Nagen Bhoi & Others vs State Of Odisha And Others
2023 Latest Caselaw 719 Ori

             HIGH COURT OF ORISSA: CUTTACK

                    W.P.(C) No.341 of 2023,
                   W.P.(C) No.314 of 2023 and
                    W.P.(C) No.880 of 2023

In the matter of the applications under Articles 226 and 227 of the
Constitution of India.
                             -----------

W.P.(C) No.341 of 2023 Nagen Bhoi & Others ... Petitioners

- Versus -

State of Odisha and Others ... Opposite parties

For Petitioners ... M/s. S.K. Samal, S.P. Nath, S. Routray, S. Sekhar, J. Biswal, A.K. Das & M. Panda

For Opposite Parties ... Mr. B.P. Tripathy, Addl. Government Advocate

W.P.(C) No.314 of 2023 Rasmi Ranjan Behera & Another ... Petitioners

- Versus -

State of Odisha and Others ... Opposite parties

For Petitioners ... M/s. Budhadev Routray, S.K. Samal, S.P. Nath, S.D. Routrary, S. Sekhar, J. Biswal, A.K. Das, M. Panda & S.Ch. Bairiganjan // 2 //

For Opposite Parties ... Mr. B.P. Tripathy, Addl. Government Advocate W.P.(C) No.880 of 2023 Satyajit Pradhan & Others ... Petitioners

- Versus -

State of Odisha and Others ... Opposite parties

For Petitioners ... M/s. Rajib Rath & D. Mitra.

For Opposite Parties ... Mr. B.P. Tripathy, Addl. Government Advocate

--------------

PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 17.01.2023 Date of judgment : 24.01.2023

A.K. Mohapatra, J. The above noted writ applications along

with a batch of similar writ applications have been filed by

the Petitioners named therein challenging Clause-4.a of the

impugned advertisement dated 30.12.2022 issued by the

Opposite Party No.4 and for a further direction to suitably

modify the said Clause-4.a of the impugned advertisement

dated 30.12.2022. The Petitioners have also prayed for a

direction to the Opposite Parties to fix/relax the upper age // 3 //

limit, i.e., from 23 to 32 for UR (Five years relaxation in

respect of SC/ST/SEBC/Women candidates) in terms of the

Orissa Civil Service (Fixation of Upper Age-Limit) Rules,

1989 as amended by Notification No.771 dated 11.0.2022,

i.e., the Orissa Civil Service (Fixation of Upper Age-Limit)

Amendment Rules, 2022 and further for a direction to the

Opposite Party No.4 to allow the Petitioners to participate in

the open competitive examination for recruitment to the post

of Constables (Civil) pursuant to the advertisement dated

30.12.2022.

2. On perusal of the most of the writ applications, it

appears that the prayers made in each one of the writ

application are almost identical. Moreover, the factual matrix

involved in all the aforesaid writ applications are also similar.

Since the State Government has already filed a counter

affidavit in W.P.(C) No.341 of 2023, the facts of the said writ

application is being taken up for analysis. However, all the

above noted writ applications were taken up together for // 4 //

hearing and with the consent of the learned counsels

appearing in the above noted writ applications, all the above

writ applications are being disposed of by the following

common order. However, for the sake of brevity and

convenience, the factual background of the writ application

bearing W.P.(C) No.341 of 2023 is being discussed

hereinbelow.

3. The factual background of the above noted writ

applications which are almost identical, in brief, is that the

Petitioners, who are all qualified unemployed youth, came

across an advertisement dated 30.12.2022 issued by the

Chairman, State Selection Board, Odisha Police, Cuttack (in

short 'SSB') for recruitment of Constables (Civil) in different

districts and establishments in Odisha Police. On careful

scrutiny of the said advertisement dated 30.12.2022 under

Annexure-3 to the writ application, it appears that in total

4790 Constable (Civil) in 35 Districts/Establishments are

sought to be filled up through a recruitment process to be // 5 //

conducted by the SSB. The said advertisement also contains a

detail district/institutionwise breakup as well as categoriwise

breakup of number of posts intended to be filled up through a

recruitment process to be conducted by the SSB. The

advertisement also contains a clause for reservation of 10%

post of Constable (Civil) in each district for Home Guards in

each recruitment year. It also contains a reservation of 10% in

the notified vacancies in each district for Group-D employees

of Police Department in each recruitment year. The scale of

pay as has been prescribed in the said advertisement has been

fixed under the ORSP Rules, 2017 is Level-05 of the Pay

Matrix in the Scale of Pay (Rs.21,700-Rs.69,100).

4. The grievance of the Petitioners is mainly confined to

the fixation of age criteria under Clause-4.a of the

advertisement dated 30.12.2022 under Annexure-3 which is

quoted hereinbelow:-

"4. Age - a. The candidate shall not be less than 19 (eighteen) years of age and not more than 23 (twenty three) years of age as on 01.01.2022.

// 6 //

Note: Date of Birth recorded in the High School Certificate such as Board of Secondary Education of Odisha, Cuttack/Central Board of Secondary Education, New Delhi/Indian Council of Secondary Education, New Delhi or equivalent certificate issued by the concerned Board/Council will only be acceptable to the Board. b. The upper age limit is relaxable by years in respect of the SC/ST/SEBC/Women candidates. For ex- servicemen, the relaxation shall be for the entire period of service rendered in the Armed Forces.

     c.     The Home Guard candidates, who intend to apply
     for     the    post    of    Constables     (Civil)   in

District/Establishment, should not be more than 28 years of age as on 01.01.2022. Similarly, the candidates belonging to Group-D in the Police Department should not be more than 43 years of age as on 01.01.2022. However, a candidate can avail only one type of age relaxation as per Rules.

There are several other clauses in the advertisement.

However, the same are not relevant for the purpose of

adjudication of the dispute involved in the present writ

application. As such, the same are not noted here. However,

it is pertinent to mention here that as per the advertisement

dated 30.12.2022, the submission of online application form

which has commenced w.e.f. 30.12.2022 and the last date of

submission of online application has been fixed to // 7 //

21.01.2023 at 11.59 P.M. and the mode of application has

been prescribed to be online mode only.

5. On a perusal of the writ petition, this Court observed

that the Petitioners possess the minimum qualification of +2

Examination or equivalent examination conducted by the

Council of Higher Secondary Education, Odisha or other

recognized Board/Council and have registered their name in

their respective employment exchanges of the district.

Moreover, copies of such certificates have been filed along

with the writ applications. It is also pleaded in the writ

application that the Petitioners possess all the eligibility

criteria except the upper age limit criteria as has been

prescribed under the impugned advertisement. In the writ

application, it has been stated that due to illegal fixation of

upper age limit, the Petitioners have been illegally debarred

to apply for the job for which they have been waiting since

long.

// 8 //

6. The Petitioners have also categorically stated in the writ

application that the last advertisement for recruitment to the

post of Constable (Civil) was made in the year 2018 and after

a long gap of 4 years, the Opposite Parties have published the

impugned advertisement on 30.12.2022. It has also been

stated in the writ application that the number of vacancies

which have been notified in the impugned advertisement are

a net result of the vacancies accumulated over a period of 4

years ,i.e., starting from the year 2018 till end of 2022.

Therefore, they have pleaded in the writ application that had

the Opposite Parties issued advertisement and conducted

recruitment test each year, the Petitioners would have got the

opportunity to apply within the prescribed age limit of 23

years for UR Category and with additional 5 years relaxation

for the reserved category. As such, the delay and laches on

the part of the Opposite Parties have deprived the Petitioners

of an opportunity to apply for the advertised posts and to be

considered for appointment to such posts.

// 9 //

7. The Petitioners have also referred to the Covid-19

pandemic which had hit the entire nation starting from

March, 2020. As a result of the outbreak of Covid-19

pandemic, the Central Government as well as the State

Government had been imposing lockdown and shutdown

from time to time and the same continued till 2022.

Therefore, the examination/selection test to fill-up the

vacancies to many posts in the Government services could

not take place in the entire country including the State of

Odisha. As a result of which, many educated youth, who are

eligible to apply for appointment to such posts, were deprived

of such opportunity or got the opportunity at a very belated

stage. So far the present Petitioners are concerned, it has been

stated that most of them became age barred during such

pandemic. As a result of the same, the Government of Odisha

took a conscious decision to mitigate the worries of the

uneducated youth and, accordingly, the Orissa Civil Service

(Fixation of Upper Age-Limit) Rules, 1989 was amended on // 10 //

7.11.2022 and the following proviso was inserted

thereunder:-

"Provide further that for advertisement made during calendar years 2021, 2022 and 2023, the said upper age limit shall be 30 years."

8. In such view of the matter, the Petitioners by filing the

present writ applications have prayed that the upper age limit

for entry into the service of Constable (Civil) as has been

provided in the impugned advertisement be amended in the

light of the amendment made on 7.11.2022 to the Orissa Civil

Service (Fixation of Upper Age-Limit) Rules, 1989.

9. In the writ application, it has also been averred that the

age relaxation which was granted by the State by amending

Rules, 1989 on 7.11.2022 has been extended to almost all

services in the State of Odisha and, accordingly, it has been

prayed that the same benefit be extended to the present

Petitioners. Moreover, it has also been stated in the writ

application that the relaxation of upper age limit has already

been granted to the candidates, who had applied for // 11 //

appointment to the post of Traffic Constables under the

Commerce and Transport Department, Government of

Odisha. Further, it has been stated that since age relaxation

was not given to the candidates, who have applied to the post

of Warder in the Odisha Sub-Ordinate Jail Service, such

candidates approached this Court by filing a writ application

bearing W.P.(C) No.28377 of 2022. This Court while issuing

notice, as an interim measure, allowed such candidates to fill

up the form and to appear in the recruitment test.

10. Additionally, it has also been stated in the writ

application that the Order-17 of the Odisha Police Service

(Method of Recruitment and Conditions of Service of

Constables) Order, 2021 (in short "Police Order, 2021") also

provides that the Government has power to grant relaxation

in respect of any of the provisions contained in the said order

in respect of any class or category of employees. For better

appreciation, the said provision is quoted hereinbelow:-

// 12 //

"17. Relaxation: Where the Government on a reference made by the Director General and Inspector General of Police or otherwise, are satisfied that it is necessary or expedient so to do in the public interest, it may by order, for reasons to be recorded in writing, relax any of the provisions of these Order in respect of any class or category of employees."

11. A counter affidavit has been filed on behalf of the

Opposite Parties No.1 to 4. In the said counter affidavit, the

Opposite Parties have not disputed the factual aspect with

regard to steps taken by the Opposite Parties to fill up vacant

posts of 4790 Constables in different districts in the State of

Odisha under Odisha Police. They have also admitted about

the publication of the advertisement by the State Selection

Board inviting applications from eligible candidates to appear

in the recruitment test. Further, it has been stated that the

eligibility criteria prescribed in the said advertisement as per

the Police Order, 2021, the upper age limit as fixed by the

Government for Civil posts in terms of Orissa Civil Services

(Fixation of Upper Age-Limit) Rules, 1989 as amended in the

year 2022 is not applicable to the post of Constable. The

recruitment of Constables by the Odisha Police is governed // 13 //

under the Police Order, 2021 which has been framed by the

Government in exercise of power conferred under Section-2

of the Police Act, 1861. Therefore, the relaxation in upper

age limit as claimed by the Petitioners is not admissible under

the law.

12. In reply to the averment made in pargarph-6 to 8 of the

writ application, it has been stated in the counter affidavit that

the Orissa Civil Service (Fixation of Upper Age Limit),

Rules, 1989 is applicable only to the Recruitment Rules

which has been framed by Government in exercising powers

conferred under Article-309 of the Constitution of India. The

explanation clause under Rule-2 of the said rules is as

below:-

"Explanation: The 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 of Civil Post under the State and include executive orders and instructions issued by the competent authority for that purpose."

Therefore, it has been stated in the counter affidavit that

the Police Order, 2021 which has been framed by the // 14 //

Government in exercise of power conferred under Section-2

of the Police Act, 1861 is a special rule under a central statute

like the Police Act, 1861. Hence, the upper age limit fixed for

Civil post under Rules, 1989, which is admittedly rule framed

under the proviso to the Article-309 of the Constitution of

India, is not applicable for recruitment to the post of

Constable. In the aforesaid context, the provision of Section-

2 of the Police Act, 1861 has also been quoted in the counter

affidavit and the same is extracted hereinbelow:-

"2. Constitution of the force:- The entire police-establishment under a State Government shall, for the purpose of this Act, be deemed to be one police-force and shall be formally enrolled; and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.

[Subject to the provisions of this Act, the pay and all other conditions of service of members of the subordinate ranks of any police-force shall be such as may be determined by the State Government]."

13. With regard to Article-309 of the Constitution of India

and the rules framed under the provision to Article-309, it has // 15 //

been stated in the counter affidavit that such provisions in the

Constitution are all general in nature and the same does not

aim at providing detail rules for recruitment or conditions of

service of the Union or of the State service employees. In

other words, the power conferred under proviso of Article-

309 of the Constitution of India is an enabling provision and

is in the nature of stop gap arrangement. To be more specific,

the proviso to Article-309 of Constitution of India could be

resort to where there is no regular rule governing the field

and the life of the rule framed under proviso to Article-309 of

the Constitution of India is upto the time when a regular rule

is framed under the relevant statute. Further, the said proviso

under Article-309 of the Constitution of India does not cast

any objection on the State legislature to enact any rule or on

the President or the Governors to make rule with regard to

condition of service of civil servant.

14. In the counter affidavit, it has also been highlighted that

the framers of the Constitution have consciously separated // 16 //

the field of legislation between the State and the Union. The

Police Act, 1861 is a Central Act which comes under List-1

of the 7th Schedule of Constitution of India. Further, under

the Police Act, power has been conferred on the State to

regulate the service condition of police force by enacting

rules by the State legislature. Therefore, the Opposite Parties

in the counter affidavit have assailed that the Police Order,

2021 which has been framed by the State Government in

exercise of power conferred under Section-2 of the Police Act

stands independently and the same also occupies the field

and, therefore, the amended provisions of the Rules, 1989

shall have no application to the police service which is

governed under the Police Act and the Police Order, 2021. In

such view of the matter, it has been specifically averred in the

counter affidavit that the amended Rules, 2022 of the Rules,

1989 shall have no application to the recruitment process

which is under challenge in the present writ applications.

// 17 //

15. In the counter affidavit, the Opposite Parties have also

stated that the orders under Annexure-4 and Annexure-6 are

meant for Civil Services and Civil Posts and not for

Constable posts in the Police Department. Therefore, the

enhancement of upper age limit for entry into Government

services upto 38 years by the G.A. Department Notification

dated 11.01.2022 read with Notification dated 15.01.2022 for

the advertisement made during calendar year 2021, 2022 and

2023 in cases where upper age limit for entry into

Government services is 32 years is not applicable to the

recruitment into police force as has been done under the

impugned advertisement by the State Selection Board.

16. In reply to the averments made in paragraph-9 of the

writ application, it has been categorically stated in the

counter affidavit that the last recruitment to the post of

Constable was held during the year 2018. The present

advertisement which was issued on 30.12.2022 has been

published by taking into consideration the age as on // 18 //

01.01.2022. Further, the age criteria prescribed under the

Recruitment Rules for recruitment to the rank of Constable is

18 to 23 years. Therefore, there is a gap of 5 years between

minimum and maximum age limit prescribed. Since the

recruitment which is being made now pursuant to

advertisement dated 30.12.2022, the same is after a gap of 4

years from the last recruitment in the year 2018. In the

counter affidavit, it has been asserted that no revision in

upper age is required since the gap of 4 years in between two

recruitment tests is adequately covered within the minimum

and maximum age limit provided in the advertisement. In

such view of the matter, the Opposite Parties in the counter

affidavit have tried to justify that no prejudice has been

caused, as a result of delay in conducting the recruitment test

after a gap of 4 years. Moreover, it has also been stated in the

counter affidavit that considering the fact that the recruitment

is sought to be made to the rank of constable and post

recruitment the constable are required to perform field duty.

// 19 //

Therefore, it is necessary to recruit young and energetic

youth so that they can serve the citizens better by remaining

active and agile.

17. Heard Mr. S.D. Routray, learned counsel appearing for

the Petitioners in W.P.(C) Nos.314 and 341 of 2023 and Mr.

Rajib Rath, learned counsel appearing for the Petitioners in

W.P.(C) No.880 of 2023 and also other learned counsels

appearing for the Petitioners in the connected writ

applications. On behalf of the State-Opposite Parties, Mr.

B.P. Tripathy, learned Additional Government Advocate

advanced arguments. Perused the pleadings of the parties as

well as the written note of submissions submitted by both the

sides.

18. Mr. S.D. Routray, learned counsel appearing for the

Petitioners in W.P.(C) Nos.314 and 341 of 2023, at the

outset, submitted that the fixation of upper age limit in the

impugned advertisement under Annexure-3 dated 30.12.2022 // 20 //

(W.P.(C) No.314 of 2023) providing for upper age limit

under Clause-4.a of the advertisement and thereby candidates

who are not less than 18 years and not more than 23 years as

on 01.01.2022 have been allowed to participate in the

recruitment test for appointment to the rank of Constable. In

the said context, Mr. Routray, learned counsel appearing for

the Petitioners in W.P.(C) Nos.314 and 341 of 2023

contended that the fixation of such upper age limit of 23

years is in direct conflict with the Notification issued by the

G.A. & P.G. Department dated 11.1.2022. Further referring

to the said Notification under Annexure-6, he submitted that

the Orissa Civil Service (Fixation of Upper Age-Limit)

Rules, 1989 has been amended on 11.1.2022 by inserting

following lines through Rule-2 of 1989:-

"Provided further that for advertisement made during calendar years 2021, 2022 and 2023, the said upper age limit shall be thirty eight years."

In the aforesaid context, learned counsel for the

Petitioners submits that the Notification dated 11.01.2022 has // 21 //

been issued in exercise of power conferred under the proviso

to Article-309 of the Constitution of India and, accordingly,

the existing rule, i.e., Rules, 1989 has been amended and in

respect of 3 recruitment year, i.e., 2021, 2022 and 2023, any

advertisement to be made in the aforesaid 3 years, the upper

age limit shall be 38 years. In such view of the matter,

learned counsel for the Petitioner further contended that the

Rules, 1989 as amended in the year 2022 being a rule framed

under the proviso to Article-309 of the Constitution of India

is binding and shall apply to all recruitments in the State of

Odisha. He further contended that so far the recruitment to

the post of Constable under the impugned advertisement

dated 30.12.2022 is concerned, the aforesaid rule has not

been taken into consideration while publishing the

advertisement. Thus, learned counsel for the Petitioners

contended before this Court that the advertisement which is

under challenge in the present batch of writ applications is

illegal, arbitrary and the same is required to be set aside.

// 22 //

19. Learned counsel for the Petitioners in W.P.(C) No.314

and 341 of 2023 further argued that in view of the

extraordinary situation that arose due to outbreak of Covid-19

pandemic in the entire country including the State of Odisha,

no recruitment test was conducted during that time by any of

the agencies in the State of Odisha. Keeping the said fact in

mind, the G.A. & P.G. Department of Government of Odisha

came forward with a Notification dated 11.1.2022 thereby

amending the upper age limit as has been prescribed in the

Rules of 1989 and, accordingly, for all recruitment in the

State of Odisha to which 1989 Rules is applicable, the upper

age limit for such recruitment in respect of the recruitment

year 2021, 2022 and 2023 have been enhanced to 38 years,

i.e. by giving a relaxation of 6 years to all candidates by

enhancing the upper age limit from 32 years to 38 years for

recruitment to be made in the aforesaid 3 years only.

20. In view of the aforesaid amendment to the Rules,

1989, learned counsel appearing for the Petitioners in // 23 //

W.P.(C) No.314 and 341 of 2023 argued that the Odisha

Police has committed a gross illegality by not granting such

relaxation in upper age limit to the recruitments in police

service including the recruitment sought to be made through

the advertisement dated 30.12.2022. It was also argued that

the Rules, 1989 being a rule to Article-309 of the

Constitution of India is applicable to all recruitment made in

the State of Odisha. Therefore, the police services are also

included under the said rules and they are bound to follow the

rules of 1989 with amendment in the year 2022. On such

ground, Mr. Routray, learned counsel appearing for the

Petitioners in W.P.(C) No.314 and 341 of 2023 submitted

that the impugned advertisement is not in consonance with

rules of the year 1989. Accordingly the same is liable to be

quashed by this Court.

21. Mr. Rajib Rath, learned counsel appearing for the

Petitioners in W.P.(C) No.880 of 2023 asserted the impugned

judgment by submitting that the last recruitment to the rank // 24 //

of Constable in the State of Odisha took place in the year

2018. Thereafter, no recruitment test took place till the

impugned advertisement published on 30.12.2022. Therefore,

it was contended by him that from 2018 to 2022 many

eligible candidates have crossed upper age limit without

getting an opportunity to participate in the recruitment test.

Therefore, such candidates were denied an opportunity to be

considered for appointment to the post of Constable although

they have all other eligibility criteria to be considered for

appointment to the rank of Constable.

22. At the outset, Mr. Rath, learned counsel appearing for

the Petitioners in W.P.(C) No.880 of 2023 supplemented the

argument advanced by Mr. S.D. Routray, learned counsel

appearing for the Petitioners in W.P.(C) Nos.314 and 341 of

2023 with regard to applicability of the Rules, 1989 as

amended in the year 2022. He also contended that 1989 Rules

specifically deals with fixation of upper age limit and by

virtue of the amendment on 11.1.2022, the upper age limit for // 25 //

all categories for appointment in the State of Odisha was

enhanced from 32 years to 38 years for recruitment to be

made in the years, 2021, 2022 and 2023 recruitment years. It

was also argued that the said rule has been enacted under the

proviso under Article-309 of the Constitution of India.

Therefore, the same will override all other rules in force

prescribing the upper age limit including the Police Order,

2021. Furthermore, the amendment to 1989 Rules in the year

2022 being a latter one and a specific rule enacted taking into

consideration the Covid-19 pandemic scenario, it was argued

that the same will have overriding effect on all other relevant

rules in the State of Odisha prescribing the upper age limit to

enter into Government service in the State of Odisha. Since

the advertisement dated 30.12.2022 has not taken into

consideration the amendment to the 1989 Rules while fixing

the upper age limit, in such view of the matter, the learned

counsel for the Petitioners in W.P.(C) No.880 of 2023 // 26 //

submitted that the fixation of upper age limit at 23 years is

illegal and arbitrary.

23. In the aforesaid context, Mr. Rath, learned counsel

appearing for the Petitioners in W.P.(C) No.880 of 2023

further contended that the advertisement dated 30.12.2022

under Annexure-7 to W.P.(C) No.880 of 2023, no age

relaxation has been granted to the aspiring candidates,

although relaxation has been granted by enhancing upper age

limit from 32 years to 38 years in respect of all category of

Group-C post. He further contended that such relaxation has

been extended for recruitment to the post of Traffic Constable

by enhancing their upper age limit upto 38 years. The fixation

of upper age limit being a policy decision of the State

Government, it is not expected from the State Government to

act in an illegal and arbitrary manner while taking such

policy decision. Further, it was contended that right to be

appointed/selected is not a fundamental right. However, right

to be considered for such promotion is a right which flows // 27 //

from Article 14 and 16 of the Constitution of India and non-

consideration of the candidature for selection can always be a

subject matter of judicial review.

24. It was also argued by Mr. Rath that Home Guards have

no other source of employment except to avail the reservation

extended to them for recruitment to the post of Forest Guard,

Traffic Constable, Warder, Constable and Excise Constable.

Since no recruitment test took place since last 4½ years due

to outbreak of Covid-19 pandemic, therefore, the fixation of

upper age limit at 23 years is very harsh, arbitrary and

discriminatory and, as such, the same is unsustainable in law.

So far Home Guards are concerned, the upper age limit has

been confined to 28 years and no age relaxation has been

granted to the Home Guards who could not participated in

any recruitment test in between 2018 to 2022 as no

recruitment test took place during the said period. Therefore,

most of the candidates have became over aged without even

getting single opportunity to appear in the recruitment test for // 28 //

appointment to the rank of Constable. Additionally, in the

Police Order, 2021 under Order-5 Clause-III, there is a

stipulation that any Home Guard deserving to apply for

appointment to the post of constable must have completed 3

years of service without any interruption. In sum and

substance, Mr. Rath, argued that in view of the eligibility

requirement as well as the outbreak of Covid-19 pandemic

and non-holding of the recruitment test for last more than 4

years, many genuine and eligible Home Guard candidates

have been illegally debarred to participate in the recruitment

test.

25. Additionally, it was contended by learned counsel

appearing for the Petitioners in W.P.(C) No.880 of 2023 that

the Home Guard Rules, 1962 under Annexure-6 provides in

Rule-3 that the entry level age is 20 years and the retirement

age is 60 years and the educational qualification as prescribed

provides that the Home Guard must have passed lower

primary examination. On the contrary, the advertisement // 29 //

dated 30.12.2022 and the Police Order, 2021 stipulates that

for entry into service under the Home Guard category, a

Home Guard must have passed +2 Examination or any

Examination equivalent thereto and he must have completed

3 years of enrollment without any interruption on the date of

advertisement for recruitment. Further, a Home Guard must

not be above the age of 28 years as on 1st day of January of

the year of advertisement. In view of the provisions contained

in Police Order, 2021, no age relaxation whatsoever provided

to the candidates under the Home Guard Category although

they were performing their duties even during Covid-19

pandemic days. Such candidates did not get any opportunity

in between 2018 to 2022 as no recruitment test was held

during those years. As such, it was argued that the impugned

advertisement dated 30.12.2022 is grossly discriminatory and

arbitrary and unsustainable in law.

26. In course of his argument, Mr. Rath had drawn the

attention of this Court to the recruitment process of the // 30 //

Central Government to the post of Constable (GD) in Central

Armed Forces (CAPFs), SSF, Rifleman (GD) in Assam

Rifles and Sepoy in Narcotics Control Bureau Examination,

2022 and, accordingly, it was demonstrated before this Court

that the Central Government by taking into consideration the

extraordinary situation that had arise due to outbreak of

Covid-19 in the entire country and, accordingly, age

relaxation upto 3 years had been granted by the Central

Government in the advertisement which was published in the

month of October, 2022. A copy of the notice issued by the

Government of India, Ministry of Personnel, Public

Grievance and Pension was also placed before this Court. On

perusal of the said notice, it appears that the notice was

published in October, 2022 wherein the last date of

submission of online application was fixed to 30.11.2012 and

the examination has been fixed in January, 2023. On scrutiny

of the said notice, it appears that the Government of India

through concerned Administrative Department had intended // 31 //

to recruit 24369 Constables (GD) in respect of the services

mentioned hereinabove. Further, Clasue-5 of the said

advertisement prescribes the age limit and the same indicates

that the age limit is 18 to 23 years as on 01.01.2023.

However, the note appended to the Clause-5 reads as follow:-

"Note: Due to unprecedented 'Covid Pandemic', it has been decided by the Government to grant three (03) years age relaxation beyond respective prescribed upper age limit for all categories of the candidates as one-time measure for this recruitment."

It is also relevant to mention here that the aforesaid

three years relaxation has been allowed as a one-time

measure is in addition to the special relaxation granted to the

categories of SC/ST, OBC, Ex-Servicemen and other

deserving categories as mentioned in the said notice.

Referring to the aforesaid notice published in the year

2022 by the concerned Administrative Department of

Government of India for recruitment of Constables in Central

Armed Forces, learned counsel for the Petitioners in W.P.(C)

No.880 of 2023 submitted that the forces under the Central // 32 //

Government are required to perform much tougher job and

under the most adverse conditions. Therefore, physical fitness

of the personnel to be recruited under the said notice is a

paramount consideration. Even in such background, the

Government of India took a policy decision and decided to

grant relaxation in upper age limit while recruiting

Constables to the Central Forces preliminary on the ground of

outbreak of Covid-19 and failure to conduct recruitment

examination during such period. Therefore, it was contended

that Government of Odisha and Odisha Police by borrowing a

leaf from the policy book of the Government of India should

have adopted the same in respect of the recruitment in the

State of Odisha to the rank of Constable (Civil) in the larger

interest of justice. The Opposite Parties having failed to give

such age relaxation in the present matter have acted in an

unreasonable, arbitrary and discriminatory manner.

Therefore, the age fixed in the advertisement dated

30.12.2022 is illegal and arbitrary.

// 33 //

27. Similarly, a copy of the Gazettee Notification dated 25th

February, 2013 was also placed before this Court for

consideration. By virtue of the said Notification, the

concerned department of the Government of Odisha framed a

set of rules in exercise of power under proviso to Article-309

of the Constitution of India, which is known as Odisha

Transport-Traffic and Enforcement (Method of Recruitment

and Conditions of Service) Rules, 2013. On careful scrutiny

of the said rules, it appears that the upper age limit for

appointment under the said rules under Rule-6 has been

provided to be 21 years to 32 years on the 1st day of January

of the year of recruitment. Referring to the said Rules, 2013,

learned counsel for the Petitioners in W.P.(C) No.880 of

2023 submitted that Traffic Constables coming under Rule-

39(e) are to be selected by taking into consideration their

eligibility criteria as provided under Rule-6(b), i.e., the

candidate must have attained the age of 21 years and must not

be above the age of 32 years. Therefore, it was contended by // 34 //

the learned counsel for the Petitioners in W.P.(C) No.880 of

2023 that the conduct of the Opposite Parties in fixing upper

age limit at 23 years in the advertisement dated 30.12.2022 is

highly discriminatory and illegal.

28. Finally, Mr. Rath, learned counsel for the Petitioners in

W.P.(C) No.880 of 2023 concluded his argument by

submitted that undoubtedly the fixation of upper age limit is

a policy decision of the State Government. However, while

fixing such upper age limit, it is not open to the State

Government to fix a separate upper age limit, so far the

candidates in the present case are concerned and on the

contrary, adopting another set of criteria fixing the age limit

for recruitment to other services in the State of Odisha. Such

conduct of the Opposite Parties is not only opposed to the

public interest at large, but the same also creates a hostile

discrimination between two sets of employees in Group-C

posts, i.e., one for the recruitment to the Civil Post where the

upper age limit has been enhanced upto 38 years and another // 35 //

set for recruitment to the post of Constables under Police

Order, 2021 wherein the Petitioners age limit has been fixed

at 23 years. In such view of the matter, learned counsel for

the Petitioners in W.P.(C) No.880 of 2023 urged before this

Court that this Court should intervene in the mater and

modify the upper age limit as has been provided in the

advertisement dated 30.12.2022 as per Annexure-7 and

suitable relaxation be granted to the Petitioners and other

aspiring candidates.

29. Mr. B.P. Tripathy, learned Additional Government

Advocate appearing on behalf of the State-Opposite Parties

submitted at the outset that the issue involve in the present

writ applications are that (i) whether the Orissa Civil Service

(Fixation of Upper Age-Limit) Rules, 1989 as amended in the

year 2022 fixing the upper age limit to 32 years is ipso facto

applicable to Police Order, 2021; and (ii) whether the

Petitioners are entitled to any relief for relaxation of age by

Order-17 of Police Order, 2021.

// 36 //

30. Mr. Tripathy, learned Additional Government Advocate

while justifying the stand of the State-Opposite Parties,

defend the advertisement dated 30.12.2022. He has refereed

to clause-v of Order-5 of the Police Order, 2021 which

specifically provides the age limit for recruitment to the rank

of Constable, i.e., at the time of entry into the service, the age

of the candidate must not be less than 18 years of age and not

more than 23 years of age on the 1st day of January for the

year in which the advertisement for recruitment is published.

In the proviso to Order-5 of Police Order, 2021, the

relaxation in respect of reserved category candidates has been

preserved and protected. In reply to the Petitioners contention

that the fixation of upper age in the advertisement dated

30.12.2022 is illegal and arbitrary and the same is contrary to

the Rules, 1989 as amended in the year 2022, it was argued

that a bare reading of the provisions of the Rules 1989,

particularly Rule-2 would reveal that the same is applicable

for recruitment in civil services and/or civil posts in // 37 //

pensionable establishments under the State Government and

the upper age limit for entry in to Government Service shall,

therefore, be 32 years. Therefore, it was contended by Mr.

Tripathy, learned Additional Government Advocate that the

Rules, 1989 and the amendment thereto are applicable only to

Civil Services and Civil posts in pensionable establishments

and that the same has no applicability to the facts of the

present case. Further, referring to the explanation to Rule-2, it

was argued that the expression "recruitment rule" means the

rule framed under the proviso to Article-309 of the

Constitution of India regulating recruitment to any civil

service or civil post under the State. In such view of the

matter, learned Additional Government Advocate contended

before this Court that neither the Rules, 1989 nor the

amended thereto in the Year 2022 vide Gazettee Notification

dated 11.1.2022 giving age relaxation of upto 38 years in

respect of the advertisement made for recruitment in the

calendar years 2021, 2022 and 2023 is applicable to Civil // 38 //

Services or Civil Posts and that to the same has no

applicability, so far present recruitment to the post of

Constable (Civil) is concerned.

31. In his reply, Mr. Tripathy, learned Additional

Government Advocate argued before this Court that to fill up

4790 vacancies in the rank of Constable in different districts

of Odisha, the advertisement dated 30.12.2022 was published

by the State Selection Board inviting application form

eligible candidates to appear in the recruitment test. He

further contended that the advertisement contains clauses as

has been provided in the Police Order, 2021. Since the

present recruitment process is being carried out under the

Police Act and the Police Order, 2021, the provisions of the

Rules, 1989 and any amendment thereto has no application to

the facts of the present case.

32. It was also contended by Mr. Tripathy, learned

Additional Government Advocate that in exercise of power // 39 //

conferred under Section-2 of the Police Act, 1861, the Police

Order, 2021 has been framed by the State. Therefore, no

question can be raised with regard to the competence of the

State of Odisha in enacting the Police Order, 2021. He further

contended that the Police Act being a central statute enacted

by the Parliament and the said Act by virtue of Section-2 has

conferred power on the State to frame any rules to regulate

the police service in the State. As such, the upper age limit

prescribed in the Police Order, 2021 is applicable to the

exclusion of all other rules.

33. Learned Additional Government Advocate, in course of

his argument, very fairly admitted that the last recruitment to

the post of Constable was in fact made in the year 2018 and

thereafter, no recruitment test has taken place till the

advertisement dated 30.12.2022 published. Further, Referring

to the calculation of age as on 1.1.2022 and the age criteria

prescribed in the advertisement, it was argued that the gap

between the two recruitments is 4 years, therefore, the age // 40 //

gap of 5 years between the upper and minimum age limit

covers all the candidates. Therefore, the Petitioners are no

way prejudiced as each one of them must have got one

opportunity to participate in the recruitment examination.

Further, in view of the aforesaid argument, learned

Additional Government Advocate tried to justify that equal

opportunity have been provided to all the candidates.

34. Learned Additional Government Advocate referred to

Article 309 of the Constitution of India and by reading out

the entire article submitted before this Court that the Article-

309 of the Constitution of India deals with recruitment

conditions of services of persons serving in a Union or a State

and that the parent provision in Article-309 of the

Constitution of India confers power upon the Union or the

State, as the case may be, to regulate the service condition of

their employees. Referring to the proviso under Article 309

of the Constitution of India, it was argued that power has

been conferred under the President or the Governors to make // 41 //

rules regulating the recruitment and conditions of service of

persons until the appropriate legislature enacts a legislation

covering the subject matter in issue. He, therefore, argued

that the rules framed either by the President or by the

Governors, as the case may be, is a stop gap arrangement and

the same shall remain valid till the appropriate legislature

enacts the rules in respect of the subject matter in issue. In

such view of the matter, learned Additional Government

Advocate contended before this Court that the Police Order

being a special rule framed by the State in exercise of power

under Section-2 of the Police Act shall governed the field

and, therefore, the field is already occupied. Hence, the Rule,

1989 as amended in the year 2022 is not allowed to operate

on the field which has already been occupied by a regular set

of rules enacted by the State legislature.

35. With regard to grant of relaxation in upper age limit, the

learned Additional Government Advocate contended that the

relaxation in upper age limit which have been granted to the // 42 //

Civil Services/Civil Posts are not applicable to the police

service including to the posts of Constable, as is the case of

the present writ applications. In support of such contention,

learned Additional Government Advocate further argued that

the nature of duty performed by the police is very unique and

mostly they are required to perform field duties, for which,

their physical fitness is of paramount consideration.

Therefore, the post in police services cannot be equated with

any civil post. In the said context, he also referred to Section-

2 of the Police Act, 1861 which provides for constitution of

police forces in the State and to impress upon this Court that

such forces stand in a different footing than any other civil

services/civil posts in the Sate. Learned Additional

Government Advocate further led emphasis on the nature of

job performed by the Constables like the law and order and in

the Anti-Naxal operations etc. Keeping in view of the level of

fitness, i.e. required to perform such type of duties, the

legislatures in their wisdom have enacted the police order // 43 //

wherein they have provided the upper age limit to be 23 years

at entry into police service under the Police Order, 2021.

36. Learned Additional Government Advocate in support of

his contention that the Police Order, 2021 is the only legal

root through which recruitment are to be made to the post of

Constable (Civil) in Odisha Police Service and no other rule

can intervene contrary to conditions laid down in the Police

Order, 2021. In the said context, learned Additional

Government Advocate relied upon the judgments of the

Hon'ble Supreme Court in the cases of B.S. Vandara Vrs.

Union of India, reported in 1969 AIR 118; A.B. Krishna

and Others v. State of Karnataka and Others, reported in

(1998) 3 SCC 495; D.R. Yadav and Another v. R.K. Singh

and Another, reported in (2003) 7 SCC 110; and Union of

India & Others v. Somasundram Viswanath & Others,

reported in (1989) 1 SCC 175. Since the proposition of law

sought to be advanced by the learned Additional Government

Advocate is a well settled principle of law and the judgments // 44 //

relied upon by the learned Additional Government Advocate

deals with a common proposition of law, this Court deems it

proper not to repeat the same here.

37. Learned Additional Government Advocate argued that

the grant of relief in any writ application is directly link to the

nature of rights possessed by the Petitioners and the said

context, he further submitted that a writ of mandamus can

only be granted in case where right flows from a statutory

provision in favour of the Petitioner or any case where such

legal right has been infringed by the conduct of the Opposite

Parties.

38. In reply to Order-17 of the Police Order, 2021

providing for grant of relaxation, learned Additional

Government Advocate contended that such a power can only

be exercised by the Government subject to satisfaction that

exercise of such power is necessary and expedient to do so in

the public interest. Therefore, the relaxation clause can only // 45 //

be invoked in the present circumstances by the State in a

manner as has been provided under Order-17 of the Police

Order, 2021. He further contended that such relaxation can

not be claimed as a matter of right. It is also contended that

the grant of relaxation of rule is an exception and such power

is to be exercised sparingly. Further, the power of relaxation

of rule cannot be exercised to accommodate a few persons

simultaneously denying equal opportunity to all other eligible

persons. Accordingly, the learned Additional Government

Advocate prayed for dismissal of the writ application.

39. Having heard the learned counsel for the respective

parties and upon careful consideration of the rival contentions

raised and upon a careful scrutiny of the pleadings as well as

the materials placed before this Court for consideration, this

Court is of the view that preliminary two questions are

involved in the present writ applications which requires to the

adjudication are (i) with regard to applicability of 1989 Rules

as amended in the year 2022 to the present recruitment which // 46 //

is admittedly being done under the Police Order, 2021 and

pursuant to the advertisement dated 30.12.2022; and (ii)

whether in view of the admitted position that the last

recruitment to the post of Constable (Civil) took place in

July, 2018 and also in view of the fact that no recruitment

could take place in view of the outbreak of Covid-19

pandemic and similar relaxation have been granted in respect

of other services either by the State Government or by the

Central Government where such relaxation can be granted to

the present Petitioners?

40. So far the first question is concerned, this Court upon a

careful perusal of the Rules, 1989 and the amendment in the

year 2022 observed that the 1989 Rules is a rule framed

under the proviso to Article-309 of Constitution of India by

the Governor of Odisha. Such rule clearly provides that the

same has been framed to regulate the method of recruitment

in Civil Services and/or Civil Post in pensionable

establishment under the State-Government. Further, the // 47 //

explanation added to the Rule-2 also provides that the

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 of Civil Post

under the State and including executive orders and

instructions issued by the competent authority. Therefore,

there is no doubt that 1989 Rules was framed by the

Governor of Odisha under proviso to Article-309 of the

Constitution of India to regulate and fix the upper age limit,

so far the Civil Services and Civil Posts in the State of

Odisha are concerned, whereas the Police Order, 2021 has

been framed by the State in exercise of the power conferred

under Section-2 of the Police Act which specifically provides

that subject to the provisions of Police Act, the pay and all

other conditions of service of members of the subordinate

ranks of any police force shall be such as may be determined

by the State Government. Further, in exercise of such power

conferred upon the State Government, the State Government // 48 //

has framed the Police Order, 2021 to regulate the pay and all

other conditions of service of Constables in the State of

Odisha. It is to mention here that the Police Order, 2021

specifically provides that minimum age limit for appointment

as a Constable is 18 years and the upper age limit for such

appointment shall be 23 years. Accordingly, the Opposite

Parties have issued the advertisement dated 30.12.2022 which

is in consonance with the eligibility criteria prescribed in

Police Order, 2021. On the contrary, the Rules, 1989 being a

rule under the proviso to Article-309 of the Constitution of

India is basically in the nature of interim arrangement/stop

gap arrangement till the regular rules are framed by the

appropriate legislature. Once the appropriate legislature

enacts the rules, then the field of legislation becomes

occupied and no other legislation shall governed the field

except the relevant rules which have been framed by the

appropriate legislature to govern the field. The legislative

competence of the State to enact the Police Order, 2021 // 49 //

remains undisputed. Therefore, since a valid enactment in the

shape of Police Order, 2021 is holding the field by applying

the principle of occupied filed, all other legislations that

makes an attempt to encroach upon the said field are void and

unconstitutional. In such view of the matter, the 1989 Rules

as amended in the year 2022 shall have no application to the

present recruitment process and this Court is of the

considered view that the Opposite Parties have rightly

proceeded by following the Police Order, 2021, so far

impugned advertisement is concerned. Accordingly, this

Court holds that the 1989 Rules as amended in the year 2022

has no applicability to the facts of the present case.

41. Moving on to the next question, i.e., whether the

Petitioners and other eligible aspirants, who have crossed the

upper age limit of 23 years, are eligible to get any relaxation

in upper age limit needs to be considered at this stage.

// 50 //

42. On perusal of the Police Order, 2021, this Court

observes that Order-17 provides for relaxation in applicability

of the rules under Police Order, 2021 subject to certain

conditions. Further upon a scrutiny of the Order-17 of Police

Order, 2021 reveals that where the Government on a

reference made by the Director General and Inspector

General of Police or otherwise, which means that on a

reference made by the Director General and Inspector

General of Police or otherwise upon satisfaction that it is

necessary or expedient so to do in the public interest can

relax any other provision in the Police Order, 2021.

Therefore, Order-17 confers power on the State Government

to exercise the power of relaxation on its own or upon getting

information from any other source other than reference made

by Director General and Inspector General of Police.

Therefore, it is not necessary that the Director General and

Inspector General has to make a reference in each and every

case.

// 51 //

43. After coming to a conclusion that the Government has

power to grant relaxation on its own motion or upon getting

intimation from any genuine or bona fide source can grant

such relaxation subject to the condition that the Government

is satisfied that the exercise of such power is in public interest

and such relaxation can only be granted by a reasoned order

recording therein the reasons of satisfaction and such

relaxation can be granted in respect of any of the provisions

of the order. Therefore, there is no doubt that the State

Government has power to grant such relaxation in the upper

age limit provided the same is considered to be in public

interest. It is a matter of record that last recruitment test to the

rank of Constable took place in the year 2018. Thereafter, no

recruitment test whatsoever was held for appointment to the

rank of Constables in the State of Odisha. Further, the

scenario during the period of Covid-19 pandemic in the entire

State is no unknown to anybody. Many candidates who have

attained the majority of 23 years, i.e., upper age limit // 52 //

between 2018 to 2022 must not have got the opportunity to

appear in the recruitment test. Therefore, they were debarred

from getting an opportunity to be considered for selection and

appointment to the post of Constable in Odisha Police.

44. In the context of relaxation of upper age limit, learned

counsel for the Petitioners relied upon a judgment of this

Court in the case of Sujit Kumar Padhy v. State of Odisha &

Ors. (W.P.(C) No.36126 of 2021 decided vide judgment

dated 23.12.2022). In the aforesaid case, the Petitioners

sought for a direction from this Court to the Opposite Parties

to accept their application to participate in the recruitment

test for the post of Odisha Education Service Officers in

Group-B under School & Mass Education Department. The

case of the Petitioner was that he was eligible to be appointed

such post. However, his application was not accepted as he

was over aged by 6 months. On perusal of the judgment, it

appears that the age limit in the said case was 21 years to 32

years with 5 years relaxation for special category candidates // 53 //

like S.C. & S.T., S.E.B.C. and Ex-Servicemen etc. The

Petitioner who belong to Ex-Servicemen Category applied for

the post. However, at the time of application, he was 37 years

6 months old. Therefore, he was over aged by 6 months. In

the ultimate analysis, a coordinate Bench of this Court

observed that the advertisement which was intended to be

issued in the year 2019 has to be postponed owing to the

Covid-19 pandemic and, accordingly, it was decided to

consider the case as a special case and further taking into

consideration the fact that the vacancies are to be filled up

every year and the same having not been followed in that

case, the coordinate Bench by referring the judgment of the

Hon'ble Supreme Corut in the case of High Court of Delhi

vs. Devina Sharma (Civil Appeal No.216 of 2022, arising

out of SLP (C) No.4452 of 2022) concluded that the case of

the Petitioner deserves to be considered sympathetically in

the facts and circumstances of the case and, accordingly, // 54 //

allowed the writ petition by granting opportunity to the

Petitioner as a one-time measure.

45. Learned Additional Government Advocate referred to

an order dated 17.03.2022 passed by this Court in W.P.(C)

No.6900 of 2022 (Pratap Kumar Bhuyan v. State of Odisha

and others) and, accordingly, submitted that the Division

Bench of this Court was considering grant of age relaxation

to the candidates, who were interested to appear in Odisha

Judicial Service (OJS). The Division Bench of this Court vide

its order did not interfere and did not grant the relief sought

for by the Petitioner on the ground that the Notification of the

G.A. Department dated 11.1.2022 ipso fact does not apply to

the recruitment of OJS officers and the recruitment of OJS

officer are governed by a separate set of rules and the power

for relaxation under the 2007 Rules in the shape of Rule-47

reveals that relaxation can only be granted by the

Government in consultation with the High Court. On perusal

of the said order, this Court is of the considered view that the // 55 //

said order does not indicate the factual background of the

case and it only considered the applicability of Notification

dated 11.1.2022 to the recruitment of OJS Officers. Further,

no issue was finally adjudicated vide order dated 17.3.2022.

Therefore, this Court is of the considered view the said oral

order cannot be treated as having any binding precedent

moreover the facts of the said case are unknown. Therefore,

the aforesaid order dated 17.03.2022 has no applicability to

the facts of the present case.

46. In the case of High Court of Delhi (supra), the Hon'ble

Supreme Court was called upon to adjudicate the validity of

upper age limit of 32 years for appearing in the Delhi Higher

Judicial Service Examination and the minimum age

requirement of 35 years for appearing in the Delhi Higher

Judicial Service Examination. In the Delhi Judicial Service

Rules, 1970, it has been stipulated that the a candidate shall

be eligible to appear at the examination if he is not more than

32 years of age on the 1st day of January following the date of // 56 //

commencement of the examination, which was subsequently

amended and it was provided that the candidate shall appear

at the examination if he is not more than 32 years of age on

the 1st day of January of the year in which the applications for

appointment are invited. It is noteworthy to mention here that

the High Court of Delhi conducted the last examination for

recruitment to the DJS in 2019.

47. A common ground was taken before the Court that no

examination was held in the year 2020 for institutional

reasons and in 2021 due to the onset of the Covid-19

pandemic. The specific stand taken was taken before the

High Court that the candidates who would have qualified in

terms of the upper age limit of 32 years for DJS would now

cease to be eligible by virtue of the fact that the examination

is being held in March 2022. It was argued before the High

Court that had the candidate been allowed to appear in the

examination on schedule in year 2020 and 2021, then they

would have got an opportunity to participate in the // 57 //

examination since they were within the age limit of 32 years

for the relevant years. The Delhi High Court, as an interim

measure, directed the date for receiving applications shall be

rescheduled to a date after the next date of hearing and the

date of holding the examination shall also be postponed.

Aggrieved by such interim order of a Division Bench of the

Delhi High Court, the Delhi High Court approached the

Hon'ble Supreme Court by filing the SLP as noted

hereinabove. Thereafter, to adjudicate the matter finally, the

Hon'ble Supreme Court transferred all the pending writ

applications to the Supreme Court and the matter was taken

up for final hearing on merit.

48. In paragraph-19 of the judgment of the Hon'ble

Supreme Court, it has been observed as follows:-

"19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit // 58 //

of 32 years, for the recruitment years 202 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state fo uncertainty. The existing candidates can have no grievance by the widening of the competition. In order to facilitate this exercise, we accept the suggestion of the High Court that the last date for the receipt of application forms shall be extended to 3 April 2022 and the examination shall be held on 24 April 2022. We direct that no impediment shall be caused in the conduct of the examination and no court shall issue any order of stay at variance with or contrary to the above directions of this Court."

49. In paragraph-28 of the judgment of the Hon'ble

Supreme Court, it has been observed as follows:-

"28. During the course of the hearing, this Court has been apprised of the fact that several applicants for the higher judicial service examination would have qualified in terms of the upper age limit of 45 years in 2020 or, as the case may be, 2021. As a matter of fact, Mr. A D N Rao indicates that he has instructions to the effect that some of those candidates may already have or would be in the process of moving petitions before the High Court. The reasons which have weighed with this Court in allowing the High Court, as a one-time measure, to permit candidates for the DJS examination who had qualified in terms of the upper age limit of 32 years during the recruitment years 2020 and 2021, should on a parity of reasoning be extended to candidates for the DHJS examination who would have qualified in terms of the upper age limit of 45 years during the recruitment // 59 //

years 2020 and 2021 during which no examinations could take place for the reasons which have been noticed earlier."

50. Further, in paragraph-29 of the judgment of the Hon'ble

Supreme Court, it has been observed as follows:-

"In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations."

With the aforesaid conclusion, the Hon'ble Supreme

Court extended the last date of receipt of application to 26th

March 2022 while the examination was directed to be held on

3rd April 2022, in those terms as has been stated before the

court.

51. In view of the judgment delivered by the Hon'ble

Supreme Court in the case of Devina Sharma's case (supra),

this Court is of the considered view that the factual

background with regard to relaxation of upper age limit is

somewhat similar to the facts of the present case. In the

present case, admittedly the last recruitment examination was // 60 //

conducted in the year 2018. Although vacancies must have

arisen in the years 2018, 2019, 2020, 2021 and 2022, no

recruitment examination was held during the aforesaid time.

Further, due to onset of Covid-19 pandemic from March,

2020 till mid of 2022, no recruitment examination was held

by any of the recruiting agency in the State of Odisha.

Therefore, it is not a case that the candidates have missed the

opportunity for their own fault, rather to their misfortune, the

recruitment test could not be held during the aforesaid period.

Keeping in view the mandates of the Constitution of India

that everybody must be provided an equal opportunity to

participate in the recruitment test for appointment to any

Government job, this Court is of the considered view that the

ratio laid down in Devina Sharma' case (supra) squarely

applies to the facts of the present case. Accordingly, this

Court has no hesitation in directing the Government to grant

age relaxation to the aspiring candidates by taking resort to // 61 //

the Police Order, 2021 in respect of the years 2018 to 2022,

i.e., for a period of 4 years.

52. Since the benefit of age relaxation is being granted for a

particular period to all eligible candidates, therefore, in the

considered view of this Court, no candidate is likely to be

affected and no prejudice would be caused to the candidates

who have already submitted their application in the

meantime.

53. Finally, with regard to the apprehension expressed by

the learned Additional Government Advocate that by

permitting older candidates above 23 years of upper age

limit, the Police Department would have to compromise with

fitness of the persons likely to be appointed as Constables.

Such apprehension according to this Court, is baseless. The

candidates found otherwise eligible are required to undergo

rigorous physical fitness test. Only after clearing such fitness

bar, the candidates are going to be finally selected and // 62 //

appointed. This Court only proposes to grant age relaxation

not the fitness relaxation as would be fixed by the competent

body. Therefore, such apprehension of the learned Additional

Government Advocate has no substance in it and the same is

accordingly discarded.

54. In view of the aforesaid analysis, this Court directs that

the Additional Chief Secretary to Home Department,

Government of Odisha in exercise of power under Order-17

of the Police Order, 2021 shall grant relaxation in the upper

age limit upto 4 years as a one-time measure by taking into

consideration the grounds stated hereinabove. It is further

directed that there is no necessity to cancel the entire

advertisement, instead the State Selection Board shall publish

a proposed Corrigendum by granting age relaxation of 4

years by 30th January, 2023. Further it be directed in the said

Corrigendum that the application of the candidates, who

come within the aforesaid upper age relaxation limit, shall be

submitted through both online as well as (offline) manual // 63 //

mode by 10th February, 2023. Accordingly, a fresh date for

holding the recruitment examination, as would be found

suitable, be fixed afresh in the week commencing 20th

February, 2023 and the same be notified by the State

Selection Board. The applicants who have already submitted

their applications need not apply afresh again.

55. With the aforesaid observations and directions, the writ

applications are allowed. However there shall be no order as

to cost.

56. Before parting with, this Court would like to make it

clear that as an one-time measure and keeping in view the

peculiar and extraordinary factual background of the present

case, direction has been given to the Government to grant

relaxation in the upper age limit for the recruitment

examination involved in the present writ applications.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 24th January, 2023/D. Aech, P.A.