Judgment

B.L.HANSARIA, J.

(1) A challenge was made before the orissa Administrative tribunal to some portion of the proviso to Rule 5(1 of orissa District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983, hereinafter the Rules; so also to certain part of Rule 6(1 of the Rules. The tribunal has accepted the challenge. Hence these appeals.

(2) RULE 5(1 deals with the eligibility conditions of direct recruitment and has, inter alia, provided that the candidate must be below 28 years. This finds place in clause (b) which has the following proviso :

"PROVIDED that the maximum age-limit may be relaxed by five years in case of candidates belonging to the Scheduled Castes and Scheduled Tribes and up to five years in case of candidates having actual work experience in Settlement/Consolidation, and to such extent in case of candidates of such other categories as government may, by general or special order, specify from time to time."

(3) THE challenge was to the underlined portion of the proviso. As to this, the tribunal has stated that the same has conferred unbridled power; there being no guidelines for invoking this power. We are, however, of the view that the challenged portion of the proviso does contain some guidelines. The first is that the categories in relation to which the power can be invoked has to be analogous to the two categories specifically mentioned in the rule. To us this appears to be the clear intention, as in the first part of the proviso mention has been made to some categories, and so, "other categories" have to be akin to them, like Other Backward Classes. This apart, as the power has been conferred on the government and can be exercised only by issuing general or special order, a presumption of invoking the power in appropriate cases only is permissible to be drawn. Further, the extent to which maximum age-limit may be relaxed cannot also be unlimited, as in the case of candidates belonging to Scheduled Castes and Scheduled Tribes, as well as for other categories of candidates mentioned in the first part of the proviso, the limit is of five years. We are of the view that the relaxation in case of other categories cannot also exceed five years.

(4) WE, therefore, do not agree with the tribunal in the view it has taken about the power in question being unguided.

(5) THE next rule to be challenged is a part of Rule 6(1 which reads as below:

"DIRECT recruitment to the cadres of Revenue Inspectors, Amins and Collection Mohamrs for the district shall ordinarily be made annually by the Collector, who shall invite applications from the candidates of the district through advertisement in the newspapers of the State."

(6) THE offending portion of this rule are the words "from the candidates of the district". Shri Panda appearing for the appellants has submitted in this connection that this is ordinary requirement because of the word ordinarily appearing in the sub-rule. We are, however, of the view that the word ordinarily as used and placed in the sub-rule, refers to the periodicity which is has no connection with the place of residence of the

(7) AS to this part of the sub-rule, it has been pointed out by the tribunal that the same is in conflict with Article 16(2 of the Constitution, which has been laid down that no citizen shall be discriminated against, inter alia, on the ground of "place of birth, residence or any of them". The aforesaid part of the sub-rule is thus clearly violative of the aforesaid prohibition and has, therefore, rightly been held to be ultra vires.

(8) WE, therefore, reverse the view taken by the tribunal qua the proviso to Rule 5(1, subject to the observations made by us relating to its real purport and reach, but affirm its view as regards the challenged part of Rule 6(1. As the selection had, however, been made on the basis of the applications which had been invited from the candidates o