Orissa High Court
Chittaranjan Gharei And Others vs State Of Odisha And Others .... Opposite ... on 15 January, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10185 of 2024, W.P.(C) No.42059 of 2023,
W.P.(C) No.596 of 2024, W.P. (C) No.8166 of 2024 & W.A. No.948 of
2024.
In W.P.(C) No.10185 of 2024
Chittaranjan Gharei and others .... Petitioners
Mr. Ashok Mohanty, Senior Advocate
Ms. Lopamudra Pradhan, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
Mr. Pranab Kumar Pasayat, Advocate (For Intervenor)
In W.P.(C) No. 42059 of 2023
Meerashree Suman and another .... Petitioners
Mr. Subir Palit, Senior Advocate
Mr. S.K. Dash, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. Bikash Jena, Advocate (For O.P. No.4-AICTE)
Page 1 of 85
Mr. Kali Prasanna Mishra, Senior Advocate (For Intervenor)
Mr. Swapna Kumar Ojha, Advocate (For Intervenor)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
Mr. Rajeet Roy, Advocate (For Intervenor)
Mr. Dayananda Mohapatra, Advocate (For Intervenor)
In W.P.(C) No.596 of 2024
Tarini Prasad Singh and another ... Petitioners
Mr. Budhadev Routray, Senior Advocate
Mr. S.D. Routray, Advocate
-versus-
State of Odisha and another ... Opposite Parties
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (For OPSC)
Mr. P.K. Rath, Senior Advocate (For Intervenor)
Mr. Swapna Kumar Ojha, Advocate (For Intervenor)
Mr. Rajeet Roy, Advocate (For Intervenor)
Mr. Dayananda Mohapatra, Advocate (For Intervenor)
In W.P.(C) No.8166 of 2024
Satyabrata Sahoo and others ... Petitioners
Mr. Budhadev Routray, Senior Advocate
Mr. S.D. Routray, Advocate
-versus-
State of Odisha and others ... Opposite Parties
W.P.(C) No. 10185 of 2024 and batch Page 2 of 85
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (for O.P.S.C.)
Mr. Sameer Kumar Das, Advocate (For Intervenor)
In W.A. No. 948 of 2024
Ankan Kumar Rout and others .... Appellants
Mr. Sridhar Rath, Advocate
-versus-
State of Odisha and others .... Respondents
Mr. M. K. Khuntia, Addl. Govt. Advocate (For State)
Mr. Arnav Behera, Advocate (for O.P.S.C.)
CORAM:
THE HON'BLE CHIEF JUSTICE
THE HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
15.01.2025
Savitri Ratho, J. The petitioners in W.P.(C) No. 10185 of 2024, W.P.(C) No.
42059 of 2023, W.P.(C) No. 596 of 2024, W.P.(C) No. 8166 of
2024 and W.A. No.948 of 2024 have a common grievance. They
have challenged the vires of Rule 4 of the Odisha Engineering
Service (Methods of Recruitment and conditions of Service )
Amendment Rule, 2023 ( in short "2023 Amendment Rules")
amending Rule 7( 3 ) and 7 ( 4 ) of the Odisha Engineering Service
(Methods of Recruitment and conditions of Service ) Rule, 2012
( in short "2012 OES Rules") and they have also prayed for
quashing of the consequential advertisement No. 19 of 2023/24
dated 28.12.2023 inviting application for recruitment to the posts of
Assistant Executive Engineers (Civil) and Assistant Executive
Engineer (Mechanical) in Group A of the Odisha Engineering
Service under the Water Resource Department, Works Department
and H & UD Department .
2. WA No. 948 of 2024 has been filed by appellants Ankan
Kumar Rout, Nruparaja Meher, Kousik Behera, Mihir Ranjan
Nayak and Sidhhant Nayak, arraying Tarini Prasad Singh and
Hemanta Kumar Mahanta as Respondents No. 4 and 5 and
challenging the common interim order dated 17.03.2024 passed by
a learned Single Judge of this Court in W.P. ( C ) No. 596 of 2024
, W.P.(C) No.1156 of 2024, W.P.(C)No.l231 of 2024, W.P.(C) No
1661 of 2024, W.P.(C) No 3767 of 2024 , W.P.(C) No 3805 of
2024, W.P.(C) No 3806 of 2024 , W.P.(C) No 3808 of 2024,
W.P.(C) No 3812 of 2024, W.P.(C) No 3813 of 2024, W.P.(C) No
3927 of 2024 , W.P.(C) No 5224 of 2024 , W.P.(C) No 5071 of
2024, W.P.(C) No 4334 of 2024 and W.P.(C) No 4365 of 2024 .
The operative portion of the order dated 17.03.2024 is extracted
below :
" 17. On a careful analysis of the factual matrix of the
present case, this Court is of the prima facie view that the
recruitment to the post of Assistant Executive Engineer (Civil
& Mechanical), being done for the first time on the basis of
the highest valid GATE score, all the desirous candidates
should have been given an equal and fair opportunity to apply
for such posts. And more importantly, they should have been
provided with a level playing field as has been observed by
the Hon'ble Division Bench in its common judgment dated
01.05.2022. Furthermore, this Court is also of the prima facie
view that before re-notifying the rule, the Opposite Parties
should have ensured that at least one opportunity should have
been given to the candidates to participate in one GATE
Examination as the previous rule was struck down and a new
rule was introduced by way of amendment in the year 2023.
Therefore, in view of the aforesaid analysis, this Court is of
the considered view that the matter requires further hearing.
Accordingly, the Opposite Parties are granted four weeks'
time to file their counter affidavit
To protect the Petitioners, who have approached this Court
by filing the present writ petitions, this Court deems it proper
to direct the Opposite Parties to proceed with the selection
process pursuant to the Advertisement No.19 of 2023/24
dated 28.12.2023 under Annexure-8. However, the final result
of such recruitment test shall not be published without leave
of this Court.
19. The I.As. are disposed of accordingly."
3. As the grievances in these writ applications are similar, they
were heard together alongwith Writ Appeal No 948 of 2024 which
relates to the same amendment rules and advertisement, without
waiting for filing of separate counter affidavits in all the writ
petitions or the Writ Appeal.
4. We have heard Mr. Ashok Mohanty, learned Senior Counsel ,
Mr. Budhadev Routray, learned Senior Counsel and Mr Subir Palit
learned Senior Counsel or the petitioners . We have also heard Mr
P.K Rath , learned Senior Counsel, Mr Sameer Kumar Das , Mr
Swapna Kumar Ojha, Mr Dayananda Mohapatra for the intervenors,
Mr M.K.Khuntia learned Additional Govt Advocate appearing for
the State of Odisha and Mr Arnav Behera and Mr P.K.Mohanty
learned counsel appearing on behalf of OPSC .We have also heard
Mr K.P. Mishra learned Senior Counsel and Mr S. Rath learned
counsel appearing on behalf of the appellant in WA No 948 of
2024.
We have also gone through the note of submissions filed on
behalf of the parties and the decisions relied upon by them.
BACKGROUND
5. The "Odisha Engineering Service (Methods of Recruitment
and Conditions of Service) Rules, 2012" (in short " the OES
Rules") was enacted by the State Government in 2012 by exercising
power under Article 309 of the Constitution of India to regulate the
recruitment and service conditions of the Assistant Executive
Engineers in the State . Rules 6 and 7 of the OES Rules are relevant
for deciding this writ application.
5.1 Rule 6 contains the eligibility criteria for direct recruitment
of AEEs and is extracted below:
"6. Eligibility Criteria for Direct Recruitment- In order to be
eligible for direct recruitment to the posts of Assistant
Executive Engineer in the service, a candidate must satisfy
the following conditions, namely :-
(a) Nationality : He must be a citizen of India
(b) Minimum Educational Qualification : He must have
possessed a Degree in Engineering or an equivalent
qualification from any University or Institution recognized by
the Government or he must be an Associated Member of the
Institution of Engineers of India.
(c) Age Limits : He must have attained the age of 21 years
and must not be above the age of 32 years on the 1st day of
January of the year of recruitment :
Provided that the upper age limit in respect of reserved
categories of candidates referred to in Rule 5 shall be
relaxed in accordance with the provisions of the Act, Rules,
Orders or Instructions, for the time being in force, for the
respective categories.
(d) Knowledge in Odia : He must be able to read, write and
speak Odia and have--
(i) passed Middle School Examination with Odia as a
Language subject ; or
(ii) passed Matriculation or equivalent Examination with
Odia as medium of examination in non-language subject ; or
(iii) passed in Odia as language subject in the final
examination of Class VII from a School or Educational
Institution recognized by the Government of Odisha or the
Central Government ; or
(iv) passed a test in Odia in Middle English School Standard
conducted by the School and Mass Education
Department/Board of Secondary Education, Odisha.
(e) Marital Status : A candidate if married must not have
more than one spouse living :
Provided that the State Government may, if satisfied
that such marriage is permissible under the personal law
applicable to such person or there are other grounds for
doing so, exempt any person from the operation of this rule.
(f) Physical Fitness : A candidate must be of good mental
condition and bodily health and free from any physical defect
likely to interfere with the discharge of his duties in the
service.
5.2 Rule 7 contains the method of selection . The original Rule 7
of the OES Rules 2012 is extracted below:
"7. Selection by the Commission --(1) When the Government
decides to fill up the vacancies in the post of Assistant Executive
Engineers by direct recruitment, Government will communicate
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.
6. This Rule was amended in the year 2014 .Vide Rule 2 of the
Amendment Rules , Rule 7 was amended and out of 100 marks ,
90% mark was meant for written test and 10% mark for vivo-voce.
The said amendment is extracted below :
...." 2. In the Odisha Engineering Service (Methods of Recruitment
& Conditions of Service) Rules, 2012, for sub-rules (3) and (4)
of rule 7, the following sub rule shall be substituted namely:-
"(3) The Commission on receipt of the requisition shall take
steps to select the candidates in the manner given below:-
(a) Selection shall be based on objective type written test and
viva voce test.
(b) Weightage on objective type written test shall be 90% (ninety
per cent).
( c) Weightage on the Viva Voce test shall be 10% (ten per cent).
"(4) The Commission shall prepare a list of selected candidates
arranged in order of merit equal to the number of advertised
vacancy on the basis of marks secured in objective type written
test and Viva Voce test.
Explanation- The Commission shall prepare a common merit
list taking into account all categories along with separate merit
list category wise."
7. On 28.01.2021 in exercise of power under Article 309 of the
Constitution of India, the Department of Water Resource issued a
notification containing the Odisha Engineering Service (Methods of
Recruitment & Conditions of Service) Amendment Rules, 2021 (in
short "Amendment Rules 2021"). Various provisions of the OES
Rules have been amended by the Amendment Rules 2021. But for
the purpose of the present writ petitions we are concerned with Rule
4 of the Amendment rules 2021 which has amended Sub Rule 3 and
Sub Rule 4 of Rule 7 by changing the method of selection and
making the GATE Score to be the only sole basis of selection of
candidates who fulfil the eligibility criteria laid down in Rule 6.
7.1 Rule 4 of the Amendment Rule 2021 is extracted below:
"4. In the said Rules, in rule 7",
(i) for sub-rule (3), the following sub-rule shall be
substituted, namely:
"(3) The commission after receipt of the application
shall take steps to select the candidates on the basis of
the highest of the valid GATE score of preceding 03
years of the date of advertisement (including the year
of advertisement).
(ii)In sub-rule (4) the words and expression.
"marks secured in Career Evaluation, Objective
type written test and Viva-voce test" the words and
expressions "valid GATE" score shall be substituted".
7.2 By Rule 4 of the Amendment Rules 2021, Rule 7 (3) and
Rule 7 (4) which provided for awarding marks for career evaluation,
objective type written test and viva voce test have been done away
with and GATE scores have been made the sole method of selection
by providing that the selection of candidates shall be made on the
basis of the highest of the valid GATE score of the preceding three
years from the date of advertisement (including the year of the
advertisement).
8. 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."
8.1 A batch of writ applications - W.P.(C) No.15738 of 2022,
W.P.(C) No.10936 of 2023, W.P.(C) No.10955 of 2023,
W.P.(C) No.9435 of 2023, W.P.(C) No.9440 of 2023, W.P.(C)
No.9443 of 2023, W.P.(C) No.9445 of 2023 and W.P.(C)
No.9447 of 2023 had been filed in this court challenging the
vires of Rule 4 of the 2021 Amendment Rules amending Rule 7
( 3 ) and Rule 7 (4 ) of the OES Rules 2012 and the
Advertisement No 20 of 2022-23 dated 18.03.2023 .
8.2 By a common judgment dated 01.05.2023 , the amendments
and the advertisement were quashed . The operative portion of the
judgment is extracted below :
" CONCLUSION
26. In view of the fact that the advice / opinion of the
OPSC has not been placed correctly before the Cabinet and a
wrong statement has been made before it that the OPSC has
given its concurrence to the proposed amendments, Rule 4 of
the Amendment Rules which amends Rule 3 and 4 of the OES
Rule 2012 is liable to be struck down. Consequently, the
impugned advertisement having prescribed the highest valid
GATE scores of the preceding three years to be the basis of
selection is also liable to be quashed.
27. An additional ground for quashing the impugned
advertisement is that candidates have not been provided
enough time / opportunity to appear in the GATE
Examinations thrice before publication of the Advertisement
dated 18.03.2023. The highest valid GATE Score for the
preceding three years (from the date of advertisement) has
been provided in the method of selection in the Advertisement ,
thereby depriving candidates who had not appeared for the
GATE Examination in the year 2021 (the process for which
admittedly began in 2020) before the publication of the
Amendment Rules 2021 , which were published on 28.01.2021
while the Advertisement has been published on 18.03.2023, of
a level playing field placing them at a disadvantageous
position as compared to candidates who were able to appear
in the GATE examinations thrice , before publication of the
impugned advertisement and thereby discriminating against
them .
28. Rule 4 (i ) and Rule 4 ( ii ) of the Orissa Engineering
Service ( Recruitment and Conditions of Service ) Amendment
Rules 2021 , amending Rule 7 (2) and 7(3) of the Orissa
Engineering Service ( Recruitment and Conditions of Service )
Rules OES Rules 2012 are hereby struck down and
consequently Advertisement No. 20 - 2022-23 dated
18.03.2023 published by the OPSC is quashed."
8.3` This common judgment dated 01.05.2023 passed in W.P.(C)
No.15738 of 2022 and batch was challenged in Special Leave to
Appeal (C) No(s). 23396 of 2023, filed by one Manas Ranjan
Sahoo and others who had applied in response to the advertisement
which had been quashed by the common judgment .
8.4 On 28.09.2023 , the Government of Odisha notified the
Odisha Engineering Service (Methods of Recruitment and
Conditions of Service ) Amendment Rules, 2023" to further amend
Odisha Engineering Service (Methods of Recruitment and
Conditions of Service) Rules, 2012 . Vide Rule 2 of the Amendment
Rules 2023 , Sub Rule 3 and Sub Rule 4 of Rule 7 of the 2012 Rules
were substituted , Rule 2 of the Amendment Rule 2023 is extracted
below :
" (i) for sub-rule(3), the following shall be substituted,
namely:--
"(3) (a) The Commission after receipt of all the applications
shall take steps to select the candidates on the basis of valid
Graduate Aptitude Test in Engineering (GATE) score and
interview.^
(b) The merit list shall be prepared on the basis of aggregate
marks secured in valid Graduate Aptitude Test in Engineering
(GATE) score carrying 90% weightage and interview carrying
10% weightage.
(c) In case of two or more candidates securing the same marks
in aggregate, the candidate securing higher marks in interview
will be assigned higher position over the others.
(d) In case of securing same marks in interview, final ranking
will be determined on the basis of age, i.e, the elder in age will
be given preference over others."
(ii) for sub-rule(4), the following shall be substituted, namely:
"(4) The Commission shall shortlist the candidates for
interview on the basis of valid Graduate Aptitude Test in
Engineering (GATE) score which shall be two times of the
vacancies advertised, category wise .
Provided that the candidates securing same marks at the cut-
off point of each category would be admitted for interview even
it exceeds two times of the vacancies advertised"
8.5 Advertisement No 19 of 2023 - 24 was published on
28.12.2023 inviting online applications for recruitment to the posts
of Asst. Executive Engineer ( Civil) and Asst. executive Engineer (
Mechanical ) in Group - "A" of Odisha Engineering Service under
the Water Resources Department . The last date of submission of
registered online application was indicated to be 12.02.2024 ,The
relevant portions of the advertisement pertaining to age , educational
qualification , method of selection and application fee are
extracted below :
" 3. AGE: A candidate must have attained the age of 21
(twenty one) years as on 01.01.2023 and must not be above the
age of 38 (thirty eight) years as on 01.01.2021 i:e he or she
must be born not earlier than 02.01.1983 and not later than
01.01.2002.
Age relaxation for candidates in different categories for
availing relaxation and reservation benefits will be as per
Government Rules prescribed for the purpose. The upper age
limit is relax-able by 5(five) years for candidates belonging to
the categories of Scheduled Castes (S.C.), Scheduled Tribes
(S.T.), Socially & Educationally Backward Class (S.E.B.C.),
Women, Ex-servicemen, and by 10 (ten) years for Persons With
Disabilities category, whose permanent disability is 40% and
more.
Persons with Disabilities belonging to the categories of
SC/ST/SEBC shall be entitled to cumulative age relaxation
benefit of 15 years.
Provided that the maximum age limit shall be relaxed to 45
years in respect of the candidates who have entered the
Diploma Engineers' Service as Junior Engineers whether
promoted to the post of Asst. Engineer or not within the
prescribed age limit without the qualification prescribed under
Clause (b) of Rule 6 and have subsequently acquired the same
while serving as such or have acquired such qualification prior
to entering the State Government Service as Junior Engineers
subject to availing of not more than 5 chances.
Provided that a candidate who comes under more than one
category mentioned above he/she will be eligible for only one
age relaxation benefit.
SAVE AS PROVIDED ABOVE THE AGE LIMITS
PRESCRIBED CAN IN NO CASE BE RELAXED.
Date of birth entered in the high school certificate or
equivalent certificate issued by the concerned board/council
will only be accepted by the Commission
4. EDUCATIONAL QUALIFICATION; A candidate must
have possessed a Degree in Engineering Civil for the post of
AEE (Civil) and Degree in Engineering in Mechanical for
the post of AEE (Mechanical) or an equivalent qualification
from any University or , Institution recognized by the
Government or he/she must be an Associated Member of the
Institution of Engineers of India in Civil / Mechanical.
5. METHOD OF SELECTION
i) The Commission after receipt of all the applications shall
take steps to select the candidates on the basis of valid
Graduate Aptitude Test in Engineering (GATE) score and
interview.
ii) The merit list shall be prepared on the basis of aggregate
marks secured in valid. 'Graduate Aptitude Test in Engineering
(GATE) score carrying 90% weightage and interview carrying
10% weightage. '
iii) In case of two or more candidates securing the same marks
in aggregate, the candidate securing higher marks in
interview will be assigned higher position over the others.
iv) In case of securing higher marks in interview, final ranking
will be determined on the basis of age, i.e, those elder in age
will be given preference over others. .
v) The Commission, shall short list the candidates for interview
on the basis of valid Graduate Aptitude Test in Engineering
(GATE) score which shall be two times of the vacancies
advertised, category wise:
Provided that the candidates securing same marks at the cut-
off point of each category would be admitted for interview even
it exceeds two times of the vacancies advertised.
NOTE :- (a) Candidates are to upload their "Certificate
showing valid GATE score" along with online application.
(b)Any details relating to this recruitment like cut-off scores,
individual scores, etc. shall only be declared on the website of
the Commission after publication of the final result and select
list.
6. APPLICATION FEE; The candidates are exempted for
payment of examination fees as per G.A Deptt. letter No.9897
/ Gen dated 11.04.2022."
8.6 The Special Leave to Appeal (C) No(s). 23396 of 2023 was
disposed of as infructuous on 24.11.2023.The order is extracted
below:
"1. In view of the stand taken by respondent Nos.1 and 2 in
their counter affidavit to the effect that after obtaining fresh
concurrence from Orissa Public Service Commission, the
Odisha Engineering Service (Methods of Recruitment and
Conditions of Service) Rules, 2012 have been amended and
notified on 26.09.2023, learned Senior Counsel for the
petitioners fairly states that the instant Special Leave Petition
has been rendered infructuous and the same may be disposed
of as such. He, however, submits, and rightly so, that the
petitioners who had applied pursuant to the previous
advertisement, may not be deprived consideration on being
overage. On this, learned counsel for the respondent - State
undertakes that the candidates who have applied earlier shall
not be disqualified on being overage.
2. In view of the above-stated statement made by learned
counsel for the respondent - State, no further directions are
required to be issued in the instant matter.
3. The Special Leave Petition is, accordingly, disposed of as
having become infructuous.
4. As a result, the pending interlocutory application also
stands disposed of."
8.7 A corrigendum dtd. 29.12.2023 was issued to the impugned
advertisement wherein it was stated that the recruitment to the
Assistant Executive Engineer post shall be subject to the final
outcome of WP (C) No. 42059 of 2023 pending before this Hon'ble
Court.
9. On 12.01.2024 a second corrigendum was issued by the OPSC
rescheduling the last date of application from 19.01.2024 to
19.02.2024.
9.1 On 19.01.2024 a third corrigendum was issued by the OP No.
2 which confined the GATE score of candidates to the subject of
Civil Engineering and Mechanical Engineering only.
9.2 Subsequently on 17.02.2024, another corrigendum was issued
which notified an additional 348 posts to that of the existing 580
posts and further extended the last date of application from
19.02.2024 to 26.02.2024.
SUBMISSIONS
PETITIONERS
10. Mr. A. Mohanty, learned Senior Counsel appearing for the
petitioners in WP( C ) 10185 of 2024 has submitted that the
petitioners who are aspirants for the post of Asst. Executive
Engineers under the State Government have prayed for quashing
Rule 7 of the impugned Amendment Rules 2023 and have prayed
for a direction for acceptance of their applications for appointment to
the post of Assistant Executive Engineer in terms of the 2012 Rules
without insisting on GATE . He further submits that :-
i) The decision that OPSC shall select candidates on the basis of
the valid GATE score carrying 90% weightage and interview
carrying 10% weightage for preparation of merit list is illegal
and arbitrary as the prevalent practice of objective type written
test and viva-voce test has been completely replaced by the
GATE .
ii) Rule 6 of the Rules prescribes eligibility criteria for
recruitment to the posts of Assistant Executive Engineer but the
amendment to Rule 7, excludes the candidates who are eligible
as per Rule 6 of the Rules which is illegal.
iii) The purpose of the GATE examination is to get admission
and financial assistance to Master's Degree and Doctorate
Program and the same is also used for getting shortlisted in
PSUs. So the GATE score cannot be used for recruitment of
Group A services in the State is arbitrary and irrational.
iv) The 2021 amendment to the 2012 rules introducing GATE
had been quashed by this Hon'ble High Court in judgment dtd.
01.05.2023 in WP (C) No. 15738 of 2022 and batch.
v) The impugned amendment has been brought into force and an
advertisement No. 19 of 2023-2024dtd. 28.12.2023 published
for recruitment to the post of Assistant Executive Engineer
(Civil) and Assistant Executive Engineer (Mechanical) in Group
A of Odisha Engineering Service under the Water Resource
Department with a vacancy of 580 posts without giving any
opportunity to aspiring candidates to apply .
vi) Written test and viva-voce prescribed earlier has been
substituted by GATE examination which is contrary to the
eligibility criteria fixed by the All India Council for Technical
Education(AICTE). The AICTE has a published a public notice
dated 20.11.2018 that no decision has been taken by the AICTE
to make GATE mandatory for applying for an examination. The
impugned amendment is thus contrary to the AICTE guidelines.
vii) Candidates who have cleared GATE a long time ago will
not be eligible to apply for the post as the Rule requires
candidates clearing GATE in the preceding three years of the
advertisement.
viii) In judgment dtd. 01.05.2023 in WP (C) No. 15738 of 2022
whereby the 2021 , letter No. 1232 dt. 19.02.2020 addressed by
OPSC to Special Secretary to Government in its Water
Resources Department, objecting to the amendment of Rule 7 of
the Rules in the Year 2021 was discussed. Change in view of
OPSC is colourable.
ix).The objective test for recruitment to find a suitable
candidate, cannot be done by adopting an examination which is
a measure of judging the standard for admission into higher
study.
x) The GATE examination puts a burden on the candidate as the
examination fee is Rs 1,800 and violates the Odisha
discontinuation of payment of application and examination fees
for recruitment to different posts and services in the State Govt.
Rules, 2022. Financially weaker sections have been put to
disadvantage.
xi) The impugned amendment Rules, 2023 brings in a
classification amongst the candidates even before the date of
advertisement of posts on the basis of eligible candidates that is
candidates having GATE and candidates not having GATE
without any rationale .
xii) State has power to make rules under Article 309 of the
Constitution but it has to withstand the test of arbitrariness and
rationality. The impugned amendment takes away the
transparent evaluation of candidates.
xiii) The impugned amendment gives preference to candidates
who have appeared in GATE depriving the other candidates
from consideration , which is discriminatory.
xiv) The impugned amendment to Rule 7(3) & 7(4) of the Rules
suffer from the colourable exercise of power under the delegated
legislation and non- application of mind.
xv) Under RTI Act , IIT Kanpur has informed the purpose of
giving GATE examination is for getting admission to a post
graduate program in Govt. funded institutions. Further, the
GATE score can be used for seeking admission, financial
assistance to master's program and direct doctoral courses in
Engineering / Technology or Architecture / Science/ Commerce/
Arts.
xvi) The selection method for the post of the Assistant
Executive Engineers, in different departments of the State is
different .
xvii) Qualifying in GATE is mandatory for pursuing higher
education but it cannot be mandated for recruitment of Assistant
Executive Engineer.
xviii) The mandate of GATE results in an incoherence in
reservation policies due to the differences in the reservation
policies of the State and Centre.
xix) The Rules has to be circulated before giving effect to it, but
the advertisement has been issued before circulating the
impugned Rules which is illegal and arbitrary.
xx) As per Article 320(1) of the Constitution, it is the duty of the
Public Service Commission to conduct examination for
appointments to the services of the Union and State. That GATE
is not being conducted as per the mandate of Article 320(1),
which is against the constitutional mandate.
xxi) The impugned amendment to Rule 7(3) and 7(4) of the
Rules is violative of Article 16 of the Constitution as it will
result in discrimination in the matters of the public employment.
xxii) An opportunity should have been given to the candidates
for appearing in the GATE exam prior to applying for the post
of the Assistant Executive Engineer.
11. Mr. B. Routray, learned Senior Counsel appearing on behalf
of the petitioners in WP( C) No. 8166 of 2024 and WP( C ) No.
596 of 2024 has submitted that :-
i) Rule 3 of Orissa Civil Service (Criteria for selection for
appointment including promotion) Rules, 2003 provides for the
purpose of initial appointment mandates the Commission to
prepare a list through competitive examination. Rule 5 of the
said Rules provides for overriding effect of the 2003 Rules over
other recruitment rules for the time being in force.So this
includes the provisions in the 2023 Amendment Rules
ii) The impugned amendment contravenes Rule 3 of the Orissa
Discontinuance of Payment of Application and Examination
fees for recruitment to different posts and services in the State
Govt. Rules, 2022, which provides that notwithstanding
anything contained in any recruitment rules, or order or
instructions regulating the method of recruitment in different
posts and services of State, no application fee will be charged
from any applicant for appearing in any examination conducted
by any recruitment agency. But for appearing GATE the
prescribed fee has to be paid which indirectly frustrates the
intent and purpose of the 2022 Rules .
iii) The issue involved in the case of Ram Manohar Pandey vs
State of Bihar are similar where written examination was
replaced with weightage of GATE score , which has been
accepted by this Court in its judgment dated 01.05.2023 .
iv) Even if it is accepted that GATE is a competitive
examination as per 2003 Rules and Article 320 (1) but it is not
conducted by OPSC or any constitutional or statutory body. In
the absence of any Rules to delegate the power of the
Commission to any other body other than OPSC, the GATE
examination cannot be construed to be a competitive
examination. And it is not in consonance with Article- 320 (1 )
of the Constitution or Rule 3 of Orissa Civil Service (Criteria
for selection for appointment including promotion) Rules, 2003.
v) OBC and EWS category are included in GATE which are not
recognized in the State of Odisha.
vi) Method of determining cut off marks / qualifying marks
varies from year to year in GATE while it is fixed category wise
in competitive examination .
vii) Adequate number of candidates having GATE score are not
available in open market for recruitment .
viii) There is violation of Rule 7(2) of the 2012 Rules as
applications have not been invited from candidates who are
eligible as per Rule 6 of the 2012 Rules.
ix) In the year 2019-2020, 15,367 candidates had applied for
the post of Assistant Executive Engineer in response to the
advertisement but candidates who have applied pursuant to the
advertisement dated 28.12.2023 are much less.
x) Under the RTI Act office of opposite party No1 has informed
that method of recruitment for Assistannt executive Engineer
has not been decided .
xi) OPSC in its letter dated 19.02.2020 addressed to opposite
party No.1 had earlier not found the syllabus of GATE to be
suitable for recruitment to Group A category services . This has
been discussed in paragraph 25 of judgment dated 01.05.2023
while declaring the 2021 Amendment Rules ultravires .
xii) No uniformity in recruitment rules to post of Assistant
Executive Engineers in different government departments .
xiii) Last recruitment was in the year 2019 . Last GATE
examination was in the year 2023 . The score in valid for three
years . So a candidate cannot be expected to appear every year
in GATE to have a valid score.
xiv ) Consultation with the OPSC was necessary as post of
Assistant Executive Engineer is a Group A Post and
consultation has not been exempted Odisha Public Service
Commission (Limitations of functions) Regulations, 1989.
xv) Brilliant candidates may be excluded as candidates with post
graduate degrees may not have appeared in GATE .
xvi) GATE is an aptitude test for prosecuting higher studies .
PSUs resort to recruitment basing on GATE scores due to
paucity of time.
12. Mr Subir Palit learned Senior Counsel appearing on behalf
of the petitioners in WP( C ) No. 42059 of 2023 has submitted that :-
i) As per Article - 320 (1 ) of the Constitution , it is duty of
the State Public Commissions to conduct examinations for
appointments to the services of State . But on account of the
impugned amendment , this duty has been abrogated and the
"duty" of the OPSC has changed to one of responsibility as
the examination will be conducted by another body. Initially
it had not agreed to giving weightage of 90% to GATE and
only 10% to Viva Voce but agreed subsequently which is
suspicious .
ii) The purpose of the written examination conducted by
OPSC and the GATE examination are different . While the
first is to select a suitable candidate with a B.Tech degree
having a certain level of aptitude for service , the object of a
valid score obtained in GATE can be used for seeking
admission and / or financial assistance to Master's program
and direct Doctoral programs in Engineering/ Technology/
Architecture/ Science/ Commerce/Arts. He submits that the
GATE has not been defined Orissa General Clauses Act/
Odisha Engineering Service (Method of Recruitment and
Conditions of Service) Rules, 2012] and has no statutory
flavor or sanction . It cannot be validated by the Rules and
that the candidates have a vested right to be tested by the
OPSC only .
iii) The amendment discriminates between students who have
appeared in GATE and who have not and hence violates
Article 14 and 16 of the Constitution .
iv) A writ will not lie against GATE as it is private non
statutory body and hence it may not be amenable to Article-
226 of the Constitution .
13. The learned Senior Counsel for the petitioners have placed
reliance on the case of Ram Monohar Pandey & Others Vs. State of
Bihar & Others : CWJ Case No. 8760 of 2019 decided on
05.08.2019 by the High Court of Patna where the amendment
introducing the qualification of GATE for recruitment to the post of
Lecturers in Polytechnic Colleges and Engineering Colleges has been
struck down and other decisions .
OPPOSITE PARTIES
THE STATE OF ODISHA
14. Mr M.K. Khuntia learned Additional Government Advocate
has submitted that Article 309 of the Constitution , the State has the
power to promulgate Rules for recruitment to the public posts in
State. The impugned amendment has been brought in after
consultation of the OPSC and its concurrence , with a view bring in
transparency and efficiency in the recruitment process and rule out un
due delay which has occurred in case of written examinations . He
has submitted that there has been no violation of the provisions of
Article 320 and 321 of the Constitution. .The Amendment brought in
2021 making the GATE score a mandate , was struck down by the
High Court by judgment dtd. 01.05.2023 in WP(C) No. 15738 of
2022 and batch on the ground that the OPSC has not given its
concurrence. SLP (C) No. 23396 of 2023 (Manas Ranjan Sahoo v.
State of Odisha) filed in the Supreme Court challenging the
judgment of WP (C) No. 15738 of 2022 (Pradyumna Kumar Patra
and Ors. v. State of Odisha) was disposed of on the ground that
the 2023 amendment has been brought in with concurrence of the
OPSC. It has been further stated that the OPSC is entrusted with the
responsibility of selection of candidates . The impugned amendment
has been taken in consonance with the judgment dated 01.05.2023
only after high level meeting under the chairmanship of Chief
Secretary, Govt. of Odisha on 07.06.2023 and a second meeting on
05.09.2023 by the Secretaries of different Engineering Departments.
The Scheme of selection as provided in the impugned Amendment
was placed before the cabinet, obtaining due concurrence of Law
Dept. and GA & PG Dept. and Hon'ble Chief Minister for approval,
it was approved after going through the requisite procedure. The
GATE examination is designed for selection of candidates into higher
education as well as for selection of employees in high-level public
sector jobs, in Group 'A' level posts in Central Govt. posts. A
candidate appearing in GATE can utilize the score for three years
and apply for the post for 3 years as the Validity of the GATE score
is 3 years. It has been further stated that the OPSC is entrusted with
the responsibility of selection of candidates . After publication of the
amendment , requisition was placed before the OPSC vide Dept.
Letter No.-35095 dtd. 15.12.2023 , and the impugned advertisement
was published inviting applications from eligible candidates for the
post of Assistant Executive Engineer s . More than 621 posts of
engineering at the base level in the Grade of Assistant Executive
Engineer are vacant severely affecting the developmental works of
the State and State sponsored projects, for which the State brought in
the two step selection process . It has been held in a catena of
judgments that the employer is the best suited to decide the
methodology of recruitment or criteria for selection .The Water
Resources Department being the nodal department in Engineering it
has the Right to devise its own recruitment method of selection. It is
not bound to adopt the uniform selection procedure as claimed by the
Petitioner. The eligibility criteria as provided in the Rule 6 of the
Rules is identical to that of the minimum qualification for appearing
in the GATE examination. Thus there is the minimum qualification
for the process of recruitment. GATE is only a screening test to select
meritorious candidates in transparent manner and the candidates can
avail the reservations available in State after obtaining a valid GATE
score. He has further submitted that in 1983 , the IIT Council had
decided that admission to Post Graduate Courses in the IITs should
be on the basis of performance in the GATE Examination. This
examination is now being used by many PSUs and Departments for
the recruitment to "Group A" services of State and Centre. The
GATE examination is being conducted by a statutory body on behalf
of Ministry of Education, so it cannot be said that it has no statutory
backing as all. GATE has been taken to be a method of recruitment
and not an eligibility criteria .So eligible aspirants for the post of
Assistant Executive Engineer have to qualify in GATE examination
with a valid GATE score Ministry of Education has not restricted
the use GATE score for higher studies. It is the discretion of the
Government (employer) to consider the form of examination for
recruitment and it can be any form of examination and may also be
confined to an interview. It is also not necessary that the examination
has to be conducted by the Government or the OPSC . In the present
case , after consultation with the OPSC , it was decided that the
GATE examination would be adopted as method of selection /
recruitment which the Government had the power to do under Article
- 309 of the Constitution ..As regards provision of fees , the State has
exempted the application fees which are utilised for expenditure
carried by OPSC for conducting examination, viva voce, scrutinizing
the documents . Zero fee has been charged for conducting the process
but State cannot bear the expenditure for GATE or NET
examination. GATE score card is given to all students, who get more
than SC and ST cut-off and this is considered to be a valid .GATE
score and this card is to be utilised in AEE recruitment and OPSC
recognizes SEBC reservation. . Reservation is provided for SEBC
candidates , but they must have a valid GATE score and score more
than SC/ST cut off. Reservation in the posts is also available for SC
and ST candidates . He has also submitted that it is the prerogative of
the Government to fix the last date / cut off date , which has been
filed to 26.02.204 by the Government .
He has placed reliance on the decision in the case of
Elambarathy S v. NLC India Ltd. and Ors., WP Nos. 11026 &
9491 of 2022, High Court of Madras, Judgement date- 18.10.2022 ,
and the Madhya Pradesh High Court (Indore Bench) in Vikas Malik
v. Union of India and Ors. ILR (2019) MP 558 , Lila Dhar vs
State of Rajasthan and Maharashtra Public Service Commission
v. Sandip Sriram Warade and others reported in (2019) 6 SCC 362,
He has also submitted that reliance placed by the writ petitioners on
the decision of Ram Manohar Pandey ( supra ) is misplaced as the
same is related to recruitment to the post of Lecturer for which
minimum educational qualifications had been prescribed by the
AICTE .
ODISHA PUBLIC SERVICE COMMISSION
15. Mr Arnav Behera learned counsel appearing on behalf of the
OPSC , refuting the claims of the petitioners has submitted that in
case of the 2021 amendment,, Proper consultation had not been
made with the OPSC and did not concur with the decision of making
GATE as the basis of selection for Assistant Executive Engineers.
Subsequently it was struck down by this Hon'ble Court in the WP
(C) No. 19738 of 2022 dated 01.05.2023. When the 2023 amendment
was proposed by the State, OPSC had initially agreed for GATE as a
selection criteria at 70% weightage and 30% weightage on the
interview vide Letter No. 6112/PSC dated 31.07.2023 of the OPSC,(
Annexure A/3) Thereafter as per the decision of Supreme Court in
the matter of Ashok Kumar Yadav v. State of Haryana and Anr.,
OPSC agreed with the proposal at 90% weightage on the GATE
Score and 10% weightage on the Interview vide its Letter No. 6829/
PSC, Date- 02.09.2023 of OPSC. The 2023 Amendment Rules have
been published thereafter .
Appellants in WA No. 948 of 2024
16. Learned counsel for the Appellants in WA No. 948 of 2024
has submitted that the appellants were the intervenors in WP(C )No.
42059 of 2023 in which the impugned interim order has been passed.
They have also stated that they and some other candidates had
challenged the judgment in WP( C) No. 15378 of 2022 and batch
before the Supreme Court and the case was ultimately disposed of
on 24.11.2023 as infructous as the 2023 Amendment had already
been published . The judgment of this Court was not interfered with .
They have stated that they are eligible candidates with valid GATE
Scores but they were not made parties in the writ petition and are
aggrieved by the interim order which has been passed by this Court
without hearing them . They are prejudiced by the interim order and
are facing difficulty . In view of the impugned interim order passed
by the learned Single Judge. The impugned interim order is against
the statutory prescription in rule under Article 309 of the
Constitution of India, 1950 and hence unsustainable in the eye of
law. After the 2023 amendment Rule 2023 of the Odisha
Engineering Service Rules, 2012, there is a clear provision in Rule 7
of the aforesaid Amendment Rule that selection shall be made on the
basis of 90 percent GATE score and 10 % in the interview which
was not there in the 2021 amendment which had been quashed by this
Court. The learned counsel for the appellants has submitted that the
contention of the that without amending Rule 6 i.e eligibility criteria ,
Rule 7 could not have been amended has no merit stating as both
criteria can be different . He had stated that the decision to amend the
existing Rules by introducing GATE score is to get the best
candidates and cannot be said to be ultra vires . As the candidates
knew since 2021 when the 2012 was first amended that a valid score
in GATE is required , they cannot complain that they did not get an
opportunity to appear in GATE . There is no scope for the Court to
act as an expert and interfere with the decision of the employer to get
the best candidate or decide on the qualification for any post.
Therefore, the Writ Application bearing No. 42509 of 2023 and other
Writ Applications are liable to be dismissed and do not call for any
interference .
Intervenors in WP( C ) No. 10185 of 2024
17. The learned counsel for the intervenors in WP ( C ) No.
10185 of 2024 have submitted that in the 2023 amendment Rules ,
in Section 2(3)(a)(b), GATE has been clearly specified as 'Graduate
Aptitude Test in Engineering' and the students pursuing graduate
course in Engineering are aware and know about this examination .
GATE examination is held under the Chairmanship of II.Sc,
Bengaluru and membership of seven different IITs comprising IIT
Bombay, IIT Delhi, IIT Guwahati, IIT Kanpur, IIT Kharagpur, IIT
Madras, and IIT Roorkee. It is a body on behalf of the National
Coordination Board (NCB), Department of Higher Education,
Ministry of Education (MoE), Government of India like that of NTA
conducting NEET, CUET, etc. Any graduate engineer aspiring for a
job can therefore have no objection to appear in GATE which
consists of the subject curriculum wise with general aptitude ,
proficiency etc. which is of a higher standard in comparison to the
syllabus prescribed in the 2012 Rules . He has further submitted
that the candidates were aware since 2020 that GATE was to be
the process of selection . In view of large
number of vacancies i.e 928 , serious prejudice would be caused to
candidates who were eligible and have already applied .
ISSUES
18. In view of the submissions of the learned counsel , broadly
the following questions have to be dealt with : -
i) whether the amendment of sub rule (3) and (4) of Rule 7
of the Odisha Engineering Service (Method of Recruitment and
Conditions of Service) Rules, 2012 by Amendment Rules, 2023
is ultra vires of the Constitution ?
ii ) whether the Advertisement No. 19 of 2023/24 dt.
28.12.2023 issued by Odisha Public Service Commission for
recruitment to the post of Assistant Executive Engineer (Civil)
and Assistant Executive Engineer (Mechanical) in Group A of
the Odisha Engineering Service under the Water Resource
Department, is liable for interference. ?
iii) whether the candidates who are otherwise eligible but
have not appeared in the GATE in the last three years , should
be given an opportunity to appear in the GATE examination.?
STATUTORY PROVISIONS
19. For convenient adjudication of the writ petitions and the writ
appeal , we deem it proper to reproduce the provisions of Article
309 and 320 of the Constitution of India:-
"309. Recruitment and conditions of service of persons
serving the Union or a State Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the
affairs of the Union or of any State: Provided that it shall be
competent for the President or such person as he may direct
in the case of services and posts in connection with the affairs
of the Union, and for the Governor of a State or such person
as he may direct in the case of services and posts in
connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service of
persons appointed, to such services and posts until provision
in that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act"
"Article-320. Functions of Public Service
Commissions.
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."
CITATIONS / CASE LAW
20. A number of decisions have been relied upon by the learned
counsel , but we deem it proper to refer to the following decisions:-
20.1 In Ram Manohar Pandey ( supra) , the Patna High Court
was examining the vires of the amendment to the Bihar Polytechnic
Education Service Rules, 2014 by which the requirement of written test
and evaluation in the teaching skill for recruitment to the post of
Lecturers in Polytechnic Colleges and Engineering Colleges was deleted
and it was provided that evaluation would be on the basis of the
percentile secured by the candidate in the Graduate Aptitude Test in
Engineering Examination (the GATE, in short) . The Patna High Court
while setting aside the same has observed that though there is no
apparent breach of Article-14 of the Constitution but candidates having
higher qualification or experience will not get due weightage during the
viva-voce test. It observed that so far as evaluation of the work
knowledge is concerned, the object is entirely missing The relevant
portions of the judgment are extracted below :
"Even if the State under Article-309 has a right to frame rules in
matters of public employment, every such rule has to withstand
the test of arbitrariness and rationality besides being transparent
on the procedure but the amendment substituting Table-2 of
Appendix-I trough Memo No.889 dated 10.04.2017 whereby it is
decided to waive of the transparent evaluation of candidates on
their work knowledge/teaching skill by way of a written test and
to simply mark candidates on the basis of marks obtained in the
GATE examination, not only hits transparency but also
discriminates against such of the candidates who are already
Post Graduates and are not required to pass such GATE
examination."
"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."...
20.2 In the case of Asha Kaul (supra) , where the select list of
District Munsifs prepared by the Jammu and Kashmir Public Service
Commission was under challenge , the Supreme Court interalia held
as follows :
... "It is true that the government is the appointing
authority for the munsifs but it is misleading to assert that in
the matter of selection and appointment the government has an
absolute power. Such an argument does violence to the
constitutional scheme. The Constitution has created a public
service commission and assigned it the function of Conducting
examinations for appointments to the services of the Union or
to the services of the State, as the case may be. According
to Article 320 clause (1) this is the primary function of the
commission. The Government is directed to consult the public
service commission on all matters relating to methods of
recruitment to civil services and to civil posts and on the
principles to be followed in making. appointment to civil
services and posts and on the suitability of candidates for such
appointment, among other matters. An examination of Articles
317 to 320 makes it evident that the constitution contemplates
the commission to be an independent and effective body
outside the governmental control. This is an instance of
application of the basic tenet of democratic form of
government viz., diffusion of governing power, The idea is not
to allow the concentration of governing power in the hands of
one person, authority or organ."....
....." Indeed, clause (2) of Article 323 obliges the Governor of
a State to lay a copy of the annual report received from
the commission before the Legislature "together with a
memorandum explaining, as respect the cases, if any, where
the advice of the commission was not accepted (and) the
reasons for such non-acceptance." Evidently, this is meant as
a check upon the power of the government. This provision too
militates against the theory of absolute power in the
government to disapprove or reject the recommendations of
the commission."
20.3 In the case of Duddilla Srinivasa Sharma (supra), the Supreme
Court has held :
...."We fail to understand how a person who fulfils the
eligibility conditions as per the recruitment rules can be
excluded even from appearing in the qualifying written
examination by fixing higher educational qualification bench
mark. That would be permissible where the post is to be filled
by main written examination (with marks obtained therein to
be included in the total marks) followed by viva- voice test OR
where the post is to be filled by interview mode alone. Thus,
having regard to the specific provision of shortlisting, we are
of the opinion that the impugned judgment of the High Court
has taken the correct view."....
20.4 In Sandip Sriram Warade (supra), the Supreme Court has held
as follows :
"9. The essential qualifications for appointment to a post
are for the employer to decide. The employer may
prescribe additional or desirable qualifications, including
any grant of preference. It is the employer who is best
suited to decide the requirements a candidate must
possess according to the needs of the employer and the
nature of work. The court cannot lay down the conditions
of eligibility, much less can it delve into the issue with
regard to desirable qualifications being at par with the
essential eligibility by an interpretive rewriting of the
advertisement. Questions of equivalence will also fall
outside the domain of judicial review. If the language of
the advertisement and the rules are clear, the Court
cannot sit in judgment over the same. If there is an
ambiguity in the advertisement or it is contrary to any
rules or law the matter has to go back to the appointing
authority after appropriate orders, to proceed in
accordance with law. In no case can the Court, in the
garb of judicial review, sit in the chair of the appointing
authority to decide what is best for the employer and
interpret the conditions of the advertisement contrary to
the plain language of the same."
20.5 In the case of Elambarathy S (supra), the High Court of Madras
while dealing with a challenge to the advertisement which had
prescribed GATE score as the criteria for selection to the post of
Graduation Executive Trainee held as follows:-
"8. The aspirants for the post of Graduate Executive
Trainee in the first respondent/public sector Company, do
not have a vested right on the mode of recruitment and/or
qualification prescribed by the recruiting
agency/employer. The second respondent under the
impugned Advertisement, has prescribed GATE score as
mandatory requirement for applying to the subject post.
GATE is an examination conducted by the agency
established by the Central Government. GATE is an
examination that primarily tests the comprehensive
understanding for various under-graduate subjects in
Engineering and Science for admission in the Master's
programme for recruitment by some public sector
undertaking Companies like that of the first respondent.
The purpose for GATE examination is to test the students'
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."
20.6 The High Court of Madhya Pradesh (Indore Bench) in Vikas
Malik (supra) has interalia held : :
..." 7. The prescription of minimum qualifications and the
mode of appointment in the sphere of public employment
is within the domain of the appointing authority or the
selection body. The Courts and tribunals can neither
prescribe the qualifications nor entrench upon the power
of the authority concerned so long as the qualification so
prescribed reasonably relevant and do not obliterate the
equality clause (J.Ranga Swamy v. Govt., of
A.R.[MANU/SC/0229/1989 : (1990) 1 SCC 288 and
Chandigarh Administration Through the Director
Public Instructions (Colleges), Chandigarh [(2011) 9
SCC (645)]..."
20.7 In the case of Mohd Rashid v. The Director, Local Bodies,
New Secretariat and others (Civil Appeal No.136 of 2020) decided
on 15.01.2020, the recruitment rules had been amended on 7th June,
2013 and the advertisement was issued on 12th September, 2013. But
the Supreme Court did not interfere with the selection holding as
follows :
..."11. From the above information placed on record, we
find that the Recruitment Rules providing 50% quota to
be filled up by promotion failing which by direct
recruitment and another 50% by deputation quota failing
which by direct recruitment are being followed by the
Municipal Bodies.
12. The appellants who are aspirants for direct
recruitment have no right for appointment merely
because at one point of time the vacancies were
advertised. The candidates such as the appellants cannot
claim any right of appointment merely for the reason that
they responded to an advertisement published on 12th
September, 2013. Even after completion of the selection
process, the candidates even on the merit list do not have
any vested right to seek appointment only for the reason
that their names appear on the merit list. In Shankarsan
Dash v. Union of India, a Constitution Bench of this
Court held that a candidate seeking appointment to a civil
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."
20.8 In the case of State of U.P. v. Manbodhan Lal
Srivastava : 1958 SCR 533, the Hon'ble Supreme Court has held as
follows:
..."7. Article 320 does not come under Chapter I headed
"Services" of Part XIV. It occurs in Chapter II of that part
headed "Public Service Commissions." Articles 320 and
323 lay down the several duties of a Public Service
Commission. Article 321 envisages such "additional
functions" as may be provided for by Parliament or a
State Legislature. Articles 320 and 323 begin with the
words "It shall be the duty.................", and then proceed
to prescribe the various duties and functions of the Union
or a State Public Service Commission, such as to conduct
examinations for appointments; to assist in framing and
operating schemes of joint recruitment; and of being
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".
20.09 In the case of Lila Dhar vs State of Rajasthan : (1981) 4
SCC 159, the Supreme Court observed that written test may is of
importance where admission to a College is concerned . The relevant
portions of the judgment are extracted below :
"6. Thus, the written examination assesses the man's intellect
and the interview test the man himself and "the twain shall
meet" for a proper selection. If both written examination and
interview test are to be essential features of proper selection,
the question may arise as to the weight to be attached
respectively to them. In the case of admission to a college, for
instance, where the candidate's personality is yet to develop
and it is too early to identify the personal qualities for which
greater importance may have to be attached in later life,
greater weight has per force to be given to performance in the
written examination. The importance to be attached to the
interview test must be minimal. That was what was decided by
this Court in Periakaruppan v. State of Tamil Nadu, Ajay
Hasia etc. v. Khalid Mujib Sehravardi & ors. etc., (supra) and
other cases. On the other hand, in the case of services to which
recruitment has necessarily to be made from persons of
mature personality, interview test may be the only way, subject
to basic and essential academic and professional requirements
being satisfied. To subject such persons to a written
examination may yield unfruitful and negative results, apart
from its being an act or cruelty to those persons. There are, of
course, many services to which recruitment is made from
younger candidates whose personalities are on the threshold of
development and who show signs of great promise, and the
discerning may in an interview test, catch a glimpse of the
future personality. In the case of such services, where sound
selection must combine academic ability with personality
promise, some weight has to be given, though not much too
great weight, to the interview test. There cannot be any rule of
thumb regarding the precise weight to be given. It must vary
from service to service according to the requirements of the
service. the minimum qualifications prescribed, the age group
from which the selection is to be made, the body to which the
task of holding the interview test is proposed to be entrusted
and a host of other factors. It is a matter for determination by
experts. It is a matter for research. It is not for Courts to
pronounce upon it unless exaggerated weight has been given
with proven or obvious oblique motives. The Kothari
Committee also suggested that in view of the obvious
importance of the subject, it may be examined in detail by the
Research Unit of the Union of Public Service Commission.
7. In this background, let us now examine the situation
presented by the Rajasthan rules. The Rajasthan Judicial
Service rules leave been made by the Governor of Rajasthan in
consultation with the High Court of Rajasthan and the
Rajasthan Public Service Commission. The High Court may be
expected to know the precise requirements of the judicial
service of the State and the calibre of the available source-
material, while the Public Service Commission is an expert
body thoroughly conversant with recruitment policies and
selection methods. Both the High Court and the Public Service
Commission are independent bodies, outside executive control,
occupying special positions and enjoying special status under
the constitution. Neither is an outside agency. Both are well-
acquainted with the particular needs of their State and the
people. If the Governor, in consultation with the High Court
and the Public Service Commission of the State makes rules
stipulating seventy five percent of the marks for the written
examination and twenty five percent for the interview test, on
what basis can a Court say that twenty five percent for the
interview test is on the high side ? It must not also be forgotten
that the interview test is generally conducted and was, in the
present case, conducted by a body consisting of a Judge of the
High Court, the Chairman and a member of the Public Service
Commission an d a special invitee-expert. There can surely be
no legitime grievance or hint of arbitrariness against this body.
Yet another factor worthy of consideration is that the
candidates expected to offer themselves for selection are not
raw Graduates freshly out of college but are persons who have
already received a certain amount of professional training. The
source material is such that some weightage must be given to
the interview test and can it possibly be said that twenty five
per cent of the total marks is an exaggerated weightage. We
may add here that it has been made clear by the Chairman,
Rajasthan Public Service Commission on whose behalf a
counter affidavit has been filed before us that the marks
obtained by the candidates at the written examination were not
made available to the members of the interview Board either
before or at the time of the interview. We are unhesitatingly of
the view that the selection cannot be struck down on the
ground that more than due weightage was given to the
interview test."...
"9........ The observations of the Court were made, primarily in
connection with the problem of admission to colleges, where
naturally, academic performance must be given prime
importance. The words "or even in The matter of public
employment" occurring in the first extracted passage and the
reference to the marks allocated for the interview test in the
Indian Administrative Service examination were not intended
to lay down any wide, general rule that the same principle that
applied in the matter of admission to colleges also applied in
the matter of recruitment to public services. The observation
relating to public employment was per incuriam since the
matter did not fall for the consideration of the Court in that
case. Nor do we think that the Court intended any wide
construction of their observation. As already observed by us
the weight to be given to the interview test should depend on
the requirement of the service to which recruitment is made,
the source material available for recruitment, the composition
of the interview Board and several like factors. Ordinarily
recruitment to public services is regulated by rules made under
the proviso to Art. 309 of the Constitution and we would be
usurping a function which is not ours, if we try to redetermine
the appropriate method of selection and the relative weight to
be attached to the various tests. If we do that we would be
rewriting the rules but we guard ourselves against being
understood as saying that we would not interfere even in cases
of proven or obvious oblique motive. There is none in the
present case. The Writ Petition is therefore dismissed but in the
circumstances there will be no order regarding costs."
20.10 In the case of J & K Public Service Commission vs
Dr.Narinder Mohan : (1994) 2 SCC 630, the Supreme Court has
held as follows :-
"Though it is settled law that consultation is not
mandatory but as held by this court in Jatinder Kumar vs
State of Punjab that the establishment of an independent body
like PSC is to ensure selection of best available persons for
appointment to a post to avoid arbitrariness and nepotism in
the matter of appointment Commission is constituted by
persons of high ability, varied experience and of undisputed
integrity and further assisted by experts on the subject.
Whenever the Government is required to make appointment to
a high public office it is required to consult the PSC."
20.11 The Gujarat High Court in the case of Barot Jignesh
Lakshmansinh ( supra) , while dealing with a similar contention
that the selection test has to be conducted by the Public Service
Commission, has held as follows :
"25. In view of the aforesaid position of law settled by the
Apex Court, I can not accept the contentions that the power of
recruitment for the post of PSI must vest with the Public
Service Commission. So far as Article 320(1) is concerned, in
my view, it can not be read in isolation as sought to be
canvassed on behalf of petitioners. The duties assigned under
Sub-Article (1) of Article 320 can be read only if such
provisions are made under Sub-Article (3). In any event, no
right can be said to have been conferred on the petitioners if
such examinations are not held by GPSC since it was not
assigned with such functions as per regulations. Whether the
PSC can allow the regulations for inclusion and/or exclusion
of its powers for conducting of examination for services of the
State or not, in my view, is not a question which is required to
be decided at this stage since the GPSC has not approached
this court and therefore the said question is kept open."
20.12. Way back on 08.01.2014 , the Patna High Court in the case
of Harvansh Kumar vs State of Bihar ( CWJC no. 19001 of 2013) ,
had upheld the GATE examination as a method of selection of
Assistant Electrical Engineer and Assistant Engineer ( Civil ) by the
Bihar State Power Holding Company and dismissed the writ petition.
In the employment notice , in mode of selection it had been
mentioned that 80% had been reserved for GATE score and 10%
each for interview and relevant work experience .The Court did not
accept the contention that this created a class within a class or
violated Article 14 and 16 of the Constitution .
ANALYSIS / DISCUSSION
AMENDMENT TO RULE 7
21. A State PSC has a duty to conduct examination for
appointment to the services under the State. But this duty is subject
to the Rules framed by the State under Article - 309 of the
Constitution of India
22. What is mandatory under Article 320 of the Constitution,
is that the State Public Service Commission must be consulted in the
matter in the manner enumerated under Article 320 ( 3 )( a ) and ( b)
of the Constitution.. By no means , it can be interpreted that the State
is under obligation to frame Rules under Article - 309 for
recruitment to posts in such a manner that the PSC has always to be
given the duty to hold a written examination . Recruitment / selection
can also be only on the basis of interview .
23. While deciding WP( C ) No.15738 of 2022 and batch ( supra)
where the 2021 amendment to the 2012 Rules and the consequent
advertisement ( Advertisement No. 20 of 2022-23) had been
challenged , after hearing the counsels and examining the records,
this Court found that the advice / opinion of the OPSC had not been
placed correctly before the Cabinet and a wrong statement has been
made before it that the OPSC has given its concurrence to the
proposed amendments, Rule 4 of the Amendment Rules which
amends Rule 7 (3) and 7 (4) of the OES Rule 2012 prescribing the
highest valid GATE scores of the preceding three years to be the
basis of selection and struck down the impugned amendment .
24. But in case of the 2023 amendment , we find that the OPSC
has been consulted and has agreed to the proposed amendment . We
are therefore satisfied that Article 320 (3) of the Constitution has
been followed and the OPSC has been consulted in accordance with
Article 320 of the Constitution before the 2023 Amendment Rules
were notified .
25. As mentioned, the Amendment Rules 2021 and the consequent
advertisement had been quashed by this Court in batch of writ
applications on specific grounds of absence of effective consultation
with the OPSC for substituting GATE scores as the means of
selection in place of written examination and interview .
suppression of the advice of the OPSC before the Cabinet and not
providing enough time to the candidates to appear in GATE thrice .
An additional reason for quashing the advertisement was that
published consequent to the Amendment Rules of 2021 was that the
candidates who had not appeared in the GATE examinations in the
last three years would be at a disadvantage as compared to
candidates who had appeared in the GATE examinations .
26. The candidates who had applied pursuant to the earlier
impugned advertisement and were aggrieved by the judgment dated
01.05.2023 of this Court in WP ( C ) No. 15378 of 2022 and batch
had challenged the same before the Supreme Court but the same was
dismissed as infructuous in view of the publication of the 2023
Amendment Rules. The 2023 Amendment Rules have been
published to amend Rule 7 of the OES Rules 2012 and substitute the
method of written examination with GATE examination and
interview , after consulting the OPSC and obtaining its consent .
27. It is the choice of the employer as to the eligibility criteria
and the procedure it will adopt to recruit its employees . Unless the
procedure adopted , violates the provisions in the Constitution of
India or violates the recruitment rules or is otherwise arbitrary or
discriminatory , the process of selection should not be interfered
with.
28. The contention that GATE cannot substitute the earlier
method of written examination had earlier been raised in WP( C)
No. 15738 of 2022 and batch ( supra ), but not decided . The writ
petitioners therein had not challenged the judgment on this ground
before the Supreme Court . But since this contention has been raised
again in these batch of writ applications , we have thought it fit to
deal with the contention so as to bring a quietus to the contention.
"GATE" refers to the "Graduate Aptitude Test in Engineering,"
which is a nationwide examination .It acts as a standardized
assessment to determine the suitability of engineers for appointment
to various technical positions in Public Sector Units (PSUs) across
India, essentially government-owned companies; candidates with
high GATE scores are typically prioritized for recruitment based on
their performance in the exam. Some also hold interviews , as is the
case here were 10% marks have been allotted to interview . In our
view there is nothing illegal or arbitrary in utilizing valid scores as a
method of selection especially when the GATE is held by such
reputed and qualified persons from IIsc Bangalore and a number
IITs. Candidates can choose to take the GATE examination in their
specific engineering discipline. The examination tests the knowledge
of students who have passed Engineering courses . As the
examination has been found to be reliable, the score obtained in
GATE is used for recruitment to some PSUs and "Group A" services
of State and Centre. The contention that the examination is meant
only for admission to post graduate courses and for obtaining finance
is misconceived and rejected .
ADVERTISEMENT
29. The amendment to rule 7 of 2012 Rules as well as the
advertisement dated 18.03.2023 had been quashed by judgment
dated 01.05.2023 by this Court in WP( C) No. 15378 of 2023 and
batch .One of the grounds for quashing the advertisement No 20 of
2022-23 published on 18.03.2023 after amendment of the OES
Rules by the 2021 amendment was that it was indicated in the
advertisement that the highest score of the last three years would be
taken , but enough notice / time had not been provided to candidates
to appear in the GATE Examinations thrice before publication of the
Advertisement , so as to provide them all of them , a level playing
field .
30. In advertisement No 20 of 2022-23 published on
18.03.2023 , under Method of Selection, it has been provided
as follows :
" The Commission after receipt of the applications
shall take steps to select the candidates on the basis of
the highest of the valid GATE score of preceding 03
years of the date of advertisement (including the year
of advertisement.( emphasis supplied )
31. In the advertisement No. 19 of 2023-24 , which has been
impugned in these writ applications , under method of selection ,it
has been provided as follows :
" i. ) The Commission after receipt of all the applications shall
take steps to select the candidates on the basis of valid Graduate
Aptitude Test in Engineering (GATE) score and interview.
ii ) The merit list shall be prepared on the basis of aggregate
marks secured in valid Graduate Aptitude Test in Engineering
(GATE) score carrying 90% weightage and interview carrying
10% weightage. '....
32. It is not disputed that the GATE score remains valid for
three years . So a candidate may appear every year in the
examinations to obtain a valid GATE score or improve his / her
score. That is an option available to the candidate . As long as his/
her GATE Score is valid , it can be considered for the purpose of
selection . So advertisement No 19 of 2023/24 published on
28.12.2023 cannot be set aside on the ground that it stipulates that
selection shall be on the basis of a valid GATE Score .
33. We are therefore inclined to interfere with the advertisement
only to the extent of extending the last date of application for the
reason that the 2023 Amendment Rules were published on
28.09.2023 and the Advertisement No. 19 of 2023/24 was published
exactly three months later i.e , on 28.12.2023. Therefore hardly any
time has been provided to an otherwise eligible candidate who had
not appeared for GATE earlier , to apply for and appear in the
GATE test and obtain his / her score , so as to apply for selection
before the last date . It is true that the last date of application has
been extended by subsequent corrigendum but these do not provide
the necessary opportunity to a candidate who had not appeared in the
GATE examinations within the last three years , to apply for
appearing in GATE after the 2023 amendment on 28.09.2023 of the
2012 Rules and appear in the GATE examinations , so as to become
eligible to apply for selection / recruitment . We have decided to do
so instead of quashing the advertisement keeping in mind ;- i) the
submission on behalf of the State of Odisha that a number of posts
are lying vacant for which developmental work has been affected on
account of non recruitment of Assistant Executive Engineers ii) the
submission that candidates who had a valid score and being eligible
had applied for the posts; and iii) the candidates who have not
appeared in GATE but have been waiting since long to apply for the
posts and may become over age in case a new advertisement is
published . We accordingly direct the OPSC to extend the last
date of application , so that eligible candidates who have not
appeared in the GATE examination in the last three years , get an
opportunity to appear in the examination at least once , obtain their
scores and submit their applications .
CONCLUSION
34. We reject the challenge to the vires of Rule 4 (i )
and Rule 4 ( ii ) of the Odisha Engineering Service
( Recruitment and Conditions of Service ) Amendment Rules
2023 , amending Rule 7 (3) and 7(4) of the Orissa Engineering
Service ( Recruitment and Conditions of Service) Rules 2012,
and uphold the 2023 Amendment Rules .
35. As regards the Advertisement No.19 of 2023 / 24 dated
28.12.2023 ,we find no merit in the submission of some of the
counsel for the petitioners that the impugned advertisement
should be quashed on the same ground as Advertisement No 20
of 2022-23 dated 18.03.2023 had been quashed in the earlier
batch of writ petitions by this Court , that a level playing field
has not been provided to the candidates who have not
appeared in GATE for three years , as there is no
stipulation in the advertisement that that the highest valid
GATE Score for the last three years will be considered .
36 . After having held thus , in view of the facts and
circumstances discussed above , we deem it just and equitable
to direct that the last date - 12.01.2024 indicated in
Advertisement No.19 of 2023 / 24 dated 28.12.2023
published by the OPSC for submission of examinations
( which has been extended subsequently ) shall be further
extended by a suitable date so as to give an opportunity to the
candidates who were otherwise eligible ( on account of their
age and educational qualification ) as on the last date for
applications as fixed by the State Government / OPSC , to
appear in the GATE examination at least once and submit
their applications alongwith their valid GATE score if any ,
The applications of candidates, but had earlier appeared in
GATE examination ( and were otherwise eligible ( on
account of their age and educational qualification ) as on the
last date for applications as fixed by the State Government /
OPSC shall also be considered . But the candidates who had
not acquired the necessary educational qualifications or were
under age by the last date earlier fixed by the State
Government / OPSC will not be eligible to apply . This is to
prevent prejudice to the candidates who were otherwise
eligible ( due to their educational qualifications and age ) on
the last date fixed by the State Government / OPSC . The
applicants who were eligible as per the terms of the
advertisement and had applied pursuant to such advertisement
and whose applications have been processed in compliance of
the interim order dated 17.03.2024 passed in WP ( C) No.
42059 of 2023 and batch, need not apply again .
37. All the writ applications are allowed to the extent
indicated above.
38. We agree with the view expressed by the learned
Single Judge in the interim order 17.03.2024 passed in W.A.
No. 948 of 2024 and batch that the candidates should have
been given one chance to appear in the GATE examination .
The Writ Appeal is disposed of confirming the order of the
learned Single Judge in WP( C) No. 586 of 2024 and batch
passed on 17.03.2024 to the extent indicated above . The
writ petitions may be listed before the assigned Bench for
disposal.
39. It goes without saying that the observations / direction
of the Supreme Court while disposing of SLP (C ) No.
23396 of 2013 should be kept in mind and the applications
of candidates who had applied earlier in response to the
previous advertisement should not be rejected on the ground
that they became overage when Advertisement No 19 of
2023-24 was published .
40. There shall be no order as to costs.
................
(Savitri Ratho, J)
Judge
Chief Justice
I agree. .
Signed by: SUKANTA KUMAR BEHERA
( Chakradhari Sharan Singh )
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 04-Feb-2025 17:58:22 Chief Justice
Orissa High Court, Cuttack.
The 15th day of January , 2025.
S.K. Behera, Senior Stenographer.
