IN THE HIGH COURT OF ORISSA AT CUTTACK

W.A. No.3321 of 2024

State of Odisha and others …. Appellants

Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)

-Versus-

Bisheshawar Biswal and others …. Respondents

Represented by Adv.–
Miss Pami Rath, Sr. Advocate

W.A. No.3385 of 2024

State of Odisha and others …. Appellants

Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)

-Versus-

Laxmidhar Jena and others …. Respondents

Represented by Adv.–
Mr. B.P.B. Bahali, Advocate

W.A. No.3464 of 2024

State of Odisha and others …. Appellants

Represented by Adv.–
Mr. Pitambar Acharya, Advocate General
Mr. K.C. Kar, Advocate, (Government Advocate)

-Versus-

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 Hapina Nayak and others …. Respondents
Represented by Adv.–
Mr. Rajib Rath, Advocate

CORAM:
THE HON’BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON’BLE MR. JUSTICE M.S. SAHOO

ORDER
Order No. 24.03.2025
03. 1. Mr. Bahali, learned advocate appears on behalf of

respondents in the appeal tagged together, lead case being W.A.

no.3321 of 2024 (State of Odisha and others v. Bisheshawar

Biswal and others).

2. He straightaway draws our attention to impugned

judgment dated 5th December, 2024, paragraphs 13, 17 to 20, 24

and 25. He lays emphasis on decision of the Supreme Court in

High Court of Delhi v. Devina Sharma reported in (2022) 4 SCC

643 and views taken by the Delhi High Court in Nitish Kumar v.

Union of India and Anurag Sharma and others v. CRPF.

3. Moving on to notification dated 13th September, 2022

carrying the order of 2022 he points out to paragraph-5 giving

eligibility criteria for recruitment as made subject to other

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provisions in the order. He clarifies, his submission is in the

alternative that, if we sustain contention and argument made by

Ms. Rath, learned senior advocate, then the eligibility criteria being

subject to paragraph-21 will add to it. He submits further, under

clause (c) in the paragraph, there is relaxation contemplated in

respect of reserve candidates. Exceptional circumstances of

COVID-19 should also allow the relaxation in favour of his clients.

He next refers to paragraph-8 in the order to submit that clause-(1)

thereunder would indicate annual recruitment process.

4. Mr. Bahali hands up a brief of orders made by the Supreme

Court in Writ Petition (C) no.183 of 2013 (Manish Kumar v.

Union of India and others) and petition for Special Leave to

Appeal (C) no.12569 of 2018 (Rajendra Singh and others v.

The State of U.P. and others). Included in the brief are orders

made in W.P.(C) (PIL) no.6622 of 2019, pending in this Court

pursuant to final order dated 11th March, 2019 made in Manish

Kumar (supra). Copies of the orders have been made over to Mr.

Kar, learned advocate, Government Advocate assisting Mr.

Acharya, learned senior advocate, Advocate General, appearing for

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appellant. Lastly, Mr. Bahali relies on internal communication

dated 5th July 2021, text of which is reproduced below.

“Inviting reference to the proposal of State Police

Headquarters on the subject cited above, I am
directed to say that Government have been pleased to
relax the provisions of Rule 4 of Odisha Police
Service (Method of Recruitment and Conditions of
Service of Constables) Order, 2010 read with Rule 3
of Odisha Police Service (Method of Recruitment and
Conditions of Service of Constables) Amendment
Order, 2013 to fill up of 100% vacancies in the rank
of Constables in districts for the year 2021 on one
time basis, by way of redeployment instead of 20% in
view of the urgent need of strengthening Civil Police
during COVID-19 pandemic situation.”

5. Mr. Rath, learned advocate appears on behalf of

respondent in W.A. no.3464 of 2024. He draws attention to

paragraph 8 in the 2022 order. He submits, the vacancies have

been provided for as existing and anticipated. Existing

vacancies in a calendar year would include vacancies arisen in

the period no recruitment was conducted. There has been no

recruitment since year 2018. In considering the existing

vacancies the learned single Judge had directed one time

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relaxation of upper age limit by six years reckoned from year

2018. This reasoning cannot be interfered with because it is

based on paragraph 8(1) of the order itself. He moves on to the

relaxation provision by paragraph 21. He points out, there is

separation in providing for relaxation, between class and

category of employees. The order constitutes part-A and part-B.

Part A relates to candidates as a class and part B is in respect of

promotion and therefore applicable to categories of employees.

As such the paragraph empowers relaxation being made. Even

otherwise than on equity, there be confirmation of impugned

judgment on the direction for relaxation.

6. With reference to article 309 in the Constitution of

India Mr. Rath submits, where in case of a State there is no

rule, it is competent for the executive to issue an order. In event

Court is inclined to accept contention of appellant that the 2022

order does not provide for relaxation then so far as this aspect

of relaxation regarding a recruitment requirement of eligibility

on age is concerned, there is a gap and it is competent for the

State to issue an order. He relies on aforesaid internal

communication dated 5th July, 2021 handed up by Mr. Bahali to

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submit, there be direction for issuance of such an order upon

reliance of upper age relaxation of six years as directed in

impugned judgment. He relies on judgment of the Supreme

Court in A.B. Krishna v. State of Karnataka, reported in

(1998) 3 SCC 495, paragraph 8. A passage from the paragraph

is reproduced below.

“8. … … As a matter of fact, under the scheme of

Article 309 of the Constitution, once a legislature
intervenes to enact a law regulating the conditions of
service, the power of the Executive, including the
President or the Governor, as the case may be, is
totally displaced on the principle of “doctrine of
occupied field”. If, however, any matter is not touched
by that enactment, it will be competent for the
Executive to either issue executive instructions or to
make a rule under Article 309 in respect of that
matter.”

He also relies on view taken by learned single Judge of this

Court in three writ petitions, lead case being W.P.(C) no.341 of

2023 (Nagen Bhoi and others v. State of Odisha and others).

The learned single Judge by judgment dated 24th January,

2023 had directed one time relaxation in upper age limit for

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recruitment of constables (civil) in different districts and

establishments of Odisha Police. He relies on paragraphs 51 to

54 of the judgment.

7. Mr. Rath submits, his clients are in a situation, or at

least most of them who never ever had opportunity to apply for

being appointed in the class contemplated under part A in the

order of 2022. He reiterates, there was no recruitment since

year 2018. Therefore, a person eligible on age to compete for

recruitment in year 2018, would be over age in the exercise

undertaken pursuant to the order of 2022. As such he thus

would be discriminated against by the State in only allowing

people younger than him to compete for recruitment, in

violation of article 14 in the Constitution of India. He adds to

his point of discrimination by submitting that such a person

deprived will stand deprived as against a person, who will be

allowed to compete for existing vacancies occurring in the long

period in which his client never had opportunity to compete for

being recruited. It is therefore that the learned single Judge, in

public interest, directed the one time relaxation.

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 8. Mr. Acharya will be heard on reply, tomorrow i.e.

25th March, 2025. Interim order to continue till next date of

hearing.

(Arindam Sinha)
Acting Chief Justice

(M.S. Sahoo)
Judge

S. Behera/jyostna

Signature Not Verified

Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 24-Mar-2025 19:26:09

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