal dated 05.04.2016 that the Tribunal declined to pass any interim to the effect that the applicant may be allowed to participate in the examination with the stipulation that the result shall not be published without leave of the Tribunal. From the order of the learned Tribunal, it is apparent that the learned Tribunal never delved into the issue whether the petitioner was eligible to appear at the examination having been age barred or whether the petitioner had in fact applied for relaxation of age before the as per the Orissa Ayurvedic Service Rules, 2013, i.e. Rule 18 of the said Rules, 2013. After 05.04.2016, the matter was listed before the learned Tribunal on 19.07.2017 and 31.07.2017 was not taken up, thereafter, the Original Application was transferred before this Court after abolition of the learned Tribunal and registered as writ petition on 29.12.2021.
4. On 28.09.2022, learned counsel for the petitioner sought for adjournment on the ground of his personal difficulty, after hearing the learned counsel for the petitioner, learned Additional Government Advocate for the Page 3 of 6 // 4 // State and Mr. S.B. Jena, learned counsel for the OPSC, the following order was passed:
"1. This matter is taken up through hybrid mode.
2. The writ petition has been registered before this Court on 29.12.2021 after the Original Application was transferred from the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack upon its abolition.
3. On perusal of the available order-sheets of the learned Tribunal, it is indicated that notices were issued on 05.04.2016 also refusing to pass any interim order with observation that the applicant may approach the opposite party no.2-OPSC for redressal of his grievances. Thereafter, the matter was lastly listed on 31.07.2017.
4. It is submitted by the learned counsel for the petitioner that he has some personal difficulty, therefore, the matter may be adjourned also to enable the learned counsel to obtain up-to-date instruction.
5. Learned counsel for the OPSC referring to the counter filed on 01.09.2016 submits that nothing would survive at present for adjudication considering the fact that the matter relates to advertisement published in the year 2015-16 for the recruitment to the post of Ayurvedic Medical Officer in Group-B.
6. It is further submitted by learned Additional Government Advocate that the respective rights of the selected candidates would have crystallized after a passage of seven years, therefore, nothing would survive for adjudication.
7. Having heard the learned counsel for the parties, to grant another opportunity to the petitioner list on 20.10.2022."
5. Thereafter, by order dated 20.10.2022, this Court passed the following order:
"1. This matter is taken up through hybrid mode.
2. Learned counsel for the petitioner seeks some time to file the Rejoinder Affidavit.
3. Call this matter after four weeks. Rejoinder affidavit, if any, be filed in the meantime."Page 4 of 6
// 5 //
6. Thereafter, on 02.05.2023 after hearing the learned counsel for the petitioner and the learned Additional Government Advocate for the State-opposite parties, the following order was passed referring to the order dated 28.09.2022:
"1. Learned counsel for the petitioner submits that the response of the State-opposite parties has not yet been filed.
2. When the matter was taken up on 28.09.2022, the following order was passed:
"1. This matter is taken up through hybrid mode. 2. The writ petition has been registered before this Court on 29.12.2021 after the Original Application was transferred from the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack upon its abolition.
3. On perusal of the available order-sheets of the learned Tribunal, it is indicated that notices were issued on 05.04.2016 also refusing to pass any interim order with observation that the applicant may approach the opposite party no.2-OPSC for redressal of his grievances. Thereafter, the matter was lastly listed on 31.07.2017.
4. It is submitted by the learned counsel for the petitioner that he has some personal difficulty, therefore, the matter may be adjourned also to enable the learned counsel to obtain up-to-date instruction.
5. Learned counsel for the OPSC referring to the counter filed on 01.09.2016 submits that nothing would survive at present for adjudication considering the fact that the matter relates to advertisement published in the year 2015-16 for the recruitment to the post of Ayurvedic Medical Officer in Group-B.
6. It is further submitted by learned Additional Government Advocate that the respective rights of the selected candidates would have crystallized after a passage of seven years, therefore, nothing would survive for adjudication.
7. Having heard the learned counsel for the parties, to grant another opportunity to the petitioner list on 20.10.2022."Page 5 of 6
// 6 //
3. Counter on behalf of the opposite party no.2- OPSC is on record.
4. Learned counsel for the petitioner seeks further time to file rejoinder to the counter affidavit of the OPSC-opposite party no.2.
5. As prayed for, list on 18.07.2023. In the meantime, learned Additional Government Advocate for the State shall also obtain up-to-date instruction."
7. Today, learned counsel for the petitioner produces the order dated 21.06.2016 passed in W.P.(C) No.6749 of 2016, wherein the following direction was passed:
"Having heard the learned counsel for the respective parties and keeping in view the fact that the Original Application filed by the writ petitioner remain pending for consideration, we are of the considered view that interim order as passed on 17.03.2016 in O.A. No.1067 (C) of 2016 ought to be similarly passed in the present case and the petitioner be permitted to make hard copy application to the O.P.S.C. within a period of ten days from today positively and the O.P.S.C. shall accept such application provided he fulfils all other criteria other than the age and the result shall not be published without leave of the Tribunal."
8. In view of the above, let the records of W.P.(C) No.6749 of 2016 be called for reference along with present petition.
As prayed for, list on 15.09.2023.
(M.S. Sahoo)
jyostna Judge
Signature Not Verified
Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: OHC
Date: 31-Aug-2023 13:24:39
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