Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.26079 of 2024 and batch of Writ Petitions (In the matters of petitions under Articles 226 and 227 of the Constitution of India, 1950). (In W.P.(C) No. 26079 of 2024) Bisheshawar Biswal &Ors. State of Odisha &Ors. -versus- …. …. Petitioner(s) Opp. Party(s) Advocates appeared in their respective cases through Hybrid Mode: For Petitioner (s) : Ms. Pami Rath, Sr. Adv. Along with Associates Mr. Priya Ranjan Singh, Adv. Mr. Biplaba P.B. Bahali, Adv. Mr. Rajib Rath, Adv. Mr. Kshirod Kumar Rout, Adv. Mr. Madan Mohan Das, Adv. Mr. Prafulla Kumar Mohapatra, Adv. Mr. Prakash Chandra Dash, Adv. Mr. Anurag Pati, Adv. Mr. Kodanda Kumar Bhuyan, Adv. Azra Jamal, Adv. Mr. Panchanan Panigrahi, Adv. Mr. Prafulla Kumar Kar, Adv. Mr. Maheswar Mohanty, Adv. Mr. Sushanta Kumar Mishra, Adv. Mr. Saroja Kanta Mandal, Adv. For Opp. Party(s) : -versus- Mr. Saswat Das, AGA Mr. Sonak Mishra, ASC Page 1 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 CORAM: DR. JUSTICE S.K. PANIGRAHI DATES OF HEARING:- 27.11.2024 DATE OF JUDGMENT:- 05.12.2024 W.P.(C) No.26079 of 2024 along with W.P.(C) Nos.24545, 24685, 24765, 24911, 25016, 25047, 25144, 25155, 25199, 25203, 25221, 25271, 25349, 25499, 25536, 25558, 25677, 25736, 25875, 26668,26888, 26898, 26902, 26925, 27076, 27084, 27095, 27244, 27386, 27464, 27562, 27597, 27705, 27793, 27803, 24845, 29403, 28118, 28630, 26790, 28647, 27662, 27942, 29002 and 29159 of 2024. Dr. S.K. Panigrahi, J. 1. As all the aforementioned Writ Petitions involve common questions of fact and law, they were heard jointly and are being disposed of through this common judgment. For the purpose of comprehensive adjudication, this Court has deemed it appropriate to treat W.P.(C) No.26079 of 2024 as the lead case. 2. The Petitioners have filed the above-mentioned Writ Petitions challenging the Advertisement No.02/SSB dated 22.09.2024, issued by the State Selection Board, Odisha Police, Cuttack, which stipulates an upper age limit of 23 years for recruitment to the posts of Sepoys/Constables in OSAP/IR/SIR/SS Battalions of the Odisha Police. I. FACTUAL MATRIX OF THE CASE:
Legal Reasoning
3. Succinctly put, the facts of the case are as follows: (i). An advertisement dated 22.09.2024 was issued by the State Selection Board, Odisha Police, Cuttack for recruitment to the posts of Page 2 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 Sepoys/Constables in the OSAP/IR/SIR/SS Battalions of the Odisha Police. The advertisement delineated a total of 1,360 vacancies. (ii). Clause 3 of the advertisement specified that candidates had to be between 18 and 23 years of age as of 01.01.2024, with a relaxation of five years granted to candidates belonging to the SC/ST/SEBC categories. Candidates were required to have passed the High School Certificate Examination (Matriculation/10th Class) conducted by the Board of Secondary Education, Odisha, or an equivalent examination conducted by any other recognized Board or Council. (iii). The selection process consisted of a Computer-Based Recruitment Examination, followed by Physical Measurement and Physical Efficiency Tests, a Driving Test, and a Medical Examination for shortlisted candidates. (iv). The last recruitment for these posts had been conducted in 2018, with no subsequent recruitment carried out, reportedly due to disruptions caused by the Covid-19 pandemic. (v). The petitioners had successfully passed the High School Certificate Examination, thereby meeting the minimum educational qualification and eligibility criteria. (vi). However, since then, the petitioners had exceeded the upper age limit of 23 years and were consequently ineligible to apply for the posts. Similarly, candidates from the SC/ST/SEBC categories had also surpassed the applicable upper age limit. As a result, this batch of Writ Petitions were filed, seeking the Court’s interference to allow the Page 3 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 petitioners to participate in the recruitment process by granting a six- year relaxation in the upper age limit. II. PETITIONERS’ SUBMISSIONS: 4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) The petitioners contended that Clause 3 of the advertisement dated 22.09.2024, prescribing an upper age limit of 23 years, is illegal, arbitrary, and contrary to Rule 2 of the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989. The said rule prescribes an upper age limit of 32 years for entry into government service unless a higher age limit is specifically provided for a particular post or service. Since Rule 2 contains a non-obstante clause and is framed under the proviso to Article 309 of the Constitution, it overrides any conflicting recruitment rules or executive instructions issued under the Police Act, 1861. (ii) The petitioners further submitted that the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989, were amended in 2022 to address the disruption caused by the COVID-19 pandemic, raising the upper age limit to 38 years for advertisements issued in 2021, 2022, and 2023. This relaxation was intended to benefit candidates whose recruitment opportunities were affected during the pandemic. However, the current recruitment process for Sepoys/Constables fails to extend the benefit of the amended rule, despite its clear applicability. (iii) The petitioners asserted that the failure to issue recruitment advertisements for the posts of Sepoy/Constable over the past six years has unjustly excluded them and other eligible candidates from Page 4 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 participating in the recruitment process. This prolonged exclusion has violated their fundamental rights under the Constitution. In the interest of justice, the petitioners seek a modification of the advertisement dated 22.09.2024 to relax the upper age limit to 29 years, in accordance with Rule 2 of the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989. (iv) The petitioners submitted that the five-year age relaxation granted to SC/ST/SEBC candidates does not compromise operational efficiency or fitness, as age is not a factor affecting their suitability for the role. They argued that a similar relaxation should be extended to candidates from other categories, particularly given the State’s acknowledgment of the need for enhanced age limits to mitigate the effects of the COVID-19 pandemic. (v) The petitioners further submitted that they are presently seeking the Court’s indulgence to allow their participation in the recruitment process, subject to their performance in the physical measurement and efficiency tests, as well as the written examination. They contended that their exclusion at this preliminary stage is arbitrary and unjustified. III. SUBMISSIONS OF THE OPPOSITE PARTIES: 5. Per contra, the learned counsel for the State earnestly made the following submissions in support of his contentions: (i) The Odisha Battalion Service (Method of Recruitment and Conditions of Service) Order, 2022 prescribes an upper age limit of 23 years for candidates applying for the posts of Sepoys/Constables in the Battalions. This age limit is designed to ensure that recruits are Page 5 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 physically capable of meeting the demands of rigorous training, maintaining law and order, and engaging in high-risk anti-Naxal operations. Statutory rules provide for age relaxations exclusively for candidates belonging to reserved categories. (ii) The Odisha Battalion Service (Method of Recruitment and Conditions of Service) Order, 2022, was enacted by the State Government under its authority derived from Section 2 of the Police Act, 1861. As a specific rule governing the recruitment process for Odisha Police personnel, this Order overrides general recruitment regulations. The Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989, being general rules applicable to civil services recruitment, do not extend to police personnel governed by the Police Act, 1861. Consequently, the age limit prescribed by the Odisha Battalion Service Order, 2022, governs this recruitment process and takes precedence over the general provisions of the Orissa Civil Service Rules. (iii) The petitioners’ plea for relaxation of the prescribed age limit lacks merit. The last recruitment for these posts was conducted in 2018, and the present recruitment process, advertised in 2024, is governed by the Odisha Battalion Service (Method of Recruitment and Conditions of Service) Order, 2022. The passage of time since the previous recruitment does not confer upon the petitioners or other candidates an automatic right to seek age relaxation. The State possesses the prerogative to establish and modify recruitment criteria, including age limits, in alignment with prevailing circumstances and public interest considerations. Page 6 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 (iv) Clause 21 of the Odisha Battalion Service (Method of Recruitment and Conditions of Service of Sepoys/Constables, Havildars, and ASIs (Armed)) Order, 2022, vests the competent authority with discretionary power to relax the age limit. However, as this provision confers discretion, a writ of mandamus cannot be issued to compel the competent authority to grant such relaxation. The formulation and implementation of recruitment policies, including discretionary decisions regarding age relaxation, fall within the exclusive domain of the executive. The judiciary cannot direct the executive to exercise its discretion in a specific manner contrary to its independent judgment. (v) In order to buttress his argument, he relied on some of the judgments which cover the issue at hand. In the case of State of Jammu & Kashmir vs. Ajay Dogra1 the Supreme Court emphasized that when the validity of a rule is not challenged in a Writ Petition or before the Court, the Court cannot adjudicate on the validity or fairness of the rule. (vi) It is further submitted that the aforesaid judgment reinforces that courts cannot grant relief or interfere with rules unless those rules are specifically challenged and declared unconstitutional or invalid. Similarly, since the petitioners have not challenged the relevant orders of the Odisha Battalion Service (Method of Recruitment and Conditions of Service of Sepoys or Constables, Havildars, and ASI (Armed)) Order, 2022, their demand for relaxation of the upper age limit lacks legal merit, and this Court is not empowered to entertain or adjudicate such
Legal Reasoning
claims. 1 (2011) 14 SCC 243 Page 7 of 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Dec-2024 20:11:41 (vii) Further, it was argued that in the case of Dr. Ami Lal Bhatt vs. State of Rajasthan2 the Supreme Court has held that “there cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement”. (viii) Drawing attention of this Court to the judgment of the Supreme Court in State of Uttar Pradesh v. Vikash Kumar Singh3 it was further argued that the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because the Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. (ix) Similarly, referring to the judgment of the Supreme Court in State of U.P. vs. Shanti Devi4 and Dr. Ami Lal Bhatt vs. State of Rajasthan5 it was emphatically submitted that the power to relax age limits for recruitment lies solely with the competent authorities and should not be exercised arbitrarily or as a matter of right by candidates. (x) Further, referring to the judgment of the Supreme Court in the case of Maharashtra Public Service Commission -vrs.- Sandeep Shriram Warade6, it was argued that the essential qualifications for appointment to a post are for the employer to decide. The employer