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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 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. 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 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 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

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 .

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 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 .

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 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 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 .