The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA No.616 of 2025 Itishree Swain … Appellant Mr. Swapna Kumar Ojha, Advocate -Versus- State of Odisha and another Respondents Mr. Saswat Dash, Additional Government Advocate … CORAM: THE HON’BLE THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 25.06.2025 02. The matter is taken up through Hybrid mode. 2. The order dated 14.11.2024 passed in WP(C) No.4252 of 2022 is the subject matter of challenge in the instant appeal. 3. Shorn off unnecessary details, pursuant to an advertisement issued by the Department of Higher Education, Government of Odisha for recruitment to the Post of Lecturers (DP post) for the Non-Government Aided Colleges in different subjects, the appellant initially attempted to offer her candidature, but because of the age restrictions, such application could not be uploaded in the official website. The appellant approached this Court by filing the writ petition being WP(C) No.14049 of 2021 for a direction upon the authorities to allow the appellant to file the online application for the Post of Lecturer (DP post) in Sanskrit subject and also to participate in the recruitment process. It would be apposite to quote the reliefs claimed in the said writ petition in extenso:- “In view of the facts stated and submissions made above, the Petitioner most humbly prays that the Hon’ble Court may graciously be pleased to issue a writ in the nature of Writ of order/orders, Mandamus other writ/writs, any or Page 1 of 7 direction/directions directing the Opp. Parties to allow the Petitioner to file the online application for the post of Lecturer (DP Post) of Sanskrit and also to participate in the recruitment process; And pass any other order (s) or issue direction(s) as may be deemed fit and proper in the bonafide interest of justice. And for which act of kindness, the petitioners as in duty bound shall ever pray.” 4. We had an occasion to peruse the pleadings made in the said writ petition filed by the appellant, wherefrom it appears that the plea of age relaxation was specifically pleaded in Paragraph-6 thereof to the extent that the moment the law permits the relaxation of the age in respect of the candidates belonging to the reserved categories, there is no justification in not relaxing the age bar in respect of Ex-Servicemen. It is further pleaded that the appellant being the women candidate is entitled to get the relaxation of five years age for applying the post under the above advertisement in terms of the notifications and/or the Rules applicable in this regard. The said writ petition was disposed of on 19.04.2021 on the premise that once the outer age limit is fixed in the advertisement and admittedly, the appellant having crossed the said outer cap, is not entitled to seek a direction upon the authorities to permit her in uploading her application in response to the advertisement issued by the Department for recruitment in the post of Lecturers. Subsequently, the online application was accepted by the system and it is undisputed that the appellant was permitted to undergo the tiers of the recruitment process and the name was also included in the provisional list published by the authority. However, the appellant was kept out of the zone of the appointment as she was not included in the final list. The writ petition came to be filed Page 2 of 7 before this Court and the final order dated 14.11.2024 passed therein is assailed in the instant appeal. 5. Learned counsel for the appellant vociferously submits that the Single Bench ought not to have dismissed the writ petition solely on the ground that the earlier writ petition filed by the appellant was rejected and/or dismissed. According to the learned counsel for the appellant, the cause of action accrued to the appellant at the time of filing of the earlier writ petition is completely different to the cause of action which has arisen subsequent thereto and, therefore, the rejection of an earlier writ petition cannot defeat the right claimed in the subsequent writ petition. It is further submitted that there is no fetter on the part of the State to relax the outer cap in relation to age in the public employment and the Single Bench did not consider the case in such perspective, but was solely swayed by the fact that the earlier writ petition filed by the appellant having rejected, no further relief can be granted in the subsequent writ petition. 6. Learned Additional Government Advocate appearing for the
Legal Reasoning
State opposes the submissions made by the learned counsel for the appellant before us. According to him, the earlier writ petition was dismissed with the categorical findings that the appellant having crossed the outer age limit fixed in the said advertisement, is not entitled to offer her candidature which cannot be said to be infirm and/or illegal. He further submits that mere acceptance of an application through an online mode does not confer any right into an appointment as the mistake does not confer an indefeasible right into a candidate. He further submits that the appellant is also estopped from contending that cause of action accrued to the appellant at the time of the first writ petition filed before this Court Page 3 of 7 and the second writ petition are different. As per the learned Additional Government Advocate for the State, the moment a categorical finding is returned by the writ Court that the appellant has crossed the outer age limit, such decision having not assailed before the higher forum attained finality and remained binding on the appellant. 7. On the conspectus of the aforesaid facts and submissions so made, let us examine, whether the order impugned in the instant appeal suffers by the vices of the illegality and/or infirmity and the findings made by the Single Bench are liable to be interfered with on the score of the submission made by the appellant. 8. The advertisement issued by the Government in relation to a public employment has not been challenged at any stage by the appellant, but in fact the appellant intended to take benefit of such advertisement by offering her candidature and, therefore, this Court can safely proceed to decide the points on the basis of the terms and conditions embodied in the said advertisement. It is beyond the cavil of dispute that the advertisement contained the outer age limit for the candidate to offer their candidatures for the post indicated therein and admittedly, it does not contain any stipulation conferring power upon the authority to relax any or more conditions incorporated therein. The Authority cannot act beyond the peripheral of the powers so conferred nor can assume the path not provided either in the advertisement or the Rules which has a statutory flavour. The authorities have to travel within the circumference of the terms and conditions embodied in the said advertisement unless the power can be traced from the statutory document. The moment outer limit in relation to an age is fixed and the power to relax the same is not provided, the authority cannot Page 4 of 7 transgress the boundaries in absence of any express conferment of the powers upon them. 9. Apart from the same, in an earlier round of litigation, one of the issues involved therein was relatable to power to relax the outer age limit fixed in the said advertisement and while dismissing the writ petition, the Single Bench made a categorical finding that in the event an outer age limit is provided, the appellant having admittedly crossed the said outer limit, is not entitled to any relief claimed in the said writ petition. The moment the Court observed that the appellant is not entitled to offer the candidature having crossed the upper age limit, she cannot take a rebound nor can take advantage of the mistake committed by the authority in permitting the appellant to upload the said application. The mistake does not confer inchoate or indefeasible right into a person and once the authorities rectified the said mistake, such action cannot be impinged, merely because at one point of time the authorities permitted the appellant to participate in the recruitment process. 10. Furthermore, the Court cannot issue a writ of mandamus upon the authorities to act contrary to law nor the judicial discipline demands a departure from the earlier decision which attained finality. The principle of “issue estoppel” akin to “Res judicata” has its applicability. If the issue which was directly and substantially an issue in the earlier proceeding has been decided by a competent Court, such issue cannot be reagitated and/or decided by a Court in a subsequent proceeding. The contention of the appellant that the cause of action in the earlier writ petition and the cause of action in the subsequent writ petition are different, is unacceptable for the reason that the real issue involved in the litigation is whether the appellant, who admittedly crossed the outer Page 5 of 7 age limit, may be permitted to offer the candidature in pursuance of the said recruitment process. Once the Court has decided that the appellant is not entitled to offer the candidature having crossed the outer age limit, even if in a subsequent writ petition the challenges shown to the decision of the authorities in not offering the appointment is in effect based upon a conscious decision that the appellant was ineligible to offer her candidature having crossed the outer age limit. The genesis of the decision of the authority is founded upon the factum of the age barrier. It becomes an issue primarily and substantially in the subsequent writ petition. 11. Our attention is also drawn to several clauses of the advertisement which conveyed the laudable message that mere participation or inclusion in the provisional list cannot be construed to have conferred any right of appointment and even at the time of appointment, if the authority finds that the candidate is not otherwise eligible, his candidature can be rejected. The terms and conditions embodied in the said advertisement is not subject matter of challenge in either of the litigation. The action of the authorities cannot be said to be in flagrant violation of the aforesaid terms and conditions. 12. Lastly, the plea was taken that the Rules framed by the State Governments permits the relaxation of the age in the event the recruitment process was kept in abeyance for a considerable period of time. Such a plea is unacceptable nor would come to the aid of the appellant. If the said plea was available to the appellant at the time of filing of the first writ petition which resulted into dismissal upon a categorical finding that the appellant has crossed the outer age limit, having not taken therein, the principle of Res judicata can also be applied in such a situation in view of Explanation-IV to Page 6 of 7 Section-11 of the Code of Civil Procedure, 1908. It expressly provides that the plea which ought to have been taken, having not taken in the earlier round of litigation shall be deemed to have been taken in the subsequent round of litigation and, therefore, the estoppel by issue would be attracted which is a basic foundation of the principle of Res judicata. 13. From whatever angle we look at, this Court does not find any illegality and infirmity in the impugned order rendered by the Single Bench. The writ appeal, sans merit, is hereby dismissed. However, in the facts and circumstances, there shall be no order as to costs. Chief Justice (Harish Tandon) Judge (M.S. Raman) MRS/Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Jul-2025 12:47:05 Page 7 of 7