Orissa High Court
State Of Odisha And Another vs Sri Sanjib Narayan Prasad Pati And .... ... on 14 September, 2021
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17898 of 2016
State of Odisha and another .... Petitioners
Mr. M.S. Sahoo, Additional Government Advocate
-versus-
Sri Sanjib Narayan Prasad Pati and .... Opposite Parties
others
Mr. S.K. Pattnaik, Senior Advocate along with
Mr. P.K. Pattnaik, Advocate for Opposite Party No.1
CORAM:
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
ORDER
14.09.2021 Order No.
04. Dr. S. Muralidhar, C.J.
1. This writ petition by the State of Odisha through the Commissioner-cum-Secretary, Agriculture Department is directed against an order dated 13th January 2016 passed by the Orissa Administrative Tribunal, Cuttack (OAT) in O.A. No.3498 (C) of 2012.
2. By the impugned order, the OAT directed the Petitioners herein to extend the age relaxation to Opposite Party No.1 against the vacancy in the post of Assistant Agriculture Officer (AAO) that occurred prior to 15th July 2011, during the period when the proviso to Rule-2 of the Odisha Civil Services (Fixation of Upper Age Limit) Rules, 1989 ('1989 W.P.(C) No.17898 of 2016 Page 1 of 14 Rules') was in force and in the event Opposite Party No.1 was found eligible after applying such age relaxation, then his candidature may be accepted. It was further directed if he had already participated in the written test, the result should be declared along with the results of other candidates. It was further directed that if any of the applicants had not appeared in the written test and were found eligible on the basis of age relaxation, a special recruitment test should be conducted for them within a period of one month and consequential action should be taken for declaration of result and for that the requisite number of posts should be kept vacant. It was further clarified that the aforementioned exercise would not be a bar to the results being published and appointment orders being issued to the other selected candidates.
3. The background facts are that the State Government formed a cadre of Junior Agricultural Officer (JAO) and for that purpose framed the Odisha Subordinate Agriculture Service Rules, 1980 ('1980 Rules'). In terms of Rule 5 (2) of the 1980 Rules, 80% of the vacancies arising in the year were to be filled up by direct recruitment; 10% by promotion and 10% by appointment of departmental candidates completing the B.Sc. (Ag) course as sponsored candidates by the Government. The entry qualification for the post of JAO was B.Sc. (Ag).
W.P.(C) No.17898 of 2016 Page 2 of 144. As far as Opposite Party No.1 is concerned, his date of birth is 13th July 1978. He took admission in the Orissa University of Agriculture and Technology (OUAT) and passed B.Sc. (Ag) in 2001. According to Opposite Party No.1, he had a legitimate expectation of entering service in the Agriculture Department as JAO, a Group-C gazetted post.
5. The contention of Opposite Party No.1 is that for various reasons, it was not possible for the vacancies in the post of JAO to be filled up in a same recruitment year in which candidates passed the B.Sc. (Ag) course. As a result, the candidates acquiring the B.Sc. (Ag) qualification remained unemployed and in the meanwhile crossed the maximum age limit for entry into government service.
6. It is stated that with a view to correcting this anomaly, the Government of Odisha amended the 1989 Rules and introduced a proviso to Rule 2 with effect from 18th May, 1994. In terms of the amended Rule 2 of the 1989 Rules the candidates who were eligible to apply for the vacancies of a year, if advertised in time, would be eligible to apply to the post even if such vacancies were advertised in subsequent years when the candidates had crossed the age bar.
7. It is stated that the last advertisement for direct recruitment to the post of JAO was issued in 1992 and the recruitment test W.P.(C) No.17898 of 2016 Page 3 of 14 was held in 1994. Another amendment was made in 2001 introducing Rule 7(1)(c) making the 1989 Rules applicable to the recruitment of JAO with effect from 18th January, 2001. It is stated that for some reason the vacancies of the year 2001 were not advertised by the State Government for several years. Between the years 2005 and 2008 the sanctioned strength of JAO was 552 and several vacancies remained unfilled. According to Opposite Party No.1, the vacancies in the years 2005, 2007 and 2008 were 277, 319 and 326 respectively. The recruitment exercise pursuant to an advertisement issued in 2009 to fill up the posts of JAO on contractual basis, and for which Opposite Party No.1 applied, was not completed.
8. On 17th February 2009, the State Government decided to abolish 552 vacant posts of JAO and upgraded and merged those posts with 689 posts of Assistant Agricultural Officer (AAO)/Subject Matter Specialists (SMS Class-II). This was followed by a notification dated 17th October, 2009. As a result, the sanctioned strength of AAOs in the State of Odisha became 1166. The vacancy position for the years 2009, 2010 and 2011 in the post of AAO was 118, 415 and 479 respectively.
9. On 3rd December 2011, an advertisement was issued by the State Government for filling 117 posts of AAO. Subsequently, W.P.(C) No.17898 of 2016 Page 4 of 14 another advertisement was issued for filling 311 posts of AAO. 20th October 2012 was the last date for submitting applications. The entry qualification for the post of JAO upgraded to the post of AAO in 2009 was the same i.e. B.Sc. (Ag.). Therefore, between 1994 and 2011, there was no recruitment to the post of JAO. There was during these years relaxation in the maximum age limit of 32 years.
10. The case of Opposite Party No.1 is that the relaxation of the maximum age limit of 32 years had to be made applicable to Opposite Party No.1 till the vacancies of the year 2010 were filled up by open advertisement in terms of proviso to Rule 2 of the 1989 Rules. According to Opposite Party No.1 given his date of birth, he was below the age of 32 as on 1st January 2010 which was the date for reckoning the eligibility for the vacancies of the year 2010. However, in both the advertisements dated 3rd December 2011, and the subsequent one dated 20th October, 2012 it was stated in Clause-4 that the candidate should be below 32 years as on 1st January, 2010. While there was age relaxation for SC, ST, SEBC and PH candidates, no such relaxation was provided to the general category candidates, like the Opposite Party No.1, in terms of the proviso to Rule 2 of the 1989 Rules who had not crossed the age bar in the year that the vacancies arose i.e. 2010 but had crossed it by the time they were advertised. This was because on 14th July 2011, the relaxation in Rule-2 was W.P.(C) No.17898 of 2016 Page 5 of 14 deleted by way of an amendment. The case of Opposite Party No.1 is that the right that had accrued earlier in favour of candidates like him, who had not crossed the age bar in 2010, could not be taken away by the amendment and the benefit thereof could not be denied only because the advertisement for the 2010 vacancies was issued at a later point in time.
11. In the impugned order, the OAT appears to have agreed with the above contention of Opposite Party No.1 by relying on a series of judgments of the Supreme Court of India beginning with Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284 where it has been held that the vacancies which occurred prior to the amendment of the rules would be governed by the old rules and not by the amended rules. The OAT also referred to the decisions in P. Mohanan Pillai v. State of Kerala AIR 2007 SC 2840 and A.A. Calton v. Director of Education (1983) 3SCC33. The other decision referred to was State of Rajasthan v. R. Dayal (1997) 10 SCC 419 where while reiterating the above legal position, it was held that as a necessary corollary, the vacancies that arose subsequent to the amendment of the rules were required to be filled up in accordance with law existing as on the date when the vacancies arose. Reference was also made to B.L. Gupta v. M.C.D. (1998) 9 SCC 223 in which it was held that the vacancies to the posts of Assistant Accountant in Delhi Electric Supply Undertaking, which had arisen prior to the W.P.(C) No.17898 of 2016 Page 6 of 14 amendment to the Rules 1995, had to be filled up according to the statutory rules framed in the year 1978 i.e. the old Rules and not by the amended Rules.
12. This Court has heard the submissions of Mr. M.S. Sahoo, learned Additional Government Advocate for the State- Petitioners and Mr. S.K. Pattnaik, learned Senior Advocate appearing for Opposite Party No.1.
13. The contention of Mr. Sahoo, learned Additional Government Advocate for the State-Petitioners is that since the advertisement in question had been issued subsequent to the amendment to the Rules i.e. after the proviso to Rule 2 of 1989 Rules was deleted by the notification dated 14th July 2011, the amended Rules had to be applied to fill up the posts of AAO. The question of retrospective operation of the statute did not arise. It is further submitted that the above decisions referred to in the impugned order of the OAT will not apply to the facts of the present case since they related to filing of posts by way of promotion and not direct recruitment. Mr. Sahoo submitted that the date of the advertisement was relevant and the posts which were filled up on the basis of the advertisement had to be on the basis of the Rules prevailing at that point in time i.e. at the time of issuance of the advertisement.
W.P.(C) No.17898 of 2016 Page 7 of 1414. Mr. Pattnaik, learned Senior Advocate for Opposite Party No.1 on the contrary supported the impugned order of the OAT. He maintained that for the failure of the State to issue an advertisement in time, persons like Opposite Party No.1 who had a legitimate expectation of being appointed as a AAO could not be made to suffer. He referred to an additional affidavit filed by Opposite Party No.1 on 17th June 2019 enclosing the copy of the advertisement issued by the Odisha Public Service Commission on 27th May 2019 for recruitment to the posts of Asst. Executive Engineer (Civil) in the Water Resources Department, Works Department and H & U.D. Department. In this advertisement, it has been stated that in terms of the resolution dated 22nd November 2018 of the Government of Odisha, candidates who are eligible for the vacancies of the earlier years, but had become age barred in the meantime, would be given a one-time age relaxation. It is accordingly submitted that in the present case also there is no justification for not extending the age relaxation to the candidates who would have qualified to be appointed as AAOs if the advertisement for the vacancies of the years 2010 and 2011 had been issued as and when those vacancies arose.
15. The above submissions have been considered. The issue as regards extending the benefit of age relaxation has arisen time and again before the Court. In the decisions referred to in the impugned order of the OAT i.e. Y.V. Rangaiah; P. Mohanan W.P.(C) No.17898 of 2016 Page 8 of 14 Pillai; A.A. Calton; R. Dayal and B.L. Gupta (supra), the question was of filling of posts by way of promotion. The question that arose was not whether the benefit of age relaxation would apply to filling up of posts by direct recruitment in the first instance.
16. It is well settled that the question of extension of the benefit of age relaxation to posts to be filled up by way of promotion or direct recruitment is a matter of policy choice of the Government. Depending on the exigencies and administrative necessities, the Government may decide for a particular recruitment to grant age relaxation. This explains how the proviso to Rule 2 of the 1989 Rules which permitted such age relaxation was in force from 1994 till 15th July, 2011. Unfortunately for Opposite Party No.1, the said relaxation was no longer made available with the notification issued on 14th July, 2011.
17. It was pointed out by Mr. Pattnaik, learned Senior Advocate for Opposite Party No.1 that there were two judgments on identical issue in relation to posts in the Odisha Civil Service. The first was State of Odisha v. Manoj Kumar Panda (2013) 2 ILR (Cuttack) 746 which was followed in the subsequent judgment in State of Odisha v. Sudipta Ku. Mohanty (2017) 2 ILR (Cuttack) 549. In these judgments, the case put forth by the candidates who were denied age W.P.(C) No.17898 of 2016 Page 9 of 14 relaxation was accepted and a direction was issued to extend them the benefit of age relaxation. It is pointed out that the State Government has accepted these decisions and decided to extend the age relaxation, but only to the candidates for the posts of Assistant Section Officers. Later it was extended to posts in the Odisha Engineering Services. It is submitted that the State has no reason to oppose the demand for similar treatment for the recruitment to the post of AAOs held in 2012 to fill up the vacancies of 2010.
18. The Court is unable to agree with the above contentions. Since these are the matters of policy, it is not for the Court to dictate to the Government to grant age relaxation for any particular recruitment by way of a competitive selection process. The second complication is that those who did not approach the Court for relief would be unfairly denied the chance of getting a similar benefit. They could not have anticipated that despite being age barred, they could still have a chance of participating in the recruitment. In matters of this nature the Court would do well to avoid dictating the policy priorities of the State since that would create administrative difficulties.
19. Further, even in the cases of filling up of posts by way of promotion, the decision in Y.V. Rangaiah (supra) has been held not to apply where the Rules in question do not envisage W.P.(C) No.17898 of 2016 Page 10 of 14 completion of the process within a stipulated time frame. In State of Tripura v. Nikhil Ranjan Chakraborty (2014) 6 SCC 640, the Supreme Court of India explained that the ruling in Y.V. Rangaiah (supra) had to be under stood in the context of the factual position in that case. It was observed:
"We are of the considered opinion that the judgment in Y.V. Rangaiah case would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State."
20. In State of Tripura v. Nikhil Ranjan Chakraborty (supra), the Supreme Court went on to explain:
"It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any W.P.(C) No.17898 of 2016 Page 11 of 14 accrued or vested right of the appellants has been taken away by the amendment." The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose."
21. Again in Deepak Agarwal v. State of U.P. (2011) 6 SCC 725, the Supreme Court held:
"It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment."
22. This was reiterated in Union of India v. Krishna Kumar (2019) 4SCC 319, where the Supreme Court explained: "..it is well-settled that there is no vested right to promotion, but a W.P.(C) No.17898 of 2016 Page 12 of 14 right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose."
23. Mr. Pattnaik, learned Senior Advocate for Opposite Party No.1 has placed reliance on the decision of the Supreme Court in P. Ganeshwar Rao v. State of A.P. AIR 1988 SC 2068 where it has been held that vacancies of the Assistant Engineers that had arisen in the years 1978 and 1979 were to be filled up by direct recruitment and the amendments to the special Rules for the A.P. Panchayat Raj Engineering Service in the year 1980 would not apply to such direct recruitment. A perusal of the judgment shows that in turned on a particular interpretation to be placed on the word 'arisen' in the Rules. It was in that context that it was held that the amendment made in 1980 would not apply to vacancies that had arisen prior to the date of the amendment.
24. In the present case, the age relaxation age that was introduced by the proviso to Rule 2 was made inapplicable by the notification dated 14th July, 2011. The advertisements in question were published after that date. There was no clause in the amending Rules to say that the proviso to Rule 2 would W.P.(C) No.17898 of 2016 Page 13 of 14 apply to all vacancies that arose prior to the date of the amendment. Without there being such express legislative intent, the Court cannot issue a mandamus to the contrary.
25. For the aforementioned reasons, the impugned order of the OAT is hereby set aside. The writ petition is allowed, but in the circumstances, no order as to costs.
26. An urgent certified copy of this order be granted as per rules.
(S. Muralidhar) Chief Justice ( B.P. Routray ) Judge S.K. Guin W.P.(C) No.17898 of 2016 Page 14 of 14