Orissa High Court
Santosh Adhikari vs State Of Odisha And Another ... Opposite ... on 1 March, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.39860 of 2021
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Santosh Adhikari ... Petitioner
- Versus -
State of Odisha and another ... Opposite parties
For Petitioner ... M/s. K.P. Mishra, S. Rath,
L.P. Dwivedi & A. Mishra.
For Opposite Parties ... Mr. N.K. Praharaj
Additional Government Advocate
(For O.P. No.1)
M/s. P.K. Mohanty, P. Mohanty,
P.K. Nayak, P.K. Pasayat &
S.N. Dash.
(For O.P. No.2)
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PRESENT:
THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 20.02.2024 : Date of judgment : 01.03.2024 A.K. Mohapatra, J. The present writ petition has been filed with a prayer for a direction to the State-Opposite Parties to grant age relaxation to the Petitioner in terms of Odisha Civil // 2 // Service (Fixation of Upper Age Limit) Amendment Rules, 2022 under Annexure-9 to the writ petition for appointment to the post of Assistant Director (Law) and for a declaration that the Gazette Notification dated 15.01.2022 under Annexure-11 is not applicable to the case of the Petitioner. The Petitioner has also prayed for a further direction to the Opposite Parties to consider the candidature of the Petitioner for appointment to the post of Assistant Director (Law) in Home Department by relaxing the upper age limit of Ex- servicemen candidates as recommended by the Parliamentary Standing Committee of Defence and to treat the Petitioner at par with inservice Government servant candidates in respect of whom the upper age limit has been fixed at 45 years in the 2017 Rules.
2. The factual matrix of the case, in gist, is that on 18.11.2021, the Odisha Public Service Commission (in short 'OPSC')-Opposite Party No.2 published an advertisement for recruitment to the post of Assistant Director (Law). The // 3 // Petitioner, who is an Ex-servicemen, is eligible in all respect to appear in the aforesaid examination save an obstacle in the shape of the upper limit criteria fixed in the advertisement. Further, it appears that by the time of submission of candidature, the upper age limit for Ex-servicemen candidate was fixed at 40 years, however, the Petitioner was by then over aged by one year and six months. Therefore, initially the candidature of the Petitioner was not accepted and he was not allowed to fill-up the form for being considered for appointment to the post of Assistant Director (Law).
3. Being aggrieved by such fixation of upper age limit, the Petitioner approached the Chief Secretary, Government of Odisha by filing a representation on 14.12.2021 with a prayer to increase the upper age limit from 40 years to 45 years for ex-servicemen category at par with the inservice Government employees or at least for grant of the relaxation as has been fixed in Fixation of Upper Age Limit Rules, 2022. Since the // 4 // representation of the Petitioner was not considered by the Chief Secretary, Government of Odisha, the Petitioner was constrained to approach this Court by filing W.P.(C) No.39860 of 2021 on 17.12.2021. While the said writ application was pending before this Court, the Government of Odisha vide Gazette Notification No.117 amended the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 1998 by the amending Act of the year 2022 thereby increasing the upper age limit from 32 years to 38 years for all General Category candidates except the reserved category in respect of the advertisement made during the calendar years 2021, 2022 and 2023.
4. The aforesaid amending rule of the year 2022 which was published vide Gazette Notification dated 11.01.2022 was further modified by another Gazette Notification No.126 dated 15.01.2022. Pursuant to the aforesaid modification vide Gazette Notification dated 15.01.2022, the relaxation of upper age limit which was initially granted vide Gazette // 5 // Notification dated 11.01.2022 in respect of the Calendar years 2021, 2022 and 2023 was restricted to those cases where pursuant to the advertisement the last date of submission of application was not over. So far the present Petitioner is concerned, it is seen that he was interested to apply pursuant to the advertisement published on 18.11.2021 under Annexure-1 to the writ petition. Such advertisement provides that the last date of submission of online application form is 31.12.2021 for recruitment to the post of 80 posts of Assistant Director (Law) in Group-B of Odisha Secretariat Service under Home Department. Further, on a careful scrutiny of the advertisement under Annexure-1 reveals that out of a total number of 80 posts, 2 posts have been reserved for Ex-Servicemen Category including one post for Women. The Petitioner being an Ex-Serviceman was interested in getting appointment to the said post of Assistant Director (Law) reserved for Ex-Servicemen category. However, the // 6 // Petitioner was not permitted to apply for the said post on the ground that he has become over aged.
5. Being aggrieved by the aforesaid fixation of upper age limit and deprivation of opportunity to apply for such post pursuant to Annexure-1, the Petitioner approached this Court by filing the present writ petition. A coordinate Bench of this Court vide order dated 22.12.2021 issued notice to the Opposite Parties and directed to serve copy of the writ petition on the learned State Counsel. On 16.03.2022, this Court passed an interim order in I.A. No.861 of 2022 thereby permitting the Petitioner to participate in the recruitment process by directing the Opposite Parties to accept the application form of the Petitioner through offline mode and allow him to appear in the examination. However, such interim order was subject to a condition that the result of such examination in respect of the Petitioner shall not be published without leave of this Court. Pursuant to such interim order passed by this Court on 16.03.2022, the Petitioner submitted // 7 // his application form through offline mode which was accepted by the OPSC. The OPSC also allowed the Petitioner to participate in the recruitment process by appearing in the written examination. It also appears that the Petitioner was allowed to appear in the viva voce test. However, in obedience to order dated 16.03.2022, the Opposite Parties have not published the result of the Petitioner and the same has been kept in a sealed covered.
6. Heard Mr. K.P. Mishra, learned Senior Counsel appearing for the Petitioner; Mr. N.K. Praharaj, learned Additional Government Advocate appearing for the State- Opposite Parties; and Mr. P.K. Mohanty, learned Senior Counsel, along with Mr. Pronoy Mohanty, appearing for the Opposite Party No.2-OPSC. Perused the pleadings as well as the documents annexed thereto.
7. Mr. K.P. Mishra, learned Senior Counsel appearing for the Petitioner submitted that the Cadre of Assistant Director in Law was created by virtue of the rules of the year 2017, // 8 // i.e. Odisha State Legal Service (Method of Recruitment and Conditions of Service) Rules, 2016 which was notified in the Gazette on 11th January, 2017. Further, taking this Court through the rules of the year 2016, learned Senior Counsel appearing for the Petitioner submitted that Rule-9 lays down the eligibility criteria for recruitment to the post of Assistant Director (Law). He further contended that while fixing the age limit, the rule provides that the candidate must not be below 23 years and above 35 years of age. However, relaxation has been granted to the category of candidates as provided under Rule-6 of 2016 Rules. So far Ex-Servicemen like the Petitioner are concerned, they are governed under Rule-6(b) and reservation for such category is to be provided as per the act, rules, order or instruction issued on this behalf by the Government from time to time.
8. In course of his argument, Mr. Mishra, learned Senior Counsel appearing for the Petitioner emphatically submitted that the Ex-servicemen like the Petitioner have been grossly // 9 // discriminated. To substantiate such allegation, learned Senior counsel for the Petitioner referred to Rule-9 which provides that the upper age limit in respect of inservice Government candidates has been fixed at 45 years whereas in the case of the present Petitioner, who is an Ex-Serviceman, the upper age limit shall be 35 years + 5 years relaxation granted under the rules of the year 1986. Therefore, the maximum age limit, so far the present Petitioner is concerned, is 40 years. Referring to the aforesaid disparity, learned Senior Counsel for the Petitioner submitted that the same is highly unreasonable and that the same will not pass the test under Article 14 and 16 of the Constitution of India.
9. Mr. Mishra, learned Senior Counsel further contended that in respect of inservice Government employees, the Government has provided 45 years. However, the Petitioner, who has served the nation by serving in the Indian Air Force, has been given a lesser advantage under the rules framed by the State-Government. In course of his argument, learned // 10 // Senior Counsel for the Petitioner further referred to the recommendation of the Parliamentary Standing Committee of Defence, it was submitted that the Parliamentary Standing Committee of Defence has recommended that the Ex- Serviceman, who are interested in civil service are to be given relaxation of their entire period of service rendered in Indian Air Force to be deducted from total age of the Petitioner while considering the eligibility in terms of the Rules, 2017.
10. In support of his contention, learned Senior Counsel appearing for the Petitioner referred to the judgment of the constitution Bench of the Hon'ble Supreme Court. He also relied on the judgment of the Hon'ble Supreme Court in Kalpana Meheta v. Union of India (Writ Petition (Civil) No.921 of 2013 decided on 5th April, 2017) with regard to the legality and validity of the Parliamentary Standing Committee report. By referring to the aforesaid judgments, learned Senior Counsel appearing for the Petitioner submitted // 11 // that the Supreme Court has categorically held that such report can be taken into consideration while deciding a case. Citing the aforesaid S.C. Report, learned counsel for the Petitioner submitted that they should have been at least treated at par with inservice Government employees.
11. In course of his argument, learned Senior Counsel appearing for the Petitioner also submitted that the Gazette Notification of the Government dated 15.01.2022 is bad in law inasmuch as a right was conferred by virtue of Gazette Notification dated 11.01.2022 keeping in view the COVID-19 pandemic situation and considering the fact that recruitment tests were not conducted for several years. Having granted such relaxation to all categories of candidates and consequently restricting the same by issuing another notification a few days thereafter, i.e. 15.01.2022 to the extent that where the last date for submission of the application pursuant to such the advertisement was over, the candidates, who were interested in such posts advertised prior // 12 // to the date of the aforesaid Gazette Notification, will not be eligible to get the benefit is an unreasonable classification, therefore, the same would be hit by Article 14 of the Constitution of India.
12. Learned Senior Counsel appearing for the Petitioner further contended that by virtue of Notification dated 15.01.2022, another class was created within the same class without having any reasonable nexus with the object sought to be achieved thereby. Therefore, the same would not be protected under Article 14 of the Constitution of India and, accordingly, such Notification dated 15.01.2022 be declared arbitrary and discriminatory. He further submitted that such benefit which was granted by virtue of Notification dated 11.01.2022 should have extended across all categories of candidates in respect of Calendar Years 2021, 2022 and 2023. The artificial distinction that has been drawn by virtue of the Notification dated 15.01.2022 is unsustainable in law. Moreover, the same is grossly discriminatory and arbitrary.
// 13 //
13. With regard to grant of relaxation in upper age limit, the learned Senior Counsel appearing for the Petitioner also referred to the judgment of the Hon'ble Supreme Court in High Court of Delhi v. Devina Sharma (Civil Appeal No.2016 of 2022) and the judgment of this Court in Nagen Bhoi & others v. State of Odisha (W.P.(C) No.341 of 2023) and Sujit Kumar Padhy v. State of Odisha (W.P.(C) No.36126 of 2021). By referring to the aforesaid judgments, learned Senior Counsel appearing for the Petitioner submitted that the Hon'ble Supreme Court as well as this Court keeping in view the fact that the recruitment tests were not conducted during COVID-19 pandemic and there was a long gap between the two recruitment tests, the candidates who have become over aged by the time the advertisements were issued, the recruitment test took place immediately after COVID-19 were given age relaxation by virtue of the aforesaid judgment. The judgment delivered by the Hon'ble // 14 // Supreme Court and this Court has also been given effect to by the respective Governments.
14. In such view of the matter, learned Senior Counsel appearing for the Petitioner keeping in view the proposition of law laid down in the above noted judgments, prayed that this Court be pleased to direct the Opposite Parties to consider grant of age relaxation to the Petitioner in the light of the aforesaid judgments. Finally, the learned Senior Counsel appearing for the Petitioner submitted that the rules of year 2016, under which, the present recruitment is taking place also provides for relaxation clause in the shape of Clause-17. Further, referring to the aforesaid Rule-17, learned Senior Counsel appearing for the Petitioner submitted that the State Government is vested with power to relax any of the provisions of the said rule wherever it feels expedient so to do, by order for reasons to be recorded in writing to any class or category of employees in the interest of the Public Service in consultation with the Commission.
// 15 //
15. Additionally, by referring to aforesaid Rule-17, learned Senior Counsel appearing for the Petitioner submitted that the Petitioner falls in an exclusive category, i.e. Ex-Servicemen, who had spent several years in the service of the nation by serving in the Indian Air Force. He also contended that the rules of the year 1986 also provide relaxation and reservation for such category of persons. In the present case, after rendering his services in the Indian Air Force, the Petitioner wants to come back to civil service. Therefore, the State is under an obligation to accept the Petitioner by making suitable provision to accommodate such type of persons, who have served the nation through the Indian Air Force. He also submitted that there exists a disparity by fixing the upper age limit for inservice Government candidates. Further taking into consideration the special category of the Petitioner and keeping in view the relaxation granted by this Court as well as the Hon'ble Supreme Court, learned Senior Counsel submitted that the State Government may be directed to // 16 // consider the case of the Petitioner for grant of relaxation under Rule-17 of the 2016 Rules.
16. Learned Additional Government Advocate appearing for the State-Opposite Party No.1, on the other hand, contended that the State-Opposite Party No.1 has filed a detailed counter affidavit. In their counter affidavit, the State- Opposite Party No.1 has categorically stated that the Petitioner is simply aged barred. Therefore, his case could not have been considered. Further, referring to the 2016 Rules, particularly Rule-9, learned Additional Government Advocate submitted that the said Rule-9 provides for eligibility criteria. Such eligibility criteria includes the age limit of the candidates. Since the upper age limit has been fixed at 35 years and by adding such age relaxation, the Petitioner is entitled to get 5 years more, the upper age limit of the Petitioner would be 40 years. However, the Petitioner has crossed the upper age limit by one year and six months // 17 // and, therefore, his case could not have been considered contrary to the provisions contained in the rule.
17. Learned Additional Government Advocate further contended that the post of Assistant Director (Law) was created in the year 2021 by virtue of Government Notification dated 31.03.2021. Therefore, the contention of the learned Senior Counsel appearing for the Petitioner is erroneous as the Petitioner has not suffered due to COVID-19 pandemic and that he has lost any opportunity to apply for the post as the post was created only on 31.3.2021. Therefore, the case of the Petitioner cannot be equated with the persons in respect of whom the recruitment test could not take place for several years due to COVID-19 pandemic related issues.
18. In course of his argument, learned Additional Government Advocate further contended that judgments relied upon by the learned Senior Counsel appearing for the Petitioner are not applicable to the facts of the Petitioner's case. While elaborating such contention, learned Additional // 18 // Government Advocate submitted that the case laws that has been relied upon by the learned Senior Counsel appearing for the Petitioner the main ground is that the Petitioner in those cases did not get an opportunity to participate as no recruitment test was held for the post in which they were interested. In other words, the posts which were advertised were not being filled up for the first time. However, the recruitment tests which were being conducted after a long gap of time because of the COVID-19 pandemic and due to such long gap between the two recruitment tests persons became over aged. To grant an opportunity to such type of candidates, this Court as well as the Hon'ble Supreme Court has directed to grant age relaxation to such type of candidates. However, such age relaxation is not applicable to the case of the Petitioner.
19. He further contended that the Opposite Parties have not committed any illegality by not accepting the application of the Petitioner for recruitment to the post of Assistant Director // 19 // (Law). It was also submitted by him that pursuant to the interim order passed by this Court, the Petitioner was allowed to participate in the recruitment test and that the result of such test has been kept in a sealed cover as directed by this Court on 16.03.2022. In such view of the matter, learned Additional Government Advocate submitted that the writ petition is devoid of merit and, accordingly, the same should be dismissed.
20. Mr. P.K. Mohanty, learned Senior Counsel appearing for the Opposite Party No.2-OPSC referring to the counter affidavit filed by the Opposite Party No.2-OPSC submitted that the OPSC had published the advertisement pursuant to the rules and as per the requisition of the State Government. He further referred to the Rules of the year 2016 and submitted that in view of the provisions contained in such Rules, the OPSC has not committed any illegality or mistake in advertisement under Annexure-1 to the writ petition. He also contended that the Petitioner was allowed to participate // 20 // pursuant to the interim order passed by this Court and his result has been kept in a sealed cover. In view of the aforesaid submission, Mr. Mohanty, learned counsel for the OPSC submitted that the present writ petition is not maintainable against the OPSC.
21. Having heard the learned Senior Counsel appearing for the Petitioner, the learned Additional Government Advocate appearing for the State-Opposite Party No.1 and the learned Senior Counsel papering for the Opposite Party No.2-OPSC and on due examination of their submissions and pleadings of the respective parties, this Court observes that there exists no dispute with regard to the factual position of the present case. The only issue that is to be determined in the present writ petition is with regard to age relaxation that has been claimed by the Petitioner thereby to make the Petitioner eligible to participate in the recruitment test for appointment to the post of Assistant Director (Law)?
// 21 //
22. To determine the aforesaid issue, this Court examined the Rules of the year 1986 and on perusal of Rule-9, it appears that the same lays down the eligibility criteria. Such eligibility criteria provides that the candidate must be a Bachelor in Law from a recognized University and must be well conversant in Computer Application and the candidate must not be below 23 years and above 35 years of age. However, in case of inservice Government employees, the upper age limit has been fixed at 45 years. So far the candidates who belong to reserved category, for them, special provision has been made under Rule-6. Rule-6(b) provides that appropriate Government by an act, rule or order, or instruction provide for reservation from time to time in respect of such special category of candidates including the Ex-Servicemen.
23. So far the Ex-servicemen candidates are concerned, this Court observes that the upper age limit in respect of such candidates is 40 years, i.e. 35 years of upper age limit + 5 // 22 // years of relaxation granted to such category of person by virtue of 1986 Rules. The rules of the years 1986 provides for relaxation to Ex-Serviceman. Under Rule-5(1) relaxation has been provided to Class-III and Class-IV employees and under Rule-5(2) the flat relaxation upto maximum 5 years has been provided in respect of Class-I and Class-II posts. The Petitioner coming under the Ex-Servicemen category and having applied for post of Assistant Director shall come under Rule-5(2) of the 1986 Rules. Therefore, the upper age limit, according to the learned counsel for the Opposite Parties would be 40, although the same is not accepted by learned Senior Counsel appearing for the Petitioner.
24. Learned Senior Counsel for the Petitioner challenged the fixation of upper age limit in respect of ex-serviceman category on the ground that the same is not in conformity and as per with the relaxation granted to the inservice Government servants. Therefore, there is gross disparity and the same would be hit by Article-14 and 16 of the // 23 // Constitution of India inasmuch as a category of persons, who are serving in Government, have been given better relaxation than the persons who were for a long time in defence services of the country. In the aforesaid context, he also referred to the Parliamentary Standing Committee recommendations. This Court on a perusal of such recommendation found that the Standing Committee of the Parliament has recommended that the entire service period of such candidates shall be given age relaxation, i.e. the period for which they have served in the defence service is to be deducted from their total age while considering their eligibility against a civil post. This Court found a lot of force in such arguments advanced by learned Senior Counsel for the Petitioner. Therefore, the same is required to be considered by the Government.
25. Moreover, this Court observes that Rule-17 of the 2016 Rules provides that the Government in an appropriate case may grant relaxation of the rules in respect of a class or category of employees in the interest of public service in // 24 // consultation with the Commission. On a perusal of the aforesaid Rule-17, this Court is of the view that it is well within the authority of the Government to grant relaxation of the rules to a certain class of category of persons in the interest of public service. So far the Petitioner is concerned, he belongs to the Ex-servicemen category. Further, taking into consideration the fact that he has rendered many years of service in Indian Air Force and thereby served the nation in protecting the territory of this great country, it would be in the interest of public service that a disciplined and dedicated person like the petitioner should have been given an opportunity to serve in the Civil Service and such a decision would have been in the larger public interest. Further, there is also no bar in law in granting such relaxation to a particular category, i.e. Ex-Servicemen Category. Moreover, such consideration would also be in public interest as nobody has been selected in the Ex-Servicemen Category as informed by counsels appearing for the respective parties.
// 25 //
26. While deciding the case of the present Petitioner, some of the factors which weighed on the mind of this Court are, (1) the Petitioner is an Ex-serviceman and he has been given age relaxation upto 40 years whereas the in-service Government candidates have been given age relaxation upto 45 years, (2) no recruitment under the Sate Legal Services Rules, 2016 took place in between 2017 to 2021, although the rule provides that vacancies are required to be filled up every year. The aforesaid proposition is well supported by a judgment of this Court in State of Odisha & Anr. v. Sudpita Kumar Mohanty & Ors. (W.P.(C) No.8516 of 2015), (3) relaxation have been granted by this Court as well as the Hon'ble Supreme Court in many cases by relaxing the upper age limit. Further, the Petitioner having approached this Court prior to the Gazette Notification dated 11.01.2022 and 15.01.2022, a right accrued in his favour vide Gazette Notification dated 11.01.2022. The same could not have been taken away in view of the judgments of the Hon'ble Supreme // 26 // Court in State of Madhya Pradesh & Ors. Vs. Yogendra Shrivastava, reported in (2010) 12 SCC 538. Further, the classification done under the Notification dated 15.01.2022 does not appear to be in conformity under Article 14 of the Constitution of India inasmuch as the benefits under the Notification dated 11.01.2022 should have been made applicable to the recruitment process which have not been concluded by the time such notification was published. Such classification would be hit by Article 14 as held by the Hon'ble Supreme Court in All Manipur Pensioners Association v. The State of Manipur and Others, reported in (2020) 14 SCC 625, wherein it has been held by the Hon'ble Supreme Court that there cannot be class within class in an unreasonable manner thereby depriving the class within a class of certain benefits. There has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit.
// 27 //
27. Two grounds which touches the judicial conscience of this Court in the context of the present case are the report of the Parliamentary Standing Committee on defence recommending grant of relaxation in upper age limit to Ex- Servicemen candidate in the matter of recruitment to a civil post and the disparity in the rule as well as in the advertisement with regard to the age of in-service Government candidates by fixing the same at 45 years whereas in the case of Ex-servicemen candidates, the upper age limit even after taking into consideration the relaxation under the rule of the year 1986 would be 40 years. Since the Petitioner was over aged by a year and six months by the time the advertisement was published, had the relaxation under Notification dated 11.01.2022 been granted then the Petitioner would have been found eligible for such appointment. The aforesaid two grounds compelled this Court to direct the State-Opposite Party to reconsider their decision with regard to the Petitioner, particularly keeping in // 28 // view the fact that not a single candidate was selected from Ex-servicemen category. Thus, such a rigid condition in fixing the upper age limit for Ex-servicemen category would entirely defeat the purpose for which the reservation is provided for such category of candidates.
28. In view of the analysis of factual position as well as the law, this Court is of the considered view that the case of the Petitioner needs to be reconsidered by the Government keeping in view the fact that the Petitioner belongs to Ex- Servicemen Category and two posts, which were reserved for such category, have not been filled up and that the State Government in exercise of power under Rule-17 of 2016 Rules is competent to grant such relaxation to a particular class of category of persons in the interest of public service.
29. Therefore, this Court, while disposing the writ petition, directs the Opposite Party No.1 to consider the case of the Petitioner afresh keeping in view the observations made herein above for grant of age relaxation in upper age under // 29 // Rule-17 of the 2016 Rules within a period of six weeks from the date of communication of this judgment.
30. While considering the case of the Petitioner, the Opposite Party No.1 shall do well to keep in mind that the Petitioner is an Ex-Servicemen who has served the nation for several years, i.e. through the Indian Air Force and, accordingly, a decision be taken in the larger interest of a particular category of persons. The final decision so taken by the Opposite Party No.1 be communicated to the Petitioner. Further, it is directed that in the event the Opposite Party No.1 comes to a conclusion that the Petitioner is entitled to such relaxation, then the result of such recruitment in respect of the Petitioner, which was kept in a sealed cover, shall be opened and thereafter necessary follow up steps be taken by the Opposite Parties pursuant to the advertisement under Annexure-1 to the writ petition within a period of four weeks from the date of taking such decision.
// 30 //
31. With the aforesaid observation and direction, the writ petition is disposed of.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 1st March, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 01-Mar-2024 20:38:35