2023 Supreme(Ori) 175

IN THE HIGH COURT OF ORISSA AT CUTTACK
A.K. Mohapatra, J.
Nagen Bhoi & Ors. – Appellants
Versus
State of Odisha & Ors. – Respondents
Writ Petition (C) No. 341 of 2023
Decided On : 24-01-2023

The Government has power to grant relaxation in upper age limit 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.

Headnote:

CONSTABLE (CIVIL) - FIXATION OF UPPER AGE LIMIT - AMENDMENT TO ORISSA CIVIL SERVICE (FIXATION OF UPPER AGE-LIMIT) RULES, 1989 - APPLICABILITY TO POLICE ORDER, 2021 - RELAXATION IN UPPER AGE LIMIT - POWER OF GOVERNMENT UNDER ORDER-17 OF POLICE ORDER, 2021 - EXERCISE OF.

Fact of the Case:

The Petitioners, qualified unemployed youth, challenged the impugned 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. The grievance of the Petitioners was mainly confined to the fixation of age criteria under Clause-4.a of the advertisement dated 30.12.2022 which fixed the upper age limit as 23 years as on 01.01.2022. The Petitioners contended that due to illegal fixation of upper age limit, they have been illegally debarred to apply for the job for which they have been waiting since long. They 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. The Petitioners also referred to the amendment made on 7.11.2022 to the Orissa Civil Service (Fixation of Upper Age-Limit) Rules, 1989 by which the upper age limit for entry into the service of Constable (Civil) was enhanced to 30 years for advertisement made during calendar years 2021, 2022 and 2023. They 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. The State-Opposite Parties contended 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 recruitment of Constables by the Odisha Police is governed 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.

Finding of the Court:

The Court held that the Orissa Civil Service (Fixation of Upper Age-Limit) Rules, 1989 as amended in the year 2022 has no applicability to the present recruitment process which is admittedly being done under the Police Order, 2021 and pursuant to the advertisement dated 30.12.2022. The Court further held 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. The Court also held that the ratio laid down in Devina Sharma' case (supra) squarely applies to the facts of the present case. Accordingly, the Court directed the Government to grant age relaxation to the aspiring candidates by taking resort to the Police Order, 2021 in respect of the years 2018 to 2022, i.e., for a period of 4 years.

Issues: 1. Whether the Orissa Civil Service (Fixation of Upper Age-Limit) Rules, 1989 as amended in the year 2022 is applicable to the present recruitment process which is admittedly being done under the Police Order, 2021 and pursuant to the advertisement dated 30.12.2022? 2. Whether the Government has power to grant relaxation in upper age limit? 3. Whether the ratio laid down in Devina Sharma' case (supra) squarely applies to the facts of the present case?

Ratio Decidendi: 1. The Orissa Civil Service (Fixation of Upper Age-Limit) Rules, 1989 as amended in the year 2022 has no applicability to the present recruitment process which is admittedly being done under the Police Order, 2021 and pursuant to the advertisement dated 30.12.2022. 2. 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. 3. The ratio laid down in Devina Sharma' case (supra) squarely applies to the facts of the present case.

Final Decision: The Court directed 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 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.