Orissa High Court
Tarini Prasad Singh & Another vs State Of Odisha And Another .... ... on 7 March, 2024
Author: A.K.Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.596 of 2024
Tarini Prasad Singh & Another .... Petitioners
Mr. Budhadev Routray, Sr. Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr. Manoj Kumar Khuntia, A.G.A.
Mr. P.K. Mohanty, Sr. Advocate
& Mr. Arnav Behera, Advocate for OPSC
Mr. Rajeet Roy, Advocate for Intervener
Mr. Dayananda Mohapatra, Advocate for Intervener
Mr. Saibrata Rath, Advocate for Intervener
Mr. S.K Ojha, Advocate for the Intervener
Along with
W.P.(C) Nos.1156, 1524, 1231, 1661, 3767, 3805, 3806, 3808,
3812, 3813, 3927, 5224, 5071, 4334 &4365 of 2024
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
07.03.2024 I.A. No.457 of 2024 in W.P.(C) No.596 of 2024, I.A. No.827 of 2024 in W.P.(C) No.1156 of 2024, I.A. No.1041 of 2024 in W.P.(C) No.1231 of 2024, I.A. No.1048 of 2024 in W.P.(C) No.1661 of 2024, I.A. No.2692 of 2024 in W.P.(C) No.3767 of 2024, I.A. No.2691 of 2024 in W.P.(C) No.3805 of 2024, I.A. No.2694 of 2024 in W.P.(C) No.3806 of 2024, I.A. No.2682 of 2024 in W.P.(C) No.3808 of 2024, I.A. No.2693 of 2024 in W.P.(C) No.3812 of 2024, I.A. No.2681 of 2024 in W.P.(C) No.3813 of 2024, I.A. No.2772 of 2024 in W.P.(C) No.3927 of 2024, I.A. No.3382 of 2024 in W.P.(C) No.5224 of 2024, I.A. No.3095 of 2024 in W.P.(C) No.5071 of 2024, I.A. No.2920 of 2024 in W.P.(C) No.4334 of 2024 & I.A. No.2929 of 2024 in W.P.(C) No.4365 of 2024 Order No.
05. 1. These matters are taken up through Hybrid Arrangement (Virtual/Physical Mode).
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2. The present batch of writ petitions have been filed with an identical prayer involving an identical factual scenario. The prayers involved in the above noted batch of writ petitions reveal that the Petitioners have approached this Court challenging Clause-5 of the impugned advertisement bearing Advertisement No.19 of 2023/24 dated 28.12.2023 under Annexure-8 to W.P.(C) No. 596 of 2024 with a further prayer for a direction to the Opposite Parties to accept the applications of the Petitioners for the post of Assistant Executive Engineer (Civil) and Executive Engineer (Mechanical) under the Water Resources Department, Works Department and H&UD Department of Government of Odisha for recruitment to a total 580 posts of Assistant Executive Engineers pursuant to the advertisement dated 28.12.2023 and, it has been further prayed that such candidature of the Petitioner be considered in terms of Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 without insisting for the GATE scores, in terms of the judgment dated 01.05.2023 passed in W.P.(C) No.15738 of 2022 and a batch of similar other by a Division Bench of this Court.
3. For better appreciation of the factual backdrop of the present writ applications, W.P.(C) No.596 of 2024 is being taken up as the lead case and the facts involved in the said writ petition shall be discussed hereunder.
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4. The factual background leading to the filing of the present writ petition, in short, is that the Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 came into force w.e.f. 28.01.2021. Thereafter, by virtue of the amendment of the year 2021, the earlier provisions relating to the conducting of the recruitment test, like awarding career marks, written test and viva voce test, have been substituted by the criteria of highest GATE Score obtained by the candidates in the last three years preceding the date of advertisement. Pursuant to the aforesaid amendment of the year 2021, the Odisha Public Service Commission (in short 'OPSC') published an advertisement dated 18.03.2023 bearing Advertisement No.20 of 2022/2023 under Annexure-5 to the writ petition. Under the aforesaid advertisement, the OPSC has invited application from the eligible candidates for appointment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical). However, Clause-5 of the advertisement, which prescribes the method of selection, provides that such selection shall be made on the basis of the highest of the valid GATE score obtained by the candidates in the three years preceding the date of advertisement (including the year of advertisement). Some of the candidates being aggrieved by the method of selection introduced for the first time, i.e., based on the highest valid GATE score in the preceding three years, Page 3 of 16 // 4 // approached this Court by filing W.P.(C) No.15738 of 2022 and batch of similar other writ applications. In the aforesaid batch of writ petitions, the Petitioners have challenged the vires of the amending rules of the year 2021 as well as the consequential advertisement dated 18.03.2023. A Division Bench of this Court in Pradyumna Kumar Patra and Others v. State of Odisha and Others along with a batch of other similar writ applications, disposed of such writ petitions vide a common judgment dated 01.05.2023. In its common judgment dated 01.05.2023, the Hon'ble Division Bench of this Court, after a threadbare analysis of the issue in the said applications and after referring to the objections/reservation of the OPSC, in para-26 of the judgment, has come to a specific conclusion that the advise/opinion of the OPSC has not been placed correctly before the cabinet. In fact, a wrong statement has been made before the cabinet to the effect that the OPSC has given its concurrence to the proposed amendments, i.e. Rule-4 of the Amendment Rules purporting to amend the Rules-3 and 4 of the existing OES Rules, 2012. The Hon'ble Division Bench has therefore opined that the advertisement in question is liable to the struck down. Consequently, the impugned advertisement, having prescribed the highest valid GATE score as a criteria for selection, was quashed.
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5. In the common judgment dated 01.05.2023, the Hon'ble Division Bench in para-27 of the judgment has made an important observation which is an additional ground for quashing the impugned advertisement. The said observation in para-27 of the judgment is quoted herein below for better appreciation of the ground that weighed in the mind of the Division Bench while striking down the amended rules as well as the consequential advertisement:-
"27. An additional ground for quashing the impugned advertisement is that candidates have not been provided enough time/ opportunity to appear in the GATE Examinations thrice before publication of the Advertisement dated 18.03.2023. The highest valid GATE Score for the preceding three years (from the date of advertisement) has been provided I the method of selection in the Advertisement, thereby depriving candidates who had not appeared for the GATE Examination in the year 2021 (the process for which admittedly began in 2020) before the publication of the Amendment Rules, 2021, which were published on 28.01.2021 while the Advertisement has been on 18.03.2023, of a level playing field placing them at a disadvantageous position as compared to candidates who were able to appear in the GATE examinations thrice, before publication of the impugned advertisement and thereby discriminating against them.
Finally, in para-28, Rule-4(i) and Rule(i) of the Orissa Engineering Service (Recruitment of Conditions of Service) Amendment Rules, 2021, amending Rule 7(2) and Page 5 of 16 // 6 // 7(3) of the OES Rules, 2012 were struck down and consequentially the Advertisement No.20 of 2022-23 dated 18.03.2023 published by the OPSC was also quashed.
6. After the common judgment dated 01.05.2023 was delivered by the Hon'ble Division Bench of this Court, the same was never challenged by the State-Opposite Parties. However, the Government of Odisha in the Water Resources Department, vide Notification dated 26.09.2023, in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, with the concurrence of the Governor of Odisha, notified another Amendment Rule, namely, Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2023 under Annexure-7 to the writ petition. The said amended rules of the year 2023 was stipulated to come into force on the date of their publication in Gazette of Odisha. By virtue of the amendment of the year 2023, vide Notification dated 29.09.2023 which was notified in the Gazette of Odisha on 30.09.2023, Rule-7(3) and Rule 7(4) were again amended with the concurrence of the OPSC thereby again introducing the criteria of valid GATE Score as the basis for selection of candidates to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical). On comparison of both the amendment rules of the year 2021 as well as of the year 2023, it is observed Page 6 of 16 // 7 // that the amended rule of the year 2023 is repetition of the amendment rule of the year 2021 with only a slight modification. The amendment rule of the year 2023 also provides that the Commission shall take steps to select candidates on the basis of the valid GATE score and interview. The said advertisement of the year 2023, under Clause-3(a) and (b), provides that the merit list shall be prepared on the basis of the aggregate marks secured, with the valid GATE score carrying 90% weightage and the interview carrying 10% weightage.
7. Immediately after the Gazette Notification dated 26.09.2023 under Annexure-7, the OPSC published a fresh advertisement bearing Advertisement No.19 of 2023-24 for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) in Group-A of Odisha Engineering Service, particularly under the Water Resources Department thereby inviting applications for filling up of a total vacancy of 580 posts. Pursuant to the aforesaid advertisement dated 28.12.2023 under Annexure-8, online applications were invited from the original candidates starting from 12.01.2024. Being aggrieved by the advertisement dated 28.12.2023 under Annexure-8 and due to non-acceptance of Petitioners' candidature by the OPSC, the Petitioners have approached this Court by filing the present writ petition.
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8. Mr. B. Routray, learned Senior Counsel, leading from the side of the Petitioners along with many other counsels representing the Petitioners in the present batch of writ applications, at the outset submitted that after the common judgment dated 01.05.2023 delivered by the Hon'ble Division Bench of this Court in W.P.(C) No.15738 of 2022 and a batch of similar other cases, the Opposite Parties have hastily amended the rules again and the very same rule has been re-notified with minor modifications only. The main plank of argument on behalf of the Petitioners is that the Petitioners have been deprived of a fair and equal opportunity for applying to the advertised posts and they have also been deprived of a level playing field to compete with other candidates. In the aforesaid context, it was further contended that although the highest valid GATE score was made a basis for selection in the year 2021, no recruitment test was conducted pursuant to such amended rule of the year 2021. The first advertisement after the 2021 amendment was on 18.03.2023, which has been struck down by a Division Bench of this Court on various grounds.
9. Further, referring to para-27 of the judgment dated 01.05.2023, it was submitted by the learned counsels appearing for the Petitioners in the present batch of writ applications that the Petitioners have been deprived of a fair Page 8 of 16 // 9 // opportunity to apply to the advertised posts and a level playing field. It was further contended that in para-27 of the judgment dated 01.05.2023, the Division Bench while striking down the amendment rules of the year 2021 and the consequential advertisement, has relied upon an additional ground i.e., the Petitioners were deprived of a level playing field by placing him at a disadvantaged position as compared to other candidates who were able to appear in the GATE Examination thrice. It was further contended that the GATE Examination has already taken place in February, 2024 and the results are likely to be published very shortly. It was further contended that most of the Petitioners have appeared in such GATE test which was conducted in February, 2024, i.e. on 19.02.2024. In the aforesaid background, learned counsel for the Petitioner submitted that unless the Petitioners are permitted to participate in the recruitment test by submitting their application form, they would not be considered for appointment to the posts advertised under Annexure-8 to the writ application. As such, they will be deprived of an opportunity to compete and participate in the recruitment test for appointment to such posts.
10. In course of his argument, learned Senior Counsel appearing for the Petitioners emphatically argued that the State-Government has hastily published the advertisement Page 9 of 16 // 10 // pursuant to the amended Rules, 2023. They further contended that some of the Petitioners have also challenged the vires of the amended Rules, 2023, which is pending before a Division Bench. However, unless the Petitioners are permitted to participate in the recruitment test by filling up their application forms, the Petitioners would be seriously prejudiced and grossly discriminated against thereby seriously infringing the principle of level playing field as observed in para-27 of the judgement of the Hon'ble Division Bench. It was also argued that the conduct of the Opposite Parties in the present case is contrary to the spirit of the judgment delivered by the Hon'ble Division Bench vide its common judgment dated 01.05.2023. Accordingly, it was prayed that the Petitioners be permitted to fill up the online application forms and the forms be accepted, with the acceptance of such application forms being made subject to the final outcome of the present writ petition. In such eventuality, it was submitted that the Petitioners would not be prejudiced in the event they succeed in the writ application. It was also argued on the balance of probabilities the comparative mischief would be more if the Petitioners are not allowed to fill up their online application form than if they are permitted to fill up the application form and wait for the final outcome of the present writ petition.
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11. In course of his argument, learned Senior Counsel appearing on behalf of the Petitioners referred to the judgment in Ram Manohar Pandey v. State of Bihar (Civil Writ Jurisdiction Case No.8760 of 2019 decided on 05.08.2019 by the Hon'ble Patna High Court). By referring to the aforesaid judgment, learned Senior Counsel appearing on behalf of the Petitioners submitted that a similar issue arose, as a result of amendment to the Bihar Polytechnic Education Service Rules, 2014. By way of an amendment to the aforesaid Rules, 2014 the existing provisions governing the evaluation criteria were substituted with evaluation on the basis of the percentile obtained by the candidates in the GATE Examination. The Hon'ble Patna High Court in the aforesaid judgment has held that even if the State, under Article 309, has a right to frame rules in the matters of public employment, every such rule has to withstand the test of arbitrariness and rationality besides being transparent on the procedure. Finally, it was held that the substitution of the existing evaluation method by the evaluation on the basis of GATE Examination score not only hits the transparency of the procedure but also discriminates amongst such of the candidates who are already post-graduates and are not required to pass such GATE Examination. On a perusal of the common judgment dated 01.05.2023 of the Hon'ble Division Bench of this Court, it appears that the Hon'ble Division Bench have also Page 11 of 16 // 12 // heavily relied on the aforesaid judgment while striking down the amending rules.
12. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that OES Rules, 2012 was amended in the year 2021. Thereafter, the first advertisement was published in March, 2023. The Hon'ble Division Bench of this Court was pleased to strike down the Amendment Act, 2021 on the ground that same does not have concurrence of the OPSC. However, after disposal of the earlier writ application, the State-Opposite Parties took a conscious decision not to challenge the judgment passed by Hon'ble Division Bench. On the contrary, they have notified the Amended Rule, 2023 in consultation with the OPSC and the same was notified in the Odisha Gazette on 30.09.2023. After the abovementioned notification was published, the present advertisement dated 28.12.2023 under Annexure-8 has been published strictly in consonance with the amending Rule of the year 2023. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Parties have not committed any illegality and, the providing of highest valid GATE score as the basis for selection of Assistant Executive Engineer in the advertisement dated 28.12.2023 under Annexure-8 is not in violation of the rules. It was therefore submitted that this Court should not Page 12 of 16 // 13 // interfere in the present writ petition. Accordingly, it was contended that no interim order should be passed in the present writ petition. It was also contended that in the event any interim order is passed, then the same would cause prejudice to the candidates, who possess a valid GATE score and as such, are eligible to participate in the recruitment process.
13. Learned Senior Counsel appearing on behalf of the OPSC while supporting the contentions raised by the learned Additional Standing Counsel submitted that the amending Rules, 2023 has the concurrence of the OPSC. However, he did not dispute the fact that so far the amendment of the year 2021 is concerned, the OPSC had certain reservations/objections to such amendment.
14. When a specific question was put by this Court as to what persuaded the OPSC to change its views, learned Senior Counsel appearing for the OPSC submitted that after due deliberation and consideration of certain facts, the OPSC has given its concurrence and such facts would be placed by way of an affidavit before this Court subsequently along with the relevant records, if so desired by this Court, in course of final hearing of the writ petitions.
15. In course of hearing of the interlocutory applications for passing an appropriate interim order, it was brought to the notice of this Court that the OPSC has published a 2nd Page 13 of 16 // 14 // corrigendum to the earlier Advertisement No.19 of 2023/24 on 12.01.2024. A copy of such corrigendum has been placed on record vide Memo dated 23.01.2024. On perusal of said corrigendum, this Court observed that due to some technical issues, the period of submission of online application for recruitment to the posts of Assistant Executive Engineer (Civil &Mechanical) has been rescheduled and the live application form shall be available from 19.01.2024 to 19.02.2024 and that 19.02.2024 is the last date for submission of application form.
16. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record, this Court is of the view that in the process of adjudication of the issue involved in the present writ petition, this Court is required to examine as to whether a level playing field was provided to all the candidates as has been observed in para-27 of the common judgment dated 01.05.2023. It is observed that, the GATE Examination which shall take place in the month of February of every year was over for the year 2023 by the time the common judgment dated 01.05.2023 was delivered. Further, before the next GATE Examination, i.e. February, 2024 takes place, the advertisement was published whereby the score obtained in the GATE examination was provided as a criteria for being considered Page 14 of 16 // 15 // for appointment to the post of Assistant Executive Engineer (Civil & Mechanical), as a result, the candidates who had never appeared in the GATE examination were not given a single opportunity to apply for the advertised posts.
17. On a careful analysis of the factual matrix of the present case, this Court is of the prima facie view that the recruitment to the post of Assistant Executive Engineer (Civil & Mechanical), being done for the first time on the basis of the highest valid GATE score, all the desirous candidates should have been given an equal and fair opportunity to apply for such posts. And more importantly, they should have been provided with a level playing field as has been observed by the Hon'ble Division Bench in its common judgment dated 01.05.2022. Furthermore, this Court is also of the prima facie view that before re-notifying the rule, the Opposite Parties should have ensured that at least one opportunity should have been given to the candidates to participate in one GATE Examination as the previous rule was struck down and a new rule was introduced by way of amendment in the year 2023. Therefore, in view of the aforesaid analysis, this Court is of the considered view that the matter requires further hearing. Accordingly, the Opposite Parties are granted four weeks' time to file their counter affidavit.
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18. To protect the Petitioners, who have approached this Court by filing the present writ petitions, this Court deems it proper to direct the Opposite Parties to proceed with the selection process pursuant to the Advertisement No.19 of 2023/24 dated 28.12.2023 under Annexure-8. However, the final result of such recruitment test shall not be published without leave of this Court.
19. The I.As. are disposed of accordingly.
W.P.(C) Nos.596, 1524, 1156, 1231, 1661,3767, 3805, 3806, 3808, 3812, 3813, 3927, 5224, 5071, 4334 & 4365 of 2024
20. List these matters on 10th April, 2024 for final hearing.
(A.K. Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 07-Mar-2024 19:21:55 Page 16 of 16