Orissa High Court
Chittaranjan Gharei And Others vs State Of Odisha And Others .... Opposite ... on 15 January, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10185 of 2024, W.P.(C) No.42059 of 2023,
W.P.(C) No.596 of 2024, W.P. (C) No.8166 of 2024 & W.A. No.948 of
2024.
In W.P.(C) No.10185 of 2024
Chittaranjan Gharei and others .... Petitioners
Mr. Ashok Mohanty, Senior Advocate
Ms. Lopamudra Pradhan, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
Mr. Pranab Kumar Pasayat, Advocate (For Intervenor)
In W.P.(C) No. 42059 of 2023
Meerashree Suman and another .... Petitioners
Mr. Subir Palit, Senior Advocate
Mr. S.K. Dash, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. Bikash Jena, Advocate (For O.P. No.4-AICTE)
Page 1 of 85
Mr. Kali Prasanna Mishra, Senior Advocate (For Intervenor)
Mr. Swapna Kumar Ojha, Advocate (For Intervenor)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
Mr. Rajeet Roy, Advocate (For Intervenor)
Mr. Dayananda Mohapatra, Advocate (For Intervenor)
In W.P.(C) No.596 of 2024
Tarini Prasad Singh and another ... Petitioners
Mr. Budhadev Routray, Senior Advocate
Mr. S.D. Routray, Advocate
-versus-
State of Odisha and another ... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. P.K. Rath, Senior Advocate (For Intervenor)
Mr. Swapna Kumar Ojha, Advocate (For Intervenor)
Mr. Rajeet Roy, Advocate (For Intervenor)
Mr. Dayananda Mohapatra, Advocate (For Intervenor)
In W.P.(C) No.8166 of 2024
Satyabrata Sahoo and others ... Petitioners
Mr. Budhadev Routray, Senior Advocate
Mr. S.D. Routray, Advocate
-versus-
State of Odisha and others ... Opposite Parties
W.P.(C) No. 10185 of 2024 and batch Page 2 of 85
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (for O.P.S.C.)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
In W.A. No. 948 of 2024
Ankan Kumar Rout and others .... Appellants
Mr. Sridhar Rath, Advocate
-versus-
State of Odisha and others .... Respondents
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (for O.P.S.C.)
CORAM:
THE HON'BLE CHIEF JUSTICE
THE HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
15.01.2025 Savitri Ratho, J. The petitioners in W.P.(C) No. 10185 of 2024, W.P.(C) No. 42059 of 2023, W.P.(C) No. 596 of 2024, W.P.(C) No. 8166 of 2024 and W.A. No.948 of 2024 have a common grievance. They have challenged the vires of Rule 4 of the Odisha Engineering Service (Methods of Recruitment and conditions of Service ) W.P.(C) No. 10185 of 2024 and batch Page 3 of 85 Amendment Rule, 2023 ( in short "2023 Amendment Rules") amending Rule 7( 3 ) and 7 ( 4 ) of the Odisha Engineering Service (Methods of Recruitment and conditions of Service ) Rule, 2012 ( in short "2012 OES Rules") and they have also prayed for quashing of the consequential advertisement No. 19 of 2023/24 dated 28.12.2023 inviting application for recruitment to the posts of Assistant Executive Engineers (Civil) and Assistant Executive Engineer (Mechanical) in Group A of the Odisha Engineering Service under the Water Resource Department, Works Department and H & UD Department .
2. WA No. 948 of 2024 has been filed by appellants Ankan Kumar Rout, Nruparaja Meher, Kousik Behera, Mihir Ranjan Nayak and Sidhhant Nayak, arraying Tarini Prasad Singh and Hemanta Kumar Mahanta as Respondents No. 4 and 5 and challenging the common interim order dated 17.03.2024 passed by a learned Single Judge of this Court in W.P. ( C ) No. 596 of 2024 , W.P.(C) No.1156 of 2024, W.P.(C)No.l231 of 2024, W.P.(C) No 1661 of 2024, W.P.(C) No 3767 of 2024 , W.P.(C) No 3805 of W.P.(C) No. 10185 of 2024 and batch Page 4 of 85 2024, W.P.(C) No 3806 of 2024 , W.P.(C) No 3808 of 2024, W.P.(C) No 3812 of 2024, W.P.(C) No 3813 of 2024, W.P.(C) No 3927 of 2024 , W.P.(C) No 5224 of 2024 , W.P.(C) No 5071 of 2024, W.P.(C) No 4334 of 2024 and W.P.(C) No 4365 of 2024 . The operative portion of the order dated 17.03.2024 is extracted below :
" 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.W.P.(C) No. 10185 of 2024 and batch Page 5 of 85
Accordingly, the Opposite Parties are granted four weeks' time to file their counter affidavit 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."
3. As the grievances in these writ applications are similar, they were heard together alongwith Writ Appeal No 948 of 2024 which relates to the same amendment rules and advertisement, without waiting for filing of separate counter affidavits in all the writ petitions or the Writ Appeal.
4. We have heard Mr. Ashok Mohanty, learned Senior Counsel , Mr. Budhadev Routray, learned Senior Counsel and Mr Subir Palit learned Senior Counsel or the petitioners . We have also heard Mr P.K Rath , learned Senior Counsel, Mr Sameer Kumar Das , Mr Swapna Kumar Ojha, Mr Dayananda Mohapatra for the intervenors, W.P.(C) No. 10185 of 2024 and batch Page 6 of 85 Mr M.K.Khuntia learned Additional Govt Advocate appearing for the State of Odisha and Mr Arnav Behera and Mr P.K.Mohanty learned counsel appearing on behalf of OPSC .We have also heard Mr K.P. Mishra learned Senior Counsel and Mr S. Rath learned counsel appearing on behalf of the appellant in WA No 948 of 2024.
We have also gone through the note of submissions filed on behalf of the parties and the decisions relied upon by them. BACKGROUND 2012
5. The "Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2012" (in short " the OES Rules") was enacted by the State Government in 2012 by exercising power under Article 309 of the Constitution of India to regulate the recruitment and service conditions of the Assistant Executive Engineers in the State . Rules 6 and 7 of the OES Rules are relevant for deciding this writ application.
W.P.(C) No. 10185 of 2024 and batch Page 7 of 85 5.1 Rule 6 contains the eligibility criteria for direct recruitment of AEEs and is extracted below:
"6. Eligibility Criteria for Direct Recruitment- In order to be eligible for direct recruitment to the posts of Assistant Executive Engineer in the service, a candidate must satisfy the following conditions, namely :-
(a) Nationality : He must be a citizen of India
(b) Minimum Educational Qualification : He must have possessed a Degree in Engineering or an equivalent qualification from any University or Institution recognized by the Government or he must be an Associated Member of the Institution of Engineers of India.
(c) Age Limits : He must have attained the age of 21 years and must not be above the age of 32 years on the 1st day of January of the year of recruitment :
Provided that the upper age limit in respect of reserved categories of candidates referred to in Rule 5 shall be relaxed in accordance with the provisions of the Act, Rules, Orders or Instructions, for the time being in force, for the respective categories.
(d) Knowledge in Odia : He must be able to read, write and speak Odia and have--
(i) passed Middle School Examination with Odia as a Language subject ; or W.P.(C) No. 10185 of 2024 and batch Page 8 of 85
(ii) passed Matriculation or equivalent Examination with Odia as medium of examination in non-language subject ; or
(iii) passed in Odia as language subject in the final examination of Class VII from a School or Educational Institution recognized by the Government of Odisha or the Central Government ; or
(iv) passed a test in Odia in Middle English School Standard conducted by the School and Mass Education Department/Board of Secondary Education, Odisha.
(e) Marital Status : A candidate if married must not have more than one spouse living :
Provided that the State Government may, if satisfied that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule.
(f) Physical Fitness : A candidate must be of good mental condition and bodily health and free from any physical defect likely to interfere with the discharge of his duties in the service.
5.2 Rule 7 contains the method of selection . The original Rule 7 of the OES Rules 2012 is extracted below:
"7. Selection by the Commission --(1) When the Government decides to fill up the vacancies in the post of Assistant Executive Engineers by direct recruitment, Government will communicate W.P.(C) No. 10185 of 2024 and batch Page 9 of 85 the number of vacancies in the posts along with reserved vacancies thereof proposed to be filled up.
(2) The Commission on receipt of the requisition, shall in such manner as it thinks fit, shall invite applications from eligible candidates.
(3) The Commission after receiving all the applications shall take steps to select candidates in the manner given below :
(a) Selection shall be based on Career Evaluation and objective type written test and viva voce test.
(b) Weightage on Career Evaluation shall be 50% (fifty per cent) and objective type written test 40% (forty per cent).
(c) The Career Evaluation shall be made in the following manner :--
(i) High School Certificate :12.5% (Twelve & half per cent)
(ii) Higher Secondary School Certificate or Diploma in Engineering. :12.5% ( Twelve & half per cent)
(iii) Degree in Engineering :25% (Twenty-five per cent)
(d) Weightage on the Viva Voce Test will be 10% (Ten per cent) (4) The Commission shall prepare a list of selected candidates arranged in order of merit equal to the number of advertised vacancy on the basis of the marks secured in Career Evaluation, Objective Type Written Test and Viva Voce Test.W.P.(C) No. 10185 of 2024 and batch Page 10 of 85
Explanation--The Commission shall prepare a common merit list taking into account all categories along with separate merit list categorywise.
2014
6. This Rule was amended in the year 2014 .Vide Rule 2 of the Amendment Rules , Rule 7 was amended and out of 100 marks , 90% mark was meant for written test and 10% mark for vivo-voce. The said amendment is extracted below :
...." 2. In the Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Rules, 2012, for sub-rules (3) and (4) of rule 7, the following sub rule shall be substituted namely:-
"(3) The Commission on receipt of the requisition shall take steps to select the candidates in the manner given below:-
(a) Selection shall be based on objective type written test and viva voce test.
(b) Weightage on objective type written test shall be 90% (ninety per cent).
( c) Weightage on the Viva Voce test shall be 10% (ten per cent). "(4) The Commission shall prepare a list of selected candidates arranged in order of merit equal to the number of advertised vacancy on the basis of marks secured in objective type written test and Viva Voce test.W.P.(C) No. 10185 of 2024 and batch Page 11 of 85
Explanation- The Commission shall prepare a common merit list taking into account all categories along with separate merit list category wise."
2021
7. On 28.01.2021 in exercise of power under Article 309 of the Constitution of India, the Department of Water Resource issued a notification containing the Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Amendment Rules, 2021 (in short "Amendment Rules 2021"). Various provisions of the OES Rules have been amended by the Amendment Rules 2021. But for the purpose of the present writ petitions we are concerned with Rule 4 of the Amendment rules 2021 which has amended Sub Rule 3 and Sub Rule 4 of Rule 7 by changing the method of selection and making the GATE Score to be the only sole basis of selection of candidates who fulfil the eligibility criteria laid down in Rule 6. 7.1 Rule 4 of the Amendment Rule 2021 is extracted below:
"4. In the said Rules, in rule 7",
(i) for sub-rule (3), the following sub-rule shall be substituted, namely:W.P.(C) No. 10185 of 2024 and batch Page 12 of 85
"(3) The commission after receipt of the application shall take steps to select the candidates on the basis of the highest of the valid GATE score of preceding 03 years of the date of advertisement (including the year of advertisement).
(ii)In sub-rule (4) the words and expression.
"marks secured in Career Evaluation, Objective type written test and Viva-voce test" the words and expressions "valid GATE" score shall be substituted".
7.2 By Rule 4 of the Amendment Rules 2021, Rule 7 (3) and Rule 7 (4) which provided for awarding marks for career evaluation, objective type written test and viva voce test have been done away with and GATE scores have been made the sole method of selection by providing that the selection of candidates shall be made on the basis of the highest of the valid GATE score of the preceding three years from the date of advertisement (including the year of the advertisement).
2023
8. Advertisement No 20 of 2022-23 dated 18.03.2023 has been published by the OPSC inviting applications for recruitment to the W.P.(C) No. 10185 of 2024 and batch Page 13 of 85 posts of Asst. Executive Engineer (Civil) and Asst. Executive Engineer (Mechanical) in Group A of Orissa Engineering Service under water resources Department. Clause 5 which indicates the method of selection, is the exact repetition of the impugned portion of the amended Rule and provides as follows :
"5. Method of Selection: -
a) The Commission after receipt of the applications shall take steps to select the candidates on the basis of the highest of the valid GATE score of preceding 03 years of the date of advertisement (including the year of advertisement.
b) The Commission, after verification of original certificates and documents, valid GATE scores, shall select the name of suitable candidates in order of merit , as per availability of vacancies in different categories and recommend for appointment to the post of AEEs to the Government."
8.1 A batch of writ applications - W.P.(C) No.15738 of 2022, W.P.(C) No.10936 of 2023, W.P.(C) No.10955 of 2023, W.P.(C) No.9435 of 2023, W.P.(C) No.9440 of 2023, W.P.(C) No.9443 of 2023, W.P.(C) No.9445 of 2023 and W.P.(C) No.9447 of 2023 had been filed in this court challenging the vires of Rule 4 of the 2021 Amendment Rules amending Rule 7 W.P.(C) No. 10185 of 2024 and batch Page 14 of 85 ( 3 ) and Rule 7 (4 ) of the OES Rules 2012 and the Advertisement No 20 of 2022-23 dated 18.03.2023 . 8.2 By a common judgment dated 01.05.2023 , the amendments and the advertisement were quashed . The operative portion of the judgment is extracted below :
" CONCLUSION
26. In view of the fact that the advice / opinion of the OPSC has not been placed correctly before the Cabinet and a wrong statement has been made before it that the OPSC has given its concurrence to the proposed amendments, Rule 4 of the Amendment Rules which amends Rule 3 and 4 of the OES Rule 2012 is liable to be struck down. Consequently, the impugned advertisement having prescribed the highest valid GATE scores of the preceding three years to be the basis of selection is also liable to be quashed.
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 in 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 W.P.(C) No. 10185 of 2024 and batch Page 15 of 85 admittedly began in 2020) before the publication of the Amendment Rules 2021 , which were published on 28.01.2021 while the Advertisement has been published 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 .
28. Rule 4 (i ) and Rule 4 ( ii ) of the Orissa Engineering Service ( Recruitment and Conditions of Service ) Amendment Rules 2021 , amending Rule 7 (2) and 7(3) of the Orissa Engineering Service ( Recruitment and Conditions of Service ) Rules OES Rules 2012 are hereby struck down and consequently Advertisement No. 20 - 2022-23 dated 18.03.2023 published by the OPSC is quashed."
8.3` This common judgment dated 01.05.2023 passed in W.P.(C) No.15738 of 2022 and batch was challenged in Special Leave to Appeal (C) No(s). 23396 of 2023, filed by one Manas Ranjan Sahoo and others who had applied in response to the advertisement which had been quashed by the common judgment . 8.4 On 28.09.2023 , the Government of Odisha notified the Odisha Engineering Service (Methods of Recruitment and Conditions of Service ) Amendment Rules, 2023" to further amend W.P.(C) No. 10185 of 2024 and batch Page 16 of 85 Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2012 . Vide Rule 2 of the Amendment Rules 2023 , Sub Rule 3 and Sub Rule 4 of Rule 7 of the 2012 Rules were substituted , Rule 2 of the Amendment Rule 2023 is extracted below :
" (i) for sub-rule(3), the following shall be substituted, namely:--
"(3) (a) The Commission after receipt of all the applications shall take steps to select the candidates on the basis of valid Graduate Aptitude Test in Engineering (GATE) score and interview.^
(b) The merit list shall be prepared on the basis of aggregate marks secured in valid Graduate Aptitude Test in Engineering (GATE) score carrying 90% weightage and interview carrying 10% weightage.
(c) In case of two or more candidates securing the same marks in aggregate, the candidate securing higher marks in interview will be assigned higher position over the others.W.P.(C) No. 10185 of 2024 and batch Page 17 of 85
(d) In case of securing same marks in interview, final ranking will be determined on the basis of age, i.e, the elder in age will be given preference over others."
(ii) for sub-rule(4), the following shall be substituted, namely:
"(4) The Commission shall shortlist the candidates for interview on the basis of valid Graduate Aptitude Test in Engineering (GATE) score which shall be two times of the vacancies advertised, category wise .
Provided that the candidates securing same marks at the cut- off point of each category would be admitted for interview even it exceeds two times of the vacancies advertised"
8.5 Advertisement No 19 of 2023 - 24 was published on 28.12.2023 inviting online applications for recruitment to the posts of Asst. Executive Engineer ( Civil) and Asst. executive Engineer ( Mechanical ) in Group - "A" of Odisha Engineering Service under the Water Resources Department . The last date of submission of registered online application was indicated to be 12.02.2024 ,The relevant portions of the advertisement pertaining to age , educational W.P.(C) No. 10185 of 2024 and batch Page 18 of 85 qualification , method of selection and application fee are extracted below :
" 3. AGE: A candidate must have attained the age of 21 (twenty one) years as on 01.01.2023 and must not be above the age of 38 (thirty eight) years as on 01.01.2021 i:e he or she must be born not earlier than 02.01.1983 and not later than 01.01.2002.
Age relaxation for candidates in different categories for availing relaxation and reservation benefits will be as per Government Rules prescribed for the purpose. The upper age limit is relax-able by 5(five) years for candidates belonging to the categories of Scheduled Castes (S.C.), Scheduled Tribes (S.T.), Socially & Educationally Backward Class (S.E.B.C.), Women, Ex-servicemen, and by 10 (ten) years for Persons With Disabilities category, whose permanent disability is 40% and more.
Persons with Disabilities belonging to the categories of SC/ST/SEBC shall be entitled to cumulative age relaxation benefit of 15 years.W.P.(C) No. 10185 of 2024 and batch Page 19 of 85
Provided that the maximum age limit shall be relaxed to 45 years in respect of the candidates who have entered the Diploma Engineers' Service as Junior Engineers whether promoted to the post of Asst. Engineer or not within the prescribed age limit without the qualification prescribed under Clause (b) of Rule 6 and have subsequently acquired the same while serving as such or have acquired such qualification prior to entering the State Government Service as Junior Engineers subject to availing of not more than 5 chances.
Provided that a candidate who comes under more than one category mentioned above he/she will be eligible for only one age relaxation benefit.
SAVE AS PROVIDED ABOVE THE AGE LIMITS PRESCRIBED CAN IN NO CASE BE RELAXED.
Date of birth entered in the high school certificate or equivalent certificate issued by the concerned board/council will only be accepted by the Commission
4. EDUCATIONAL QUALIFICATION; A candidate must have possessed a Degree in Engineering Civil for the post of W.P.(C) No. 10185 of 2024 and batch Page 20 of 85 AEE (Civil) and Degree in Engineering in Mechanical for the post of AEE (Mechanical) or an equivalent qualification from any University or , Institution recognized by the Government or he/she must be an Associated Member of the Institution of Engineers of India in Civil / Mechanical.
5. METHOD OF SELECTION
i) The Commission after receipt of all the applications shall take steps to select the candidates on the basis of valid Graduate Aptitude Test in Engineering (GATE) score and interview.
ii) The merit list shall be prepared on the basis of aggregate marks secured in valid. 'Graduate Aptitude Test in Engineering (GATE) score carrying 90% weightage and interview carrying 10% weightage. '
iii) In case of two or more candidates securing the same marks in aggregate, the candidate securing higher marks in interview will be assigned higher position over the others.W.P.(C) No. 10185 of 2024 and batch Page 21 of 85
iv) In case of securing higher marks in interview, final ranking will be determined on the basis of age, i.e, those elder in age will be given preference over others. .
v) The Commission, shall short list the candidates for interview on the basis of valid Graduate Aptitude Test in Engineering (GATE) score which shall be two times of the vacancies advertised, category wise:
Provided that the candidates securing same marks at the cut-
off point of each category would be admitted for interview even it exceeds two times of the vacancies advertised.
NOTE :- (a) Candidates are to upload their "Certificate showing valid GATE score" along with online application.
(b)Any details relating to this recruitment like cut-off scores, individual scores, etc. shall only be declared on the website of the Commission after publication of the final result and select list.
6. APPLICATION FEE; The candidates are exempted for payment of examination fees as per G.A Deptt. letter No.9897 / Gen dated 11.04.2022."
W.P.(C) No. 10185 of 2024 and batch Page 22 of 85 8.6 The Special Leave to Appeal (C) No(s). 23396 of 2023 was disposed of as infructuous on 24.11.2023.The order is extracted below:
"1. In view of the stand taken by respondent Nos.1 and 2 in their counter affidavit to the effect that after obtaining fresh concurrence from Orissa Public Service Commission, the Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2012 have been amended and notified on 26.09.2023, learned Senior Counsel for the petitioners fairly states that the instant Special Leave Petition has been rendered infructuous and the same may be disposed of as such. He, however, submits, and rightly so, that the petitioners who had applied pursuant to the previous advertisement, may not be deprived consideration on being overage. On this, learned counsel for the respondent - State undertakes that the candidates who have applied earlier shall not be disqualified on being overage.
2. In view of the above-stated statement made by learned counsel for the respondent - State, no further directions are required to be issued in the instant matter.
3. The Special Leave Petition is, accordingly, disposed of as having become infructuous.
4. As a result, the pending interlocutory application also stands disposed of."W.P.(C) No. 10185 of 2024 and batch Page 23 of 85
8.7 A corrigendum dtd. 29.12.2023 was issued to the impugned advertisement wherein it was stated that the recruitment to the Assistant Executive Engineer post shall be subject to the final outcome of WP (C) No. 42059 of 2023 pending before this Hon'ble Court.
2024
9. On 12.01.2024 a second corrigendum was issued by the OPSC rescheduling the last date of application from 19.01.2024 to 19.02.2024.
9.1 On 19.01.2024 a third corrigendum was issued by the OP No. 2 which confined the GATE score of candidates to the subject of Civil Engineering and Mechanical Engineering only. 9.2 Subsequently on 17.02.2024, another corrigendum was issued which notified an additional 348 posts to that of the existing 580 posts and further extended the last date of application from 19.02.2024 to 26.02.2024.
W.P.(C) No. 10185 of 2024 and batch Page 24 of 85 SUBMISSIONS PETITIONERS
10. Mr. A. Mohanty, learned Senior Counsel appearing for the petitioners in WP( C ) 10185 of 2024 has submitted that the petitioners who are aspirants for the post of Asst. Executive Engineers under the State Government have prayed for quashing Rule 7 of the impugned Amendment Rules 2023 and have prayed for a direction for acceptance of their applications for appointment to the post of Assistant Executive Engineer in terms of the 2012 Rules without insisting on GATE . He further submits that :-
i) The decision that OPSC shall select candidates on the basis of the valid GATE score carrying 90% weightage and interview carrying 10% weightage for preparation of merit list is illegal and arbitrary as the prevalent practice of objective type written test and viva-voce test has been completely replaced by the GATE .
ii) Rule 6 of the Rules prescribes eligibility criteria for recruitment to the posts of Assistant Executive Engineer but the W.P.(C) No. 10185 of 2024 and batch Page 25 of 85 amendment to Rule 7, excludes the candidates who are eligible as per Rule 6 of the Rules which is illegal.
iii) The purpose of the GATE examination is to get admission and financial assistance to Master's Degree and Doctorate Program and the same is also used for getting shortlisted in PSUs. So the GATE score cannot be used for recruitment of Group A services in the State is arbitrary and irrational.
iv) The 2021 amendment to the 2012 rules introducing GATE had been quashed by this Hon'ble High Court in judgment dtd.
01.05.2023 in WP (C) No. 15738 of 2022 and batch.
v) The impugned amendment has been brought into force and an advertisement No. 19 of 2023-2024dtd. 28.12.2023 published for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) in Group A of Odisha Engineering Service under the Water Resource Department with a vacancy of 580 posts without giving any opportunity to aspiring candidates to apply .
vi) Written test and viva-voce prescribed earlier has been substituted by GATE examination which is contrary to the W.P.(C) No. 10185 of 2024 and batch Page 26 of 85 eligibility criteria fixed by the All India Council for Technical Education(AICTE). The AICTE has a published a public notice dated 20.11.2018 that no decision has been taken by the AICTE to make GATE mandatory for applying for an examination. The impugned amendment is thus contrary to the AICTE guidelines.
vii) Candidates who have cleared GATE a long time ago will not be eligible to apply for the post as the Rule requires candidates clearing GATE in the preceding three years of the advertisement.
viii) In judgment dtd. 01.05.2023 in WP (C) No. 15738 of 2022 whereby the 2021 , letter No. 1232 dt. 19.02.2020 addressed by OPSC to Special Secretary to Government in its Water Resources Department, objecting to the amendment of Rule 7 of the Rules in the Year 2021 was discussed. Change in view of OPSC is colourable.
ix).The objective test for recruitment to find a suitable candidate, cannot be done by adopting an examination which is a measure of judging the standard for admission into higher study.
W.P.(C) No. 10185 of 2024 and batch Page 27 of 85
x) The GATE examination puts a burden on the candidate as the examination fee is Rs 1,800 and violates the Odisha discontinuation of payment of application and examination fees for recruitment to different posts and services in the State Govt. Rules, 2022. Financially weaker sections have been put to disadvantage.
xi) The impugned amendment Rules, 2023 brings in a classification amongst the candidates even before the date of advertisement of posts on the basis of eligible candidates that is candidates having GATE and candidates not having GATE without any rationale .
xii) State has power to make rules under Article 309 of the Constitution but it has to withstand the test of arbitrariness and rationality. The impugned amendment takes away the transparent evaluation of candidates.
xiii) The impugned amendment gives preference to candidates who have appeared in GATE depriving the other candidates from consideration , which is discriminatory. W.P.(C) No. 10185 of 2024 and batch Page 28 of 85
xiv) The impugned amendment to Rule 7(3) & 7(4) of the Rules suffer from the colourable exercise of power under the delegated legislation and non- application of mind.
xv) Under RTI Act , IIT Kanpur has informed the purpose of giving GATE examination is for getting admission to a post graduate program in Govt. funded institutions. Further, the GATE score can be used for seeking admission, financial assistance to master's program and direct doctoral courses in Engineering / Technology or Architecture / Science/ Commerce/ Arts.
xvi) The selection method for the post of the Assistant Executive Engineers, in different departments of the State is different .
xvii) Qualifying in GATE is mandatory for pursuing higher education but it cannot be mandated for recruitment of Assistant Executive Engineer.
xviii) The mandate of GATE results in an incoherence in reservation policies due to the differences in the reservation policies of the State and Centre.
W.P.(C) No. 10185 of 2024 and batch Page 29 of 85 xix) The Rules has to be circulated before giving effect to it, but the advertisement has been issued before circulating the impugned Rules which is illegal and arbitrary. xx) As per Article 320(1) of the Constitution, it is the duty of the Public Service Commission to conduct examination for appointments to the services of the Union and State. That GATE is not being conducted as per the mandate of Article 320(1), which is against the constitutional mandate. xxi) The impugned amendment to Rule 7(3) and 7(4) of the Rules is violative of Article 16 of the Constitution as it will result in discrimination in the matters of the public employment. xxii) An opportunity should have been given to the candidates for appearing in the GATE exam prior to applying for the post of the Assistant Executive Engineer.
11. Mr. B. Routray, learned Senior Counsel appearing on behalf of the petitioners in WP( C) No. 8166 of 2024 and WP( C ) No. 596 of 2024 has submitted that :-
i) Rule 3 of Orissa Civil Service (Criteria for selection for appointment including promotion) Rules, 2003 provides for the W.P.(C) No. 10185 of 2024 and batch Page 30 of 85 purpose of initial appointment mandates the Commission to prepare a list through competitive examination. Rule 5 of the said Rules provides for overriding effect of the 2003 Rules over other recruitment rules for the time being in force.So this includes the provisions in the 2023 Amendment Rules
ii) The impugned amendment contravenes Rule 3 of the Orissa Discontinuance of Payment of Application and Examination fees for recruitment to different posts and services in the State Govt. Rules, 2022, which provides that notwithstanding anything contained in any recruitment rules, or order or instructions regulating the method of recruitment in different posts and services of State, no application fee will be charged from any applicant for appearing in any examination conducted by any recruitment agency. But for appearing GATE the prescribed fee has to be paid which indirectly frustrates the intent and purpose of the 2022 Rules .
iii) The issue involved in the case of Ram Manohar Pandey vs State of Bihar are similar where written examination was W.P.(C) No. 10185 of 2024 and batch Page 31 of 85 replaced with weightage of GATE score , which has been accepted by this Court in its judgment dated 01.05.2023 .
iv) Even if it is accepted that GATE is a competitive examination as per 2003 Rules and Article 320 (1) but it is not conducted by OPSC or any constitutional or statutory body. In the absence of any Rules to delegate the power of the Commission to any other body other than OPSC, the GATE examination cannot be construed to be a competitive examination. And it is not in consonance with Article- 320 (1 ) of the Constitution or Rule 3 of Orissa Civil Service (Criteria for selection for appointment including promotion) Rules, 2003.
v) OBC and EWS category are included in GATE which are not recognized in the State of Odisha.
vi) Method of determining cut off marks / qualifying marks varies from year to year in GATE while it is fixed category wise in competitive examination .
vii) Adequate number of candidates having GATE score are not available in open market for recruitment .W.P.(C) No. 10185 of 2024 and batch Page 32 of 85
viii) There is violation of Rule 7(2) of the 2012 Rules as applications have not been invited from candidates who are eligible as per Rule 6 of the 2012 Rules.
ix) In the year 2019-2020, 15,367 candidates had applied for the post of Assistant Executive Engineer in response to the advertisement but candidates who have applied pursuant to the advertisement dated 28.12.2023 are much less.
x) Under the RTI Act office of opposite party No1 has informed that method of recruitment for Assistannt executive Engineer has not been decided .
xi) OPSC in its letter dated 19.02.2020 addressed to opposite party No.1 had earlier not found the syllabus of GATE to be suitable for recruitment to Group A category services . This has been discussed in paragraph 25 of judgment dated 01.05.2023 while declaring the 2021 Amendment Rules ultravires .
xii) No uniformity in recruitment rules to post of Assistant Executive Engineers in different government departments .
xiii) Last recruitment was in the year 2019 . Last GATE examination was in the year 2023 . The score in valid for three W.P.(C) No. 10185 of 2024 and batch Page 33 of 85 years . So a candidate cannot be expected to appear every year in GATE to have a valid score.
xiv ) Consultation with the OPSC was necessary as post of Assistant Executive Engineer is a Group A Post and consultation has not been exempted Odisha Public Service Commission (Limitations of functions) Regulations, 1989.
xv) Brilliant candidates may be excluded as candidates with post graduate degrees may not have appeared in GATE . xvi) GATE is an aptitude test for prosecuting higher studies . PSUs resort to recruitment basing on GATE scores due to paucity of time.
12. Mr Subir Palit learned Senior Counsel appearing on behalf of the petitioners in WP( C ) No. 42059 of 2023 has submitted that :-
i) As per Article - 320 (1 ) of the Constitution , it is duty of the State Public Commissions to conduct examinations for appointments to the services of State . But on account of the impugned amendment , this duty has been abrogated and the "duty" of the OPSC has changed to one of responsibility as the examination will be conducted by another body. Initially W.P.(C) No. 10185 of 2024 and batch Page 34 of 85 it had not agreed to giving weightage of 90% to GATE and only 10% to Viva Voce but agreed subsequently which is suspicious .
ii) The purpose of the written examination conducted by OPSC and the GATE examination are different . While the first is to select a suitable candidate with a B.Tech degree having a certain level of aptitude for service , the object of a valid score obtained in GATE can be used for seeking admission and / or financial assistance to Master's program and direct Doctoral programs in Engineering/ Technology/ Architecture/ Science/ Commerce/Arts. He submits that the GATE has not been defined Orissa General Clauses Act/ Odisha Engineering Service (Method of Recruitment and Conditions of Service) Rules, 2012] and has no statutory flavor or sanction . It cannot be validated by the Rules and that the candidates have a vested right to be tested by the OPSC only .W.P.(C) No. 10185 of 2024 and batch Page 35 of 85
iii) The amendment discriminates between students who have appeared in GATE and who have not and hence violates Article 14 and 16 of the Constitution .
iv) A writ will not lie against GATE as it is private non statutory body and hence it may not be amenable to Article-
226 of the Constitution .
13. The learned Senior Counsel for the petitioners have placed reliance on the case of Ram Monohar Pandey & Others Vs. State of Bihar & Others : CWJ Case No. 8760 of 2019 decided on 05.08.2019 by the High Court of Patna where the amendment introducing the qualification of GATE for recruitment to the post of Lecturers in Polytechnic Colleges and Engineering Colleges has been struck down and other decisions .
OPPOSITE PARTIES THE STATE OF ODISHA
14. Mr M.K. Khuntia learned Additional Government Advocate has submitted that Article 309 of the Constitution , the State has the power to promulgate Rules for recruitment to the public posts in State. The impugned amendment has been brought in after W.P.(C) No. 10185 of 2024 and batch Page 36 of 85 consultation of the OPSC and its concurrence , with a view bring in transparency and efficiency in the recruitment process and rule out un due delay which has occurred in case of written examinations . He has submitted that there has been no violation of the provisions of Article 320 and 321 of the Constitution. .The Amendment brought in 2021 making the GATE score a mandate , was struck down by the High Court by judgment dtd. 01.05.2023 in WP(C) No. 15738 of 2022 and batch on the ground that the OPSC has not given its concurrence. SLP (C) No. 23396 of 2023 (Manas Ranjan Sahoo v. State of Odisha) filed in the Supreme Court challenging the judgment of WP (C) No. 15738 of 2022 (Pradyumna Kumar Patra and Ors. v. State of Odisha) was disposed of on the ground that the 2023 amendment has been brought in with concurrence of the OPSC. It has been further stated that the OPSC is entrusted with the responsibility of selection of candidates . The impugned amendment has been taken in consonance with the judgment dated 01.05.2023 only after high level meeting under the chairmanship of Chief Secretary, Govt. of Odisha on 07.06.2023 and a second meeting on 05.09.2023 by the Secretaries of different Engineering Departments. W.P.(C) No. 10185 of 2024 and batch Page 37 of 85 The Scheme of selection as provided in the impugned Amendment was placed before the cabinet, obtaining due concurrence of Law Dept. and GA & PG Dept. and Hon'ble Chief Minister for approval, it was approved after going through the requisite procedure. The GATE examination is designed for selection of candidates into higher education as well as for selection of employees in high-level public sector jobs, in Group 'A' level posts in Central Govt. posts. A candidate appearing in GATE can utilize the score for three years and apply for the post for 3 years as the Validity of the GATE score is 3 years. It has been further stated that the OPSC is entrusted with the responsibility of selection of candidates . After publication of the amendment , requisition was placed before the OPSC vide Dept. Letter No.-35095 dtd. 15.12.2023 , and the impugned advertisement was published inviting applications from eligible candidates for the post of Assistant Executive Engineer s . More than 621 posts of engineering at the base level in the Grade of Assistant Executive Engineer are vacant severely affecting the developmental works of the State and State sponsored projects, for which the State brought in the two step selection process . It has been held in a catena of W.P.(C) No. 10185 of 2024 and batch Page 38 of 85 judgments that the employer is the best suited to decide the methodology of recruitment or criteria for selection .The Water Resources Department being the nodal department in Engineering it has the Right to devise its own recruitment method of selection. It is not bound to adopt the uniform selection procedure as claimed by the Petitioner. The eligibility criteria as provided in the Rule 6 of the Rules is identical to that of the minimum qualification for appearing in the GATE examination. Thus there is the minimum qualification for the process of recruitment. GATE is only a screening test to select meritorious candidates in transparent manner and the candidates can avail the reservations available in State after obtaining a valid GATE score. He has further submitted that in 1983 , the IIT Council had decided that admission to Post Graduate Courses in the IITs should be on the basis of performance in the GATE Examination. This examination is now being used by many PSUs and Departments for the recruitment to "Group A" services of State and Centre. The GATE examination is being conducted by a statutory body on behalf of Ministry of Education, so it cannot be said that it has no statutory backing as all. GATE has been taken to be a method of recruitment W.P.(C) No. 10185 of 2024 and batch Page 39 of 85 and not an eligibility criteria .So eligible aspirants for the post of Assistant Executive Engineer have to qualify in GATE examination with a valid GATE score Ministry of Education has not restricted the use GATE score for higher studies. It is the discretion of the Government (employer) to consider the form of examination for recruitment and it can be any form of examination and may also be confined to an interview. It is also not necessary that the examination has to be conducted by the Government or the OPSC . In the present case , after consultation with the OPSC , it was decided that the GATE examination would be adopted as method of selection / recruitment which the Government had the power to do under Article
- 309 of the Constitution ..As regards provision of fees , the State has exempted the application fees which are utilised for expenditure carried by OPSC for conducting examination, viva voce, scrutinizing the documents . Zero fee has been charged for conducting the process but State cannot bear the expenditure for GATE or NET examination. GATE score card is given to all students, who get more than SC and ST cut-off and this is considered to be a valid .GATE score and this card is to be utilised in AEE recruitment and OPSC W.P.(C) No. 10185 of 2024 and batch Page 40 of 85 recognizes SEBC reservation. . Reservation is provided for SEBC candidates , but they must have a valid GATE score and score more than SC/ST cut off. Reservation in the posts is also available for SC and ST candidates . He has also submitted that it is the prerogative of the Government to fix the last date / cut off date , which has been filed to 26.02.204 by the Government .
He has placed reliance on the decision in the case of Elambarathy S v. NLC India Ltd. and Ors., WP Nos. 11026 & 9491 of 2022, High Court of Madras, Judgement date- 18.10.2022 , and the Madhya Pradesh High Court (Indore Bench) in Vikas Malik v. Union of India and Ors. ILR (2019) MP 558 , Lila Dhar vs State of Rajasthan and Maharashtra Public Service Commission v. Sandip Sriram Warade and others reported in (2019) 6 SCC 362, He has also submitted that reliance placed by the writ petitioners on the decision of Ram Manohar Pandey ( supra ) is misplaced as the same is related to recruitment to the post of Lecturer for which minimum educational qualifications had been prescribed by the AICTE .
W.P.(C) No. 10185 of 2024 and batch Page 41 of 85 ODISHA PUBLIC SERVICE COMMISSION
15. Mr Arnav Behera learned counsel appearing on behalf of the OPSC , refuting the claims of the petitioners has submitted that in case of the 2021 amendment,, Proper consultation had not been made with the OPSC and did not concur with the decision of making GATE as the basis of selection for Assistant Executive Engineers. Subsequently it was struck down by this Hon'ble Court in the WP (C) No. 19738 of 2022 dated 01.05.2023. When the 2023 amendment was proposed by the State, OPSC had initially agreed for GATE as a selection criteria at 70% weightage and 30% weightage on the interview vide Letter No. 6112/PSC dated 31.07.2023 of the OPSC,( Annexure A/3) Thereafter as per the decision of Supreme Court in the matter of Ashok Kumar Yadav v. State of Haryana and Anr., OPSC agreed with the proposal at 90% weightage on the GATE Score and 10% weightage on the Interview vide its Letter No. 6829/ PSC, Date- 02.09.2023 of OPSC. The 2023 Amendment Rules have been published thereafter .
W.P.(C) No. 10185 of 2024 and batch Page 42 of 85 Appellants in WA No. 948 of 2024
16. Learned counsel for the Appellants in WA No. 948 of 2024 has submitted that the appellants were the intervenors in WP(C )No. 42059 of 2023 in which the impugned interim order has been passed. They have also stated that they and some other candidates had challenged the judgment in WP( C) No. 15378 of 2022 and batch before the Supreme Court and the case was ultimately disposed of on 24.11.2023 as infructous as the 2023 Amendment had already been published . The judgment of this Court was not interfered with . They have stated that they are eligible candidates with valid GATE Scores but they were not made parties in the writ petition and are aggrieved by the interim order which has been passed by this Court without hearing them . They are prejudiced by the interim order and are facing difficulty . In view of the impugned interim order passed by the learned Single Judge. The impugned interim order is against the statutory prescription in rule under Article 309 of the Constitution of India, 1950 and hence unsustainable in the eye of law. After the 2023 amendment Rule 2023 of the Odisha Engineering Service Rules, 2012, there is a clear provision in Rule 7 W.P.(C) No. 10185 of 2024 and batch Page 43 of 85 of the aforesaid Amendment Rule that selection shall be made on the basis of 90 percent GATE score and 10 % in the interview which was not there in the 2021 amendment which had been quashed by this Court. The learned counsel for the appellants has submitted that the contention of the that without amending Rule 6 i.e eligibility criteria , Rule 7 could not have been amended has no merit stating as both criteria can be different . He had stated that the decision to amend the existing Rules by introducing GATE score is to get the best candidates and cannot be said to be ultra vires . As the candidates knew since 2021 when the 2012 was first amended that a valid score in GATE is required , they cannot complain that they did not get an opportunity to appear in GATE . There is no scope for the Court to act as an expert and interfere with the decision of the employer to get the best candidate or decide on the qualification for any post. Therefore, the Writ Application bearing No. 42509 of 2023 and other Writ Applications are liable to be dismissed and do not call for any interference .
W.P.(C) No. 10185 of 2024 and batch Page 44 of 85 Intervenors in WP( C ) No. 10185 of 2024
17. The learned counsel for the intervenors in WP ( C ) No. 10185 of 2024 have submitted that in the 2023 amendment Rules , in Section 2(3)(a)(b), GATE has been clearly specified as 'Graduate Aptitude Test in Engineering' and the students pursuing graduate course in Engineering are aware and know about this examination . GATE examination is held under the Chairmanship of II.Sc, Bengaluru and membership of seven different IITs comprising IIT Bombay, IIT Delhi, IIT Guwahati, IIT Kanpur, IIT Kharagpur, IIT Madras, and IIT Roorkee. It is a body on behalf of the National Coordination Board (NCB), Department of Higher Education, Ministry of Education (MoE), Government of India like that of NTA conducting NEET, CUET, etc. Any graduate engineer aspiring for a job can therefore have no objection to appear in GATE which consists of the subject curriculum wise with general aptitude , proficiency etc. which is of a higher standard in comparison to the syllabus prescribed in the 2012 Rules . He has further submitted that the candidates were aware since 2020 that GATE was to be the process of selection . In view of large W.P.(C) No. 10185 of 2024 and batch Page 45 of 85 number of vacancies i.e 928 , serious prejudice would be caused to candidates who were eligible and have already applied .
ISSUES
18. In view of the submissions of the learned counsel , broadly the following questions have to be dealt with : -
i) whether the amendment of sub rule (3) and (4) of Rule 7 of the Odisha Engineering Service (Method of Recruitment and Conditions of Service) Rules, 2012 by Amendment Rules, 2023 is ultra vires of the Constitution ?
ii ) whether the Advertisement No. 19 of 2023/24 dt. 28.12.2023 issued by Odisha Public Service Commission for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) in Group A of the Odisha Engineering Service under the Water Resource Department, is liable for interference. ?
iii) whether the candidates who are otherwise eligible but have not appeared in the GATE in the last three years , should be given an opportunity to appear in the GATE examination.? W.P.(C) No. 10185 of 2024 and batch Page 46 of 85 STATUTORY PROVISIONS
19. For convenient adjudication of the writ petitions and the writ appeal , we deem it proper to reproduce the provisions of Article 309 and 320 of the Constitution of India:-
"309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act"
"Article-320. Functions of Public Service
Commissions.
W.P.(C) No. 10185 of 2024 and batch Page 47 of 85
1. It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
2. It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
3. The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted--
a.) on all matters relating to methods of recruitment to civil services and for civil posts;
b.) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
c.) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
d.) on any claim by or in respect of a person who is serving or has served under the Government of India or the W.P.(C) No. 10185 of 2024 and batch Page 48 of 85 Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State; e.) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them:
Provided that the President as respects the all- India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.W.P.(C) No. 10185 of 2024 and batch Page 49 of 85
4. Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335.
5. All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid."
CITATIONS / CASE LAW
20. A number of decisions have been relied upon by the learned counsel , but we deem it proper to refer to the following decisions:-
20.1 In Ram Manohar Pandey ( supra) , the Patna High Court was examining the vires of the amendment to the Bihar Polytechnic Education Service Rules, 2014 by which the requirement of written test and evaluation in the teaching skill for recruitment to the post of Lecturers in Polytechnic Colleges and Engineering Colleges was deleted W.P.(C) No. 10185 of 2024 and batch Page 50 of 85 and it was provided that evaluation would be on the basis of the percentile secured by the candidate in the Graduate Aptitude Test in Engineering Examination (the GATE, in short) . The Patna High Court while setting aside the same has observed that though there is no apparent breach of Article-14 of the Constitution but candidates having higher qualification or experience will not get due weightage during the viva-voce test. It observed that so far as evaluation of the work knowledge is concerned, the object is entirely missing The relevant portions of the judgment are extracted below :
"Even if the State under Article-309 has a right to frame rules in matters of public employment, every such rule has to withstand the test of arbitrariness and rationality besides being transparent on the procedure but the amendment substituting Table-2 of Appendix-I trough Memo No.889 dated 10.04.2017 whereby it is decided to waive of the transparent evaluation of candidates on their work knowledge/teaching skill by way of a written test and to simply mark candidates on the basis of marks obtained in the GATE examination, not only hits transparency but also discriminates against such of the candidates who are already Post Graduates and are not required to pass such GATE examination."W.P.(C) No. 10185 of 2024 and batch Page 51 of 85
"It is the contention of the petitioners that qualifying in GATE is a mandatory requirement for seeking admission in Masters/ Doctoral programme in Engineering/ Technology/ Architecture and since the petitioners are already having Post Graduate qualification they are not required to appear at such examination. According to Mr. Singh, while the petitioners are not required to pass GATE examination because they are already Post Graduates, this situation deprives them of the valuable 30 marks for being evaluated on their work knowledge/ teaching skill.
We do agree with the issue canvassed and are completely at loss to appreciate this change in the procedure of evaluation of candidates on their work knowledge/ teaching skill because while the weightage scheme as it was originally framed, allowed equal opportunity to all the candidates for being tested on their work knowledge/ teaching skill through a written test to be held on the pattern of GATE, the State by waiving of such requirement has deprived the candidates who are not even required to pass GATE examination for being evaluated on their work knowledge and teaching skill even if they do possess such experience. Even if the State under Article 309 has a right to frame rules in matters of public employment, every such rule has to withstand the test of arbitrariness and rationality besides being transparent on the procedure but the amendment substituting Table-2 of Appendix-I through Memo No. 889 dated 10.4.2017 whereby it is decided to waive of the transparent evaluation of candidates on their work W.P.(C) No. 10185 of 2024 and batch Page 52 of 85 knowledge/ teaching skill by way of a written test and to simply mark candidates on the basis of marks obtained in the GATE examination, not only hits transparency but also discriminates against such of the candidates who are already Post Graduates and are not required to pass such GATE examination."....
....."As we have observed there can be a preferential category within a particular category but a weightage scheme which deprives a candidate from consideration against a particular attribute in its entirety suffers from vice of arbitrariness besides being discriminatory and lacking on reasonableness. In fact this change in weightage scheme has created a class within a class of candidates in so far as evaluation on work knowledge/ teaching skill is concerned and the object is entirely missing. The basic eligibility as present in Table-1, Appendix-I for an applicant to apply against such post, does not prescribe passing of a GATE examination as a condition of eligibility. In our opinion, until passing of a GATE examination is made a condition of eligibility, the State cannot make it a basis for evaluation of a candidate on the issue of work knowledge and teaching skill. Such is the arbitrary consequences of such form of evaluation that despite candidates possessing work experience and teaching skill, they are yet deprived of such consideration simply because they have not passed the GATE examination. The case of the petitioners is even worse because being Post Graduate they are not even W.P.(C) No. 10185 of 2024 and batch Page 53 of 85 required to pass such examination and yet the substituted rule deprives them of such consideration."...
20.2 In the case of Asha Kaul (supra) , where the select list of District Munsifs prepared by the Jammu and Kashmir Public Service Commission was under challenge , the Supreme Court interalia held as follows :
... "It is true that the government is the appointing authority for the munsifs but it is misleading to assert that in the matter of selection and appointment the government has an absolute power. Such an argument does violence to the constitutional scheme. The Constitution has created a public service commission and assigned it the function of Conducting examinations for appointments to the services of the Union or to the services of the State, as the case may be. According to Article 320 clause (1) this is the primary function of the commission. The Government is directed to consult the public service commission on all matters relating to methods of recruitment to civil services and to civil posts and on the principles to be followed in making. appointment to civil services and posts and on the suitability of candidates for such appointment, among other matters. An examination of Articles 317 to 320 makes it evident that the constitution contemplates the commission to be an independent and effective body outside the governmental control. This is an instance of W.P.(C) No. 10185 of 2024 and batch Page 54 of 85 application of the basic tenet of democratic form of government viz., diffusion of governing power, The idea is not to allow the concentration of governing power in the hands of one person, authority or organ."....
....." Indeed, clause (2) of Article 323 obliges the Governor of a State to lay a copy of the annual report received from the commission before the Legislature "together with a memorandum explaining, as respect the cases, if any, where the advice of the commission was not accepted (and) the reasons for such non-acceptance." Evidently, this is meant as a check upon the power of the government. This provision too militates against the theory of absolute power in the government to disapprove or reject the recommendations of the commission."
20.3 In the case of Duddilla Srinivasa Sharma (supra), the Supreme Court has held :
...."We fail to understand how a person who fulfils the eligibility conditions as per the recruitment rules can be excluded even from appearing in the qualifying written examination by fixing higher educational qualification bench mark. That would be permissible where the post is to be filled by main written examination (with marks obtained therein to be included in the total marks) followed by viva- voice test OR W.P.(C) No. 10185 of 2024 and batch Page 55 of 85 where the post is to be filled by interview mode alone. Thus, having regard to the specific provision of shortlisting, we are of the opinion that the impugned judgment of the High Court has taken the correct view."....
20.4 In Sandip Sriram Warade (supra), the Supreme Court has held as follows :
"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. 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 at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the W.P.(C) No. 10185 of 2024 and batch Page 56 of 85 garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
20.5 In the case of Elambarathy S (supra), the High Court of Madras while dealing with a challenge to the advertisement which had prescribed GATE score as the criteria for selection to the post of Graduation Executive Trainee held as follows:-
"8. The aspirants for the post of Graduate Executive Trainee in the first respondent/public sector Company, do not have a vested right on the mode of recruitment and/or qualification prescribed by the recruiting agency/employer. The second respondent under the impugned Advertisement, has prescribed GATE score as mandatory requirement for applying to the subject post. GATE is an examination conducted by the agency established by the Central Government. GATE is an examination that primarily tests the comprehensive understanding for various under-graduate subjects in Engineering and Science for admission in the Master's programme for recruitment by some public sector undertaking Companies like that of the first respondent. The purpose for GATE examination is to test the students' W.P.(C) No. 10185 of 2024 and batch Page 57 of 85 knowledge and undertaking of under-graduate level subjects in Engineering and Science. GATE is utilised to measure and tehst the calibre of the Engineering students. The requirement of GATE score under the impugned Advertisement/Notification therefore cannot be held to be unreasonable.......
10. .....This Court is of the considered view that the petitioners' contention will have to be rejected for the following reasons:
(a) The prescription of educational and other required qualifications for a post, is within the domain of the recruiting agency/employer, unless and until they will have to follow any statutory law/Rules prescribing a particular educational qualification criteria for a particular post. No statutory provision/Rule prohibits the first respondent-Company from prescribing GATE score as a mandatory qualification for applying to the post of Graduate Executive Trainee. The first respondent has a discretion to prescribe the required and relevant educational and other necessary qualifications for the required post in consonance with the nature of the post.
The petitioners have no legally recognised/protected and judicial enforceable right to compel and/or dictate the respondents to follow the same yardstick for all times in W.P.(C) No. 10185 of 2024 and batch Page 58 of 85 the recruitment for the post required by the respondents. This legal position had also been confirmed by the Honourable Supreme Court in the decision dated 03.05.2019 in Civil Appeal No.4597 of 2019 (cited supra) as well as in the judgment, dated 03.11.2020 in Civil Appeal No.3602 of 2020 (cited supra), relied upon by the learned Additional Solicitor General appearing for the respondents."
20.6 The High Court of Madhya Pradesh (Indore Bench) in Vikas Malik (supra) has interalia held : :
..." 7. The prescription of minimum qualifications and the mode of appointment in the sphere of public employment is within the domain of the appointing authority or the selection body. The Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualification so prescribed reasonably relevant and do not obliterate the equality clause (J.Ranga Swamy v. Govt., of A.R.[MANU/SC/0229/1989 : (1990) 1 SCC 288 and Chandigarh Administration Through the Director Public Instructions (Colleges), Chandigarh [(2011) 9 SCC (645)]..."W.P.(C) No. 10185 of 2024 and batch Page 59 of 85
20.7 In the case of Mohd Rashid v. The Director, Local Bodies, New Secretariat and others (Civil Appeal No.136 of 2020) decided on 15.01.2020, the recruitment rules had been amended on 7th June, 2013 and the advertisement was issued on 12th September, 2013. But the Supreme Court did not interfere with the selection holding as follows :
..."11. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies.
12. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India, a Constitution Bench of this Court held that a candidate seeking appointment to a civil W.P.(C) No. 10185 of 2024 and batch Page 60 of 85 post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v.
State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899]."
13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, W.P.(C) No. 10185 of 2024 and batch Page 61 of 85 we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh."
20.8 In the case of State of U.P. v. Manbodhan Lal Srivastava : 1958 SCR 533, the Hon'ble Supreme Court has held as follows:
..."7. Article 320 does not come under Chapter I headed "Services" of Part XIV. It occurs in Chapter II of that part headed "Public Service Commissions." Articles 320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such "additional functions" as may be provided for by Parliament or a State Legislature. Articles 320 and 323 begin with the words "It shall be the duty.................", and then proceed to prescribe the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments; to assist in framing and operating schemes of joint recruitment; and of being W.P.(C) No. 10185 of 2024 and batch Page 62 of 85 consulted on all matters relating to methods of recruitment or principles in making appointments to Civil Services and on all disciplinary matters affecting a civil servant. Perhaps, because of the use of word "shall" in several parts of Art. 320, the High Court was led to assume that the provisions of Art. 320(3)(c) were mandatory, but in our opinion , there are several cogent reasons for holding to the contrary. In the first place, the proviso to Art. 320, itself, contemplates that the President or the Governor, as the case may be, "may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted." The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to W.P.(C) No. 10185 of 2024 and batch Page 63 of 85 the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to W.P.(C) No. 10185 of 2024 and batch Page 64 of 85 getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public a servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art.
320(3)(c) could have the effect of nullifying the final order passed by the Government."...
..."11. The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor [[1945] F.C.R. 99]. In that case, the Federal Court had to consider the effect of non- compliance with the provision of s. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of s. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their W.P.(C) No. 10185 of 2024 and batch Page 65 of 85 Lordships the Federal Court were very emphatic and of a prohibitory character."...
..."13. We have already indicated that Art. 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has hot been contended at any stage that they had not been complied with - he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Art. 320(3)(c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer". W.P.(C) No. 10185 of 2024 and batch Page 66 of 85 20.09 In the case of Lila Dhar vs State of Rajasthan : (1981) 4 SCC 159, the Supreme Court observed that written test may is of importance where admission to a College is concerned . The relevant portions of the judgment are extracted below :
"6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu, Ajay Hasia etc. v. Khalid Mujib Sehravardi & ors. etc., (supra) and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart W.P.(C) No. 10185 of 2024 and batch Page 67 of 85 from its being an act or cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service. the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.
7. In this background, let us now examine the situation presented by the Rajasthan rules. The Rajasthan Judicial Service rules leave been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the W.P.(C) No. 10185 of 2024 and batch Page 68 of 85 Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source- material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods. Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the constitution. Neither is an outside agency. Both are well- acquainted with the particular needs of their State and the people. If the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating seventy five percent of the marks for the written examination and twenty five percent for the interview test, on what basis can a Court say that twenty five percent for the interview test is on the high side ? It must not also be forgotten that the interview test is generally conducted and was, in the present case, conducted by a body consisting of a Judge of the High Court, the Chairman and a member of the Public Service Commission an d a special invitee-expert. There can surely be no legitime grievance or hint of arbitrariness against this body. Yet another factor worthy of consideration is that the candidates expected to offer themselves for selection are not raw Graduates freshly out of college but are persons who have already received a certain amount of professional training. The source material is such that some weightage must be given to W.P.(C) No. 10185 of 2024 and batch Page 69 of 85 the interview test and can it possibly be said that twenty five per cent of the total marks is an exaggerated weightage. We may add here that it has been made clear by the Chairman, Rajasthan Public Service Commission on whose behalf a counter affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the interview Board either before or at the time of the interview. We are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test."...
"9........ The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us W.P.(C) No. 10185 of 2024 and batch Page 70 of 85 the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case. The Writ Petition is therefore dismissed but in the circumstances there will be no order regarding costs."
20.10 In the case of J & K Public Service Commission vs Dr.Narinder Mohan : (1994) 2 SCC 630, the Supreme Court has held as follows :-
"Though it is settled law that consultation is not mandatory but as held by this court in Jatinder Kumar vs State of Punjab that the establishment of an independent body like PSC is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment Commission is constituted by persons of high ability, varied experience and of undisputed W.P.(C) No. 10185 of 2024 and batch Page 71 of 85 integrity and further assisted by experts on the subject. Whenever the Government is required to make appointment to a high public office it is required to consult the PSC."
20.11 The Gujarat High Court in the case of Barot Jignesh Lakshmansinh ( supra) , while dealing with a similar contention that the selection test has to be conducted by the Public Service Commission, has held as follows :
"25. In view of the aforesaid position of law settled by the Apex Court, I can not accept the contentions that the power of recruitment for the post of PSI must vest with the Public Service Commission. So far as Article 320(1) is concerned, in my view, it can not be read in isolation as sought to be canvassed on behalf of petitioners. The duties assigned under Sub-Article (1) of Article 320 can be read only if such provisions are made under Sub-Article (3). In any event, no right can be said to have been conferred on the petitioners if such examinations are not held by GPSC since it was not assigned with such functions as per regulations. Whether the PSC can allow the regulations for inclusion and/or exclusion of its powers for conducting of examination for services of the State or not, in my view, is not a question which is required to be decided at this stage since the GPSC has not approached this court and therefore the said question is kept open."W.P.(C) No. 10185 of 2024 and batch Page 72 of 85
20.12. Way back on 08.01.2014 , the Patna High Court in the case of Harvansh Kumar vs State of Bihar ( CWJC no. 19001 of 2013) , had upheld the GATE examination as a method of selection of Assistant Electrical Engineer and Assistant Engineer ( Civil ) by the Bihar State Power Holding Company and dismissed the writ petition. In the employment notice , in mode of selection it had been mentioned that 80% had been reserved for GATE score and 10% each for interview and relevant work experience .The Court did not accept the contention that this created a class within a class or violated Article 14 and 16 of the Constitution . ANALYSIS / DISCUSSION AMENDMENT TO RULE 7
21. A State PSC has a duty to conduct examination for appointment to the services under the State. But this duty is subject to the Rules framed by the State under Article - 309 of the Constitution of India W.P.(C) No. 10185 of 2024 and batch Page 73 of 85
22. What is mandatory under Article 320 of the Constitution, is that the State Public Service Commission must be consulted in the matter in the manner enumerated under Article 320 ( 3 )( a ) and ( b) of the Constitution.. By no means , it can be interpreted that the State is under obligation to frame Rules under Article - 309 for recruitment to posts in such a manner that the PSC has always to be given the duty to hold a written examination . Recruitment / selection can also be only on the basis of interview .
23. While deciding WP( C ) No.15738 of 2022 and batch ( supra) where the 2021 amendment to the 2012 Rules and the consequent advertisement ( Advertisement No. 20 of 2022-23) had been challenged , after hearing the counsels and examining the records, this Court found that the advice / opinion of the OPSC had not been placed correctly before the Cabinet and a wrong statement has been made before it that the OPSC has given its concurrence to the proposed amendments, Rule 4 of the Amendment Rules which amends Rule 7 (3) and 7 (4) of the OES Rule 2012 prescribing the W.P.(C) No. 10185 of 2024 and batch Page 74 of 85 highest valid GATE scores of the preceding three years to be the basis of selection and struck down the impugned amendment .
24. But in case of the 2023 amendment , we find that the OPSC has been consulted and has agreed to the proposed amendment . We are therefore satisfied that Article 320 (3) of the Constitution has been followed and the OPSC has been consulted in accordance with Article 320 of the Constitution before the 2023 Amendment Rules were notified .
25. As mentioned, the Amendment Rules 2021 and the consequent advertisement had been quashed by this Court in batch of writ applications on specific grounds of absence of effective consultation with the OPSC for substituting GATE scores as the means of selection in place of written examination and interview . suppression of the advice of the OPSC before the Cabinet and not providing enough time to the candidates to appear in GATE thrice . An additional reason for quashing the advertisement was that published consequent to the Amendment Rules of 2021 was that the W.P.(C) No. 10185 of 2024 and batch Page 75 of 85 candidates who had not appeared in the GATE examinations in the last three years would be at a disadvantage as compared to candidates who had appeared in the GATE examinations .
26. The candidates who had applied pursuant to the earlier impugned advertisement and were aggrieved by the judgment dated 01.05.2023 of this Court in WP ( C ) No. 15378 of 2022 and batch had challenged the same before the Supreme Court but the same was dismissed as infructuous in view of the publication of the 2023 Amendment Rules. The 2023 Amendment Rules have been published to amend Rule 7 of the OES Rules 2012 and substitute the method of written examination with GATE examination and interview , after consulting the OPSC and obtaining its consent .
27. It is the choice of the employer as to the eligibility criteria and the procedure it will adopt to recruit its employees . Unless the procedure adopted , violates the provisions in the Constitution of India or violates the recruitment rules or is otherwise arbitrary or W.P.(C) No. 10185 of 2024 and batch Page 76 of 85 discriminatory , the process of selection should not be interfered with.
28. The contention that GATE cannot substitute the earlier method of written examination had earlier been raised in WP( C) No. 15738 of 2022 and batch ( supra ), but not decided . The writ petitioners therein had not challenged the judgment on this ground before the Supreme Court . But since this contention has been raised again in these batch of writ applications , we have thought it fit to deal with the contention so as to bring a quietus to the contention.
"GATE" refers to the "Graduate Aptitude Test in Engineering,"
which is a nationwide examination .It acts as a standardized assessment to determine the suitability of engineers for appointment to various technical positions in Public Sector Units (PSUs) across India, essentially government-owned companies; candidates with high GATE scores are typically prioritized for recruitment based on their performance in the exam. Some also hold interviews , as is the case here were 10% marks have been allotted to interview . In our view there is nothing illegal or arbitrary in utilizing valid scores as a W.P.(C) No. 10185 of 2024 and batch Page 77 of 85 method of selection especially when the GATE is held by such reputed and qualified persons from IIsc Bangalore and a number IITs. Candidates can choose to take the GATE examination in their specific engineering discipline. The examination tests the knowledge of students who have passed Engineering courses . As the examination has been found to be reliable, the score obtained in GATE is used for recruitment to some PSUs and "Group A" services of State and Centre. The contention that the examination is meant only for admission to post graduate courses and for obtaining finance is misconceived and rejected .
ADVERTISEMENT
29. The amendment to rule 7 of 2012 Rules as well as the advertisement dated 18.03.2023 had been quashed by judgment dated 01.05.2023 by this Court in WP( C) No. 15378 of 2023 and batch .One of the grounds for quashing the advertisement No 20 of 2022-23 published on 18.03.2023 after amendment of the OES Rules by the 2021 amendment was that it was indicated in the advertisement that the highest score of the last three years would be W.P.(C) No. 10185 of 2024 and batch Page 78 of 85 taken , but enough notice / time had not been provided to candidates to appear in the GATE Examinations thrice before publication of the Advertisement , so as to provide them all of them , a level playing field .
30. In advertisement No 20 of 2022-23 published on 18.03.2023 , under Method of Selection, it has been provided as follows :
" The Commission after receipt of the applications shall take steps to select the candidates on the basis of the highest of the valid GATE score of preceding 03 years of the date of advertisement (including the year of advertisement.( emphasis supplied )
31. In the advertisement No. 19 of 2023-24 , which has been impugned in these writ applications , under method of selection ,it has been provided as follows :
" i. ) The Commission after receipt of all the applications shall take steps to select the candidates on the basis of valid Graduate Aptitude Test in Engineering (GATE) score and interview.
ii ) The merit list shall be prepared on the basis of aggregate marks secured in valid Graduate Aptitude Test in Engineering W.P.(C) No. 10185 of 2024 and batch Page 79 of 85 (GATE) score carrying 90% weightage and interview carrying 10% weightage. '....
32. It is not disputed that the GATE score remains valid for three years . So a candidate may appear every year in the examinations to obtain a valid GATE score or improve his / her score. That is an option available to the candidate . As long as his/ her GATE Score is valid , it can be considered for the purpose of selection . So advertisement No 19 of 2023/24 published on 28.12.2023 cannot be set aside on the ground that it stipulates that selection shall be on the basis of a valid GATE Score .
33. We are therefore inclined to interfere with the advertisement only to the extent of extending the last date of application for the reason that the 2023 Amendment Rules were published on 28.09.2023 and the Advertisement No. 19 of 2023/24 was published exactly three months later i.e , on 28.12.2023. Therefore hardly any time has been provided to an otherwise eligible candidate who had not appeared for GATE earlier , to apply for and appear in the W.P.(C) No. 10185 of 2024 and batch Page 80 of 85 GATE test and obtain his / her score , so as to apply for selection before the last date . It is true that the last date of application has been extended by subsequent corrigendum but these do not provide the necessary opportunity to a candidate who had not appeared in the GATE examinations within the last three years , to apply for appearing in GATE after the 2023 amendment on 28.09.2023 of the 2012 Rules and appear in the GATE examinations , so as to become eligible to apply for selection / recruitment . We have decided to do so instead of quashing the advertisement keeping in mind ;- i) the submission on behalf of the State of Odisha that a number of posts are lying vacant for which developmental work has been affected on account of non recruitment of Assistant Executive Engineers ii) the submission that candidates who had a valid score and being eligible had applied for the posts; and iii) the candidates who have not appeared in GATE but have been waiting since long to apply for the posts and may become over age in case a new advertisement is published . We accordingly direct the OPSC to extend the last date of application , so that eligible candidates who have not appeared in the GATE examination in the last three years , get an W.P.(C) No. 10185 of 2024 and batch Page 81 of 85 opportunity to appear in the examination at least once , obtain their scores and submit their applications .
CONCLUSION
34. We reject the challenge to the vires of Rule 4 (i ) and Rule 4 ( ii ) of the Odisha Engineering Service ( Recruitment and Conditions of Service ) Amendment Rules 2023 , amending Rule 7 (3) and 7(4) of the Orissa Engineering Service ( Recruitment and Conditions of Service) Rules 2012, and uphold the 2023 Amendment Rules .
35. As regards the Advertisement No.19 of 2023 / 24 dated 28.12.2023 ,we find no merit in the submission of some of the counsel for the petitioners that the impugned advertisement should be quashed on the same ground as Advertisement No 20 of 2022-23 dated 18.03.2023 had been quashed in the earlier batch of writ petitions by this Court , that a level playing field has not been provided to the candidates who have not appeared in GATE for three years , as there is no W.P.(C) No. 10185 of 2024 and batch Page 82 of 85 stipulation in the advertisement that that the highest valid GATE Score for the last three years will be considered . 36 . After having held thus , in view of the facts and circumstances discussed above , we deem it just and equitable to direct that the last date - 12.01.2024 indicated in Advertisement No.19 of 2023 / 24 dated 28.12.2023 published by the OPSC for submission of examinations ( which has been extended subsequently ) shall be further extended by a suitable date so as to give an opportunity to the candidates who were otherwise eligible ( on account of their age and educational qualification ) as on the last date for applications as fixed by the State Government / OPSC , to appear in the GATE examination at least once and submit their applications alongwith their valid GATE score if any , The applications of candidates, but had earlier appeared in GATE examination ( and were otherwise eligible ( on account of their age and educational qualification ) as on the last date for applications as fixed by the State Government / OPSC shall also be considered . But the candidates who had W.P.(C) No. 10185 of 2024 and batch Page 83 of 85 not acquired the necessary educational qualifications or were under age by the last date earlier fixed by the State Government / OPSC will not be eligible to apply . This is to prevent prejudice to the candidates who were otherwise eligible ( due to their educational qualifications and age ) on the last date fixed by the State Government / OPSC . The applicants who were eligible as per the terms of the advertisement and had applied pursuant to such advertisement and whose applications have been processed in compliance of the interim order dated 17.03.2024 passed in WP ( C) No. 42059 of 2023 and batch, need not apply again .
37. All the writ applications are allowed to the extent indicated above.
38. We agree with the view expressed by the learned Single Judge in the interim order 17.03.2024 passed in W.A. No. 948 of 2024 and batch that the candidates should have been given one chance to appear in the GATE examination . The Writ Appeal is disposed of confirming the order of the learned Single Judge in WP( C) No. 586 of 2024 and batch W.P.(C) No. 10185 of 2024 and batch Page 84 of 85 passed on 17.03.2024 to the extent indicated above . The writ petitions may be listed before the assigned Bench for disposal.
39. It goes without saying that the observations / direction of the Supreme Court while disposing of SLP (C ) No. 23396 of 2013 should be kept in mind and the applications of candidates who had applied earlier in response to the previous advertisement should not be rejected on the ground that they became overage when Advertisement No 19 of 2023-24 was published .
40. There shall be no order as to costs.
................
(Savitri Ratho, J) Judge Chief Justice I agree. .
Signature Not Verified ............................Digitally Signed Signed by: SUKANTA KUMAR BEHERA ( Chakradhari Sharan Singh ) Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 04-Feb-2025 17:58:22 Chief Justice Orissa High Court, Cuttack.
The 15th day of January , 2025.
S.K. Behera, Senior Stenographer.
W.P.(C) No. 10185 of 2024 and batch Page 85 of 85