JUDGMENT
C.J.
1. This writ petition has been filed challenging the order of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No. 2612 (C) of 2003. By the said judgment the Tribunal has dismissed the Original Application.
2. The material facts of the case are that the applicant before the Tribunal (the petitioner before us) entered the service as Junior Engineer and while continuing as such he acquired Bachelor Degree in Engineering (A.M.I.E.). In view of the resolution of the Government taken in the year 1996 he was promoted to the rank of Assistant Engineer on ad hoc basis in the scale of pay of Rs. 2000-3500/- for a period of one year or till receipt of recommendation of the O.P.S.C. whichever is earlier. While the petitioner was continuing as such, the O.P.S.C. published an advertisement No. 3 of 2002-2003 for special recruitment of Assistant Engineer (Civil/Mechanical) in Class-ll of Assistant Engineering Service under the Department of Water Resources, Orissa. The vacancy position shown in the advertisement was 409 and the applicant applied for the said post. Subsequently the applicant came to know from the local daily that the O.P.S.C. has issued notice for interview of the candidates from 26.02.2003 onwards. In this connection, a particular clause in the advertisement, which is relevant, is referred to. In the said advertisement there was an age bar under Clause-3 of the advertisement. The said Clause 3 is set out below:
A candidate must be under 37 years and above 21 years of age on the 1st August, 2002, i.e., he/she must not have been born earlier than the 2nd August, 1965 and not later than the 1st August, 1981:
Provided that the upper age limit may be relaxed up to 10 years in respect of Graduate Engineers who are already in panel as per the Water Resources Department Resolution No. 470, dated the 4th January 2002.
3. Much after the aforesaid advertisement was issued; representation was made by the petitioner to the State Government in the Water Resources Department for granting exemption. On the basis of such representation made by the petitioner, the Water Resources Department granted exemption to the following effect:
After careful consideration of their representations Government have been pleased to relax in full the maximum age limit in respect of the candidates who have entered into government service as Junior Engineers within the prescribed age limit but without graduate qualification prescribed under Clause (d) of aforesaid rules and have subsequently acquired the same while serving as such.
You may verify the appointment orders of such candidates as Junior engineers, their educational qualification certificates and allow them to appear in special recruitment drive for recruitment to the post of Assistant Engineers (Civil & Mechanical).
4. Despite the aforesaid relaxation by the State Government, O.P.S.C. was not allowing the petitioner to appear in the interview since the applicant does not satisfy the eligibility condition about age as mentioned in Advertisement. The petitioner went before the Tribunal challenging the action of the O.P.S.C. and the Tribunal by an interim order allowed the petitioner to appear in the interview but made it clear that the result of such interview shall not be published.
5. When the matter finally came up before the Tribunal for hearing, the Tribunal by judgment and order, under challenge, was pleased to reject the contention of the applicants about publishing the result. The Tribunal found that the O.A. filed by them was without merit and disposed of the same without any direction upon the O.P.S.C. to publish the result. The said decision has been challenged before this Court.
6. Learned Counsel for the petitioner submitted that the reievant statutory Rules, namely, Orissa Service of Engineers Rules, 1941 contains Clause 9 relating to age. Under clause-9, the second proviso is to the following effect:
Provided further that the maximum age-limit may be fully relaxed in respect of candidates who have entered State Government service as Junior Engineers within the prescribed age-limit be without the qualification prescribed under Clause (d) of Rule 9 and have subsequently acquired the same while serving as such.
7. Learned Counsel submitted that in view of the second proviso to Clause-9, age-limit should be relaxed in respect of candidates who have entered State. Government Service as Junior Engineers within the prescribed age limit without the qualification prescribed in Sub-clause (d) of Clause-9, but subsequently acquired the same. Learned Counsel further submits that since the petitioner’s case is covered by the second proviso to Clause-9, the petitioner is qualified for being appointed to the said post for which selection was held and the O.P.S.C. should be directed by this Court to publish the result of interview since the petitioner participated in the said interview.
8. In support of such contention, learned Counsel for the petitioner relied on two decisions of the Hon’ble Supreme Court. The first decision was rendered in the case of Ashok aliasSomanna Gowda and Anr. v. State of Karnataka and Ors. . Learned Counsel submitted that the Tribunal rejected the petitioner’s case inter alia on the ground that if the condition about age in the advertisement is now relaxed, that will operate unjustly against many other persons who have not applied in view of the stipulation about age, in the advertisement. In the case of Ashok alias Somanna Gowda and Anr., according to the petitioner, a different view was taken. We cannot accept the contention of the petitioner.
9. In the case of Ashok alias Somanna Gowda, interview marks were kept at 33.3% of the total marks and the Apex Court found that the same was not correct. But the Hon’ble Supreme Court held that if 15% marks were kept for interview, the petitioners would have qualified. In view of such finding, the Apex Court granted relief to the petitioners. As the counsel for the State objected on the ground that if that criteria is followed relief can be granted to others, the Apex Court repelled that contention holding that nobody else applied and the selections were held in 1987.
10. That decision does not apply. In Ashok Gouda (supra), the Apex Court found that allotting 33.3% for interview is not legally sustainable. But here the stipulation about age is not bad in law. Apart from that, by the fact of relief being granted to the petitioner in Ashok Gowda (supra) no one can be said to have been prevented from applying pursuant to the advertisement. But here if eligibility condition of age is relaxed now, many persons who could have applied, if the relaxation was available to them will be excluded. Therefore, the ratio in the said case cannot be applied in the present situation.
11. The other case, which was cited by the learned Counsel, was also on a different factual basis. That decision was rendered in the case of A.P. Public Service Commission v. P. Chandra Mouleesware Reddy and Ors. . In that case A.P.P.S.C. advertised 19 posts for recruitment and in response thereto the parties applied and appeared in the written test and were interviewed. At that stage the Government directed the Commission to fill up only 10 posts. Later on, the State Government in its affidavit admitted that its direction to the Commission about 10 vacancies instead of 19 was based on a mistake of fact. In that situation the Tribunal held that the State having admitted its mistake the applicants were entitled to the relief prayed for. But in the instant case the facts situation are different. Here, no mistake has been admitted by the State and in fact there is no mistake. Here advertisement has been made on one basis and the parties have applied on the basis of such advertisement and interview has been held and selection was completed. Now the petitioner wants that eligibility condition of age should be changed in their favour. Here the case stands on a totally different footing.
In this case, the stand of the O.P.S.C. in an affidavit filed before us is that after consideration of the letter of the Government dated 29.08.2003 for relaxation of age on the representation of the applicant on the same date, the Commission took a view that under the second proviso of Rule 9(a) the Government have authority to make full relaxation of maximum age limit but the said relaxation should have been made by the State Government at the time of submission of requisition to the O.P.S.C. In that case relaxation would have been incorporated in the advertisement. Everybody would have had the opportunity to take the benefit of the said relaxation. But if the Government gives the relaxation after closure of date of receipt of applications and during the course of interview, there are bound to be the candidates, who did not apply by the due date when the relaxation was not there. So, if accepting the said relaxation condition the petitioner’s candidature is accepted, that will operate unfairly to others who might have applied had the selection about age was there.
12. That stand of the O.P.S.C. was rightly appreciated by the Tribunal while rejecting the petitioner’s application. We also found that the said stand of O.P.S.C. is based on Articles 14 and 16 of the Constitution. Reference in this connection may be made to the judgment of the Hon’ble Supreme Court in the case of Swaran Lata v. Union of India and Ors. reported in 1979 (1) S.L.R. 710. In that case the Hon’ble Supreme Court was very clear in holding that no relaxation regarding qualification can be made when an advertisement has been issued inviting applications. The Hon’ble Supreme Court categorically held that if relaxation has to be made, there is a duty cast to re-advertise the post (see paragraph 67). In the instant case the advertisement did not contain a relaxation clause and therefore relaxing the condition in the advertisement at a stage when selection process was going on will be in contravention of the principle of Articles 14 and 16 of the Constitution of India.
13. Similar view has been expressed by the Supreme Court in the case of State of Rajasthan v. Hitendra Kumar Bhatt reported in AIR 1998 Supreme Court 91. In that case also Supreme Court made it clear that cut off date for ascertaining eligibility as prescribed in the advertisement cannot be relaxed on a sympathetic view. In paragraph 6 of the Judgment, Hon’ble Supreme Court has specifically observed that cut off date by which all the requirements relating to qualification are to be met cannot be ignored in individual cases. The Hon’ble Supreme Court cautioned by saying if that is done, there may be other persons, who might have applied if they knew that eligibility conditions are flexible. Relaxing the prescribed requirement in the case of an individual will cause injustice to others.
14. The Division Bench of this Court in the case of Dr. Sudipta Pattanaik v. State of Orissa and Ors. reported in 100 (2005) CLT 426 : 2005 (Supp.) OLR (NOC) 1116 has taken the same view in the said judgment one of us was a party. Paragraph 22 of the said judgment made it very clear that the eligibility criteria mentioned in the advertisement cannot be changed after the applications pursuant to the advertisement, were filed.
15. For the reasons aforesaid it is difficult for us to take a view different form the one taken by the Tribunal. The Tribunal has not taken any view with which this Court can interfere in exercise of its power of judicial review.
We affirm the view of the Tribunal.
In view of the aforesaid reasons, the writ petition is dismissed. There is no order as to costs.
N. Prusty, J.
16. I agree.