Orissa High Court
Pradyumna Kumar Patra & Others vs State Of Odisha And Others on 1 May, 2023
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 15738 of 2022
An application under Articles 226 and 227 of the Constitution of India
--------------
Pradyumna Kumar Patra & Others ...... Petitioners
-versus-
State of Odisha and Others ...... Opposite Parties
For Petitioners : Mr. Ashok Mohanty, Senior
Advocate and Ms. Sujata Jena,
Advocate
For Opposite Parties : Mr. I. Mohanty,
Addl. Standing Counsel
(for Opp. Parties Nos. 1 and 2)
Mr. Bikash Jena, Advocate
(for Opp.Party No.3)
Mr. P.K. Mohanty, Senior
Advocate and Pranay Mohanty
Advocate ( for Opp. Party No.4)
....
W.P.(C) No. 10936 of 2023
Khitish Kumar Nayak
& Others ...... Petitioners
-versus-
State of Odisha and Others ...... Opposite Parties
For Petitioners : Mr. B. Routray, Senior Advocate
and Mr. S. Sekhar, Adv.
Digitally signed
SUKANTA by SUKANTA
KUMAR KUMAR
Date:
BEHERA
For Opposite Parties : Mr. I. Mohanty,
BEHERA 2023.05.01
18:54:05 +05'30'
Page 1 of 103
2
Addl. Standing Counsel
( For Opp. Parties No. 1 and 2 )
......
W.P. (C) No.10955 of 2023
Sai Sumiran Panda and Others ...... Petitioners
-versus -
State of Odisha and Others ...... Opposite parties
For Petitioners : Mr. Saurav Tibrewal Advocate .
For Opposite Parties : Mr. I. Mohanty,
Addl. Standing Counsel
( For Opp. Parties No. 1 and 2 )
......
W.P.(C) No. 9435 of 2023
Meerashree Suman and Others ...... Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others ...... Opposite Parties
......
W.P.(C) No. 9440 of 2023
Biswajit Sahoo and Others ...... Petitioners
Ms. Sujata Jena, Advocate
-versus-
W.P.(C) No. 15738 of 2022 Page 2 of 103
3
State of Odisha and Others ...... Opposite Parties
......
W.P.(C) No. 9443 of 2023
Nisprava Dash and Others ...... Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others ...... Opposite Parties
......
W.P.(C) No. 9445 of 2023
Sameer Ranjan Sahoo and Others ...... Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others ...... Opposite Parties
.......
W.P.(C) No. 9447 of 2023
Tarini Prasad Singh and Others ...... Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others ...... Opposite Parties
-------------------------------------------------------------------------
W.P.(C) No. 15738 of 2022 Page 3 of 103
4
CORAM:
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
01.05.2023
Savitri Ratho, J. The common grievance of the petitioners in all these
writ petitions is the substitution of the method of selection
contained in Rule 7 of the Odisha Engineering Service
(Method of Recruitment and Condition of Service) Rules,
2012 (in short "OES Rules 2012") by Rule 4 of Odisha
Engineering Service (Methods of Recruitment & Conditions
of Service) Amendment Rules, 2021 (in short "the
Amendment Rules 2021" .Vide this amendment , marks
awarded for career marking, written test and vive voce have
been substituted by the highest GATE Score obtained in the
last three years , preceding the advertisement.
So we have to decide whether the amendment of
Section 7 of the Odisha Engineering Service (Method of
Recruitment and Condition of Service) Rules, 2012 (in short
"OES Rules 2012" ) by Rule 4 of Odisha Engineering Service
(Methods of Recruitment & Conditions of Service)
Amendment Rules, 2021 (in short "the Amendment Rules
2021") by substituting the method of selection by the OPSC
on the basis of career marking , written test and vive voce by
the highest GATE Score obtained in the last three years
preceding the advertisement, is sustainable or is arbitrary,
discriminatory and ultra vires the 2012 rules and also whether
the Advertisement No 20 - 2022-23 dated 18.03.2023,
published by the Orissa Public Service Commission is liable
to be quashed.
PRAYERS IN THE WRIT PETITIONS
2. In W.P.(C) No.15378 of 2022, the following prayer
has been made.
"In the facts and circumstances of the case the
petitioners respectfully pray that the Hon'ble
Court may graciously be pleased to admit this
case, issue notice to the opp. parties to show
cause to as to why the "Odisha Engineering
Service (Methods of Recruitment & Conditions of
Service) Amendment Rules, 2021" shall not
declared as ultra virus to the constitution and if
the opp. parties fail to show cause or show
insufficient cause, the Hon'ble Court upon
hearing the parties may further be pleased to
allow this writ petition by striking down the
amendment and may be further pleased to pass
such other order/orders, direction/directions as
may be deemed expedient in the interest of justice
and for this act of kindness as the petitioners are
duty bound shall ever pray."
3. In W.P. (C) No.10936 of 2023, the following prayer
has been made :
....." (iii) Issue RULE NISI calling upon the
opposite parties more particularly Opp. party
Nos.1, 2 and 4 to show cause as to why the Rule
7 of the Odisha Engineering Service (Methods of
Recruitment and conditions of Service)
Amendment Rule, 2021 under Annexure:3 shall
not be declared ultra vires and the consequential
advertisement No.20 of 2022-23 under Annexure-
5 shall not be quashed.
(iv) If the opposite parties fail to show cause or
show insufficient cause, issue a writ in the nature
of certiorari by declaring Rule 7 of the Odisha
Engineering Service (Methods of Recruitment
and conditions of Service) Amendment Rule,
2021 under Annexure-3 ultra vires and the
consequential advertisement No.20 of 2022-23
issued by the Opposite Party No.4 under
Annexure:5 be quashed;
(v) Issue a writ in the nature of mandamus or any
other writ/writs direction / directions directing
the opposite parties to accept the applications of
the petitioners for the post of Assistant Executive
Engineer (Civil) pursuant to the advertisement
under Annexure-5 and their candidature be
considered in terms of Odisha Engineering
Service (Method of Recruitment and Condition of
Service) Rules, 2012 without insisting for GATE
within a reasonable time to be stipulated by this
Hon'ble Court."......
4. In W.P. (C) No.10955 of 2023, the following prayer
has been made:
" (i ) To show cause as to why the Rule 7( 3)
and 7(4) of the Odisha Engineering Service
(Methods of Recruitment and Conditions of
Service) Rules 2012 brought by 2021 amendment
(Annexure 3)shall not be declared ultra vires and
the consequential advertisement No. 20 of 2022
for recruitment to the post of Assistant Executive
Engineer (Civil) and Assistant Executive
Engineer( Mechanical) in Group A of the Odisha
Engineering Service shall not be quashed and if
they fail to show cause or show insufficient cause
then the writ be made absolute.
(ii) further be pleased to direct the Opp.Parties
to allow the petitioners and other similarly
situated persons to apply for the post
advertisement under Annexure 8 by issung a
fresh advertisement"....
5. In 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, prayer identical to the one
made in W.P.(C) No.15738 of 2022 has been made.
WRIT PETITIONS, COUNTER AFFIDAVITS And
REJOINDER AFFIDAVIT.
6. Although notice had been issued to the opposite
parties in W.P.(C) No.15738 of 2022, W.P.(C) No. 10936 of
2023 and W.P.(C) No.10955 of 2023. Counter affidavits have
been filed by the opposite parties No. 1and 2 and Opposite
Party No. 3 and rejoinder affidavit by the petitioners in
W.P.(C) No.15738 of 2022 only.
7. As the grievances in these three writ applications and
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.
No.(C) No.9447 of 2023, are more or less are same, all the
writ applications were heard together.
8. In W.P.(C) No.15738 of 2022, the petitioners who
claim to be qualified Engineers have challenged the
amendment made by the opposite parties in Rule 7 of the
Odisha Engineering Service (Methods of Recruitment &
Conditions of Service) Rules, 2012 vide notification dated
28.01.2021 by introducing the clause to select the candidates
for appointment as Assistant Executive Engineers on the basis
of highest GATE score of preceding three years from the date
of advertisement including the year of advertisement, on the
ground that it is not in accordance with the constitutional
provisions and is discriminatory in nature and liable to be
struck down.
A rejoinder affidavit has been filed by the petitioners
stating that Article 320 (3) of the Constitution of India
specifically provides that at the time of recruitment to the
Civil Post, the State shall consult the Public Service
Commission but the impugned notification amending the rule
has been made without considering the opinion of the OPSC
and this is apparent from the statement made by the opposite
party No.1 and 2 in paragraph-4 (vii) of their counter affidavit.
Vide letter dated 4.3.2016 (Annexure-B/1 to the counter
affidavit) suggestion had been given by the OPSC to make
amendment as per suggestion No.2 so as to get better
candidate to the post, but in complete disregard to the said
suggestion, Rule 7 has been amending confining it to the
GATE score which appears to be arbitrary and irrational. The
opp. parties have the power to prescribe the qualification of
the candidates for appointment but prescribing the GATE
score as the only basis for recruitment bypassing objective
written test and viva voce test and thereby depriving the more
meritorious candidates who have never appeared in GATE is
arbitrary and discriminatory. The plea of the State
Government in their counter affidavit that GATE scores have
been made the sole basis of recruitment by different
Companies has been refuted by filing the advertisements
published by (i) Bharat Heavy Electricals Ltd. (in short
"BHEL') in the year 2020 for recruitment of Engineers on the
basis of computer base examination and interview; and
(ii) Hindustan Aeronautics Ltd. (in short "HAL") on 9.2.2022
for appointment of Graduate Engineers on the basis of a test of
2 and 1/2 duration consisting of MCQ on General Awareness
and 100% MCQ in concerned discipline.
9. In W.P.(C) No.10936 of 2023 apart from prayer to
declare Rule 7 of the OES Rules 2012 ultra vires, prayer has
been made to quash the consequential advertisement No.20 of
2022-23 under Annexure-5 and to issue a direction to the
Opposite parties to accept the applications of the petitioners
for the post of Assistant Executive Engineer (Civil) pursuant
to the advertisement under Annexure-5 and their candidature
be considered in terms of Odisha Engineering Service
(Method of Recruitment and Condition of Service) Rules,
2012 without insisting for GATE within a reasonable time .
10. In W.P. (C) No.10955 of 2023, apart from prayer to
declare Rule 7(3) and 7(4) of the Odisha Engineering Service
(Methods of Recruitment and Conditions of Service) Rules
2012 brought by 2021 amendment (Annexure 3 ultra vires,
additional prayer has been made to quash the consequential
advertisement No. 20 of 2022 /2023 ( Annexure 8) issued by
the Opposite party No 4 OPSC for recruitment to the post of
Assistant Executive Engineer ( Civil) and Assistant Executive
Engineer (Mechanical) in Group A of the Odisha Engineering
Service and for a direction to the Opp. Parties to allow the
petitioners and other similarly situated persons to apply for
the post advertised under Annexure 8 by issuing a fresh
advertisement.
11. As stated earlier, identical averments and prayers have
been made in 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.
12. Opposite party No.3 -AICTE has filed a preliminary
counter affidavit in W.P.(C) No. 15738 of 2022 inter alia
stating that the averments in the writ petition do not pertain to
them and do not call for any reply from them and no relief has
been came from them for which the writ application is liable
to be dismissed against opposite party no.3 (AICTE).
13. Opposite parties No. 1 and 2 have filed a counter
affidavit inter alia stating that the opposite party is well
within its power under Article 309 of the Constitution of India
to prescribe the procedure for recruitment to Public Services
and posts in connection with the affairs of the State
Government and the decisions to amend the impugned Rules
has been taken after prolonged discussion with the expert
bodies and with the objective to bring more objectivity and
transparency to the recruitment process in order to get best
candidates for the post of Assistant Executive Engineer and
the deliberations/meetings held in this regard have been
described in paragraph-4 (i) of the counter affidavit . In order
to change the process of direct recruitment by amendment, the
steps which were decided to be taken in the meeting dated
12.07.2018 for filling up the vacancy in the AEE posts till
2018, have been mentioned. A revised plan in two stages-
Stage I-preliminary examination with MCQ and negative
marking ; and Stage II main examination with two papers
(descriptive type) had been suggested by the Opposite Party.
But to ensure timely completion and to ensure transparency, it
was decided to adopt the maximum of valid GATE scores for
the preceding three years in lieu of the main examination for
selection of posts of AEE. It was decided to amend Rule 7 of
the OES Rules 2012 alongwith restricting of the OES cadre. A
detailed syllabus for the Preliminary and Main examination
was prepared as per suggestion of the OPSC and the file was
processed for obtaining approval of the Government and for
vetting by the GA and PG Department and the Law
Department. After threadbare discussion with the Chief
secretary, it was decided to adpt the "GATE scpre" in lieu of
"written test" and "vive voce test" in the selection". The
OPSC had been intimated vide DoWR letter No 22175 dated
2.10.2019 about the decision of the Government to change the
method of selection and its views had been requested .Vide
letter No 7225 dated 11.11.2019, the OPSC sought for
clarification / justification for adopting GATE scores and
furnish orders of the GA&PG and Law department. It also
recommended the provision for conducting Vive voce test as it
is applicable to Group - A posts. (Annexure B/1) to the
counter affidavit. The clarification was issued to the OPSC
vide DoWR letter No 28746 dated 1.12.2019 (Annexure C/1)
and the grounds have been described in paragraph 4 (v) of the
counter affidavit. Vide letter No.1232 dated 19.02.2020,
OPSC concurred with the proposal of amendment except the
provision under para 4 which relates to the method of
recruitment of assistant engineers in the feeder cadre and gave
its suggestions for the method of a three stage selection-
preliminary Examination, Written Test and Vive Voce Test.
This suggestion was examined and discussed thoroughly in
the Department and was not accepted as the OPSC had earlier
pointed out in its letter No.1316 dated 04.03.2016 (Annexure
D/I) that the existing recruitment method was defective and
the problems faced by the Government during recruitment
would persist if the suggestion of the OPSC to conduct a three
tier test was accepted. The problems faced on account of the
prevailing examination method due to lack of transparency
could be avoided. The problem of delay in conducting
examination, cases challenging the process of recruitment and
selection (73 had been filed in respect of the recruitment in
2016) and necessity of giving conditional appointment vide
DoWR notification No 4694 dated 25.02.2016 (Annexure E/I)
could be avoided. The GA department opined that due care
and caution may be taken while obtaining Government orders
in those cases when recommendation of the Commission is
proposed to be overruled .With a view to ensure utmost
transparency in the process of selection and entry of talented
engineers to the OES cadre from a wider pool of resources in
a timely manner and to streamline the process, it was decided
to deviate from the advice of the OPSC as a policy decision to
that effect has already been taken by the Government and a
letter dated 17.02.2020 was issued to OPSC informing that
there was an inordinate delay on the part of OPSC to give its
views on the proposed amendment nut OPSC failed to give
any opinion in reply to this letter. After approval of the
Hon'ble Chief Minister, the draft cadre rules were placed
before the Cabinet and the Cabinet in its 21st meeting held on
09.12.2020 which has approved the draft Odisha Engineering
Service (Methods of Recruitment and Conditions of Service)
Amendment Rules, 2012. With the assent of his Excellency,
the Governor of Odisha, the Odisha Engineering Service
(Methods of Recruitment and Conditions of Service)
Amendment Rules, 2012, were published in Odisha Gazette
vide DoWR Notification No.2819 dtd. 28.01.2021. So it is
obvious that the impugned amendments have been introduced
after detailed deliberation with the objective to ensure that the
selection process is transparent, more efficient and ensure
more efficient candidates for the Post of Asst. Executive
Engineer (in short 'AEE').
14. As the grievances in these three writ applications and
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, are more or less are same, all the writ
applications were heard together and a common judgment is
passed without waiting for filing of separate counter affidavits
in all the writ petitions, as the last date of filing of applications
in the impugned Advertisement is fixed to 28.04.2023.
15. We have heard Mr. Ashok Mohanty, learned Senior
Counsel assisted by Ms. S. Jena, learned counsel appearing for
the petitioners, Mr. I. Mohanty, learned Additional Standing
Counsel appearing for the opposite parties No.1 and 2 in
W.P.(C) No.15738 of 2022, Mr. Budhadev Routray, learned
Senior Counsel assisted by Ms. S. Sekhar, learned counsel
appearing for the petitioners, Mr. I. Mohanty, learned
Additional Standing Counsel appearing for the opposite
parties No.1 and 2 in W.P.(C) No.10936 of 2023. Mr. S.
Tibrewal, learned counsel has appeared for the petitioners and
Mr. I. Mohanty, learned Additional Standing Counsel has
appeared for the opposite parties No.1 and 2 in W.P.(C)
No.10955 of 2023.
We have gone through the note of submissions filed
on behalf of the petitioners and the Opposite parties No. 1 and
2 the decisions relied upon by them in W.P.(C) No. 15738 of
2022.
RELEVENT ARTICLES OF THE CONSTITUTION
AND RULES OF BUSINESS
16. Article 309 and 320 are relevant for deciding theses
writ petitions and are reproduced below :
"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.
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 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.
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."
"323. Reports of Public Service Commissions
(1) It shall be the duty of the Union Commission to
present annually to the President a report as to the
work done by the Commission and on receipt of such
report the President shall cause a copy thereof together
with a memorandum explaining, as respects the cases, if
any, where the advice of the Commission was not
accepted, the reason for such non acceptance to be laid
before each House of Parliament
(2) It shall be the duty of a State Commission to present
annually to the Governor of the State a report as to the
work done by the Commission, and it shall be the duty
of a Joint Commission to present annually to the
Governor of each of the States the needs of which are
served by the Joint Commission a report as to the work
done by the Commission in relation to that State, and in
either case the Governor shall, on receipt of such
report, cause a copy thereof together with a
memorandum explaining, as respects the cases, if any,
where the advice of the Commission was not accepted,
the reasons for such non acceptance to be laid before
the Legislature of the State"
In the Rules of Business, Rule 4 A provides that all
matters in the Second Schedule shall ordinarily be considered
at a meeting of the Cabinet. Rule 4 A is extracted below
" 4-A. There shall be a Committee of the Council of
Ministers to be called the Cabinet which shall consist of
the Ministers. Except when the Council of Ministers
meets on any occasion, all matters referred to the
Second Schedule shall ordinarily be considered at a
meeting of the Cabinet :
Provided that a Minister of State or a Deputy Minister
may attend the meeting of the Cabinet when requested
to do so, either when a subject with which he is
concerned is under discussion or otherwise :
Provided further that a Minister of State-in-charge of a
department where there is no Minister-in-charge of that
department, shall attend the meeting of a Cabinet where
at a subject with which he is concerned is fixed or taken
up for consideration
Rule 8 is extracted below :
"8. (1) All cases referred to in the Second Schedule
shall be brought before Cabinet by the direction of
i. the Chief Minster , or
ii. the Minister-in-charge or the Minister of State in-
charge of the case with the consent of the Chief
Minister
2) Cases shall also be brought before the Cabinet by the
Chief Minister by the direction of the Governor under
clause (c) of Article 167 :
Provided that no case in regard to which the Finance
Department is required to be consulted under rule 10
shall, save in exceptional circumstances under the
direction of the Chief Minister, be discussed by the
Cabinet unless the Finance Minister has had
opportunity for its consideration.
*Provided further that the Chief Minister may
anticipate approval of the Cabinet in cases of
emergency, if the meeting of the Cabinet is likely to be
delayed. Such cases shall have to be placed before the
next meeting of the Cabinet as and when held"
In the Second Schedule to the Rules of Business, in Sl
No 13 (c), proposals for the making or amending of rules
regulating the recruitment and the conditions of service of persons
appointed to the public services and posts in connection with the
affairs of the State has been included
In the instructions regarding the Business of the Government
issued under Rule 14 of the Rules made under Article 166 of the
constitution of India., at Sl. No 14 xxxiii and Sl.21 ( 1) are the
following entries :
"14 ( 1 ) The following classes of cases shall be
submitted to the Chief Minister before the issue of orders
, namely :
.......
( xxxiii) All cases in which it is proposed to deviate from
the advice tendered by the State Public Service
Commission ."
..........
"21. (1) When it has been decided to bring a case
before the Cabinet, the department to which the case
belongs shall, unless the Chief Minister otherwise
directs, prepare a memorandum indicating with
sufficient precision the salient facts of the case and the
points for decision. Such memorandum and such other
papers as are necessary to enable the case to be
disposed of shall be circulated to the Chief Minister,
Minister, Minister of State-in-charge of a Department
and the Secretary to the Cabinet.
(2) A memorandum prepared by any department for
consideration of the Cabinet shall be drafted after due
examination and consultation with all departments
concerned including the Finance Department, wherever
necessary. The memorandum shall be submitted in draft
by the Secretary of the Department together with the
papers of the related cases for consideration of the
Minister-in-charge or the Minister of State-in-charge as
the case may be through the Chief Secretary and
thereafter for approval of the Chief Minister:
Provided that in special circumstances of the case, the
Minister or the Minister of State as the case may be may
call for the papers without such examination of the Chief
Secretary and place them before Chief Minister."
RELEVENT RULES
17. 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.
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
(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.
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 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.
Explanation--The Commission shall prepare a
common merit list taking into account all categories
along with separate merit list categorywise.
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.
Explanation- The Commission shall prepare a
common merit list taking into account all categories
along with separate merit list category wise."
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 legibility criteria laid
down in Rule 6.
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:
"(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".
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).
ADVERTISEMENT
18. Advertisement No 20 of 2022-23 dated 18.03.2023
has been published by the OPSC inviting applications for
recruitment to the 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."
This Advertisement has been challenged in WP ( C)
10366 of 2023 and WP( C) 109355 of 2023.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
19. Mr. A. Mohanty, learned Senior Counsel, assisted by
Ms. S. Jena, learned counsel for the petitioner has submitted
that the petitioners who are aspirants for the post of Asst.
Executive Engineers under the State Government , confine
their challenge to Rule 4 of the impugned Amendment Rules
2021 which amends Rule 7 ( 3 ) and Rule 7 ( 4 ) of the OES
Rules 2012 . On coming to learn about this amendment they
alongwith other aggrieved aspirants had approached the
Principal Secretary of Water Resources Department by filing a
representation dated 23.05.2022. But when this was not
considered , they filed the writ application. Notice had been
issued to the opposite parties and they have filed counter
affidavits and rejoinder affidavit has been filed by the
petitioners in reply to the counter affidavit of opposite parties
No.1 and 2. But before the matter could be finally adjudicated,
the Odisha Public Service Commission, Cuttack (in short
"OPSC") has published advertisement No. 20 of 20022-23
for recruitment to the post of Assistant Executive Engineer
(Civil) and Assistant Executive Engineer (Mechanical) in
Group-A of the Orissa Engineering Service under the Water
Resources Department on 18.03.2023 prescribing GATE
Scores to be the basis of selection and 28.04.2023 has been
indicated to be the last date of application.
Challenging the substitution of the method of
Selection through GATE scores, Mr. Mohanty, learned Senior
Counsel has submitted that the syllabus of GATE is designed
for higher study and entry into the higher education institution
and has nothing to do with selection of engineers for services.
Candidates who have never applied for GATE will be
deprived of applying for the posts as generally as after
completion of the engineering course, candidates prepare for
appointment under the State Government and most of them do
not prepare or appear in the GATE Examinations. Fresh
engineering graduates opt for appearing in the GATE
Examination for the purpose of higher education and for
joining the public sector undertakings, while many
engineering graduates join Private Companies and prepare for
Government service by appearing in the examination held by
the OPSC. GATE is an examination for admission into the
master programme and doctorate programme and recruitment
of some public sector undertaking and it is not required for the
engineers who will serve the State Govt. The amendment has
completed changed the examination / selection method
depriving the aspiring engineers who have not appeared in the
GATE examinations from applying for post under the Odisha
Government which is violative of Article 14 and 21 of the
Constitution of India and therefore liable to be set aside . He
has also submitted that Article 320 (3) of the Constitution of
India specifically provides that at the time of recruitment to
the Civil Post, the State shall consult the Public Service
Commission but the impugned notification amending the rule
has been made without considering the opinion of the OPSC
as the OPSC had specifically questioned the substitution of the
method of selection by written test and vive voce by GATE
score .This is apparent from the statement made by the
opposite party No.1 and 2 in paragraph-4 (vii) of their counter
affidavit . Vide letter dated 4.3.2016 (Annexure-B/1 to the
counter affidavit) suggestion had been given by the OPSC to
make amendment as per suggestion No.2 so as to get better
candidate to the post, but in complete disregard to the said
suggestion, Rule 7 has been amending confining it to the
GATE score which appears to be arbitrary and irrational. He
has submitted that that no doubt the opposite parties have the
power to prescribe the qualification of the candidates for
appointment but prescribing the GATE score as the only basis
for recruitment bypassing objective written test and viva voce
test and thereby depriving the more meritorious candidates
who have never appeared in GATE is arbitrary and
discriminatory. GATE scores have not been made the sole
basis of recruitment by all PSU s and like companies as
"BHEL' and HAL are still recruiting Engineers on the basis
of computer based examination and interview and 2 and 1/2
duration test consisting of MCQ on General Awareness and
100% MCQ in concerned discipline.
20. Mr. B. Routray, learned Senior Counsel has submitted
that the introduction of evaluation by considering the highest
on the valid GATE score of preceding three years from the
date of advertisement is illegal and arbitrary as it has given the
procedure of objective type, written test and viva voce test a
go by . He has submitted that the very purpose of GATE
examination is for seeking examination and Financial
Assistance to Master Degrees and Doctoral programmes and
the same is used by different PUSs for getting their candidate
shortlisted but introduction of such qualification for getting a
job in Group A service of the State is arbitrary and irrational.
On account of the impugned amendment, the petitioners will
not get any opportunity to be considered for the post as they
have not passed the GATE examination and the said
amendment will discriminate between the candidates who
have valid GATE score and those who have not appeared in
the GATE and this requirement is violative of Article 14 of
the Constitution of India as it has no nexus with the object of
selecting the best candidate for the post of Assistant Engineer.
His further contention is that this amendment has been enacted
with the objective of giving preference to a particular class of
persons thereby depriving the petitioner and other candidates
from consideration and is therefore discriminatory and fails
the test of reasonableness, for which it should be struck down.
This amendment has no rationale with the object of selection
of candidates for recruitment for the post of Asst. Executive
Engineer as meritorious student having brilliant academic
career will be kept out of the zone of consideration by
confining the selection only to the group of person who have
appeared in the GATE Examination and therefore,
discriminatory and is hit by Article 14 of the Constitution of
India by creating a class within a class. Rule 7(3) and 7(4) are
therefore liable to be declared ultra virus and struck down. He
has also contended that the amended Rule also suffers from
colourable exercise of power under delegated legislation. He
has also contended that under Article 320(3) of the
Constitution of India, the State is required to consult the State
Public Commission in the matter of method of recruitment to
Civil Services and for all Civil Post. In this case the OPSC had
given its opinion not to proceed with the amendment which
relates to requirement of appearing in GATE Examination, but
the opinion has been ignored and has not been brought to the
notice of the Cabinet before going ahead with the amendment.
The OPSC in its letter dated 04.03.2016 has recommended a
two stage written examination along with viva vice to ensure
meritocracy of candidates in the dual field of theory and
practical knowledge and there was no recommendation to
conduct examination on the basis of GATE. In its letter No
1232 dated 19.02.2020 addressed to the Special Secretary to
Government Water Resources Department ( Annexure 8 to the
writ application ) , the OPSC has specifically objected to the
amendment of rule 7 of the OES Rules 2012. The
recommendations of the OPSC are mandatory in nature as
regards to amendment to recruitment rules but the Water
Resources Department has chosen to ignore its
recommendation which vitiates the amendment. There should
be one uniform selection procedure so far as appointments of
Assistant Executive Engineers in different departments of the
State is concerned, and other Departments (PanchayatiRaj and
Drinking Water and Agriculture Department ) have not given
GATE score as the sole criteria but the department of Water
Resource has given a go bye to maintaining the uniformity by
introducing GATE as the sole eligibility criteria for being
appointed as Assistant Executive Engineers. The copies of the
advertisement have been annexed as Annexure-9 Series to the
writ petition. He has ultimately submitted that assuming for a
moment that the impugned amendment is not interfered with ,
even then the advertisement is liable to be quashed as being
premature and for not providing a level playing field to
candidates who have not appeared for the GATE
examinations as the time gap between the coming into force of
the Amendment Rules 2021 and the impugned Advertisement
only provides candidates the opportunity to appear in two
GATE examination for a particular years starts in the previous
year and the examination itself is held in February of that
year.
21. Mr. A. Mohanty, learned Senior counsel and Mr. B.
Routray, learned Senior Counsel have relied on the decisions
of the High Court of Patna in the case of Ram Monohar
Pandey & Others Vs. State of Bihar & Others : CWJ Case
No. 8760 of 2019 decided on 05.08.2019, 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 . They have
also stated that this decision had been challenged before the
Supreme Court in SLP (Civil) Diary No. 30880 of 2019
(Smita Kumari & Others Vs. Ram Mohan Panday), but the
Supreme Court vide order dated 22.11.2019, dismissed the
special leave petition and the application for impleadment.
They have also relied on the decision of the High Court of
Kerala in the case of Aishwarya Mohan vs. Union of India
and Others (W.P.(C) No. 30638 of 2021 decided on
06.06.2022) : 2022 SCC Online Kerala 3090 and in the case
of Asha Kaul & Others Vs. State of Jammu and Kashmir &
Others reported in (1993) 2 SCC 573 (para-6). In the case of
Duddilla Srinivasa Sharma & Others Vs. V. Chrysolite
reported in (2013) 16 SCC 702.
SUBMISSSIONS ON BEHALF OF THE OPPOSITE
PARTIES:
22. Mr. I. Mohanty, learned Additional Standing Counsel
has submitted that :
i) The State government is competent to promulgate the
2021 amendment rules under Article 309 of the Constitution of
India. Relying on the decision of the Supreme Court in
Maharastra Public Service Commission v. Sandip Sriram
Warade and others (2019) 6 SCC 362 he has submitted that
the essential qualification for appointment to a post are for
employer to decide and the employer is best suited to decide
the requirements a candidate must possess according to the
needs of the employer and the nature of the work. He also
relies on the decision of Madhya Pradeash High Court in the
case of Vikas Malik v. Union of India and others reported in
(2019) ILR MP 558 where it has been held that the
prescription of minimum qualifications and the mode of
appointment in the sphere of public employment is within the
domain of the appointing authority and the Courts and
tribunals can neither prescribe the qualifications nor entrench
upon the power provided the same are reasonable.
ii) The amended Rule 7(3) is not arbitrary and has not
deprived the petitioners from applying to the post of Asst.
Executive Engineer. The minimum qualification for appearing
in GATE examination is "A candidate who is currently
studying in the 3rd or higher years of any undergraduate
degree program OR has already completed any government
approved degree program in in Engineering / Technology /
Architecture / Science / Commerce / Arts" and the minimum
eligibility for applying to the post of AEE as per Rule 6 of the
2012 Rules is Degree in Engineering or equivalent
qualification from any University. As the minimum
qualification for applying to the post of AEE and the
minimum qualification for appearing in the GATE
examination is identical, the petitioners who are Degree
Engineers are eligible to appear in GATE examination and the
change of the method of selection has not excluded any of the
petitioners from participating in the recruitment process. The
selection examination which was being conducted by OPSC
would now be conducted by the Indian Institute of
Technology (in short "IIT"). There is no bar for appearing in
GATE examination for number of times. So, a candidate who
has appeared in GATE examination about 4 years ago can
again appear in the examination to be considered for the post
of AEE. The impugned amendment was published in the
Odisha Gazette on 28.01.2021 while the information brochure
for GATE 2022 was published on 01.08.2021 and the last date
of application was 24.08.2021 and the examination was
scheduled on various dates in February, 2022. Similarly, the
last date for application for GATE-2023 was 30.8.2022 and
the examination was scheduled on various dates in February,
2023. The last recruitment to the post of AEE was held in the
year 2019 vide advertisement dated 29.6.2019 under the old
un-amended Rules. After about more than two years, the
advertisement dated 18.3.2023 has been published and in the
meantime, the GATE examination has been conducted two
times as the petitioners had two opportunities to appear in the
GATE examination and thereafter to apply to the post of
AEE. As the petitioners have chosen not to appear in GATE
examination, their contention that they have been deprived for
applying for the post is liable to be rejected. The petitioners
have approached this Court by filing the writ petition in June,
2022 which is more than one and half years after the
impugned rules came into force and the rules had not been
stayed by this Court. There was no reason for the petitioners
not to appear in GATE examinations which were conducted in
February, 2022 and February, 2023. He has placed reliance on
a) the judgment dated 18.10.2022 of the Madras High Court in
the case of W.P. (C) Nos.11026 and 9491 of 2022
(Elambarathy S v. NLC India Limited and others) where
selection on the basis of GATE score was upheld ,
b) the decision of the Supreme Court in the case of Mohd
Rashid v. The Director, Local Bodies, New Secretariat and
others (Civil Appeal No.136 of 2020) delivered on
15.01.2020 where the challenge to method of recruitment was
dismissed by the Court.
c) He has also submitted that the decision in the case of Ram
Manohar Pandey (supra) is not applicable to the present case
and is clearly distinguishable as in that case the amendment
with regard to the eligibility and educational qualifications for
recruitment to the post of Lecturers in Polytechnic Colleges
and Engineering Colleges were under challenge. The Rules
had been amended to remove the written test and had replaced
it with the GATE score which would be given weightage of
30 marks as the AICTE has framed the minimum qualification
for appointment of teachers to technical institutions. The High
Court held that since the GATE examination is not made an
eligibility condition, the State cannot make it a basis of
evaluation of work knowledge and teaching skill and allot
some weightage marks to it. In the present case, the State
Government has completely replaced the previous model of
written and viva voce test and replaced it with one single
criteria which is the score in GATE examination. Therefore, it
does not create any separate class is not arbitrary or
discriminatory.
iii) Article 320 (3) of the Constitution of India has not
been violated while promulgating the Amendment Rules 2021
as the decision to amend the impugned rules was taken after
thorough and prolonged discussions with the State Public
Service Commission and with the objective to bring to more
objectivity and transparency in order to get best candidates for
the position of Assistant Executive Engineer. On 11.11.2019,
the OPSC had requested for certain clarifications inter alia the
advantages for switching on to GATE as the method of
selection to which the opposite party had duly replied to the
said letter dated 12.12.2019 wherein several advantages for
switching to GATE was indicated. In response to letter dated
17.02.2020 of the Department of Water Resources, the OPSC
in its reply dated 19.2.2020 had concurred with all the
amendments except the method of selection to be GATE
examination. This view was deliberated upon by the
Departments and a committee under the Chairmanship of
Chief Secretary was constituted. Thereafter after obtaining the
views of the GA & PG Department and the Law Department,
the matter was sent to the Hon'ble Chief Minister who
approved it. After the approval of the Chief Minister, the
proposal for amendment of 2012 Rules were placed before the
Cabinet in its 21st meeting held on 09.12.2022 wherein the
Cabinet approved the draft amendment rules and the Rules
received the assent by the Hon'ble Governor of Odisha and
the rules were published in the Odisha Gazette vide DoWR
Notification No.2819 dated 28.01.2021. As the State
Government has duly consulted with the OPSC on the said
matter before taking a decision to amend the rules and the
process of consultation with the Public Service Commission
not always mandatory as per the decision of the Constitution
Bench of the Supreme Court in the case of State of U.P. v.
Manbodhan Lal Srivastava reported in 1958 SCR 533.
CITATIONS / CASE LAW
23. In Ram Monohar Pandey (supra), where the
amendment introducing the qualification of GATE for
recruitment to the post of Lecturers in Polytechnic Colleges
and Engineering Colleges was challenged, the Patna High
Court has held as follows :
...."There is absolutely no issues on rearrangement
of weightage marks amongst the different categories,
the problem which arises by virtue of this amendment
is, that in the process of amending the scheme of
evaluation on work knowledge and teaching skill, the
State has done away with the scheme of written test
and in so far as the candidates seeking appointment
in the Engineering/ Technology Branch is concerned,
they are now to be assessed on the basis of percentile
obtained by them in the GATE examination subject to
a maximum of 30 marks.
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 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
required to pass such examination and yet the
substituted rule deprives them of such
consideration."...
In the case of Aishwarya Mohan (supra) , the Kerala
High Court has held as follows :
... "10. No doubt, the precedents cited by the learned
Solicitor General lays down the position that, fixing
the eligibility of a particular post is within the
domain of the employer and cannot be the subject
matter of judicial review, unless found to be
arbitrary, unreasonable or having no rational nexus
to the objective sought to be achieved. The essential
difference between the facts involved in the cited
precedents and the case at hand is that, here the
challenge is not against qualification or eligibility,
but focused on the selection process. The challenge is
mainly on the ground that, incorporation of the
restrictive selection criteria is nothing but indirect
discrimination."...
....
......."16. The above discussion leads me to the only
conclusion t.hat Ext.P3 notification insofar as it
confines the selection process to only candidates who
had participated in the CLAT-2021 PG programme,
violates Article 16 of the Constitution of India.
Having held so, rather than upsetting the whole
selection process, I deem it more appropriate to
direct the second respondent to accept the petitioner's
application and conduct a selection test or interview
for testing her eligibility for appointment to the
notified post. Further action with respect to the
appointment shall be taken depending on the outcome
of such selection test/interview. The above direction
shall be given effect to within one month of receipt of
a copy of this judgment. The writ petition is disposed
of accordingly. " ...
The case of Asha Kaul (supra) pertained to approval
and publication of the select list of District Munsifs prepared by
the Jammu and Kashmir Public Service Commission . 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
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."
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 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."....
". 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 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."
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' 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
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."
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)]..."
In the case of Mohd Rashid v. The Director, Local
Bodies, New Secretariat and others (Civil Appeal No.136
of 2020) delivered on 15.01.2020, the recruitment rules had
been amended on 7th June, 2013 and the advertisement was
issued on 12th September, 2013. The Supreme Court interlalia
held :
..."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
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, 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."
In the case of State of U.P. v. Manbodhan Lal
Srivastava reported in 1958 SCR 533, where 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 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 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
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 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.
24. As we wanted to verify if the views of the OPSC had
been placed before the Chief Minister and the cabinet before
the Amendment Rules 2021 were sent to the Governor for his
signature, we had directed the learned Additional Standing
Counsel to produce the original file for our perusal. File No
FE - II - AEE (C) - 10/2019 of the WR Department has been
produced by him and we have perused the same carefully.
At page 46 of the Note sheet, noting No 103 to 108
are available .Noting No 105 to 108 are extracted below :
"Noting No 105
This was discussed with Chief Secretary.
This is regarding amendment of Cadre Rule
(Methods of Recruitment and Conditions of Service)
Rules, 2019 for Odisha Engineering Service.
2. The cadre restricting of IES took place following
Cabinet decision of Jan 2019.
3. In order to implement the restructuring of OES Cadre it
was required to finalize the new Cadre Rule.
4. The draft cadre rule, inter-alia provided for the
selection of candidates to the service on the basis of
"highest of the valid GATE score of preceding three
years of the date of advertisement (including the year
of advertisement)" in lieu of objective written test and
viva-voce test for selection of candidates by OPSC in the
feeder grade of OES.
5. This had been suggested since GATE system of
examination is a national level standardized and
recognized engineering entrance examination not only for
selection of students in PG program in seven IITs, NITs,
IITs & IISC but also selection of employees in high level
public sector jobs; in Group-A level posts in Central
Government i.e. Senior Field Officer (Tele), Senior
Research Officer (Crypto) and Senior Research Officer (S
& T) in Cabinet Secretariat Government of India. Several
public sector undertakings (PSUs) like BHEL, GAIL,
HAL, IOCL, NTPC, NPCIL, ONGC & PGCI have used
GATE score to short list the candidates for employment.
6. Government approval was taken to the draft Odisha
Engineering Service (Methods of Recruitment and
Conditions of Service) Rules, 2019 duly vetted by the
General Administration Department (32206/WR/2019 GA
View'Page1) and Law Department (32204/WR/2019 Law
View'Page 1)
7. The matter was then referred to the Odisha Public
Service Commission (OPSC) for their concurrence. The
OPSC has concurred all the above amendments except
Para-4, relating to selection process of direct recruitment
of Assistant Executive Engineer (AEE) and the
Commission has not agreed to the proposed
recruitment system through GATE score.
8. Views of GAD of Law Department were sought
again. GA & PG Deparment views that "In this respect, it
may be indicated that the recommendation of the
Commission is not obligatory to be accepted unless there
is sufficient justification of non-acceptance of their
advice/suggestions/ recommendations...." and Law
Department has opined that ".... this Department has
noting further to say in the matter except for reiterating
the same since it is basically of policy decision, the A/D, if
so advised, may seek kind orders of the Hon'ble Chief
Minister under Instruction 1(14)(1) (xxx(iii)) of
Instructions issued under Government Rules of Business
in case it proposes to deviate from the advice tendered by
the OPSC"
8. In view of the above opinion of GA & PG Deptt. and
Law Deptt. and with a view to ensuring utmost
transparency in the process of selection; ensuring entry of
talented engineers to the OES from a wider pool of
resources, timely completion of the process of selection
and to streamline the process, we may deviate from the
advice of the OPSC as a policy decision to that effect has
already been taken by the Government.
9. Kind approval of the Hon'ble Chief Minister is
solicited to place the matter, the draft rules, before the
Cabinet for their approval.
Smt. Anu Garg (Principal Secretary,Water Resources),
07-Nov-2020 12:48:06.
Noting 106
As Proposed.
Asit Kumar Tripathy (Chief Secretary, Office of Chief
Secretary), 09-Nov-2020 15:40:37
Noting 107
ସଦୟ ଆନୁ େମାଦନ ନିେମେ
Shri Raghunandan Das (Minister of State
(Independent), Water Resources), 12-Nov-2020 11:30:07
Noting 108
ଅନୁ େମାଦନ କରାଗଲା
Shri Naveen Patnaik (Chief Minister, Office of
Chief Minister) 20-Nov-2020 13:13:00"
At Page 50 and 51 of the Note sheet, Noting No 112
to 120 are available . They are extracted below :
"Noting No 112
PUC at (6092 Cabinet Approval Page1) may please be
seen.
This is regarding approval of the cabinet to the proposed
amendment to the Odisha Engineering Service Cadre
(Methods of Recruitment and Conditions of Service) Rules,
2012.
The draft Odisha Engineering Service (Methods of
Recruitment and Conditions of Service) Amendment Rules,
2020 has been framed and sent to the GA & PG Deptt. for
vetting. The vetting of GA & PG Deptt. is at (32206/WR/2019
GA View'Page1) Simultaneously Law Deptt. vide at
(32204/WR/2019 GA View'Page1) has given their approval.
Then the draft rule was sent to Government for approval.
After obtaining Government approval at (32207/WR/2019
Governemnt Approval'Page1), the Draft Amendment Rule
was sent to OPSC for concurrence. The OPSC submitted its
views / concurrence at (20392/WR/2020 opsc reply with
clarification'Page1) Accordingly the corrected Draft of
Odisha Engineering Service (Methods of Recruitment and
Conditions of Service) Amendment Rules, 2020 was placed
before the Hon'ble Chief Minister, Odisha for kind approval
for placing the same before the Cabinet. The approval of
Hon'ble Chief Minister for placing the same before the
Cabinet is at Noting 108 (Notings : 108).
The Parliamentary Affairs Department vide their Letter
No.6092 dtd. 09.12.2020 at (6092 Cabinet Approval'Page1)
has intimated that, the Cabinet in its 21st meeting held on
09.12.2020 has approved the draft Odisha Engineering
Service (Methods of Recruitment and Conditions of Service)
Amendment Rules, 2012.
Now, if approved, the draft Odisha Engineering Service
(Methods of Recruitment and Conditions of
Service) Amendment Rules, 2012 may be placed before the
Hon'ble Chief Minister, Odisha for obtaining the kind
approval of his Excellency Governor of Odisha.
Submitted for kind orders.
Enclosures
Draft 6092 Date 18-Dec-2020 16:50:19 has been added
Dipak Kumar Baral (Section Officer, Water
Resources), 18-Dec-2020 20:18:54
Noting 113
Notes above.
This is regarding approval of the cabinet to the
proposed amendment to the Odisha Engineering Service
Cadre (Methods of Recruitment and Conditions of
Service) Rules, 2012 (6092 Cabinet Approval;Page1).
The draft Odisha Engineering Service (Methods of
Recruitment and Conditions of Service) Amendment
Rules, 2020 has been framed and sent to the GA & PG
Deptt. for vetting. The vetting of GA & PG Deptt. is at
(32206/WR/2019 GA View'Page1) Simultaneously Law
Deptt. vide at (32204/WR/2019 GA View'Page1) has
given their approval. Then the draft rule was sent to
Government for approval. After obtaining Government
approval at (32207/WR/2019 Government
Approval'Page1), the Draft Amendment Rule was sent to
OPSC for concurrence. The OPSC submitted its
views/concurrence at (20392/WR/2020 opsc reply with
clarification'Page1) Accordingly the corrected Draft of
Odisha Engineering Service (Methods of Recruitment
and Conditions of Service) Amendment Rules, 2020 was
placed before the Hon'ble Chief Minister, Odisha for
kind approval for placing the same before the Cabinet.
The approval of Hon'ble Chief Minister for placing the
same before the Cabinet is at Noting 108 (Notings : 108).
The Parliamentary Affairs Department vide their Letter
No.6092 dtd. 09.12.2020 at (6092 Cabinet
Approval'Page1) has intimated that, the Cabinet in its
21st meeting held on 09.12.2020 has approved the draft
Odisha Engineering Service (Methods of Recruitment
and Conditions of Service) Amendment Rules, 2012.
Now, if approved, the draft Odisha Engineering Service
(Methods of Recruitment and Conditions of Service)
Amendment Rules, 2012 may be placed before the
Hon'ble Chief Minister, Odisha for obtaining the kind
approval of his Excellency Governor of Odisha.
Submitted for kind orders.
Dhaneswar Panda (Under Secretary, Water
Resources), 30-Dec-2020 17:02:27.
Noting 114
Notes above.
This is regarding approval of the cabinet to the
proposed amendment to the Odisha Engineering Service
Cadre (Methods of Recruitment and Conditions of
Service) Rules, 2012 (6092 Cabinet Approval;Page1).
The draft Odisha Engineering Service (Methods of
Recruitment and Conditions of Service) Amendment
Rules, 2020 has been framed and sent to the GA & PG
Deptt. for vetting. The vetting of GA & PG Deptt. is at
(32206/WR/2019 GA View'Page1) Simultaneously Law
Deptt. vide at (32204/WR/2019 GA View'Page1) has
given their approval. Then the draft rule was sent to
Government for approval. After obtaining Government
approval at (32207/WR/2019 Government
Approval'Page1), the Draft Amendment Rule was sent to
OPSC for concurrence. The OPSC submitted its
views/concurrence at (20392/WR/2020 opsc reply with
clarification'Page1) Accordingly the corrected Draft of
Odisha Engineering Service (Methods of Recruitment
and Conditions of Service) Amendment Rules, 2020 was
placed before the Hon'ble Chief Minister, Odisha for
kind approval for placing the same before the Cabinet.
The approval of Hon'ble Chief Minister for placing the
same before the Cabinet is at Noting 108 (Notings : 108).
The Parliamentary Affairs Department vide their
Letter No.6092 dtd. 09.12.2020 at (6092 Cabinet
Approval'Page1) has intimated that, the Cabinet in its
21st meeting held on 09.12.2020 has approved the draft
Odisha Engineering Service (Methods of Recruitment
and Conditions of Service) Amendment Rules, 2012.
The draft Odisha Engineering Service (Methods of
Recruitment and Conditions of Service) Amendment
Rules, 2012 may be placed before the Hon'ble Chief
Minister, Odisha for obtaining the kind approval of his
Excellency Governor of Odisha.
Submitted.
Prabhat Kumar Bhoi (Additional Secretary, Water
Resources), 30-Dec-2020 18:10:40.
Noting 115
As Proposed
Smt. Anu Garg (Principal Secretary, Water Resources), 31-
Dec-2020 16:06:09
Noting 116
Submitted for kind approval.
Shri Raghunandan Das (Minister of State (Independent),
Water Resources), 31-Dec-2020 17:32:28.
Noting 117
ଅନୁ େମାଦନ କରାଗଲା
Shri Naveen Patnaik (Chief Minister, Office of Chief
Minister) 04-Jan-2021 16:51:22"
Noting 118
Smt. Anu Garg (Principal Secretary, Water Resources), 05-
Jan-2021 10:03:17
Noting 119
Prabhat Kumar Bhoi (Additional Secretary, Water
Resources), 05-Jan-2021 10:12:26.
Noting 120
Dhaneswar Panda (Under Secretary,Water Resources), 05-
Jan-2021 12:45:41."
The Draft Memorandum for the Cabinet is at page 364
to 367 of the file. After the proposed amendment, it has been
stated at paragraphs 4.0 to 8.0 as follows
"4.0...The proposal has been concurred in by G.A. &
P.G Department on 29th September 2020 in OSWAS
File No. PTI-WR-FE-II-Policy-0002-2019 and by
Law Department vide their UOR No.5131/PSL dtd
25th September 2020 in File No. FE-II-AEE(C)-
10/2019.
5.0 The Odisha Public Service Commission has
given their concurrence to the proposal vide their
Letter No. 1232/PSC, dtd 19.02.2020.
6.0 The synopsis in respect of the above proposal has
been given in the appendix to the Memorandum as
Annexure-A.
7.0 The Financial Memorandum is annexed as
Annexure-B as laid down in P.A. Department
Circular No. CAB-3/2013-2047/PAD dtd.
11.04.2013.
8.0 The approval of Hon'ble Chief Minister has been
obtained on 20th November 2020 in OSWAS File No.
. PTI-WR-FE-II-Policy-0002-2019 to place this
memorandum before the Cabinet.
The memorandum for amendment to Odisha
Engineering Service (Methods of Recruitment and
Conditions of Service) Rules, 2012 is placed before
the cabinet for its kind approval.
Sd/-
Name: Anu Garg
Designation: Principal Secretary to Govt.
Department of Water Resources."
Annexure A at page 363 which is the synopsis and
Annexure B at page 362 the Financial Memorandum are
extracted below:
"Annexure A
SYNOPSIS
File No. FE-II-AEE(C) - 10/2019/WR/22561 Dt-27/11/2020
Subject:- AMENDMENT TO ODISHA ENGINEERING
SERVICE (METHODS OF RECRUITMENT AND
CONDITIONS OF SERVICE RULES2012)
Sl. Gist of decision Backgrounds Benefits/Execut Remarks
No. required ed outcome
1. Amendments to the As per the decisions The
Odisha Engineering taken in the 70th To streamline the amendments
Service (Methods of meeting of the Odisha to the Odisha
Recruitment and Cabinet held on 26th Engineering Engineering
Conditions of Service ) February 2019 to Service Cadre by Service
Rules, 2012 - to abolish restructure the making it six tier (Methods of
the post of Deputy Odisha Engineering cadre to enhance Recruitment
Executive Engineer, Service Cadre. proficiency. and
merger of the posts of Conditions of
Superintending To address the issue To remove the Service)
Engineer, Level-A & of increasing asymmetry in the Rules, 2019 is
Superintending workload in various promotional hereby
Engineer, Level-II and engineering pyramid at the introduced.
to be re-designated as departments. interface between
Superintending AEE and DEE,
Engineer in the Pay To remove stagnation Superintending
Level-14 creation of the in promotion and Engineer, level -I
post of Additional Chief resultant erosion in & level-II.
Engineer in the pay productivity in the
level 16. cadre and. Better supervision
and control of field
To resolve the pay Divisions with
anomaly of this cadre higher
vis a vis other responsibility and
provincial premium administrative
cadres of the State power.
such as OMS, OAS
and OFS etc.
2 To increase the number As per the decisions To provide better
of posts of Assistant taken in the 70th promotional
Executive Engineer meeting of the avenue to the
(AEE) to be filled up by Cabinet held on 26th engineers of
way of promotion from February, 2019 to Odisha Diploma
the posts of Assistant provide better Engineering
Engineer (AE) in the promotional avenue Services and to
Odisha Diploma to the engineers of remove stagnation
Engineering Service Odisha Diploma
from 33% to 40% Engineering Services.
3 To amend the As per requirement in To streamline the
constitution of the accordance with promotion cases of
Departmental instruction of G.A. Engineering
Promotion Committees Department O.M. No. personnel
31897 dtd. 11.11.2013
4 To bring in meritorious The Odisha Public GATE, being a
engineering students to Service Commission standardized
the Odisha Engineering (OPSC) requested the examination on
Service (OES) through Government to comprehensive
a fair and standard test review the selection understanding of
procedure within process of direct the candidates in
minimum time frame, recruitment to the various
the score in Graduate post of Assistant undergraduate
Aptitude Test in Executive Engineers subject in
Engineering (GATE) is during March, 2016 Engineering /
being considered to with a suggestion that Technology will
replace the present the system of selection provide a pool of
process of selection of to be based more on meritorious
Engineering Graduates merit than students in a
to fill up the direct elimination. timely manner.
recruitment quota in
OES.
Sd/-
Name Anu Garg
Designation :Principal Secretary to
Govt. Department of Water Resources.
Annexure - "B"
Financial Memorandum
Yes No
1. Does the proposal involves revenue loss ? √
(Put a √ mark in the appropriate box)
2. In case the proposal involves revenue loss what is the estimated
quantum of loss ?
(Indicate the amount in the
appropriate box) - Non-recurring Not Applicable
- Recurring
Not Applicable
(per annum)
3. Does the proposal involve a additional budgetary
expenditure ? Yes No
(Put a √ mark in the appropriate box) √
4. In case the proposal involves additional budgetary expenditure
what is the estimated quantum ?
(Indicate the amount in the
Capital Not Applicable
appropriate box) - Non-Recurring
Revenue Not applicable
- Recurring
Not Applicable
(per annum)
5. Does the proposal envisage creation of new posts ? Yes No
(Put a √ mark in the appropriate box) √
If Yes, what is the estimated annual salary expenditure ? Not applicable
(indicate the amount in the appropriate box)
6. Does the proposal involve imposition of any new tax Yes No
or any change in the method of assessment or the pitch √
of any existing tax, land revenue or irrigation rates ?
(Put a √ mark in the appropriate box)
Not applicable
It Yes, what is the estimated annual revenue yield ?
(Indicate the amount in the appropriate box)
Sd/-
(Anu Garg)
Principal Secretary to Government. DoWR
From this it is crystal clear that the cabinet has not
been intimated about the objection / reservations of the OPSC
The decision of the Department to deviate from opinion of the
OPSC has not been specifically brought to the knowledge of
the cabinet. On the other hand at Paragraph 5.0 it has been
stated that "the Odisha Public Service Commission has given
their concurrence to the proposal vide their Letter No. 1232
/PSC dtd 19.0.2.2020' which is a palpably incorrect statement
as the OPSC has specifically stated in the letter that
" In inviting a reference to the letters on the subject
cited above , the draft notification ( Amendment Rules)
forwarded vide yr letter No 22175 dt 04.10.2019 is
hereby concurred except Para 4" ....
Thereafter the OPSC has specifically stated in the letter
that :
..."The Commission vide its letter No.1316 dt. 04-03-
2016 had recommended a two stage written
examination alongwith viva-voce test to ensure
meritocracy of candidates in the dual field of theory
and practical knowledge. There was no
recommendation to conduct the examination on the
basis of GATE. Notwithstanding above, the proposal
was extensively deliberated by the Commission and
the representative of the Deptt. on 31-01-2020. The
Commission is of the opinion that the syllabus or
GATE designed for entry to higher education
Institutions is not suitable for selection of officers to
the Group A category of the Govt. with the laid down
terms and conditions under Art. 311 of the
Constitution of India.
However, if the Deptt. of Water Resources
considers to ignore the recommendations of the
Commission which are mandatory in nature as
regards to amendment to the Recruitment Rules, the
Supreme Court has opined and directed that such
decisions of the executive are subject to judicial
review. In addition, the proposed draft notification
also needs to suppress amendments vide Notification
No.24848-FE-II-AEE(C) -83/2014/WR dt 31 Oct.
2014 and also examine Notification No.11194-WR-
FEII-POLICY-0001/2014/WR dt 19 May 2015 prior
to issue of suitable instructions.
But this letter No 1232 dated 19.02.2020 of the OPSC
has not been made an Annexure to the Draft Memorandum
put up before the cabinet. This letter has been annexed as
ANNEXURE 8 in W.P.(C) No. 10936 of 2023.
ANALYSIS
25. On a conspectus of the statutory provisions , the
advice of the OPSC , the manner in which the Department
has placed information before the Cabinet , we find that
A. There is no gainsaying the State Government is within its
power under Article 309 of the Constitution of India to
prescribe the procedure for recruitment to the post of
Assistant Executive Engineer and consequently amend the
OES Rules 2012 which have been framed for this purpose.
But the Rules so framed have to withstand the test of
arbitrariness and rationality besides being transparent on the
procedure. In this case the OPSC , which was consulted by the
Government in accordance with Article - 320 (3) of the
Constitution had expressed its reservation regarding the
advantage and purpose of the proposed amendment to Rule 7
of the OES 2012 Rules.
B. While amending the OES Rules 2012, the provisions of
Article 320 (3) of the Constitution and the Rules of Business
have been given a go by. It has not been brought to our notice
that the Government has framed any Rule under Proviso to
Article 320 ( 3) (e ) of the Constitution that it would not be
necessary to consult the OPSC in the matter of recruitment of
members of the Orissa Engineering Service. On the other
hand, it is the admitted case that the OPSC has been consulted
and it did not agree to the part of the proposed amendment
relating to Rule 7 i.e the method of selection of the Assistant
Executive Engineers on the basis of GATE scores. But this
consultation with OPSC has been made an empty formality
and short shrift has been made of its advice. Although the
OPSC has consistently expressed its reservation to
amendment of Section - 7 of the OES Rules 2012 by
substituting Rule 7 (2) and 7 (3) i.e. the method of selection
by replacing the marks awarded for career, written
examination and vive voce with GATE scores, and this had
been brought to the notice of the Law Department and GA &
PG Department and the Chief Minister, but it has not been
brought to the notice of the Cabinet. The view / advice of the
OPSC vide its letter dated 19.02.2020 with regard to the
proposed amendment of Rule 7 has not been placed before
Cabinet by making it an Annexure to the memorandum. The
Department has not even mentioned in the synopsis which
was placed before the Cabinet about its disagreement with the
proposed amendment to Rule 7 of OES Rules 2012. The
Cabinet has been completely kept in the dark about the advice
/ opinion of the OPSC and has in fact been misled as it has
been stated in paragraph 5.0 of the memorandum that the
OPSC has given its concurrence to such amendment. This is
also in contravention to the procedure laid down in the Rules
of Business and Instructions for carrying out the Rules of
Business which have been referred to earlier. This
contravention amounting to suppression has vitiated the
process of consultation adopted for carrying out the proposed
amendment of Rule 7. Rule 4 (i) and Rule 4 (ii) of the
Amendment Rules 2021 , amending Rule 7 (3) and 7 (4) of
the OES Rules 2012 is therefore illegal and the liable to be
struck down.
C. The averment in paragraph 4 (ix ) of the counter
affidavit of opposite parties No 1 and 2 that OPSC failed to
give any opinion in response to the Department Letter dated
17.02.2020 , is factually incorrect as in response to such letter,
, the OPSC vide its letter dated 19.02.2020 has replied not
agreeing to substitution of the method of written test and
interview with highest valid GATE scores for the preceding
three years .
D. From a perusal of the notesheet of the file as extracted
above, it is apparent that the advice / disagreement of the
OPSC to a part of the Amendment Rules 2021 has not been
brought to the notice of the cabinet . Serial No 21 of the
Instructions to Rules of Business specifies that unless the
Chief Minister otherwise directs the concerned Department
has to prepare a memorandum with sufficient precision
containing the salient facts and the points to be decided
instruction and this memorandum has to be drafted after
consulting all departments. In this case, the memorandum
appears to have been drafted after consulting the other
departments but unfortunately does not contain the salient
facts regarding advice of the OPSC and has suppressed the
advice of the OPSC so far as its disagreement with the
proposed amendment of Rule 7 of the OES Rules 2012 is
concerned. At paragraph 5.0 of the draft memorandum it has
been specifically stated that - "The Odisha Public Service
Commission has given their concurrence to the proposal vide
their Letter No. 1232/PSC, dtd 19.02.2020" which is a
palpably incorrect statement. It is shocking as to how such a
wrong memorandum could be prepared and put up for
consideration of the Cabinet.
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
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.
29. All the writ applications are allowed to the extent
indicated above. There shall be no order as to costs.
...............................
(Savitri Ratho, J)
S. Talapatra, J (Concurring)
30. While concurring with the well-reasoned opinion of
Hon'ble Ratho, J., it is felt necessary to emphasize on certain
aspects which are in-alienable to the controversy.
31. Rule-7 of the OES Rule, 2007 provided that when the
Government would decide to fill up the vacancies in the posts
of Assistant Executive Engineer by direct recruitment, the
Government will communicate the number of vacancies in the
posts along with reserved vacancies thereof proposed to be
filled up and the Commission (Odisha Public Service
Commission) on receipt of the requisition should invite
application in the manner chosen by it from the eligible
candidates. After receipt of the application, the candidates will
be selected in the manner provided under sub-Rule (3) of
Rule-7 of the OES Rule, 2012. The said Rule-7 has been
thoroughly amended by the OES (Methods of Recruitment and
Conditions of Service) Amendment Rules, 2021. The said sub-
rule (3) of Rule-7 has been substituted by the following clause:
"(3) The Commission after receipt of the application
shall take steps to select the candidates on the basis
of the highest of the varied GATE score of proceeding
of the date of the advertisement including the year of
the advertisement."
Sub-Rule (4) of Rule-7 of the OES Rules has been
amended by deleting "marks secured in Career Evaluation,
Objective type written and vivo-voce Test".
In that place, the words and expression valid GATE
score has been substituted. Consistent with the said amended
rules, the advertisement No.20 of 2022-23 issued by the
Odisha Public Service Commission carried the following
clause:
"5. METHOD OF SELECTION :
a) 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 three
years of the date of the advertisement (including the
year of advertisement)
b) The Commission, after verification of the original
certificate and documents, valid GATE score shall
select the names of the suitable candidates in order
of merit as per availability of the vacancies in
different categories and recommends for
appointment to the post of AEEs to the
Government."
32. Hon'ble Ratho, J. has elaborately dwelled upon the
fall out of the said change, but where I want to lay the emphasis
is whether by incorporating the above change, as reproduced,
the Constitutional role of the Public Service Commission has
been slighted or completely excluded. For this purpose, let us
revisit Article-320. The text of Article-320 has been reproduced
by Hon'ble Ratho, J.
33. In unequivocal terms, Article-320 has laid down the
functions of Public Service Commissions. The Public Service
Commission for the Union or for the States has a distinct status
under the Constitution apart from the Government of the Union
or of the State and cannot be identified with such Government.
34. The fundamental purpose of constituting the Public
Service Commission has been discerned in Article-320 of the
Constitution. The Public Service Commission is to conduct
examination to the services of the Union and the services of the
State. The Public Service Commission shall as well be
consulted on all matters relating to methods of recruitment to
civil services and for civil posts. In view of that provision, the
opposite parties No.1 & 2 had commenced the consultation in
respect of the OES Amendment Rules, 2021. But as it has been
revealed from the records, relevant part of which has been
extensively reproduced in the opinion of Hon'ble Ratho, J., that
in the draft minutes of the Cabinet, the opinion of the OPSC has
been wrongly reflected and on that basis, the amendment to the
Rule-7(3) & Rule-7(4) of the OES Rule have been adopted by
the Cabinet. As such, the said decision is totally uninformed and
contrary to the Constitutional process as provided by Article-
320(3) (a) of the Constitution.
35. The said amendment has been adopted in an arbitrary
manner. By such amendment, function of the Public Service
Commission has been reduced to that of a ministerial job. The
Odisha Public Service Commission had given their opinion by
not accepting the proposed amendment in toto.
36. In my considered opinion, the said amendment has
completely excluded the function of the Public Service
Commission as enshrined in Article-320 of the Constitution.
37. In this regard, it is pertinent to refer that proviso
below sub-Article- (3) (e) of Article-20 postulates that the
President as respect of public services and also as respects other
services and posts in connection with affairs of the Union, and
the Governor as respect of other services and forces in
connection with affairs of the States may make regulation
specifying the matters in which either generally, or any
particular class of case of or in any particular circumstances, it
shall not be necessary for a Public Service Commission to be
consulted.
38. Rule-7 of the OES Rule [un-amended part] still
provides that selection be made by the Public Service
Commission. But no role has been assigned to the Public
Service Commission by the amendment that has been implanted
by deleting the original sub-rule (3) and sub-rule (4) of Rule-7
of OES Rules. It is a complete exclusion of consultation with
the Public Service Commission.
39. This is a unique example of applying the power of
subordinate legislation against the Constitutional ethos. The
opposite parties No.1 & 2 were under obligation to give due
consideration to the opinion of the Public Service Commission
while adopting the amendment. As shown from the records that
the Cabinet was "misinformed" about the opinion of the Public
Service Commission and as such, there was no consultation in
the eye of law. Merely sending for opinion is not enough to
draw an inference that the consultation is done. Such inference
can only be drawn when the opinion of the Public Service
Commission is duly considered either by way of accepting or by
way of discarding with adequate reasons. Even the opposite
parties No.1 & 2 themselves have stated, as reproduced in the
opinion of Hon'ble Ratho, J., that any opinion of the Public
Service Commission should not be ignored or discarded
casually.
40. In the case in hand, there has been no consultation at
all. The consultation with the Public Service Commission in the
recruitment of the civil posts is made mandatory unless
exempted by the appropriate Rules framed under proviso to
Sub-Article 3(e) of Article-320 of the Constitution. No
exemption as regards the posts under reference has been
adopted by the opposite parties No.1 & 2.
41. The State Government, the opposite parties No.1 & 2,
has faulted in observing the Constitutional imperatives while
framing the impugned amendment Rules.
42. In Ram Manohar Pandey vs. State of Bihar (the
Judgment dated 05.08.2019 delivered in Civil Writ
Jurisdiction Case No.8760 of 2019, the Patna High Court was
examining vires of the amendment of Bihar Polytechnic
Education Service Rules, 2014 by which the requirement of
written test and evaluation in the teaching skill was deleted and
it was provided that by evaluation of the percentile secured by
the candidate in the Graduate Aptitude Test in Engineering
Examination (the GATE, in short) selection will be made. The
said amendment was challenged in a few writ petitions. While
deciding the controversy, the Patna High Court has observed
that though there is no apparent breach of Article-14 of the
Constitution but for introduction of the GATE selection method,
the candidates having higher qualification or experience will not
get due weightage during the viva-voce test. It has been
observed, thereafter, that there can be a preferential category
within a particular category but a scheme which deprives the
candidates from consideration against a particular attribute in its
entirety, suffers from vice of arbitrariness besides being
discriminatory and lacking reasonableness. In fact the change
that has been brought about has created a class within a class of
candidates. In so far as evaluation of the work knowledge is
concerned, the object is entirely missing.
43. It has been observed in Ram Manohar Pandey
(supra) as under:
"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."
We are also confronted with the similar circumstances.
Finally, the Patna High Court held the said amendment as
discriminatory and hence, the same was set-aside in its entirety.
44. In the said Judgment of the Patna High Court, some
additional features were considered for interference. Those are
not very material in the present context. But what the Patna
High Court has significantly observed is thus:
"Since we have struck down the amendment to Table-
II Appendix-I of the Rule" in its entirety, the
evaluation obviously is to be carried out as per the
scheme originally framed as present in Table-II of
Appendix-I which accompanies the Service Rules,
2014".
45. The Service Rules, 2014 as referred in the Patna High
Court judgment, is the un-amended rules. When the amendment
is struck down and the earlier rules are not interfered with, the
earlier rules swing back to its operation. I would further like to
put on records that the said decision of the Patna High Court
was challenged in Special Leave Petition (Civil) Diary No.(s)
30880/2019, but the said Special Leave Petition (SLP) was
dismissed by the apex court by their order dated 21.11.2019.
46. A responsible Executive cannot slight the status of a
Constitutional Institution like the Public Service Commission.
The State may frame the rules observing the procedure as
prescribed by the law, not in defiance thereof.
...............................
(S. Talapatra, J)
Orissa High Court, Cuttack.
The 01st day of May, 2023.
S.K. Behera, Senior Stenographer.
