JADHUNATH PRADHAN Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition has been filed with a prayer to issue a writ/direction declaring Rule 9(c) of Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (for short, "Rules, 2007") ultra vires and inoperative as it runs contrary to Section 6 of the Orissa Reservation of Posts and Services (For Socially and Educationally Backward Classes) Act, 2008 (for short, "the Act, 2008"). Further prayer of the petitioner is for a direction to the opposite parties to fix the cut off date as 1 st January, 2011 for determination of the age of the petitioner instead of 1 st August, 2011 under the enablingprovision, i.e. Rule 47 of the Rules, 2007 and to allow the petitioner to appear in the competitive examination which was to be held pursuant to advertisement under Annexure-3 by giving 5 years upper age relaxation as per the provision of Section 6 of the Act, 2008.

(2.) Petitioner in the present case, who is a practising Advocate at Bhubaneswar Bar, challenges the provision of Rule 9 of the Rules, 2007 on the ground of not providing relaxation of age for Socially and Educationally Backward Classes (for short, "SEBC") and other reserved categories and also in fixing 1 st day of August, 2011 as the cut off date for calculation of age of the candidates, who intended to appear in the written examination and test for the post of District Judge pursuant to advertisement No.1 of 2011 dated 15.4.2011 published in the English Daily "The New Indian Express" by this Court.

(3.) Mr. B. Mohapatra, learned counsel appearing for the petitioner submitted that the petitioner has been enrolled as an Advocate vide Orissa Bar Council Enrolment No.0-46/1993. His date of birth is 15 th June 1966 and he has been practising as an Advocate at Bhubaneswar Bar since 1993 and he is a member of the Bhubaneswar Bar Association. The petitioner belongs to SEBC category as defined under clause (a) of Section 2 of the Orissa State Commission for Backward Classes Act, 1993 and included in the list of Backward Class at serial No.138 as 'Khandayat' by caste. The petitioner is interested to appear in the written examination and test for the post of District Judge through direct recruitment as advertised by this Court under Advertisement dated 15.4.2011 (Annexure-3). Because of the stipulations made in para-3 under the heading 'Eligibility' in the said advertisement, the petitioner is not eligible to appear in the examination in question as he is over aged by one month sixteen days as on 1 st August, 2011. Though the cut off date 1 st August, 2011 fixed in the advertisement is in consonance with Rule 9(c) of the Rules, 2007, inclusion of such provision has no nexus with the aims and objectives for recruitment of District Judge through direct recruitment because many experienced Advocates like the petitioner, who were born between 1 st January and 1 st August, 2011, have become over-aged. As per general service rule and practice, 1 st January of a particular year in which recruitment and selection test are held is always fixed as the cut off date for determining the age of a candidate for such selection. But the provision of Rule 9 (c) is a clear-cut deviation from the general practice and does not disclose any objective which sought to be achieved by inclusion of such a cut-off date. If the cut off date would have been fixed to 1 st January, 2011 instead of 1 st August, 2011, the petitioner would have become eligible to appear for selection to the post in question as his date of birth is 15.6.1966. Since the advertisement was issued on 15.4.2011, fixing of cut off date to 1.8.2011, would not have been permissible under general recruitment rule. Therefore, Rule 9 ( c) of the Rules, 2007 in which 1 st August of the year has been fixed as cut off date is contrary to general recruitment rule and also violative of the provision of Articles 14 and 16 of the Constitution of India. In States like Rajasthan, West-Bengal, Delhi and Madhya Pradesh the cut off date has been fixed to 1 st January of a particular year in which the recruitment notified is to be made for the post of District Judge. Hence, when other States have accepted 1 st January of a particular year as the cut off date for determination of the age of the candidates for the purpose of selection to the post of District Judge through direct recruitment fixing of cut-off date to 1 st August by the State of Odisha is arbitrary and unreasonable.