Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.27353 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** 1. Dr. Lopamudra Nanda Aged about 23 years Daughter of Padmanava Nanda Village: Mundida, P.O.: Chasapada Via: Kaduapada, P.S.: Balikuda District: Jagatsinghpur. 2. Dr. Pallavi Mishra Aged about 26 years Daughter of Rajani Kanta Mishra At: Nagbhan, P.O.: Bhalubasa P.S.: Rairangpur District: Mayurbhanj, PIN: 757 050. 3. Dr. Archana Agrawal Aged about 25 years Daughter of Kamalesh Agrawal At: Putiapali, P.O.: Baduapali Via: Dhanupali, P.S.: Dhama District: Sambalpur, PIN: 768 113. 4. Dr. Limonlisa Dey Aged about 24 years Daughter of Bidyapati Dey At: Deulipanchughanta W.P.(C) No.27353 of 2023 Page 1 of 80 P.O.: Jaleswar, P.S.: Jaleswar District: Balasore, PIN: 756 032. 5. Dr. Tanaya Dor @ Dora Aged about 23 years Daughter of Benudhara Dora At: Uchhabahal, P.O.: Rinbachana P.S.: Loisingha District: Bolangir, PIN: 762 002. 6. Dr. Ananya Nanda Aged about 25 years Daughter of Dhirendra Kumar Nanda At: Town Planning Colony P.O.: Dhenkanal R.S., P.S.: Dhenkanal District: Dhenkanal, PIN: 759 013. 7. Dr. Suprava Kumbhar Aged about 23 years Daughter of Manoranjan Kumbhar At/P.O.: Saranda, P.S.: Attabira District: Bargarh, PIN: 768 027. 8. Dr. Manini Behera Aged about 24 years Daughter of Diga Behera At: Mahulpali P.O.: A. Katapali, P.S.: Burla District: Sambalpur, PIN: 768 006. 9. Dr. Pragyan Prabartika Mallick Aged about 25 years Daughter of Gouranga Charan Mallick At: Bada Patuli, P.O.: Dala P.S.: Korai District: Jajpur, PIN: 755 019. W.P.(C) No.27353 of 2023 Page 2 of 80 10. Dr. Vijayalaxmi Marndi Aged about 26 years Daughter of Lal Mohan Marndi At: Chandida, P.O.: Kumudasole Via: Hatbadra, P.S.:Rairangpur (R) District: Mayurbhanj, PIN: 757 050. 11. Dr. Sandhya Bahalia Aged about 25 years Daughter of Sudam Charan Bahalia At: Pandua, P.O.: Jaraka P.S.: Dharmasala District: Jajpur, PIN: 755 050. 12. Dr. Ipsita Jena Aged about 25 years Daughter of Bibhuti Bhusan Jena At: Benjarapur, P.O.: Mandari P.S.: Bari District: Jajpur, PIN: 755 003. 13. Dr. Sitaram Meher Aged about 26 years Son of Artatrana Meher At: Jandol, P.O./P.S.: Bheden District: Bargarh, PIN: 768 104. 14. Dr. Badal Bagarty Aged about 25 years Son of Rameswar Bagarty At: Sagarpara, P.O.: Balangir P.S./District: Balangir, PIN: 767 001. 15. Dr. Tusarakanta Muna Aged about 25 years Son of Subhakara Muna W.P.(C) No.27353 of 2023 Page 3 of 80 At/P.O.: Birjam, P.S.: Melchamunda District: Bargarh, PIN: 768 034. 16. Dr. Subhendu Mohanty Aged about 24 years Son of Panchanana Mohanty At: Mandrada, P.O.: Chakrada P.S.: Basta District: Balasore, PIN: 756 022. 17. Dr. Sudipta Kumar Patra Aged about 24 years Son of Karunakar Patra At: Mulakhamba, P.O.: Damodarpur P.S.: Sukinda District: Jajpur, PIN: 755 018. 18. Dr. Pasupati Mohanta Aged about 29 years Son of Mahendranath Mohanta At: Balimunduli P.O./Via: Shamakhunta P.S.: Baripada Sadar District: Mayurbhanj, PIN: 757 049. 19. Dr. Dibya Prakash Bal Aged about 28 years Son of Gagan Chandra Bal At: Baliapashi, P.O.: Laxmi Nagar P.S.: Jajpur Road District: Jajpur, PIN: 755 015. 20. Dr. Atmajyoti Nayak Aged about 26 years Son of Pradeep Kumar Nayak At: Tampala, P.O.: Chudakuti Palasa W.P.(C) No.27353 of 2023 Page 4 of 80 P.S.: Dhamanagar District: Bhadrak, PIN: 756 117. 21. Dr. Akash Bhoi Aged about 25 years Son of Ganesh Bhoi At/P.O.: Resham P.S.: Bheden, District: Bargarh PIN: 768 104. 22. Dr. Rajashree Meher Aged about 26 years Daughter of Janak Lal Meher At: Shanti Nagar, Padampur P.O.: Rajborasambar, P.S.: Padampur District: Bargarh PIN: 768 036. … -VERSUS- 1. State of Odisha Represented through Commissioner-cum-Secretary Department of Health & Family Welfare Government of Odisha Lokseva Bhawan Bhubaneswar District: Khordha. 2. Odisha Public Service Commission Represented through its Secretary At: 19, Cantonment Road Buxibazar, Cuttack Odisha – 753 001. Petitioners. W.P.(C) No.27353 of 2023 Page 5 of 80 3. The Principal Gopabandhu Ayurveda Mahavidyalaya, Puri At/P.O/Dist-Puri. … Opposite parties Counsel appeared for the parties: For the Petitioners : M/s. Lalatendu Samantray, Satyabrata Mohanty, Tapan Kumar Kamila, Advocates For the Opposite party: No.1 : Mr. Ashok Kumar Apat, Additional Government Advocate For the Opposite party No.2 : Mr. Pradipta Kumar Mohanty, Senior Advocate assited by M/s. Pronoy Mohanty, S.K. Sahu, K.T. Mudali, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 12.11.2024 :: Date of Judgment : 27.01.2025 J UDGMENT Assailed in this writ petition is the Order in File No.HFW-AYUR-CASE-0013-2023/8678/H, dated 04.08.2023, passed by the Commissioner-cum-Secretary to Government of Odisha in Health & Family Welfare Department, rejecting the representation of the petitioners vis-(cid:224)-vis relaxation invoking Rule 18 of the W.P.(C) No.27353 of 2023 Page 6 of 80 Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013, pursuant to the direction contained in Order dated 21.06.2023 of this Court in W.P.(C) No.18965 of 20231, the petitioners have knocked the doors of this Court craving to exercise extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, with the following prayer(s): “It is therefore humbly prayed that your Lordships may be graciously pleased to admit the writ application, issue rule nisi in the nature of a writ of mandamus and any other writ or writs as deemed fit and proper to quash the impugned Order No.18678/H, dtd.04.08.2023 as under Annexure-14 and further be pleased to direct the Opp. Parties to permit the petitioners to participate in the recruitment process in pursuance of the Advertisement No.3 of 2023-24 as under Annexure-6 Series; And further be pleased to direct the Opp. Party No.3 to treat the three dates as mentioned in Paragraph-24 & 25 as on duty; And, further be pleased to pass any other writ(s), order(s), direction(s), and relief(s) as deemed fit and proper. And, for this act of kindness, the petitioners shall, as in duty bound, ever pray.” Facts: 2. Facts, as adumbrated in the pleadings, reveal that the Central Council for Indian Medicine, New Delhi vide 1 Dr. Lopamudra Nanda and 21 Others Vrs. State of Odisha and Others. W.P.(C) No.27353 of 2023 Page 7 of 80 Notification No.28-14/2011-Ay (UG Regu)., dated 25.04.2012 promulgated Indian Medicine Central Council (Minimum Standard of Education in Indian Medicines (Amendment) Regulations, 20122, which provided compulsory internship3 for one year for Ayurvedacharya (―Bachelor of Ayurvedic Medicine and Surgery Doctors‖) (for brevity, ―BAMS‖). 2.1. Upon completion of four parts of professional Course, a final examination of the petitioners along with other students for the Session July, 2017 to December, 2021 was held as per Schedule from 30.03.2022 to 13.04.2022 vide Utkal University Notification No.4710 dated 22.03.2022. Separate Notification for practical/oral examination was published vide Notification No.1205 dated 16.04.2022. Having acknowledged that the petitioners have been ―declared passed in Final BAMS Examination-December, 2021 from Utkal University, Vani Vihar, Bhubaneswar vide Notification No. EC.I/11284/2022, dated 09.06.2022, the Principal, Gopabandhu Ayurveda Mahavidyalaya, 2 3 These rules amend the ―Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 1989, subsequently 2005, 2010 and 2011‖ with effect from 26.04.2012, being published in the India Gazette, Extraordinary No.108, dated 26.04.2012. Rule 7 of ibid. provides as follows: “Compulsory Internship: Duration of Internship: 1 year The student will join the compulsory internship programme after passing the final professional examination. The internship programme will start after the declaration of the result of final professional examination. The period of the internship will be of one year.” W.P.(C) No.27353 of 2023 Page 8 of 80 VIP Road, Puri in Letter No.2999 dated 13.06.2022 (Annexure-4) forwarded the names of 28 candidates including the petitioners to the Registrar, Odisha State Council of Ayurvedic Medicines, Bhubaneswar (―OSCAM‖, for short) to register their names in terms of Section 20 of the Indian Medicine Central Council Act, 1970, so as to enable them to join the internship training for a period of 12 months in the College and attached Hospital. 2.2. Accordingly, the petitioners were issued with ―Provisional Certificate of Registration‖ on 13.06.2022 by the OSCAM, indicating that the said Licence shall remain valid ―till completion of internship‖. The petitioners were allowed to undergo internship programme for ―twelve months compulsory rotating Housemanship training with effect from 16.06.2022 to till completion in the outdoor and indoor of Hospital this Institution and District Headquarters Hospital, Puri‖, vide Notice No.3036/GAM, Puri, dated 16.06.2022 issued by the Principal, Gopabandhu Ayurveda Mahavidyalaya, Puri. 2.3. The Odisha Public Service Commission floated an Advertisement bearing No.03 of 2023-24 on 28.04.2023 being published on 29.04.223 in local Odiya daily ―The Prameya‖ (for short, ―Advertisement‖) inviting Applications from the prospective candidates for W.P.(C) No.27353 of 2023 Page 9 of 80 recruitment of 116 posts of Ayurvedic Medical Officers (for convenience be referred to as, ―AMO‖) in the rank of Group-B under the Health and Family Welfare Department. 2.4. Clause-4 of said Advertisement prescribed requisite educational qualification as follows: “A candidate must possess a Bachelor‟s Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from a University or Institution recognized by Central Council of Indian Medicine. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.” 2.5. Clause-8 of the Advertisement prescribed the following other eligibility conditions: “(i) The candidate must be a citizen of India; (ii) A candidate must be able to read, write and speak Odia; and have— (a) passed Middle School Examination with Odia as a language subject; or (b) passed Matriculation equivalent Examination with Odia as medium of Examination in non-language subject; or or (c) passed in Odia as language subject in the final Examination of Class VII or above; or (d) passed a test in Odia in Middle English School Standard conducted by the School and Mass W.P.(C) No.27353 of 2023 Page 10 of 80 Education Department of the Government of Odisha/Board Secondary Education, Odisha; of (iii) A candidate if married must not have more than one spouse living: Provided that the State Government may, if satisfied that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule. (iv) Government servants, whether temporary or permanent, are eligible to apply provided that they possess the requisite qualification and are within the prescribed age-limit as provided under Paragraphs 3 and 4 of the Advertisement. They must inform their respective Heads of Offices in writing regarding submission of their applications for this recruitment and submit „No Objection Certificate‟ during document verification. (v) If a candidate has at any time, been debarred for a certain period/chance(s) by the Odisha Public Service Commission or other State Public Service Commission or U.P.S.C. from appearing at any examination/interview, he/she shall not be eligible for specified such period/chance(s). recruitment that for (vi) Only those candidates, who are within the prescribed age limit and fulfil the requisite qualification etc. by the closing date of submission of online application will be considered eligible; W.P.(C) No.27353 of 2023 Page 11 of 80 (vii) A candidate must have to register himself/ herself under the Odisha State Council of Ayurvedic Medicines on or before the Last date of Submission of Online Application Form. (viii) A candidate who claims change in his/her name after having passed the H.S.C. Examination or equivalent Examination, is required to furnish copy of publication of the changed name in the local leading daily newspaper as well as copy of notification in the Gazette in support of his/her change of name.” 2.6. The last date for submission of Registered Online Application was fixed to 08.06.2023. 2.7. Since the petitioners have passed BAMS (Ayurvedacharya) Examination and were provided with Provisional Certificate of Registration which remained valid till completion of internship, due to the delay caused attributable to the authorities concerned, they claiming to be eligible to participate in the recruitment process approached this Court in W.P.(C) No.15177 of 2023 with a prayer for direction to the opposite parties to allow them to submit application forms and to appear in the recruitment process for the post of AMO in response to the Advertisement. This Court disposed of the said writ petition on 11.05.2023 with the following order and direction: W.P.(C) No.27353 of 2023 Page 12 of 80 “7. Considering the submissions made by
Legal Reasoning
learned counsels for the respective parties, keeping in view the factual background of the present case, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Commissioner-cum-Secretary to Government, Health and Family Welfare Department, Odisha, Bhubaneswar-Opposite Party No.1 to consider the representations of the petitioners under Annexure-7 dated 02.05.2023 in accordance with law within a period four weeks from the date of production of certified copy of this order. 8. Further, OPSC is directed accept the off-line forms of the petitioners and allow them to participate in the recruitment process. However, acceptance of the off- line forms subject to the final decision taken by the Opposite Party No.1 within the aforesaid time stipulated. 9. Further, it is also made clear that permission to appear in the recruitment process shall not create any equity by the petitioners. 10. With the aforesaid observation/direction, the writ
Decision
petition is disposed of.” 2.8. The representations came to be rejected vide Order No.HFW-AYUR-CASE-0013-20233/13110/H, dated 01.06.2023 by ascribing following reasons: “And whereas, the recruitment and conditions of service of the persons appointed to the post of Ayurvedic Medical Officer are governed under the provisions of Odisha Ayurvedic Medical Service (Method of Recruitment and W.P.(C) No.27353 of 2023 Page 13 of 80 Conditions of Service) Rules, 2013 published in the extra ordinary issue of the Odisha Gazette dated 09.07.2013. And whereas, as per Rule 8(4) of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 the recruitment for the post of Ayurvedic Medical Officer shall be made by the Odisha Public Service Commission. And whereas, as per Rule 7 of the Odisha Ayurvedic Medical Services (Method of Recruitment and Conditions of Service) Rules, 2013 in order to be eligible for appointment to the post of Ayurvedic Medical Officer he/she must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or Institution recognized by the Central Council of Indian Medicine. He/she must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines. And whereas, the Petitioners have not completed their Internship Training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines. And whereas, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission are to conduct examination for appointment to various posts of State Civil Services etc. The State Government have no jurisdiction over the power and function of the Odisha Public service Commission with regards to the recruitment procedure. W.P.(C) No.27353 of 2023 Page 14 of 80 And whereas, the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 does not provide any scope or power to the opposite party No.1 to consider the claim of the petitioners for allowing them to appear in the recruitment examination for Ayurvedic Medical Officers by extending the last date of submission of application for 15 days. Now, therefore, taking into the grounds observed as above, the claim of the petitioners under Annexure-7 dated 02.05.2023 has no merit in the eyes of law for consideration hence rejected.” 2.9. Although the petitioners have successfully completed the course having passed the final examination, as their internship was continuing as on the last date of submission of Registered Online Application, the Odisha Public Service Commission did not accept the candidature of the petitioners. On the petitioners approaching this Court vide Order dated 11.05.2023 disposed of W.P.(C) No.15177 of 2023, by permitting the petitioners to participate in the recruitment process and the Odisha Public Service Commission [―Commission‖, as defined under Rule 2(a) of the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013] was directed to accept the Offline Applications of the petitioners and to allow the petitioners to participate in such recruitment process. 2.10. Though the petitioners were directed to be allowed to participate in the recruitment process by accepting W.P.(C) No.27353 of 2023 Page 15 of 80 Offline Applications, the same was subject to consideration of representation of the petitioners by the State Government and the Commission expressed its inability to permit them to participate in the recruitment process inasmuch as the representation of the petitioners got rejected by the State Government on 01.06.2023. 2.11. This Court in consideration of the plight of the petitioners and predicament of the opposite parties (the State Government as well as the Commission), disposed of W.P.(C) No.18965 of 2023 vide order dated 21.06.2023 with the following observation: “7. In reply to the aforesaid submission made by the learned Senior Counsel appearing for the Opposite Party No.2-Odisha Public Service Commission as well as learned counsel for the State-Opposite Parties, learned counsel for the Petitioner submitted that the delay in issuing the final certificate on the ground that the Petitioners have not completed their internship for one year cannot be attributed to the Petitioners. He further submitted that because of the delay in conducting the examination and permitting the Petitioners to go for internship, the Petitioners are most likely to suffer for none of their fault. It is further submitted by the learned counsel for the Petitioners that the relevant Rules, i.e., Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 provides under Rule 18 that the State Government in exercise of its power can relax any of the provisions of the W.P.(C) No.27353 of 2023 Page 16 of 80 rules, if the same is found to be in public interest. However, while considering the representation of the Petitioners pursuant to the order passed by this Court earlier, the Opposite Parties have not considered the case of the Petitioners in the light of the provision contained under Rules 18 of the 2013 Rules. For better appreciation, the provision contained in Rule 18 of the 2013 Rules is quoted herein below: *** 8. On perusal of the Rule 18 of the 2013 Rules, this Court observes that the rule confers power on State Government to grant any relaxation, if such relaxation is necessary or expedient so to do in the public interest. Therefore, the submission made by the learned counsel for the in Petitioners conducting the examination and publication of the advertisement and there was a short gap between the conducting the examination and publication of advertisement for recruitment. This Court is of the considered view that the same needs to be considered by the State Government under Rule 18 of the 2013 Rules. there was a delay that 9. Considering the submissions made by the learned counsels appearing for the respective parties and upon a careful examination of the background facts of the present case and also on careful examination of the documents annexed to the writ petition, this Court with the consent of the learned counsel for the parties deems it proper to dispose of the writ petition the stage of admission. Accordingly, the at Petitioners are directed fresh representation before the Opposite Party No.1 file a to W.P.(C) No.27353 of 2023 Page 17 of 80 taking therein the grounds for relaxation under Rule 18 of the 2013 Rules. In the event such a representation is filed within a period of two weeks from today, the same shall be considered by the Opposite Party No.1 in accordance with Rule 18 of the 2013 Rules. Further, the Opposite Party No.2-Odisha Public Service Commission is directed to allow the Petitioners the recruitment process. However, such participation shall be subject to the final outcome of the decision to be taken by the Government as has been directed hereinabove on the representation of the Petitioners. further participate in to 10. With the aforesaid observations and directions, this writ petition stands disposed of.” 2.12. Relevant portion of contents of the fresh representation dated 01.07.2023 of the petitioners as required to be furnished as directed in said Order dated 21.06.2023 of this Court in W.P.(C) No.18965 of 2023 is extracted hereunder: “*** Mam, we bring to you kind notice that in pursuance to Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 we have applied for the post wherein Clause-7(d) of the said Rules specifically states about eligibility criteria, i.e., “he must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent degree from an University or Institution recognised by the Central Council of Indian Medicine. He must have registered himself/ herself under Odisha State Council of Ayurvedic Medicine.” W.P.(C) No.27353 of 2023 Page 18 of 80 We are eligible in view of such criteria to apply for the aforementioned post. However, Rule 18 of the aforesaid Rule envisages Relaxation which is quoted herein below for kind reference. *** Furthermore, as per instruction received, State Government had earlier permitted candidates undergoing the recruitment process of the year 1979, 1983 and 1990. to participate internship in In the present case we further bring to your kind notice that 4th Semester Examination of the year December, 2021 was conducted in March, 2022 and result was published on 09.06.2022 and delay occurred in such process is solely attributable to the college/university authorities for which we are no way responsible. More so, Advertisement to the post is also not regularly published by OPSC. As per our instruction it was published in year 2016, 2018 and 2021 respectively and we will lose a valuable chance in the present advertisement if we are not permitted to participate in the present recruitment process. in pursuant In such view of the matter we honestly request you to consider our case sympathetically and allow us to participate in the recruitment to the post of Ayurvedic to advertisement Medical Officers No.03/2023-24 of Odisha Public Service Commission, Cuttack and extend the last date of submission for two weeks in view of Rule 18 of the 2013 Rules, which has been well observed by the Hon‟ble High Court in the in the W.P.(C) Judgment dated 21.06.2023 passed No.18965 of 2023, for which act of kindness we shall be highly grateful to you.” W.P.(C) No.27353 of 2023 Page 19 of 80 2.13. In order to carry out the direction contained in the Order dated 21.06.2023 in W.P.(C) No.18965 of 2023, the Commissioner-cum-Secretary to Government in Health and Family Welfare Department (for brevity, ―Government‖) rejected said representation vide Order No.18678— HFW-AYUR-CASE-0013-2023/H, dated 04.08.2023, relevant portion of which reads as under: “*** And whereas, Rule 18 of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 inter alia provides that when it is considered by the Government that it is necessary or expedient so to do in the public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of the employees. And whereas, the Petitioners have not completed their internship training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines. And whereas, relaxation of eligibility for appointment to the post of Ayurvedic Medical Officer as required under Rule 7 of Odisha Ayurvedic Medical Service (Method of recruitment and Conditions of Service) Rules, 2013 could not be accommodated since the same involves the interest of individual and also contravene the provision of clause (a) i.e. “the public interest behind the proposed relaxation” of GA & PG Department Letter No.8543/Gen dated 11.03.2020. W.P.(C) No.27353 of 2023 Page 20 of 80 And whereas, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission are to conduct examination for appointment to various posts of State Civil Services etc. The opposite party No.1 has no jurisdiction over the power and function of the Odisha Public Service Commission with regards to the recruitment procedure. Therefore, taking into the grounds observed as above, the claim of the petitioners for relaxation of Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 by invoking the powers conferred under Rule 18 of the said rules has no merit in the eyes of Law for consideration, hence rejected.” 2.14. Questioning the propriety of Order of rejection of representation by the Government, the petitioners have moved this Court by way of filing the instant writ petition beseeching indulgence in the Order dated 04.08.2023 (Annexure-14). Hearing: 3. On being noticed, the opposite parties have filed counter affidavit, additional affidavit and the petitioners have also filed rejoinder affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on their consent, this matter is taken up for final hearing at the stage of admission. W.P.(C) No.27353 of 2023 Page 21 of 80 3.1. Heard Sri Lalatendu Samantray, learned counsel along with Sri Satyabrata Mohanty, learned counsel appearing for the petitioners, Sri Ashok Kumar Apat, learned Additional Government Advocate appearing for the opposite party No.1 and Sri Pradipta Kumar Mohanty, learned Senior Counsel being assisted by Sri Pronoy Mohanty, learned counsel appearing for opposite party No.2. 3.2. Upon hearing, the matter stood reserved for preparation and pronouncement of Judgment. Rival contentions and submissions: 4. Reiterating the contention as recorded by this Court in the Order dated 21.06.2023 passed in W.P.(C) No.18965 of 2023, Sri Lalatendu Samantray, learned Advocate along with Sri Satyabrata Mohanty, learned Advocate appearing for the petitioners submitted that delay in issuing final certificate on the ground that internship was not completed and delay in conducting the examination led to delay in completion of internship cannot prejudice the petitioners. He submitted that it is undeniable fact that the petitioners have passed the final BAMS and their names were provisionally registered with the OSCAM (statutory body constituted by the Government of Odisha). It has clearly been mentioned in the said Provisional Certificate of Registration issued on W.P.(C) No.27353 of 2023 Page 22 of 80 13.06.2022 that ―the Licence is valid till completion of internship‖, i.e., 18.06.2023. It is strenuously argued that for the petitioners had passed the final BAMS examination by the last date of furnishing applications for recruitment to the post of AMOs vide Advertisement No.03 of 2023-24, i.e., 08.06.2023, and were issued with Provisional Certificate of Registration, their candidature should not have been discarded. 5. Sri Ashok Kumar Apat, learned Additional Government Advocate appearing for the State referred to paragraphs 9, 11, 12 and 14 of the counter affidavit filed by opposite party No.1, wherein it has been affirmed as follows: ―9. That in reply to the averments made in Paragraph 10 of the Writ Petition, it is humbly submitted that, as per Rule 7 of the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 in order to be eligible to be appointed in the post of Ayurvedic Medical Officer, in he/she must possess a Bachelors‟ Degree Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or Institution Indian recognized by Medicine. registered himself/herself under the Odisha State Council of Ayurvedic Medicines and as the petitioners have not completed their Internship Training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines. the Central Council of He/she must have W.P.(C) No.27353 of 2023 Page 23 of 80 11. That in reply to the averments made in Paragraph 19 of the Writ Petition, it is humbly submitted that, Article 320 & 321 of the Constitution of India lays down the functions of the Union and the State Public Service Commission. The objective/purpose of Odisha Public Service Commission is “to conduct examination for appointment to various posts of State Civil Services etc. The State Government have no jurisdiction over the power and function of the Odisha Public Service Commission with regards to the recruitment procedure.” Hence, keeping in view the above constitutional provisions along with the provisions contained in the Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 the order No.18678/H, dt.04.08.2023 under Annexure-14 to the Writ Petition has been issued. 12. That in reply to the averments made in Paragraph 20 of the Writ Petition, it is humbly submitted that, as per Section 28 of Indian Medicine Central Council. Act, 1970, the candidates have to register their names (provisionally) under the respective State Register of Indian Medicines by the board concerned in order to enable them to join the Internship training to practice Indian Medicine for the purpose of such training for a period of 12 months in an approved college and attached hospitals and for no other purpose for the aforesaid period and as at the time of publication of advertisement and as on the date of receiving the Application Form pursuant to the Advertisement, i.e., 08.06.2023 in respect of the posts of Ayurvedic Medical Officer by the Odisha Public Service Commission, the petitioners have not W.P.(C) No.27353 of 2023 Page 24 of 80 completed their Internship Training, as per the requirement, hence, their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines and for which their entitlement to apply for the said posts does not come within the purview of Odisha Ayurvedic Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 guiding the recruitment and conditions of service of the persons appointed to the post of Ayurvedic Medical Officer. Moreover, it is not out of place to mention here that the process of recruitment is done in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and hence, it is not ultra-vires. 14. That in this context it is worthwhile to mention here that, Rule 18 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 inter alia provided that when it is considered by the Government that it is necessary or expedient so to do in the public interest, it may, by order, for reason to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of the employees. Relaxation of eligibility for appointment to the post of Ayurvedic Medical Officer as required under Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 could not be accommodated since the same involves the interest of the individual and also contravene the provision of clause (a) i.e. “the public interest behind the proposed relaxation” of G.A. & P.G. Deptt. Letter No.8543/Gen, dt.11.03.2020. W.P.(C) No.27353 of 2023 Page 25 of 80 Further it is submitted that the petitioners have not completed their internship training for which their names were not permanently registered under the Odisha State Council of Ayurvedic Medicines. Therefore, taking into the grounds observed as above, the claim of the petitioners for relaxation of Rule 7 of Odisha Ayurvedic Medical Service (Method of Recruitment and Condition of Service) Rules, 2013 by invoking the powers conferred under Rule 18 of the said Rules has no merit in the eyes of law for consideration. As such, the O.P. No.1 has rightly rejected the representation of the petitioners vide Order No.18678, dated 04.08.2023 under Annexure- 14 of the writ petition.” 6. Sri Pradipta Kumar Mohanty, learned Senior Advocate being assisted by Sri Pronoy Mohanty, learned Advocate appearing for opposite party No.2-Commission referred to paragraphs 3, 5, 11 and 12 of the counter affidavit, which read as under: “3. That, the Government in Health & Family Welfare Department have reported the vacancy position to OPSC to conduct recruitment for 116 posts of Ayurvedic Medical Officer 30.01.2023. Basing upon the requisition & Rule 7(d) of the Odisha Ayurvedic Medical Service (Method of Recruitment & Conditions of Service) Rules, 2013, the following eligibility criteria has been incorporated at Para-4 of the Advertisement No.03 of 2023-24. „A candidate must possess a Bachelor‟s Degree in (B.A.M.S.) or Ayurvedic Medicine and Surgery equivalent Degree from a University or Institution Page 26 of 80 W.P.(C) No.27353 of 2023 recognized by Central Council of Indian Medicine. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines.‟ As per Clause-4 of IMCC (Amendment) Regulation, 2012, the candidate shall be awarded BAMS Degree after passing the final examination, and thereafter satisfactorily completing the compulsory Rotatory Internship extending over 12 months. 5. the That, last date of submission of online application form is 08.06.2023 for the post of Ayurvedic Medical Officer. As per the norms of advertisement the candidates, who have completed their BAMS Degree, Compulsory Rotatory Internship and registered themselves under Odisha State Council of Ayurvedic Medicines within the last date i.e. 08.06.2023 can be eligible for the said post. 11. That, the eligibility criteria as prescribed in Rules 7(d) of OAMS Rules 2013 is as follows: „A candidate must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from a University or Institution Indian recognized by Medicine. He must have registered himself/herself the Odisha State Council of Ayurvedic under Medicines.‟ the Central Council of As per Clause-4 of IMCC (Amendment) Regulation, 2012, the candidate shall be awarded BAMS Degree after passing the final examination, and thereafter satisfactorily completing the compulsory Rotatory Internship extending over 12 months. W.P.(C) No.27353 of 2023 Page 27 of 80 Without completion of 12 months compulsory Rotatory Internship, one cannot be awarded with a valid BAMS Degree and Permanent Registration Certificate under Odisha State Council of Ayurvedic Medicines. Rules 6(2) & 8(3) of OAMS Rules envisages the following procedure of direct recruitment: „The Commission shall, on receipt of the vacancy position from the Government, invite applications from the eligible candidates in such manner as may be decided by them.‟ the documents „The application forms, the manner of submission of application, to be accompanied with the application form, fee required and scrutiny of applications shall, as may, be decided by the Commission.‟ ***” required 6.1. Learned Senior Counsel for the Commission vehemently contended that on the last date of submission of Online Application Forms, i.e., 08.06.2023, the petitioners neither have possessed a valid BAMS Degree Certificates and completion certificate of compulsory rotatory internship training, which is a part of the Degree curriculum nor did they possess valid registration certificates. They were not eligible to participate in the process of recruitment for the post of AMO. He further contended that the Order dated 04.08.2023 (Annexure- 14) rejecting the representation of the petitioners for relaxation under Rule 18 of the Odisha Ayurvedic W.P.(C) No.27353 of 2023 Page 28 of 80 Medical Service (Method of Recruitment and Conditions of Service) Rules, 2013 (―OAMS Rules‖, for convenience) is for just reasons as there is no public interest involved in the matter. Analysis and discussions: 7. The Central Council of Indian Medicine vide Notification bearing No.28-14/2011-Ay (UG Regu), dated 25.04.2012 framed the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012 in exercise of power under the Indian Medicine Central Council Act, 1970 read with Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 1989, which provides as follows: ―4. Degree to be awarded: Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery-B.A.M.S.) The candidate shall be awarded Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery— B.A.M.S.) degree after passing the final examination, after completion of prescribed course of study extending over; prescribed period and thereafter satisfactorily completing the compulsory rotatory internship extending over twelve months.” W.P.(C) No.27353 of 2023 Page 29 of 80 7.1. For better appreciation, it may be relevant to refer to Rules 6, 7 and 8 of the OAMS Rules, 2013, provisions of which are reproduced hereinbelow: ―6. Procedure for Direct Requirement: (1) The Government shall intimate in each year the total vacancy position to the Commission during the recruitment year in the last week of January indicating the posts to be reserved for different reserved category of candidates mentioned under Rule 5. (2) The Commission shall, on receipt of the vacancy position from the Government, invite applications from the eligible candidates in such manner as may be decided by them. 7. Eligibility Criteria: In order to be eligible for appointment to the service by directed recruitment a candidate must fulfil the following conditions, namely: (a) he must be a citizen of India; (b) he must have attained the age of 21 years and must not be above 32 years on the 1st day of January of the year in which the applications are invited by the Commission: Provided that the upper age limit in respect of reserved categories of candidates referred to in Rule 5 shall be relaxed in accordance with the provisions of rules, orders or instructions, for the time being in force, for the respective categories. the Act, W.P.(C) No.27353 of 2023 Page 30 of 80 (c) he must be able to read, write and speak Odia; and have (i) passed Middle School examination with Odia as a language subject; or (ii) passed Matriculation equivalent examination with Odia as medicum of examination in non-language subject; or or (iii) passed in Odia as language subject in the final examination of Class VII or above; or (iv) passed a test in Odia in Middle School Standard conducted by the Board of Secondary Education, Odisha / School & Mass Education Department; (d) he must possess a Bachelor Degree in Ayurvedic Medicine and Surgery (BAMS) or equivalent Degree from an University or institution recognised by the Central Council of Indian Medicine. He must have registered himself/herself the Odisha State Council of under Ayurvedic Medicines; (e) he/she if married, must not have more than one spouse living: Provided that the State Government may, if satisfied, that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule; W.P.(C) No.27353 of 2023 Page 31 of 80 (f) he must be of sound mental and physical health, good physique and active habits and free from organic defects or bodily infirmity and communicable diseases which would likely to interfere with his/her discharge of his/her duties in the service. A candidate, who after such medical examination is not found to those requirements, shall not be satisfy appointed to the service. 8. Method of Recruitment to Group-“B” posts: (1) The Government shall intimate to the Commission the number of vacancies of Ayurvedic Medical Officer, Drugs Inspector, Scientific Officer likely to occur in that year, indicating therein the number of posts required to be filled up by way of reservations of posts for persons belonging to different categories. (2) On receipt of the intimation, the Commission shall publish advertisement at least in two vernacular daily newspapers having wide circulation in Odisha, inviting applications for selection. (3) The application forms, the manner of submission of to be application, the documents accompanied with the application form, fee required and scrutiny of applications shall be as may decided by the Commission. required (4) Recruitment for post Ayurvedic Medical Officer by the OPSC shall be based on career marking and written test conducted in the manner provided in these rules and an accordance with the syllabus as specified in Appendix-“A”. W.P.(C) No.27353 of 2023 Page 32 of 80 (a) Career marking shall be for 30% (10% each for class-10th, class-12th and BAMS) and 70% for written test. test shall be prepared by (b) Computerized question paper for objective, the multiple Commission at their level. But, questions will be as per the Bachelor of Ayurvedic Medicine and Surgery (BAMS) curriculum. (5) The Commission shall prepare a list 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: Provided that, if two or more candidates secure equal marks then the candidate securing higher marks in BAMS Examination shall find place above the others in the merit list and in case marks obtained in BAMS Examination is also the same, the candidate elder in age shall be placed above the younger. (6) The list recommended by the Commission shall remain valid for one year from the date of the recommendation or till the next recruitment made by the Commission.” 7.2. A conjoint reading of the aforesaid OAMS Rules, 2013 and the clauses contained in the Advertisement, as referred to above, it is manifest that a candidate making an Application for the post of AMO, inter alia, required to possess a Bachelor Degree in Ayurvedic Medicine and Surgery or equivalent Degree from an University or an Institution recognized by the Central Council of Indian Page 33 of 80 W.P.(C) No.27353 of 2023 Medicine with additional requirement of registering himself/herself under the OSCAM. 7.3. Perusal of record shows that the Principal, Gopabandhu Ayurveda Mahavidyalaya, Puri has issued Letter dated 13.06.2022 (Annexure-4) indicating that the petitioners were ―declared passed in Final BAMS Examination December, 2021 from Utkal University, Vani Vihar, Bhubaneswar vide Notification No.EC.I/11284/2022, dated 09.06.2022‖. The internship commenced on 16.06.2022. The same was supposed to be completed on 15.06.2023, but due to certain anomalous position, the same was certified to be completed on 18.06.2023. 7.4. The Provisional Certificate of Registration reflected that the petitioners ―passed the final BAMS (Bachelor of Ayurvedic Medicine and Surgery)/Ayurvedacharya Examination from Gopabandhu Ayurveda Mahavidyalaya, Puri under Utkal University, held in December, 2021 is provisionally registered with this Council for employment in a resident medical capacity in any approved Institution of the State of Odisha. *** The Licence is valid till completion of internship‖. 7.5. Cumulative reading of Rule 7(d) of the OAMS Rules, 2013 and Clause-4 of the Advertisement, would lead to demonstrate that the eligibility criteria for the candidates for the present purpose are: W.P.(C) No.27353 of 2023 Page 34 of 80 i. A candidate must possess a Bachelor’s Degree in Ayurvedic Medicine and Surgery (BAMS); and ii. He must have registered himself/herself under the Odisha State Council of Ayurvedic Medicines. 7.6. So far as the first criterion of having in possession Bachelor’s Degree in Ayurvedic Medicine and Surgery is concerned, it transpires from the Letter dated 13.06.2022 of the Principal Gopabandhu Ayurveda Mahavidyalaya that the petitioners have passed Final BAMS Examination held in December 2021 from Utkal University. Such fact is also reflected in the Provisional Certificate of Registration. However, Regulation 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012 with amendments in the years 1989, 2005, 2010 and 2011 (Annexure-1) framed with previous sanction of the Central Government in exercise of powers conferred by clauses (i), (j) and (k) of Section 36 of the Indian Medicine Central Council Act, 1970 (48 of 1970) on the Central Council of Indian Medicine, requires fulfilment of the following conditions: “The candidate shall be awarded Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery— BAMS) degree after passing the final examination, W.P.(C) No.27353 of 2023 Page 35 of 80 after completion of prescribed course of study extending over; prescribed period and thereafter satisfactory completing the compulsory rotatory internship extending over twelve months.” 7.7. Regulation 7 of said Regulations, 1989 specifies that the duration of ―compulsory internship‖ is one year. 7.8. Regulation 4 and Regulation 7 unequivocally stipulate that for construing a candidate to possess the qualification of BAMS Degree, he or she not only shall have to complete prescribed course of study for the specified period, but also has to satisfactorily complete the compulsory rotatory internship of a duration of one year. 7.9. The last date as specified in the Advertisement was 08.06.2023. The Principal of Gopabandhu Ayurveda Mahavidyalaya by Letter dated 13.06.2022 clarified that the petitioners passed Final BAMS Examination held in December, 2021 from Utkal Universify, but they were required to undergo internship training for a period of 12 months (or one year) in the College and attached Hospital. From Letter dated 16.06.2022 of the said Principal (Annexure-5) it is surfaced that the compulsory rotating Housemanship training commenced with effect from 16.06.2022. Undisputedly the same came to an end on 18.06.2023. W.P.(C) No.27353 of 2023 Page 36 of 80 7.10. Unflinchingly the award of Degree in BAMS can be said to have been made after the date of completion of compulsory internship in terms of Regulation 4 read with Regulation 7 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012. 7.11. The events discussed above clarifies that on the last date stipulated for submission of Applications, the petitioners though passed the Final Examination, they were not in possession of BAMS Degree Certificate as by then the internship was not completed. The petitioners have not challenged the vires of the Regulations. 7.12. So far as the second condition is concerned, the Provisional Certificate of Registration depicts that the petitioners are registered with the OSCAM which remained valid till completion of internship. 7.13. It has already been stated that the Provisional Certificate of Registration made it clear that the petitioners have been registered under the OSCAM being assigned with registration numbers on 13.06.2022. The Letter dated 13.06.2022 of the Principal of the Gopabandhu Ayurveda Mahavidyalaya read with the contents of the Provisional Certificate Registration is unambiguous that the petitioners have passed the Final BAMS Examination held in December, 2021 from Utkal University. In terms W.P.(C) No.27353 of 2023 Page 37 of 80 of Regulation 4 and Regulation 7 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012, read with the Letters of the Principal, Gopabandhu Ayurveda Mahavidyalaya, it is crystal clear that Degree in Ayurvedacharya (BAMS) can only be awarded only after requirements stipulated therein are fulfilled. Thus, the requirement of Clause-4 of the Advertisement read with Rule 7(d) of the OAMS Rules, 2013, cannot be said to have been satisfied till completion of compulsory internship and Degree in Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery— BAMS) is awarded. 8. With the above position with respect to status of the petitioners as on the last date of submission of Application as per the Advertisement, i.e., 08.06.2023 and the internship of the petitioners were completed on 18.06.2023 (even if their explanation is considered, it would be 15.06.2023), it cannot be asserted that they possessed the Degree in Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery— BAMS), as on 08.06.2023. Therefore, the claim of the petitioners has no substance. 8.1. This Court is now called upon to consider whether the decision of the Commissioner-cum-Secretary to Government of Odisha in Health and Family Welfare Department vide Order dated 04.08.2023 is tainted with W.P.(C) No.27353 of 2023 Page 38 of 80 misconception and said Order has been passed on misdirected approach. 8.2. Rule 6(1) of the OAMS Rules, 2013 provides that the Government shall intimate in each year the total vacancy position to the Commission during the recruitment year in the last week of January indicating the posts to be reserved for different category of candidates mentioned under Rule 5. Sub-rule (2) thereof makes it further clarified that the ―Commission‖ shall, on receipt of the vacancy position from the Government, invite Applications from eligible candidates in such manner as may be decided by them. Thus, discretion has been granted to the Commission for taking appropriate decision with regard to manner of inviting Applications. 8.3. The Advertisement No.03 of 2023-24 has been issued inviting Applications for recruitment to the post of Ayurvedic Medial Officer in the rank of Group-B under the Health and Family Welfare Department specifying the vacancy position as follows: Category 2 No. of posts 3 Sl. No. 1 1. 2. 3. 4. UR SEBC SC ST Total W.P.(C) No.27353 of 2023 70 (23 – W) 13 (04 – W) 11 (04 – W) 22 (07 – W) 116 (38 – W) Page 39 of 80 8.4. There is no pleading nor averment or even suggestion by the petitioners that there was non-compliance or non- adherence to requirements by the opposite parties as envisaged under Rule 6 of the OAMS Rules. 8.5. What is perceived from the impugned Order dated 04.08.2023 of the Government for rejection of representation of the petitioners is non-completion of internship training as envisaged under Rule 7 and required under Rule 4 of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012. Such being policy through Regulations, exercising the power of judicial review, this Court can only examine the decision making process, but not the decision itself. This Court has little scope left for exercise of jurisdiction to show indulgence. 8.6. It may deserve to be noted that the OAMS Rules, 2013, have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Article 309 is a self-contained code for regulating the recruitment and the conditions of service of the persons appointed to public services and posts in connection with the affairs of the Union or State. It only delegates the power to the President or the Governor and declares them as competent to regulate in the cases of services and posts in connection with the affairs of the State to W.P.(C) No.27353 of 2023 Page 40 of 80 make Rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until the provisions in that behalf is made by or under any Act by the appropriate Legislature. It only succinctly lays that because of Article 309 of the Constitution, the Union Government or the State Government are not divested of their powers of legislating a statute regulating the recruitment and conditions of service of a person appointed to the public services and posts in connections with the affairs of the Union or of any State. 8.7. It is illuminatingly clarified by the Hon’ble Supreme Court in CMD/Chairman, B.S.N.L. Vrs. Mishri Lal, (2011) 5 SCR 317 that, “12. Rules under Article 309 can be changed even during the subsistence of the old Rules. As held in Raj Kumar Vrs. Union of India, AIR 1975 SC 1116 (vide para 7), „Rules made under the proviso to Article 309 of the Constitution are in character, and therefore can be given effect to retrospectively.‟ legislative Thus, Rules under the proviso to Article 309 are Constitutional rules, not like rules under a statute. Hence they have the same force as a Statute, though made by the executive. 13. It is well settled that the Legislature can legislate retrospectively vide M.P.V. Sundararamier & Co. Vrs. W.P.(C) No.27353 of 2023 Page 41 of 80