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