IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No. 4690 of 2023

In the matter of an application under Articles 226 & 227 of the

Constitution of India.

………………

Rishansh Kumar Vaidya & Ors. …. Petitioners

-versus-

Union of India & Ors. …. Opposite Parties

W.P.(C) No. 24192 of 2023

Subho Roy Bhandary & Ors. …. Petitioners

-versus-

Union of India & Ors. …. Opposite Parties

For Petitioners : Mr. U.C. Mohanty, Adv.

For Opp. Parties : Mr. P.K. Parhi, DSGI

along with

Mr. D.R. Bhokta, CGC

Mr. Debraj Mohanty, Adv.

Along with

Mr. P.R. Patnaik, Adv.

(Opp. Party Nos.5 & 6)

Mr. S.K. Parida, Adv.

(Opp. Party Nos.7 to 14)

PRESENT:

THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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Date of Hearing:18.11.2025 & Date of Judgment: 20.01.2026

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Biraja Prasanna Satapathy, J.

Since both the Writ Petitions involve common issue with

similar prayer, both the matters were heard analogously and disposed of

by the present common order.

2. Both the Writ Petitions have been filed inter alia with the following

prayer:-

“It is, therefore, humbly prayed that Your Lordships may

graciously be pleased to admit the Writ Petition and after

hearing the parties further be pleased to issue appropriate

Writ(s)/ Order(s):-

(1) To quash and set-aside the condition mentioned in

Eligibility/ Essential qualification provided under clause 2 of

the Advertisement being Advertisement No. Ref. No.

MCL/HQ/Recruitment/ Statutory/ 2022/600 dated 15.12.2022

issued by Mahanadi Coalfield Limited under Annexure-1

whereby and where under the candidates possessing restricted

competency Certificates have been declared not eligible for

appearing in the selection process for recruitment to the various

posts of Jr. Overman T&S Gr-C (82 vacancies), Mining Sirdar

T&S Gr-C (145 vacancies) and Surveyor T&S Gr-B (68

vacancies) which is wholly arbitrary, unreasonable, whimsical

and without application of mind and in complete violation of the

Coal Mines Regulation, 2017 and Cadre Scheme for Mining

Supervisory Personnel (Cadre Scheme No. 4) published by Joint

Bi-Partite Committee for the Coal Industry dated 28.03.1994.

AND

(II) Further be pleased to direct the Respondent No. 5 to accept

the examination form from the candidates possessing restricted

competency certificate and allow them to appear in the said

examination, holding the said advertisement is illegal, arbitrary,

unreasonable and unconstitutional.

AND

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(III) Further be pleased to direct the Opp. Parties to provide

and accept Hard Copy of the Form/Application to be filled

under Advertisement No. Ref. No.:

MCL/HQ/Recruitment/Statutory/ 2022/600 dated 15.12.2022

subject to the outcome of the instant case.

AND/OR

(IV) Pass such other order(s) as may deem fit and proper in the

facts and circumstances of the case and in the interest of Justice.

And for this act of kindness, the petitioners as in duty bound

shall ever pray.”

3. Learned counsel appearing for the Petitioners contended that

advertisement was issued by the authorities of Mahanadi Coalfields

Limited (in short MCL) on 15.12.2022 under Annexure-1, inviting

applications to fill up the posts of Junior Overman (T & S), Mining

Sirdar (T & S) Group-C and surveyor (T & S) Group-B. It is contended

that since in the impugned advertisement so issued under Annexure-1,

vide Clause-2, while prescribing the minimum qualification required for

the aforesaid posts, a requirement was made that valid mining

certificate of competency (Unrestricted) so issued by the Director

General of Mines Safety is required to be produced, the present Writ

Petitions were filed challenging such stipulation made in the impugned

advertisement.

3.1. Learned counsel appearing for the Petitioners contended that this

Court while issuing notice of the matter vide order dated 17.02.2023,

passed an interim order holding that process of selection pursuant to

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Annexure-1 shall continue, but no final decision shall be taken without

leave of the Court. However such interim order passed on 17.02.2023

was modified after appearance of Opp. Party-MCL vide order dated

13.07.2023. As per the said order this Court clarified that out of the 100

posts advertised for the post of Mining Sirdar (T & S) Group-C, 44

posts in W.P.(C) No 4690 of 2023 and 10 numbers of posts in W.P.(C)

No 24192 of 2023 shall not be filled up till the next date. It is further

contended that such interim order passed on 13.07.2023 is still in force.

3.2. While assailing the stipulation so contained in the advertisement

with regard to production of the certificate of competency

(Unrestricted) vide Clause-2, learned counsel appearing for the

Petitioners contended that such a stipulation made in the advertisement

is illegal and contrary to the provisions contained under Regulation 247

of the Coal Mines Regulations, 2017. Regulation 247 of the 2017

Regulation reads as follows:-

“247. Sirdars and overmen.– (1) No person shall be appointed

as a competent person under regulations 33, 75, 99, sub-

regulations (14) and (15) of regulation 137, clause (a) of sub-

regulation (4) of regulation 138, sub-regulation (6) of

regulation 139, sub-regulations (7) and (8) of regulation 142,

sub-regulation (9) of regulation 150, sub-regulation (12) of

regulation 159, sub-regulation (3) of regulation 161,

subregulation (2) of regulation 165, regulations 167, 169 and

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195, unless he is the holder of either an Overman’s Certificate

or a Manager’s Certificate.

(2) No person shall be appointed as a competent person under

regulations 129, 130, sub-regulation (6) of regulation 135, sub-

regulation (7) of regulation 136, regulation 147, sub-regulation

(1) of regulation 165 and regulation 166 unless he is the holder

of either a Manager’s Certificate or Overman’s Certificate or a

Sirdar’s Certificate together with a gas testing certificate:

Provided that, so much of this regulation as

requires a person holding a Manager’s Certificate or

Overman’s Certificate or a Sirdar’s Certificate to hold gas

testing certificate also shall not apply to, persons employed

aboveground, or in opencast working, or competent person

under sub-regulation (6) of regulation 135.

(3) In case of mines having opencast workings only, nothing in

sub-regulations (1) and (2) shall prohibit the appointment under

regulations 33, 129, 130, sub-regulation (6) of regulation 135,

clause (a) of subregulation (4) of regulation 138, sub-regulation

(6) of regulation 139 and regulation 195 of a person holding, as

the case may be, a Sirdar’s Certificate, Overman’s Certificate

or Manager’s Certificate restricted to mines having opencast

workings only.

(4) Notwithstanding anything contained in sub-regulation (2),

the Chief Inspector may, where special conditions exist, permit

or require appointment of any person, not necessarily holding

either a Manager’s Certificate or Overman’s Certificate or a

Sirdar’s Certificate as a competent person under regulation

130, if such person possess otherwise a suitable qualification

and experience for effective supervision of the working places.”

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3.3. It is contended that since the Petitioners all possess the

qualification of Diploma in Mining Engineering, in view of the

provisions contained under Regulation 247 of the Regulation, the

requirement to have an unrestricted certificate of competency is not

sustainable in the eye of law and such a stipulation could not have been

made by Opp. Party-MCL while issuing the impugned advertisement

under Annexure-1.

3.4. It is also contended that such a provision in the advertisement for

having an unrestricted certificate of competency is also not permissible,

in view of the provisions contained under Regulation 47, 48 and 173 of

the 2017 Regulation. Regulations 47, 48 and 173 of the Regulation

reads as follows;

“47. Duties and responsibilities of overman.– (1) The overman

shall subject to the orders of superior officials, have

responsibility, charge and control of such part of the mine, and

shall carry out such duties, as may be assigned to him by the

manager.

(2) The overman shall, -

(a) while on duty, carry a tracing of the workings of such district

and shall keep the tracing up-todate;

(b) in his district, make the inspections and reports required by

these regulations;

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(c) ensure that the subordinate officials and competent persons

in his district carry out their respective duties in a proper

manner;

(d) ensure that mining operations in the part of the mine

assigned to him under sub-regulation (1) are carried out as per

the code of practices framed under these regulations.

(3) The overman shall, to the best of his power, enforce in his

district the provisions of the Act, of these regulations and orders

made thereunder, and shall, subject to the control of manager

and the assistant manager, if any, give such directions as may

be necessary to ensure compliance with those provisions, and to

secure the safety of the district and the safety and proper

discipline of the persons employed therein.

(4) The overman shall see that sufficient supplies of timber,

support materials, brattice, tools and tackles, appliances, and

other necessaries required for the safe working of his district

are kept at convenient places therein.

(5) The overman shall –

(a) ensure that every air-crossing, stopping, door, brattice and

other ventilation device is maintained in good order;

(b) ensure that the ventilation is effective in his district, and

when brattices or air pipes or ducts are required to be used for

the ventilation of the working places, he shall see that they are

kept sufficiently advanced so that an adequate amount of air

reaches every such working place;

(c) have power to send out of the mine any person under his

charge who infringes or attempts to infringe any provision of the

Act or of the regulations or orders made thereunder, or fails to

carry out any direction given with regard to safety, and shall

report such matter in writing to the manager;

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(d) ensure that all tracks and tramlines are properly laid,

graded, ballasted or otherwise packed; (e) see that the manholes

on the haulage roadways are kept safe, clear of any obstruction,

and properly white-washed;

(f) ensure that the stop-blocks, runway switches and other

safety devices are fixed and used as required under the

regulations, drag or back-stays are provided and regularly used

behind tubs ascending inclines and that a sufficient supply of

suitable sprags is provided where tubs are loaded on a gradient

or lowered down a gradient by hand;

(g) stop the use forthwith if he finds any of the ropes, chains,

signals, brakes, jig wheels and post or other apparatus in use in

his district to be in an unsafe condition;

(h) ensure that, except for the purposes of inspection,

examination and repair every person other than an official or a

haulage attendant travels by the travelling roadway;

(i) give prompt attention to the removal of any danger observed

or reported to him, and shall see that dangerous places are

adequately fenced off;

(j) see that approved safety lamps are used belowground.

(6) In case of opencast workings, the overman shall ensure that-

(a) sides of benches are kept properly dressed;

(b) stability of benches is not endangered;

(c) haul roads are kept maintained;

(d) stability of overburden dumps is not endangered;

(e) there is no over-crowding of men and machinery at the

working faces;

(f) adequate lighting is provided at the area under his control;

and

(g) adequate precautions as laid down in these regulations are

taken before blasting operations is conducted;

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(h) all machinery and plant are operated in safe and secured

manner.

(7) The overman shall –

(a) devote the whole of his time to his duties and visit each

working place in his district as often as may be necessary or

possible;

(b) not, except for justifiable cause, leave the district in his

charge until he has finished the inspections required under these

regulations and any other duties that he is required to perform,

or until relieved by a duly appointed substitute;

(c) if the mine is working in a continuous succession of shifts,

confer with the official succeeding him and give him such

information as may be necessary for the safety of his district and

of persons employed therein;

(d) at the end of his shift, record in a bound paged book kept for

the purpose a general report in the specified format on the

performance of all his duties during the shift, including anything

concerning the proper working of the mine and the safety and

discipline of persons employed in his district.

48. Duties and responsibilities of sirdar.– (1) The sirdar or

other competent person appointed under regulation 129 shall,

subject to orders of superior officials, have responsibility,

charge and control of the district of the mine assigned to him by

the manager or assistant manager.

(2) The sirdar shall –

(a) take reasonable means to ensure proper observance of the

requirements of the Act and of the regulations, and orders made

thereunder by persons under his charge and shall, as soon as

practicable, report any contravention thereof to his superior

official;

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(b) make such inspection and reports as are required by these

regulations, and in making such examination, he shall pay

particular attention to edges of the goaf, if any, for checking

supports and for presence of gas;

(c) except in the case of a mine working in a continuous

succession of shifts, on completion of the first inspection of the

district, proceed to the station specified under regulation 129

and instruct all persons as to their places of work and as to any

special precautions necessary to be observed by them;

(d) if he finds any person in a place other than the one assigned

to him, he may order such person out of the mine, and shall

forthwith report the matter to his superior official;

(e) ensure that no inexperienced person is employed on any

work except under the supervision of an experienced person.

(f) see that the roof and sides of all traveling roadways and

working places in his district are made and kept secure;

(g) where the height of any working place in the district in his

charge measured from floor to roof exceeds three meters, see

that a suitable wooden bunton or pole by which all parts of the

roof may be effectively tested by a person standing on the floor

and a ladder of suitable length are kept at convenient places in

the district;

(h) report to his superior official any deficiency in timber,

support materials, appliances and other necessaries required

for the safe working of the district;

(i) Where either of the two ways affording means of egress from

the district to the surface is not ordinarily used for travelling,

travel, once at least in every seven days, the whole of such

roadway in order to make himself thoroughly acquainted with

the same; and

(j) see that no support is withdrawn except by means of a safety

prop-withdrawer.

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(3) If sirdar observes any dangerous place during the course of

his inspections or if any danger at a place where work persons

are employed is reported to him, he shall, if the danger is not

possible to be removed forthwith, withdraw all persons from

such place and shall not leave the place until the danger has

been removed in his presence or all approaches to the place

have been fenced off so as to prevent persons from inadvertently

entering such place.

(4) The sirdar shall –

(a) take care that any dangerous operation is carried out with

due precautions, and in such cases shall be present throughout

whenever any work of clearing falls of ground and setting of

supports therein is being carried out;

(b) cause the entrance to every place which is not in actual use

or in course of working or extension, to be fenced across the

whole width, so as to prevent persons from inadvertently

entering such place;

(c) if he finds any accumulation of inflammable or noxious

gases, take such precautions as specified in regulation 166 and

shall not remove such accumulation until he has received

instructions in that behalf from his superior official;

(d) on receipt of information of an accident to any person in his

district, proceed at once to the place of accident, inspect the

place and, if required, supervise the rescue operations, and

shall report or send notice of the accident to the manager or

assistant manager;

(e) devote the whole of his time to his duties, and shall not leave

the mine until the end of the shift or until relieved by a duly

appointed substitute;

(f) if the mine is worked by a continuous succession of shifts,

before leaving his district, confer with the sirdar or other

competent person succeeding him, and shall acquaint him with

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all matters requiring his personal attention and give him such

other information as may be necessary for the safety of his

district and of the persons employed therein;

(g) see that mining operations in the district of the mine

assigned to him under sub-regulation (1) are carried out as per

the code of practices framed under these regulations.

(5) In case of opencast workings, the sirdar shall ensure that-

(a) sides of benches are kept properly dressed;

(b) stability of benches is not endangered;

(c) haul roads are kept maintained;

(d) stability of overburden dumps is not endangered; and

(e) dust control measures are implemented.

173. Underground relighting stations.– (1) In every mine, lamp

stations for relighting safety lamps may be fixed by the manager

at suitable places belowground and every such station shall be

legibly marked RELIGHTING STATION, which shall be situated

in a main intake airway, and shall be placed in charge of a

competent person.

(2) No person shall be appointed as a competent person under

this regulation unless he holds a Gas Testing Certificate.”

3.5. It is also contended that even though Petitioners are Diploma

holders in Mines and Mining Engineering together with batch testing

certificate and the competency certificate, because of the illegal

stipulation contained in the advertisement to produce the certificate of

competency (Unrestricted), petitioners were deprived to make the

application for the posts in question. However, because of the interim

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order passed by this Court 54 numbers of posts as against the post of

Mining Sirdar, T & S Group-C have not been filled up out of the total

145 posts so advertised under Annexure-1.

3.6. It is contended that since Petitioners were otherwise eligible to

make the application for the posts in question and because of the illegal

stipulation contained in the advertisement regarding production of the

certificate of competency (Unrestricted), they were debarred from

making the application to face the selection process, taking into account

the nature of interim order passed by this Court on 13.07.2023, the

recruitment process since has already been completed, Opp. Party-MCL

be directed to hold a special examination for the Petitioners without

insisting on the unrestricted certificate of competency to be produced

along with the application.

3.7. It is further contended that in view of the provisions contained

under regulation 247 of the Regulation which has got statutory force,

authorities of MCL while issuing the impugned advertisement on

15.12.2022 under Annexure-1 could not have insisted for production of

the certificate of competency (Unrestricted).

3.8. It is also further contended that since most of the coal mines

operated by MCL are overcast mines and Petitioners are having

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certificates to work in overcast mining, because of the illegal restriction

imposed in the advertisement, Petitioners were deprived to get the

benefit of selection and appointment.

It is accordingly contended that Opposite-Party MCL be directed to

conduct the recruitment test by allowing the Petitioners to participate in

the selection process pursuant to Annexure-1 in respect of the 54 posts

so reserved vide order dated 13.07.2023.

3.9. In support of his aforesaid submissions learned counsel appearing

for the Petitioners relied on the following decisions:-

(i) Budhan Choudhury & Ors. Vs. State of Bihar, AIR 1955 SC 191

(ii) Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors.,

2025 (2) SCC 1/MANU/SC/1179/2024

(iii) Ramesh Kumar Vs. High Court of Delhi & Ors., AIR 2010 SC

3714

(iv) Ashish Kumar Vs. State of U.P & Ors., (2018) 3 SCC 55

(v) Jyoti K.K & Ors. Vs. Kerala Public Service Commission & Ors.,

(2010) 15 SCC 596

(vi) Sidheswari Mohanty Vs. State of Orissa & Ors., 2023 LabIC

2648/MANU/OR/0841/2023

3.10. Hon’ble Apex Court in Para 5 of the decision in the case of

Budhan Choudhury has held as follows:-

Xxx xxx xxx

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“5. It is now well established that while Article 14 forbids class

legislation, it does not forbid reasonable classification for the

purposes of legislation. In order, however, to pass the test of

permissible classification two conditions must be fulfilled,

namely, (i) that the classification must be founded on an

intelligible differentia which distinguishes persons or things that

are grouped together from others left out of the group, and (ii)

that that differentia must have a rational relation to the object

sought to be achieved by the statute in question. The

classification may be founded on different bases; namely,

geographical, or according to objects or occupations or the like.

What is necessary is that there must be a nexus between the

basis of classification and the object of the Act under

consideration. It is also well established by the decisions of this

Court that Article 14 condemns discrimination not only by a

substantive law but also by a law of procedure.”

Xxx xxx xxx

3.11. Hon’ble Apex Court in Para 65(4) & (5) of the decision in the

case of Tej Prakash Pathak has held as follows:-

“65.4. Recruiting bodies, subject to the extant Rules, may devise

appropriate procedure for bringing the recruitment process to

its logical end provided the procedure so adopted is

transparent, non-discriminatory/non-arbitrary and has a

rational nexus to the object sought to be achieved;

65.5. Extant Rules having statutory force are binding on the

recruiting body both in terms of procedure and eligibility.

However, where the rules are non-existent, or silent,

administrative instructions may fill in the gaps;”

3.12. Hon’ble Apex Court in Para 15 of the decision in the case of

Ramesh Kumar has held as follows:-

“15. in case the statutory rules prescribe a particular mode of

selection, it has to be given strict adherence accordingly. In

case, no procedure is prescribed by the rules and there is no

other impediment in law, the competent authority while laying

down the norms for selection may prescribe for the tests and

further specify the minimum benchmarks for written test as well

as for viva voce.”

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3.13. Hon’ble Apex Court in Para 27 of the decision in the case of

Ashish Kumar has held as follows:-

“27. Any part of the advertisement which is contrary to the

statutory rules has to give way to the statutory prescription.

Thus, looking to the qualification prescribed in the statutory

rules, the appellant fulfils the qualification and after being

selected for the post denying appointment to him is arbitrary

and illegal. It is well settled that when there is variance in the

advertisement and in the statutory rules, it is the statutory

rules which take precedence.”

3.14. Hon’ble Apex Court in Para 7 of the decision in the case of Jyoti

K.K has held as follows:-

“7. It is no doubt true, as stated by the High Court that when a

qualification has been set out under the relevant Rules, the same

cannot be in any manner whittled down and a different

qualification cannot be adopted.”

Xxx xxx xxx

3.15. Hon’ble Apex Court in Para 26 & 27 of the decision in the case of

Sidheswari Mohanty has held as follows:-

“26. Thereby, applying the above principles to the present case,

if a rule framed under proviso to Article 309 is clear in its

language, on plain reading of the same if Interpretation is given,

then any action taken de hors the rules has to be struck down.

As a consequence thereof, since the selection committee had

been constituted contrary to the rules, any selection made by it

cannot be sustained in the eye of law. Any subsequent executive

instructions issued cannot supplement or supplant the provisions

of the rules, which are purely statutory in nature, unless the

same is incorporated by way of amendment to the rules itself.

Therefore, the constitution of the selection committee relying on

the executive instructions and any selection made by such

committee cannot be sustained being de hors the rules framed

by the authority, which is statutory in nature. As a consequence

thereof, the selection of the petitioners being de hors the rules

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governing the field, the same cannot be sustained. As a result of

which, the conclusion arrived at by the Tribunal in the order

impugned is well justified, which does not require any

interference by this Court at this stage.

27. In view of facts and law, as discussed above, since the

selection to the post of Live Stock Inspector, pursuant to

advertisement dated 16.01.2004, was made de hors the rules

governing the field, the same is liable to be quashed and the

Tribunal has rightly done so. Therefore, while upholding the

impugned orders of the Tribunal, this Court directs the opposite

party-authorities to prepare a fresh selection list on the basis of

applications submitted, pursuant 10 the advertisement dated

16.01.2004, in accordance with statutory rules giving

preference to the candidates as per Rule-6(d) of the Rules, 1983,

after constituting a Selection Board, as per Rule-8(1) of the

Rules, 1983. As such, the entire action shall be taken within a

period of four months from the date of receipt of this judgment.

While carrying out the aforementioned directions, the opposite

party-authorities shall ensure that the candidates, who had been

selected and whose names would appear in the revised select

list, the impugned orders of termination shall not be

Implemented against them till then and shall be given effect to

only in respect of candidates whose names do not find place in

the list, and all the selected candidates will continue till then

and their appointment spearing treated to be on ad hoc basis.

However, the candidates whose names were appearing in the

original selection list will get service continuity as well as other

financial benefits and the newly recruited candidates as per the

revised selection list will only get notional benefit from the date

of initial appointment like other selected candidates.”

4. Per contra, learned counsels appearing for MCL in both the cases

made their submissions basing on the stand taken in the counter

affidavit so filed. It is contended that advertisement dated 15.12.2022

under Annexure-1 was issued in consonance in the provisions contained

under Regulation 14(5) of the 2017 Regulation read with Gazette

Notification dated 14.09.2018 so issued by the Director General of

Mines Safety. Such a stipulation for having unrestricted competency

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certificate was made in the impugned advertisement in terms of the

provisions contained under Regulation 12(1) and 12(4) of the 2017

regulation. Regulation 12(1), 12 (4) and 14(5) of the Regulation reads

as follows:-

“12. Examinations and examiners.- (1) Certificate shall be

granted to candidates after such examinations and in such form

as the Board may specify: Provided that the Board may, subject

to the conditions specified in bye-laws, exempt any person from

appearing at the examination or part thereof for the grant of a

certificate referred to in regulation 11.

(4) The Board may make bye-laws as to the procedure for, and

the conduct of the examinations and as to the granting of

certificate of competency and of fitness as required under these

regulations, and shall so far as may be practicable, provide that

the standard of knowledge required for the grant of certificates

of any particular class and the standard of medical fitness shall

be uniform throughout the territories to which these regulations

extend:

Provided that the Board may take decision on any

matter, not specified under the bye-laws, which may be brought

to it for disposal.

14. Age limit and general qualifications of candidates (5) (a)

No person shall be admitted as a candidate at any examination

for a Manager’s or an Overman’s Certificate, which is not

restricted to mines having opencast working only, unless he has

obtained at least a Sirdar’s Certificate, which is not restricted to

mines having opencast working only and a Gas Testing

Certificate; and

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(b) no person shall be admitted as a candidate at an

examination for Manager’s Certificate or Overman’s Certificate

restricted to mines having opencast working only, unless he has

obtained at least a Sirdar’s Certificate:

Provided that the Board may, subject to the

conditions specified in bye-laws, exempt any person from the

stipulations of the above sub-regulation.”

4.1. It is contended that since MCL is operating both underground and

open cast mining, while issuing the advertisement under Annexure-1.

Candidates were requested to produce the competency certificate

(Unrestricted). A candidate having an unrestricted competent certificate

is permitted to work in both underground and open cast mines. It is

accordingly contended that the stipulation made in the advertisement

directing the candidates to have certificate of competency (Unrestricted)

since has been made in terms of the provisions contained under

Regulation 12 (1) and 12(4) of the Regulation, no illegality or

irregularity can be found with the same.

4.2. It is further contended that the Petitioners in both the Writ Petitions

as found from Annexure-2-series are having Overman certificate of

competency and such certificate restrict their working in underground

mines. Taking into account the nature of certificates issued in favour of

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the Petitioners under Annexure-2 series, they are only permitted to

work in open cast mines. But the vide advertisement issued under

Annexure-1 a candidate is to work in both underground and open cast

mines.

4.3. It is accordingly contended that since Petitioners in terms of the

advertisement don’t have the essential eligibility that is certificate of

competency (unrestricted), the Writ Petition at the threshold is not

maintainable.

4.4. It is however contended that because of the nature of interim order

passed by this Court on 13.07.2023 in both the Writ Petitions, 44 (forty

four) of Mining Sirdar (T & S) Group-C and 6 (six) posts of Junior

Overman (T & S) have not been filled up while completing the

selection process pursuant to Annexure-1. It is also contended that

Regulation 247 on which much reliance has been placed, is no way

applicable to the claim of the Petitioners, as the said regulation is made

applicable subject to the provisions contained under various other

regulations.

4.5. It is contended that since MCL is operating both underground and

open cast mines and the requirement for having an unrestricted

certificate of competency has been made in terms of the provisions

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contained under Regulation 12(1) and 12(4) of the Regulation, no

illegality and irregularity can be found with the same. It is also

contended that MCL being the employer, it is the employer, who is

competent to decide the requirements the candidate must possess

according to the needs of the employer and the nature of work.

4.6. It is also contended that prescription of qualification for a post is a

matter of recruitment policy and it is the employer who is entitled to

prescribe the qualification and no judicial review can be made to

expand the ambit of the qualification so prescribed. It is also contended

that it is the employer who is eligible and entitled to determine and

decide the relevancy and suitability of qualifications for any post and it

is not for the Courts to consider and assess the same.

4.7. In support of the aforesaid submissions both the learned counsels

appearing for MCL, reliance was placed on the following decisions:-

(i) Maharashtra Public Service Commission Vs. Sandeep Sharma

Warade & Ors., (2019) 6 SCC 362

(ii) Zahoor Ahmad Rather & Ors. V. Sheikh Imtiyaz Ahmad & Ors.,

(2019) 2 SCC 404

(iii) Chief Manager, Punjab National Bank & Anr. Vs. Anit Kumar

Das, (2021) 12 SCC 80

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4.8. Hon’ble Apex Court in Para 9 of the decision in the case of

Maharashtra Public Service Commission has held as follows:-

Xxx xxx xxx

“9. It is the employer who is best suited to decide the

requirements a candidate must possess according to the needs of

the employer and the nature of work. The court cannot lay down

the conditions of eligibility, much less can it delve into the issue

with regard to desirable qualifications being on a par with the

essential eligibility by an interpretive re-writing of the

advertisement.”

Xxx xxx xxx

4.9. Hon’ble Apex Court in Para 26 of the decision in the case of

Zahoor Ahmad Rather has held as follows:-

Xxx xxx xxx

“26. The prescription of qualifications for a post is a matter of

recruitment policy. The State as the employer is entitled to

prescribe the qualifications as a condition of eligibility. It is no

part of the role or function of judicial review to expand upon the

ambit of the prescribed qualifications. ”

Xxx xxx xxx

4.10. Hon’ble Apex Court in Para 7.3 of the decision in the case of

Chief Manager, Punjab National Bank has held as follows:-

“7.3 it is for the employer to determine and decide the relevancy

and suitability of the qualifications for any post and it is not for

the Courts to consider and assess. A greater latitude is

permitted by the Courts for the employer to prescribed

qualifications for any post. There is a relation behind it.

Qualifications are prescribed keeping in view the need and

interest of an Institution or an Industry or an establishment as

the case may be. The Courts are not fit instruments to assess

expediency or advisability or utility of such prescription of

qualifications.”

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4.11. Placing reliance on the aforesaid decisions and the stand taken in

the counter affidavits, learned counsels appearing for the MCL

contended that even though both the writ petitions were filed

challenging the stipulation contained in the advertisement more

particularly vide para-2, with regard to the certificate of competency

(Unrestricted), but while filing the Writ Petitions no such interim prayer

was made before this Court to permit the Petitioners to take the

recruitment pursuant to Annexure-1.

4.12. It is also contended that Petitioners have never made any

applications pursuant to Annexure-1 and taking into account the nature

of interim order passed initially by this Court on 17.02.2023 and the

modified order passed on 13.07.2023, the selection process has already

been completed with appointment of the selected candidates save and

except the non-filling of 44 posts of Mining Sirdar and 6 posts of Junior

Overman.

4.13. It is contended that since no such interim prayer was ever made

before this Court to allow the Petitioners to make the application and to

participate in the selection process, and since the selection process has

already been completed in the meantime, Petitioners cannot be allowed

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to take part in the recruitment process and their prayer to have a special

examination for them is not permissible.

4.14. Making all these submissions learned counsels appearing for the

MCL contended that both the Writ Petitions are liable for dismissal

with vacation of the interim order.

5. To the submission made by the learned counsels appearing for the

MCL, learned counsel appearing for the Petitioners made further

submission contending inter alia that Petitioners pursuant to Annexure-

1 could not made their applications, as they were not having the

required certificate in terms of para-2 of the advertisement. But taking

into account the nature of interim order passed by this Court initially on

17.02.2023 and subsequently on 13.07.2023, Petitioners be allowed to

take the special examination to be conducted by MCL. It is further

contended that since the stipulation for having an unrestricted

competency certificate is not permissible, the process of selection is

vitiated.

6. Having heard learned counsel for the Parties considering the

submission made, this Court finds that the advertisement in question

was issued by MCL on 15.12.2022 under Annexure-1, inviting

applications to fill up posts of junior Overman, (T & S) Group-C,

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Mining Sirdar, (T & S) Group-C and Surveyor (T & S) Group-B. As

against all the aforesaid 3 posts as provided under para-2, a candidate

with having the minimum qualification is required to possess the

certificate of competency (Unrestricted).

6.1. It is not disputed that the Petitioners are having the certificate of

competency which is restricted to mines having open cast working only

under Annexure-2-series. Taking into account the certificate of

competency so produced by the Petitioners, it is not disputed that

Petitioners are not having the required unrestricted certificate of

competency. It is therefore the prima facie view of this Court that

Petitioners do not have the required eligibility in terms of Clause-2 of

the advertisement.

6.2. Considering the submission and the provisions contained under

Regulation 247 of the Regulation, this Court is also of the view that the

stipulation for having an unrestricted certificate of competency having

been prescribed in the advertisement in terms of the provisions

contained under Regulation 12(1) and 12 (4) of the Regulation, this

Court is not inclined to accept the contention of the learned counsel

appearing for the Petitioner that in view of provisions contained under

Regulation 247 of the Regulation, Petitioners are not required to have

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the unrestricted certificate of competency. Regulation 247 of the

Regulation also depends on the provisions contained under various

other Regulations.

6.3. Petitioners since admittedly do not have the required unrestricted

certificate of competency, placing reliance on the decisions so cited by

the learned counsels appearing for the MCL, it is the view of this Court

that while exercising the power of judicial review, such a stipulation

cannot be declared as illegal or arbitrary.

6.4. It is also the view of this Court that since Petitioners have not made

their applications pursuant to Annexure-1 and never participated in the

selection process and no such interim prayer was also ever made to

allow them to participate and since the selection process has already

been completed pursuant to order dated 13.07.2023 with only 54

numbers of posts not filled up, this Court is of the view the no relief can

be extended to the Petitioners at present.

6.5. It is also the view of this Court that the decisions relied by the

learned counsel appearing for the Petitioners is not applicable to the

facts of the present case. In view of the aforesaid analysis, this Court is

not inclined to interfere with the selection process initiated by MCL

Pursuant to advertisement dated 15.12.2022 under Annexure-1. While

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not inclined to interfere with the advertisement and the selection

process so initiated under Annexure-1, this Court dismiss both the writ

petitions. Interim order passed on 13.07.2023 stands vacated.

7. Both the Writ Petitions stand dismissed accordingly.

(BIRAJA PRASANNA SATAPATHY)

Judge

Orissa High Court, Cuttack

Dated the 20

th

January, 2026/Jyoti