Orissa High Court
State Of Odisha And Others vs Bisheshawar Biswal And Others on 25 March, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.3321 of 2024
State of Odisha and others ..... Appellants
versus-
Bisheshawar Biswal and others ..... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Miss Pami Rath, Senior Advocate
Mr. Rajib Rath, Advocate
W.A. No.3385 of 2024
State of Odisha and others ..... Appellants
versus-
Laxmidhar Jena and others ..... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Biplab P.B. Bahali, Advocate
W.A. No.3390 of 2024
State of Odisha and others ..... Appellants
versus-
Chitaranjan Subudhi ..... Respondent
W.A. no.3321 of 2024 and batch Page 1 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prafulla Ku. Mohapatra, Advocate
W.A. No.3391 of 2024
State of Odisha and others ..... Appellants
versus-
Deepak Kumar Padhi ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Rajib Rath, Advocate
W.A. No.3392 of 2024
State of Odisha and others ..... Appellants
versus-
Chitta Ranjan Das ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Rajib Rath, Advocate
W.A. no.3321 of 2024 and batch Page 2 of 36
W.A. No.3397 of 2024
State of Odisha and others ..... Appellants
versus-
Dhananjaya Kar ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Kunal Ku. Swain, Senior Advocate
W.A. No.3398 of 2024
State of Odisha and others ..... Appellants
versus-
Papun Dash ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Madan Mohan Das, Advocate
W.A. No.3400 of 2024
State of Odisha and others ..... Appellants
versus-
Tuna Das ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Kshirod Ku. Rout, Advocate
W.A. no.3321 of 2024 and batch Page 3 of 36
W.A. No.3404 of 2024
State of Odisha and others ..... Appellants
versus-
Kanhu Charan Gochhayat ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondent : Mr. K.K. Bhuyan, Advocate
W.A. No.3405 of 2024
State of Odisha and others ..... Appellants
versus-
Prasant Kumar Dalei ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Biplab P.B. Bahali, Advocate
W.A. No.3406 of 2024
State of Odisha and others ..... Appellants
versus-
Bhabakanta Panda ..... Respondent
W.A. no.3321 of 2024 and batch Page 4 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.3416 of 2024
State of Odisha and others ..... Appellants
versus-
Santosh Kumar Sahoo ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Ms. Pami Rath, Sr. Advocate
W.A. No.3419 of 2024
State of Odisha and others ..... Appellants
versus-
Lalit Mohan Mohanty ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Biplab P.B. Bahali, Advocate
W.A. no.3321 of 2024 and batch Page 5 of 36
W.A. No.3438 of 2024
State of Odisha and others ..... Appellants
versus-
Asish Kumar Dash ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Panchanan Panigrahi, Advocate
W.A. No.3443 of 2024
State of Odisha and others ..... Appellants
versus-
Manoranjan Budula ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.3445 of 2024
State of Odisha and others ..... Appellants
versus-
Nilamani Naik ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Anurag Pati, Advocate
W.A. no.3321 of 2024 and batch Page 6 of 36
W.A. No.3448 of 2024
State of Odisha and others ..... Appellants
versus-
K. Trinath Patra ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prasanna Ku. Sahoo, Advocate
W.A. No.3449 of 2024
State of Odisha and others ..... Appellants
versus-
Antarjyami Naik ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.3452 of 2024
State of Odisha and others ..... Appellants
versus-
Golekha Pattanayak ..... Respondent
W.A. no.3321 of 2024 and batch Page 7 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Rajib Rath, Advocate
W.A. No.3457 of 2024
State of Odisha and others ..... Appellants
versus-
Sanatan Swain ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Madan Mohan Das, Advocate
W.A. No.3464 of 2024
State of Odisha and others ..... Appellants
versus-
Hapina Nayak and others ..... Respondents
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Rajib Rath, Advocate
W.A. no.3321 of 2024 and batch Page 8 of 36
W.A. No.3475 of 2024
State of Odisha and others ..... Appellants
versus-
Sambhunath Sethy ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Madan Mohan Das, Advocate
W.A. No.3476 of 2024
State of Odisha and others ..... Appellants
versus-
Anil Kumar Sethy ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.3477 of 2024
State of Odisha and others ..... Appellants
versus-
Roshan Nag ..... Respondent
W.A. no.3321 of 2024 and batch Page 9 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Laxmidhar Pangari, Sr. Advocate
Miss Azra Jamal, Advocate
W.A. No.3478 of 2024
State of Odisha and others ..... Appellants
versus-
Bijesh Kumar Sahoo ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.3482 of 2024
State of Odisha and others ..... Appellants
versus-
Akshya Kumar Chouhan ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. no.3321 of 2024 and batch Page 10 of 36
W.A. No.3486 of 2024
State of Odisha and others ..... Appellants
versus-
Ananta Kishore Mohanty ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Maheswar Mohanty, Advocate
W.A. No.3488 of 2024
State of Odisha and others ..... Appellants
versus-
Akash Rout ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.3489 of 2024
State of Odisha and others ..... Appellants
versus-
Abinash Sahoo ..... Respondent
W.A. no.3321 of 2024 and batch Page 11 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.3495 of 2024
State of Odisha and others ..... Appellants
versus-
Ashok Kumar Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Rajib Rath, Advocate
W.A. No.3499 of 2024
State of Odisha and others ..... Appellants
versus-
Guruprasad Pradhan ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. no.3321 of 2024 and batch Page 12 of 36
W.A. No.3500 of 2024
State of Odisha and others ..... Appellants
versus-
Abinash Soren ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Sushanta Ku. Mishra, Advocate
W.A. No.3502 of 2024
State of Odisha and others ..... Appellants
versus-
Sitaram Bag ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Sarojkanta Mandal, Advocate
W.A. No.3503 of 2024
State of Odisha and others ..... Appellants
versus-
Bijaya Kumar Das ..... Respondent
W.A. no.3321 of 2024 and batch Page 13 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Madan Mohan Das, Advocate
W.A. No.3505 of 2024
State of Odisha and others ..... Appellants
versus-
Ramakanta Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondent : Mr. Prakash Ch. Dash, Advocate
W.A. No.3506 of 2024
State of Odisha and others ..... Appellants
versus-
Rajendra Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondent : Mr. Maheswar Mohanty, Advocate
W.A. no.3321 of 2024 and batch Page 14 of 36
W.A. No.3507 of 2024
State of Odisha and others ..... Appellants
versus-
Satyajit Rana ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Madan Mohan Das, Advocate
W.A. No.3510 of 2024
State of Odisha and others ..... Appellants
versus-
Manas Ranjan Rout ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Laxmidhar Pangari, Sr. Advocate
Ms. Azra Jamal, Advocate
W.A. No.3511 of 2024
State of Odisha and others ..... Appellants
versus-
Rohita Sethi ..... Respondent
W.A. no.3321 of 2024 and batch Page 15 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.8 of 2025
State of Odisha and others ..... Appellants
versus-
Smruti Ranjan Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.12 of 2025
State of Odisha and others ..... Appellants
versus-
Sunil Kumar Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. no.3321 of 2024 and batch Page 16 of 36
W.A. No.14 of 2025
State of Odisha and others ..... Appellants
versus-
Sasadhar Jena ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.19 of 2025
State of Odisha and others ..... Appellants
versus-
Alok Kumar Naik ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prafulla Ku. Kar, Advocate
W.A. No.23 of 2025
State of Odisha and others ..... Appellants
versus-
Kamal Behera ..... Respondent
W.A. no.3321 of 2024 and batch Page 17 of 36
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Rout, Advocate
W.A. No.25 of 2025
State of Odisha and others ..... Appellants
versus-
Pabitra Dash ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. Prakash Ch. Dash, Advocate
W.A. No.55 of 2025
State of Odisha and others ..... Appellants
versus-
Pramod Behera ..... Respondent
Advocates appeared in this case:
For Appellants : Mr. Pitambar Acharya, Advocate General
Mr. Saswat Das, Addl. Govt. Advocate
For Respondents : Mr. K.K. Bhuyan, Advocate
W.A. no.3321 of 2024 and batch Page 18 of 36
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
——————————————————————————————————-
Dates of hearing: 13th March, 2025, 20th March, 2025,
24th March, 2025 and 25th March, 2025
Date of Judgment: 25th March, 2025
——————————————————————————————————-
ARINDAM SINHA, ACJ.
1. The appeals have been preferred against judgment dated 5 th
December, 2024 made by the learned single Judge in several writ
petitions. On 13th March, 2025 Mr. Acharya, learned senior
advocate, Advocate General appearing on behalf of appellants
(State) requested us to hold appeal brief in W.A. no.3321 of 2024
(State of Odisha and others v. Bisheshwar Biswal and others). He
submitted, respondents had urged age relaxation, obtained by them
on impugned judgment in respect of recruitment advertised on 22nd
September, 2024, pursuant to Odisha Battalion Service [(Method of
Recruitment and Conditions of Service of Sepoys or Constables,
Havildars and ASI (Armed) Order, 2022].
2. He drew our attention to recital in the order saying that it was
made in exercise of powers conferred by section-2 in Police Act,
W.A. no.3321 of 2024 and batch Page 19 of 36
1861. It was not in exercise of power under article-309 of the
Constitution. Definitions paragraph-2 provides for ‘recruitment
year’ under clause- (i). He laid emphasis that the meaning given is
calendar year, during which advertisement for recruitment is
actually issued. Paragraph-3 gives constitution of the service, to
consist of three posts. Paragraph-5 provides for eligibility criteria
on recruitment. Clause- (e) under the paragraph is the eligibility on
age of candidates. Upper age limit is 23 years as on 1st day of
January of the year, in which the advertisement for recruitment is
issued. Hence, reckoning of age of candidates pursuant to the
advertisement dated 22nd September, 2024 would be upper age limit
of 23 years as on 1st January, 2024. He also drew our attention to
paragraph-21 on relaxation as provided therein. The paragraph is
reproduced below.
“21. Relaxation – Where the Government on a reference
made by the Director General and Inspector General of
Police or otherwise, are satisfied 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 Order in respect of any class or
category of employees.”
(emphasis supplied)
W.A. no.3321 of 2024 and batch Page 20 of 36
3. He then pointed out, there exists Orissa Civil Service
(Fixation of Upper Age Limit) Rules, 1989 notified on 27th
October, 1989. Upper age limit for entry into Government service
provided by rule 2 carries a proviso. The proviso is reproduced
below.
“2. … … …
Provided that only for Odisha Civil Service Combined
Competitive Examinations, if for any reason applications
have not been invited by the competent authority to
conduct examination during any particular year to fill up
the vacancies of the year, applicants, who would have been
eligible if applications were invited during that year, shall
be eligible to compete at the examination held in the
subsequent year.”
He submitted, the recruitment contemplated by said advertisement
dated 22nd September, 2024 is for entry into the uniformed force. It
is not and cannot be called a civil service. Furthermore, the rules
contemplate annual recruitment and in that context the proviso
under above rule.
4. Mr. Acharya submitted, the learned single Judge provided
headings in the judgment. He placed from paragraph-6 under
heading ‘examination of the legal matrix’. He submitted, several
declarations of law made by the Supreme Court were discussed. He
W.A. no.3321 of 2024 and batch Page 21 of 36
then pointed out from paragraph-16 in impugned judgment, it
carries clear finding that aforesaid rules are not applicable to police
recruitment. The order of 2022 was also found to be valid and
comprehensive, to occupy legislative field for the current
recruitment. The learned Judge went on to say, no other rules,
including Orissa Civil Service (Fixation of Upper Age Limit)
Rules, 1989 can override its provisions. He then placed
paragraph-24 and conclusion paragraphs-25 to 29 in impugned
judgment to submit, the learned single Judge thereafter erred in law
to give direction for revision of the advertisement by issuance of
corrigendum. On query made regarding whether the order provides
for exercise of discretion, Mr. Acharya’s answer was in the
negative.
5. On 20th March, 2025 Ms. Rath, learned senior advocate
appeared on behalf of intervenors in W.P.(C) no.26079 of 2024
dealt with by impugned judgment, in common with other writ
petitions. W.A. no.3321 of 2024 arises out of said writ petition and,
as aforesaid, is one of many appeals preferred against said
judgment.
W.A. no.3321 of 2024 and batch Page 22 of 36
6. She submitted, the relaxation granted by the learned single
Judge must be seen as a direction made in terms of paragraph-21 in
the 2022 order. Use of the word ’employees’ in said paragraph has
to be read as ‘candidates’. She submitted, part-A of the order is all
about candidates. In part-B dealing with promotion, word
‘candidates’ has also been used. Hence, the enabling relaxation
paragraph-21 in the order must apply to candidates.
7. On query she submitted, her clients had also filed their
substantive writ petition W.P.(C) no.25203 of 2024. In paragraph 6,
the point was taken. Said paragraph is reproduced below.
“6. That Clause 21 of the 2022 order also gives power to
the state to grant relaxation to any criteria including age.”
There was no denial in the counter filed by State. Paragraph-15 in
impugned judgment took note of this contention of her clients.
8. She relied on judgment of the Supreme Court in State of
Maharashtra v. Prabhu, reported in (1994) 2 SCC 481
paragraph-4. She submitted, the Supreme Court discussed
construction placed by the High Court, to interfere with order of the
Government in exercise of its equity jurisdiction. The Supreme
Court said, one of the principles inherent in exercise of equity
jurisdiction for issuance of certiorari and mandamus is that the
W.A. no.3321 of 2024 and batch Page 23 of 36
exercise of power should be for the sake of justice. It was so done
by the learned single Judge. There be no interference in appeal as
impugned judgment is a good one, on facts and in law.
9. Next date of hearing was 24th March, 2025. Mr. Bahali,
learned advocate appeared on behalf of respondents in W.A.
no.3385 of 2024 (State of Odisha and others v. Laxmidhar Jena and
others). He straightaway drew our attention to impugned judgment
dated 5th December, 2024, paragraphs 13, 17 to 20, 24 and 25. He
laid emphasis on decision of the Supreme Court in High Court of
Delhi v. Devina Sharma reported in (2022) 4 SCC 643.
10. Moving on to notification dated 13th September, 2022
carrying the order of 2022 he pointed out to paragraph-5 giving
eligibility criteria for recruitment, as made subject to other
provisions in the order. He clarified, his submission is in the
alternative that, if we sustain contention and argument made by Ms.
Rath, then the eligibility criteria being subject to paragraph-21, will
add to it. He submitted further, under clause (c) in paragraph 5,
there is relaxation contemplated in respect of reserve candidates.
Exceptional circumstances of COVID-19 should also allow the
relaxation in favour of his clients. He next referred to paragraph-8
W.A. no.3321 of 2024 and batch Page 24 of 36
in the order to submit that clause- (1) thereunder would indicate
annual recruitment process.
11. Mr. Bahali handed up a brief of orders made by the Supreme
Court in Writ Petition (C) no.183 of 2013 (Manish Kumar v.
Union of India and others) and Petition for Special Leave to
Appeal (C) no.12569 of 2018 (Rajendra Singh and others v. The
State of U.P. and others). Included in the brief were orders made
in W.P.(C) (PIL) no.6622 of 2019, pending in this Court pursuant to
final order dated 11th March, 2019 made in Manish Kumar
(supra). Copies of the orders were made over to Mr. Kar, learned
advocate, Government Advocate assisting Mr. Acharya. Lastly, Mr.
Bahali relied on internal communication dated 5th July 2021, text of
which is reproduced below.
“Inviting reference to the proposal of State Police
Headquarters on the subject cited above, I am directed to
say that Government have been pleased to relax the
provisions of Rule 4 of Odisha Police Service (Method of
Recruitment and Conditions of Service of Constables)
Order, 2010 read with Rule 3 of Odisha Police Service
(Method of Recruitment and Conditions of Service of
Constables) Amendment Order, 2013 to fill up of 100%
vacancies in the rank of Constables in the districts for the
year 2021 on one time basis, by way of redeployment
W.A. no.3321 of 2024 and batch Page 25 of 36
instead of 20% in view of the urgent need of strengthening
Civil Police during COVID-19 pandemic situation.”
12. Mr. Rath, learned advocate appeared on behalf of
respondents in W.A. no.3464 of 2024. He drew attention to
paragraph 8 in the 2022 order. He submitted, the vacancies have
been provided for as existing and anticipated. Existing vacancies
in a calendar year would include vacancies arisen in the period no
recruitment was conducted. There has been no recruitment since
year 2018. In considering the existing vacancies the learned single
Judge had directed one time relaxation of upper age limit by six
years reckoned from year 2018. This reasoning cannot be
interfered with because it is based on paragraph 8(1) of the 2022
order itself. He moved on to the relaxation provision by paragraph
21. He pointed out, there is separation in providing for relaxation,
between class and category of employees. The order constitutes
part-A and part-B. Part-A relates to candidates as a class and part
B is in respect of promotion and therefore applicable to the
categories of employees. As such the paragraph empowers
relaxation being made. Even otherwise than on equity, there be
confirmation of impugned judgment on the direction for
relaxation.
W.A. no.3321 of 2024 and batch Page 26 of 36
13. With reference to article 309 in the Constitution of India Mr.
Rath submitted, where in case of a State there is no rule, it is
competent for the Executive to issue an order. In event Court is
inclined to accept contention of appellant that the 2022 order does
not provide for relaxation then so far as this aspect of relaxation
regarding a recruitment requirement of eligibility on age is
concerned, there is a gap and it is competent for the State to issue
an order. He relied on aforesaid internal communication dated 5th
July, 2021 handed up by Mr. Bahali to submit, there be direction
for issuance of such an order upon reliance of upper age relaxation
of six years, as directed in impugned judgment. He then relied on
judgment of the Supreme Court in A.B. Krishna v. State of
Karnataka, reported in (1998) 3 SCC 495, paragraph 8. A
passage from the paragraph is reproduced below.
“8. … … As a matter of fact, under the scheme of Article
309 of the Constitution, once a legislature intervenes to
enact a law regulating the conditions of service, the power
of the Executive, including the President or the Governor,
as the case may be, is totally displaced on the principle of
“doctrine of occupied field”. If, however, any matter is not
touched by that enactment, it will be competent for theW.A. no.3321 of 2024 and batch Page 27 of 36
Executive to either issue executive instructions or to make
a rule under Article 309 in respect of that matter.”
He also relied on view taken by a learned single Judge of this
Court by judgment dated 24th January, 2023 in three writ
petitions, lead case being W.P.(C) no.341 of 2023 (Nagen Bhoi
and others v. State of Odisha and others). The learned single
Judge had directed one time relaxation in upper age limit for
recruitment of constables (civil) in different districts and
establishments of Odisha Police. He relied on paragraphs 51 to 54
of the judgment.
14. Mr. Rath submitted, his clients are in a situation, or at least
most of them, who never ever had opportunity to apply to be
appointed in the class contemplated under part-A in the order of
2022. He reiterated, there was no recruitment since year 2018.
Therefore, a person eligible on age to compete for recruitment in
year 2018, would be over age in the exercise undertaken pursuant
to the order of 2022. As such he thus would be discriminated
against by the State in only allowing people younger than him to
compete for recruitment, in violation of article 14 in the
Constitution of India. He added to his point of discrimination by
W.A. no.3321 of 2024 and batch Page 28 of 36
submitting that such a person deprived will stand deprived as
against a person, who will be allowed to compete for existing
vacancies occurring in the long period, in which his client never
had opportunity to compete for being recruited. It is therefore that
the learned single Judge, in public interest, directed the one time
relaxation.
15. He handed up notification dated 4th September, 2021
published by authority on 4th September, 2021 in the Odisha
Gazette Extraordinary. It is Odisha Police Service (Method of
Recruitment and Conditions of Service of Constables) Order,
2021. Paragraph-17 in the order is the same relaxation clause as
appears in paragraph-21 in the 2022 order. He submitted, in
Nagen Bhoi (supra) paragraph-42 onwards, the learned single
Judge dealt with relaxation paragraph-17 in the 2021 order. State
accepted the judgment on no appeal preferred. Advertisement
dated 22nd September, 2024 is in respect of sepoys/constables in
the armed battalion, separate from police constables deputed for
policing civil society. The relaxation clauses being same and State
having had accepted view taken in Nagen Bhoi (supra), it cannot
now turn around and oppose the relaxation in respect of the 2022
W.A. no.3321 of 2024 and batch Page 29 of 36
order. His clients stand on same footing as Nagen Bhoi and
others. They are only about 280 of them who had qualified in the
written examination, they took pursuant to interim order granted in
the writ petitions.
16. We had on 24th March, 2025 made observation for State to
consider granting relaxation, not as compelled by direction on
adjudication, but by themselves.
17. Today Mr. Acharya in reply relies upon on several decisions
of the Supreme Court and a view taken by us for purpose of
reliance on further decisions of said Court.
(i) Raghunath Rai Bareja v. Punjab National Bank, reported
in (2007) 2 SCC 230, paragraph-29, reproduced below.
“Learned counsel for the respondent Bank
submitted that it will be very unfair if the appellant
who is a guarantor of the loan, and Director of the
Company which took the loan, avoid paying the
debt. While we fully agree with the learned counsel
that equity is wholly in favour of the respondent
Bank, since obviously a bank should be allowed to
recover its debts, we must, however, state that it is
well settled that when there is a conflict between
law and equity, it is the law which has to prevail, in
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accordance with the Latin maxim „dura lex sed
lex”, which means “the law is hard, but it is the
law”. Equity can only supplement the law, but it
cannot supplant or override it.”
He submits, after the learned single Judge having had held that the
2022 order has primacy, there was no scope for any direction being
made on consideration of equity.
(ii) Dr. Amilal Bhat v. State of Rajasthan, reported in (1997) 6
SCC 614, paragraphs 10 and 11.
He submits, the Supreme Court declared that it cannot be said that a
person, who was eligible on age to apply for a vacancy, when arisen
can thereafter claim age relaxation on the recruitment notice having
been delayed, unless mala fide was demonstrated on causing the
delay.
(iii) State of Uttar Pradesh v. Vikash Kumar Singh, reported in
(2022) 1 SCC 347, paragraph 7.1.
Mr. Acharya submits, reliance on this judgment is his contention in
the alternative. Relaxation paragraph 21 in the order of 2022 does
not enable relaxation. The Supreme Court in the case had
considered a rule, where there was discretion on the authority, to
relax. Even in such a case the Supreme Court said that the
W.A. no.3321 of 2024 and batch Page 31 of 36
relaxation is at discretion of the competent authority. It cannot be
prayed for as a matter of right. If a conscious decision is taken not
to grant the relaxation, merely because the rule permits relaxation,
writ of mandamus cannot be issued directing the competent
authority to grant relaxation.
(iv) Rachna v. Union of India, reported in (2021) 5 SCC 638,
paragraphs 38, 39 and 45.
He submits, fixing the age limit is a policy decision. No
discrimination can be urged on the age factor. In the judgment the
Supreme Court was dealing with similar claim of persons affected
by COVID-19. Said Court declared that a Court is called upon to
consider validity of a policy decision only when a challenge is
made that the policy decision infringes fundamental rights
guaranteed by the Constitution or any other statutory right. Merely
because as a matter of policy, in that case, first respondent had
granted relaxation in the past on reason there was a change in the
examination pattern/syllabus, no assistance can be claimed by
petitioners in seeking mandamus, to come out with policy granting
relaxation to them as had appeared in the examination.
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(v) Our judgment dated 11th March, 2025 in, inter alia, W.A.
no.62 of 2025 (Choudhury Saubhagya Mohan Das v. State
of Odisha and others), paragraph 11 for reliance by him on
judgments of the Supreme Court, relied upon in that case.
(a) Chief Manager, Punjab National Bank v. Anit
Kumar Das, reported in (2021) 12 SCC 80,
paragraph 17.3 where the Supreme Court declared
that it is for the employer to determine and decide
relevancy and suitability of the qualifications for
any post and it is not for the Court to consider and
assess.
(b) Maharashtra Public Service Commission v.
Sandeep Shriram Warade, reported in (2019) 6
SCC 362, paragraph-9. In that case the Supreme
Court said it is for the employer who is best suited
to decide the requirements a candidate must
possess according to needs of the employer and
nature of work.
18. Mr. Acharya submits, the direction for granting age
relaxation of six years to be incorporated on corrigendum issued to
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advertisement dated 22nd September, 2024 could not have been
made on equitable considerations as law stands settled that fixing of
age limit is a policy decision. The advertisement is not under
challenge. There has been no demonstration of breach of any
fundamental right by fixation of the policy. The recruitment is for
existing vacancies. It is pursuant to the order of 2022, duly made in
exercise of power under section 2 in Police Act, 1861. Interference
in appeal with the direction by impugned judgment is necessary as
otherwise a wrong precedent will be set.
19. Without prejudice to his submissions in prosecuting the
appeal, at this stage Mr. Acharya hands up his instruction of date
issued by Special Secretary to Government, Home (D & A)
Department in Government of Odisha. He submits, it is pursuant to
observation earlier made by us. Text of the instruction is
reproduced below.
“I am directed to inform you that, a High Level Meeting
was held under the Chairmanship of the Hon‟ble C.M. in
the presence of Advocate General, Odisha, Chief Secretary,
Odisha, ACS, Home Department, DGP, Odisha, Chairman,
State Selection Board and others.
It was decided that as a onetime benevolent measure in
the larger interest of the candidates who had applied for
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the post of Constables and Sepoys in Battalions pursuant
to the Advertisement No.02/SSB, dt. 22.09.2024 before the
date of making applications and have appeared in the
written examination will be given three years upper age
limit relaxation in respective categories of candidates as
prescribed in Method of Recruitment and Conditions of
Services of Sepoys, Constables, Havildars and ASI (Armed)
Order, 2022 Vide Notification No.30941/D & A,
Dt.13.09.2022 of Home Department, Govt. of Odisha.
This Order may not be cited as a precedent in future.”
Mr. Acharya submits, respondents, if they accept this grant of
relaxation of the upper age limit as made by State, it must be on
acceptance of the legal position that State cannot be compelled by
issuance of mandamus.
20. On query from Court, respondents, through their learned
advocates, accept the benevolent measure of being given three years
upper age relaxation in respect of categories of candidates, who
appeared in the written examination pursuant to advertisement
dated 22nd September, 2024. We have ascertained that respondents
in the appeals concede their grounds of opposition to impugned
order being interfered with in appeal, by accepting the upper age
relaxation granted by State, just now intimated to Court.
W.A. no.3321 of 2024 and batch Page 35 of 36
21. Impugned judgment is, therefore, set aside. The appeals are
accordingly disposed of.
(Arindam Sinha)
Acting Chief Justice
(M.S. Sahoo)
Judge
Gs/Radha
asant
Signature Not Verified
Digitally Signed
Signed by: RADHARANI JENA
Reason: Authentication
Location: OHC
W.A. no.3321 of 2024 and batch Page 36 of 36
Date: 28-Mar-2025 17:23:14