IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.17952 of 2024 Abhimanyu Kumbhar …. Petitioner Mr. M. Mohanty, Sr. Adv. along with Ms. S. Mohanty, Adv. -versus- State of Odisha & Others …. Opposite Parties Mr.P.K. Sahoo, ASC. COROM: THE HON’BLE MRJUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 07.05.2026 5. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been filed inter alia challenging the order of discharge passed by Opp. party No.3 vide order dt.04.07.2024 under Annexure-6. Vide the said order, Petitioner was discharged from his services on the ground that he has not the eligibility criteria, in terms of the provisions contained in the Advertisement dt.30.12.2022 so issued by the State Selection Board, Odisha Police , Cuttack on 30.12.2022 under Annexure-2. 4. Learned Sr. Counsel appearing for the Petitioner contended that pursuant to the Advertisement issued under Annexure-2, Petitioner being a Group-D employee, made his application for the post of Constable (Civil) in Odisha Police. As provided under Para- 4(C ) read with Para-6(1) of the Advertisement, Petitioner obtained the required Service Certificate showing that he has completed 5(five) years of continuous service with good service record from the concerned authority vide Annexure-4. Para-4(C) and 6(i) of the Advertisement reads as follows: 4. (c) The Home Guard candidates, who intend to apply for the post of Constables (Civil) in District/Establishment, should not be more than 28 years of age as on 01.01.2022. Similarly, the candidates belonging to Group-D in the Police Department should not be more than 43 years of age as on 01.01.2022. However, a candidate can avail only one type of age relaxation as per rules. Xxx xxx xxx 6. (i) IN case of Group “D” employee the Heads of Office shall certify that the Group “D” employees have completed 5 years of service with good service Record without any major punishment as per the format enclosed as Annexure-B, which must be uploaded by the candidate. 4.1. It is contended that in the Service Certificate issued by the Commandant OSAP, 3rd Btn, Gajapati, it was clearly indicated that Petitioner entered into service as a Group-D employee on 28.12.2017 and as on the date of issuance of the certificate, he had already completed 5(five) years of service without being imposed with any major punishment. Basing on such certificate issued under Annexure-4, Petitioner was not only allowed to participate in the selection process, but also was appointed as a Constable; where he joined on 17.04.2023, vide order dt.30.12.2022, so reflected at page 22 of Annexure-1 Service Book. It is also contended that on being so appointed vide order dt.30.12.2022, Petitioner was relieved vide order dt.14.04.2023 under Annexure-5 from the establishment of OSAP 3rd (SS) Bn, Gajapati, for his joining as a Constable. 4.2. It is contended that Petitioner even though was appointed and joined as a Constable on 17.04.2023, but vide the impugned order dt.04.04.2024 under Annexure-6, Petitioner was discharged from his services only on the ground that Petitioner does not have the required eligibility criteria, in terms of the provisions contained under Para-4(c) read with Para-6(i) of the Advertisement. 4.3. It is contended that such a view was taken by Opp. party No.3, while discharging the Petitioner from his services, on the ground that after being provided with the appointment basing on Annexure-4, since on verification it was found that, Petitioner during the aforesaid period of 5 years had overstayed the leave by 76 days, and the overstayal period has been treated as “No Pay”, it cannot be taken as continuous service. Accordingly, while deducting the aforesaid 76 days from being treated as qualifying service, since it was found that Petitioner does not have the required 5 years qualifying service as on the date of making the application basing on Annexure-4, he was discharged from his services vide order dt.04.07.2024 under Annexure-6. 4.4. Placing reliance on the decision of this Court passed on 04.05.2023 in W.P.(C ) 12202 of 2023, learned Sr. Counsel contended that the overstayal period of 76 days treated as “No Pay” cannot be treated as “discontinuance of service” and the said, period has to be taken as “continuous service” for the purpose of calculation of continuous service from the date of his initial appointment as a Group-D employee. This Court in Para-8 of the order has held as follows: “ Further, sixty days “NO PAY”, which has been awarded against the Petitioner is not a major punishment because of overstayal and no over stay period there is treated discontinue of service and the Petitioner otherwise recorded to against the regular post. 4.5. It is accordingly contended that in view of the nature of order passed by this Court in W.P.(C ) No.12002 of 2023, the ground on which Petitioner has been discharged from his services vide order dt.04.07.2024 under Annexure-6, is not sustainable in the eye of law and requires interference of this Court. 5. Mr. P.K. Sahoo, learned Addl. Standing Counsel on the other hand while supporting the impugned order contended that basing on the Service Certificate issued under Annexure-4 wherein it has been indicated that Petitioner was having the required qualifying service of 5 years as a Group-D employee, in terms of the provisions contained under Para-4(c) read with Para-6(i) of the advertisement, Petitioner was allowed to participate in the selection process, pursuant to the advertisement issued under Annexure-2. 5.1. After being found suitable, Petitioner was also provided with appointment vide order dt.30.12.2022 and after being relieved vide order dt.14.04.2023, Petitioner joined as a Constable on 17.04.2023. However, after being provided with such appointment and during verification when it is found that Petitioner does not have the qualifying service of 5 years as over- stayal period of 76 days has been treated as “No Pay”, Opp. party No.3 came to a conclusion, that Petitioner does not have the required qualifying service as on the date of making application and accordingly passed the order of discharge relying on the provisions contained under PMR-668-A. 5.2. It is accordingly contended that since out of the qualifying service of 5 years so reflected in Annexure-4, Petitioner had overstayed the leave to the tune of 76 days, which has been treated as “No Pay”, the said period cannot be treated as “qualifying service” and accordingly on that ground only, Petitioner was found not eligible to get the benefit of appointment and discharge from his services vide order dt.04.07.2024 under Annexure-6. It is accordingly contended that no irregularity or irregularity can be found with the impugned order of discharge. 6. Having heard learned counsel for the parties sand considering the submission made, it is found that pursuant to the advertisement issued on 30.12.2022 under Annexure-2, Petitioner being a Group D employee, participated in the selection process for the post of Constable in Odisha Police. This Court finds that a Group-D candidate, as provided under Para-4(c ) read with para-6(i) of the advertisement should have 5 years of qualifying service with good service record without being imposed with any major punishment. Petitioner was issued with such a certificate by the Commandant, 3rd OSAP Btn. (SS ), Gajapati under Annexure-4. 6.1. Basing on such certificate issued under Anenxure-4, Petitioner was allowed to participate in the selection process and was appointed vide order dt.30.12.2022, where he joined on 17.04.2023. However, after being provided with such appointment and on verification, Opp. party No.3 when found that out of qualifying service of 5 years, a period of 76 days has treated as “No Pay” and cannot be counted as qualifying service, Petitioner was discharged vide order dt.21.07.2024 under Annexure-6. 6.2. Placing reliance on the decision passed by this Court in W.P.(C ) No.12002 of 2023, so cited supra, this Court is of the view that over-stayal period of 76 days even though has been treated as “No Pay”, but it cannot be held as not qualifying service. 6.3. Therefore, in view of the decision so cited supra, it is also the view of this Court that the period of 76 days cannot be treated as “discontinuance in service” and Anenxure-4 has been issued by the concerned authority rightly by holding the qualifying service of the Petitioner as more than 5 years. 6.4. In view of the aforesaid analysis, this Court is of the view that the ground on which Petitioner has been discharged from his services vide order dt.04.07.2024 under Anenxure-6 is not sustainable in the eye of law. While holding so, this Court quash the same and directs Opp. party No.3 to re-instate the Petitioner in his services within a period of 2(two) weeks from the date of receipt of this order. 7. The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge sangita