Allowed

Biswajit Sahoo v. State of Odisha

Orissa HC1 May 2023WP(C)/9440/2023

Case brief

AI extract

What is this about?

The High Court struck down an amendment to recruitment rules substituting written tests with GATE scores and quashed a subsequent advertisement. This violated Article 320 by failing to place the Public Service Commission's dissent on the Cabinet record and created discriminatory adverse effects on eligible candidates.

What did the court decide?

Rule 4 of the Amendment Rules 2021 amending selection method struck down; Advertisement No. 20 of 2022-23 quashed.

Biswajit Sahoo Vs State of Odisha — Service and Employment | Orissa HC (2023)

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AFR

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 15738 of 2022

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An application under Articles 226 and 227 of the Constitution of India

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--------------

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Pradyumna Kumar Patra & Others ..…. Petitioners
-versus-
State of Odisha and Others …… Opposite Parties
For Petitioners : Mr. Ashok Mohanty, Senior
Advocate and Ms. Sujata Jena,
Advocate
For Opposite Parties : Mr. I. Mohanty,
Addl. Standing Counsel
(for Opp. Parties Nos. 1 and 2)
Mr. Bikash Jena, Advocate
(for Opp.Party No.3)
Mr. P.K. Mohanty, Senior
Advocate and Pranay Mohanty
Advocate ( for Opp. Party No.4)
….
W.P.(C) No. 10936 of 2023

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Khitish Kumar Nayak & Others ..…. Petitioners

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Digitally signed SUKANTA by SUKANTA KUMAR KUMAR BEHERA Date: BEHERA 2023.05.01 18:54:05 +05'30'

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-versus- State of Odisha and Others …… Opposite Parties For Petitioners : Mr. B. Routray, Senior Advocate and Mr. S. Sekhar, Adv. For Opposite Parties : Mr. I. Mohanty,

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Page 1 of 103

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Addl. Standing Counsel ( For Opp. Parties No. 1 and 2 )

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W.P. (C) No.10955 of 2023

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Sai Sumiran Panda and Others …… Petitioners
-versus -
State of Odisha and Others …… Opposite parties
For Petitioners : Mr. Saurav Tibrewal Advocate .
For Opposite Parties : Mr. I. Mohanty,
Addl. Standing Counsel
( For Opp. Parties No. 1 and 2 )
……
W.P.(C) No. 9435 of 2023
Meerashree Suman and Others ..…. Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others …… Opposite Parties
……

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W.P.(C) No. 9440 of 2023

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Biswajit Sahoo and Others ..…. Petitioners Ms. Sujata Jena, Advocate

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-versus-

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W.P.(C) No. 15738 of 2022 Page 2 of 103

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State of Odisha and Others …… Opposite Parties

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……

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W.P.(C) No. 9443 of 2023

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Nisprava Dash and Others ..…. Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others …… Opposite Parties
……
W.P.(C) No. 9445 of 2023
Sameer Ranjan Sahoo and Others ..…. Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others …… Opposite Parties
…….
W.P.(C) No. 9447 of 2023
Tarini Prasad Singh and Others ..…. Petitioners
Ms. Sujata Jena, Advocate
-versus-
State of Odisha and Others …… Opposite Parties

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W.P.(C) No. 15738 of 2022 Page 3 of 103

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CORAM:

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HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 01.05.2023

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Savitri Ratho, J.

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The common grievance of the petitioners in all these

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writ petitions is the substitution of the method of selection

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contained in Rule 7 of the Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 (in short “OES Rules 2012”) by Rule 4 of Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Amendment Rules, 2021 (in short “the Amendment Rules 2021” .Vide this amendment , marks awarded for career marking, written test and vive voce have been substituted by the highest GATE Score obtained in the

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last three years , preceding the advertisement.

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So we have to decide whether the amendment of Section 7 of the Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 (in short “OES Rules 2012” ) by Rule 4 of Odisha Engineering Service

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W.P.(C) No. 15738 of 2022 Page 4 of 103

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(Methods of Recruitment & Conditions of Service) Amendment Rules, 2021 (in short “the Amendment Rules 2021”) by substituting the method of selection by the OPSC on the basis of career marking , written test and vive voce by the highest GATE Score obtained in the last three years

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preceding the advertisement, is sustainable or is arbitrary, discriminatory and ultra vires the 2012 rules and also whether the Advertisement No 20 – 2022-23 dated 18.03.2023, published by the Orissa Public Service Commission is liable to be quashed.

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PRAYERS IN THE WRIT PETITIONS

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2 . In W.P.(C) No.15378 of 2022 , the following prayer

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has been made.

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“In the facts and circumstances of the case the

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petitioners respectfully pray that the Hon’ble Court may graciously be pleased to admit this case, issue notice to the opp. parties to show cause to as to why the “Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Amendment Rules, 2021” shall not declared as ultra virus to the constitution and if

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W.P.(C) No. 15738 of 2022 Page 5 of 103

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the opp. parties fail to show cause or show insufficient cause, the Hon’ble Court upon hearing the parties may further be pleased to allow this writ petition by striking down the amendment and may be further pleased to pass such other order/orders, direction/directions as may be deemed expedient in the interest of justice and for this act of kindness as the petitioners are

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duty bound shall ever pray.”

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3 . In W.P. (C) No.10936 of 2023 , the following prayer has been made :

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…..“ (iii) Issue RULE NISI calling upon the opposite parties more particularly Opp. party Nos.1, 2 and 4 to show cause as to why the Rule 7 of the Odisha Engineering Service (Methods of Recruitment and conditions of Service) Amendment Rule, 2021 under Annexure:3 shall not be declared ultra vires and the consequential advertisement No.20 of 2022-23 under Annexure5 shall not be quashed.

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(iv) If the opposite parties fail to show cause or show insufficient cause, issue a writ in the nature of certiorari by declaring Rule 7 of the Odisha Engineering Service (Methods of Recruitment

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W.P.(C) No. 15738 of 2022 Page 6 of 103

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and conditions of Service) Amendment Rule, 2021 under Annexure-3 ultra vires and the consequential advertisement No.20 of 2022-23 issued by the Opposite Party No.4 under Annexure:5 be quashed;

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(v) Issue a writ in the nature of mandamus or any other writ/writs direction / directions directing the opposite parties to accept the applications of the petitioners for the post of Assistant Executive Engineer (Civil) pursuant to the advertisement under Annexure-5 and their candidature be considered in terms of Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 without insisting for GATE within a reasonable time to be stipulated by this Hon’ble Court.”……

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4 . In W.P. (C) No.10955 of 2023 , the following prayer

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has been made:

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“ (i ) To show cause as to why the Rule 7( 3) and 7(4) of the Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules 2012 brought by 2021 amendment (Annexure 3)shall not be declared ultra vires and the consequential advertisement No. 20 of 2022

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W.P.(C) No. 15738 of 2022 Page 7 of 103

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/2023 ( Annexure 8) issued by Opp.Party No. 4 for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer( Mechanical) in Group A of the Odisha Engineering Service shall not be quashed and if they fail to show cause or show insufficient cause then the writ be made absolute.

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(ii) further be pleased to direct the Opp.Parties to allow the petitioners and other similarly situated persons to apply for the post advertisement under Annexure 8 by issung a fresh advertisement”….

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5 . In W.P.(C) No.9435 of 2023, W.P.(C) No. 9440 of 2023, W.P.(C) No.9443 of 2023, W.P.(C) No. 9445 of 2023 and W.P. (C) No.9447 of 2023, prayer identical to the one made in W.P.(C) No.15738 of 2022 has been made.

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WRIT PETITIONS, COUNTER AFFIDAVITS And REJOINDER AFFIDAVIT.

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6 . Although notice had been issued to the opposite parties in W.P.(C) No.15738 of 2022, W.P.(C) No. 10936 of 2023 and W.P.(C) No.10955 of 2023. Counter affidavits have

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W.P.(C) No. 15738 of 2022 Page 8 of 103

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been filed by the opposite parties No. 1and 2 and Opposite Party No. 3 and rejoinder affidavit by the petitioners in W.P.(C) No.15738 of 2022 only.

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7 . As the grievances in these three writ applications and W.P.(C) No.9435 of 2023, W.P.(C) No.9440 of 2023, W.P. (C) No.9443 of 2023, W.P.(C) No.9445 of 2023 and W.P.

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No.(C) No.9447 of 2023, are more or less are same, all the

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writ applications were heard together.

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8 . In W.P.(C) No.15738 of 2022, the petitioners who

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claim to be qualified Engineers have challenged the

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amendment made by the opposite parties in Rule 7 of the Odisha Engineering Service (Methods of Recruitment & Conditions of Service) Rules, 2012 vide notification dated 28.01.2021 by introducing the clause to select the candidates

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for appointment as Assistant Executive Engineers on the basis of highest GATE score of preceding three years from the date of advertisement including the year of advertisement, on the ground that it is not in accordance with the constitutional

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provisions and is discriminatory in nature and liable to be struck down.

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A rejoinder affidavit has been filed by the petitioners

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stating that Article 320 (3) of the Constitution of India specifically provides that at the time of recruitment to the Civil Post, the State shall consult the Public Service Commission but the impugned notification amending the rule has been made without considering the opinion of the OPSC and this is apparent from the statement made by the opposite party No.1 and 2 in paragraph-4 (vii) of their counter affidavit. Vide letter dated 4.3.2016 (Annexure-B/1 to the counter affidavit) suggestion had been given by the OPSC to make amendment as per suggestion No.2 so as to get better candidate to the post, but in complete disregard to the said suggestion, Rule 7 has been amending confining it to the GATE score which appears to be arbitrary and irrational. The opp. parties have the power to prescribe the qualification of the candidates for appointment but prescribing the GATE score as the only basis for recruitment bypassing objective

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W.P.(C) No. 15738 of 2022 Page 10 of 103

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written test and viva voce test and thereby depriving the more meritorious candidates who have never appeared in GATE is arbitrary and discriminatory. The plea of the State Government in their counter affidavit that GATE scores have

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been made the sole basis of recruitment by different

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Companies has been refuted by filing the advertisements published by (i) Bharat Heavy Electricals Ltd. (in short “BHEL’) in the year 2020 for recruitment of Engineers on the basis of computer base examination and interview; and

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(ii) Hindustan Aeronautics Ltd. (in short “HAL”) on 9.2.2022 for appointment of Graduate Engineers on the basis of a test of 2 and 1/2 duration consisting of MCQ on General Awareness and 100% MCQ in concerned discipline.

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9 . In W.P.(C) No.10936 of 2023 apart from prayer to

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declare Rule 7 of the OES Rules 2012 ultra vires, prayer has

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been made to quash the consequential advertisement No.20 of 2022-23 under Annexure-5 and to issue a direction to the Opposite parties to accept the applications of the petitioners

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for the post of Assistant Executive Engineer (Civil) pursuant

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W.P.(C) No. 15738 of 2022 Page 11 of 103

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to the advertisement under Annexure-5 and their candidature

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be considered in terms of Odisha Engineering Service (Method of Recruitment and Condition of Service) Rules, 2012 without insisting for GATE within a reasonable time .

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10 . In W.P. (C) No.10955 of 2023, apart from prayer to declare Rule 7(3) and 7(4) of the Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules 2012 brought by 2021 amendment (Annexure 3 ultra vires, additional prayer has been made to quash the consequential advertisement No. 20 of 2022 /2023 ( Annexure 8) issued by the Opposite party No 4 OPSC for recruitment to the post of Assistant Executive Engineer ( Civil) and Assistant Executive Engineer (Mechanical) in Group A of the Odisha Engineering Service and for a direction to the Opp. Parties to allow the petitioners and other similarly situated persons to apply for the post advertised under Annexure 8 by issuing a fresh advertisement.

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11. As stated earlier, identical averments and prayers have been made in W.P.(C) No.9435 of 2023, W.P.(C) No. 9440 of

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W.P.(C) No. 15738 of 2022 Page 12 of 103

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2023, W.P.(C) No.9443 of 2023, W.P.(C) No. 9445 of 2023

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and W.P.(C) No.9447 of 2023.

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12. Opposite party No.3 –AICTE has filed a preliminary counter affidavit in W.P.(C) No. 15738 of 2022 inter alia stating that the averments in the writ petition do not pertain to them and do not call for any reply from them and no relief has

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been came from them for which the writ application is liable to be dismissed against opposite party no.3 (AICTE).

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13 . Opposite parties No. 1 and 2 have filed a counter affidavit inter alia stating that the opposite party is well within its power under Article 309 of the Constitution of India to prescribe the procedure for recruitment to Public Services and posts in connection with the affairs of the State Government and the decisions to amend the impugned Rules has been taken after prolonged discussion with the expert bodies and with the objective to bring more objectivity and transparency to the recruitment process in order to get best candidates for the post of Assistant Executive Engineer and the deliberations/meetings held in this regard have been

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described in paragraph-4 (i) of the counter affidavit . In order to change the process of direct recruitment by amendment, the steps which were decided to be taken in the meeting dated 12.07.2018 for filling up the vacancy in the AEE posts till 2018, have been mentioned. A revised plan in two stagesStage I-preliminary examination with MCQ and negative marking ; and Stage II main examination with two papers (descriptive type) had been suggested by the Opposite Party. But to ensure timely completion and to ensure transparency, it was decided to adopt the maximum of valid GATE scores for the preceding three years in lieu of the main examination for selection of posts of AEE. It was decided to amend Rule 7 of the OES Rules 2012 alongwith restricting of the OES cadre. A detailed syllabus for the Preliminary and Main examination was prepared as per suggestion of the OPSC and the file was processed for obtaining approval of the Government and for vetting by the GA and PG Department and the Law Department. After threadbare discussion with the Chief secretary, it was decided to adpt the “GATE scpre” in lieu of

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W.P.(C) No. 15738 of 2022 Page 14 of 103

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“written test” and “vive voce test” in the selection”. The OPSC had been intimated vide DoWR letter No 22175 dated

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2.10.2019 about the decision of the Government to change the method of selection and its views had been requested .Vide letter No 7225 dated 11.11.2019, the OPSC sought for clarification / justification for adopting GATE scores and furnish orders of the GA&PG and Law department. It also recommended the provision for conducting Vive voce test as it is applicable to Group – A posts. (Annexure B/1) to the counter affidavit. The clarification was issued to the OPSC vide DoWR letter No 28746 dated 1.12.2019 (Annexure C/1) and the grounds have been described in paragraph 4 (v) of the counter affidavit. Vide letter No.1232 dated 19.02.2020, OPSC concurred with the proposal of amendment except the

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provision under para 4 which relates to the method of recruitment of assistant engineers in the feeder cadre and gave its suggestions for the method of a three stage selectionpreliminary Examination, Written Test and Vive Voce Test. This suggestion was examined and discussed thoroughly in

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the Department and was not accepted as the OPSC had earlier pointed out in its letter No.1316 dated 04.03.2016 (Annexure D/I) that the existing recruitment method was defective and the problems faced by the Government during recruitment would persist if the suggestion of the OPSC to conduct a three tier test was accepted. The problems faced on account of the prevailing examination method due to lack of transparency could be avoided. The problem of delay in conducting examination, cases challenging the process of recruitment and selection (73 had been filed in respect of the recruitment in 2016) and necessity of giving conditional appointment vide DoWR notification No 4694 dated 25.02.2016 (Annexure E/I) could be avoided. The GA department opined that due care and caution may be taken while obtaining Government orders in those cases when recommendation of the Commission is proposed to be overruled .With a view to ensure utmost transparency in the process of selection and entry of talented engineers to the OES cadre from a wider pool of resources in a timely manner and to streamline the process, it was decided

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to deviate from the advice of the OPSC as a policy decision to that effect has already been taken by the Government and a letter dated 17.02.2020 was issued to OPSC informing that there was an inordinate delay on the part of OPSC to give its views on the proposed amendment nut OPSC failed to give

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any opinion in reply to this letter. After approval of the Hon’ble Chief Minister, the draft cadre rules were placed before the Cabinet and the Cabinet in its 21^st meeting held on 09.12.2020 which has approved the draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012. With the assent of his Excellency, the Governor of Odisha, the Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012, were published in Odisha Gazette vide DoWR Notification No.2819 dtd. 28.01.2021. So it is obvious that the impugned amendments have been introduced after detailed deliberation with the objective to ensure that the selection process is transparent, more efficient and ensure

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W.P.(C) No. 15738 of 2022 Page 17 of 103

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more efficient candidates for the Post of Asst. Executive

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Engineer (in short ‘AEE’).

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14 . As the grievances in these three writ applications and W.P.(C) No.9435 of 2023, W.P.(C) No.9440 of 2023, W.P.(C) No.9443 of 2023, W.P.(C) No.9445 of 2023 and W.P.(C) No.

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9447 of 2023, are more or less are same, all the writ applications were heard together and a common judgment is passed without waiting for filing of separate counter affidavits in all the writ petitions, as the last date of filing of applications in the impugned Advertisement is fixed to 28.04.2023.

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15 . We have heard Mr. Ashok Mohanty, learned Senior Counsel assisted by Ms. S. Jena, learned counsel appearing for the petitioners, Mr. I. Mohanty, learned Additional Standing Counsel appearing for the opposite parties No.1 and 2 in W.P.(C) No.15738 of 2022, Mr. Budhadev Routray, learned Senior Counsel assisted by Ms. S. Sekhar, learned counsel appearing for the petitioners, Mr. I. Mohanty, learned Additional Standing Counsel appearing for the opposite parties No.1 and 2 in W.P.(C) No.10936 of 2023. Mr. S.

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Tibrewal, learned counsel has appeared for the petitioners and Mr. I. Mohanty, learned Additional Standing Counsel has appeared for the opposite parties No.1 and 2 in W.P.(C) No.10955 of 2023.

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We have gone through the note of submissions filed

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on behalf of the petitioners and the Opposite parties No. 1 and

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2 the decisions relied upon by them in W.P.(C) No. 15738 of

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RELEVENT ARTICLES OF THE CONSTITUTION AND RULES OF BUSINESS

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16 . Article 309 and 320 are relevant for deciding theses writ petitions and are reproduced below :

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“309. Recruitment and conditions of service of persons

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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

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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

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of any such Act”

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Commissions .

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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.

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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.

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3. The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted—

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W.P.(C) No. 15738 of 2022 Page 20 of 103

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a.) on all matters relating to methods of recruitment to civil services and for civil posts;

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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;

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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;

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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;

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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

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W.P.(C) No. 15738 of 2022 Page 21 of 103

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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:

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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.

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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.

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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

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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.”

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“ 323. Reports of Public Service Commissions

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(1) It shall be the duty of the Union Commission to present annually to the President a report as to the work done by the Commission and on receipt of such report the President shall cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reason for such non acceptance to be laid before each House of Parliament

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(2) It shall be the duty of a State Commission to present annually to the Governor of the State a report as to the work done by the Commission, and it shall be the duty of a Joint Commission to present annually to the Governor of each of the States the needs of which are served by the Joint Commission a report as to the work done by the Commission in relation to that State, and in either case the Governor shall, on receipt of such report, cause a copy thereof together with a memorandum explaining, as respects the cases, if any,

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where the advice of the Commission was not accepted, the reasons for such non acceptance to be laid before the Legislature of the State”

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In the Rules of Business, Rule 4 A provides that all

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matters in the Second Schedule shall ordinarily be considered

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at a meeting of the Cabinet. Rule 4 A is extracted below

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“ 4-A . There shall be a Committee of the Council of Ministers to be called the Cabinet which shall consist of the Ministers. Except when the Council of Ministers meets on any occasion, all matters referred to the

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Second Schedule shall ordinarily be considered at a meeting of the Cabinet :

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Provided that a Minister of State or a Deputy Minister may attend the meeting of the Cabinet when requested to do so, either when a subject with which he is concerned is under discussion or otherwise :

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Provided further that a Minister of State-in-charge of a department where there is no Minister-in-charge of that department, shall attend the meeting of a Cabinet where at a subject with which he is concerned is fixed or taken up for consideration

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Rule 8 is extracted below :

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“8. (1) All cases referred to in the Second Schedule shall be brought before Cabinet by the direction of

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i. the Chief Minster , or

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ii. the Minister-in-charge or the Minister of State incharge of the case with the consent of the Chief Minister

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2 ) Cases shall also be brought before the Cabinet by the Chief Minister by the direction of the Governor under clause (c) of Article 167 :

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Provided that no case in regard to which the Finance Department is required to be consulted under rule 10 shall, save in exceptional circumstances under the direction of the Chief Minister, be discussed by the Cabinet unless the Finance Minister has had opportunity for its consideration.

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*Provided further that the Chief Minister may anticipate approval of the Cabinet in cases of emergency, if the meeting of the Cabinet is likely to be delayed. Such cases shall have to be placed before the next meeting of the Cabinet as and when held”

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In the Second Schedule to the Rules of Business, in Sl

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No 13 (c), proposals for the making or amending of rules regulating the recruitment and the conditions of service of persons

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W.P.(C) No. 15738 of 2022 Page 25 of 103

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appointed to the public services and posts in connection with the

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affairs of the State has been included

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In the instructions regarding the Business of the Government

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issued under Rule 14 of the Rules made under Article 166 of the constitution of India., at Sl. No 14 xxxiii and Sl.21 ( 1) are the following entries :

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“ 14 ( 1 ) The following classes of cases shall be

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submitted to the Chief Minister before the issue of orders , namely : …….

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( xxxiii) All cases in which it is proposed to deviate from the advice tendered by the State Public Service Commission .”

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……….

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“ 21. (1) When it has been decided to bring a case before the Cabinet, the department to which the case belongs shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating with sufficient precision the salient facts of the case and the points for decision. Such memorandum and such other papers as are necessary to enable the case to be disposed of shall be circulated to the Chief Minister,

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Minister, Minister of State-in-charge of a Department and the Secretary to the Cabinet.

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(2) A memorandum prepared by any department for consideration of the Cabinet shall be drafted after due examination and consultation with all departments concerned including the Finance Department, wherever necessary. The memorandum shall be submitted in draft by the Secretary of the Department together with the papers of the related cases for consideration of the Minister-in-charge or the Minister of State-in-charge as the case may be through the Chief Secretary and thereafter for approval of the Chief Minister:

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Provided that in special circumstances of the case, the Minister or the Minister of State as the case may be may call for the papers without such examination of the Chief Secretary and place them before Chief Minister.”

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RELEVENT RULES

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17. The “ Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2012 ” (in short

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“ the OES Rules”) was enacted by the State Government in 2012 by exercising power under Article 309 of the

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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.

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Rule 6 contains the eligibility criteria for direct

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recruitment of AEEs and is extracted below:

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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 :-

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(a) Nationality : He must be a citizen of India

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(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.

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(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 :

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Provided that the upper age limit in respect of reserved categories of candidates referred to in Rule

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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.

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(d) Knowledge in Odia : He must be able to read, write and speak Odia and have—

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(i) passed Middle School Examination with Odia as a Language subject ; or

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(ii) passed Matriculation or equivalent Examination with Odia as medium of examination in non-language subject ; or

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(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

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(iv) passed a test in Odia in Middle English School Standard conducted by the School and Mass Education Department/Board of Secondary Education, Odisha.

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(e) Marital Status : A candidate if married must not have more than one spouse living :

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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.

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(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.

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Rule 7 contains the method of selection . The original

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Rule 7 of the OES Rules 2012 is extracted below:

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7. Selection by the Commission —(1) When the

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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.

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(2) The Commission on receipt of the requisition, shall in such manner as it thinks fit, shall invite applications from eligible candidates.

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(3) The Commission after receiving all the applications shall take steps to select candidates in the manner given below :

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(a) Selection shall be based on Career Evaluation and objective type written test and viva voce test.

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(b) Weightage on Career Evaluation shall be 50% (fifty per cent) and objective type written test 40% (forty per cent).

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(c) The Career Evaluation shall be made in the following manner :—

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(i) High School Certificate : 12.5%

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(Twelve & half per cent)

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(ii) Higher Secondary School

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Certificate or Diploma

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in Engineering. :12.5%

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(Twelve & half per cent)

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(iii) Degree in Engineering : 25%

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(Twenty-five per cent)

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(d) Weightage on the Viva Voce Test will be 10% (Ten per cent)

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(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.

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Explanation—The Commission shall prepare a common merit list taking into account all categories along with separate merit list categorywise.

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This Rule was amended in the year 2014 .Vide Rule 2

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of the Amendment Rules , Rule 7 was amended and out of 100 marks , 90% mark was meant for written test and 10%

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mark for vivo-voce. The said amendment is extracted below :

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….“ 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:–

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“(3) The Commission on receipt of the requisition shall take steps to select the candidates in the manner given below:–

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(a) Selection shall be based on objective type written

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test and

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viva voce test.

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(b) Weightage on objective type written test shall be 90% (ninety per cent).

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(c) Weightage on the Viva Voce test shall be 10% (ten per cent).

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“(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.

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Explanation– The Commission shall prepare a common merit list taking into account all categories along with separate merit list category wise .”

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On 28.01.2021 in exercise of power under Article 309

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of the Constitution of India, the Department of Water

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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

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of the present writ petitions we are concerned with Rule 4 of

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the Amendment rules 2021 which has amended Sub Rule 3 and Sub Rule 4 of Rule 7 by changing the method of selection and making the GATE Score to be the only sole basis of selection of candidates who fulfil the legibility criteria laid

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down in Rule 6.

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Rule 4 of the Amendment Rule 2021 is extracted

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below:

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“4. In the said Rules, in rule 7”,

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(i) for sub-rule (3), the following sub-rule shall be substituted, namely:

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“(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

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the date of advertisement (including the year of advertisement).

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(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”.

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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).

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ADVERTISEMENT

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18. Advertisement No 20 of 2022-23 dated 18.03.2023

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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

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Orissa Engineering Service under water resources

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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 :

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“5. Method of Selection : –

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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

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advertisement (including the year of advertisement.

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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 .”

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This Advertisement has been challenged in WP ( C)

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10366 of 2023 and WP( C) 109355 of 2023.

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SUBMISSIONS ON BEHALF OF THE PETITIONERS

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19. Mr. A. Mohanty, learned Senior Counsel, assisted by

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Ms. S. Jena, learned counsel for the petitioner has submitted

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that the petitioners who are aspirants for the post of Asst. Executive Engineers under the State Government , confine their challenge to Rule 4 of the impugned Amendment Rules 2021 which amends Rule 7 ( 3 ) and Rule 7 ( 4 ) of the OES Rules 2012 . On coming to learn about this amendment they alongwith other aggrieved aspirants had approached the Principal Secretary of Water Resources Department by filing a representation dated 23.05.2022. But when this was not considered , they filed the writ application. Notice had been issued to the opposite parties and they have filed counter affidavits and rejoinder affidavit has been filed by the petitioners in reply to the counter affidavit of opposite parties No.1 and 2. But before the matter could be finally adjudicated, the Odisha Public Service Commission, Cuttack (in short “OPSC”) has published advertisement No. 20 of 20022-23 for recruitment to the post of Assistant Executive Engineer (Civil) and Assistant Executive Engineer (Mechanical) in Group-A of the Orissa Engineering Service under the Water Resources Department on 18.03.2023 prescribing GATE

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Scores to be the basis of selection and 28.04.2023 has been indicated to be the last date of application.

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Challenging the substitution of the method of Selection through GATE scores, Mr. Mohanty, learned Senior Counsel has submitted that the syllabus of GATE is designed for higher study and entry into the higher education institution

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and has nothing to do with selection of engineers for services. Candidates who have never applied for GATE will be deprived of applying for the posts as generally as after completion of the engineering course, candidates prepare for appointment under the State Government and most of them do not prepare or appear in the GATE Examinations. Fresh engineering graduates opt for appearing in the GATE Examination for the purpose of higher education and for joining the public sector undertakings, while many engineering graduates join Private Companies and prepare for Government service by appearing in the examination held by the OPSC. GATE is an examination for admission into the master programme and doctorate programme and recruitment

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of some public sector undertaking and it is not required for the engineers who will serve the State Govt. The amendment has completed changed the examination / selection method depriving the aspiring engineers who have not appeared in the GATE examinations from applying for post under the Odisha

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Government which is violative of Article 14 and 21 of the Constitution of India and therefore liable to be set aside . He has also submitted that Article 320 (3) of the Constitution of India specifically provides that at the time of recruitment to the Civil Post, the State shall consult the Public Service Commission but the impugned notification amending the rule has been made without considering the opinion of the OPSC as the OPSC had specifically questioned the substitution of the method of selection by written test and vive voce by GATE score .This is apparent from the statement made by the opposite party No.1 and 2 in paragraph-4 (vii) of their counter affidavit . Vide letter dated 4.3.2016 (Annexure-B/1 to the counter affidavit) suggestion had been given by the OPSC to make amendment as per suggestion No.2 so as to get better

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candidate to the post, but in complete disregard to the said suggestion, Rule 7 has been amending confining it to the GATE score which appears to be arbitrary and irrational. He has submitted that that no doubt the opposite parties have the power to prescribe the qualification of the candidates for appointment but prescribing the GATE score as the only basis for recruitment bypassing objective written test and viva voce test and thereby depriving the more meritorious candidates who have never appeared in GATE is arbitrary and discriminatory. GATE scores have not been made the sole basis of recruitment by all PSU s and like companies as “BHEL’ and HAL are still recruiting Engineers on the basis of computer based examination and interview and 2 and 1/2 duration test consisting of MCQ on General Awareness and 100% MCQ in concerned discipline.

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20 . Mr. B. Routray, learned Senior Counsel has submitted that the introduction of evaluation by considering the highest on the valid GATE score of preceding three years from the date of advertisement is illegal and arbitrary as it has given the

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procedure of objective type, written test and viva voce test a go by . He has submitted that the very purpose of GATE examination is for seeking examination and Financial Assistance to Master Degrees and Doctoral programmes and the same is used by different PUSs for getting their candidate shortlisted but introduction of such qualification for getting a

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job in Group A service of the State is arbitrary and irrational. On account of the impugned amendment, the petitioners will not get any opportunity to be considered for the post as they have not passed the GATE examination and the said amendment will discriminate between the candidates who have valid GATE score and those who have not appeared in the GATE and this requirement is violative of Article 14 of the Constitution of India as it has no nexus with the object of selecting the best candidate for the post of Assistant Engineer.

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His further contention is that this amendment has been enacted with the objective of giving preference to a particular class of persons thereby depriving the petitioner and other candidates from consideration and is therefore discriminatory and fails

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the test of reasonableness, for which it should be struck down. This amendment has no rationale with the object of selection of candidates for recruitment for the post of Asst. Executive Engineer as meritorious student having brilliant academic career will be kept out of the zone of consideration by confining the selection only to the group of person who have

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appeared in the GATE Examination and therefore, discriminatory and is hit by Article 14 of the Constitution of India by creating a class within a class. Rule 7(3) and 7(4) are therefore liable to be declared ultra virus and struck down. He has also contended that the amended Rule also suffers from colourable exercise of power under delegated legislation. He has also contended that under Article 320(3) of the Constitution of India, the State is required to consult the State Public Commission in the matter of method of recruitment to Civil Services and for all Civil Post. In this case the OPSC had given its opinion not to proceed with the amendment which relates to requirement of appearing in GATE Examination, but the opinion has been ignored and has not been brought to the

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notice of the Cabinet before going ahead with the amendment. The OPSC in its letter dated 04.03.2016 has recommended a two stage written examination along with viva vice to ensure meritocracy of candidates in the dual field of theory and practical knowledge and there was no recommendation to conduct examination on the basis of GATE. In its letter No 1232 dated 19.02.2020 addressed to the Special Secretary to Government Water Resources Department ( Annexure 8 to the writ application ) , the OPSC has specifically objected to the amendment of rule 7 of the OES Rules 2012. The recommendations of the OPSC are mandatory in nature as regards to amendment to recruitment rules but the Water Resources Department has chosen to ignore its recommendation which vitiates the amendment. There should

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be one uniform selection procedure so far as appointments of Assistant Executive Engineers in different departments of the State is concerned, and other Departments (PanchayatiRaj and Drinking Water and Agriculture Department ) have not given GATE score as the sole criteria but the department of Water

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Resource has given a go bye to maintaining the uniformity by introducing GATE as the sole eligibility criteria for being appointed as Assistant Executive Engineers. The copies of the advertisement have been annexed as Annexure-9 Series to the writ petition. He has ultimately submitted that assuming for a moment that the impugned amendment is not interfered with , even then the advertisement is liable to be quashed as being premature and for not providing a level playing field to candidates who have not appeared for the GATE examinations as the time gap between the coming into force of the Amendment Rules 2021 and the impugned Advertisement only provides candidates the opportunity to appear in two GATE examination for a particular years starts in the previous year and the examination itself is held in February of that year.

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21 . Mr. A. Mohanty, learned Senior counsel and Mr. B. Routray, learned Senior Counsel have relied on the decisions of the High Court of Patna in the case of Ram Monohar

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Pandey & Others Vs. State of Bihar & Others : CWJ Case

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No. 8760 of 2019 decided on 05.08.2019, where the amendment introducing the qualification of GATE for recruitment to the post of Lecturers in Polytechnic Colleges and Engineering Colleges has been struck down . They have also stated that this decision had been challenged before the Supreme Court in SLP (Civil) Diary No. 30880 of 2019 ( Smita Kumari & Others Vs. Ram Mohan Panday ), but the Supreme Court vide order dated 22.11.2019, dismissed the special leave petition and the application for impleadment. They have also relied on the decision of the High Court of Kerala in the case of Aishwarya Mohan vs. Union of India and Others (W.P.(C) No. 30638 of 2021 decided on 06.06.2022) : 2022 SCC Online Kerala 3090 and in the case of Asha Kaul & Others Vs. State of Jammu and Kashmir & Others reported in (1993) 2 SCC 573 (para-6). In the case of

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Duddilla Srinivasa Sharma & Others Vs. V. Chrysolite reported in (2013) 16 SCC 702 .

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SUBMISSSIONS ON BEHALF OF THE OPPOSITE

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PARTIES:

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22. Mr. I. Mohanty, learned Additional Standing Counsel has submitted that :

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i) The State government is competent to promulgate the 2021 amendment rules under Article 309 of the Constitution of India. Relying on the decision of the Supreme Court in Maharastra Public Service Commission v. Sandip Sriram Warade and others (2019) 6 SCC 362 he has submitted that the essential qualification for appointment to a post are for employer to decide and the employer is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of the work. He also relies on the decision of Madhya Pradeash High Court in the case of Vikas Malik v. Union of India and others reported in

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(2019) ILR MP 558 where it has been held that t he prescription of minimum qualifications and the mode of appointment in the sphere of public employment is within the domain of the appointing authority and the Courts and tribunals can neither prescribe the qualifications nor entrench upon the power provided the same are reasonable.

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ii) The amended Rule 7(3) is not arbitrary and has not deprived the petitioners from applying to the post of Asst. Executive Engineer. The minimum qualification for appearing in GATE examination is “A candidate who is currently studying in the 3^rd or higher years of any undergraduate degree program OR has already completed any government approved degree program in in Engineering / Technology / Architecture / Science / Commerce / Arts” and the minimum eligibility for applying to the post of AEE as per Rule 6 of the 2012 Rules is Degree in Engineering or equivalent qualification from any University. As the minimum qualification for applying to the post of AEE and the minimum qualification for appearing in the GATE examination is identical, the petitioners who are Degree Engineers are eligible to appear in GATE examination and the change of the method of selection has not excluded any of the petitioners from participating in the recruitment process. The selection examination which was being conducted by OPSC would now be conducted by the Indian Institute of

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Technology (in short “IIT”). There is no bar for appearing in GATE examination for number of times. So, a candidate who has appeared in GATE examination about 4 years ago can again appear in the examination to be considered for the post of AEE. The impugned amendment was published in the Odisha Gazette on 28.01.2021 while the information brochure

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for GATE 2022 was published on 01.08.2021 and the last date of application was 24.08.2021 and the examination was scheduled on various dates in February, 2022. Similarly, the last date for application for GATE-2023 was 30.8.2022 and the examination was scheduled on various dates in February, 2023. The last recruitment to the post of AEE was held in the year 2019 vide advertisement dated 29.6.2019 under the old un-amended Rules. After about more than two years, the advertisement dated 18.3.2023 has been published and in the meantime, the GATE examination has been conducted two times as the petitioners had two opportunities to appear in the GATE examination and thereafter to apply to the post of AEE. As the petitioners have chosen not to appear in GATE

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examination, their contention that they have been deprived for applying for the post is liable to be rejected. The petitioners have approached this Court by filing the writ petition in June, 2022 which is more than one and half years after the impugned rules came into force and the rules had not been stayed by this Court. There was no reason for the petitioners

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not to appear in GATE examinations which were conducted in February, 2022 and February, 2023. He has placed reliance on a) the judgment dated 18.10.2022 of the Madras High Court in the case of W.P. (C) Nos.11026 and 9491 of 2022 (Elambarathy S v. NLC India Limited and others) where selection on the basis of GATE score was upheld ,

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b) the decision of the Supreme Court in the case of Mohd

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Rashid v. The Director, Local Bodies, New Secretariat and

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others ( Civil Appeal No.136 of 2020 ) delivered on 15.01.2020 where the challenge to method of recruitment was dismissed by the Court.

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c) He has also submitted that the decision in the case of Ram

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Manohar Pandey (supra) is not applicable to the present case

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and is clearly distinguishable as in that case the amendment with regard to the eligibility and educational qualifications for recruitment to the post of Lecturers in Polytechnic Colleges and Engineering Colleges were under challenge. The Rules had been amended to remove the written test and had replaced it with the GATE score which would be given weightage of 30 marks as the AICTE has framed the minimum qualification for appointment of teachers to technical institutions. The High Court held that since the GATE examination is not made an eligibility condition, the State cannot make it a basis of evaluation of work knowledge and teaching skill and allot some weightage marks to it. In the present case, the State Government has completely replaced the previous model of written and viva voce test and replaced it with one single criteria which is the score in GATE examination. Therefore, it

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does not create any separate class is not arbitrary or discriminatory.

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iii) Article 320 (3) of the Constitution of India has not

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been violated while promulgating the Amendment Rules 2021

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as the decision to amend the impugned rules was taken after thorough and prolonged discussions with the State Public Service Commission and with the objective to bring to more objectivity and transparency in order to get best candidates for the position of Assistant Executive Engineer. On 11.11.2019, the OPSC had requested for certain clarifications inter alia the advantages for switching on to GATE as the method of selection to which the opposite party had duly replied to the said letter dated 12.12.2019 wherein several advantages for switching to GATE was indicated. In response to letter dated 17.02.2020 of the Department of Water Resources, the OPSC in its reply dated 19.2.2020 had concurred with all the amendments except the method of selection to be GATE examination. This view was deliberated upon by the Departments and a committee under the Chairmanship of Chief Secretary was constituted. Thereafter after obtaining the views of the GA & PG Department and the Law Department, the matter was sent to the Hon’ble Chief Minister who approved it. After the approval of the Chief Minister, the

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proposal for amendment of 2012 Rules were placed before the Cabinet in its 21^st meeting held on 09.12.2022 wherein the Cabinet approved the draft amendment rules and the Rules received the assent by the Hon’ble Governor of Odisha and the rules were published in the Odisha Gazette vide DoWR

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Notification No.2819 dated 28.01.2021. As the State Government has duly consulted with the OPSC on the said matter before taking a decision to amend the rules and the process of consultation with the Public Service Commission not always mandatory as per the decision of the Constitution Bench of the Supreme Court in the case of State of U.P. v. Manbodhan Lal Srivastava reported in 1958 SCR 533.

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CITATIONS / CASE LAW

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23 . In Ram Monohar Pandey (supra), where the

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amendment introducing the qualification of GATE for recruitment to the post of Lecturers in Polytechnic Colleges and Engineering Colleges was challenged, the Patna High Court has held as follows :

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….“There is absolutely no issues on rearrangement of weightage marks amongst the different categories, the problem which arises by virtue of this amendment is, that in the process of amending the scheme of evaluation on work knowledge and teaching skill, the State has done away with the scheme of written test and in so far as the candidates seeking appointment in the Engineering/ Technology Branch is concerned, they are now to be assessed on the basis of percentile obtained by them in the GATE examination subject to a maximum of 30 marks.

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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.

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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

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already Post Graduates and are not required to pass such GATE examination .”….

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…..“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

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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 .”…

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In the case of Aishwarya Mohan (supra) , the Kerala

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High Court has held as follows :

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… “10. No doubt, the precedents cited by the learned Solicitor General lays down the position that, fixing the eligibility of a particular post is within the domain of the employer and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or having no rational nexus to the objective sought to be achieved. The essential difference between the facts involved in the cited precedents and the case at hand is that, here the challenge is not against qualification or eligibility, but focused on the selection process. The challenge is mainly on the ground that, incorporation of the restrictive selection criteria is nothing but indirect discrimination.”…

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….

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…….“16. The above discussion leads me to the only conclusion t.hat Ext.P3 notification insofar as it confines the selection process to only candidates who had participated in the CLAT-2021 PG programme, violates Article 16 of the Constitution of India. Having held so, rather than upsetting the whole selection process, I deem it more appropriate to direct the second respondent to accept the petitioner's application and conduct a selection test or interview for testing her eligibility for appointment to the notified post. Further action with respect to the appointment shall be taken depending on the outcome of such selection test/interview. The above direction shall be given effect to within one month of receipt of a copy of this judgment. The writ petition is disposed of accordingly. “ …

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The case of Asha Kaul (supra) pertained to approval

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and publication of the select list of District Munsifs prepared by

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the Jammu and Kashmir Public Service Commission . The Supreme Court interalia held as follows :

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…. “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

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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.”….

¶401

W.P.(C) No. 15738 of 2022 Page 57 of 103

¶402

¶403

.....“ 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.”

¶404

In the case of Duddilla Srinivasa Sharma (supra) , the Supreme Court has held :

¶405

….“ 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

¶406

W.P.(C) No. 15738 of 2022 Page 58 of 103

¶407

¶408

opinion that the impugned judgment of the High Court has taken the correct view.”….

¶409

“.

¶410

In Sandip Sriram Warade (supra) , the Supreme Court has held as follows :

¶411

“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

¶412

W.P.(C) No. 15738 of 2022 Page 59 of 103

¶413

¶414

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.”

¶415

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:-

¶416

“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

¶417

W.P.(C) No. 15738 of 2022 Page 60 of 103

¶418

¶419

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:

¶420

(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

¶421

W.P.(C) No. 15738 of 2022 Page 61 of 103

¶422

¶423

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.”

¶424

The High Court of Madhya Pradesh (Indore Bench) in

¶425

Vikas Malik (supra) has interalia held : :

¶426

…” 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

¶427

W.P.(C) No. 15738 of 2022 Page 62 of 103

¶428

¶429

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)]…”

¶430

In the case of Mohd Rashid v. The Director, Local Bodies, New Secretariat and others ( Civil Appeal No.136 of 2020 ) delivered on 15.01.2020, the recruitment rules had been amended on 7th June, 2013 and the advertisement was issued on 12th September, 2013. The Supreme Court interlalia held :

¶431

…“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.

¶432

W.P.(C) No. 15738 of 2022 Page 63 of 103

¶433

¶434

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:-

¶435

“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,

¶436

W.P.(C) No. 15738 of 2022 Page 64 of 103

¶437

¶438

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].”

¶439

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

¶440

W.P.(C) No. 15738 of 2022 Page 65 of 103

¶441

¶442

on the basis of recruitment process already initiated or to be initiated afresh.”

¶443

In the case of State of U.P. v. Manbodhan Lal Srivastava reported in 1958 SCR 533 , where the Hon’ble Supreme Court has held as follows:

¶444

… “ 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

¶445

W.P.(C) No. 15738 of 2022 Page 66 of 103

¶446

¶447

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

¶448

W.P.(C) No. 15738 of 2022 Page 67 of 103

¶449

¶450

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

¶451

W.P.(C) No. 15738 of 2022 Page 68 of 103

¶452

¶453

was not in excess of the requirements of the situation.

¶454

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.”…

¶455

…“11. The principle laid down in this case was adopted by the Federal Court in the case of

¶456

W.P.(C) No. 15738 of 2022 Page 69 of 103

¶457

¶458

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.”…

¶459

…”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

¶460

W.P.(C) No. 15738 of 2022 Page 70 of 103

¶461

¶462

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.

¶463

24. As we wanted to verify if the views of the OPSC had been placed before the Chief Minister and the cabinet before

¶464

the Amendment Rules 2021 were sent to the Governor for his signature, we had directed the learned Additional Standing Counsel to produce the original file for our perusal. File No FE – II – AEE (C) – 10/2019 of the WR Department has been

¶465

produced by him and we have perused the same carefully.

¶466

W.P.(C) No. 15738 of 2022 Page 71 of 103

¶467

¶468

At page 46 of the Note sheet, noting No 103 to 108

¶469

are available .Noting No 105 to 108 are extracted below :

¶470

“Noting No 105

¶471

This was discussed with Chief Secretary.

¶472

This is regarding amendment of Cadre Rule (Methods of Recruitment and Conditions of Service) Rules, 2019 for Odisha Engineering Service.

¶473

The cadre restricting of IES took place following Cabinet decision of Jan 2019.

¶474

In order to implement the restructuring of OES Cadre it was required to finalize the new Cadre Rule.

¶475

The draft cadre rule, inter-alia provided for the selection of candidates to the service on the basis of

¶476

“highest of the valid GATE score of preceding three years of the date of advertisement (including the year of advertisement)” in lieu of objective written test and viva-voce test for selection of candidates by OPSC in the feeder grade of OES.

¶477

This had been suggested since GATE system of examination is a national level standardized and recognized engineering entrance examination not only for selection of students in PG program in seven IITs, NITs, IITs & IISC but also selection of employees in high level

¶478

public sector jobs; in Group-A level posts in Central Government i.e. Senior Field Officer (Tele), Senior Research Officer (Crypto) and Senior Research Officer (S

¶479

W.P.(C) No. 15738 of 2022 Page 72 of 103

¶480

¶481

& T) in Cabinet Secretariat Government of India. Several public sector undertakings (PSUs) like BHEL, GAIL, HAL, IOCL, NTPC, NPCIL, ONGC & PGCI have used GATE score to short list the candidates for employment. 6. Government approval was taken to the draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2019 duly vetted by the General Administration Department (32206/WR/2019 GA View’Page1) and Law Department (32204/WR/2019 Law View’Page 1)

¶482

The matter was then referred to the Odisha Public Service Commission (OPSC) for their concurrence. The OPSC has concurred all the above amendments except Para-4, relating to selection process of direct recruitment of Assistant Executive Engineer (AEE) and the Commission has not agreed to the proposed recruitment system through GATE score .

¶483

Views of GAD of Law Department were sought again. GA & PG Deparment views that “ In this respect, it may be indicated that the recommendation of the Commission is not obligatory to be accepted unless there is sufficient justification of non-acceptance of their advice/suggestions/ recommendations….” and Law Department has opined that “…. this Department has noting further to say in the matter except for reiterating the same since it is basically of policy decision, the A/D, if so advised, may seek kind orders of the Hon’ble Chief

¶484

W.P.(C) No. 15738 of 2022 Page 73 of 103

¶485

¶486

Minister under Instruction 1(14)(1) (xxx(iii)) of Instructions issued under Government Rules of Business in case it proposes to deviate from the advice tendered by the OPSC ”

¶487

In view of the above opinion of GA & PG Deptt. and Law Deptt. and with a view to ensuring utmost transparency in the process of selection; ensuring entry of talented engineers to the OES from a wider pool of resources, timely completion of the process of selection and to streamline the process, we may deviate from the advice of the OPSC as a policy decision to that effect has already been taken by the Government.

¶488

Kind approval of the Hon’ble Chief Minister is solicited to place the matter, the draft rules, before the Cabinet for their approval.

¶489

Smt. Anu Garg (Principal Secretary,Water Resources), 07-Nov-2020 12:48:06.

¶490

Noting 106

¶491

As Proposed.

¶492

Asit Kumar Tripathy (Chief Secretary, Office of Chief Secretary), 09-Nov-2020 15:40:37

¶493

Noting 107

¶494

ସଦୟ ଆନୁେମାଦନ ନିେମେ�

¶495

Shri Raghunandan Das (Minister of State (Independent), Water Resources), 12-Nov-2020 11:30:07

¶496

Noting 108

¶497

ଅନୁେମାଦନ କରାଗଲା

¶498

W.P.(C) No. 15738 of 2022 Page 74 of 103

¶499

¶500

Shri Naveen Patnaik (Chief Minister, Office of Chief Minister) 20-Nov-2020 13:13:00”

¶501

At Page 50 and 51 of the Note sheet, Noting No 112

¶502

to 120 are available . They are extracted below :

¶503

“ Noting No 112

¶504

PUC at (6092 Cabinet Approval Page1) may please be seen.

¶505

This is regarding approval of the cabinet to the proposed amendment to the Odisha Engineering Service Cadre (Methods of Recruitment and Conditions of Service) Rules, 2012.

¶506

¶507

W.P.(C) No. 15738 of 2022 Page 75 of 103

¶508

¶509

for placing the same before the Cabinet. The approval of Hon’ble Chief Minister for placing the same before the Cabinet is at Noting 108 (Notings : 108).

¶510

The Parliamentary Affairs Department vide their Letter No.6092 dtd. 09.12.2020 at (6092 Cabinet Approval’Page1) has intimated that, the Cabinet in its 21^st meeting held on 09.12.2020 has approved the draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012.

¶511

Now, if approved, the draft Odisha Engineering Service (Methods of Recruitment and Conditions of

¶512

Service) Amendment Rules, 2012 may be placed before the Hon’ble Chief Minister, Odisha for obtaining the kind approval of his Excellency Governor of Odisha.

¶513

Submitted for kind orders.

¶514

Enclosures

¶515

Draft 6092 Date 18-Dec-2020 16:50:19 has been added

¶516

Dipak Kumar Baral (Section Officer, Water Resources), 18-Dec-2020 20:18:54

¶517

Noting 113

¶518

Notes above.

¶519

This is regarding approval of the cabinet to the proposed amendment to the Odisha Engineering Service Cadre (Methods of Recruitment and Conditions of Service) Rules, 2012 (6092 Cabinet Approval;Page1).

¶520

W.P.(C) No. 15738 of 2022 Page 76 of 103

¶521

¶522

The draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2020 has been framed and sent to the GA & PG Deptt. for vetting. The vetting of GA & PG Deptt. is at (32206/WR/2019 GA View’Page1) Simultaneously Law Deptt. vide at (32204/WR/2019 GA View’Page1) has given their approval. Then the draft rule was sent to Government for approval. After obtaining Government approval at (32207/WR/2019 Government Approval’Page1), the Draft Amendment Rule was sent to OPSC for concurrence. The OPSC submitted its views/concurrence at (20392/WR/2020 opsc reply with clarification’Page1) Accordingly the corrected Draft of Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2020 was placed before the Hon’ble Chief Minister, Odisha for kind approval for placing the same before the Cabinet. The approval of Hon’ble Chief Minister for placing the same before the Cabinet is at Noting 108 (Notings : 108). The Parliamentary Affairs Department vide their Letter No.6092 dtd. 09.12.2020 at (6092 Cabinet Approval’Page1) has intimated that, the Cabinet in its 21^st meeting held on 09.12.2020 has approved the draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012.

¶523

W.P.(C) No. 15738 of 2022 Page 77 of 103

¶524

¶525

Now, if approved, the draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012 may be placed before the Hon’ble Chief Minister, Odisha for obtaining the kind approval of his Excellency Governor of Odisha.

¶526

Submitted for kind orders.

¶527

Dhaneswar Panda (Under Secretary, Water Resources), 30-Dec-2020 17:02:27.

Noting 114

Notes above.

W.P.(C) No. 15738 of 2022 Page 78 of 103

¶533

¶534

views/concurrence at (20392/WR/2020 opsc reply with clarification’Page1) Accordingly the corrected Draft of Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2020 was placed before the Hon’ble Chief Minister, Odisha for kind approval for placing the same before the Cabinet. The approval of Hon’ble Chief Minister for placing the same before the Cabinet is at Noting 108 (Notings : 108).

¶535

¶536

The draft Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2012 may be placed before the Hon’ble Chief Minister, Odisha for obtaining the kind approval of his Excellency Governor of Odisha.

¶537

Submitted.

¶538

Prabhat Kumar Bhoi (Additional Secretary, Water Resources), 30-Dec-2020 18:10:40.

¶539

Noting 115

¶540

As Proposed

¶541

Smt. Anu Garg (Principal Secretary, Water Resources), 31Dec-2020 16:06:09

¶542

W.P.(C) No. 15738 of 2022 Page 79 of 103

¶543

¶544

Noting 116

¶545

Submitted for kind approval.

¶546

Shri Raghunandan Das (Minister of State (Independent), Water Resources), 31-Dec-2020 17:32:28.

¶547

Noting 117 ଅନୁେମାଦନକରାଗଲା Shri Naveen Patnaik (Chief Minister, Office of Chief Minister) 04-Jan-2021 16:51:22”

¶548

Noting 118

¶549

Smt. Anu Garg (Principal Secretary, Water Resources), 05Jan-2021 10:03:17 Noting 119 Prabhat Kumar Bhoi (Additional Secretary, Water Resources), 05-Jan-2021 10:12:26. Noting 120 Dhaneswar Panda (Under Secretary,Water Resources), 05Jan-2021 12:45:41.”

¶550

The Draft Memorandum for the Cabinet is at page 364 to 367 of the file. After the proposed amendment, it has been

¶551

stated at paragraphs 4.0 to 8.0 as follows

¶552

“4.0…The proposal has been concurred in by G.A. & P.G Department on 29^th September 2020 in OSWAS File No. PTI-WR-FE-II-Policy-0002-2019 and by Law Department vide their UOR No.5131/PSL dtd 25^th September 2020 in File No. FE-II-AEE(C)10/2019.

¶553

W.P.(C) No. 15738 of 2022 Page 80 of 103

¶554

¶555

5.0 The Odisha Public Service Commission has given their concurrence to the proposal vide their Letter No. 1232/PSC, dtd 19.02.2020.

¶556

6.0 The synopsis in respect of the above proposal has been given in the appendix to the Memorandum as Annexure-A .

¶557

7.0 The Financial Memorandum is annexed as Annexure-B as laid down in P.A. Department Circular No. CAB-3/2013-2047/PAD dtd. 11.04.2013.

¶558

8.0 The approval of Hon’ble Chief Minister has been obtained on 20^th November 2020 in OSWAS File No. . PTI-WR-FE-II-Policy-0002-2019 to place this memorandum before the Cabinet.

¶559

The memorandum for amendment to Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2012 is placed before the cabinet for its kind approval.

¶560

Sd/-

¶561

Name: Anu Garg

¶562

Designation: Principal Secretary to Govt.

¶563

Department of Water Resources.”

¶564

W.P.(C) No. 15738 of 2022 Page 81 of 103

¶565

¶566

Annexure A at page 363 which is the synopsis and

¶567

Annexure B at page 362 the Financial Memorandum are

extracted below:

“Annexure A

SYNOPSIS

File No. FE-II-AEE(C) – 10/2019/WR/22561 Dt-27/11/2020 Subject:- AMENDMENT TO ODISHA ENGINEERING SERVICE (METHODS OF RECRUITMENT AND CONDITIONS OF SERVICE RULES2012)

¶572

Sl. No.	Gist of decision required	Backgrounds	Benefits/Execut ed outcome	Remarks
1.	Amendments to the Odisha Engineering Service (Methods of Recruitment and Conditions of Service ) Rules, 2012 – to abolish the post of Deputy Executive Engineer, merger of the posts of Superintending Engineer, Level-A & Superintending Engineer, Level-II and to be re-designated as Superintending Engineer in the Pay Level-14 creation of the post of Additional Chief Engineer in the pay level 16.	As per the decisions taken in the 70^th meeting of the Cabinet held on 26^th February 2019 to restructure the Odisha Engineering Service Cadre. To address the issue of increasing workload in various engineering departments. To remove stagnation in promotion and resultant erosion in productivity in the cadre and. To resolve the pay anomaly of this cadre vis a vis other provincial premium cadres of the State such as OMS, OAS	To streamline the Odisha Engineering Service Cadre by making it six tier cadre to enhance proficiency. To remove the asymmetry in the promotional pyramid at the interface between AEE and DEE, Superintending Engineer, level –I & level-II. Better supervision and control of field Divisions with higher responsibility and administrative power.	The amendments to the Odisha Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2019 is hereby introduced.

¶573

W.P.(C) No. 15738 of 2022 Page 82 of 103

¶574

¶575

		and OFS etc.
2	To increase the number of posts of Assistant Executive Engineer (AEE) to be filled up by way of promotion from the posts of Assistant Engineer (AE) in the Odisha Diploma Engineering Service from 33% to 40%	As per the decisions taken in the 70^th meeting of the Cabinet held on 26^th February, 2019 to provide better promotional avenue to the engineers of Odisha Diploma Engineering Services.	To provide be promotional avenue to engineers Odisha Diplo Engineering Services and remove stagnati	tter the of ma to on
3	To amend the constitution of the Departmental Promotion Committees	As per requirement in accordance with instruction of G.A. Department O.M. No. 31897 dtd. 11.11.2013	To streamline promotion case Engineering personnel	the s of
4	To bring in meritorious engineering students to the Odisha Engineering Service (OES) through a fair and standard test procedure within minimum time frame, the score in Graduate Aptitude Test in Engineering (GATE) is being considered to replace the present process of selection of Engineering Graduates to fill up the direct recruitment quota in OES.	The Odisha Public Service Commission (OPSC) requested the Government to review the selection process of direct recruitment to the post of Assistant Executive Engineers during March, 2016 with a suggestion that the system of selection to be based more on merit than elimination.	GATE, being standardized examination comprehensive understanding the candidates various undergraduate subject Engineering Technology provide a pool meritorious students in timely manner.	a on of in in / will of a

¶576

Sd/-

¶577

Name Anu Garg

¶578

Designation :Principal Secretary to Govt. Department of Water Resources.

¶579

Annexure – “B”

¶580

Financial Memorandum

¶581

Yes No

¶582

Does the proposal involves revenue loss ? (Put a √ mark in the appropriate box)

¶583

√

¶584

W.P.(C) No. 15738 of 2022 Page 83 of 103

¶585

¶586

In case the proposal involves revenue loss what is the estimated
quantum of loss ?
(Indicate the amount in the
appropriate box) - Non-recurring Not Applicable
- Recurring
Not Applicable
(per annum)

¶587

Does the proposal involve a additional budgetary
expenditure ? Yes No
(Put a √ mark in the appropriate box) √
4. In case the proposal involves additional budgetary expenditure
what is the estimated quantum ?
(Indicate the amount in the
Not Applicable
Capital
appropriate box) - Non-Recurring
Revenue Not applicable
- Recurring
Not Applicable
(per annum)
5. Does the proposal envisage creation of new posts ? Yes No
(Put a √ mark in the appropriate box) √
If Yes, what is the estimated annual salary expenditure ? Not applicable
(indicate the amount in the appropriate box)

¶588

Does the proposal involve imposition of any new tax Yes No or any change in the method of assessment or the pitch √ of any existing tax, land revenue or irrigation rates ? (Put a √ mark in the appropriate box) Not applicable

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W.P.(C) No. 15738 of 2022 Page 84 of 103

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It Yes, what is the estimated annual revenue yield ?

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(Indicate the amount in the appropriate box)

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Sd/(Anu Garg) Principal Secretary to Government. DoWR

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From this it is crystal clear that the cabinet has not

¶595

been intimated about the objection / reservations of the OPSC

¶596

The decision of the Department to deviate from opinion of the OPSC has not been specifically brought to the knowledge of the cabinet. On the other hand at Paragraph 5.0 it has been stated that “ the Odisha Public Service Commission has given their concurrence to the proposal vide their Letter No. 1232 /PSC dtd 19.0.2.2020’ which is a palpably incorrect statement as the OPSC has specifically stated in the letter that

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“ In inviting a reference to the letters on the subject cited above , the draft notification ( Amendment Rules) forwarded vide yr letter No 22175 dt 04.10.2019 is hereby concurred except Para 4 ” ….

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Thereafter the OPSC has specifically stated in the letter that :

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…“The Commission vide its letter No.1316 dt. 04-032016 had recommended a two stage written

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W.P.(C) No. 15738 of 2022 Page 85 of 103

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examination alongwith viva-voce test to ensure meritocracy of candidates in the dual field of theory and practical knowledge. There was no recommendation to conduct the examination on the basis of GATE. Notwithstanding above, the proposal was extensively deliberated by the Commission and the representative of the Deptt. on 31-01-2020. The Commission is of the opinion that the syllabus or GATE designed for entry to higher education Institutions is not suitable for selection of officers to the Group A category of the Govt. with the laid down terms and conditions under Art. 311 of the Constitution of India.

¶603

However, if the Deptt. of Water Resources considers to ignore the recommendations of the Commission which are mandatory in nature as regards to amendment to the Recruitment Rules, the Supreme Court has opined and directed that such decisions of the executive are subject to judicial review. In addition, the proposed draft notification also needs to suppress amendments vide Notification No.24848-FE-II-AEE(C) -83/2014/WR dt 31 Oct. 2014 and also examine Notification No.11194-WRFEII-POLICY-0001/2014/WR dt 19 May 2015 prior to issue of suitable instructions.

¶604

W.P.(C) No. 15738 of 2022 Page 86 of 103

¶605

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But this letter No 1232 dated 19.02.2020 of the OPSC

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has not been made an Annexure to the Draft Memorandum put up before the cabinet . This letter has been annexed as ANNEXURE 8 in W.P.(C) No. 10936 of 2023.

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ANALYSIS

¶609

25. On a conspectus of the statutory provisions , the advice of the OPSC , the manner in which the Department has placed information before the Cabinet , we find that

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A. T here is no gainsaying the State Government is within its power under Article 309 of the Constitution of India to prescribe the procedure for recruitment to the post of Assistant Executive Engineer and consequently amend the OES Rules 2012 which have been framed for this purpose.

¶611

But the Rules so framed have to withstand the test of arbitrariness and rationality besides being transparent on the procedure. In this case the OPSC , which was consulted by the Government in accordance with Article – 320 (3) of the Constitution had expressed its reservation regarding the

¶612

W.P.(C) No. 15738 of 2022 Page 87 of 103

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advantage and purpose of the proposed amendment to Rule 7 of the OES 2012 Rules.

¶615

B. While amending the OES Rules 2012, the provisions of Article 320 (3) of the Constitution and the Rules of Business have been given a go by. It has not been brought to our notice that the Government has framed any Rule under Proviso to Article 320 ( 3) (e ) of the Constitution that it would not be necessary to consult the OPSC in the matter of recruitment of members of the Orissa Engineering Service. On the other hand, it is the admitted case that the OPSC has been consulted and it did not agree to the part of the proposed amendment relating to Rule 7 i.e the method of selection of the Assistant Executive Engineers on the basis of GATE scores. But this consultation with OPSC has been made an empty formality and short shrift has been made of its advice. Although the OPSC has consistently expressed its reservation to amendment of Section – 7 of the OES Rules 2012 by substituting Rule 7 (2) and 7 (3) i.e. the method of selection

¶616

by replacing the marks awarded for career, written

¶617

W.P.(C) No. 15738 of 2022 Page 88 of 103

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¶619

examination and vive voce with GATE scores, and this had been brought to the notice of the Law Department and GA & PG Department and the Chief Minister, but it has not been brought to the notice of the Cabinet. The view / advice of the OPSC vide its letter dated 19.02.2020 with regard to the proposed amendment of Rule 7 has not been placed before Cabinet by making it an Annexure to the memorandum. The Department has not even mentioned in the synopsis which was placed before the Cabinet about its disagreement with the proposed amendment to Rule 7 of OES Rules 2012. The Cabinet has been completely kept in the dark about the advice / opinion of the OPSC and has in fact been misled as it has been stated in paragraph 5.0 of the memorandum that the OPSC has given its concurrence to such amendment. This is also in contravention to the procedure laid down in the Rules of Business and Instructions for carrying out the Rules of Business which have been referred to earlier. This contravention amounting to suppression has vitiated the process of consultation adopted for carrying out the proposed

¶620

W.P.(C) No. 15738 of 2022 Page 89 of 103

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amendment of Rule 7. Rule 4 (i) and Rule 4 (ii) of the Amendment Rules 2021 , amending Rule 7 (3) and 7 (4) of the OES Rules 2012 is therefore illegal and the liable to be struck down.

¶623

C. The averment in paragraph 4 (ix ) of the counter

¶624

affidavit of opposite parties No 1 and 2 that OPSC failed to give any opinion in response to the Department Letter dated 17.02.2020 , is factually incorrect as in response to such letter,

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, the OPSC vide its letter dated 19.02.2020 has replied not agreeing to substitution of the method of written test and interview with highest valid GATE scores for the preceding three years .

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D. From a perusal of the notesheet of the file as extracted above, it is apparent that the advice / disagreement of the OPSC to a part of the Amendment Rules 2021 has not been

¶627

brought to the notice of the cabinet . Serial No 21 of the Instructions to Rules of Business specifies that unless the Chief Minister otherwise directs the concerned Department has to prepare a memorandum with sufficient precision

¶628

W.P.(C) No. 15738 of 2022 Page 90 of 103

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containing the salient facts and the points to be decided instruction and this memorandum has to be drafted after consulting all departments. In this case, the memorandum appears to have been drafted after consulting the other departments but unfortunately does not contain the salient facts regarding advice of the OPSC and has suppressed the

¶631

advice of the OPSC so far as its disagreement with the proposed amendment of Rule 7 of the OES Rules 2012 is concerned. At paragraph 5.0 of the draft memorandum it has been specifically stated that - “ The Odisha Public Service Commission has given their concurrence to the proposal vide their Letter No. 1232/PSC, dtd 19.02.2020” which is a palpably incorrect statement. It is shocking as to how such a wrong memorandum could be prepared and put up for consideration of the Cabinet.

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CONCLUSION

¶633

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

¶634

W.P.(C) No. 15738 of 2022 Page 91 of 103

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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.

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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

¶638

W.P.(C) No. 15738 of 2022 Page 92 of 103

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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 .

¶641

28 . Rule 4 (i ) and Rule 4 ( ii ) of the Orissa Engineering

¶642

Service ( Recruitment and Conditions of Service )

¶643

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.

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29 . All the writ applications are allowed to the extent indicated above. There shall be no order as to costs.

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………………………….

¶646

(Savitri Ratho, J)

¶647

S. Talapatra, J (Concurring)

¶648

30. While concurring with the well-reasoned opinion of

¶649

Hon’ble Ratho, J., it is felt necessary to emphasize on certain aspects which are in-alienable to the controversy.

¶650

W.P.(C) No. 15738 of 2022 Page 93 of 103

¶651

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31. Rule-7 of the OES Rule, 2007 provided that when the Government would decide to fill up the vacancies in the posts of Assistant Executive Engineer by direct recruitment, the Government will communicate the number of vacancies in the posts along with reserved vacancies thereof proposed to be filled up and the Commission (Odisha Public Service Commission) on receipt of the requisition should invite application in the manner chosen by it from the eligible candidates. After receipt of the application, the candidates will be selected in the manner provided under sub-Rule (3) of Rule-7 of the OES Rule, 2012. The said Rule-7 has been thoroughly amended by the OES (Methods of Recruitment and Conditions of Service) Amendment Rules, 2021. The said subrule (3) of Rule-7 has been substituted by the following clause:

¶653

“ (3) The Commission after receipt of the application shall take steps to select the candidates on the basis of the highest of the varied GATE score of proceeding of the date of the advertisement including the year of the advertisement.”

¶654

W.P.(C) No. 15738 of 2022 Page 94 of 103

¶655

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Sub-Rule (4) of Rule-7 of the OES Rules has been

¶657

amended by deleting “marks secured in Career Evaluation, Objective type written and vivo-voce Test”.

¶658

In that place, the words and expression valid GATE score has been substituted. Consistent with the said amended

¶659

rules, the advertisement No.20 of 2022-23 issued by the

¶660

Odisha Public Service Commission carried the following

¶661

clause:

¶662

“5. METHOD OF SELECTION :

¶663

a)The Commission after receipt of the application shall take steps to select the candidates on the basis of the highest of the valid GATE score of preceding three years of the date of the advertisement (including the year of advertisement)

¶664

b)The Commission, after verification of the original certificate and documents, valid GATE score shall select the names of the suitable candidates in order of merit as per availability of the vacancies in different categories and recommends for appointment to the post of AEEs to the Government.”

¶665

W.P.(C) No. 15738 of 2022 Page 95 of 103

¶666

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32. Hon’ble Ratho, J. has elaborately dwelled upon the fall out of the said change, but where I want to lay the emphasis is whether by incorporating the above change, as reproduced, the Constitutional role of the Public Service Commission has been slighted or completely excluded. For this purpose, let us revisit Article-320. The text of Article-320 has been reproduced

¶668

by Hon’ble Ratho, J.

¶669

33. In unequivocal terms, Article-320 has laid down the

¶670

functions of Public Service Commissions. The Public Service Commission for the Union or for the States has a distinct status under the Constitution apart from the Government of the Union or of the State and cannot be identified with such Government.

¶671

34. The fundamental purpose of constituting the Public Service Commission has been discerned in Article-320 of the Constitution. The Public Service Commission is to conduct examination to the services of the Union and the services of the State. The Public Service Commission shall as well be consulted on all matters relating to methods of recruitment to civil services and for civil posts. In view of that provision, the

¶672

W.P.(C) No. 15738 of 2022 Page 96 of 103

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opposite parties No.1 & 2 had commenced the consultation in respect of the OES Amendment Rules, 2021. But as it has been revealed from the records, relevant part of which has been extensively reproduced in the opinion of Hon’ble Ratho, J., that in the draft minutes of the Cabinet, the opinion of the OPSC has been wrongly reflected and on that basis, the amendment to the Rule-7(3) & Rule-7(4) of the OES Rule have been adopted by the Cabinet. As such, the said decision is totally uninformed and contrary to the Constitutional process as provided by Article320(3) (a) of the Constitution.

¶675

35. The said amendment has been adopted in an arbitrary manner. By such amendment, function of the Public Service Commission has been reduced to that of a ministerial job. The Odisha Public Service Commission had given their opinion by not accepting the proposed amendment in toto.

¶676

36. In my considered opinion, the said amendment has completely excluded the function of the Public Service Commission as enshrined in Article-320 of the Constitution.

¶677

W.P.(C) No. 15738 of 2022 Page 97 of 103

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37. In this regard, it is pertinent to refer that proviso below sub-Article- (3) (e) of Article-20 postulates that the President as respect of public services and also as respects other services and posts in connection with affairs of the Union, and the Governor as respect of other services and forces in connection with affairs of the States may make regulation specifying the matters in which either generally, or any particular class of case of or in any particular circumstances, it

¶680

shall not be necessary for a Public Service Commission to be consulted.

¶681

38. Rule-7 of the OES Rule [un-amended part] still provides that selection be made by the Public Service Commission. But no role has been assigned to the Public Service Commission by the amendment that has been implanted by deleting the original sub-rule (3) and sub-rule (4) of Rule-7 of OES Rules. It is a complete exclusion of consultation with the Public Service Commission.

¶682

39. This is a unique example of applying the power of subordinate legislation against the Constitutional ethos. The

¶683

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opposite parties No.1 & 2 were under obligation to give due consideration to the opinion of the Public Service Commission while adopting the amendment. As shown from the records that the Cabinet was “misinformed” about the opinion of the Public Service Commission and as such, there was no consultation in

¶686

the eye of law. Merely sending for opinion is not enough to draw an inference that the consultation is done. Such inference

¶687

can only be drawn when the opinion of the Public Service Commission is duly considered either by way of accepting or by way of discarding with adequate reasons. Even the opposite parties No.1 & 2 themselves have stated, as reproduced in the opinion of Hon’ble Ratho, J., that any opinion of the Public Service Commission should not be ignored or discarded casually.

¶688

40. In the case in hand, there has been no consultation at all. The consultation with the Public Service Commission in the recruitment of the civil posts is made mandatory unless exempted by the appropriate Rules framed under proviso to Sub-Article 3(e) of Article-320 of the Constitution. No

¶689

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100

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exemption as regards the posts under reference has been adopted by the opposite parties No.1 & 2.

¶692

41. The State Government, the opposite parties No.1 & 2, has faulted in observing the Constitutional imperatives while framing the impugned amendment Rules.

¶693

42. In Ram Manohar Pandey vs. State of Bihar (the Judgment dated 05.08.2019 delivered in Civil Writ Jurisdiction Case No.8760 of 2019, the Patna High Court was examining vires of the amendment of Bihar Polytechnic Education Service Rules, 2014 by which the requirement of written test and evaluation in the teaching skill was deleted and it was provided that by evaluation of the percentile secured by the candidate in the Graduate Aptitude Test in Engineering Examination (the GATE, in short) selection will be made. The said amendment was challenged in a few writ petitions. While deciding the controversy, the Patna High Court has observed that though there is no apparent breach of Article-14 of the Constitution but for introduction of the GATE selection method, the candidates having higher qualification or experience will not

¶694

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get due weightage during the viva-voce test. It has been observed, thereafter, that there can be a preferential category within a particular category but a scheme which deprives the candidates from consideration against a particular attribute in its entirety, suffers from vice of arbitrariness besides being discriminatory and lacking reasonableness. In fact the change that has been brought about has created a class within a class of candidates. In so far as evaluation of the work knowledge is concerned, the object is entirely missing.

¶697

43. It has been observed in Ram Manohar Pandey

¶698

(supra) as under:

¶699

“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

¶700

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transparency but also discriminates against such of the candidates who are already Post Graduates and are not required to pass such GATE examination.”

¶703

We are also confronted with the similar circumstances.

¶704

Finally, the Patna High Court held the said amendment as discriminatory and hence, the same was set-aside in its entirety.

¶705

44. In the said Judgment of the Patna High Court, some additional features were considered for interference. Those are not very material in the present context. But what the Patna High Court has significantly observed is thus:

¶706

“ Since we have struck down the amendment to TableII Appendix-I of the Rule” in its entirety, the evaluation obviously is to be carried out as per the scheme originally framed as present in Table-II of Appendix-I which accompanies the Service Rules, 2014”.

¶707

45. The Service Rules, 2014 as referred in the Patna High Court judgment, is the un-amended rules. When the amendment is struck down and the earlier rules are not interfered with, the earlier rules swing back to its operation. I would further like to

¶708

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put on records that the said decision of the Patna High Court was challenged in Special Leave Petition (Civil) Diary No.(s) 30880/2019, but the said Special Leave Petition (SLP) was dismissed by the apex court by their order dated 21.11.2019.

¶711

46. A responsible Executive cannot slight the status of a

¶712

Constitutional Institution like the Public Service Commission.

¶713

The State may frame the rules observing the procedure as prescribed by the law, not in defiance thereof.

¶714

………………………….
(S. Talapatra, J)
Orissa High Court, Cuttack.
The 01 st day of May, 2023.
S.K. Behera, Senior Stenographer.

¶715

W.P.(C) No. 15738 of 2022 Page 103 of 103

Biswajit Sahoo v. State of Odisha

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Biswajit Sahoo v. State of Odisha

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