Mr. B.S. Tripathy, Advocate v. For Opp. Parties
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) Nos. 29776 of 2023 Application under Articles 226 & 227 of Constitution of India. Goutam Kumar Dash …. Petitioner --------------- -versus- State of Odisha and Others …. Opp. Parties Advocate(s) appeared in these cases:- For Petitioner : Mr. B.S. Tripathy, Advocate Vs. For Opp. Parties : Mr. A.K. Parija, Advocate General with Mr. A. Behera, Addl. Standing Counsel __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th October, 2023 SASHIKANTA MISHRA, J. The petitioner has filed this writ petition with the following prayer:- “It is therefore prayed that this Hon’ble Court may graciously be pleased to Page 1 of 18 a. Admit the writ application b. Call for the records; And c. Issue a writ of mandamus, directing the opp. parties more particularly Opp. Party No.3 and 4 to relax the upper age limit from 32 years to 38 years in accordance with the G.A. & PG Dept. Notification of the Govt. dtd. 11.01.2022. any pass order/orders, And direction/directions as this Hon’ble Court would be deem fit and proper as facts and circumstance of the case. other And petitioners shall as in duty bound every pray.” the said act of kindness, for the 2. The facts of the case are that an advertisement was published on 22.08.2023 by the Odisha Power Transmission Corporation Limited (OPTCL) for recruitment to certain posts including 15 posts of Junior Management Trainees (Finance). Apart from the educational qualifications required to be possessed by the candidates, it was stipulated that the candidates must be aged between 21 and 32 years as on 01.08.2022 with further relaxation for reserved category candidates. 3. According to the petitioner said advertisement is in violation of the Orissa Civil Service (Fixation of Upper Age Limit) Amendment Rules, 1989 inasmuch as the upper age Page 2 of 18 limit ought to have been 38 instead of 32 years. It is further stated that the petitioner is otherwise qualified to apply for the post being a graduate with Inter-CA (pass)/ Inter ICMAI (pass), M.Com with 60% marks as per the amended rules. The upper age limit for advertisement issued in the years 2021, 2022 and 2023 is to be 38 years. OPTCL, being a State Government undertaking is bound to adhere to the said rules. It has been further stated that the last such advertisement published for recruitment for the post of Junior Management Trainees (Finance) was in the year 2017 and therefore, many otherwise qualified and eligible candidates like the petitioner are deprived of an opportunity to participate in the recruitment process, which is a clear violation of Article 16 of the Constitution. Even otherwise, OPTCL in its Recruitment Policy has provided that the maximum age limit can be relaxed as per the rules of the Government of Odisha and therefore, the enabling provision to enhance the upper age limit which ought to have been invoked. It is also stated that several other public sector undertakings, namely, Odisha Mining Page 3 of 18 Corporation (OMC) and Odisha Hydro Power Corporation Limited etc. have published advertisements for identical/similar posts providing the upper age limit as 38 years. 4. A counter affidavit has been filed by OPTCL refuting the averments of the writ petition. It is stated that OPTCL is a Public Sector Undertaking owned by the Government of Odisha and has adopted GRIDCO Officers Recruitment Policy. In Clause-9.1 read with Annexure-II of the policy, the upper age limit for the post of Management Trainees has been fixed at 32 years with relaxation of age and experience provided for the purposes of reservation. The Board of Directors of OPTCL has not adopted the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989 or the amendment dated 11.01.2022. Moreover, said Rules apply only to civil posts under the State Government and not to a post in a Public Sector Undertaking like the OPTCL. In any case age relaxation is a matter of policy of the employer, which is not subject to judicial review. That apart, the petitioner cannot claim equity since being 37 Page 4 of 18 years of age presently, he was age barred even before onset of the COVID-19 Pandemic, which led to the amendment of the 1989 Rules.
Legal Reasoning
5. Heard Mr.B.S. Tripathy, learned counsel for the petitioner and Mr.Ashok Kumar Parija, learned Senior Counsel assisted by Mr. A. Behera, learned counsel for OPTCL. 6. Mr. Tripathy has firstly drawn attention of the Court to the notification dated 11.01.2022 whereby the Orissa Civil Service (Fixation of Upper Age Limit) Amendment Rules, 2022 was made. As per such amendment, a proviso was added to the existing proviso to Rule-2 to the effect that for advertisements made during the calendar years 2021, 2022 and 2023, the upper age limit of 32 years shall be enhanced to 38 years. 7. Mr. Tripathy submits that the amendment was occasioned because of the unprecedented situation arising out of COVID-19 Pandemic. He further submits that OPTCL being a State Government undertaking is bound to Page 5 of 18 adhere to the amended provisions. He has further drawn attention of this Court to the GRIDCO Officers’ Recruitment Policy adopted by OPTCL, particularly to Manual 6 Serial No.13 to contend that the same provides that notifications and office orders issued from time to time relating to implementation of the above Regulations are applicable. He also refers to Manual-7 which states that the basic policy of the Company as formulated by the Board of Directors shall be laid down in consonance with the instructions guidelines and policies received from the Government from time to time. He then refers to Annexure-II appended to the GRIDCO Officers’ Recruitment Policy, Note (1) of which provides that relaxation of the age and experience under ORV Act and other relevant statutes shall apply. Summing of his arguments, Mr. Tripathy contends that OPTCL should have extended the benefit of relaxation of upper age limit to 38 years keeping in view the fact that many otherwise eligible candidates are being deprived of the opportunity to even apply for the post being age-barred. Page 6 of 18 8. Mr. A.K. Parija, learned Senior Counsel would argue that firstly, the petitioner is not entitled to any relief whatsoever in view of the fact that being presently aged about 37 years, he was already over aged even before the onset of COVID-19 Pandemic. Secondly, Rule-2 of 1989 Rules (as amended) applies only to recruitment in civil services and/or civil posts in pensionable establishments under the State Government. According to Mr. Parija, the posts advertised can, by no stretch of imagination, be treated as civil posts nor the OPTCL be treated as a pensionable establishment under the State Government. Further, OPTCL has its own Recruitment Policy, its Board of Directors having adopted the GRIDCO Officers Recruitment Policy, which is not a creation under Article 309 of the Constitution of India. As such, the 1989 Rules shall have no application in view of the Explanation appended to Rule-2 that said rules shall only apply in respect of any rules framed under the proviso to Article 309 of the Constitution. Page 7 of 18 Mr. Parija would further argue that relaxation of the upper age limit is a matter of policy and therefore, no mandamus can be issued in such respect by the Court. 9. Having heard learned counsel for the parties at length, it is evident that the sole question that falls for consideration is, whether a writ of mandamus can be issued directing OPTCL to relax the upper age limit from 32 years to 38 years in line with the notification dated 11.01.2022 of the Government in G.A. and PG Department. Answer to this question lies in the determination whether the aforesaid notification of the government can be said to have any binding effect on OPTCL. 10. The facts of the case are otherwise undisputed inasmuch as in the advertisement published by the OPTCL on 22.08.2023, the upper age limit for the candidates is stipulated as 32 years. Mr. B.S. Tripathy, learned counsel for the petitioner has attempted to persuade this Court to hold that such upper age limit, being contrary to the aforementioned notification of the Government is bad in law and therefore, warrants interference by this Court. It Page 8 of 18 would therefore be apposite to refer to the notification at the first instance. By means of notification dated 11.01.2022, the Government in G.A. and P.G. Department exercising power conferred by the proviso to Article 309 of the Constitution of India framed the Orissa Civil Service (Fixation of Upper Age Limit) Amendment Rules, 2022 to insert a proviso to Rule-2 of the original Rule, i.e.., the Orissa Civil Service (Fixation of Upper Age Limit) Rules 1989. Prior to its amendment Rule 2 of the 1989 Rule read as follows:- “2. Upper age-limit for entry into Government service:-Notwithstanding anything contained in any recruitment rules regulating the method of recruitment in Civil Services and/or Civil Posts in pensionable establishment under the State Government, the upper age-limit for entry into Government service shall be [thirty-two] years except where a higher upper age-limit has been prescribed or any such service or post: Provided that only for Odisha Civil Service combined competitive examination, if for any reason application have not been invited by the competitive authority to conduct examination during any particular year to fill up the vacancies of the year, applicants, who would have been eligible. If, application were invited during that year, shall be eligible to Page 9 of 18 complete at the examination held subsequent year.” in the The Explanation- expression “Recruitment Rules” shall mean the rules framed under the proviso to Article 309 of the Constitution of India regulating the recruitment to any Civil-Service or Civil Post under the include executive orders and State and instructions issued by the competent authority for that purpose.” 11. Consequent upon the amendment the following proviso was inserted; “Provided further that for advertisements made during calendar years 2021, 2022 and 2023, the said upper age limit shall be thirty-eight years.” 12. Thus, the upper age limit of 32 years has been relaxed to 38 years only in respect of advertisements made during calendar years 2021, 2022 and 2023. According to Mr. Tripathy, the advertisement in question having been issued in the year 2023, the amended provision would apply. Learned Senior Counsel Mr. Parija, on the other hand, refers to the language employed in Rule-2 as quoted above to contend that the said Rules only regulates recruitment in civil services and/or civil posts in pensionable establishment under the State Government. Page 10 of 18 According to Mr. Parija, by no stretch of imagination can the posts advertised by OPTCL be treated as civil posts under the State Government. 13. Mr. Parija further refers to the Explanation appended to Rule-2 to contend that the said rules are applicable to the rules framed under the proviso to Article 309 of the Constitution of India. In the present case, there is no such rule framed under the proviso to Article 309 of the Constitution governing the recruitment of the employees of OPTCL. On the contrary, OPTCL has its own recruitment rules, namely, GRIDCO Officers Service Regulations, which has no such provision. 14. This Court has carefully perused the language employed in Rule-2, its Explanation and the proviso inserted by way of amendment. There is no dispute that OPTCL is a State owned undertaking but a company registered under the Companies Act. Its employees are governed by the GRIDCO Officers Service Regulations as adopted by its Board of Directors. Thus, being a company incorporated under the Companies Act service of its Page 11 of 18 employees, can by no stretch of imagination be treated as a Civil Service nor can the Company be said to be a pensionable establishment under the State Government. In other words, the employees of OPTCL cannot be treated as holders of civil posts. The expression “civil post” has not been defined in the 1989 Rules or in the Orissa Service Code but the same has been interpreted by the Supreme Court and different High Courts of the country. In the case of Ajit Kumar Nag vs. General Manager (Pj), Indian Oil Corporation Limited, Haldia and others; (2005) 7 SCC 764, the Apex court held that employees of Government Corporations or PSUs do not hold civil posts. Further in the case of State of Assam vs. Shri Kanak Chandra Dutta; AIR 1967 SC 884, the Apex Court observed as follows:- “There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact Page 12 of 18 in each case whether there is such a relation between the State and the alleged holder of a post.” 15. Of course, these observations were made in relation to Article 311 of the Constitution of India but then an analogy can conveniently be drawn for the purpose of interpreting the expression appearing in the 1989 Rules quoted above. Thus essentially, in order to show that a person is holding a civil post, the relationship of master and servant between the State and the said person must be proved. As has already been discussed hereinbefore, there is no such relationship between the government and the employees of the OTPCL who are appointed following its own recruitment and service Regulations. It is also clear that the posts held by the employees of OPTCL cannot come within the purview of the expression “pensionable establishment under the State Government” within the meaning of Rule-2 of 1989 Rules. The argument of Mr. Tripathy in this regard therefore fails. 16. It has been further argued by Mr. Tripathy that even otherwise, in the recruitment policy framed by OPTCL for Page 13 of 18 its Non-Executives (copy enclosed as Annexure-7), it is stated under Clause-3.11.2 that the maximum age limit can be relaxed as per the rules of Government of Odisha. Learned Senior Counsel, Mr. Parija responds by submitting that there is no such provision in the recruitment rules of the OPTCL for its executive cadre employees. This Court is not impressed with the argument that having provided for adoption of government rules regarding relaxation of upper age limit in case of non-executive employees, OPTCL is obligated to make similar provision for its executive employees. Obviously this is a decision to be taken by the Board of Directors of the Company and not for the Court to issue a definite direction for adopting such a provision in case of its executives. It is for the Board of Directors of the Company to decide and not for the Court to dictate. 17. Mr. Tripathy has next referred to Annexure-II appended to the GRIDCO Officers’ Recruitment Policy wherein, Note.1 reads as follows:- “Note:(1) Relaxation of age and experience under ORV Act and other relevant statute shall apply.” Page 14 of 18 18. Bare reading of the above makes it clear that the relaxation of age and experience referred to therein is for the purpose of reservation as per the ORV Act and other relevant statutes. Mr. Tripathy would urge the Court to hold that the 1989 Rules (as amended) shall come within the purview of the expression ‘other relevant statutes’ in Note-1 quoted above. Again, this Court finds such argument entirely unacceptable for the reason that the said Note specifically relates to relaxation in case of reserved category candidates under ORV Act and therefore, other relevant statutes in this context would obviously mean statutes providing reservation other than the ORV Act, namely, women, sportspersons, persons with physical disability etc. The words ‘other relevant statutes’ cannot be read out of the context. This argument of Mr. Tripathy also fails. 19. It has been next argued that the last advertisement issued for the post of Management Trainees was in the year 2017 and the petitioner had offered his candidature but could not succeed in the personal interview. According to Page 15 of 18 Mr. Tripathy had the next recruitment process been initiated shortly after conclusion of the recruitment process in the year, 2017, the petitioner would have again offered his candidature but the advertisement came to be published after a long gap of six years by which time he had become age-barred. In the meantime, because of the situation arising out of COVID-19 Pandemic from the year 2020 all recruitments were stalled. According to Mr. Tripathy therefore, this is a fit case where the OPTCL authorities should have adopted a more humanitarian approach by enhancing the upper age limit as has been done by other Public Sector Undertakings like OMC and OHPC etc. Learned Senior Counsel Mr. Parija however submits that this is a matter entirely within the domain of policy of the OPTCL and therefore, the practice adopted by other Public Sector Undertakings cannot have any bearing nor can be held to be binding on it. After considering the contentions as above, this Court is persuaded to agree with learned Senior Counsel in that relaxation of the upper age limit is a matter of policy, which is ordinarily not amenable Page 16 of 18 to judicial review. Moreover, it is highly significant to note that in the impugned advertisement under Clause-G relating to age, after mentioning the minimum and maximum age limits along with relaxation for reserved category candidates, the following has been specifically highlighted “THE AGE LIMITS PRESCRIBED ABOVE CAN IN NO CASE BE RELAXED”. This would imply that a conscious decision was taken by the OPTCL authorities to not provide for any age relaxation save and except for the reserved category candidates. 20. In view of what has been said before, this Court finds that there is no way by which, the petitioner can be granted the relief sought for in the present writ petition. As to the request made that the matter of relaxation of upper age limit should receive a sympathetic consideration by the OPTCL authorities by adopting a humanitarian approach, particularly keeping in view the unprecedented situation arising out of the COVID-19 Pandemic, while holding that no mandamus can be issued to the authorities to do so, this Court can only observe that taking into consideration Page 17 of 18 the fact that the entire world was in the grip of the deadly Corona virus for nearly three years as also the fact that other Public Sector Undertakings have issued advertisements raising the upper age limit to 38 years, the OPTCL authorities may consider adopting the same, more so as the recruitment process has only just begun and not concluded as yet.
Decision
21. The writ petition is disposed of accordingly. ..……..………………….. Sashikanta Mishra, Judge High Court, Cuttack, The 18th October 2023/ B.C. Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Oct-2023 14:19:59 Page 18 of 18