Orissa High Court
Afr Dr. Bikash Kumar Pattanayak vs Principal Secretary To Govt. Of Odisha on 23 September, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 3964 OF 2020
In the matter of an application under Article 226 and
227 of the Constitution of India.
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AFR Dr. Bikash Kumar Pattanayak ..... Petitioner
-Versus-
Principal Secretary to Govt. of Odisha, Health & Family Welfare Department & another. ..... Opp. Parties For Petitioners : M/s. B.S. Tripathy, M.K. Rath, J. Pati and N. Panda, Advocates For Opp. Parties : Mr. J. P. Pattanaik, Government Advocate [O.P. No.1] M/s. S. Swain & A. Mishra, Advocates [O.P. No.2] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing : 16.09.2021 :: Date of judgment:23.09.2021 DR. B.R. SARANGI, J. The petitioner, who is a doctor, has filed this writ petition seeking to quash the notice dated 24.01.2020 under Annexure-10, so far as it relates to rejection of his application bearing Roll No. 100302 and Registration ID No.131920131843 mentioned at Serial 12 on the ground of overage, and to issue direction to the opposite parties to relax his overage for a period of 5 months and 26 days as on 01.01.2020 and consider his application for recruitment to the post of Medical Officer (Assistant Surgeon) in Group-A (Junior Branch) of the Odisha Medical & Health Services Cadre under Health and Family Welfare Department, pursuant to advertisement no. 13 of 2019-20.
2. The factual matrix of the case, in a nutshell, is that the petitioner, having a brilliant academic career in matriculation examination and +2 examination, got himself admitted into MBBS course and passed the same in the year 2011 under the Utkal University. He completed the compulsory Rotating Housemanship for a period of 12 months from 23.10.2011 to 22.10.2012. After acquiring such qualification, the petitioner registered his name in the Page 2 of 23 Orissa Council of Medical Registration, Bhubaneswar on 21.02.2013 and obtained the registration certificate vide Regd. No. 18647 of 2013. The petitioner served as Medical Officer on ad hoc basis vide Govt. Notification dated 15.04.2013 for a period of about three years from 08.05.2013 to 11.05.2016 at Dinger and Gudum PHC of Botalama CHC. Thereafter, the petitioner proceeded on leave from 11.05.2016 to go for higher study of PG in O & G. Consequentially, he joined P.G. course and completed MS (O & G) successfully from 30.05.2016 to 30.05.2019. Accordingly, a provisional certificate in support of passing of the said examination was issued by the Utkal University.
2.1. The Odisha Public Service Commission issued advertisement no. 13 of 2019-20 for recruitment to the post of Medical Officer (Assistant Surgeon) in Group-A (Junior Branch) of the Odisha Medical & Health Services cadre under Health and Family Welfare Department inviting online applications from the prospective candidates for recruitment to 3278 posts of Page 3 of 23 Medical Officers. Pursuant to such advertisement, the petitioner applied for, but his application was rejected on the ground of "overage". Hence this application.
3. Mr. B.S. Tripathy, learned counsel for the petitioner argued with vehemence and contended that rejection of the application filed by the petitioner for recruitment to the post of Medical Officer (Assistant Surgeon) in Group-A (Junior Branch) of the Odisha Medical & Health Services cadre on the ground of overage is totally outcome of non-application of mind and, as such, contrary to the advertisement issued. He further contended that as per second proviso to Clause- 3 of the advertisement, the petitioner is eligible and entitled for age relaxation as he has served three years under the State Government. It is further contended that on receipt of application form, along with relevant documents, the same was scrutinized and the petitioner was allowed to participate in the written examination where he successfully qualified. In such eventuality, his application should not have been Page 4 of 23 rejected. Therefore, rejection of the petitioner's application on the ground of "overage" after he comes out successful in the written test is not only illegal and arbitrary but also contrary to the guidelines issued in the advertisement itself. As such, the notice dated 24.01.2020 under Annexure-10 rejecting the application of the petitioner for recruitment to the post of Medical Officer may be quashed and opposite parties may be directed to recommend the name of the petitioner for recruitment to the post of Medical Officer.
4. Mr. J. P. Pattanaik, learned Government Advocate appearing for opposite party no.1 contended that pursuant to Rule-6 of the Odisha Medical and Health Services (Method of Recruitment and Conditions of Service) Rules, 2017 (for short "Rules, 2017"), the Government of Odisha, Health and Family Welfare Department, vide letter dated 28.10.2019, requested the opposite party no.2-OPSC for recruitment of 3278 Asst. Surgeons in the rank of Group-A (Junior Branch) of the Odisha Medical & Health Services cadre during Page 5 of 23 the year 2019-20. Consequentially, opposite party no.2 issued the advertisement under Annexure-5. It is contended that Sub-rules (4) and (7) of Rule -6 of the Rules, 2017 require opposite party no.2 to prepare a list of candidates after adjudging the suitability 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. Accordingly, opposite party no.1 received a list of 1403 selected candidates from opposite party no.2, vide OPSC letter dated 28.01.2020, and all selected candidates were given appointments vide Health and Family Welfare Department Notifications dated 04.03.2020 and 21.03.2020. It is contended that the OPSC- opposite party no.2, being the recruiting agency, has evaluated the suitability and eligibility of the petitioner in consonance with the advertisement under Annexure-5. It is further contended that in Rule-7 of the Rules 2017, for the candidates seeking relaxation of upper age limit, it is clearly provided that the upper age limit up to five Page 6 of 23 years shall be given to the doctors serving on ad hoc or contractual basis under State Government/State Government undertaking. In that regard, opposite party no.2-OPSC, being the recruiting agency, is the appropriate authority for considering the applicability of the rules as mentioned in Rule 7 of the Rules, 2017 vis- à-vis the stipulations made in the advertisement under Annexure-5. Thereby, opposite party no.2 is the appropriate authority to mitigate the grievance of the petitioner as claimed in the writ petition.
5. Mr. S. Swain, learned counsel for opposite party no.2 argued with vehemence and contended that the advertisement no. 13 of 2019-20 for recruitment to the post of Medical Officers (Assistant Surgeon) in Group-A (Junior Branch) of the Odisha Medical & Health Services cadre was issued on receipt of requisition from the Government in Health and Family Welfare Department, as the requisitioning and appointing authority. The last date of filling up of the online application by the candidates was fixed to Page 7 of 23 05.12.2019. The objective of keeping the last date is that a candidate shall be declared eligible by 05.12.2019 for filling up of online application. As per Clause-9 (vii) of the said advertisement, only those candidates, who are within the prescribed age limit and fulfill the requisite qualification etc. by the closing date of submission of online application, will be considered eligible. The petitioner, after knowing all the conditions of advertisement, submitted online application for the said post. Accordingly, roll number was assigned to him and prior to scrutiny of documents, all the applicants, who had submitted their applications for the said post through online, were allowed to appear in the written examination provisionally and after written examination, 1582 candidates, including the petitioner, were asked to attend the verification of original documents on 07.01.2020. It was noticed that the petitioner had submitted service experience certificate that he was working as Medical Officer from 08.05.2013 to 11.05.2016 and is continuing his PG from Page 8 of 23 11.05.2016 and till that date he was on study leave. It is thus contended that since the petitioner was on study leave and continuing his PG from 11.05.2016 till that date, but was not in government service by the last date of submission of his previous service experience certificate as Medical Officer, his case was not taken into consideration for relaxation of age. Thus, he being found as overage, his candidature was rejected on that ground for such recruitment, vide OPSC notice dated 24.01.2020 under Annexure-10. Thereby, the OPSC has not committed any illegality or irregularity in rejecting his application on the ground of overage. It is further contended, by filing an additional counter affidavit, that as per Rule 7(b) of Rules, 2017 relaxation of upper age limit up to 5 years shall be given to the doctors serving on ad hoc or contractual basis under State Government/State Government undertaking. Since the petitioner had undergone study leave and not a doctor serving on ad hoc/contractual basis, thereby relaxation of age is not applicable to him. Therefore, the Page 9 of 23 OPSC on 20.07.2021 examined his case and did not extend him the benefit of condonation of age as the existing rule did not so provide. The same was duly communicated to the petitioner on 20.07.2021. Thereby, the relief sought by the petitioner cannot be granted and the writ petition should be dismissed.
6. This Court heard Mr. B.S. Tripathy-
learned counsel for the petitioner; Mr. J. P. Pattanaik- learned Government Advocate appearing for the State; and Mr. S. Swain, learned counsel appearing for opposite party no.2-OPSC by hybrid mode. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. The factual matrix, as delineated above, is not in dispute. Therefore, the only question to be determined in this case is that opposite party no.2, having entertained the application submitted by the petitioner, pursuant to advertisement issued under Page 10 of 23 Annexure-5, and having permitted the petitioner to appear in the written examination, where he was qualified, can subsequently reject his application on the ground of overage.
8. The Government of Odisha in Health and Family Welfare Department issued a notification on 9th August, 2017 that in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Odisha Medical and Health Services Rules, 2013 except as things done or omitted to be done before such supersession, the Governor of Odisha was pleased to make the rules to regulate the method of recruitment and conditions of service of the persons appointed to the Odisha Medical and Health Services, called, "Odisha Medical and Health Services (Method of Recruitment and Conditions of Service) Rules, 2017". Part-I of the said Rules deals with general, Part-II deals with method of recruitment, Part- III deals with direct recruitment, Part-IV deals with promotion, Part-V deals with other conditions of Page 11 of 23 service, Part-VI deals with miscellaneous. In Part-III, which deals with direct recruitment, Rule- 7 (a) and (b) read as follows:
" 7. Eligibility Criteria for direct recruitment- In order to be eligible for direct recruitment to the service, a candidate must, -
(a) be a citizen of India.
(b) have attained the age of 21 years and must not be above the ge of 32 years on the first day of January of the year in which application are invited by the Commission:
Provided that the upper age limit in respect of reserved category of candidates referred to in rule 5 shall be relaxed in accordance with the provisions of the Act.
Provided further that the upper age limit up to 5 years shall be given to the doctors serving on ad hoc or contractual basis under State Government / State Government undertaking."
The aforesaid provisions clearly indicate that in order to be eligible for direct recruitment to the service, a candidate must have attained the age of 21 years and must not be above the age of 32 years on the first day of January of the year in which applications are invited by the Commission. The second provision of Sub-rule(b) makes it clear that the upper age limit up to 5 years shall be given to the doctors serving on ad hoc or Page 12 of 23 contractual basis under State Government / State Government undertaking. Thereby, relaxation of five years is applicable to the doctors serving in ad hoc or contractual basis under the State Government or State Government undertaking.
9. On the basis of the requisition received from the State Government in Health and Family Welfare Department as the requisitioning and appointing authority of Medical Officers (Assistant Surgeon), the Odisha Public Service Commission issued advertisement No.13 of 2019-20 for recruitment to the post of Medical Officer (Assistant Surgeon) in Group-A (Junior Branch) of the Odisha Medical & Health Services Cadre under Health & Family Welfare Department in Annexure-5. The last date of submission of online application was fixed to 05.12.2019. The objective behind fixing the last date to 05.12.2019 for filling up of online application was to declare a candidate as eligible by that date. Clause-3 of the advertisement reads as follows:
Page 13 of 23
"3. AGE:
A candidate must have attained the age of 21 (Twenty one) years and must not be above 32 (Thirty two) years as on 1st day of January, 2020 i.e., he/she must have been born not earlier than 2nd January, 1988 and not later than 1st January, 1999.
The upper age limit prescribed above shall be relaxable by 5 (five) years for candidates belonging to the categories of Socially & Educationally Backward Classes (S.E.B.C.), Scheduled Castes (S.C.) Scheduled Tribes (S.T.) Woken, Ex-Servicemen and by cumulative 10 (Ten) years for candidates belonging to Physically Handicapped category, whose permanent disability is 40% and more.
Provided that, a candidate who comes under more than one category mentioned above, he/she will be eligible for only one age relaxation benefit, which shall be considered most beneficial to him/her.
Provided that person with past service as Medical Officers under the State Government to their credit, shall be given preference and in their case, the period of service so rendered by the last date of submission of applications shall be added to the age limit for entry into the service and it is up to maximum period of 05 years."
On perusal of the above, it is made clear that a candidate must have attained the age of 21 years and must not be above 32 years as on the 1st day of January 2020, i.e., he/she must have been born not earlier than 2nd January, 1988 and not later than 1st January, 1999. The second proviso to clause-3 clearly indicates that the candidates with past service as Page 14 of 23 Medical Officer under the State Government to their credit, shall be given preference and in their case, the period of service so rendered by the last date of submission of applications shall be added to the age limit for entry into the service and it is up to maximum period of 05 years.
10. There is no dispute that the petitioner is overage for a period of 5 months 26 days as on 01.01.2020. Meaning thereby, he has already attained the maximum age of 32 years. Therefore, as on 01.01.2020, he was 32 years 5 months 26 days and there is also no dispute with regard to the fact that the petitioner was rendering service under the Government from 08.05.2013 to 11.05.2016 at Dinger and Gudum PHC of Botalama CHC on ad hoc basis by Government notification dated 15.04.2013 and from 11.05.2016, he was on study leave for P.G. course. Therefore, the petitioner was in government service for a period of three years and three days and thereafter he remained on study leave for acquiring P.G. qualification in O & G. Page 15 of 23 As per the second proviso to clause-3 of the advertisement read with second proviso to Rule 7(b) of Rules, 2017, for the past service rendered by the petitioner under the State Government, he shall be entitled to get the benefit of relaxation of upper age limit for a period of three years and three days. Therefore, if three years and three days will be added to 32 years, the upper age limit for the petitioner will be enhanced to 35 years and three days. Thereby, his application cannot and could not have been rejected on the ground of overage.
11. Considering from other angle, as per the second proviso to Rule 7(b) of Rules, 2017, relaxation of upper age limit up to five years shall be given to the doctors serving on ad hoc or contractual basis under State Government/ State Government undertaking. It is admitted fact that the petitioner has served from 08.05.2013 to 11.05.2016 as a Medical Officer at Dingar and Gudum PHC of Botalama CHC on ad hoc basis vide Govt. Notification dated 15.04.2013, and on Page 16 of 23 11.05.2016 he was granted study leave to go for higher study of P.G. in O & G. Therefore, the word "serving" used in second proviso of Rule 7(b) of Rules, 2017 means, holding employment, as distinguished from actual performing the duties of service. 12 In Arijit Singh v. State, AIR 1970 P &H 351, the Full Bench of the Court, while construing Section 9 of the Air Force Act, 1950, held that a member of Air Force on leave is "serving" within the meaning of the section. Therefore, the petitioner, who was rendering service as a Government Servant and was granted study leave, comes well within the meaning of "serving" and is thus entitled to get benefits of such provision.
13. Rule- 179 of the Orissa Service Code, which deals with grant of special study leave, reads as follows:
"Rule-179 : Grant of Special Study Leave :
(a) Subjects to the conditions hereinafter specified, the State Government may grant special study leave to a Government servant to enable him to study scientific, technical or similar Page 17 of 23 problems or to undergo a special course of instructions, such leave is not debited against the leave account.
(b) These rules relate to study leave only.
They are not intended to meet the case of Government servant deputed to other countries at the instance of Government, either for; the performance of special duties imposed on them or for the investigation of specific problems connected with their technical duties, such cases will be dealt with on their merits under the provisions of Rule 59. Such leave may be granted to a Government servant in the Public Health, Medical, Civil, Veterinary, Agriculture Education, Public Works or Forest Department or to any other Government servant to whom the State Government is of opinion that such leave should in the public interest, be granted.
Note : Save in very exceptional case, study leave will not be granted to a member of subordinate service."
The aforesaid rule clearly provides that subject to conditions specified, the State Government may grant special study leave to a Government servant to enable him to study scientific, technical or similar problems or to undergo a special course of instructions, such leave is not debited against the leave account. It has also been further clarified under Sub-rule (b) of Rule-179 that such leave may be granted to a Government servant in the Public Health, Medical, Civil, Veterinary, Agriculture Education, Public Works or Forest Page 18 of 23 Department or to any other Government servant to whom the State Government is of opinion that such leave should in the public interest, be granted. Admittedly, the petitioner was serving as a Medical Officer on ad hoc basis and he required a study leave to go for higher study for acquisition of P.G. qualification in O & G, for having been duly selected. That comes within the purview of "medical" as per Sub-rule (b) of Rule-179 and as such, leave has been granted by the State Government. Therefore, it can be safely construed that the petitioner, as on 1st day of January, 2020, was "serving" as a doctor on ad hoc basis under the State Government. Thus, he was entitled to get the upper age limit relaxation of five years.
14. On conjoint reading of the second proviso to Rule 7(b) of Rules, 2017 and to clause-3 of the advertisement, the petitioner is entitled to get age relaxation up to five years. Admittedly, when the petitioner submitted his application, he was overage by 5 months 26 days only and such overage can be Page 19 of 23 condoned in view of the above mentioned provisions contained in second proviso to clause-3 of the advertisement and second proviso to Rule 7(b) of Rules, 2017. Non-consideration of the same by opposite party no.2 in proper perspective, is in gross violation of the statutory provisions governing the field.
15. In Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 : (1975) 1 SCC 421, the Constitution Bench of the apex Court observed as under :-
"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 violation of rules and regulations."
xx xx xx The Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of duty to observe the rule of natural justice and compliance with rule and regulations imposed by statute."
Similar view has also been taken by the Supreme Court in Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 : (1987) 1 SCC 213. Page 20 of 23
16. In Sirsi Municipality v. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the apex Court observed that "the ratio is that the rules or the regulations are binding on the authorities."
17. In M.A. Haque v. Union of India, (1993) 2 SCC 213, the apex Court observed as under:-
"................... We cannot lose sight of the fact that the recruitment rules made under article 309 of the Constitution have to be followed strictly and not in breach."
18. In Purushottam v. Chairman, Maharashtra State Electricity Board, (1999) 6 SCC 49, the apex Court held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appointment, should not be denied the same on any pretext whatsoever as usurpation of the post by somebody else in any circumstances is not possible.
19. The rules may provide for the granting of study leave to a Government servant with due regard to the exigencies of public service to enable him to Page 21 of 23 undergo, in or out of India, a special course of study consisting of higher studies or specialized training in a professional or technical subject having a direct and close connection with the sphere of his duty.
20. In Union of India v. No. 664950 IM Havildar/Clerk SC Bagari, (1999) 3 SCC 709: AIR 1999 SC 1412, the apex Court held that the rules for study leave should have nexus with the performance of duties of the class of employees concerned.
21. In view of the factual and legal aspects, as discussed above, this Court is of the considered view that rejection of petitioner's application on the ground of overage, vide notification dated 24.01.2020 under Annexure-10, so far as it relates to the petitioner having Roll No. 100302 and Registration ID No. 131920131843, cannot sustain and the same is accordingly quashed. As the petitioner has already qualified in the written examination, it is incumbent upon the OPSC-Opposite Party No.2 to take further course of action by recommending his name to the Page 22 of 23 Government for giving him appointment against one of the available vacancies, as it was brought to the notice of this Court that as against total posts of 3278, only 1403 selected candidates have been recommended by the OPSC to the State. Ordered accordingly. The above exercise shall be completed within a period of two months from the date of communication of this judgment.
22 The writ petition is thus allowed. No order to costs.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 23rd September, 2021, Ajaya/GDS Page 23 of 23