Orissa High Court
P.S.: Dhamanagar vs State Of Odisha on 27 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.27353 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Dr. Lopamudra Nanda
Aged about 23 years
Daughter of Padmanava Nanda
Village: Mundida, P.O.: Chasapada
Via: Kaduapada, P.S.: Balikuda
District: Jagatsinghpur.
2. Dr. Pallavi Mishra
Aged about 26 years
Daughter of Rajani Kanta Mishra
At: Nagbhan, P.O.: Bhalubasa
P.S.: Rairangpur
District: Mayurbhanj, PIN: 757 050.
3. Dr. Archana Agrawal
Aged about 25 years
Daughter of Kamalesh Agrawal
At: Putiapali, P.O.: Baduapali
Via: Dhanupali, P.S.: Dhama
District: Sambalpur, PIN: 768 113.
4. Dr. Limonlisa Dey
Aged about 24 years
Daughter of Bidyapati Dey
At: Deulipanchughanta
W.P.(C) No.27353 of 2023 Page 1 of 80
P.O.: Jaleswar, P.S.: Jaleswar
District: Balasore, PIN: 756 032.
5. Dr. Tanaya Dor @ Dora
Aged about 23 years
Daughter of Benudhara Dora
At: Uchhabahal, P.O.: Rinbachana
P.S.: Loisingha
District: Bolangir, PIN: 762 002.
6. Dr. Ananya Nanda
Aged about 25 years
Daughter of Dhirendra Kumar Nanda
At: Town Planning Colony
P.O.: Dhenkanal R.S., P.S.: Dhenkanal
District: Dhenkanal, PIN: 759 013.
7. Dr. Suprava Kumbhar
Aged about 23 years
Daughter of Manoranjan Kumbhar
At/P.O.: Saranda, P.S.: Attabira
District: Bargarh, PIN: 768 027.
8. Dr. Manini Behera
Aged about 24 years
Daughter of Diga Behera
At: Mahulpali
P.O.: A. Katapali, P.S.: Burla
District: Sambalpur, PIN: 768 006.
9. Dr. Pragyan Prabartika Mallick
Aged about 25 years
Daughter of Gouranga Charan Mallick
At: Bada Patuli, P.O.: Dala
P.S.: Korai
District: Jajpur, PIN: 755 019.
W.P.(C) No.27353 of 2023 Page 2 of 80
10. Dr. Vijayalaxmi Marndi
Aged about 26 years
Daughter of Lal Mohan Marndi
At: Chandida, P.O.: Kumudasole
Via: Hatbadra, P.S.:Rairangpur (R)
District: Mayurbhanj, PIN: 757 050.
11. Dr. Sandhya Bahalia
Aged about 25 years
Daughter of Sudam Charan Bahalia
At: Pandua, P.O.: Jaraka
P.S.: Dharmasala
District: Jajpur, PIN: 755 050.
12. Dr. Ipsita Jena
Aged about 25 years
Daughter of Bibhuti Bhusan Jena
At: Benjarapur, P.O.: Mandari
P.S.: Bari
District: Jajpur, PIN: 755 003.
13. Dr. Sitaram Meher
Aged about 26 years
Son of Artatrana Meher
At: Jandol, P.O./P.S.: Bheden
District: Bargarh, PIN: 768 104.
14. Dr. Badal Bagarty
Aged about 25 years
Son of Rameswar Bagarty
At: Sagarpara, P.O.: Balangir
P.S./District: Balangir, PIN: 767 001.
15. Dr. Tusarakanta Muna
Aged about 25 years
Son of Subhakara Muna
W.P.(C) No.27353 of 2023 Page 3 of 80
At/P.O.: Birjam, P.S.: Melchamunda
District: Bargarh, PIN: 768 034.
16. Dr. Subhendu Mohanty
Aged about 24 years
Son of Panchanana Mohanty
At: Mandrada, P.O.: Chakrada
P.S.: Basta
District: Balasore, PIN: 756 022.
17. Dr. Sudipta Kumar Patra
Aged about 24 years
Son of Karunakar Patra
At: Mulakhamba, P.O.: Damodarpur
P.S.: Sukinda
District: Jajpur, PIN: 755 018.
18. Dr. Pasupati Mohanta
Aged about 29 years
Son of Mahendranath Mohanta
At: Balimunduli
P.O./Via: Shamakhunta
P.S.: Baripada Sadar
District: Mayurbhanj, PIN: 757 049.
19. Dr. Dibya Prakash Bal
Aged about 28 years
Son of Gagan Chandra Bal
At: Baliapashi, P.O.: Laxmi Nagar
P.S.: Jajpur Road
District: Jajpur, PIN: 755 015.
20. Dr. Atmajyoti Nayak
Aged about 26 years
Son of Pradeep Kumar Nayak
At: Tampala, P.O.: Chudakuti Palasa
W.P.(C) No.27353 of 2023 Page 4 of 80
P.S.: Dhamanagar
District: Bhadrak, PIN: 756 117.
21. Dr. Akash Bhoi
Aged about 25 years
Son of Ganesh Bhoi
At/P.O.: Resham
P.S.: Bheden, District: Bargarh
PIN: 768 104.
22. Dr. Rajashree Meher
Aged about 26 years
Daughter of Janak Lal Meher
At: Shanti Nagar, Padampur
P.O.: Rajborasambar, P.S.: Padampur
District: Bargarh
PIN: 768 036. … Petitioners.
-VERSUS-
1. State of Odisha
Represented through
Commissioner-cum-Secretary
Department of Health &
Family Welfare
Government of Odisha
Lokseva Bhawan
Bhubaneswar
District: Khordha.
2. Odisha Public Service Commission
Represented through its Secretary
At: 19, Cantonment Road
Buxibazar, Cuttack
Odisha – 753 001.
W.P.(C) No.27353 of 2023 Page 5 of 80
3. The Principal
Gopabandhu Ayurveda Mahavidyalaya, Puri
At/P.O/Dist-Puri. … Opposite parties
Counsel appeared for the parties:
For the Petitioners : M/s. Lalatendu Samantray,
Satyabrata Mohanty,
Tapan Kumar Kamila, AdvocatesFor the Opposite party: : Mr. Ashok Kumar Apat,
No.1 Additional Government AdvocateFor the Opposite party : Mr. Pradipta Kumar Mohanty,
No.2 Senior Advocate
assited by
M/s. Pronoy Mohanty,
S.K. Sahu, K.T. Mudali,
AdvocatesP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 12.11.2024 :: Date of Judgment : 27.01.2025
J UDGMENT
Assailed in this writ petition is the Order in File
No.HFW-AYUR-CASE-0013-2023/8678/H, dated
04.08.2023, passed by the Commissioner-cum-Secretary
to Government of Odisha in Health & Family Welfare
Department, rejecting the representation of the
petitioners vis-à-vis relaxation invoking Rule 18 of the
W.P.(C) No.27353 of 2023 Page 6 of 80
Odisha Ayurvedic Medical Service (Method of
Recruitment and Conditions of Service) Rules, 2013,
pursuant to the direction contained in Order dated
21.06.2023 of this Court in W.P.(C) No.18965 of 20231,
the petitioners have knocked the doors of this Court
craving to exercise extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India, with
the following prayer(s):
“It is therefore humbly prayed that your Lordships may be
graciously pleased to admit the writ application, issue
rule nisi in the nature of a writ of mandamus and any
other writ or writs as deemed fit and proper to quash the
impugned Order No.18678/H, dtd.04.08.2023 as under
Annexure-14 and further be pleased to direct the Opp.
Parties to permit the petitioners to participate in the
recruitment process in pursuance of the Advertisement
No.3 of 2023-24 as under Annexure-6 Series;
And further be pleased to direct the Opp. Party No.3 to
treat the three dates as mentioned in Paragraph-24 & 25
as on duty;
And, further be pleased to pass any other writ(s), order(s),
direction(s), and relief(s) as deemed fit and proper.
And, for this act of kindness, the petitioners shall, as in
duty bound, ever pray.”
Facts:
2. Facts, as adumbrated in the pleadings, reveal that the
Central Council for Indian Medicine, New Delhi vide
1 Dr. Lopamudra Nanda and 21 Others Vrs. State of Odisha and Others.
W.P.(C) No.27353 of 2023 Page 7 of 80
Notification No.28-14/2011-Ay (UG Regu)., dated
25.04.2012 promulgated Indian Medicine Central
Council (Minimum Standard of Education in Indian
Medicines (Amendment) Regulations, 20122, which
provided compulsory internship3 for one year for
Ayurvedacharya (―Bachelor of Ayurvedic Medicine and
Surgery Doctors‖) (for brevity, ―BAMS‖).
2.1. Upon completion of four parts of professional Course, a
final examination of the petitioners along with other
students for the Session July, 2017 to December, 2021
was held as per Schedule from 30.03.2022 to
13.04.2022 vide Utkal University Notification No.4710
dated 22.03.2022. Separate Notification for
practical/oral examination was published vide
Notification No.1205 dated 16.04.2022. Having
acknowledged that the petitioners have been ―declared
passed in Final BAMS Examination-December, 2021
from Utkal University, Vani Vihar, Bhubaneswar vide
Notification No. EC.I/11284/2022, dated 09.06.2022,
the Principal, Gopabandhu Ayurveda Mahavidyalaya,2 These rules amend the ―Indian Medicine Central Council (Minimum Standards
of Education in Indian Medicine) (Amendment) Regulations, 1989, subsequently
2005, 2010 and 2011‖ with effect from 26.04.2012, being published in the India
Gazette, Extraordinary No.108, dated 26.04.2012.
3 Rule 7 of ibid. provides as follows:
“Compulsory Internship:
Duration of Internship: 1 year
The student will join the compulsory internship programme after passing the final
professional examination. The internship programme will start after the
declaration of the result of final professional examination. The period of the
internship will be of one year.”
W.P.(C) No.27353 of 2023 Page 8 of 80
VIP Road, Puri in Letter No.2999 dated 13.06.2022
(Annexure-4) forwarded the names of 28 candidates
including the petitioners to the Registrar, Odisha State
Council of Ayurvedic Medicines, Bhubaneswar
(―OSCAM‖, for short) to register their names in terms of
Section 20 of the Indian Medicine Central Council Act,
1970, so as to enable them to join the internship
training for a period of 12 months in the College and
attached Hospital.
2.2. Accordingly, the petitioners were issued with
―Provisional Certificate of Registration‖ on 13.06.2022 by
the OSCAM, indicating that the said Licence shall
remain valid ―till completion of internship‖. The
petitioners were allowed to undergo internship
programme for ―twelve months compulsory rotating
Housemanship training with effect from 16.06.2022 to
till completion in the outdoor and indoor of Hospital this
Institution and District Headquarters Hospital, Puri‖,
vide Notice No.3036/GAM, Puri, dated 16.06.2022
issued by the Principal, Gopabandhu Ayurveda
Mahavidyalaya, Puri.
2.3. The Odisha Public Service Commission floated an
Advertisement bearing No.03 of 2023-24 on 28.04.2023
being published on 29.04.223 in local Odiya daily ―The
Prameya‖ (for short, ―Advertisement‖) inviting
Applications from the prospective candidates for
W.P.(C) No.27353 of 2023 Page 9 of 80
recruitment of 116 posts of Ayurvedic Medical Officers
(for convenience be referred to as, ―AMO‖) in the rank of
Group-B under the Health and Family Welfare
Department.
2.4. Clause-4 of said Advertisement prescribed requisite
educational qualification as follows:
“A candidate must possess a Bachelor‟s Degree in
Ayurvedic Medicine and Surgery (BAMS) or equivalent
Degree from a University or Institution recognized by
Central Council of Indian Medicine.
He must have registered himself/herself under the
Odisha State Council of Ayurvedic Medicines.”
2.5. Clause-8 of the Advertisement prescribed the following
other eligibility conditions:
“(i) The candidate must be a citizen of India;
(ii) A candidate must be able to read, write and speak
Odia; and have–
(a) passed Middle School Examination with Odia
as a language subject; or
(b) passed Matriculation or equivalent
Examination with Odia as medium of
Examination in non-language subject; or
(c) passed in Odia as language subject in the final
Examination of Class VII or above; or
(d) passed a test in Odia in Middle English School
Standard conducted by the School and Mass
W.P.(C) No.27353 of 2023 Page 10 of 80
Education Department of the Government of
Odisha/Board of Secondary Education,
Odisha;
(iii) A candidate if married must not have more than one
spouse living:
Provided that the State Government may, if satisfied
that such marriage is permissible under the personal
law applicable to such person or there are other
grounds for doing so, exempt any person from the
operation of this rule.
(iv) Government servants, whether temporary or
permanent, are eligible to apply provided that they
possess the requisite qualification and are within the
prescribed age-limit as provided under Paragraphs 3
and 4 of the Advertisement. They must inform their
respective Heads of Offices in writing regarding
submission of their applications for this recruitment
and submit „No Objection Certificate‟ during
document verification.
(v) If a candidate has at any time, been debarred for a
certain period/chance(s) by the Odisha Public
Service Commission or other State Public Service
Commission or U.P.S.C. from appearing at any
examination/interview, he/she shall not be eligible
for such recruitment for that specified
period/chance(s).
(vi) Only those candidates, who are within the
prescribed age limit and fulfil the requisite
qualification etc. by the closing date of
submission of online application will be
considered eligible;
W.P.(C) No.27353 of 2023 Page 11 of 80
(vii) A candidate must have to register himself/
herself under the Odisha State Council of
Ayurvedic Medicines on or before the Last date
of Submission of Online Application Form.
(viii) A candidate who claims change in his/her name
after having passed the H.S.C. Examination or
equivalent Examination, is required to furnish copy
of publication of the changed name in the local
leading daily newspaper as well as copy of
notification in the Gazette in support of his/her
change of name.”
2.6. The last date for submission of Registered Online
Application was fixed to 08.06.2023.
2.7. Since the petitioners have passed BAMS
(Ayurvedacharya) Examination and were provided with
Provisional Certificate of Registration which remained
valid till completion of internship, due to the delay
caused attributable to the authorities concerned, they
claiming to be eligible to participate in the recruitment
process approached this Court in W.P.(C) No.15177 of
2023 with a prayer for direction to the opposite parties
to allow them to submit application forms and to appear
in the recruitment process for the post of AMO in
response to the Advertisement. This Court disposed of
the said writ petition on 11.05.2023 with the following
order and direction:
W.P.(C) No.27353 of 2023 Page 12 of 80
“7. Considering the submissions made by learned
counsels for the respective parties, keeping in view
the factual background of the present case, this
Court deems it proper to dispose of the writ
application at the stage of admission by directing the
Commissioner-cum-Secretary to Government, Health
and Family Welfare Department, Odisha,
Bhubaneswar-Opposite Party No.1 to consider the
representations of the petitioners under Annexure-7
dated 02.05.2023 in accordance with law within a
period four weeks from the date of production of
certified copy of this order.
8. Further, OPSC is directed accept the off-line forms of
the petitioners and allow them to participate in the
recruitment process. However, acceptance of the off-
line forms subject to the final decision taken by the
Opposite Party No.1 within the aforesaid time
stipulated.
9. Further, it is also made clear that permission to
appear in the recruitment process shall not create
any equity by the petitioners.
10. With the aforesaid observation/direction, the writ
petition is disposed of.”
2.8. The representations came to be rejected vide Order
No.HFW-AYUR-CASE-0013-20233/13110/H, dated
01.06.2023 by ascribing following reasons:
“And whereas, the recruitment and conditions of service
of the persons appointed to the post of Ayurvedic Medical
Officer are governed under the provisions of Odisha
Ayurvedic Medical Service (Method of Recruitment andW.P.(C) No.27353 of 2023 Page 13 of 80
Conditions of Service) Rules, 2013 published in the extra
ordinary issue of the Odisha Gazette dated 09.07.2013.
And whereas, as per Rule 8(4) of the Odisha Ayurvedic
Medical Services (Method of Recruitment and Conditions
of Service) Rules, 2013 the recruitment for the post of
Ayurvedic Medical Officer shall be made by the Odisha
Public Service Commission.
And whereas, as per Rule 7 of the Odisha Ayurvedic
Medical Services (Method of Recruitment and Conditions
of Service) Rules, 2013 in order to be eligible for
appointment to the post of Ayurvedic Medical Officer
he/she must possess a Bachelor Degree in Ayurvedic
Medicine and Surgery (BAMS) or equivalent Degree from
an University or Institution recognized by the Central
Council of Indian Medicine. He/she must have registered
himself/herself under the Odisha State Council of
Ayurvedic Medicines.
And whereas, the Petitioners have not completed their
Internship Training for which their names were not
permanently registered under the Odisha State Council of
Ayurvedic Medicines.
And whereas, Article 320 & 321 of the Constitution of
India lays down the functions of the Union and the State
Public Service Commission. The objective/purpose of
Odisha Public Service Commission are to conduct
examination for appointment to various posts of State
Civil Services etc. The State Government have no
jurisdiction over the power and function of the Odisha
Public service Commission with regards to the recruitment
procedure.
W.P.(C) No.27353 of 2023 Page 14 of 80
And whereas, the Odisha Ayurvedic Medical Service
(Method of Recruitment and Conditions of Service) Rules,
2013 does not provide any scope or power to the opposite
party No.1 to consider the claim of the petitioners for
allowing them to appear in the recruitment examination
for Ayurvedic Medical Officers by extending the last date
of submission of application for 15 days.
Now, therefore, taking into the grounds observed as
above, the claim of the petitioners under Annexure-7
dated 02.05.2023 has no merit in the eyes of law for
consideration hence rejected.”
2.9. Although the petitioners have successfully completed the
course having passed the final examination, as their
internship was continuing as on the last date of
submission of Registered Online Application, the Odisha
Public Service Commission did not accept the
candidature of the petitioners. On the petitioners
approaching this Court vide Order dated 11.05.2023
disposed of W.P.(C) No.15177 of 2023, by permitting the
petitioners to participate in the recruitment process and
the Odisha Public Service Commission [―Commission‖,
as defined under Rule 2(a) of the Odisha Ayurvedic
Medical Service (Method of Recruitment and Conditions
of Service) Rules, 2013] was directed to accept the
Offline Applications of the petitioners and to allow the
petitioners to participate in such recruitment process.
2.10. Though the petitioners were directed to be allowed to
participate in the recruitment process by accepting
W.P.(C) No.27353 of 2023 Page 15 of 80
Offline Applications, the same was subject to
consideration of representation of the petitioners by the
State Government and the Commission expressed its
inability to permit them to participate in the recruitment
process inasmuch as the representation of the
petitioners got rejected by the State Government on
01.06.2023.
2.11. This Court in consideration of the plight of the
petitioners and predicament of the opposite parties (the
State Government as well as the Commission), disposed
of W.P.(C) No.18965 of 2023 vide order dated 21.06.2023
with the following observation:
“7. In reply to the aforesaid submission made by the
learned Senior Counsel appearing for the Opposite
Party No.2-Odisha Public Service Commission as
well as learned counsel for the State-Opposite
Parties, learned counsel for the Petitioner submitted
that the delay in issuing the final certificate on the
ground that the Petitioners have not completed their
internship for one year cannot be attributed to the
Petitioners. He further submitted that because of the
delay in conducting the examination and permitting
the Petitioners to go for internship, the Petitioners are
most likely to suffer for none of their fault. It is
further submitted by the learned counsel for the
Petitioners that the relevant Rules, i.e., Odisha
Ayurvedic Medical Service (Method of Recruitment
and Conditions of Service) Rules, 2013 provides
under Rule 18 that the State Government in exercise
of its power can relax any of the provisions of the
W.P.(C) No.27353 of 2023 Page 16 of 80
rules, if the same is found to be in public interest.
However, while considering the representation of the
Petitioners pursuant to the order passed by this
Court earlier, the Opposite Parties have not
considered the case of the Petitioners in the light of
the provision contained under Rules 18 of the 2013
Rules. For better appreciation, the provision
contained in Rule 18 of the 2013 Rules is quoted
herein below: ***
8. On perusal of the Rule 18 of the 2013 Rules,
this Court observes that the rule confers power
on State Government to grant any relaxation, if
such relaxation is necessary or expedient so to
do in the public interest. Therefore, the
submission made by the learned counsel for the
Petitioners that there was a delay in
conducting the examination and publication of
the advertisement and there was a short gap
between the conducting the examination and
publication of advertisement for recruitment.
This Court is of the considered view that the
same needs to be considered by the State
Government under Rule 18 of the 2013 Rules.
9. Considering the submissions made by the learned
counsels appearing for the respective parties and
upon a careful examination of the background facts
of the present case and also on careful examination
of the documents annexed to the writ petition, this
Court with the consent of the learned counsel for the
parties deems it proper to dispose of the writ petition
at the stage of admission. Accordingly, the
Petitioners are directed to file a fresh
representation before the Opposite Party No.1W.P.(C) No.27353 of 2023 Page 17 of 80
taking therein the grounds for relaxation
under Rule 18 of the 2013 Rules. In the event
such a representation is filed within a period
of two weeks from today, the same shall be
considered by the Opposite Party No.1 in
accordance with Rule 18 of the 2013 Rules.
Further, the Opposite Party No.2-Odisha Public
Service Commission is directed to allow the
Petitioners to further participate in the
recruitment process. However, such participation
shall be subject to the final outcome of the decision
to be taken by the Government as has been directed
hereinabove on the representation of the Petitioners.
10. With the aforesaid observations and directions, this
writ petition stands disposed of.”
2.12. Relevant portion of contents of the fresh representation
dated 01.07.2023 of the petitioners as required to be
furnished as directed in said Order dated 21.06.2023 of
this Court in W.P.(C) No.18965 of 2023 is extracted
hereunder:
“*** Mam, we bring to you kind notice that in pursuance to
Odisha Ayurvedic Medical Service (Method of Recruitment
and Conditions of Service) Rules, 2013 we have applied
for the post wherein Clause-7(d) of the said Rules
specifically states about eligibility criteria, i.e., “he must
possess a Bachelor Degree in Ayurvedic Medicine and
Surgery (BAMS) or equivalent degree from an University or
Institution recognised by the Central Council of Indian
Medicine. He must have registered himself/ herself under
Odisha State Council of Ayurvedic Medicine.”
W.P.(C) No.27353 of 2023 Page 18 of 80
We are eligible in view of such criteria to apply for the
aforementioned post. However, Rule 18 of the aforesaid
Rule envisages Relaxation which is quoted herein below
for kind reference. ***
Furthermore, as per instruction received, State
Government had earlier permitted candidates
undergoing internship to participate in the
recruitment process of the year 1979, 1983 and
1990.
In the present case we further bring to your kind notice
that 4th Semester Examination of the year December,
2021 was conducted in March, 2022 and result was
published on 09.06.2022 and delay occurred in such
process is solely attributable to the college/university
authorities for which we are no way responsible. More so,
Advertisement to the post is also not regularly published
by OPSC. As per our instruction it was published in year
2016, 2018 and 2021 respectively and we will lose a
valuable chance in the present advertisement if we are
not permitted to participate in the present recruitment
process.
In such view of the matter we honestly request you to
consider our case sympathetically and allow us to
participate in the recruitment to the post of Ayurvedic
Medical Officers in pursuant to advertisement
No.03/2023-24 of Odisha Public Service Commission,
Cuttack and extend the last date of submission for two
weeks in view of Rule 18 of the 2013 Rules, which has
been well observed by the Hon‟ble High Court in the
Judgment dated 21.06.2023 passed in the W.P.(C)
No.18965 of 2023, for which act of kindness we shall be
highly grateful to you.”
W.P.(C) No.27353 of 2023 Page 19 of 80
2.13. In order to carry out the direction contained in the Order
dated 21.06.2023 in W.P.(C) No.18965 of 2023, the
Commissioner-cum-Secretary to Government in Health
and Family Welfare Department (for brevity,
―Government‖) rejected said representation vide Order
No.18678– HFW-AYUR-CASE-0013-2023/H, dated
04.08.2023, relevant portion of which reads as under:
“***
And whereas, Rule 18 of Odisha Ayurvedic Medical
Service (Method of Recruitment and Conditions of Service)
Rules, 2013 inter alia provides that when it is considered
by the Government 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
rules in respect of any class or category of the employees.
And whereas, the Petitioners have not completed
their internship training for which their names
were not permanently registered under the Odisha
State Council of Ayurvedic Medicines.
And whereas, relaxation of eligibility for appointment to
the post of Ayurvedic Medical Officer as required under
Rule 7 of Odisha Ayurvedic Medical Service (Method of
recruitment and Conditions of Service) Rules, 2013 could
not be accommodated since the same involves the
interest of individual and also contravene the
provision of clause (a) i.e. “the public interest
behind the proposed relaxation” of GA & PG
Department Letter No.8543/Gen dated 11.03.2020.
W.P.(C) No.27353 of 2023 Page 20 of 80
And whereas, Article 320 & 321 of the Constitution of
India lays down the functions of the Union and the State
Public Service Commission. The objective/purpose of
Odisha Public Service Commission are to conduct
examination for appointment to various posts of State
Civil Services etc. The opposite party No.1 has no
jurisdiction over the power and function of the Odisha
Public Service Commission with regards to the recruitment
procedure.
Therefore, taking into the grounds observed as above, the
claim of the petitioners for relaxation of Rule 7 of Odisha
Ayurvedic Medical Service (Method of Recruitment and
Conditions of Service) Rules, 2013 by invoking the powers
conferred under Rule 18 of the said rules has no merit in
the eyes of Law for consideration, hence rejected.”
2.14. Questioning the propriety of Order of rejection of
representation by the Government, the petitioners have
moved this Court by way of filing the instant writ
petition beseeching indulgence in the Order dated
04.08.2023 (Annexure-14).
Hearing:
3. On being noticed, the opposite parties have filed counter
affidavit, additional affidavit and the petitioners have
also filed rejoinder affidavit. Pleadings, being completed
and exchanged amongst the counsel for respective
parties, on their consent, this matter is taken up for
final hearing at the stage of admission.
W.P.(C) No.27353 of 2023 Page 21 of 80
3.1. Heard Sri Lalatendu Samantray, learned counsel along
with Sri Satyabrata Mohanty, learned counsel appearing
for the petitioners, Sri Ashok Kumar Apat, learned
Additional Government Advocate appearing for the
opposite party No.1 and Sri Pradipta Kumar Mohanty,
learned Senior Counsel being assisted by Sri Pronoy
Mohanty, learned counsel appearing for opposite party
No.2.
3.2. Upon hearing, the matter stood reserved for preparation
and pronouncement of Judgment.
Rival contentions and submissions:
4. Reiterating the contention as recorded by this Court in
the Order dated 21.06.2023 passed in W.P.(C) No.18965
of 2023, Sri Lalatendu Samantray, learned Advocate
along with Sri Satyabrata Mohanty, learned Advocate
appearing for the petitioners submitted that delay in
issuing final certificate on the ground that internship
was not completed and delay in conducting the
examination led to delay in completion of internship
cannot prejudice the petitioners. He submitted that it is
undeniable fact that the petitioners have passed the final
BAMS and their names were provisionally registered
with the OSCAM (statutory body constituted by the
Government of Odisha). It has clearly been mentioned in
the said Provisional Certificate of Registration issued onW.P.(C) No.27353 of 2023 Page 22 of 80
13.06.2022 that ―the Licence is valid till completion of
internship‖, i.e., 18.06.2023. It is strenuously argued
that for the petitioners had passed the final BAMS
examination by the last date of furnishing applications
for recruitment to the post of AMOs vide Advertisement
No.03 of 2023-24, i.e., 08.06.2023, and were issued with
Provisional Certificate of Registration, their candidature
should not have been discarded.
5. Sri Ashok Kumar Apat, learned Additional Government
Advocate appearing for the State referred to paragraphs
9, 11, 12 and 14 of the counter affidavit filed by opposite
party No.1, wherein it has been affirmed as follows:
―9. That in reply to the averments made in Paragraph
10 of the Writ Petition, it is humbly submitted that,
as per Rule 7 of the Odisha Ayurvedic Medical
Service (Method of Recruitment and Conditions of
Service) Rules, 2013 in order to be eligible to be
appointed in the post of Ayurvedic Medical Officer,
he/she must possess a Bachelors‟ Degree in
Ayurvedic Medicine and Surgery (BAMS) or
equivalent Degree from an University or Institution
recognized by the Central Council of Indian
Medicine. He/she must have registered
himself/herself under the Odisha State Council of
Ayurvedic Medicines and as the petitioners have not
completed their Internship Training for which their
names were not permanently registered under the
Odisha State Council of Ayurvedic Medicines.
W.P.(C) No.27353 of 2023 Page 23 of 80
11. That in reply to the averments made in Paragraph
19 of the Writ Petition, it is humbly submitted that,
Article 320 & 321 of the Constitution of India lays
down the functions of the Union and the State Public
Service Commission. The objective/purpose of
Odisha Public Service Commission is “to conduct
examination for appointment to various posts of
State Civil Services etc. The State Government have
no jurisdiction over the power and function of the
Odisha Public Service Commission with regards to
the recruitment procedure.”
Hence, keeping in view the above constitutional
provisions along with the provisions contained in the
Odisha Ayurvedic Medical Service (Method of
Recruitment and Conditions of Service) Rules, 2013
the order No.18678/H, dt.04.08.2023 under
Annexure-14 to the Writ Petition has been issued.
12. That in reply to the averments made in Paragraph
20 of the Writ Petition, it is humbly submitted that,
as per Section 28 of Indian Medicine Central Council.
Act, 1970, the candidates have to register their
names (provisionally) under the respective State
Register of Indian Medicines by the board concerned
in order to enable them to join the Internship training
to practice Indian Medicine for the purpose of such
training for a period of 12 months in an approved
college and attached hospitals and for no other
purpose for the aforesaid period and as at the time
of publication of advertisement and as on the date of
receiving the Application Form pursuant to the
Advertisement, i.e., 08.06.2023 in respect of the
posts of Ayurvedic Medical Officer by the Odisha
Public Service Commission, the petitioners have not
W.P.(C) No.27353 of 2023 Page 24 of 80
completed their Internship Training, as per the
requirement, hence, their names were not
permanently registered under the Odisha State
Council of Ayurvedic Medicines and for which their
entitlement to apply for the said posts does not come
within the purview of Odisha Ayurvedic Medical
Service (Method of Recruitment and Conditions of
Service) Rules, 2013 guiding the recruitment and
conditions of service of the persons appointed to the
post of Ayurvedic Medical Officer.
Moreover, it is not out of place to mention here that
the process of recruitment is done in exercise of
powers conferred by the proviso to Article 309 of the
Constitution of India and hence, it is not ultra-vires.
14. That in this context it is worthwhile to mention here
that, Rule 18 of Odisha Ayurvedic Medical Service
(Method of Recruitment and Condition of Service)
Rules, 2013 inter alia provided that when it is
considered by the Government that it is necessary or
expedient so to do in the public interest, it may, by
order, for reason to be recorded in writing, relax any
of the provisions of these rules in respect of any
class or category of the employees.
Relaxation of eligibility for appointment to the post of
Ayurvedic Medical Officer as required under Rule 7
of Odisha Ayurvedic Medical Service (Method of
Recruitment and Condition of Service) Rules, 2013
could not be accommodated since the same involves
the interest of the individual and also contravene the
provision of clause (a) i.e. “the public interest behind
the proposed relaxation” of G.A. & P.G. Deptt. Letter
No.8543/Gen, dt.11.03.2020.
W.P.(C) No.27353 of 2023 Page 25 of 80
Further it is submitted that the petitioners have not
completed their internship training for which their
names were not permanently registered under the
Odisha State Council of Ayurvedic Medicines.
Therefore, taking into the grounds observed as
above, the claim of the petitioners for relaxation of
Rule 7 of Odisha Ayurvedic Medical Service (Method
of Recruitment and Condition of Service) Rules, 2013
by invoking the powers conferred under Rule 18 of
the said Rules has no merit in the eyes of law for
consideration. As such, the O.P. No.1 has rightly
rejected the representation of the petitioners vide
Order No.18678, dated 04.08.2023 under Annexure-
14 of the writ petition.”
6. Sri Pradipta Kumar Mohanty, learned Senior Advocate
being assisted by Sri Pronoy Mohanty, learned Advocate
appearing for opposite party No.2-Commission referred
to paragraphs 3, 5, 11 and 12 of the counter affidavit,
which read as under:
“3. That, the Government in Health & Family Welfare
Department have reported the vacancy position to
OPSC to conduct recruitment for 116 posts of
Ayurvedic Medical Officer 30.01.2023. Basing upon
the requisition & Rule 7(d) of the Odisha Ayurvedic
Medical Service (Method of Recruitment & Conditions
of Service) Rules, 2013, the following eligibility
criteria has been incorporated at Para-4 of the
Advertisement No.03 of 2023-24.
„A candidate must possess a Bachelor‟s Degree in
Ayurvedic Medicine and Surgery (B.A.M.S.) or
equivalent Degree from a University or Institution
W.P.(C) No.27353 of 2023 Page 26 of 80
recognized by Central Council of Indian Medicine. He
must have registered himself/herself under the
Odisha State Council of Ayurvedic Medicines.‟As per Clause-4 of IMCC (Amendment) Regulation,
2012, the candidate shall be awarded BAMS Degree
after passing the final examination, and thereafter
satisfactorily completing the compulsory Rotatory
Internship extending over 12 months.
5. That, the last date of submission of online
application form is 08.06.2023 for the post of
Ayurvedic Medical Officer. As per the norms of
advertisement the candidates, who have completed
their BAMS Degree, Compulsory Rotatory Internship
and registered themselves under Odisha State
Council of Ayurvedic Medicines within the last date
i.e. 08.06.2023 can be eligible for the said post.
11. That, the eligibility criteria as prescribed in Rules
7(d) of OAMS Rules 2013 is as follows:
„A candidate must possess a Bachelor Degree in
Ayurvedic Medicine and Surgery (BAMS) or
equivalent Degree from a University or Institution
recognized by the Central Council of Indian
Medicine. He must have registered himself/herself
under the Odisha State Council of Ayurvedic
Medicines.‟As per Clause-4 of IMCC (Amendment) Regulation,
2012, the candidate shall be awarded BAMS Degree
after passing the final examination, and thereafter
satisfactorily completing the compulsory Rotatory
Internship extending over 12 months.
W.P.(C) No.27353 of 2023 Page 27 of 80
Without completion of 12 months compulsory
Rotatory Internship, one cannot be awarded with a
valid BAMS Degree and Permanent Registration
Certificate under Odisha State Council of Ayurvedic
Medicines.
Rules 6(2) & 8(3) of OAMS Rules envisages the
following procedure of direct recruitment:
„The Commission shall, on receipt of the vacancy
position from the Government, invite applications
from the eligible candidates in such manner as may
be decided by them.‟„The application forms, the manner of submission of
application, the documents required to be
accompanied with the application form, fee required
and scrutiny of applications shall, as may, be
decided by the Commission.‟ ***”
6.1. Learned Senior Counsel for the Commission vehemently
contended that on the last date of submission of Online
Application Forms, i.e., 08.06.2023, the petitioners
neither have possessed a valid BAMS Degree Certificates
and completion certificate of compulsory rotatory
internship training, which is a part of the Degree
curriculum nor did they possess valid registration
certificates. They were not eligible to participate in the
process of recruitment for the post of AMO. He further
contended that the Order dated 04.08.2023 (Annexure-
14) rejecting the representation of the petitioners for
relaxation under Rule 18 of the Odisha Ayurvedic
W.P.(C) No.27353 of 2023 Page 28 of 80
Medical Service (Method of Recruitment and Conditions
of Service) Rules, 2013 (―OAMS Rules‖, for convenience)
is for just reasons as there is no public interest involved
in the matter.
Analysis and discussions:
7. The Central Council of Indian Medicine vide Notification
bearing No.28-14/2011-Ay (UG Regu), dated 25.04.2012
framed the Indian Medicine Central Council (Minimum
Standards of Education in Indian Medicine)
(Amendment) Regulations, 2012 in exercise of power
under the Indian Medicine Central Council Act, 1970
read with Indian Medicine Central Council (Minimum
Standards of Education in Indian Medicine)
(Amendment) Regulations, 1989, which provides as
follows:
―4. Degree to be awarded:
Ayurvedacharya (Bachelor of Ayurvedic Medicine
and Surgery-B.A.M.S.)The candidate shall be awarded Ayurvedacharya
(Bachelor of Ayurvedic Medicine and Surgery–
B.A.M.S.) degree after passing the final examination,
after completion of prescribed course of study
extending over; prescribed period and thereafter
satisfactorily completing the compulsory rotatory
internship extending over twelve months.”
W.P.(C) No.27353 of 2023 Page 29 of 80
7.1. For better appreciation, it may be relevant to refer to
Rules 6, 7 and 8 of the OAMS Rules, 2013, provisions of
which are reproduced hereinbelow:
―6. Procedure for Direct Requirement:
(1) The Government shall intimate in each year the total
vacancy position to the Commission during the
recruitment year in the last week of January
indicating the posts to be reserved for different
reserved category of candidates mentioned under
Rule 5.
(2) The Commission shall, on receipt of the vacancy
position from the Government, invite applications
from the eligible candidates in such manner as may
be decided by them.
7. Eligibility Criteria:
In order to be eligible for appointment to the service
by directed recruitment a candidate must fulfil the
following conditions, namely:
(a) he must be a citizen of India;
(b) he must have attained the age of 21 years and
must not be above 32 years on the 1st day of
January of the year in which the applications
are invited by the Commission:
Provided that the upper age limit in respect of
reserved categories of candidates referred to in
Rule 5 shall be relaxed in accordance with the
provisions of the Act, rules, orders or
instructions, for the time being in force, for the
respective categories.
W.P.(C) No.27353 of 2023 Page 30 of 80
(c) he must be able to read, write and speak Odia;
and have
(i) passed Middle School examination with
Odia as a language subject; or
(ii) passed Matriculation or equivalent
examination with Odia as medicum of
examination in non-language subject; or
(iii) passed in Odia as language subject in the
final examination of Class VII or above; or
(iv) passed a test in Odia in Middle School
Standard conducted by the Board of
Secondary Education, Odisha / School &
Mass Education Department;
(d) he must possess a Bachelor Degree in
Ayurvedic Medicine and Surgery (BAMS) or
equivalent Degree from an University or
institution recognised by the Central
Council of Indian Medicine.
He must have registered himself/herself
under the Odisha State Council of
Ayurvedic Medicines;
(e) he/she if married, must not have more than
one spouse living:
Provided that the State Government may, if
satisfied, that such marriage is permissible
under the personal law applicable to such
person or there are other grounds for doing so,
exempt any person from the operation of this
rule;
W.P.(C) No.27353 of 2023 Page 31 of 80
(f) he must be of sound mental and physical
health, good physique and active habits and
free from organic defects or bodily infirmity and
communicable diseases which would likely to
interfere with his/her discharge of his/her
duties in the service. A candidate, who after
such medical examination is not found to
satisfy those requirements, shall not be
appointed to the service.
8. Method of Recruitment to Group-“B” posts:
(1) The Government shall intimate to the Commission
the number of vacancies of Ayurvedic Medical
Officer, Drugs Inspector, Scientific Officer likely to
occur in that year, indicating therein the number of
posts required to be filled up by way of reservations
of posts for persons belonging to different categories.
(2) On receipt of the intimation, the Commission shall
publish advertisement at least in two vernacular
daily newspapers having wide circulation in Odisha,
inviting applications for selection.
(3) The application forms, the manner of submission of
application, the documents required to be
accompanied with the application form, fee required
and scrutiny of applications shall be as may decided
by the Commission.
(4) Recruitment for post Ayurvedic Medical Officer by
the OPSC shall be based on career marking and
written test conducted in the manner provided in
these rules and an accordance with the syllabus as
specified in Appendix-“A”.
W.P.(C) No.27353 of 2023 Page 32 of 80
(a) Career marking shall be for 30% (10% each for
class-10th, class-12th and BAMS) and 70% for
written test.
(b) Computerized question paper for objective,
multiple test shall be prepared by the
Commission at their level. But, questions will
be as per the Bachelor of Ayurvedic Medicine
and Surgery (BAMS) curriculum.
(5) The Commission shall prepare a list of candidates in
order of merit on the basis of career marking and
written test which shall be equal to the number of
advertised vacancies:
Provided that, if two or more candidates secure
equal marks then the candidate securing higher
marks in BAMS Examination shall find place above
the others in the merit list and in case marks
obtained in BAMS Examination is also the same, the
candidate elder in age shall be placed above the
younger.
(6) The list recommended by the Commission shall
remain valid for one year from the date of the
recommendation or till the next recruitment made by
the Commission.”
7.2. A conjoint reading of the aforesaid OAMS Rules, 2013
and the clauses contained in the Advertisement, as
referred to above, it is manifest that a candidate making
an Application for the post of AMO, inter alia, required to
possess a Bachelor Degree in Ayurvedic Medicine and
Surgery or equivalent Degree from an University or an
Institution recognized by the Central Council of Indian
W.P.(C) No.27353 of 2023 Page 33 of 80
Medicine with additional requirement of registering
himself/herself under the OSCAM.
7.3. Perusal of record shows that the Principal, Gopabandhu
Ayurveda Mahavidyalaya, Puri has issued Letter dated
13.06.2022 (Annexure-4) indicating that the petitioners
were ―declared passed in Final BAMS Examination
December, 2021 from Utkal University, Vani Vihar,
Bhubaneswar vide Notification No.EC.I/11284/2022,
dated 09.06.2022‖. The internship commenced on
16.06.2022. The same was supposed to be completed on
15.06.2023, but due to certain anomalous position, the
same was certified to be completed on 18.06.2023.
7.4. The Provisional Certificate of Registration reflected that
the petitioners ―passed the final BAMS (Bachelor of
Ayurvedic Medicine and Surgery)/Ayurvedacharya
Examination from Gopabandhu Ayurveda
Mahavidyalaya, Puri under Utkal University, held in
December, 2021 is provisionally registered with this
Council for employment in a resident medical capacity in
any approved Institution of the State of Odisha. *** The
Licence is valid till completion of internship‖.
7.5. Cumulative reading of Rule 7(d) of the OAMS Rules,
2013 and Clause-4 of the Advertisement, would lead to
demonstrate that the eligibility criteria for the
candidates for the present purpose are:
W.P.(C) No.27353 of 2023 Page 34 of 80
i. A candidate must possess a Bachelor’s Degree in
Ayurvedic Medicine and Surgery (BAMS); andii. He must have registered himself/herself under the
Odisha State Council of Ayurvedic Medicines.
7.6. So far as the first criterion of having in possession
Bachelor’s Degree in Ayurvedic Medicine and Surgery is
concerned, it transpires from the Letter dated
13.06.2022 of the Principal Gopabandhu Ayurveda
Mahavidyalaya that the petitioners have passed Final
BAMS Examination held in December 2021 from Utkal
University. Such fact is also reflected in the Provisional
Certificate of Registration. However, Regulation 4 of the
Indian Medicine Central Council (Minimum Standards of
Education in Indian Medicine) (Amendment)
Regulations, 2012 with amendments in the years 1989,
2005, 2010 and 2011 (Annexure-1) framed with previous
sanction of the Central Government in exercise of
powers conferred by clauses (i), (j) and (k) of Section 36
of the Indian Medicine Central Council Act, 1970 (48 of
1970) on the Central Council of Indian Medicine,
requires fulfilment of the following conditions:
“The candidate shall be awarded Ayurvedacharya
(Bachelor of Ayurvedic Medicine and Surgery–
BAMS) degreeafter passing the final examination,
W.P.(C) No.27353 of 2023 Page 35 of 80
after completion of prescribed course of study extending
over; prescribed period andthereafter satisfactory completing the compulsory rotatory
internship extending over twelve months.”
7.7. Regulation 7 of said Regulations, 1989 specifies that the
duration of ―compulsory internship‖ is one year.
7.8. Regulation 4 and Regulation 7 unequivocally stipulate
that for construing a candidate to possess the
qualification of BAMS Degree, he or she not only shall
have to complete prescribed course of study for the
specified period, but also has to satisfactorily complete
the compulsory rotatory internship of a duration of one
year.
7.9. The last date as specified in the Advertisement was
08.06.2023. The Principal of Gopabandhu Ayurveda
Mahavidyalaya by Letter dated 13.06.2022 clarified that
the petitioners passed Final BAMS Examination held in
December, 2021 from Utkal Universify, but they were
required to undergo internship training for a period of 12
months (or one year) in the College and attached
Hospital. From Letter dated 16.06.2022 of the said
Principal (Annexure-5) it is surfaced that the compulsory
rotating Housemanship training commenced with effect
from 16.06.2022. Undisputedly the same came to an end
on 18.06.2023.
W.P.(C) No.27353 of 2023 Page 36 of 80
7.10. Unflinchingly the award of Degree in BAMS can be said
to have been made after the date of completion of
compulsory internship in terms of Regulation 4 read
with Regulation 7 of the Indian Medicine Central Council
(Minimum Standards of Education in Indian Medicine)
(Amendment) Regulations, 2012.
7.11. The events discussed above clarifies that on the last date
stipulated for submission of Applications, the petitioners
though passed the Final Examination, they were not in
possession of BAMS Degree Certificate as by then the
internship was not completed. The petitioners have not
challenged the vires of the Regulations.
7.12. So far as the second condition is concerned, the
Provisional Certificate of Registration depicts that the
petitioners are registered with the OSCAM which
remained valid till completion of internship.
7.13. It has already been stated that the Provisional Certificate
of Registration made it clear that the petitioners have
been registered under the OSCAM being assigned with
registration numbers on 13.06.2022. The Letter dated
13.06.2022 of the Principal of the Gopabandhu
Ayurveda Mahavidyalaya read with the contents of the
Provisional Certificate Registration is unambiguous that
the petitioners have passed the Final BAMS Examination
held in December, 2021 from Utkal University. In terms
W.P.(C) No.27353 of 2023 Page 37 of 80
of Regulation 4 and Regulation 7 of the Indian Medicine
Central Council (Minimum Standards of Education in
Indian Medicine) (Amendment) Regulations, 2012, read
with the Letters of the Principal, Gopabandhu Ayurveda
Mahavidyalaya, it is crystal clear that Degree in
Ayurvedacharya (BAMS) can only be awarded only after
requirements stipulated therein are fulfilled. Thus, the
requirement of Clause-4 of the Advertisement read with
Rule 7(d) of the OAMS Rules, 2013, cannot be said to
have been satisfied till completion of compulsory
internship and Degree in Ayurvedacharya (Bachelor of
Ayurvedic Medicine and Surgery– BAMS) is awarded.
8. With the above position with respect to status of the
petitioners as on the last date of submission of
Application as per the Advertisement, i.e., 08.06.2023
and the internship of the petitioners were completed on
18.06.2023 (even if their explanation is considered, it
would be 15.06.2023), it cannot be asserted that they
possessed the Degree in Ayurvedacharya (Bachelor of
Ayurvedic Medicine and Surgery– BAMS), as on
08.06.2023. Therefore, the claim of the petitioners has
no substance.
8.1. This Court is now called upon to consider whether the
decision of the Commissioner-cum-Secretary to
Government of Odisha in Health and Family Welfare
Department vide Order dated 04.08.2023 is tainted with
W.P.(C) No.27353 of 2023 Page 38 of 80
misconception and said Order has been passed on
misdirected approach.
8.2. Rule 6(1) of the OAMS Rules, 2013 provides that the
Government shall intimate in each year the total
vacancy position to the Commission during the
recruitment year in the last week of January indicating
the posts to be reserved for different category of
candidates mentioned under Rule 5. Sub-rule (2) thereof
makes it further clarified that the ―Commission‖ shall,
on receipt of the vacancy position from the Government,
invite Applications from eligible candidates in such
manner as may be decided by them. Thus, discretion
has been granted to the Commission for taking
appropriate decision with regard to manner of inviting
Applications.
8.3. The Advertisement No.03 of 2023-24 has been issued
inviting Applications for recruitment to the post of
Ayurvedic Medial Officer in the rank of Group-B under
the Health and Family Welfare Department specifying
the vacancy position as follows:
Sl. Category No. of posts
No.
1 2 3
1. UR 70 (23 - W)
2. SEBC 13 (04 - W)
3. SC 11 (04 - W)
4. ST 22 (07 - W)
Total 116 (38 - W)
W.P.(C) No.27353 of 2023 Page 39 of 80
8.4. There is no pleading nor averment or even suggestion by
the petitioners that there was non-compliance or non-
adherence to requirements by the opposite parties as
envisaged under Rule 6 of the OAMS Rules.
8.5. What is perceived from the impugned Order dated
04.08.2023 of the Government for rejection of
representation of the petitioners is non-completion of
internship training as envisaged under Rule 7 and
required under Rule 4 of the Indian Medicine Central
Council (Minimum Standards of Education in Indian
Medicine) (Amendment) Regulations, 2012. Such being
policy through Regulations, exercising the power of
judicial review, this Court can only examine the decision
making process, but not the decision itself. This Court
has little scope left for exercise of jurisdiction to show
indulgence.
8.6. It may deserve to be noted that the OAMS Rules, 2013,
have been framed in exercise of the powers conferred by
the proviso to Article 309 of the Constitution of India.
Article 309 is a self-contained code for regulating the
recruitment and the conditions of service of the persons
appointed to public services and posts in connection
with the affairs of the Union or State. It only delegates
the power to the President or the Governor and declares
them as competent to regulate in the cases of services
and posts in connection with the affairs of the State to
W.P.(C) No.27353 of 2023 Page 40 of 80
make Rules regulating the recruitment and the
conditions of service of persons appointed to such
services and posts until the provisions in that behalf is
made by or under any Act by the appropriate
Legislature. It only succinctly lays that because of Article
309 of the Constitution, the Union Government or the
State Government are not divested of their powers of
legislating a statute regulating the recruitment and
conditions of service of a person appointed to the public
services and posts in connections with the affairs of the
Union or of any State.
8.7. It is illuminatingly clarified by the Hon’ble Supreme
Court in CMD/Chairman, B.S.N.L. Vrs. Mishri Lal, (2011)
5 SCR 317 that,
“12. Rules under Article 309 can be changed even during
the subsistence of the old Rules. As held in Raj
Kumar Vrs. Union of India, AIR 1975 SC 1116 (vide
para 7),
„Rules made under the proviso to Article 309 of the
Constitution are legislative in character, and
therefore can be given effect to retrospectively.‟
Thus, Rules under the proviso to Article 309 are
Constitutional rules, not like rules under a statute.
Hence they have the same force as a Statute, though
made by the executive.
13. It is well settled that the Legislature can legislate
retrospectively vide M.P.V. Sundararamier & Co. Vrs.
W.P.(C) No.27353 of 2023 Page 41 of 80
State of Andhra Pradesh, AIR 1958 SC 468, J.K.
Jute Mills Vrs. State of Uttar Pradesh, AIR 1961 SC
1534, Jadao Bahuji Vrs. Municipal Committee, AIR
1961 SC 1486, Government of Andhra Pradesh Vrs.
Hindustan Machine Tools Ltd., AIR 1975 SC 2037
(para 8), Nandumal Girdharilal Vrs. State of Uttar
Pradesh, AIR 1992 SC 2084, etc.
14. Hence, the approach of the High Court, in our
opinion, was totally incorrect. In State of Punjab and
others Vrs. Arun Aggarwal and others, (2007) 10
SCC 402, it was observed (in para 30):
„There is no quarrel over the proposition of law that
the normal rule is that the vacancy prior to the new
Rules would be governed by the old Rules and not
the new Rules. However, in the present case, we
have already held that the Government has taken a
conscious decision not to fill the vacancy under the
old Rules and that such decision has been validly
taken keeping in view the facts and circumstances of
the case.‟
15. In the present case, a conscious decision was taken
in 2005 providing that all the posts in question
should be filled up by Limited Internal Competitive
Examination. This was a policy decision and we
cannot see how the High Court could have
found fault with it. It is well settled that the
Court cannot ordinarily interfere with policy
decisions.
16. No doubt in some decisions it was held that a vested
right cannot be taken away by amendment of the
rules. But what does this really mean? Since a rule
under the proviso to Article 309 is legislative in
W.P.(C) No.27353 of 2023 Page 42 of 80
character vide Raj Kumar Vrs. Union of India AIR
1975 SC 1116 the Rule can be amended, even with
retrospective effect, just as a legislation can be
amended with retrospective effect.
17. In our opinion the expression „vested right‟ could
only mean a vested Constitutional right, since a
Constitutional right cannot be taken away by
amendment of the Rules.
18. This is evident from the Constitution Bench decision
of this Court in Chairman, Railway Board Vrs. C.R.
Rangadhamaiah, (1997) 6 SCC 623. It was held
therein that pension is no longer treated as a bounty
but was a valuable Constitutional right under
Articles 19(1)(f) and 31(1) of the Constitution, which
were available on 01.01.1973 and 01.04.1974 (that
is before the 44th Constitution Amendment). Since
this was a Constitutional right it could not be taken
away by amendment of the Rules. The Constitution
is the supreme law of the land, and hence a
Constitutional right can only be taken away by
amending the Constitution, not by amending the
rules or even by amending the statute.
19. Hence in view of the aforesaid Constitution Bench
decision the other decisions of this Court of smaller
benches must be understood to mean that a vested
Constitutional right cannot be taken away by
amendment of the Rules. It follows that if the vested
right is not a Constitutional right it can be taken
away by retrospective amendment of the Rules. A
legislative Act can destroy existing rights, (unless it
is a Constitutional right). Thus, even a taxing statute
can be made retrospectively, and this usually affects
existing rights vide Union of India Vrs. Madangopal,
W.P.(C) No.27353 of 2023 Page 43 of 80
AIR 1954 SC 158, Jawaharlal Vrs. State of
Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel
Co. Ltd. Vrs. State of Bihar, AIR 1958 SC 452, D.G.
Gouse & Co. Vrs. State of Kerala, AIR 1980 SC 271
(para 16), Shetkari Sahkari Sakhar Karkhana Ltd.
Vrs. Collector, AIR·1979 SC 1972 (para 6-7), etc.
20. A Rule made under the proviso to Article 309 is
a legislative act (though made by the
executive). It is not a piece of delegated
legislation like a rule made under a statute.
Hence it can be amended retrospectively.”
8.8. It is manifest from the OAMS Rules, 2013, that the
Rules have been framed in exercise of the powers
conferred by the proviso to Article 309 of the
Constitution of India, whereas the Indian Medicine
Central Council (Minimum Standards of Education in
Indian Medicine) (Amendment) Regulations, 2012 has
been made in exercise of the powers conferred on the
Central Council of Indian Medicine by Section 36 of the
Indian Medicine Central Council Act, 1970 with the
previous sanction of the Central Government.
8.9. Conditions for ―Degree to be awarded‖ in respect of
Ayurvedacharya (Bachelor of Ayurvedic Medicine and
Surgery– BAMS) are envisaged under Regulation 4 of
the Indian Medicine Central Council (Minimum
Standards of Education in Indian Medicine)
(Amendment) Regulations, 2012. Rule 7(d) of the OAMS
Rules, 2013 read with Clause-4 of the Advertisement
W.P.(C) No.27353 of 2023 Page 44 of 80
No.03 of 2023-24 clearly evinces the fact of requirement
of possession of Bachelor’s Degree in Ayurvedic Medicine
and Surgery (BAMS) for making Application.
8.10. Clause 10 of the Advertisement No.03 of 2023-24
required certificates and documents to be attached to
the Application Form, inter alia:
“(ii) BAMS Degree Certificate issued by the concerned
University;
(v) Internship Training Completion Certificate within last
date of submission of Online Application Form
(vi) Medical Registration Certificate under the Odisha
State Council of Ayurvedic Medicines.”
It is also made clear in Note-1 appended thereto that:
“(a) The candidates have to upload their relevant
documents as required by the system while filling up
Online Application Form, failing which their
candidature shall be rejected.”
8.11. Clause-11 of aforesaid Advertisement provides for
―Grounds of rejection of Application‖, inter alia,
“(f) Not having requisite qualification as provided under
Paragraph-4 of Advertisemnt.
(g) Not furnishing copies of certificates/documents as
provided under Paragraph-10 of Advertisement.”
8.12. As the petitioners did not have in their possession
Bachelor‟s Degree in Ayurvedic Medicine and Surgery
W.P.(C) No.27353 of 2023 Page 45 of 80
(BAMS) and registration under the OSCAM as on
08.06.2023, i.e., last date stipulated for making
Application, the decision of the Government cannot be
gainsaid as tainted.
8.13. The decision in Monu Singh Vrs. Union of India, 2024
SCC OnLine Del 8181 may deserve to be referred to in
the context where the conditions stipulated or
requirements specified for making Application for the
post advertised are not fulfilled or satisfied:
“12. The petitioner has not disputed that the experience
certificate that was uploaded by him along with this
application, did not meet the eligibility criteria. The
new certificate that the petitioner sought to produce
before the respondents could not be taken
cognizance of and, therefore, the candidature of the
petitioner was rightly rejected by the competent
authority of the respondents.
13. We are of the opinion that the advertisement clearly
spelt out the requirements for the post, including the
experience. It also required the candidates to upload
their experience certificate at the time of filling up the
application form. The document verification stage is
for verifying the documents that have been so
uploaded by the petitioner. The petitioner at that
stage cannot produce new documents to claim his
eligibility. Though, it may seem to be a minor
infraction by the petitioner in not uploading the
correct experience certificate, we cannot lose sight of
the fact that there may be other candidates who
may have been rejected, and in fact, we have beenW.P.(C) No.27353 of 2023 Page 46 of 80
informed that other candidates were rejected on this
ground of discrepancy, or even would not have
applied as they did not possess the requisite
experience certificate on the date of their application.
Giving relief to the petitioner would be doing injustice
to these candidates.”
8.14. This Court again may make note of the fact that the
vires of such provision contained in Rules/Regulations
has not been questioned in this writ petition.
8.15. The observations made in B.S. Vadera Vrs. Union of
India, (1968) 3 SCR 575 may have significance in the
present context:
“22. The matter must be considered, in the light of the
provisions of Article 309, of the Constitution. That
Article provides:
„309. Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may
regulate the recruitment, and conditions of
service of persons appointed, to public services
and posts in connection with the affairs of the
Union or of any State:
Provided that it shall be competent for the
President or such person as he may direct in
the case of services and posts in connection
with the affairs of the Union, and for the
Governor of a State or such person as he may
direct in the case of services and posts in
connection with the affairs of the State, to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to
W.P.(C) No.27353 of 2023 Page 47 of 80
such services and posts until provision in that
behalf is made by or under an Act of the
appropriate Legislature under this Article, and
any rules so made shall have effect subject to
the provisions of any such Act.‟We may emphasize the words “and any Rules so
made shall have effect subject to the provisions of
any such Act,” which must receive their due weight.
To that aspect, we shall come, presently.
23. We have already pointed out, that Annexure 4 was
issued on February 5, 1957, and Annexure 7, on
March 30, 1963, and that the initial constitution of
the Service was to be from December 1, 1954, and it
is, on that basis, that the promotions, or
appointments, to the Service, are to be made. In this
case, there is no Act of the appropriate Legislature,
regulating the recruitment and conditions of service,
under the 2nd respondent and, therefore, the main
part of Article 309 is not attracted. But, under the
Proviso therein, the President has got full power to
make Rules, regulating the recruitment, and
conditions of service, of persons, under the 2nd
respondent Further, under the Proviso, such person,
as may be directed by the President, can also make
rules, regulating the recruitment and conditions of
service, of persons, under the 2nd respondent. The
rules so made, either by the President, or such
person, as he may direct, will have currency, until
provision, in that behalf, is made by or under an Act,
of the appropriate Legislature, under Article 309.
24. It is also significant to note that the proviso to Article
309, clearly lays down that „any Rules so made
shall have effect, subject to the provisions of any
W.P.(C) No.27353 of 2023 Page 48 of 80
such Act‟. The clear and unambiguous expressions,
used in the Constitution, must be given their full and
unrestricted meaning, unless hedged-in, by any
limitations. The rules, which have to be „subject to
the provisions of the Constitution, shall have effect,
„subject to the provisions of any such Act‟. That is, if
the appropriate Legislature has passed an Act,
under Article 309, the rules, framed under the
proviso, will have effect, subject to that Act; but, in
the absence of any Act, of the appropriate
legislature, on the matter, „in our opinion, the rules,
made by the President, or by such person as he may
direct, are to have full effect, both prospectively, and,
retrospectively. Apart from the limitations, pointed
out above, there is none other, imposed by the
proviso to Article 309, regarding the ambit of the
operation of such-rules. In other words, the Rules,
unless they can be impeached on grounds such
as breach of Part III, or any other
Constitutional provision, must be enforced, if
made by the appropriate authority.”
8.16. A Constitution Bench of the Hon’ble Supreme Court of
India in B.N. Nagarajan Vrs. State of Mysore, AIR 1966
SC 1942 = 1966 3 SCR 682 laid down as follows:
“It would be convenient to deal with this argument at this
stage. Mr. Nambiar contends that the words „shall be as
set forth in the Rules of recruitment of such service
specially made in that behalf‟ clearly show that till the
rules are made in that behalf no recruitment can be made
to any service. We are unable to accept this contention.
First it is not obligatory under proviso to Article 309 to
make Rules of recruitment, etc., before a service can beW.P.(C) No.27353 of 2023 Page 49 of 80
constituted or a post created or filled. This is not to say
that it is not desirable that ordinarily Rules should be
made on all matters which are susceptible of being
embodied in Rules. Secondly, the State Government has
executive power, in relation to all matters with respect to
which the Legislature of the State has power to make
laws. It follows from this that the State Government will
have executive power in respect of List-II, Entry 41, State
Public Services. It was settled by this Court in Ram
Jawaya Kapur Vrs. State of Punjab, (1955) 2 SCR 225
that it is not necessary that there must be a law already
in existence before the executive is enabled to function
and that the powers of the executive are limited merely to
the carrying out of these laws. We see nothing in the
terms of Article 309 of the Constitution which abridges the
power of the executive to act under Article 162 of the
Constitution without a law. It is hardly necessary to
mention that if there is a statutory Rule or an Act on the
matter, the executive must abide by that Act or Rule and it
cannot in exercise of the executive power under Article
162 of the Constitution ignore or Act contrary to that Rule
or Act.”
8.17. Noteworthy here to consider the status of Rules and
Regulations and have reference to Vidya Dhar Pande Vrs.
Vydut Grih Siksha Samiti, AIR 1989 SC 341, wherein it
has been observed that,
“7. Two questions therefore, fall for consideration
namely whether the regulations framed pursuant to
a statute can be said to have a statutory force, the
breach of which will entitle the aggrieved employee
to get a declaration that the impugned order was
invalid and illegal and the employee should be
W.P.(C) No.27353 of 2023 Page 50 of 80
allowed to continue in service or should be
reinstated in service. The High Court has relied upon
the decision of this Court in Dr Ram Pal Chaturvedi
Vrs. State of Rajasthan, (1970) 1 SCC 75 as well as
Indian Airlines Corporation Vrs. Sukhdeo Rai. (1971)
2 SCC 192. In the case of Dr Ram Pal Chaturvedi
Vrs. State of Rajasthan, (1970) 1 SCC 75 the
appointment of three respondents namely Dr D.G.
Ojha, Dr P.D. Mathur and Dr Rishi as Principals of
Sr. Patel Medical College. Bikaner, Rabindra Nath
Tagore Medical College, Udaipur and Medical
College, Jodhpur respectively was challenged on the
ground that though they fulfilled the qualifications
prescribed by Rule 30(4) of the Rajasthan Medical
Service (Collegiate Branch) Rules, 1962, they had
not the requisite experience as provided in
Ordinance 65 framed under the University of
Rajasthan Act of 1946 and as such their
appointments were not valid and legal. The
Syndicate of the Rajasthan University constituted
under Section 21 of the Act is empowered under
Section 29 read with Section 30 to make ordinances,
consistent with the Act and statutes, to provide for
the matters listed in Section 29. These matters
include in clause VI “emoluments and conditions of
service of University teachers”. The Syndicate made
the ordinances pursuant to the provisions of this
section. It was held that: (SCC p. 80, para 4)
„The field of operation of this Ordinance appears to
us to be restricted to the question of affiliation of the
colleges concerned with the Rajasthan University. It
is noteworthy that the University has not thought fit
to object to these appointments. If there is any
violation of a provision of this Ordinance then that
W.P.(C) No.27353 of 2023 Page 51 of 80
may appropriately be taken into account by the
Rajasthan University for the purpose of withdrawing
or refusing to continue affiliation of the colleges in
question. But clearly that would not render the
impugned appointments null and void a fortiorari
that cannot confer any right on Dr Ram Pal
Chaturvedi to approach the High Court by means of
petition for writ of quo warranto to challenge the
appointments of these three persons.‟
8. This decision is not an authority for the proposition
that Regulations framed pursuant to a statute do not
have a statutory force. High Court was in error in
holding otherwise. This question is, however,
concluded in favour of the appellant by a decision of
this Court rendered by a three-Judge Bench.
9. The question whether a regulation framed
under power conferred by the provisions of a
statute has got statutory power and whether
an order made in breach of the said regulation
will be rendered illegal and invalid, came up for
consideration before the Constitution Bench in the
case of Sukhdev Singh Vrs. Bhagatram Sardar
Singh Raghuvanshi, (1975) 1 SCC 421 = (1975) 3
SCR 619. In this case it was held that: [SCC p. 438,
para 33]
„There is no substantial difference between a rule
and a regulation inasmuch as both are subordinate
legislation under powers conferred by the statute. A
regulation framed under a statute applies uniform
treatment to every one or to all members of some
group or class. The Oil and Natural Gas
Commission, the Life Insurance Corporation and Oil
and Industrial Finance Corporation are all required
W.P.(C) No.27353 of 2023 Page 52 of 80
by the statute to frame regulations inter alia for the
purpose of the duties and conduct and conditions of
service of officers and other employees. These
regulations impose obligation on the statutory
authorities. The statutory authorities cannot deviate
from the conditions of service. Any deviation will be
enforced by legal sanction of declaration by courts to
invalidate actions in violations of rules and
regulations. The existence of rules and
regulations under statute is to ensure regular
conduct with a distinctive attitude to that
conduct as a standard. The statutory
regulations in the cases under consideration
give the employee a statutory status and
impose restriction on the employer and the
employee with no option to vary the
conditions.‟
10. There is, therefore, no escape from the
conclusion that regulations have force of law.
The order of the High Court must, therefore, be
reversed on this point unhesitatingly.
11. In Indian Airlines Corporation Vrs. Sukhdeo Rai,
(1971) 2 SCC 192 the respondent who was an
employee of the Indian Airlines Corporation was
found guilty of certain charges and dismissed from
service after an enquiry held in breach of the
procedure laid down by the Regulations made by the
appellant under Section 45 of the Air Corporation
Act, 1953. A suit was filed by the respondent
challenging the order of termination. It was decreed
by the trial court holding that the dismissal was
illegal and granted a declaration that he be
continued to remain in service. The appellate court
W.P.(C) No.27353 of 2023 Page 53 of 80
as well as the High Court confirmed the decree. On
appeal this Court held that the relationship between
the appellant, Indian Airlines Corporation and the
respondent would in such cases be contractual i.e.
as between a master and servant and the
termination of that relationship would not entitle the
servant to a declaration that his employment had
not been validly determined. The termination though
wrongful in breach of the terms and conditions
which governed the relationship between the
Corporation and the respondent yet it did not fall
under any of the three well-recognised exceptions
and therefore the respondent was only entitled to
damages and not to a declaration that his dismissal
was null and void. The respondent has sought
support from this decision. We are afraid the
contention is wholly untenable. The decision in
Indian Airlines case, (1971) 2 SCC 192 has in terms
been declared to be no longer good law and has in
terms been overruled in Sukhdev Singh case, (1975)
1 SCC 421 = (1975) 3 SCR 619 by the Constitution
Bench. Says Ray, C.J. speaking for the Court: [SCC
pp. 437-38, paras 30 and 31]
„In the Indian Airlines Corporation case, (1971) 2
SCC 192 this Court said that there being no
obligation or restriction in the Act or the rules subject
to which only the power to terminate the
employment could be exercised the employee could
not contend that he was entitled to a declaration
that the termination of his employment was null and
void. In the Indian Airlines Corporation case, (1971)
2 SCC 192 reliance was placed upon the decision of
Kruse Vrs. Johnson, (1898) 2 QB 91 for the view
that not all bye-laws have the force of law. This
W.P.(C) No.27353 of 2023 Page 54 of 80
Court regarded regulation as the same thing as bye-
laws. In Kruse Vrs. Johnson, (1898) 2 QB 91 the
court was simply describing the effect that the
county bye-laws have on the public. The
observations of the court in Kruse Vrs. Johnson,
(1898) 2 QB 91 that the bye-law „has the force of
law within the sphere of its legitimate operation‟ are
not qualified by the words that it is so–
„only when affecting the public or some section of the
public. . . ordering something to be done or not to be
done and accompanied by some sanction or penalty
for its non-observance.‟
In this view a regulation is not an agreement or
contract but a law binding the corporation, its
officers, servants and the members of the public who
come within the sphere of its operations. The
doctrine of ultra vires as applied to statutes, rules
and orders should equally apply to the regulations
and any other subordinate legislation. The
regulations made under power conferred by the
statute are subordinate legislation and have the
force and effect, if validly made, as the Act passed
by the competent legislature.
In U.P. Warehousing Corporation Vrs. C.K. Tyagi,
(1969) 2 SCC 838 and Indian Airlines Corporation
case, (1971) 2 SCC 192 the terms of the regulations
were treated as terms and conditions of relationship
between the Corporation and its employees. That
does not lead to the conclusion that they are of the
same nature and quality as the terms and
conditions laid down in the contract of employment.
Those terms and conditions not being contractual are
imposed by one kind of subordinate legislation, viz.
W.P.(C) No.27353 of 2023 Page 55 of 80
regulations made in exercise of the power conferred
by the statute which constituted that Corporation.
Terms of the regulations are not terms of contract. In
the Indian Airlines Corporation case, (1971) 2 SCC
192 under Section 45 of the Air Corporations Act,
1953, the Corporation had the power to make
regulations not inconsistent with the Act and the
rules made by the Central Government thereunder.
The Corporation had no power to alter or modify or
rescind the provisions of these regulations at its
discretion, which it could do in respect of the terms
of contract that it may wish to enter with its
employees independent of these regulations. So far
as the terms of the regulations are concerned, the
actions of the Corporation are controlled by the
Central Government. The decisions of this Court in
U.P. Warehousing Corporation Vrs. C.K. Tyagi,
(1969) 2 SCC 838 and Indian Airlines Corporation,
(1971) 2 SCC 192 are in direct conflict with decision
of this Court in Mafatlal Naraindas Barot Vrs.
Divisional Controller, STC, AIR 1966 SC 1364 =
(1966) 3 SCR 40 which was decided by the
Constitution Bench.‟ ***”
8.18. In Directorate of Film Festivals Vrs. Gaurav Ashwin Jain,
(2007) 4 SCC 737 = (2007) 5 SCR 7, it has succinctly
been held as follows:
“The scope of judicial review of Governmental policy is
now well defined. Courts do not and cannot act as
Appellate Authorities examining the correctness,
suitability and appropriateness of a policy. Nor are
courts Advisors to the executive on matters of policy
which the executive is entitled to formulate. TheW.P.(C) No.27353 of 2023 Page 56 of 80
scope of judicial review when examining a policy of the
Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any statutory
provision or manifestly arbitrary. Courts cannot interfere
with policy either on the ground that it is erroneous or on
the ground that a better, fairer or wiser alternative is
available. Legality of the policy, and not the wisdom
or soundness of the policy, is the subject of judicial
review. [Vide: Asif Hameed Vrs. State of J&K, (1989)
Supp.2 SCC 364; Shri Sitaram Sugar Co. Ltd. Vrs. Union
of India, (1990) 3 SCC 223; Khoday Distilleries Vrs. State
of Karnataka, (1996) 10 SCC 304, Balco Employees Union
Vrs. Union of India, (2002) 2 SCC 333, State of Orissa
Vrs. Gopinath Dash, (2005) 13 SCC 495 and Akhil Bharat
Goseva Sangh Vrs. State of Andhra Pradesh, (2006) 4
SCC 162].”
8.19. This Court feels it expedient to have regard to the
following observation in the case of Devesh Sharma Vrs.
Union of India, 2023 LiveLaw (SC) 633:
“36. The introduction of B.Ed. as a qualification by NCTE
on the directions of the Central Government is a
policy decision of the Government, as has been
submitted before this Court, and is also evident from
the sequence of events, the minutes of the various
meeting and the order passed in this regard. Section
29 of NCTE Act which mandates that NCTE must
follow the directions of the Central Government in
discharging of its functions. It is a policy decision
which binds NCTE.
We have absolutely no doubt in our mind that
policy decisions of the Government should
W.P.(C) No.27353 of 2023 Page 57 of 80
normally not be interfered with, by a
constitutional Court in exercise of its powers of
judicial review. At the same time if the policy
decision itself is contrary to the law and is
arbitrary and irrational, powers of judicial
review must be exercised.
A policy decision which is totally arbitrary; contrary
to the law, or a decision which has been taken
without proper application of mind, or in total
disregard of relevant factors is liable to be interfered
with, as that also is the mandate of law and the
Constitution. This aspect has been reiterated by this
Court time and again.
Judicial review becomes necessary where there
is an illegality, irrationality or procedural
impropriety. These principles were highlighted by
Lord Diplock in Council of Civil Service Unions Vrs.
Minister for the Civil Service, (1984) 3 All ER 935 :
1985 AC 374 : (1984) 3 WLR 1174 (HL) (commonly
known as CCSU case). The above decision has been
referred by this Court in State of NCT of Delhi Vrs.
Sanjeev, (2005) 5 SCC 181. This view was reiterated
again by this Court in State of M.P. & Ors. Vrs. Mala
Banerjee, (2015) 7 SCC 698:
„6. We also find ourselves unable to agree with the
appellants‟ submission that this is a policy
matter and, therefore, should not be interfered
with by the courts. In Federation of Railway
Officers Assn. Vrs. Union of India, (2003) 4
SCC 289, this Court has already considered
the scope of judicial review and has
enumerated that where a policy is contrary to
law or is in violation of the provisions of the
W.P.(C) No.27353 of 2023 Page 58 of 80
Constitution or is arbitrary or irrational, the
courts must perform their constitutional duties
by striking it down…‟In Brij Mohan Lal Vrs. Union of India, (2012) 6 SCC
502 this Court reiterated on this aspect and made
out a distinction as to where an interference to
a decision is required, and whereas it is not:
„100. Certain tests, whether this Court should or not
interfere in the policy decisions of the State, as
stated in other judgments, can be summed up
as:
(I) If the policy fails to satisfy the test of
reasonableness, it would be
unconstitutional.
(II) The change in policy must be made fairly
and should not give the impression that it
was so done arbitrarily on any ulterior
intention.
(III) The policy can be faulted on grounds of
mala fides, unreasonableness,
arbitrariness or unfairness, etc.(IV) If the policy is found to be against any
statute or the Constitution or runs counter
to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or
legislations.
(VI) If the delegate has acted beyond its
power of delegation.
W.P.(C) No.27353 of 2023 Page 59 of 80
101. Cases of this nature can be classified into two
main classes: one class being the matters
relating to general policy decisions of the State
and the second relating to fiscal policies of the
State. In the former class of cases, the courts
have expanded the scope of judicial review
when the actions are arbitrary, mala fide or
contrary to the law of the land; while in the
latter class of cases, the scope of such judicial
review is far narrower. Nevertheless,
unreasonableness, arbitrariness, unfair actions
or policies contrary to the letter, intent and
philosophy of law and policies expanding
beyond the permissible limits of delegated
power will be instances where the courts will
step in to interfere with Government policy.”
The decision whether to include or exclude B.Ed. as
a qualification for teachers in primary school is an
academic decision, which has to be taken after
proper study by the academic body i.e. NCTE and
should be better left to this expert body.”
8.20. Judicial review vis-à-vis non-uploading requisite
documents being discussed in Rohit Kumar Vrs. Union of
India, 2022 SCC OnLine Del 1219 requires to be taken
note of:
“10. The petitioner was declared successful in Stage I i.e.
“written examination” conducted on 28-9-2021 and
Stage II i.e. physical fitness test (PFT) held on 16-11-
2021. Stage II was to be followed by document
verification but was declared failed during
scrutiny/verification of documents. The petitionerW.P.(C) No.27353 of 2023 Page 60 of 80
was declared unsuccessful in document verification
conducted on 16-11-2021 on two counts as OBC
certificate uploaded by the petitioner was not as per
the format as mentioned in para 6(c) (v) Note (aaa) of
advertisement Cgept-1/2022 Batch i.e. the format
mandated for appointment to the posts under
Government of India despite it was mentioned in the
advertisement that no other format will be
entertained and candidature would be cancelled if
OBC certificate in any other format is submitted and
the petitioner mentioned date of issuance of OBC
certificate as 10-5-2021 in online application
whereas in two OBC certificates submitted by the
petitioner, the dates of OBC certificate were
mentioned as 10.05.2018 and 20.07.2021 which
was not in accordance with Para 5(c)(i) of the
advertisement. The petitioner did not dispute these
facts. The representation submitted by the petitioner
was rejected on 30.11.2021.
11. The petitioner is seeking judicial review of acts
of the respondents in cancelling his
candidature for post of Navik (DB) as arbitrary,
mala fide and against principles of natural
justice. The purpose of judicial review is to ensure
that the individual is given fair treatment by the
authority to which he has been subjected. Judicial
review is designed to prevent the excess and abuse
of power by public authorities. It was held in Chief
Constable of North Wales Police Vrs. Evans, (1982) 1
WLR 1155 = (1982) 3 All ER 141 that the purpose of
judicial review is to ensure that the individual
receives fair treatment. In Laker Airways Ltd. Vrs.
Deptt. of Trade, 1977 QB 643 = (1977) 2 WLR 234 =
(1977) 2 All ER 182, it was observed thatW.P.(C) No.27353 of 2023 Page 61 of 80
discretionary power is to be exercised for the public
goods and this exercise can be examined by the
courts. Lord Diplock in Council of Civil Service
Unions Vrs. Minister for the Civil Service, 1985 AC
374 = (1984) 3 WLR 1174 observed that
administrative action is subject to judicial review on
the grounds which are “illegality”, “irrationality” and
“procedural impropriety”.
12. In India, negation of arbitrariness in the exercise of
public power is considered to be cardinal component
of the rule of law. The courts in India have
invalidated arbitrary exercise of administrative
power. Article 14 of the Constitution strikes at
arbitrariness in State action and ensures fairness
and equality of treatment. In E.P. Royappa Vrs.
State of T.N., (1974) 4 SCC 3 = AIR 1974 SC 555, the
Supreme Court observed that Article 14 embodied a
guarantee against arbitrariness. The Supreme Court
in Maneka Gandhi Vrs. Union of India, (1978) 1 SCC
248 = AIR 1978 SC 597 observed that Article 14
strikes at arbitrariness in State action and ensure
fairness and equality of treatment. It was also
observed in S.R. Bommai Vrs. Union of India, (1994)
3 SCC 1 = AIR 1994 SC 1918 that the purpose of
judicial review is to ensure that the individual is
given fair treatment by the authority and is basic
feature of the Constitution.
13. However judicial review is concerned with legality
rather than merit of the case. The courts cannot
substitute its own view in exercise of power of
judicial review. The judicial review is not an appeal
against the decision taken by the authority
concerned. Judicial review is stated to be protection
W.P.(C) No.27353 of 2023 Page 62 of 80
and not a weapon. In Tata Cellular Vrs. Union of
India, (1994) 6 SCC 651 observed that judicial
review is concerned with reviewing and not
with merits of the decision.
14. The recruitment refers to the process of finding
possible suitable candidates for a job or function to
be undertaken by the recruiters and advertising is
common part of the recruiting process. It is for the
employer to prescribe modalities of selection
process, eligibility criteria and conditions for
potential candidates.
15. The Supreme Court in various decisions considered
relevance of conditions prescribed for recruitment to
any post. The Supreme Court in J. Ranga Swamy
Vrs. Govt. of A.P., (1990) 1 SCC 288 observed that it
is not for the court to consider the relevance of
qualifications prescribed for various posts. In Yogesh
Kumar Vrs. State (NCT of Delhi), (2003) 3 SCC 548,
the Supreme Court observed that recruitment to
public service should be held strictly in
accordance with the terms of advertisement
and the recruitment rules, if any and further
deviation from the rules allows entry to
ineligible persons and deprives many others
who could have competed for the post. The
Supreme Court in Bedanga Talukdar Vrs.
Saifudaullah Khan, (2011) 12 SCC 85 observed as
under:
„It is too well settled to need any further reiteration
that all appointments to public office have to be
made in conformity with Article 14 of the
Constitution of India. In other words, there must be
no arbitrariness resulting from any undue favour
W.P.(C) No.27353 of 2023 Page 63 of 80
being shown to any candidate. Therefore, the
selection process has to be conducted strictly in
accordance with the stipulated selection procedure.
Consequently, when a particular schedule is
mentioned in an advertisement, the same has to be
scrupulously maintained. There cannot be any
relaxation in the terms and conditions of the
advertisement unless such a power is specifically
reserved. Such a power could be reserved in the
relevant statutory rules. Even if power of relaxation
is provided in the rules, it must still be mentioned in
the advertisement. In the absence of such power in
the rules, it could still be provided in the
advertisement. However, the power of relaxation, if
exercised has to be given due publicity. This would
be necessary to ensure that those candidates, who
become eligible due to the relaxation, are afforded
an equal opportunity to apply and compete.
Relaxation of any condition in advertisement without
due publication would be contrary to the mandate of
quality contained in Articles 14 and 16 of the
Constitution of India.‟
16. The Supreme Court in Punjab National Bank Vrs.
Anit Kumar Das, 2020 SCC OnLine SC 897 held as
under:
„It is for the employer to determine and decide the
relevancy and suitability of the qualifications for any
post and it is not for the courts to consider and
assess. The greater latitude is permitted by the
courts for the employer to prescribe qualifications for
any post. There is a rationale behind it.
Qualifications are prescribed keeping in view the
need and interest of an institution or an industry orW.P.(C) No.27353 of 2023 Page 64 of 80
an establishment as the case may be. The courts are
not fit instruments to assess expediency or
advisability or utility of such prescription of
qualifications. However, at the same time, the
employer cannot act arbitrarily or fancifully in
prescribing qualifications for posts.‟***
18. This Court in various decisions also considered
deviation in terms and conditions prescribed by any
public authority for recruitment of any post. This
Court in Union Public Service Commission Vrs. State
(NCT of Delhi), 2010 SCC OnLine Del 293 held that
no deviation from the terms and conditions of an
advertisement and rules for the recruitment for a
public office shall be permitted, as such deviation
would result in gross injustice to other candidates.
This Court again in decision delivered in Union
Public Services Commission Vrs. Tarun Arora, 2017
SCC OnLine Del 12884 has held that while there is
no straitjacket precept to balance the administrative
difficulties that may arise as a result of rectifying a
lapse, the court would give precedence to the
compelling difficulties which may arise upon
considering the application. It was observed as
under:
„15. We appreciate and can understand the
frustration of the respondent as he has the
requisite qualifications yet would suffer for the
lapse and error on his part in filling the online
application form. At the same time, to accept
the plea of the respondent in the present case
would lay down the wrong precedent, which
would lay the foundation for administrative
W.P.(C) No.27353 of 2023 Page 65 of 80
confusion and chaos. The selection process
would halt, get stalled, and would possibly
collapse.
16. The courts, while examining such issues have
to maintain a right balance between the
mistake and chance to rectify the lapse, and
the administrative difficulties and
consequences. Administrative difficulties, thus,
should be balanced with the adverse impact
befalling the candidate. A straitjacket precept
in Pradeep Kumar Vrs. Union of India, (2022) 1
HCC (Del) 287 p. 8 of 8 may not be universally
applicable. The nature of the selection process,
the terms stipulated, whether the rectification
and amendment would make the selection
process unyielding and unmanageable, are
different facets which must be considered.
Where the application forms are vague and
unclear, the benefit must and should be given
to the applicant.
17. In the present case, the administrative
difficulties which are compelling must be given
primacy, for otherwise the selection process
would be impede, become disorderly and
crumble. The present case does not warrant
indulgence and concession to the respondent.‟
19. The counsel for the petitioner cited Ram Kumar
Gijroya Vrs. Delhi Subordinate Services Selection
Board, (2016) 4 SCC 754 by the Supreme Court of
India. The said appeals were arisen out of the
impugned common judgment and order dated
24.01.2012 passed by the High Court of Delhi in
Delhi Subordinate Services Selection Board Vrs. Ram
W.P.(C) No.27353 of 2023 Page 66 of 80
Kumar Gijroya, 2012 SCC OnLine Del 472 whereby
the High Court had set aside the judgment and order
dated 24.11.2010 passed in Ram Kumar Gijroyer
Vrs. Govt. of NCT of Delhi, 2010 SCC OnLine Del
4780 wherein the learned Single Judge had allowed
the writ petition and directed the respondents to
accept the OBC certificate of the appellants therein.
The important question of law to be decided in
those appeals was whether a candidate who
appears in an examination under the OBC
category and submits the certificate after the
last date mentioned in the advertisement was
eligible for selection to the post under the OBC
category or not.
20. In the said case, the respondent Delhi Subordinate
Services Selection Board (hereinafter referred to as
“the Dsssb”) invited applications for selection to the
post of Staff Nurse in the Department of Health and
Family Welfare, Government of NCT of Delhi. The
appellant submitted the application before the due
date and was shortlisted for selection but his name
did not appear in the final list of selected
candidates. The appellant was informed that he
was not selected to the post as he did not
submit OBC certificate along with application
form before the last date of submission of
application form.
21. The appellant, along with the other aggrieved
candidates, filed WP (C) No. 382 of 2009 before this
Court seeking the issuance of a writ of mandamus
commanding the respondent Dsssb to accept the
OBC certificates after cut-off date for selection to the
post of Staff Nurse as provided in the advertisement.
W.P.(C) No.27353 of 2023 Page 67 of 80
The appellant relied on Pushpa Vrs. State (NCT of
Delhi), 2009 SCC OnLine Del 281 by this Court
whereby the court had granted OBC benefit to the
petitioners therein. The respondent Dsssb filed
Letters Patent Appeal No. 562 of 2011 before the
Division Bench of this Court. This Court has set
aside the order of the learned Single Judge and
allowed the letters patent appeal filed by the
respondent Dsssb by holding that as the appellant
herein applied for OBC certificate only ten days prior
to the cut-off date and hence, no case for grant of
relief in favour of the appellant was made out and
also observed that decision in Pushpa Vrs. State
(NCT of Delhi), 2009 SCC OnLine Del 281 is not
applicable.
22. The Supreme Court observed that the Division Bench
of this Court erred in not considering the decision
rendered in Pushpa Vrs. State (NCT of Delhi), 2009
SCC OnLine Del 281 wherein the learned Single
Judge had rightly held that the petitioners therein
were entitled to submit the OBC certificate before the
provisional selection list was published to claim the
benefit of the reservation of OBC category. ***
23. We are of the considered opinion that the decision
delivered in Ram Kumar Gijroya Vrs. Delhi
Subordinate Services Selection Board, (2016) 4 SCC
754 is not applicable in present case under given
facts and circumstances due to reasons stated in
Ram Kumar Gijroya Vrs. Delhi Subordinate Services
Selection Board, (2016) 4 SCC 754, the appellant
was permitted to submit OBC certificate after ten
days from the last date of submission of application
for the post of Staff Nurse whereas, in the present
W.P.(C) No.27353 of 2023 Page 68 of 80
case, the petitioner submitted OBC certificate at the
time of submission of online application but OBC
certificate was not in accordance with format as
prescribed in advertisement for post of Navik (DB)
and date of issuance of OBC certificate as
mentioned in online application was not matching
with date of issuance of OBC certificate as
mentioned in OBC certificate submitted at time of
verification of the documents.
24. A Division Bench of this Court in Pradeep Kumar
Vrs. Union of India, (2022) 1 HCC (Del) 287
considered disqualification of the candidature of the
petitioner therein for recruitment in the Indian Coast
Guard (ICG) due to supply of incorrect details at the
time of filling up the application form. The petitioner
therein pursuant to a notification issued by the ICG
applied for the post of Navik (GD). The petitioner
after clearing the Stage I of the recruitment process
was directed to report on 16-11-2021 at
Gandhinagar, Gujarat for Stage II of the recruitment
process which included a physical fitness test and
document verification. The petitioner was declared
as “pass” in Stage II of the recruitment process as
well but later received an e-mail from the recruitment
section, Cgrhq (NW), Gandhinagar on 24.11.2021
enclosing a show-cause notice as to why petitioner
be not failed in document verification for discrepancy
of uploading self-photograph in place of the ID proof
(Aadhar card) thereby not meeting the criteria as
mentioned in Para 5(B)(b) of Cgept 1/2022 Batch
advertisement and Para 14(b)(xxi) of the e-admit
card. The petitioner duly replied to the said show-
cause notice and enclosed therewith a copy of his
Aadhaar card. The petitioner received another e-mail
W.P.(C) No.27353 of 2023 Page 69 of 80
stating that his action of uploading the self-
photograph in place of his ID proof (Aadhar card)
was in violation of the criteria mentioned in Para
5(B)(b) of the Cgept 1/2022 Batch advertisement as
well as Para 14(b)(xxi) of the e-admit card issued to
the petitioner and that his candidature was
cancelled. The petitioner sought directions to the
respondents to consider the petitioner as qualified
and to consider his candidature in further stages of
the recruitment process. The Division Bench after
considering relevant clauses of advertisement and
referring T. Jayakumar Vrs. A. Gopu, (2008) 9 SCC
403 observed that despite clear warning given to the
petitioner, he was clearly negligent in uploading his
self-photograph instead of his photo identity proof
with the application and the petitioner cannot claim
any special equity only because such mistake went
unnoticed at the earlier stage of the recruitment
process and was noticed only at document
verification stage. The petition was accordingly
dismissed. (Also refer Aman Yadav Vrs. Union of
India, 2022 SCC OnLine Del 493 by this Court).”
8.21. A Co-ordinate Bench of this Court made observation as
follows in the case of Smita Panda Vrs. State of Odisha,
W.P.(C) No. 20670 of 2011, vide Judgment dated
19.11.2019:
“9. In Bhupinderpal Singh Vrs. State of Punjab, AIR
2000 SC 2011, the apex Court in paragraph-13
ruled as follows:
„Placing reliance on the decisions of this Court in
Ashok Kumar Sharma Vrs. Chander Shekhar & Anr.
W.P.(C) No.27353 of 2023 Page 70 of 80
JT 1997 (4) SC 99; A.P. Public Service Commission
Vs. B. Sarat Chandra & Ors. 1990 (4) SLR 235; The
Distt. Collector and Chairman, Vizianagaram (Social
Welfare Residential School Society) Vizianagaram
and Anr. Vs. M. Tripura Sundari Devi 1990 (4) SLR
237; Mrs. Rekha Chaturvedi Vs. University of
Rajasthan & Ors. JT 1993 (1) SC 220; Dr. M.V. Nair
Vs. Union of India & Ors. 1993 (2) SCC 429; and
U.P. Public Service Commission, U.P., Allahabad &
Anr. Vs. Alpana JT 1994 (1) SC 94, the High Court
has held
(i) that the cut-off date by reference to which the
eligibility requirement must be satisfied by the
candidate seeking a public employment is the
date appointed by the relevant service rules
and if there be no cut-off date appointed by the
rules then such date as may be appointed for
the purpose in the advertisement calling for
applications;
(ii) that if there be no such date appointed then the
eligibility criteria shall be applied by reference
to the last date appointed by which the
applications have to be received by the
competent authority.
The view taken by the High Court is supported by
several decisions of this Court and is therefore well
settled and hence cannot be found fault with.
However, there are certain special features of this
case which need to be taken care of and justice done
by invoking the jurisdiction under Article 142 of the
Constitution vested in this Court so as to advance
the cause of justice.‟
W.P.(C) No.27353 of 2023 Page 71 of 80
10. It has been specifically stated by the apex Court that
if there was no such date of appointment then the
eligibility criteria shall be applied by reference to the
last date of appointment by which the application
has to be received by the competent authority.
Therefore, in absence of any rules and guidelines or
materials on record, the last date of submission of
application by which the applications have to be
received by the competent authority, being
09.10.2009, by that time the petitioner had not
produced the disability certificate, thereby she
herself incurs disqualification for submission of
application, which ought not have been taken into
consideration by the authority. Learned Addl.
District Magistrate, while considering the appeal in
Annexure-4, has lost sight of this fact. Therefore,
order so passed in Annexure-4 cannot sustain in the
eye of law and the same is hereby quashed.
Accordingly, engagement of opposite party no.4 also
cannot sustain and the same is hereby quashed.
The opposite parties are directed to take necessary
steps with regard to engagement of anganwadi
worker in respect of Thakurpatna Mini Anganwadi
centre of Daipur Gram Panchayat taking into
consideration the selection made pursuant to the
application submitted by 09.12.2009 in accordance
with law. The entire exercise shall be done within a
period of four months from the date of passing of
this judgment.”
8.22. In the instant case, the Rules framed under proviso to
Article 309 of the Constitution of India and Regulations
made in exercise of power under a statute prescribed the
conditions of eligibility of candidates for making
W.P.(C) No.27353 of 2023 Page 72 of 80
Application for recruitment of AMO, which is policy of
the Government-employer. The petitioners have not
made out case in their favour to hold that any of the
contentions and averments satisfies the parameters laid
down by the Hon’ble Supreme Court India to interdict in
exercise of judicial review under Article 226/227 of the
Constitution of India.
Conclusion:
9. With the delineated perspective of settled position of law
as enunciated by different Courts and the factual matrix
of the instant case as discussed above with the reasons
ascribed herein above, on conjoint reading of Rule 4 of
the Indian Medicine Central Council (Minimum
Standards of Education in Indian Medicine)
(Amendment) Regulations, 2012, Rule 7(d) of the Odisha
Ayurvedic Medical Service (Method of Recruitment and
Conditions of Service) Rules, 2013 and Clause-4 read
with Clause-8 of the Advertisement No.03 of 2023-24
finds no merit in the contention of the petitioners as the
award of Bachelor’s Degree in Ayurvedacharya/BAMS,
could only be made in respect of the petitioners only
after 18.06.2023 which fell after the last date for
submission of the Application Forms, i.e., 08.06.2023.
As material on record evinced that the petitioners had no
requisite eligibility on the said last date specified in the
W.P.(C) No.27353 of 2023 Page 73 of 80
Advertisement, their candidature was rightly not
accepted by the opposite parties.
9.1. This Court vide Order dated 25.08.2023 passed in the
instant writ petition clarified as follows:
“12. As an interim measure, it is further directed that the
order vide Notice No.24.08.2023 shall not be allowed
to participate in the recruitment process, however,
their results shall not be published by the Odisha
Public Service Commission and further their
participation shall be subject to result of the present
writ petition.
13. It is further made clear that the participation by
virtue of this interim order shall not confer any
equity on the petitioners at the time of final hearing
of the present writ petition and this interim order is
confined to the present petitioners only.”
9.2. As it is perceived by this Court that since on the last
date of submission of Application Form for recruitment
to the post of AMO, the petitioners did not possess
requisite qualification, their candidature was rejected.
But considering the direction for invocation of Rule 18 of
the OAMS Rules, 2013 vide Order dated 21.06.2023 in
W.P.(C) No.18965 of 2023, and referring to fresh
representation dated 01.07.2023 as considered by the
Government in the impugned Order dated 04.08.2023,
this Court would wish to take note of Rule 18 of the
OAMS Rules, 2013, which stands thus:
W.P.(C) No.27353 of 2023 Page 74 of 80
―18. Relaxation:
When it is considered by the Government 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 Rules
in respect of any class or category of the
employees.”
9.3. Having perused the other reason assigned by the
Government while rejecting the representation dated
01.07.2023 is that the invocation of said Rule 18 for
relaxing any provisions of the Rules has to have public
interest, which is lacking in the present case.
9.4. Sri Lalatendu Samantaray and Sri Satyabrata Mohanty,
learned Advocates drew attention of this Court to
paragraph 22 of the writ petition, wherein it has been
averred as follows:
“That, as per information received by the Petitioners, the
State Government on earlier occasions i.e. during the year
1979, 1983 and 1990 have allowed the candidates
undergoing Housemenship training to take part in the
interview for the post of Ayurvedic Medical Officers. The
learned State Administrative Tribunal, Bhubaneswar in
O.A. No. 1068 of 1990 (Dayanidhi Dwibedi Vs. Director of
Indian Medicine and Others) in its Judgment dated
04.01.1993 while referring to the Counter Affidavit filed
by the opposite party No.1, has been pleased to observe
that during the year 1979, 1983 and 1990 opposite party
No.1 has allowed the candidates undergoing
Housemenship training to take part in the interview. In
view of the above precedents, the case of poor petitionersW.P.(C) No.27353 of 2023 Page 75 of 80
should also be allowed to take part in the recruitment
process in pursuance to the present advertisement.”
9.5. This Court was taken to consider the tenor of Order
dated 04.01.1993 passed in O.A. No.1068 of 1990
(Dayanidhi Dwivedi & 20 others Vrs. Director of Indian
Medicines and Homeopathic, Orissa, Bhubaneswar)
wherein similar objections as arose in the present case
have been considered by the Odisha Administrative
Tribunal, Bhubaneswar (Division Bench). It was
observed that the applications of the candidates were
rejected for non-completion of Housemanship course. At
paragraphs 15 and 16 of the said order, the following
observations are made:
―15. The stand of the opposite parties as stated above in
opposition to our direction, is two-fold:
(1) Without registration as envisaged under Rule
39(2), there cannot be any appointment and(2) Without being sponsored by the Employment
Exchange there cannot be any appointment.
So far as the first objection is concerned we have not
stated anywhere that in relaxation of the rule as
envisaged under Rules 39 regarding registration as
a medical practitioner, any one of the petitioners
should be appointed. After the interview if a selected
candidate is found to have not registered his name
as a medical practitioner, he is bound to be
discarded. So far as the second objection is
concerned, we have never stated anywhere that
W.P.(C) No.27353 of 2023 Page 76 of 80
there should be any relaxation so far as the
Employment Exchange regulation is concerned. For
any public employment, the regulation of the
Employment Exchange cannot be given a go by such
persons who names were sponsored by the
Employment Exchange were duly considered along
with the present petitioners. Their names could not
have possibly been sponsored by the Employment
Exchange as they had not completed the
Housemanship course. It is only after completion of
the Housemanship course, a candidate can register
his name in the Employment Exchange. We have
explained in the proceeding paragraphs clearly and
vividly the hazards which the present petitioners
faced for not completing the Housemanship course in
time for or fault of theirs only due to the inordinate
delay in conducting the examination and publishing
result thereof. Under such circumstances we had
directed the competent authority to allow them to
appear at the interview/test. Once we directed the
Opposite Parties to allow the petitioners to appear at
the interview/test, the authorities concerned
examined thoroughly the eligibility and proficiency of
each candidate appearing at the test and selections
are made solely on the basis of merits. Therefore,
there was no compromise either with the merit or
with the eligibility.
16. For the discussions made in the foregoing
paragraphs, we would direct that as per the
selection list in order of merit, the competent
authority shall be at liberty to appoint persons to the
post of Ayurvedic Medical Officers.
W.P.(C) No.27353 of 2023 Page 77 of 80
With the above direction, the application is finally
disposed of. We make no order as to costs.”
9.6. While disposing of W.P.(C) No. 18965 of 2023, this Court
vide Order dated 21.06.2023 has made it clear that on
the petitioners filing fresh representation before the
opposite party No.1 taking therein the grounds for
relaxation under Rule 18 of the 2013 Rules, the same
would be considered by the said opposite party in
accordance with said Rule.
9.7. It does not seem from the Order dated 04.08.2023
passed by the Commissioner-cum-Secretary,
Government of Odisha in Health and Family Welfare
Department (Annexure-14) that the aforesaid decision of
learned Odisha Administrative Tribunal was brought to
his notice for consideration of invocation of Rule 18 of
the Odisha Ayurvedic Medical Services (Method of
Recruitment and Conditions of Service) Rules, 2013. The
said opposite party with a terse order assigned reason
that the cause of the petitioners is ―individual‖, but not
involving public interest. To discern rational application
of mind vis-à-vis consideration of scope relaxation of
provisions of the Rules invoking Rule 18 of the Odisha
Ayurvedic Medical Services (Method of Recruitment and
Conditions of Service) Rules, 2013 with reference to
earlier considered occasions for such relaxation in view
of Order dated 04.01.1993 passed in O.A. No.1068 of
W.P.(C) No.27353 of 2023 Page 78 of 80
1990 (Dayanidhi Dwivedi & 20 others Vrs. Director of
Indian Medicines and Homeopathic, Orissa,
Bhubaneswar) passed by the Odisha Administrative
Tribunal, this matter deserves to be remitted for
reconsideration by the opposite party No.1.
9.8. Therefore, this Court, in the interest of justice, deems it
appropriate to direct the opposite party No.1-
Commissioner-cum-Secretary, Health and Family Welfare
Department to reconsider the grievance of the petitioners
by invoking power under Rule 18 of the Odisha
Ayurvedic Medical Services (Method of Recruitment and
Conditions of Service) Rules, 2013 to relax any
provisions of the Rules keeping in view that the
Government on earlier occasions took decision by
relaxing the conditions contained in the Rules and in the
light of decision of the Odisha Administrative Tribunal
vide Order dated 04.01.1993 passed in O.A. No.1068 of
1990 (Dayanidhi Dwivedi & 20 others Vrs. Director of
Indian Medicines and Homeopathic, Orissa,
Bhubaneswar). It may be impressed upon the opposite
party No.1 that while considering the plight of the
petitioners as directed above, the said opposite party
take into consideration the factual aspects that ―4th
Semester Examination of the year December, 2021 was
conducted in March, 2022 and result was published on
09.06.2022‖ and ―Advertisement to the post is also not
W.P.(C) No.27353 of 2023 Page 79 of 80
regularly published by OPSC‖ as found mentioned in the
representation of the petitioners dated 01.07.2023.
10. In the wake of the above, the opposite party No.1-
Commissioner-cum-Secretary, Health and Family Welfare
Department is directed to reconsider the case of the
petitioners for invoking Rule 18 of the Odisha Ayurvedic
Medical Services (Method of Recruitment and Conditions
of Service) Rules, 2013, as observed supra, within a
period of eight weeks from today.
11. With the above observation and direction, the writ
petition stands disposed of, but in the circumstances,
there shall be no order as to costs.
Signature Not (MURAHARI SRI RAMAN)
Verified JUDGE
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary-in-charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 27-Jan-2025 15:52:17
High Court of Orissa, Cuttack
The 27th January, 2025//Aswini/MRS/Laxmikant
W.P.(C) No.27353 of 2023 Page 80 of 80
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