Khagendra Kumar Behera vs Commissioner Of Endowments
2023 Latest Caselaw 417 Ori

Citation : 2023 Latest Caselaw 417 Ori
Judgement Date : 11 January, 2023

Orissa High Court

Khagendra Kumar Behera vs Commissioner Of Endowments on 11 January, 2023

  IN THE HIGH COURT OF ORISSA AT CUTTACK

                     W.P.(C) No. 9032 of 2022
                     (Through hybrid mode)


Khagendra Kumar Behera                  ....           Petitioner

                            -versus-

Commissioner of Endowments,             ....   Opposite Parties
Odisha and others



Advocates appeared in the case:

  For petitioner          - Mr. Ambuja Kumar Das, Advocate

  For Opp. Parties        - Mr. A.K. Sharma, AGA
                            Ms. P. Naidu, Advocate



   CORAM:

             JUSTICE ARINDAM SINHA
             JUSTICE SANJAY KUMAR MISHRA
                          JUDGMENT

11.01.2023

ARINDAM SINHA, J.

1. Mr. Das, learned advocate appears on behalf of petitioner

and submits, challenge raised by his client in the writ petition is

appointment of opposite party no.5 as Executive Officer of Sri Radha

Kishore Jew and other deities at Thakurmahal in Balasore. He draws

// 2 //

attention to annexure-1 being advertisement dated 3rd December, 2019

for appointment of Executive Officer, issued by Endowment

Inspector, Balasore inviting applications from eligible persons for

being appointed. One of the eligibility criteria was that candidate

should be between ages 30 to 60 years. He submits, his client, as on

date of the advertisement, was older than 60 years of age and hence,

did not apply though otherwise he felt, he is eligible.

2. Subsequently his client came to know that opposite party

no.5 had been appointed as Executive Officer though he was over 60

years of age. Hence, his client is before Court. He relies on judgment

of the Supreme Court in Ramana v. International Airport

Authority of India (IAAI) reported in AIR 1979 SC 1628,

paragraph-10.

3. Mr. Sharma, learned advocate, Additional Government

Advocate appears on behalf of State.

4. Ms. Naidu, learned advocate appears on behalf of the

Commissioner and draws attention to proviso under sub-rule (1) in

rule 73 of Odisha Hindu Religious Endowments Rules, 1959. The

proviso is reproduced below.

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"Provided that in suitable cases the Commissioner shall have power to exempt any candidate from the operation of the above rule."

5. Inspite of valid service opposite party no.5 goes

unrepresented.

6. A passage from relied upon paragraph-10 in Ramana (supra)

is extracted and reproduced below.

"10. Now, there can be no doubt that what paragraph (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered 2nd class hotel or restaurant and he must have at least 5 years' experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by the 1st respondent and since the 4th respondents did not satisfy this standard or norm, it was not competent to the 1st respondent to entertain the tender of the 4th respondents. It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those

// 4 //

Standards on pain of invalidation of an act in violation of them."

(emphasis supplied)

7. It is entirely possible that petitioner decided not to apply on

appreciating he was over the age limit prescribed by the eligibility

criterion in the advertisement. That begs the question as to how

opposite party no.5 could or did apply. We are not inclined to further

probe.

8. The authority discharging functions of an executive authority

has the power vested by the proviso in the rule. However, it was

incumbent upon the authority to also indicate in the advertisement,

existence of such power. It would have put all candidates for the post

on notice, including those who were below 30 or above 60 years of

age, in hoping that in their case the power may be exercised. Same

would have resulted in a fair selection initiated by the advertisement.

9. Appointment order dated 29th October, 2021 issued by Deputy

Commissioner Endowment, Odisha, Bhubaneswar is set aside and

quashed. The authority is directed to forthwith initiate fresh selection

procedure for the appointment, indicating in it power of relaxation

provided by rule 73.