SARAT KUMAR DAKUA vs STATE OF ODISHA,GA,AND PG DEPARTMENT,ODISHA

WP(C)/28703/2019
ODHC010778362019
2026:OHC:105
IN THE HIGH COURT OF ORISSA AT CUTTACK


W.P.(C) No.28703 of 2019
CNR No.ODHC010778362019


Sarat Kumar Dakua Petitioner
….
Ms. B. K. Pattnaik, Advocate


AFR

-
-Versus

State of Odisha & another Opposite Parties
….
Mr. S. Panda, ASC

CORAM:
JUSTICE R.K. PATTANAIK

DATE OF HEARING:15.05.2026

DATE OF JUDGMENT:02.09.2026


1 . Instant writ petition is filed by the petitioner assailing the
legality of the impugned orders as at Annexures-9 and 10
and to direct the opposite parties to regularize his officiating
th th
period between 28 February, 2013 and 30 August, 2013
and also to pass such other orders as deem fit and proper in
the interest of justice on grounds stated therein.
. In fact, the petitioner challenges the action of the
2
opposite parties in revising his pay in the post of Caretaker
in the scale of pay of Rs.9300/- to 34800/- with grade pay of
st
Rs.4200/- w.e.f. 31 August, 2013 as illegal and in violation
of the principles of natural justice. It is alleged by the
petitioner that such an action is ex facie arbitrary and thus,
liable to be interfered with and set aside. Briefly stated,
according to the petitioner, he was appointed as Junior
th
Grade Typist in Odisha Administrative Tribunal on 13
November, 1997 and ever since then, discharging his duties
having an unblemished career all through. While continuing
Page 1 of 22

as such, the petitioner was allowed to perform the duties of
th
Caretaker on and from 20 January, 2007 against the vacant
post in addition to his regular duty for a period of six months
on officiating basis. In the meantime, an advertisement was
th
published on 25 November, 2012 to fill up the said post
and being an in-service candidate, the petitioner applied for
the said post through proper channel and was allowed to
appear the written examination held for the same by the
orders of the Authority concerned and on account of his
eligibility, he was duly selected and appointed as such on
st
31 August, 2013.
2.1 . As per the petitioner, he was given promotion to the
th
post of Caretaker from 20 January, 2007 for a period of six
months on adhoc basis and such promotion was on
officiating basis extended from time to time and after
completion of one-year continuous service in that post, one
annual increment was allowed in his favour as per the order
of the Chairman, Odisha Administrative Tribunal. The
further pleading is that upon introduction of ORSP Rules
2008, the petitioner’s pay in the post of Junior Grade Typist
was refixed in the scale of pay of Rs.5200/- to 20,200/- with
grade pay Rs.1900/- which is the corresponding pay
structure of the Junior Grade Typist and it was again fixed at
Rs.9300/- to Rs.34,800/- with a grade pay of Rs.4200/-
th
w.e.f. 20 January, 2007 i.e. from the date of joining in the
post of Caretaker on officiating basis. It is pleaded that the
annual increments were sanctioned for the year 2008, 2009,
2010, 2011 and 2012 as against the scale of pay of Rs.9300/-
Page 2 of 22

to Rs.34,800/-. The plea of the petitioner is that after his
st
appointment on regular basis as Caretaker on 31 August,
2013, a clarification was sought for from opposite party
th
No.1 on 19 May, 2014 for fixation of his pay in the post of
Junior Grade Typist. A copy of said clarification by letter
th
dated 19 May, 2014 is at Annexure-1. In response to the
th
same, opposite party No.1 made a query on 9 July, 2014 as
to whether the petitioner was finally selected for
appointment in the post of Caretaker and it was replied by
th
opposite party No.2 by letter dated 16 August, 2014
indicating therein that he was selected to the post through a
direct recruitment held as per recruitment Rules and joined
st
as a Caretaker w.e.f. 31 August, 2013. A copy of the said
intimation to opposite party No.1 is at Annexure-2.
th
2.2 . Again, opposite party No.1 issued a letter dated 7
February, 2015 to furnish certain information and submit
relevant documents for taking further action in the matter
seeking details of the mode of appointment and whether, it
was achieved following due procedure mentioning therein
th
the pay structure etc. Opposite party No.2 by letter dated 4
May, 2015 clarified that the appointment of the petitioner
has been done as per the provisions of the recruitment rules
and also submitted the relevant documents for necessary
action and for fixation of pay in the post of Caretaker. It is
th
claimed that opposite party No.1 issued a letter dated 6
August, 2015 (Annexure-3) stating therein that selection of
the petitioner has been challenged in O.A. No.3224(C) of
2014 and therefore, the Finance Department, Government of
Page 3 of 22

Odisha is of the opinion not to express any view in the
matter vis-à-vis pay fixation in the post of Caretaker.
According to the petitioner, the O.A. was filed by one Ajit
Kumar Gadanaik challenging the selection of the petitioner
st
and it was dismissed on 1 March, 2016 and further
th
challenged in W.P.(C) No.11912 of 2016 decided on 14
February, 2019 but again dismissed. While stating so, the
petitioner refers to the orders in the O.A. and W.P.(C)
No.11912 of 2016 as at Annexures-4 and 5 respectively. It is
alleged by the petitioner that taking the plea of pendency of
the O.A. and also W.P.(C) No.11912 of 2016 before this
Court, no clarification was issued regarding fixation of pay
though several correspondences have taken place between
opposite party Nos.1 and 2 in that regard. However, opposite
th
party No.2 by letter dated 16 May, 2018 at Annexure-6
sought for post facto approval of the officiating period of
th
service rendered by the petitioner as a Caretaker from 28
th
February, 2013 to 20 August, 2013 but it was responded by
opposite party No.1 with a letter as per Annexure-7 series to
instruct them regarding the status of the appeal. Opposite
th
party No.2 by letter dated 29 September, 2018 intimated
that the O.A. has been dismissed, whereas, W.P.(C)
No.11912 of 2016 had been filed without any order therein
and further, requested to the grant post facto approval for
continuation of the petitioner in the post of Caretaker from
st th
1 March, 2013 to 30 August, 2013 but opposite party No.1
on the premise that the matter is subjudice before this Court
and not yet finalized, concluded that there is no necessity for
further clarification. Again, opposite party No.2 by letter
Page 4 of 22

rd
dated 3 November, 2008 intimated opposite party No.1 to
consider the case of the petitioner in granting post facto
approval in absence of any interim order in W.P.(C)
No.11912 of 2016 but it was without any response and at
last, with the dismissal of the writ petition, request was made
to finalize the matter relating to regularization of service of
nd
the petitioner for the alleged period by letter dated 2 April,
2019 to opposite party No.2 as at Annexure-8.
th
2.3 . Opposite party No.1 by order dated 25 October, 2019
as at Annexure-9 held that the appointment of the petitioner
to the post of Caretaker is in complete violation of the
recruitment of rules and hence, he was illegally paid
increments and accordingly, directed to recover the same
from him but it is pleaded that such decision is illegal. The
petitioner pleads that the appointment of the petitioner as the
Caretaker was challenged in the O.A. and also in W.P.(C)
st
No.11912 of 2016 and both were dismissed on 1 March,
th
2016 and 14 February, 2019 respectively and at no point of
time, such appointment and selection was ever challenged by
the opposite parties before any forum and therefore, opposite
party No.1 lacks jurisdiction to claim that the appointment is
not in accordance with the rules and therefore, the impugned
decision by order at Annexure-9 is not sustainable in the
eyes of law. In view of the order i.e. Annexure-9, opposite
party No.2, revised the pay of the petitioner for the period
under consideration in the scale pay of Rs.5200/- to
Rs.20,000/- with grade pay of Rs.1900/- in the post of
st
Caretaker w.e.f. 31 August, 2013 and such pay fixation
Page 5 of 22

according to the petitioner is illegal and is on account of
non-application of mind. In view of such pay fixation
st
revised and refixed w.e.f. 31 August, 2013, the petitioner
claims that it has deprived him of six increments granted
th
during the officiating period. Such a decision by order 13
December, 2019 as at Annexure-10 is, therefore, liable to be
set aside directing the opposite parties to regularize the
th th
officiating period from 28 February, 2013 to 30 August,
2013 necessary and expedient in the interest of justice.
th
3 . Opposite party No.1 filed the counter affidavit dated 14
February, 2020 and denied the assertion of the petitioner
while questioning the legality of the impugned orders i.e.
Annexures-9 and 10. It is pleaded therein that the petitioner
while holding a regular post of Junior Grade Typist in the
Odisha Administrative Tribunal in the Pay Band-1 was
allowed to perform the duties of a Caretaker (PB-2) by the
th
Registrar O.A.T. by order dated 9 January, 2007 i.e.
Annexure-A/2 only for a period of six months being the
Appointing Authority and it was as per the provisions under
Rule 96 read with Appendix-1 of the Odisha Service Code.
Subsequently, it is pleaded that the O.A.T submitted a
proposal to absorb the petitioner in the post of Caretaker
with relaxation of the Rule vide Annexure-C/2 but it was
turned down vide Annexure-D/2 by the G.A. Department,
Government of Odisha on the ground that regular
appointment to the said post shall have to be made as per the
Rules and until then, it is to be managed in the manner as
was being done.
Page 6 of 22

th
3.1 . Thereafter, Deputy Registrar, O.A.T by letter dated 29
November, 2012 as at Annexure-E/2 reported that the
process for direct recruitment to the regular post of
Caretaker had been initiated and pending finalization and till
a fresh appointment, approval on extension of the petitioner
to hold the additional charge is necessary for a further period
th
of six months w.e.f. 30 August, 2012. It is pleaded that
since Appointing Authority is not competent to accord
approval on the continuance of officiation in the higher post
exceeding a period of six months as per provisions under the
rules, the file was placed before the Finance Department,
Government of Odisha for concurrence on such proposal of
the Deputy Registrar, O.A.T., which was received back with
a view duly communicated to the O.A.T. vide Annexure-F/2
stating therein that further continuance, if any may not be
subject to any financial benefit under Rule 96 of the Code.
Despite the above, the O.A.T. once again moved a proposal
seeking further extension of the petitioner in that post by
rd
letter dated 3 June, 2013 i.e. Annexure-G/2 and in reply, it
was intimated to the O.A.T. that proposal for extension and
continuance of the petitioner in the post of Caretaker in view
th
June, 2013 i.e.
of the G.A. Department’s letter dated 13
th
Annexure-H/2 beyond 28 February, 2013 shall not be
referred to the Finance Department for consideration unless
the name of the candidate finally selected for appointment
was reported and that any such continuance thereafter may
not be subject to any financial benefit under the Odisha
Service Code but the aforesaid facts have not been divulged
by the petitioner.
Page 7 of 22

3.2 . It is pleaded that the advertisement for direct
recruitment to the post of Caretaker vide Annexure-J/2 was
issued not complying the provisions of the Orissa
Administrative Tribunal (Recruitment and Conditions of
Service of Officers and Staff) Rules, 1999 (hence called as
‘the Rules’) and for that, the O.A.T. was requested to clarify
vide Annexure-L/2 letter of the GA Department,
Government of Odisha as to the eligibility criteria therein
with regard to the period of service rendered in Government
service for considering age relaxation. In reply to the above,
the Deputy Registrar, O.A.T. vide Annexure-M/2 intimated
that the Chairman, O.A.T. has the authority to determine the
procedure for conducting the examination for direct
recruitment as per the provisions contained in Rule 12 of the
Rules. It is pleaded that age relaxation does not come within
the procedure for conducting the examination but only
confined to Rule 10(b) of the Rules. It was informed further
that Rule 52 of the Odisha Service Code stipulates that the
Government reserve the right in a special case to take a
decision regarding relaxation of the upper age but such
relaxation vested with the Government has also been
delegated to the Appointing Authority, who is none other
than the Chairman of the O.A.T. stating that the relaxation
clause has been invoked with an intention to allow the
petitioner to participate in the selection, whereafter, the
O.A.T. was requested to intimate the procedure followed in
the recruitment as per advertisement with all relevant
th
documents submitted by letter dated 14 March, 2019 i.e.
Annexure-N/2 but it was received with a reply vide letter
Page 8 of 22

th
dated 20 April, 2019 (Annexure-O/2). According to
opposite party No.1, the Finance Department’s
th
Memorandum dated 5 February, 2004 clearly indicates any
posting in an officiating capacity without its approval
beyond six months shall be considered as illegal and such
continuation of the petitioner in the post of Caretaker was
informed to be without any financial benefit under Rule 96
to the Odisha Service Code. With the above pleading, it is
claimed that the officiating period for a higher post of
th th
Caretaker w.e.f. 28 February, 2013 till 30 August, 2013 is
completely irregular and therefore, grant of increments to
the petitioner in that post caused loss to the State exchequer
and hence, Registrar, O.A.T. was requested to recover the
financial benefits from him for the period accrued and
subsequent increments allowed. Lastly, it is pleaded that the
advertisement for direct recruitment to the said post as per
Annexure-J/2 was in deviation of the Rules and also with
regard to the eligibility condition incorporated therein vis-à-
vis and age relaxation. It is reiterated that in view of the
Finance Department Memorandum at Annexure-O/2, any
posting in an officiating capacity without approval of the
Finance Department beyond six months is not legal and
there is also no possibility of post facto approval of the same
and in such view of the matter, the demand of the petitioner
challenging the impugned orders i.e. Annexures-9 and 10
th
and to regularize such period from 28 February, 2013 to
th
30 August, 2013 cannot be sustained in law and thus, the
writ petition sans merit and thus, deserves to be dismissed.
Page 9 of 22

4 . In reply to the counter, the petitioner filed a rejoinder and
pleaded therein that the impugned order at Annexure-9
directing recovery of the amount from his salary as has been
paid in excess in comparison to the entitlement alleged by
opposite party No.1 is outrightly arbitrary and illegal. It is
further pleaded that the petitioner joined as a Caretaker in
Odisha Administrative Tribunal, Bhubaneswar after being
st
regularly recruited in terms of the advertisement w.e.f. 31
August, 2013 and it is not in dispute that prior to joining in
the said post, he was allowed to officiate in the same post
th
from 19 January, 2007 till regularly appointed after being
selected through an open recruitment. It is stated that the
petitioner was allowed to perform the duty of Caretaker
although in officiating capacity and it was for a period of six
month in terms of Rule 96 of the Odisha Service Code and
such period was extended from time to time and he was
allowed to enjoy the benefits in terms of pay and increment
as due and admissible to the post and that too, with the
approval of the Government and not only that, the pay was
th
fixed under 6 Pay Commission and while continuing as
such, a proposal was forwarded to the Government to absorb
him in that post with relaxation to the provisions of the
th
Rules by letter No.4216 of the O.A.T. dated 13 July, 2007,
however, it was turned down by the Administrative
th
Department on 16 January, 2008 with a stipulation that
regular recruitment to the post of Caretaker to be made
immediately as per the provisions of the Rules and until
then, it is to be managed in the manner prevailing. With
other facts pleaded therein, it is further stated that the
Page 10 of 22

selection process was challenged in O.A. No.3224(C) of
2014 and was dismissed and the same has attained finality
and ever since such engagement, the Administrative
Department and Finance Department had been aware of the
continuation of the petitioner on officiating basis in the post
of Caretaker but surprisingly, opposite party No.1 raised a
question with allegations of irregularity in the selection
process without obtaining the concurrence of the Finance
Department on his age relaxation. It is also stated that under
such circumstances, annual periodical increment has been
allowed for due discharge of duty successfully for a period
of one year under Rule 77 of the Odisha Service Code and it
cannot be denied to him and as such, the same was rightly
sanctioned in his favour and therefore, the plea of opposite
party No.1 that excess amount paid to him while in
th
officiating the post of Caretaker between 28 February,
th
2013 to 30 August, 2013 is completely baseless.
5 . Heard Ms. Pattnaik, learned counsel for the petitioner and
Mr. Panda, learned ASC for the State.
6 . The petitioner joined as a Junior Grade Typist in Odisha
th
Administrative Tribunal w.e.f. 13 November, 1997 and was
th
allowed to perform the duty of a Caretaker on and from 19
January, 2007. It is made to understand that the Odisha
Administrative Tribunal submitted a proposal to the
Government in G.A. Department for relaxation of Rules for
th
appointment of a Caretaker on 13 July, 2007 by O.A.T.
letter No.4216 and in the meanwhile, after completion of six
months turn, the petitioner was allowed to perform the duties
Page 11 of 22

of Caretaker on adhoc basis in addition to his own
responsibilities till regular appointment to be made with a
reply received from the Government in that regard. The
petitioner was allowed as such till the regular selection made
th
to the said post but on 16 January, 2008, a further request
for relaxation was turned down with a direction by the G.A.
Department, Government of Odisha instructing the Odisha
Administrative Tribunal to take immediate steps for
appointment of a Caretaker by a regular recruitment and the
Government extended the continuance of service of the
th th
petitioner from 30 August, 2012 to 28 February, 2013
with instructions that further continuance if any may not be
subject to financial benefits under Rule 96 of the Odisha
Service Code. In the meantime, the petitioner’s appointment
as Caretaker, subsequent to the regular recruitment held, was
challenged in O.A. No.3224(C) of 2014 but it was dismissed
st
on 1 March, 2016 and was also confirmed by this Court in
W.P.(C) No.11912 of 2016 and thereafter, the Odisha
Administrative Tribunal sought for post facto approval of
the continuance of the petitioner in officiating the post of
th th
Caretaker w.e.f. 28 February, 2013 to 30 August, 2013 but
it has been rejected by opposite party No.1 by order dated
th
25 October, 2019 on the ground that the appointment is
contrary to the Rules and completely irregular and hence,
directed to recover the financial benefits accrued for the
period and also the subsequent increments from him. In fact,
opposite parties have taken a stand that the officiating period
th th
w.e.f. 28 February, 2013 to 30 August, 2013 has not been
approved and the petitioner’s appointment is illegal, hence,
Page 12 of 22

he is not entitled to fixation of pay in the post of Caretaker.
In the counter of opposite party No.1, it is pleaded that the
Finance Department, Government of Odisha by letter dated
23rd May, 2013 clarified that further continuance may not
be subject to financial benefits. The question for
consideration herein is that whether opposite party No.1 is
justified in directing recovery and refixation of pay of the
petitioner in a lower post after 12 years of fixation of a pay
in the higher post. There is no denial to the fact that the
petitioner has officiated the post of Caretaker w.e.f.
th
20.01.2007 till 30 August, 2013 without any break. It is
also admitted that the petitioner was appointed on regular
st
basis on 31 August, 2013. The selection process has been
held according to the Rules with an advertisement floated by
the Odisha Administrative Tribunal and in such selection,
the petitioner came out successful and was accordingly
appointed as a Caretaker.
7 . Ms. Pattnaik, learned counsel for the petitioner submits
that Rule 96 of Odisha Service Code stipulates that the pay
of a Government servant appointed by the State Government
to hold a substantive post either temporary or in officiating
capacity shall be regulated as the highest post to which he
would be entitled if appointment to one of the posts is made
and may be drawn on account of his tenure in the said post
and therefore, the petitioner in terms thereof is entitled to a
pay of Caretaker during the period of officiation, rather, it is
the fault of the opposite parties denying approval for the
Page 13 of 22

alleged period, inasmuch as, he is entitled to increment as
per Rule 77 of the Odisha Service Code.
8 . Recorded the submission of Mr. Panda, learned ASC for
the State, according to whom, the very selection of the
petitioner is not in accordance with the Rules and that apart,
the period under consideration during which he was
officiating the post of Caretaker did not have approval of the
Government and therefore, opposite party No.1 directed
recovery of the financial benefits from him, which had been
accrued during that period and also the subsequent
increments considering the fact that the period was not
th
regularized and therefore, the impugned order dated 25
October, 2019 at Annexure-9 and refixation of pay by a
decision under Annexure-10 is in accordance with law.
9 . The petitioner was allowed to perform the duties of
Caretaker with one annual increment raising his pay from
Rs.4750/- to Rs.4875/- in the pre-revised scale of pay of
Rs.4750/- to Rs.7500/- by the order of the Chairman, Odisha
Administrative Tribunal. From Annexure-1, it is further
made to reveal that after introduction of ORSP Rules, 2008,
the petitioner’s pay in the post of Junior Grade Typist has
been refixed at Rs.5200/- to Rs.20,200/- with a grade pay of
Rs.1900/- and again fixed in the post of Caretaker at
Rs.9300/- to Rs.34,800/- with a grade pay of Rs.4200/-
th
w.e.f. 20 January, 2007. The petitioner has received annual
increments sanctioned till 2012 in the scale of pay of
Rs.9300/- to 34,800/- in the officiating post of Caretaker.
Page 14 of 22

10 . Though, the Odisha Administrative Tribunal made a
correspondence with the Government to relax the Rules in
order to absorb the petitioner in the post of Caretaker, the
same was denied. In the meanwhile, the recruitment was
held and therein, the petitioner after selection, joined in the
post of Caretaker in the Odisha Administrative Tribunal
st
w.e.f. 31 August, 2013, which is opposed and objected to
by opposite party No.1 on the ground that such selection
with relaxation of age in his favour has been without the
concurrence of the Government.
11 . This Court finds that the selection process was
challenged in O.A. No.3224(C) of 2014 but it has been
dismissed vide Annexure-4. The said O.A. was filed by one
of the applicants, who had applied for the post of Caretaker
but failed to qualify and therefore, according to the Odisha
Administrative Tribunal, he had no locus standi to challenge
the selection process not being ‘a person aggrieved’ and it
was challenged in W.P.(C) No.11912 of 2016 and since a
reasoned order has been passed by the Odisha
Administrative Tribunal, this Court confirmed the order vide
Annexure-5. This Court finds that the selection of petitioner
was not disturbed thereafter and as a result, he continued to
hold the post of Caretaker on a regular basis and not only
that, received promotion to the next higher post.
12 . As earlier stated, the petitioner held the post of Caretaker
in officiating capacity with the extensions allowed.
According to opposite party No.1, further extension was
allowed vide Annexure-F/2 subject to a condition that the
Page 15 of 22

petitioner shall not be entitled to financial benefit under Rule
96 of the Odisha Service Code. It is made to understand that
the Deputy Registrar, Odisha Administrative Tribunal,
Bhubaneswar intimated the G.A. Department, Government
th
of Odisha by letter No.16278 dated 13 June, 2013 with the
th
proposal for extension beyond 28 February, 2013 but it was
replied vide Annexure-H/2 that such extension shall not be
referred to the Finance Department unless the name of the
candidate finally selected for appointment to the post of
Caretaker is reported. The direct recruitment was held to the
post of Caretaker and according to opposite party No.1, it
was in deviation to the provisions of Rules with regard to
eligibility of the petitioner vis-à-vis the age relaxation. The
contention of the opposite parties is that the Odisha
Administrative Tribunal could not have allowed age
relaxation of the petitioner as it rests upon the decision of
the Government. In reply to the letter of the Government at
Annexure-L/2, the Odisha Administrative Tribunal vide
Annexure-M/2 stated that the Chairman, Odisha
Administrative Tribunal has got the authority and power to
determine the procedure for conducting the examination for
direct recruitment to the posts of Group-C and Group-D
keeping in view the specific job recruitment except to the
post of Junior Assistant as appointment to the said post shall
be made as per Rule 12 of the Rules. According to the
petitioner, regular recruitment has been held and selection
was made and as a result, he joined in the post of Caretaker.
Page 16 of 22

13 . The bone of contention is about age relaxation and from
the counter, it is made to understand that the Deputy
Registrar, Odisha Administrative Tribunal by letter No.1741
th
dated 14 February, 2019 referred to Rule 52 of the Odisha
Service Code claiming that decision on relaxation vested
with the Government has been delegated to the Appointing
Authority, who is the Chairman, Odisha Administrative
Tribunal and therefore, it has been invoked with an intention
to allow a class of person to participate in the selection
process. According to opposite party No.1, the direct
recruitment is to be held in terms of the Rules, wherein, age
relaxation is allowed but not in respect of any in-service
candidate and therefore, the Government’s concurrence was
necessary, which has not been obtained.
14 . The age limit on first appointment is prescribed in Rule
52 of the Odisha Service Code and it stipulates that except
as otherwise expressly provided in Rules regulating the
method of recruitment to a particular service or post, a
person whose age exceeds 32 years, may not be admitted
into the service of Government in pensionable job but the
Government, may relax the rule in special cases and
delegation of power towards such relaxation is at Item No.3
of Appendix-1 of the Odisha Service Code which enlists the
powers which may be exercised by the Departments of
Government, Heads of Department and Subordinate
Authorities without consulting the Finance Department.
15 . Rule 5 of the Odisha Service Code prescribes that no
power under the rules may be exercised by the Government
Page 17 of 22

except after consultation with the Finance Department and it
shall be open to the said Department to prescribe by general
or special order for cases in which its consent may be
presumed to have been given and it shall be read as and with
reference to Appendix-1 which contains a list of delegations
under Rule 4 thereof and of cases in which the Finance
Department has prescribed under Rule 5 that its consent may
have to be presumed. Since the petitioner is an outsider and
does not fit into any of the categories of candidates to whom
relaxation of age has been allowed under the Rules and Rule
10(b) thereof, it has been opposed by the Government
stating therein that the Chairman, Odisha Administrative
Tribunal did not possess the power to invoke the relaxation
clause in terms of Rule 52 of the Odisha Service Code. But
on a reading of the said Rule along with Appendix-1, in
terms of Rule 5 of the Odisha Service Code, the power to
relax the maximum age limit for appointment to
Government pensionable service has been delegated to the
Appointing Authority. In the case at hand, exercising the
power in terms of Rule 52, the Chairman, Odisha
Administrative Tribunal invoked the relaxation clause. As
per Rule 22 of the Rules 1999, the Chairman is the
Appointing Authority of all the employees of the Tribunal
except in respect of the officials at Serial Nos.123 of
Schedule-1 appended thereto in terms of Rule 7 thereof.
When the Chairman, Odisha Administrative Tribunal is the
Appointing Authority, whether, he could have exercised the
power and invoked the relaxation clause claimed to have
been delegated by the Government in terms of Rule 52 of
Page 18 of 22

the Odisha Service Code. As per Item No.3 with reference to
Rule 52, Appendix-1 of the Odisha Service Code, such
relaxation of age limit for appointment to Government
pensionable service rests on the Appointing Authority.
When as per Rule 22, the Chairman, Odisha Administrative
Tribunal is the Appointing Authority, it shall have to be held
that relaxation of age vested with the Government is
delegated. Even an in-service candidate may apply for and
appear in a selection process in case of a direct recruitment
provided NOC is obtained and the application is made
through proper channel and can apply for an advertised post
if he is eligible with age relaxation provided under the rules
and in terms of Rule 52 and 52-A of the Odisha Service
Code. It may be that Odisha Administrative Tribunal is not a
Heads of the Department but since, the Chairman, Odisha
Administrative Tribunal is the Appointing Authority in
respect of all the staff in view of Rule 22 of the Rules, this
Court is of the view that the power delegated to an
Appointing Authority in terms of Rule 5 and as per
Appendix-1 of the Odisha Service Code has been invoked
and hence, the petitioner applied for the post and ultimately,
upon selection, received the appointment. It cannot be
challenged on the ground that the Odisha Administrative
Tribunal could not have allowed relaxation of age since the
Government’s concurrence is necessary. In view of the
discussions hereinabove, it has to be concluded that for the
delegation of power to the Chairman, Odisha Administrative
Tribunal, the relaxation clause was invoked in order to allow
the petitioner, an in-service candidate, to participate in the
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selection process. According to the Court, the Rules shall
have to be read alongside the Odisha Service Code. Rule
10(b) of the Rules provides age relaxation to SC, ST,
Women, SEBC and Ex-serviceman but at the same time, a
candidate like the petitioner is also eligible to appear as an
in-service candidate and there is no bar as such and when, he
had become overage, the Chairman, Odisha Administrative
Tribunal being the Appointing Authority relaxed the same
exercising the power delegated under the Odisha Service
Code and therefore, such selection cannot be challenged by
the opposite parties and any such plea advanced from the
side of opposite party No.1 is liable to be rejected,
furthermore when, such age relaxation has been allowed
equal to the period of service, the petitioner was permitted to
temporarily work as Caretaker.
16 . Since the appointment of the petitioner is held to be in
accordance with the Rules and that he was allowed to
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officiate the post of Caretaker between 28 February, 2013
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to 30 August, 2013 and it was within the knowledge of the
Government and apparently, such extension was allowed
with a condition that regular recruitment shall be held for the
said post, he having worked all along in such capacity, it
cannot be said that sanctioning of increments etc. to be
irregular and illegal. Reference is made to Rule 96 of the
Odisha Service Code to claim that the Government is not
bound to regularize the alleged period of service. According
to Rule 96, the pay of Government servant appointed to hold
substantively as a temporary measure or to officiate in two
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or more independent posts at one time shall be regulated in
the manner that the highest pay to which he would be
entitled if his appointment on one of the posts stood alone
and in view of the above, the petitioner has been allowed the
increments for the period of officiation. In fact, there has
been no any illegality committed when the petitioner was
allowed to work officiating in the post of Caretaker with the
extensions from time to time though it was intimated that
such continuance may not be subject to any further financial
benefits under Rule 96 of the Odisha Service Code. One of
the conditions imposed by the Government that unless
regular recruitment is shown to have initiated, the case of the
petitioner seeking extension shall not be referred to the
Finance Department. But when the petitioner has been
allowed to work in officiating capacity holding the post of
Caretaker till regularization, any such condition by the
Government alleging continuance to be irregular and hence,
not to be approved is not in consonance with Rule 96 of the
Odisha Service Code. When there has been a continuous and
uninterrupted service of the petitioner initially officiating the
post of Caretaker and thereafter, receiving a regular
appointment to the said post, any such decision by the
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Government to hold the period between 28 February, 2013
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to 30 August, 2013 as irregular cannot be sustained in law.
Rather, the petitioner is entitled to the financial benefits
having officiated the post of Caretaker till his regular
appointment and the same is permissible in terms of Rule 96
of the Odisha Service Code. In view of what stated
hereinabove, the decision of opposite party No.1 not to
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approve the alleged period with a decision vide Annexure-9
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followed by refixation of pay by order dated 13 December,
2019 vide Annexure-10 is liable to be interfered with for the
fact that the petitioner officiated the post of Caretaker and
hence, entitled to financial benefits under Rule 96 of the
Odisha Service Code and furthermore, when he is regularly
appointed against the said post with a recruitment held in
accordance with the Rules granting relaxation of age, a
power which stands delegated by the Government to the
Chairman, Odisha Administrative Tribunal in terms of Rule
52 read with Appendix-1 thereof.
17 . Accordingly, it is ordered.
18 . In the result, the writ petition stands allowed. As a
necessary corollary, the impugned orders as at Annexures-9
and 10 are hereby set aside and quashed thereby directing
opposite party No.1 to forthwith regularize the officiating
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period of the petitioner as Caretaker between 28 February,
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2013 and 30 August, 2013. In the circumstances, however,
there is no order as to the costs.

(R.K. Pattanaik)

Judge




Rojina

Signature Not Verified
Digitally Signed
Signed by: ROJINA SAHOO
Designation: Sr. Stenographer
Reason: Authentication
Location: OHC, CTC
Date: 08-Sep-2026 13:01:05
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