Orissa High Court

Afr Dr. Bikash Kumar Pattanayak vs Principal Secretary To Govt. Of ... on 23 September, 2021

                   ORISSA HIGH COURT: CUTTACK

                        W.P.(C) NO. 3964 OF 2020

         In the matter of an application under Article 226 and
         227 of the Constitution of India.
                               ---------------

AFR Dr. Bikash Kumar Pattanayak ..... Petitioner

-Versus-

Principal Secretary to Govt. of Odisha, Health & Family Welfare Department & another. ..... Opp. Parties

For Petitioners : M/s. B.S. Tripathy, M.K. Rath, J. Pati and N. Panda, Advocates

For Opp. Parties : Mr. J. P. Pattanaik, Government Advocate [O.P. No.1]

M/s. S. Swain & A. Mishra, Advocates [O.P. No.2]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing : 16.09.2021 :: Date of judgment:23.09.2021

DR. B.R. SARANGI, J. The petitioner, who is a doctor,

has filed this writ petition seeking to quash the notice

dated 24.01.2020 under Annexure-10, so far as it relates to rejection of his application bearing Roll No.

100302 and Registration ID No.131920131843

mentioned at Serial 12 on the ground of overage, and to

issue direction to the opposite parties to relax his

overage for a period of 5 months and 26 days as on

01.01.2020 and consider his application for

recruitment to the post of Medical Officer (Assistant

Surgeon) in Group-A (Junior Branch) of the Odisha

Medical & Health Services Cadre under Health and

Family Welfare Department, pursuant to advertisement

no. 13 of 2019-20.

2. The factual matrix of the case, in a

nutshell, is that the petitioner, having a brilliant

academic career in matriculation examination and +2

examination, got himself admitted into MBBS course

and passed the same in the year 2011 under the Utkal

University. He completed the compulsory Rotating

Housemanship for a period of 12 months from

23.10.2011 to 22.10.2012. After acquiring such

qualification, the petitioner registered his name in the

Orissa Council of Medical Registration, Bhubaneswar

on 21.02.2013 and obtained the registration certificate

vide Regd. No. 18647 of 2013. The petitioner served as

Medical Officer on ad hoc basis vide Govt. Notification

dated 15.04.2013 for a period of about three years from

08.05.2013 to 11.05.2016 at Dinger and Gudum PHC

of Botalama CHC. Thereafter, the petitioner proceeded

on leave from 11.05.2016 to go for higher study of PG

in O & G. Consequentially, he joined P.G. course and

completed MS (O & G) successfully from 30.05.2016 to

30.05.2019. Accordingly, a provisional certificate in

support of passing of the said examination was issued

by the Utkal University.

2.1. The Odisha Public Service Commission

issued advertisement no. 13 of 2019-20 for recruitment

to the post of Medical Officer (Assistant Surgeon) in

Group-A (Junior Branch) of the Odisha Medical &

Health Services cadre under Health and Family Welfare

Department inviting online applications from the

prospective candidates for recruitment to 3278 posts of

Medical Officers. Pursuant to such advertisement, the

petitioner applied for, but his application was rejected

on the ground of "overage". Hence this application.

3. Mr. B.S. Tripathy, learned counsel for the

petitioner argued with vehemence and contended that

rejection of the application filed by the petitioner for

recruitment to the post of Medical Officer (Assistant

Surgeon) in Group-A (Junior Branch) of the Odisha

Medical & Health Services cadre on the ground of

overage is totally outcome of non-application of mind

and, as such, contrary to the advertisement issued. He

further contended that as per second proviso to Clause-

3 of the advertisement, the petitioner is eligible and

entitled for age relaxation as he has served three years

under the State Government. It is further contended

that on receipt of application form, along with relevant

documents, the same was scrutinized and the

petitioner was allowed to participate in the written

examination where he successfully qualified. In such

eventuality, his application should not have been

rejected. Therefore, rejection of the petitioner's

application on the ground of "overage" after he comes

out successful in the written test is not only illegal and

arbitrary but also contrary to the guidelines issued in

the advertisement itself. As such, the notice dated

24.01.2020 under Annexure-10 rejecting the

application of the petitioner for recruitment to the post

of Medical Officer may be quashed and opposite parties

may be directed to recommend the name of the

petitioner for recruitment to the post of Medical Officer.

4. Mr. J. P. Pattanaik, learned Government

Advocate appearing for opposite party no.1 contended

that pursuant to Rule-6 of the Odisha Medical and

Health Services (Method of Recruitment and Conditions

of Service) Rules, 2017 (for short "Rules, 2017"), the

Government of Odisha, Health and Family Welfare

Department, vide letter dated 28.10.2019, requested

the opposite party no.2-OPSC for recruitment of 3278

Asst. Surgeons in the rank of Group-A (Junior Branch)

of the Odisha Medical & Health Services cadre during

the year 2019-20. Consequentially, opposite party no.2

issued the advertisement under Annexure-5. It is

contended that Sub-rules (4) and (7) of Rule -6 of the

Rules, 2017 require opposite party no.2 to prepare a list

of candidates after adjudging the suitability 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. Accordingly, opposite

party no.1 received a list of 1403 selected candidates

from opposite party no.2, vide OPSC letter dated

28.01.2020, and all selected candidates were given

appointments vide Health and Family Welfare

Department Notifications dated 04.03.2020 and

21.03.2020. It is contended that the OPSC- opposite

party no.2, being the recruiting agency, has evaluated

the suitability and eligibility of the petitioner in

consonance with the advertisement under Annexure-5.

It is further contended that in Rule-7 of the Rules 2017,

for the candidates seeking relaxation of upper age limit,

it is clearly provided that the upper age limit up to five

years shall be given to the doctors serving on ad hoc or

contractual basis under State Government/State

Government undertaking. In that regard, opposite party

no.2-OPSC, being the recruiting agency, is the

appropriate authority for considering the applicability of

the rules as mentioned in Rule 7 of the Rules, 2017 vis-

à-vis the stipulations made in the advertisement under

Annexure-5. Thereby, opposite party no.2 is the

appropriate authority to mitigate the grievance of the

petitioner as claimed in the writ petition.

5. Mr. S. Swain, learned counsel for

opposite party no.2 argued with vehemence and

contended that the advertisement no. 13 of 2019-20 for

recruitment to the post of Medical Officers (Assistant

Surgeon) in Group-A (Junior Branch) of the Odisha

Medical & Health Services cadre was issued on receipt

of requisition from the Government in Health and

Family Welfare Department, as the requisitioning and

appointing authority. The last date of filling up of the

online application by the candidates was fixed to

05.12.2019. The objective of keeping the last date is

that a candidate shall be declared eligible by

05.12.2019 for filling up of online application. As per

Clause-9 (vii) of the said advertisement, only those

candidates, who are within the prescribed age limit and

fulfill the requisite qualification etc. by the closing date

of submission of online application, will be considered

eligible. The petitioner, after knowing all the conditions

of advertisement, submitted online application for the

said post. Accordingly, roll number was assigned to him

and prior to scrutiny of documents, all the applicants,

who had submitted their applications for the said post

through online, were allowed to appear in the written

examination provisionally and after written

examination, 1582 candidates, including the petitioner,

were asked to attend the verification of original

documents on 07.01.2020. It was noticed that the

petitioner had submitted service experience certificate

that he was working as Medical Officer from 08.05.2013

to 11.05.2016 and is continuing his PG from

11.05.2016 and till that date he was on study leave. It

is thus contended that since the petitioner was on

study leave and continuing his PG from 11.05.2016 till

that date, but was not in government service by the last

date of submission of his previous service experience

certificate as Medical Officer, his case was not taken

into consideration for relaxation of age. Thus, he being

found as overage, his candidature was rejected on that

ground for such recruitment, vide OPSC notice dated

24.01.2020 under Annexure-10. Thereby, the OPSC

has not committed any illegality or irregularity in

rejecting his application on the ground of overage. It is

further contended, by filing an additional counter

affidavit, that as per Rule 7(b) of Rules, 2017 relaxation

of upper age limit up to 5 years shall be given to the

doctors serving on ad hoc or contractual basis under

State Government/State Government undertaking.

Since the petitioner had undergone study leave and not

a doctor serving on ad hoc/contractual basis, thereby

relaxation of age is not applicable to him. Therefore, the

OPSC on 20.07.2021 examined his case and did not

extend him the benefit of condonation of age as the

existing rule did not so provide. The same was duly

communicated to the petitioner on 20.07.2021.

Thereby, the relief sought by the petitioner cannot be

granted and the writ petition should be dismissed.

6. This Court heard Mr. B.S. Tripathy-

learned counsel for the petitioner; Mr. J. P. Pattanaik-

learned Government Advocate appearing for the State;

and Mr. S. Swain, learned counsel appearing for

opposite party no.2-OPSC by hybrid mode. Pleadings

having been exchanged between the parties and with

the consent of the learned counsel for the parties, this

writ petition is being disposed of finally at the stage of

admission.

7. The factual matrix, as delineated above,

is not in dispute. Therefore, the only question to be

determined in this case is that opposite party no.2,

having entertained the application submitted by the

petitioner, pursuant to advertisement issued under

Annexure-5, and having permitted the petitioner to

appear in the written examination, where he was

qualified, can subsequently reject his application on the

ground of overage.

8. The Government of Odisha in Health and

Family Welfare Department issued a notification on 9th

August, 2017 that in exercise of powers conferred by

the proviso to Article 309 of the Constitution of India

and in supersession of the Odisha Medical and Health

Services Rules, 2013 except as things done or omitted

to be done before such supersession, the Governor of

Odisha was pleased to make the rules to regulate the

method of recruitment and conditions of service of the

persons appointed to the Odisha Medical and Health

Services, called, "Odisha Medical and Health Services

(Method of Recruitment and Conditions of Service)

Rules, 2017". Part-I of the said Rules deals with

general, Part-II deals with method of recruitment, Part-

III deals with direct recruitment, Part-IV deals with

promotion, Part-V deals with other conditions of

service, Part-VI deals with miscellaneous. In Part-III,

which deals with direct recruitment, Rule- 7 (a) and (b)

read as follows:

" 7. Eligibility Criteria for direct recruitment- In order to be eligible for direct recruitment to the service, a candidate must, -

(a) be a citizen of India.

(b) have attained the age of 21 years and must not be above the ge of 32 years on the first day of January of the year in which application are invited by the Commission:

Provided that the upper age limit in respect of reserved category of candidates referred to in rule 5 shall be relaxed in accordance with the provisions of the Act.

Provided further that the upper age limit up to 5 years shall be given to the doctors serving on ad hoc or contractual basis under State Government / State Government undertaking."

The aforesaid provisions clearly indicate that in order to

be eligible for direct recruitment to the service, a

candidate must have attained the age of 21 years and

must not be above the age of 32 years on the first day

of January of the year in which applications are invited

by the Commission. The second provision of Sub-rule(b)

makes it clear that the upper age limit up to 5 years

shall be given to the doctors serving on ad hoc or

contractual basis under State Government / State

Government undertaking. Thereby, relaxation of five

years is applicable to the doctors serving in ad hoc or

contractual basis under the State Government or State

Government undertaking.

9. On the basis of the requisition received

from the State Government in Health and Family

Welfare Department as the requisitioning and

appointing authority of Medical Officers (Assistant

Surgeon), the Odisha Public Service Commission issued

advertisement No.13 of 2019-20 for recruitment to the

post of Medical Officer (Assistant Surgeon) in Group-A

(Junior Branch) of the Odisha Medical & Health

Services Cadre under Health & Family Welfare

Department in Annexure-5. The last date of submission

of online application was fixed to 05.12.2019. The

objective behind fixing the last date to 05.12.2019 for

filling up of online application was to declare a

candidate as eligible by that date. Clause-3 of the

advertisement reads as follows:

"3. AGE:

A candidate must have attained the age of 21 (Twenty one) years and must not be above 32 (Thirty two) years as on 1st day of January, 2020 i.e., he/she must have been born not earlier than 2nd January, 1988 and not later than 1st January, 1999.

The upper age limit prescribed above shall be relaxable by 5 (five) years for candidates belonging to the categories of Socially & Educationally Backward Classes (S.E.B.C.), Scheduled Castes (S.C.) Scheduled Tribes (S.T.) Woken, Ex-Servicemen and by cumulative 10 (Ten) years for candidates belonging to Physically Handicapped category, whose permanent disability is 40% and more.

Provided that, a candidate who comes under more than one category mentioned above, he/she will be eligible for only one age relaxation benefit, which shall be considered most beneficial to him/her.

Provided that person with past service as Medical Officers under the State Government to their credit, shall be given preference and in their case, the period of service so rendered by the last date of submission of applications shall be added to the age limit for entry into the service and it is up to maximum period of 05 years."

On perusal of the above, it is made clear that a

candidate must have attained the age of 21 years and

must not be above 32 years as on the 1st day of

January 2020, i.e., he/she must have been born not

earlier than 2nd January, 1988 and not later than 1st

January, 1999. The second proviso to clause-3 clearly

indicates that the candidates with past service as

Medical Officer under the State Government to their

credit, shall be given preference and in their case, the

period of service so rendered by the last date of

submission of applications shall be added to the age

limit for entry into the service and it is up to maximum

period of 05 years.

10. There is no dispute that the petitioner is

overage for a period of 5 months 26 days as on

01.01.2020. Meaning thereby, he has already attained

the maximum age of 32 years. Therefore, as on

01.01.2020, he was 32 years 5 months 26 days and

there is also no dispute with regard to the fact that the

petitioner was rendering service under the Government

from 08.05.2013 to 11.05.2016 at Dinger and Gudum

PHC of Botalama CHC on ad hoc basis by Government

notification dated 15.04.2013 and from 11.05.2016, he

was on study leave for P.G. course. Therefore, the

petitioner was in government service for a period of

three years and three days and thereafter he remained

on study leave for acquiring P.G. qualification in O & G.

As per the second proviso to clause-3 of the

advertisement read with second proviso to Rule 7(b) of

Rules, 2017, for the past service rendered by the

petitioner under the State Government, he shall be

entitled to get the benefit of relaxation of upper age

limit for a period of three years and three days.

Therefore, if three years and three days will be added to

32 years, the upper age limit for the petitioner will be

enhanced to 35 years and three days. Thereby, his

application cannot and could not have been rejected on

the ground of overage.

11. Considering from other angle, as per the

second proviso to Rule 7(b) of Rules, 2017, relaxation of

upper age limit up to five years shall be given to the

doctors serving on ad hoc or contractual basis under

State Government/ State Government undertaking. It is

admitted fact that the petitioner has served from

08.05.2013 to 11.05.2016 as a Medical Officer at

Dingar and Gudum PHC of Botalama CHC on ad hoc

basis vide Govt. Notification dated 15.04.2013, and on

11.05.2016 he was granted study leave to go for higher

study of P.G. in O & G. Therefore, the word "serving"

used in second proviso of Rule 7(b) of Rules, 2017

means, holding employment, as distinguished from

actual performing the duties of service.

12 In Arijit Singh v. State, AIR 1970 P &H

351, the Full Bench of the Court, while construing

Section 9 of the Air Force Act, 1950, held that a

member of Air Force on leave is "serving" within the

meaning of the section. Therefore, the petitioner, who

was rendering service as a Government Servant and

was granted study leave, comes well within the

meaning of "serving" and is thus entitled to get benefits

of such provision.

13. Rule- 179 of the Orissa Service Code,

which deals with grant of special study leave, reads as

follows:

"Rule-179 : Grant of Special Study Leave :

(a) Subjects to the conditions hereinafter specified, the State Government may grant special study leave to a Government servant to enable him to study scientific, technical or similar

problems or to undergo a special course of instructions, such leave is not debited against the leave account.

(b) These rules relate to study leave only. They are not intended to meet the case of Government servant deputed to other countries at the instance of Government, either for; the performance of special duties imposed on them or for the investigation of specific problems connected with their technical duties, such cases will be dealt with on their merits under the provisions of Rule 59. Such leave may be granted to a Government servant in the Public Health, Medical, Civil, Veterinary, Agriculture Education, Public Works or Forest Department or to any other Government servant to whom the State Government is of opinion that such leave should in the public interest, be granted.

Note : Save in very exceptional case, study leave will not be granted to a member of subordinate service."

The aforesaid rule clearly provides that subject to

conditions specified, the State Government may grant

special study leave to a Government servant to enable

him to study scientific, technical or similar problems or

to undergo a special course of instructions, such leave

is not debited against the leave account. It has also

been further clarified under Sub-rule (b) of Rule-179

that such leave may be granted to a Government

servant in the Public Health, Medical, Civil, Veterinary,

Agriculture Education, Public Works or Forest

Department or to any other Government servant to

whom the State Government is of opinion that such

leave should in the public interest, be granted.

Admittedly, the petitioner was serving as a Medical

Officer on ad hoc basis and he required a study leave to

go for higher study for acquisition of P.G. qualification

in O & G, for having been duly selected. That comes

within the purview of "medical" as per Sub-rule (b) of

Rule-179 and as such, leave has been granted by the

State Government. Therefore, it can be safely construed

that the petitioner, as on 1st day of January, 2020, was

"serving" as a doctor on ad hoc basis under the State

Government. Thus, he was entitled to get the upper age

limit relaxation of five years.

14. On conjoint reading of the second proviso

to Rule 7(b) of Rules, 2017 and to clause-3 of the

advertisement, the petitioner is entitled to get age

relaxation up to five years. Admittedly, when the

petitioner submitted his application, he was overage by

5 months 26 days only and such overage can be

condoned in view of the above mentioned provisions

contained in second proviso to clause-3 of the

advertisement and second proviso to Rule 7(b) of Rules,

2017. Non-consideration of the same by opposite party

no.2 in proper perspective, is in gross violation of the

statutory provisions governing the field.

15. In Sukhdev Singh v. Bhagat Ram, AIR

1975 SC 1331 : (1975) 1 SCC 421, the Constitution

Bench of the apex Court observed as under :-

"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations."

xx xx xx The Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of duty to observe the rule of natural justice and compliance with rule and regulations imposed by statute."

Similar view has also been taken by the

Supreme Court in Ambica Quarry Works v. State of

Gujarat, AIR 1987 SC 1073 : (1987) 1 SCC 213.

16. In Sirsi Municipality v. Cecelia Kom

Francis Tellis, AIR 1973 SC 855, the apex Court

observed that "the ratio is that the rules or the

regulations are binding on the authorities."

17. In M.A. Haque v. Union of India, (1993)

2 SCC 213, the apex Court observed as under:-

"................... We cannot lose sight of the fact that the recruitment rules made under article 309 of the Constitution have to be followed strictly and not in breach."

18. In Purushottam v. Chairman,

Maharashtra State Electricity Board, (1999) 6 SCC

49, the apex Court held that appointment should be

made strictly in accordance with the statutory

provisions and a candidate who is entitled for

appointment, should not be denied the same on any

pretext whatsoever as usurpation of the post by

somebody else in any circumstances is not possible.

19. The rules may provide for the granting of

study leave to a Government servant with due regard to

the exigencies of public service to enable him to

undergo, in or out of India, a special course of study

consisting of higher studies or specialized training in a

professional or technical subject having a direct and

close connection with the sphere of his duty.

20. In Union of India v. No. 664950 IM

Havildar/Clerk SC Bagari, (1999) 3 SCC 709: AIR

1999 SC 1412, the apex Court held that the rules for

study leave should have nexus with the performance of

duties of the class of employees concerned.