IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.3321 of 2024
State of Odisha and others …. Appellants
Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)
-Versus-
Bisheshawar Biswal and others …. Respondents
Represented by Adv.–
Miss Pami Rath, Sr. Advocate
W.A. No.3385 of 2024
State of Odisha and others …. Appellants
Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)
-Versus-
Laxmidhar Jena and others …. Respondents
Represented by Adv.–
Mr. B.P.B. Bahali, Advocate
W.A. No.3464 of 2024
State of Odisha and others …. Appellants
Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)
-Versus-
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Hapina Nayak and others …. Respondents
Represented by Adv.–
Mr. Rajib Rath, Advocate
CORAM:
THE HON’BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON’BLE MR. JUSTICE M.S. SAHOO
ORDER
Order No. 24.03.2025
03. 1. Mr. Bahali, learned advocate appears on behalf of
respondents in the appeal tagged together, lead case being W.A.
no.3321 of 2024 (State of Odisha and others v. Bisheshawar
Biswal and others).
2. He straightaway draws our attention to impugned
judgment dated 5th December, 2024, paragraphs 13, 17 to 20, 24
and 25. He lays emphasis on decision of the Supreme Court in
High Court of Delhi v. Devina Sharma reported in (2022) 4 SCC
643 and views taken by the Delhi High Court in Nitish Kumar v.
Union of India and Anurag Sharma and others v. CRPF.
3. Moving on to notification dated 13th September, 2022
carrying the order of 2022 he points out to paragraph-5 giving
eligibility criteria for recruitment as made subject to other
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provisions in the order. He clarifies, his submission is in the
alternative that, if we sustain contention and argument made by
Ms. Rath, learned senior advocate, then the eligibility criteria being
subject to paragraph-21 will add to it. He submits further, under
clause (c) in the paragraph, there is relaxation contemplated in
respect of reserve candidates. Exceptional circumstances of
COVID-19 should also allow the relaxation in favour of his clients.
He next refers to paragraph-8 in the order to submit that clause-(1)
thereunder would indicate annual recruitment process.
4. Mr. Bahali hands up a brief of orders made by the Supreme
Court in Writ Petition (C) no.183 of 2013 (Manish Kumar v.
Union of India and others) and petition for Special Leave to
Appeal (C) no.12569 of 2018 (Rajendra Singh and others v.
The State of U.P. and others). Included in the brief are orders
made in W.P.(C) (PIL) no.6622 of 2019, pending in this Court
pursuant to final order dated 11th March, 2019 made in Manish
Kumar (supra). Copies of the orders have been made over to Mr.
Kar, learned advocate, Government Advocate assisting Mr.
Acharya, learned senior advocate, Advocate General, appearing for
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appellant. Lastly, Mr. Bahali relies on internal communication
dated 5th July 2021, text of which is reproduced below.
“Inviting reference to the proposal of State Police
Headquarters on the subject cited above, I am
directed to say that Government have been pleased to
relax the provisions of Rule 4 of Odisha Police
Service (Method of Recruitment and Conditions of
Service of Constables) Order, 2010 read with Rule 3
of Odisha Police Service (Method of Recruitment and
Conditions of Service of Constables) Amendment
Order, 2013 to fill up of 100% vacancies in the rank
of Constables in districts for the year 2021 on one
time basis, by way of redeployment instead of 20% in
view of the urgent need of strengthening Civil Police
during COVID-19 pandemic situation.”
5. Mr. Rath, learned advocate appears on behalf of
respondent in W.A. no.3464 of 2024. He draws attention to
paragraph 8 in the 2022 order. He submits, the vacancies have
been provided for as existing and anticipated. Existing
vacancies in a calendar year would include vacancies arisen in
the period no recruitment was conducted. There has been no
recruitment since year 2018. In considering the existing
vacancies the learned single Judge had directed one time
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relaxation of upper age limit by six years reckoned from year
2018. This reasoning cannot be interfered with because it is
based on paragraph 8(1) of the order itself. He moves on to the
relaxation provision by paragraph 21. He points out, there is
separation in providing for relaxation, between class and
category of employees. The order constitutes part-A and part-B.
Part A relates to candidates as a class and part B is in respect of
promotion and therefore applicable to categories of employees.
As such the paragraph empowers relaxation being made. Even
otherwise than on equity, there be confirmation of impugned
judgment on the direction for relaxation.
6. With reference to article 309 in the Constitution of
India Mr. Rath submits, where in case of a State there is no
rule, it is competent for the executive to issue an order. In event
Court is inclined to accept contention of appellant that the 2022
order does not provide for relaxation then so far as this aspect
of relaxation regarding a recruitment requirement of eligibility
on age is concerned, there is a gap and it is competent for the
State to issue an order. He relies on aforesaid internal
communication dated 5th July, 2021 handed up by Mr. Bahali to
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submit, there be direction for issuance of such an order upon
reliance of upper age relaxation of six years as directed in
impugned judgment. He relies on judgment of the Supreme
Court in A.B. Krishna v. State of Karnataka, reported in
(1998) 3 SCC 495, paragraph 8. A passage from the paragraph
is reproduced below.
“8. … … As a matter of fact, under the scheme of
Article 309 of the Constitution, once a legislature
intervenes to enact a law regulating the conditions of
service, the power of the Executive, including the
President or the Governor, as the case may be, is
totally displaced on the principle of “doctrine of
occupied field”. If, however, any matter is not touched
by that enactment, it will be competent for the
Executive to either issue executive instructions or to
make a rule under Article 309 in respect of that
matter.”
He also relies on view taken by learned single Judge of this
Court in three writ petitions, lead case being W.P.(C) no.341 of
2023 (Nagen Bhoi and others v. State of Odisha and others).
The learned single Judge by judgment dated 24th January,
2023 had directed one time relaxation in upper age limit for
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recruitment of constables (civil) in different districts and
establishments of Odisha Police. He relies on paragraphs 51 to
54 of the judgment.
7. Mr. Rath submits, his clients are in a situation, or at
least most of them who never ever had opportunity to apply for
being appointed in the class contemplated under part A in the
order of 2022. He reiterates, there was no recruitment since
year 2018. Therefore, a person eligible on age to compete for
recruitment in year 2018, would be over age in the exercise
undertaken pursuant to the order of 2022. As such he thus
would be discriminated against by the State in only allowing
people younger than him to compete for recruitment, in
violation of article 14 in the Constitution of India. He adds to
his point of discrimination by submitting that such a person
deprived will stand deprived as against a person, who will be
allowed to compete for existing vacancies occurring in the long
period in which his client never had opportunity to compete for
being recruited. It is therefore that the learned single Judge, in
public interest, directed the one time relaxation.
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8. Mr. Acharya will be heard on reply, tomorrow i.e.
25th March, 2025. Interim order to continue till next date of
hearing.
(Arindam Sinha)
Acting Chief Justice
(M.S. Sahoo)
Judge
S. Behera/jyostna
Signature Not Verified
Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 24-Mar-2025 19:26:09
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