Orissa High Court
Afr State Of Odisha & Anr vs Subrat Dash & Ors on 11 August, 2022
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 15998 OF 2016
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR State of Odisha & Anr. ..... Petitioners
-Versus-
Subrat Dash & Ors. ..... Opp. Parties
For Petitioners : Mr. S.N. Nayak,
Addl. Standing Counsel
For Opp. Parties : M/s. D.K. Panda, G. Sinha,
S. Behera and A. Mishra,
Advocates
[O.P.1]
Mr. P.K. Mohanty, Sr.Advocate
(O.P.3)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR. JUSTICE S. K. MISHRA
DECIDED ON : 11.08.2022
DR. B.R. SARANGI, J. By means of this Writ Petition, filed at the
instance of the State and its functionary, prayer has been
made to quash the common Order dated 13.01.2016
passed in O.A. No.109 (C) of 2012 and batch, as at
Annexure-3, whereby the Odisha Administrative
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Tribunal, Cuttack Bench, Cuttack has directed the State-
Petitioners to extend age relaxation to Opposite Party
No.1 and other Applicants in the connected Original
Applications against the vacancies in the post of
Assistant Agriculture Officer occurred prior to
15.07.2011, during which period the proviso to Rule-2 of
the Odisha Civil Services (Fixation of Upper Age Limit)
Rules, 1989 (in short Rules, 1989) was in force, with an
observation that in the event Opposite Party No.1 and
other Applicants are found eligible to such age relaxation,
their candidature may be accepted and if they have
already participated in the written test, their result
should be declared along with other candidates. If any of
the Applicants have not appeared in the written test and
are found eligible on the basis of age relaxation, a Special
Recruitment Test be conducted for them within a period
of one month and consequential action be taken for
declaration of result and for that requisite number of
posts be kept vacant. It has also been observed that the
said exercise, however, shall not be a bar for publication
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of result and issuance of appointment order of other
selected candidates.
2. The factual matrix of the case, in brief, is that
pursuant to an Advertisement was issued by Opposite
Party No.3-Odisha Public Service Commission for filling
up of the posts of Assistant Agriculture Officer, Opposite
Party No.1, having requisite qualification, applied for the
said post. As per criteria prescribed in the Advertisement,
a candidate must be under 32 years and above 21 years
of age as on 1st January, 2011, i.e., he/she must have
been born not earlier than 2nd January, 1979 and not
later than 1st January, 1990. As no recruitment was held
for the post of Assistant Agriculture Officer for more than
a decade and in the meantime, the candidates have
become overage, they would be deprived of appearing the
recruitment test in view of the upper age limit prescribed
in the Advertisement.
2.1 As per Proviso to Rule-2 of the Orissa Civil
Services (Fixation of Upper Age Limit) Rules, 1989, "if for
any reason applications have not been invited by the
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Authority competent to conduct examination during any
particular year to fill up the vacancies of that year,
Applicants, who would have been eligible if applications
were invited during that year, shall be eligible to compete
at the examination held in the subsequent year". In view
of this, Rules, 1989 will be applicable to Odisha
Subordinate Agriculture Service Rules, 1980 and while
publishing the Advertisement, the Authorities ought to
have stipulated the said Clause enabling the Applicants
to appear in the recruitment test by relaxing the upper
age limit.
2.2. As per information obtained under the Right to
Information Act, 2005 (for short "RTI Act, 2005"), out of
the sanctioned strength of 552 Jr. Agriculture Officers,
277 posts were vacant during the year 2005, 319 in 2007
and 326 in 2009, when the said posts were abolished and
upgraded to that of Assistant Agriculture Officer (Group-
B) in 2009. In the rank of Assistant Agriculture Officer,
118 posts were vacant in 2009 and it was increased to
415 in 2010, after the cadre strength of the Assistant
Agriculture Officer was increased to 1166 due to the up-
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gradation of 552 posts of Junior Agriculture Officer to
that of Assistant Agriculture Officer. In 2011, the vacancy
position of Assistant Agriculture Officer was increased to
479. The State Government brought an amendment to
the Orissa Civil Services (Fixation of Upper Age Limit)
Rules, 1989, in which Proviso to Rule-2 was deleted. This
amendment was notified by the G.A. Department on
14.07.2011 and it came into effect on 15.07.2011. In that
view of the matter, the vacancies which arose prior to
15.07.2011 are to be governed by the old Rules, i.e., un-
amended Rules, 1989 and the candidates are to get the
benefit of relaxation of age. As such, the Applicants, being
debarred from their legitimate right of age relaxation as
per the un-amended Rules, 1989, filed O.A. Nos.109(C)
223(C), 224(C), 226(C), 245(C), 246(C), 247(C), 248(C),
249(C), 250(C), 292(C), 293(C), 3496(C), 3497(C) and
3496 (C) of 2012.
2.3 The State-Petitioners filed their Counter
Affidavit before the Tribunal contending that as per
Rules, 1989, if for any reason applications were not
invited by the Authority competent to conduct
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examination during any particular year to fill up the
vacancies of that year, Applicants, who would have been
eligible, if applications were invited during that year, shall
be eligible to compete at the examination held in the
subsequent year. The said Proviso to Rules, 1989, has
been deleted by an amendment vide Para-3 of the G.A.
Department Notification dated 14.07.2011. Hence, the
relaxation of upper age limit in respect of Applicants does
not stand any merit after issuance of Notification dated
14.07.2011 of the G.A. Department. As a consequence
thereof, the State-Petitioners claimed before the Tribunal
for dismissal of the aforesaid Original Applications.
3. The Tribunal, after due consideration of the
rival contentions of the parties, vide Order dated
13.01.2016, came to a conclusion that since the
vacancies against the post of Assistant Agriculture Officer
occurred prior to 15.07.2011, during which period the
Proviso to Rule-2 of the Rules, 1989 was in force, the
benefit is admissible to Opposite Party No.1 and other
Applicants, therefore, allowed O.A. No.109(C) of 2012 and
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batch. Hence, the State-Petitioners have challenged the
said Order in this Writ Petition.
4. Mr. S.N. Nayak, learned Additional Standing
Counsel appearing for the State-Petitioners, contended
that by the time Advertisement was issued, if Opposite
Party No.1 and other Applicants incurred disqualification,
for having become overage, they are not entitled to
participate in the process of selection, because by that
time amendment to Proviso to Rule-2 of the Rules, 1989
was already made. Even if vacancies are prior to
15.07.2011, in that case Opposite Party No.1 and other
Applicants are not entitled to get the benefit, as directed
by the Tribunal. Thereby, it is contended that the Order
dated 13.01.2016 passed by the Tribunal in O.A.
No.109(C) of 2012 and batch should be quashed.
5. Mr. D.K. Panda, learned Counsel appearing for
Opposite Party No.1, contended that as per un-amended
Proviso to Rule-2 of Rules, 1989, if for any reason
applications have not been invited by the Authority
competent to conduct examination during any particular
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year to fill up the vacancies of that year, Applicants, who
would have been eligible if applications were invited
during that year, shall be eligible to compete in the
examination held in the subsequent year. In such
eventuality, since there was no recruitment made from
1991 to 2011 and vacancies are prior to 2011, Opposite
Party No.1, along with other Applicants, is eligible to
participate in the process of selection. The vacancies
relate to the period from 2005 to 2011, i.e., before
commencement of the amended Proviso to Rule-2 of the
Rules, 1989. To substantiate his contentions, he has
placed reliance on the judgments of the apex Court in
Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284;
P. Mohanan Pillai v. State of Keral, AIR 2007 SC 2840;
A.A. Calton v. Director of Education, (1983) 3 SCC 33;
State of Rajsthan v. R. Dayal, (1997) 10 SCC 419 and
B.L. Gupta v. M.C.D., (1998) 9 SCC 223.
6. Mr. P.K. Mohanty, learned Senior Counsel
appearing for Opposite Party No.3-Odisha Public Service
Commission, contended that in compliance of the interim
Order passed by the Tribunal, the result of the
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candidates has been kept in sealed cover, which shall be
subject to result of the Writ Petition. As such, it is
contended that since it is a year old case, he has not
received any further instructions as to what has
happened in the meantime.
7. This Court heard Mr. S.N. Nayak, learned
Additional Standing Counsel appearing for the State-
Petitioners; Mr. D.K. Panda, learned Counsel for Opposite
Party No.1; and Mr. P.K. Mohanty, learned Senior
Counsel appearing for Opposite Party No.3-Odisha Public
Service Commission, through hybrid mode. Pleadings
have been exchanged between the parties and with the
consent of learned counsel for the parties, the matter is
being disposed of finally at the stage of admission.
8. There is no dispute that Opposite Party No.1
and other Applicants have got requisite qualification for
the post of Assistant Agriculture Officer, save and except
some of them have become age barred because of the age
limit fixed in the Advertisement and they have been
deprived of appearing in the examination, even though
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they have fulfilled other requirements fixed in the
Advertisement. Therefore, the sole question, which
revolves round in this case for decision of this Court, is
whether proviso to Rule-2 of the Rules, 1989, which has
been deleted by way of an amendment vide Notification
dated 14.07.2011, published in Odisha Gazette on
15.07.2011, is applicable to Opposite Party No.1 and
other Applicants, when vacancies are prior to
15.07.2011?
9. As it appears, the last recruitment for the post
of Junior Agriculture Officer (Group-C), as per Odisha
Subordinate Agriculture Services Rules, 1980, was held
in the year 1994 and, thereafter, the post of Junior
Agriculture Officer was upgraded to Assistant Agriculture
Officer (Group-B) of Odisha Agriculture Service by way of
restructuring the cadre of Odisha Agriculture Service and
selection to such post was to be made through the OPSC,
vide Resolution No.4968-AFE-1(SP)27/2005-Ag. dated
17.02.2009 published in the Odisha Gazette on
07.03.2009. Pending framing of Rules, for the purpose of
regulating the Recruitment and Conditions of Service of
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Assistant Agriculture Officer (Group-B) under Article 309
of the Constitution, the State Government in Agriculture
Department issued instructions vide Resolution No.6812
dated 17.03.2011. Therefore, Odisha Subordinate
Agriculture Services Rules, 1980 are not applicable to
recruitment of the Assistant Agriculture Officer (Group-
B), whose Appointing Authority is the Government in
Agriculture Department. There is no dispute with regard
to the fact that during the period from 1991 to 2011,
neither the recruitment to the post of Junior Agriculture
Officer nor Assistant Agriculture Officer was made.
Though Opposite Party No.1 and other Applicants had
requisite qualification, but, as because no Advertisement
was made during that period even if vacancies were there,
they could not be able to get any opportunity to try their
luck. Now that some of them have become over-aged,
since the vacancies occurred prior to amendment of the
Proviso to Rule-2 of the Rules, 1989, which came into
force w.e.f. 15.07.2011, such vacancies should be filled
up as per old Rules, but not by the amended Rules.
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10. In Y.V. Rangaiah, P. Mohanan Pillai and
A.A. Calton (supra), the apex Court held that the
vacancies which occurred prior to the amendment to the
Rules would be governed by the old Rules and not by the
amended Rules and, as such, ordinarily the Rules, which
were prevailing at the relevant time, when the vacancies
arose, would be adhered to and the qualification must be
fixed at that time and the eligibility criteria as also the
procedure prevailing on the date of vacancies should
ordinarily be followed.
Similar view has also been taken by the apex
Court in R. Dayal (supra).
11. In B.L. Gupta (supra), the apex Court in
Paragraph-9 of the said Judgment held as follows:
"9. When the statutory rules had been framed in 1978,
the vacancies had to be filled only according to the
said Rules. The rules of 1995 have been held to be
prospective by the High Court and in our opinion this
was the correct conclusion. This being so, the question
which arises is whether the vacancies which had
arisen earlier than 1995 can be filed as per the 1995
Rules. Our attention has been drawn by Dr. Behta to a
decision of this Court in the case of N.T. Devin Katti vs.
Karnataka Public Service Commission. In that case
after referring to the earlier decision in the cases of
Y.V. Rangaiah Vs. J. Sreenivasa Rao, P. Ganeswar
Rao Vs. State of A.P. and A.A. Calton Vs. Director
of Education it was held by this Court that the
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vacancies which had occurred prior to the amendment
of the Rules would be governed by the old Rules and
not by the amended Rules".
12. In view of such position, vacancies which arose
prior to 15.07.2011 will be governed by the old Rules, i.e.,
un-amended Rules, 1989 and the candidates are to get
the relaxation in age notwithstanding anything contrary
contained in the Recruitment Rules. Therefore, this Court
is of the considered view that the Tribunal has not
committed any error apparent on the face of the record by
passing the Order dated 13.01.2016 in O.A. No.109(C) of
2012 and batch, which is hereby upheld.
13. Accordingly, the Writ Petition merits no
consideration and the same is hereby dismissed.
(DR. B.R. SARANGI)
JUDGE
S. K. MISHRA, J. I agree.
(S. K. MISHRA)
JUDGE
Orissa High Court, Cuttack
The 11th August, 2022, Alok/Padma
