Subhas Chandra Pattanayak
The Courts have time and again stripped Naveen Patnaik’s government layer by layer over land acquisition for private companies to the extent of killing people, as in Kalinga Nagar, in the name of public interest.
But the syndrome has gone so deep that, behind back of Naveen Patnaik, Secretary level Officers are also working as racketeers.
I would put one instance on records here for the Government to counter if the suspicion is baseless.
On 16th last month, the Principal Secretary to the Government in the department of Tourism and Culture, has issued Office Order No. II.C-55/2011/2258/TC that renders an existing Rule, legally in force, inconsequential. The minister seems to have been misled by the bureaucracy in this mischief.
The mischief relates to the recruitment of teachers for the Government College of Music at Bhubaneswar styled Utkal Sangeet Mahavidyalaya.
The recruitment is controlled by the Orissa Culture Services (Method of Recruitment and Condition of Services) Rules 2006, made and promulgated by the State Governor under Article 309 of the Constitution of India.
The Governor has not amended the Rules; but the executive Government has arbitrarily tampered with the stipulation of the Recruitment Clause to facilitate entry of some legally ineligible persons into service.
Rule 16 ( c ) is the Recruitment Clause, which stipulates that a candidate, in order to be eligible to compete at the examination for direct recruitment, “shall not be under 21 years and above 32 years of age”.
The preamble of Rule16 has made it a “must”.
But the Office Order in question has tampered with the last age limit by making it 37 years in place of 32, which is absolutely arbitrary and illegal.
The said Rule has a proviso that allows upper age relaxation by five years “for SC and ST candidates, candidates belonging to the category of ex-servicemen, physically handicapped persons, women candidates and backward class candidates as may be prescribed by Government from time to time”. This Proviso has no applicability at all to General Category candidates. But the executive has tampered with this proviso to extend its applicability to over-aged candidates of General Category.
The executive has shrewdly used Rule 24 to carry out this mischief.
Rule 24 belongs to the miscellaneous chapter of the Rules 2006. It says, “If the state Government are of the opinion that it is necessary or expedient to do so in the public interest, they may, by an order and in consultation with the Commission (The Orissa Public Service Commission) relax any of the provisions of these Rules in respect of any class or category of person in public interest”.
OPSC: A sanctuary of retired officers
In normal conditions, the Commission should not have concurred this illegal relaxation. But, Naveen Patnaik Government has vitiated the impartiality of OPSC (the Commission) by reducing it to a sanctuary of retired government servants who are, under intoxication of continuance in salary fetching jobs after retirement, are apparently not unwilling to oblige the government in such nefarious deeds. So, on 17 August 2012, the OPSC, has, in letter No. 6120, concurred the government proposal to do away with the rider to Rule 16 ( c ).
The executive had proposed and the OPSC has agreed to misuse Rule 24 to destroy the condition of eligibility to compete at the examination for direct recruitment laid down under the Proviso to Rule 16 ( c ). For this mischief, they have misinterpreted the words “Any of the provisions of these Rules” as “proviso to any of these Rules”. Either the Commission is hoodwinked by the executive in accepting this misinterpretation of law or is a willing party in hoodwinking the public by accepting “Proviso” as “Provision”. Either way, the Rule is raped to help undisclosed general category candidates to bag the posts of lecturers in the Utkal Sangeet Mahavidyalaya, where the scope of employment is limited and the numbers of qualified candidates for the limited posts are massive. Job fixing in such situations, as grapevines transmit, is stimulated by greasing of palms that veers from Rs. 8 lakhs to Rs.18 lakhs per candidate corresponding to salaries that a Lecturer, after recruitment, would be drawing in a period of one to two years. Though this is not acceptable to us, it is not rejected by many, specifically as the climate is known for scams and scandals involving government officials from night watchmen to Chief Secretaries, from Panchayat Word Members to Chief of Political Government that the State has the bad luck to bear with.
Proviso Vis-à-vis Provision
When Rule 24 authorizes the Government in extraordinary situations to relax any of the provisions of these Rules, the executive has not relaxed the provision laid down under Rule 16 ( c ). The said Rule says, “He or she (the candidate for a faculty position) shall not be under 21 years and above 32 years”. The executive, with the power vested in it by Rule 24, could have caused the relaxation by changing this provision and that could have been legal. But it has not touched this provision. It has changed the Proviso for which it has no power. The preamble of Rule 16 is remarkable. It stipulates that, “A candidate in order to be eligible to compete at the examination for direct recruitment must satisfy the following conditions” one of which is laid down under Sub-Rule ( c ), with a rider that relaxation in the age limit can only be granted in case of candidates earmarked therein. So, adherence to the proviso is a “must” for the authorities conducting the recruitment.
Provisions of the Rules can be changed under authority of Rule 24; but no ‘Proviso’ to any ‘Provision’ can be changed.
‘Provision’ and ‘Proviso’ are not the same.
‘Provision’ is a Clause whereas ‘Proviso’ is a “must” condition that the Clause is bound by.
As for example: Section 276 of Indian Succession Act 1925 allows transfer of property of a father to his daughter by way of a Will when it is his self-acquired property. This is the ‘Provision’ in the Act. But when the Will has a rider that his daughter can get his property, provided that she marries the man he has chosen for her, it is a ‘Proviso’ which is a ‘must’ for implementation of the ‘Provision’ in the Act.
So, when Rule 24 of the Orissa Culture Services (Method of Recruitment and Condition of Services) Rules 2006 has the mischief to permit the executive to relax the ‘Provision” at Rule 16 ( c ), it has no force to permit the executive to tamper with the ‘Proviso’ to Rule 16 ( c ).
The ‘Proviso’ to Rule 16 ( c ) could have been amended only by the Governor who has framed and promulgated the said Rules under article 309.
It is not that the mandarins do not know this. There is reason to suspect that knowingly they have misinterpreted Rule 24 to help some undisclosed over-aged person (s) of general category by killing the spirit of relaxation provided for SC ST, women, ex-servicemen and physically handicapped persons.
Had this not been so, the relaxation could not have been required; as sufficient numbers of eligible candidates with requisite qualifications had already applied for the jobs in response to Notice issued by the OPSC.
In inviting applications against available vacancies, the OPSC in its advertisement No.5 of 2012-13 dated 14 August 2012 had spelt out the eligibility criteria. The two basis components of the criteria were ‘Educational Qualification’ and ‘Age’. When a Master’s Degree in the relevant subject with at least 55 % marks from a recognized University/Educational Institution formed the first component, the second component was ‘Age’ below 32 years and above 21 on the 1st January 2012, with the rider that the upper age limit is relaxable by five years for candidates belonging to categories of SC, ST, S.E.B.C., Women, Ex-servicemen and by 10 years for physically handicapped students. There was no dearth of candidates who fulfilled all the criteria.
But the executive has noted that the relaxation in age limit was necessary due to “non-availability of the required numbers of the eligible candidates within the aforesaid age limit” to fill up the vacancies.
Was there any examination basing on which the OPSC has determined that no eligible candidate was available? No.
Had the OPSC or the government fixed a minimum number of applicants for the vacant posts? No.
How then “non-availability of candidates” was located?
The Government must answer it and explain its position, if racketeers in administration have not contrived this statement to fix the recruitment.
It is better for Chief Minister Naveen Patnaik to look into this matter as it may help him know how Rules are being raped by his mandarins to please the objects of their nepotism/favoritism or to satisfy their personal/collective greed/avarice, all in the guise of public interest.