Chattisgarh High Court
Pushpa Khalko vs State Of Chhattisgarh on 20 March, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 59
(WPS No.3793/2018)
2026:CGHC:13575-DB
Digitally
signed by
SISTA AFR
SISTA SOMAYAJULU
SOMAYAJULU Date:
2026.03.20
18:08:53 HIGH COURT OF CHHATTISGARH AT BILASPUR
+0530
WPS No. 3793 of 2018
Order reserved on: 02/03/2026
Order delivered on: 20/03/2026
Order (Full) uploaded on: 20/03/2026
1. Pushpa Khalko, W/o Jayprakash Ekka, Aged about 37 years, Posted
at Nagar Palika, Bagicha, District Jashpur, Chhattisgarh.
2. Khirod Bhoi, S/o G.H. Bhoi, Aged about 35 years, Posted at Nagar
Palika Dongargarh, District Rajnandgaon, Chhattisgarh.
3. Prahlad Pandey, S/o Kashi Pandey, Aged about 37 years, Posted at
Nagar Panchayat Dabhara, District Janjgir-Champa, Chhattisgarh.
4. Netram Ratnesh, S/o C.R. Ratnesh, Aged about 48 years, Posted at
Nagar Palika Parishad, Akaltara, District Janjgir-Champa,
Chhattisgarh.
5. Sachit Kumar Sahu, S/o M.R. Sahu, Aged about 36 years, Posted at
Nagar Palika Parishad, Sakti, District Janjgir-Champa, Chhattisgarh.
6. Satish Yadav, S/o Late Anand Ram Yadav, Aged about 41 years,
Posted at Nagar Palika, Kamdol, District Raipur, Chhattisgarh.
7. Vikas Patle, S/o C.B. Patle, Aged about 37 years, Posted at Nagar
Palika Parishad, Gobra, Navapara, District Raipur, Chhattisgarh.
8. Gyan Punj Kulmitra, S/o Late H.R. Kulmitra, Aged about 46 years,
Posted at Nagar Palika Parishad, Shivpur Charcha, District Korea,
Chhattisgarh.
9. Vishnu Prasad Yadav, S/o Nandram Yadav, Aged about 43 years,
Posted at Nagar Palika, Gaurela, District Bilaspur, Chhattisgarh.
10. Mobin Ali, S/o Tahir Ali, Aged about 41 years, Posted at Dantewada,
District Bastar, Chhattisgarh.
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(WPS No.3793/2018)
11. Dinesh Kosariya, S/o Chedu Ram Komariya, Aged about 43 years,
Posted at Nagar Palika, Kharod, District Janjgir-Champa,
Chhattisgarh.
12. Smt. Madhulika Singh Chandel, W/o Vineet Singh Chandel, Aged
about 40 years, Posted at Nagar Panchayat Malhar, District Bilaspur,
Chhattisgarh.
... Petitioners
Versus
1. State of Chhattisgarh, Through Urban Administration &
Development Department, Mahanadi Bhawan, Naya Raipur, District
Raipur, Chhattisgarh.
2. The Secretary, Department of Law & Legislative Affairs, Mantralaya,
Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.
3. Bhoopendar Prasad Upadhyay, S/o Deenanth Upadhyay, R/o Kali
Mai Ward, P.S. Mungeli, District Mungeli, Chhattisgarh.
4. Khir Sagar Nayak, S/o Nilamber Nayak, Posted as CMO Saraipali,
District Mahasamund, Chhattisgarh.
5. Anubhav Sahu, S/o Sh. Sant Lal Sahu, Aged about 30 years, R/o I-8,
Shatabdi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh,
492001.
6. Rakesh Kumar Sahu, S/o Sh. Roopchand Sahu, Aged about 30 years,
R/o CMO Quarter, Tehsil Colony, Behind Deendayal Bhawan, Ward
No.9, Sheorinarayan, District Champa, Chhattisgarh, 495557,
Janjgir.
7. Neeraj Agrawal, S/o Sh. Vinod Kumar Agrawal, Aged about 30 years,
R/o 72 Devika Vihar Colony, In front of Smritivan, Rajkishore Nagar,
Bilaspur, District Bilaspur, Chhattisgarh, 495006.
8. Ravi Shrivastava, S/o Sh. Umesh Prakash Shrivastava, Aged about 35
years, R/o Q.No.8-B, Street 29, Sector 4, Bhilai, District Durg, Pin-
490001, Chhattisgarh.
9. Devesh Kumar Sharma, S/o Sh. Bhimbadhar Das Sharma, Aged
about 32 years, R/o Ward No.5, Near Old Meena Bazar Ground,
Saraipali, District Mahasamund, Chhattisgarh, 493558.
10. Harish Kumar Sahu, S/o Sh. Ramji Sahu, Aged about 30 years, R/o
House No.438, Ambedkar Nagar, Supela, Bhilai, District Durg,
Chhattisgarh, 490023.
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(WPS No.3793/2018)
11. Manish Kumar Nishad, S/o Sh. Raj Kumar Nishad, Aged about 36
years, R/o Room No.12, Chandra Complex, Near RLC School,
Dabhara, District Sakti, Chhattisgarh, 495688
12. Bhushan Lal Deshmukh, S/o Sh. Nem Singh Deshmukh, Aged about
30 years, R/o Q.No.H-34, G.A.D. Colony, Behind Ambedkar Park,
Ward No.2, P.O. Narayanpur, District Narayanpur, Chhattisgarh,
494661.
13. Ajeet Kumar, S/o Sh. Balram Prasad Gupta, Aged about 31 years, R/o
Village Charmar, P.O. Nawapara (Tenda), Teh. Gharghoda, District
Raigarh, Chhattisgarh, 496111.
14. Vikas Kumar Bhoy, S/o Sh. A. Achyutanand Bhoy, Aged about 29
years, R/o Village Charmar, P.O. Nawapara (Tenda), Teh.
Gharghoda, District Raigarh, Chhattisgarh, 496111.
15. Avinash Jaiswal, S/o Sh. Vijay Jaiswal, Aged about 33 years, R/o D
Ground Floor, Hotel Satkar Deluxe Campus, Rani Road, Korba,
District Korba, Chhattisgarh, 495677.
16. Pushpendra Singh Thakur, S/o Sh. Bodhan Singh Thakur, Aged
about 32 years, R/o Purana Sarkanda Mata Chaura, Bihi Badi,
Bilaspur, District Bilaspur, Chhattisgarh, 495001.
17. Ravikant Dewangan, S/o Sh. Girwar Dewangan, Aged about 37 years,
R/o D House No. 143, Village & P.O. Godhi, Teh. Mandir Hasaud,
Block Arang, District Raipur, Chhattisgarh, 492101.
18. Seema Buxy, W/o Nitin Buxy, Aged about 40 years, Chief Municipal
Officer, Municipal Council, Jamul, District Durg, Chhattisgarh.
19. Yaman Dewangan, S/o Shri Tungnath Dewangan, Aged 47 years,
Posted as CMO Class-B, At Nagar Panchayat, Chhura, District
Gariyaband, Chhattisgarh.
20. Amarnath Dubey, S/o Shri Tapnarayan Dubey, Aged 59 years, Posted
as Zone Commissioner, At Municipal Corporation, Bhilai, District
Durg, Chhattisgarh.
21. Durgesh Gupta, S/o Raj Kumar Gupta, Aged about 56 years,
Residence Block 86, Nehru Nagar East Bhilai, District Durg,
Chhattisgarh.
22. Anish Kumar Thakur, S/o Ramnath Thakur, Aged about 49 years,
Shivaji Ward, Mungeli, District Mungeli, Chhattisgarh.
23. Hari Singh Thakur, S/o Late Tulsi Ram Thakur, Aged about 59 years,
CMO, Mungeli, Chhattisgarh.
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(WPS No.3793/2018)
24. Santosh Kumar Vishwakarma, S/o Vishambhar Lal, Aged about 56
years, CMO Nagar Panchayt, Bhakhara, Chhattisgarh.
25. Majid Khan, S/o Late Anwar Khan, Aged about 58 years, CMO Nagar
Panchayt, Pawani, Chhattisgarh.
26. Rewa Ram Manu, S/o Late Bajrang Shankar Manu, Aged about 57
years, CMO Nagar Panchayt, Durg, Chhattisgarh.
27. Hemant Kumar Verma, S/o Late Pardeshi Ram, Aged about 56 years,
CMO Nagar Panchayt, Patan, Chhattisgarh.
28. Avinash Dewangan, S/o J.S. Dewangan, Aged about 41 years, CMO
Nagar Panchayt, Gandai, Chhattisgarh.
29. Satish Singh, S/o J.B.S. Singh, Aged about 46 years, CMO Nagar
Panchayt, Tumgao, Chhattisgarh.
30. Rajiv Rajan Shrivastava, S/o Sudhir Kumar Shrivastava, Aged about
46 years, CMO Nagar Panchayt, Gandai, Chhattisgarh.
31. Suryakant Shrivastava, S/o Krishan Mohan Shrivastava, Aged about
59 years, Assistant Director, Urban Department, Raipur,
Chhattisgarh.
32. Deepak Sharma, S/o Govind Narayan Sharma, Aged about 48 years,
CMO Nagar Panchayt, Kunra, Chhattisgarh.
33. Pradeep Singh Thakur, S/o Mahendra Singh Thakur, CMO Nagar
Panchayt, Indori, Chhattisgarh.
34. Anil Kumar Sonwani, S/o Sabran Ram Sonwani, CMO, Nagar
Panchayt, Baramkela, Chhattisgarh.
35. Domar Singh Sahu, CMO Nagar Panchayt, Barsur, Chhattisgarh.
36. Hunga Ram Gonde, CMO Nagar Panchayt, Dornapal, Chhattisgarh.
37. Lalit Kumar Sahu, S/o Yati Ram Sahu, Aged about 43 years, CMO
Nagar Panchayt, Pusouri, Chhattisgarh.
38. Rajesh Kushwaha, S/o Hari Naryan Kushwaha, Aged about 47 years,
CMO Nagar Panchayt, Bhatgaon (Surajpur), Chhattisgarh.
39. Krishan Kant Kurre, S/o B.D. Kurre, Aged about 47 years.
40. Kiran Patel, S/o Shriniwas Patel, Aged about 55 years, CMO Nagar
Panchayt, Gundardehi, Chhattisgarh.
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(WPS No.3793/2018)
41. Shashi Bhushan Mahapatra, CMO Nagar Panchayt, Kirandul,
Chhattisgarh.
42. Shyam Lal Verma, S/o Shamaru Lal Verma, CMO Nagar Panchayt,
Kopra, Chhattisgarh.
43. Thanu Ram Yadav, S/o Parsu Ram Yadav, Aged about 56 years, CMO
Nagar Panchayt, Kotba, Chhattisgarh.
44. Mohar Lal Gaharwariya, S/o Late Sohar Ram, Aged about 53 years,
CMO Nagar Panchayt, Jarhi, Chhattisgarh.
45. Punit Kumar Verma, S/o Kripa Ram, Aged about 59 years, CMO
Nagar Panchayt, Nayabaradwar, Chhattisgarh.
46. Ghanshyam Prasad Sharma, S/o late Hanuman Prasad Sharma, Aged
about 48 years, Posted as Revenue Inspector, Presently working as
Chief Municipal Officer, Nagar Panchayat, Sargaon, District Mungeli,
Chhattisgarh.
... Respondents
For Petitioners : Mr. Kishore Bhaduri, Sr. Advocate with Mr.
Sajal Kumar Gupta, Advocate.
For Respondents No.1 & 2/State : Mr. Prasun Kumar Bhaduri, Deputy
Advocate General.
For Respondents No.3 & 4 : Mr. Chandresh Shrivastava, Advocate.
For Respondents No.5 to 17 : Mr. Manoj Paranjpe, Sr. Advocate with Mr.
Rishabh Gupta, Advocate.
For Respondents No.18, 19 & 20 : Mr. Rajesh Kumar Kesharwani, Advocate.
For Respondents No.21 & 22 : Mr. Amrito Das, Advocate.
For Respondents No.23 to 45 : Mr. Santosh Bharat, Advocate.
For Respondent No.46 : Mr. Vikas Dubey, Advocate.
Division Bench: -
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Arvind Kumar Verma, JJ.
C.A.V. ORDER Sanjay K. Agrawal, J.
For the sake of convenience, this Order is divided in following parts:-
S.No. Particulars Page Nos. 1. Challenge in the Writ Petition 7 Page 6 of 59 (WPS No.3793/2018) 2. Writ Petition 8 3. Return on behalf of the State 9 4. Return on behalf of the private Respondents 10 5. Submissions on behalf of the Petitioners 11 6. Submissions on behalf of the State 14 7. Submissions on behalf of the private Respondents 16 8. Questions for Determination 18 9. Presumption of Constitutionality of the Act or Rules 19 10. Challenge to the constitutional authority of the Act or 19 Rules 11. Locus standi to challenge the constitutional validity of 24 Rule 12. Equation of Posts 25 13. Power of Relaxation 28 14. Promotion - Not a vested right 29 15. Provision for promotion 31 16. Constitution of Municipalities 31 17. The Chhattisgarh Municipal Service (Executive) Rules, 34 1973 18. The Chhattisgarh Municipal Services (Scale of Pay and 35 Allowances) Rules, 1967 19. The Chhattisgarh Municipal Employees (Recruitment 36 and Conditions of Service) Rules, 1968 20. 74th Amendment in the Constitution 37 21. The Chhattisgarh State Municipal (Executive/ 38 Engineering/Health) Services, Recruitment and Conditions of Service Rules, 2017
22. Pleadings in challenging the constitutional validity of law 40
23. Prescription of eligibility is prerogative of the employer 42
24. To provide channels of promotion is the right of the 43 Government 25. Findings and analysis 44 26. Conclusion 58 Page 7 of 59 (WPS No.3793/2018)
1. Challenge in the Writ Petition 1.1) The petitioners, who are Chief Municipal Officers, Class "C" (now promoted), seek to challenge the constitutional validity of Schedule-IV, column (3) enacted under Rules 14 & 15 of the Chhattisgarh State Municipal (Executive/Engineering/Health) Services, Recruitment and Conditions of Service Rules, 2017 (for short, 'the Rules of 2017') as unconstitutional and violative of their fundamental rights guaranteed under Articles 14 & 16 of the Constitution of India and eventually, also seek to question the order (Annexure-P/1) by which the State Government in exercise of power conferred under Rule 45 of the Rules of 2017, relaxed the qualifying service of one year (by which Revenue Inspectors would be entitled to be considered for the post of Chief Municipal Officer Class"B" on completion of five years on that post in place of six years), to be unconstitutional and bad in law.
1.2) In substance, the petitioners seek to challenge the constitutionality of Schedule-IV, column (3) of the Rules of 2017 enacted under Rules 14 & 15 of the Rules of 2017, equating the post of Revenue Inspector (Grade AA/A/B) with that of Chief Municipal Officer Class 'C' to be considered for promotion on the post of Chief Municipal Officer Class 'B' and it was prayed that the same be declared as unconstitutional and violative of Articles 14 & 16 of the Constitution of India. The petitioners also seek to challenge the order dated 2-2-2018 (Annexure P-1) relaxing the qualifying service by one year as stated above.
Page 8 of 59
(WPS No.3793/2018) 1.3) This Court (Coordinate Bench) in the first round of litigation allowed the writ petition and declared the said provision ultra vires, however, on Special Leave Petition preferred by the interveners, now respondents herein, their Lordships of the Supreme Court set aside the order passed herein by order dated 16-9-2025 and remitted the matter to decide the same afresh after hearing the interveners herein after impleading them as party respondents. Accordingly, the interveners have been impleaded as party respondents herein and they are allowed to exchange pleadings. This is how this present petition is before us.
2. Writ Petition 2.1) The petitioners herein, who were holding the post of Chief Municipal Officer Class 'C' at the time of filing of the writ petition and now promoted on the post of Chief Municipal Officer Grade 'B', are impugning and questioning the subject Rules specifically column (3) of Schedule-IV of the Rules of 2017 equating the Revenue Inspectors who are municipal servants appointed under Section 94(2) read with Section 94(4) of the Chhattisgarh Municipalities Act, 1961 (for short, 'the Act of 1961'), on the ground that the petitioners are holding the civil post within the meaning of Section 86/87 of the Act of 1961 and the Revenue Inspectors Grade-AA/A/B are municipal servants within the meaning of Section 94(2) & (4) of the Act of 1961 and, therefore, the same is unconstitutional. 2.2) It is the case of the petitioners that by the impugned Rules, the State has treated unequals as equals by equating two different Page 9 of 59 (WPS No.3793/2018) statutory services and thereby violated Articles 14 & 16 of the Constitution of India. The said provision travels beyond the rule- making power conferred to the State Government under Section 86 of the Act of 1961, as the State Government, while framing Rules for recruitment and service conditions of the State Municipal Service, cannot merge or equate a separate service constituted under Section 95 of the Act of 1961 and as such, the subject provision be declared ultra vires and violative of their fundamental rights guaranteed under Articles 14 & 16 of the Constitution of India as well as the order Annexure P-1 be set aside.
3. Return on behalf of the State In the return filed on behalf of the State/respondents No.1 & 2, it is stated that the impugned order dated 2-2-2018 has been issued invoking Rule 45 of the Rules of 2017. Rule 45 of the said Rules provides for relaxation, according to which, the State Government may relax the provisions contained in the Act in individual case in a manner it deems just and appropriate. The said relaxation was one time and was operative only for one year. It is further stated that the impugned order dated 2-2-2018 is in accordance with the Rules and the power of grant of relaxation has been exercised by the State Government within the statutory framework. It is also stated that the Revenue Inspectors form the feeder cadre for promotion to the post of Chief Municipal Officer Class-B and the Revenue Inspectors of Grade AA/A/B have also been included and it is the prerogative of the State to create avenues of promotion for its employees. It is also Page 10 of 59 (WPS No.3793/2018) the stand/case of the State that the determination of conditions of service, alteration thereof by amending the rules, classification or abolition of posts, cadres or categories of services is within the exclusive domain of the State and the scope of interference under Article 226 of the Constitution of India is limited. The State has exclusive discretion and jurisdiction to provide for particular method of recruitment or eligibility criteria or avenues of promotion. It is also pleaded that the promotion is not a fundamental right of the petitioners and the petitioners are aggrieved only on the ground that the Municipal servants holding the Municipal post under the Council have been provided channel of promotion to the post equivalent to them i.e. Chief Municipal Officer Class-B, which cannot be a ground to question the constitutional validity of column (3) of Schedule-IV of the Rules of 2017. As such, the Writ Petition deserves to be dismissed and challenge to the order Annexure P-1 is also not sustainable.
4. Rejoinder has been filed on behalf of the petitioners controverting the averments made in the return stating inter alia that the stand taken by the State in the return is constitutionally impermissible.
5. Return on behalf of the private respondents The private respondents have filed separate returns in line with the stand taken by the State Government in respect of constitutional validity of the subject Rules. Therefore, their stand is not being repeated herein to avoid unnecessary repetition of facts. Page 11 of 59
(WPS No.3793/2018)
6. Submissions on behalf of the petitioners Mr. Kishore Bhaduri, learned Senior Counsel appearing on behalf of the petitioners, would submit as under:-
6.1) The petitioners being Chief Municipal Officers Class-C are holding the civil post under the State, as held by the Full Bench of Madhya Pradesh High Court in the matter of Suresh Chandra Sharma v. State of M.P. and others1 whereas the persons appointed under Section 94(2) of the Act of 1961 are municipal servants of the Municipal Council. As such, by virtue of Schedule-IV of column (3) of the Rules of 2017, the Revenue Inspectors Grade-
AA/A/B cannot be equated with the post of Chief Municipal Officer Grade-C and they cannot be provided avenues to be considered for promotion on the post of Chief Municipal Officer Grade-B, which is a civil post under the State constituted under Section 86 of the Act of 1961.
6.2) The effect of impugned provision i.e. the provision mentioned in column (3) of Schedule-IV, is nothing short of an impermissible integration and equation of two distinct statutory cadres, one being a State cadre civil post and the other being a Municipal cadre post confined to a Municipality, obliterates the statutory distinction consciously maintained by the rule making authority, as they are governed by the Rules of 2017 and the Chhattisgarh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968, (for short, 'the Rules of 1968'), respectively. Therefore, the impugned 1 2000 SCC OnLine MP 162 Page 12 of 59 (WPS No.3793/2018) entry of Revenue Inspectors from the Municipal Service into the State Municipal Service is without any express authority under the parent Act. As such, it is unconstitutional and is liable to be struck down.
6.3) The petitioners being the Chief Municipal Officers are holding the civil post and the Revenue Inspectors/private respondents are municipal servants appointed under Section 94(2) read with Section 94(4) of the Act of 1961. Therefore, they are unequals and they cannot be treated as equals since they are governed by different sets of statutory rules and different sources of recruitment. Reliance is placed in the matters of Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra and another2 and Indian Council of Agricultural Research Through the Director General and another v. Rajinder Singh and others3. 6.4) Section 86 of the Act of 1961 empowers the State to frame rules only for recruitment and service conditions of the members of State Municipal Service that is Chief Municipal Officer of Class A, B & C. It does not authorize the State Government to merge the municipal servants appointed under Section 94(2) read with Section 94(4) of the Act of 1961 into the cadre of the Chief Municipal Officer (appointed under Section 87 of the Act of 1961), and that would amount to new source of recruitment under the Rules. Learned Senior Counsel for the petitioners would rely upon the decision of the Supreme Court in the matter of Naresh Chandra Agrawal v. 2 (2008) 10 SCC 139 3 2024 SCC OnLine SC 2137 Page 13 of 59 (WPS No.3793/2018) Institute of Chartered Accountants of India and others 4. 6.5) Learned Senior Counsel for the petitioners would further rely upon the decision of the Supreme Court in the matter of Aphali Pharmaceuticals Ltd. v. State of Maharashtra and others 5 to contend that a schedule forms part of the Act and cannot override or enlarge the scope of the parent legislation. In the matter of Jagdish Prasad v. State of Rajasthan and others6 also, it was held that the schedule provisions must conform to the main enactment. 6.6) Learned Senior Counsel would also submit that the petitioners' right are substantially affected by the impugned legislation and, therefore, they are competent to challenge the constitutional validity of column (3) of Schedule-IV of the subject Rules. Relying upon the decision of the Supreme Court in the matter of Charanjit Lal Chowdhury v. Union of India and others 7, he would submit that since column (3) of Schedule-IV introduces a new promotional source for the municipal servants (Revenue Inspectors) to the post of Chief Municipal Officer Class-B, who are governed under the Rules of 1968, they cannot enter into the municipal service and such induction would alter its composition, which would affect inter se seniority and directly impact the promotional prospects to higher posts such as CMO, Grade-B and, therefore, the same is liable to be struck down.
6.7) Learned Senior Counsel would also rely upon the decision of 4 (2024) 13 SCC 241 5 (1989) 4 SCC 378 6 (2011) 7 SCC 789 7 1950 SCC 833 Page 14 of 59 (WPS No.3793/2018) the Supreme Court in the matter of Motor General Traders and another v. State of Andhra Pradesh and others 8 to submit that prolonged existence of an unconstitutional provision does not confer validity. It is submitted that Rule 15(1) of the Rules of 2017 cannot override the parent Act i.e. Sections 86 to 89 of the Act of 1961, as the Full Bench of the M.P. High Court in Suresh Chandra Sharma (supra) has held that the Chief Municipal Officers hold civil posts under the State, whereas the Municipal employees are Municipal servants of the Municipal Council. He would also submit that the Revenue Inspectors appointed under Section 94(2) read with Section 94(4) of the Act of 1961 cannot be equated with the Chief Municipal Officers, who are appointed under Section 86 of the Act of 1961. Furthermore, the power of relaxation cannot be exercised to promote ineligible Revenue Officers to the post of Chief Municipal Officer Class-B. 6.8) Lastly, he would submit that the petitioners are directly affected by the impugned legislation and as such, they have locus to challenge it. Therefore, column (3) of Schedule-IV of the Rules of 2017 as well as order dated 2-2-2018 be struck down as unconstitutional.
7. Submissions on behalf of the State Mr. Prasun Kumar Bhaduri, learned Deputy Advocate General appearing on behalf of the State/respondents No.1 & 2, would submit as under:-
8 (1984) 1 SCC 222 Page 15 of 59 (WPS No.3793/2018) 7.1) The petitioners have not placed on record any real and tangible instance of prejudice being caused to them by way of any DPC or any promotion order etc.. The writ petition as pleaded and presented is vague and is unable to demonstrate any real and palpable case of discrimination and arbitrary exercise of power directly and clearly infringing the fundamental and legal rights of the petitioners. In the present case, there was dearth of officers for promotion in the feeder cadre of Municipal Officer Class 'C' whereas in the equivalent post of Revenue Officers with near to experience were available. Thus the Government took a conscious decision in accordance with Articles 162 & 166 of the Constitution of India and as such, relaxation under Rule 45 of the Rules of 2017 has been granted by the State keeping in mind practical necessities and for objective reasons. As such, the impugned order dated 2-2-2018 is in accordance with law. 7.2) The issue of creation of different promotional avenues and ladders for promotion in favour of various categories of posts in feeder cadre based upon structure and pattern of the department is a prerogative of the employer mainly pertaining to policy making field, which cannot be questioned by the petitioners stating to be violative of Articles 14 & 16 of the Constitution of India. 7.3) The Municipalities have been conferred a constitutional status post the 74th Amendment to the Constitution w.e.f. 1-6-1993 and the Municipalities are now part of the Constitution. Moreover, Article 243P creates Municipalities as institutions of self-Government which are to be constituted in terms of Article 243Q of the Constitution. Page 16 of 59
(WPS No.3793/2018) Under Article 243Q(1), Municipalities are constituted for smaller urban areas. Further, Schedule XII to the Constitution enumerates 18 items within the ambit of twin purposes mentioned in Article 243W. The Municipal Services whether executive or non-executive exists to carry out the mandate of Article 243W read with XII Schedule of the Constitution. Thus the Rules of 2017 though created under provisions of the Act of 1961 can also trace their origins to the constitutional authority under Article 243W read with XII Schedule of the Constitution. He would also submit that although the Rules of 1967, 1968 and 1973 as also the Act of 1961 are created before 74 th Constitutional Amendment but they are protected by way of Article 243ZF of the Constitution of India.
7.4) It has consistently been held by the Supreme Court that there is always a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. He would submit that if the rule enacted is within the scope of power conferred on the rule-making authority and violates no restrictions on that power, the rule must be upheld. As such, the challenge to the order dated 2-2-2018 as also the challenge to the constitutional validity of column (3) of Schedule-IV deserves to be upheld.
8. Submissions on behalf of the private Respondents 8.1) Mr. Manoj Paranjpe, learned Senior Counsel appearing on behalf of respondents No.5 to 17, would submit that the impugned rule is constitutionally valid. The only way available for the Revenue Page 17 of 59 (WPS No.3793/2018) Inspectors/Officers Class-I to be considered for promotion to the post of Chief Municipal Officer Grade-B is by providing channel of promotion by way of the impugned Rule, otherwise there is no channel of promotion to them on the higher post of Chief Municipal Officer. As such, the impugned Rule is constitutionally valid and the relaxation granted by order dated 2-2-2018 is also in accordance with law and the Writ Petition deserves to be dismissed. 8.2) Mr. Amrito Das, learned counsel appearing on behalf of respondents No.21 & 22, would submit that the petitioners are not the persons aggrieved, as by the impugned Rules and by order dated 2-2-2018, no legal right is affected and, therefore, the petitioners, by any stretch of imagination, can be considered as the "persons aggrieved". At the best, they can be considered as the "persons annoyed". The present Writ Petition questioning the constitutional validity of the subject Rules, which is constitutionally valid, deserves to be dismissed, as the said Rules do not violate any legal or fundamental rights of the petitioners herein. He would further submit that in order to challenge the subject Rules, there must be necessary pleading(s) in the writ petition, which is lacking in material in the instant case. In the absence of necessary pleadings as to how they are aggrieved and also the grounds on which they wish to question the impugned Rule, the Writ Petition, as filed, is liable to be dismissed.
8.3) Mr. Rajesh Kumar Kesharwani, learned counsel appearing on behalf of respondents No.18 to 20; Mr. Santosh Bharat, learned Page 18 of 59 (WPS No.3793/2018) counsel appearing on behalf of respondents No.23 to 45; and Mr. Vikas Dubey, learned counsel appearing on behalf of respondent No.46, would submit that they would adopt the arguments advanced on behalf of the State.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
Questions for Determination
10. The questions that arise for determination in the present Writ Petition are as follows:-
1. Whether the prescription in column (3) of Schedule-IV of the Rules of 2017 providing multiple feeder cadre for the post of Chief Municipal Officer Grade-B including Revenue Inspectors Grade-AA/A/B on completion of 6 years Municipal service along with Chief Municipal Officer Grade-C, is violative of the petitioners' fundamental rights guaranteed under Articles 14 & 16 of the Constitution of India and is liable to be struck down as unconstitutional?
2. Whether the notification dated 2-2-2018 (Annexure P-1) issued in exercise of power conferred under Rule 45 of the Rules of 2017 relaxing the qualifying service of one year in favour of the Revenue Inspectors AA/A/B, is invalid and unsustainable in law?Page 19 of 59
(WPS No.3793/2018) Presumption of constitutionality of the Act or Rules
11. It is settled law that there is always presumption in favour of constitutionality or validity of the Act or Rules. A statute is construed so as to make it effective and operative on the principle expressed in the maxim 'ut res magis valeat quam pereat'. There is, therefore, a presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. 'Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will'. (See: Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition, page No.591).
12. It is a settled principle of law that the Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly. The Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Challenge to the constitutional authority of the Act or Rules
13. It is well settled that constitutionality of the Act or Rules can be challenged on limited grounds namely, (i) it is not within the competence of the legislature who passed the law, (ii) it is in Page 20 of 59 (WPS No.3793/2018) contravention of any of the fundamental rights stipulated in Part-III of the Constitution or any other provision of the Constitution, and
(iii) it is in contravention of the parent Act or any other law in force.
14. The Constitution Bench of the Supreme Court in the matter of Shayara Bano v. Union of India and others (Ministry of Women and Child Development Secretary and others) 9 held that legislation can be struck down if it is manifestly arbitrary and manifest arbitrariness is the ground to negate legislation as well under Article 14 of the Constitution of India. It has been observed by their Lordships as under: -
"101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India2 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14."
15. In the matter of Dr. Jaya Thakur v. Union of India and others10, it has been held by three-judge Bench of the Supreme Court that judicial review is a powerful weapon to restrain 9 (2017) 9 SCC 1 10 (2023) 10 SCC 276 Page 21 of 59 (WPS No.3793/2018) unconstitutional exercise of power by the legislature and executive by observing as under: -
"68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self- imposed limits."
16. Thereafter, in Dr. Jaya Thakur (supra), their Lordships of the Supreme Court relying upon their earlier judgment in the matter of Binoy Viswam v. Union of India and others 11 and reviewing their earlier decisions have held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly, and observed as under: -
"70. It could thus be seen that this Court has held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. To do so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad.
71. It has been the consistent view of this Court that legislative enactment can be struck down only on two grounds. Firstly, that the appropriate legislature does not have the competence to make the law; and secondly, that it takes away or abridges any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. It has been held that no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an 11 (2017) 7 SCC 59 Page 22 of 59 (WPS No.3793/2018) Act. It has been held that Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.
72. It has been held by this Court that there is one and only one ground for declaring an Act of the legislature or a provision in the Act to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope.
73. It has consistently been held that there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. It has been held that if the law which is passed is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it.
74. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted. The other ground on which the validity can be challenged is that such an enactment is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other provision of the Constitution. Another ground as could be culled out from the recent judgments of this Court is that the validity of the legislative act can be challenged on the ground of manifest arbitrariness. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactment."
17. Furthermore, in the matter of Dental Council of India v. Biyani Shikshan Samiti and another12, their Lordships of the Supreme Court have held that there is always a presumption in favour of 12 (2022) 6 SCC 65 Page 23 of 59 (WPS No.3793/2018) constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. B.R. Gavai, J., as His Lordships then was, speaking for the Supreme Court, held in paragraphs 27 & 28 of the report as under: -
"27. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary.
28. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant."
18. Similarly, in the matter of PGF Limited and others v. Union of India and another13, their Lordships of the Supreme Court have laid down certain guidelines by taking note of certain precautions to be observed whenever the vires of any provision of law is raised before the Court and cautioned the Courts in paragraph 37 as under:-
"37. The Court can, in the first instance, examine whether there is a prima facie strong ground made out in order to examine the vires of the provisions raised in the writ petition. The Court can also note whether such challenge is made at the earliest point of time when the statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of the enactment and the date when the challenge is made. It should also be noted as to 13 (2015) 13 SCC 50 Page 24 of 59 (WPS No.3793/2018) whether the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provision operates the field as against the prevention of such operation. The Court should also examine the extent of financial implications by virtue of the operation of the provision vis-a-vis the State and alleged extent of sufferance by the person who seeks to challenge based on the alleged invalidity of the provision with particular reference to the vires made. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provision in the larger interest of the public. We have only attempted to set out some of the basic considerations to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds on the above lines for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining the same as well as for granting any interim relief during the pendency of such writ petitions. For the abovestated reasons it is also imperative that when such writ petitions are entertained, the same should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other."
Locus standi to challenge the constitutional validity of Rule
19. The Supreme Court in the matter of D.K. Nabhirajiah v. State of Mysore14 has held that a citizen must be possessed of a fundamental right before he can ask the Court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief. It was held in para-28 as under:-
"28. It is admitted that after 26-1-1950 there has been no infringement of the appellant's right of freedom of speech or expression. In September 1949 he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in Article 19 (1) of the 14 (1952) 1 SCC 788 Page 25 of 59 (WPS No.3793/2018) Constitution to the citizen that the provisions of Article 13 (1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief."
20. It is well settled that a person whose rights and interests are adversely affected by an unconstitutional law can challenge the validity of the law on any ground which affects such validity. For instance, he can challenge the validity of the law on the ground that the subject-matter of legislation was not within the province of the Legislature which passed the law. He can also challenge the validity of the law on the ground that it infringes one of the Fundamental Rights conferred by the Constitution. (See Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and others 15.) In Dwarkadas Shrinivas (supra), S.R. Das, J., in a separate but concurring judgment, held as under: -
"... The true principle being that only a person who is directly affected by a law can challenge the validity of that law and that a person whose own right or interest has not been violated or threatened cannot impugn the law on the ground that somebody else's right has been infringed, the same principle must prevail irrespective of the form of the proceeding in which the question of constitutionality is raised."
Equation of Posts
21. It is well settled that it is not open to the Court to consider whether the equation of posts made by the competent authority is right or wrong. This is a matter exclusively within the province of the 15 AIR 1954 SC 119 Page 26 of 59 (WPS No.3793/2018) executive unless it suffers from unreasonable perversity, mala fide manipulations and indefensible arbitrariness.
22. The Supreme Court in the matter of T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams and others16 has observed that the equation/equivalence of posts is the primary function of the executive and not the judiciary and, therefore, ordinarily courts do not enter upon the task of job evaluation which is generally left to expert bodies. The court will interfere only if there is cogent material on record and exercise of jurisdiction becomes necessary to undo the injustice and held in para-25 as under:-
"25. It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts do not enter upon the task of job evaluation, which is generally left to expert bodies as several factors have to be kept in view while evolving a pay structure. Being a complex matter, the court will interfere only if there is cogent material on record to come to a firm conclusion that a grave error has crept in such an exercise and court's interference is absolutely necessary to undo the injustice being caused. (See Finance Deptt. v. W.B. Registration Service Assn.17)"
23. Similarly, the M.P. High Court in the matter of Nathusingh Chouhan v. State of M.P. and another18 has considered the effect of equation of posts and observed that from the date of equation the new service conditions applicable to the new post will apply to those who are equated and absorbed into it, and held as under:-
16 (2009) 1 SCC 546 17 1993 Supp (1) SCC 153 : 1993 SCC (L&S) 157 : (1993) 24 ATC 403 18 ILR 1974 MP 89 Page 27 of 59 (WPS No.3793/2018) "Equation of posts is a compendious expression to indicate the change in the service conditions of individual employees. It only means that from the date of equation the new service conditions applicable to the new post will apply to those who are equated and absorbed into it. Since section 95 of the Act permits change of service conditions, it was competent for the State Government to make rules under which such a change is effected, whatever be the expression used to bring about the change."
24. The Supreme Court in the matter of S.B. Mathur and others v. Chief Justice of Delhi High Court and others 19 while deciding the issue of equal status posts held that treating Superintendents, Court Masters (Readers) and Private Secretaries to Judges as equal status posts is valid and not arbitrary, and observed as under: -
"11. ... In appreciating this submission, it must be borne in mind that it is an accepted principle that where there is an employer who has a large number of employees in his service performing diverse duties, he must enjoy a certain measure of discretion in treating different categories of his employees as holding equal status posts or equated posts, as questions of promotion or transfer of employees inter se will necessarily arise for the purpose of maintaining the efficiency of the organisation. There is, therefore, nothing inherently wrong in an employer treating certain posts as equated posts or equal status posts provided that, in doing so, he exercises his discretion reasonably and does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution. It is also clear that for treating certain posts as equated posts or equal status posts, it is not necessary that the holders of these posts must perform completely the same functions or that the sources of recruitment to the posts must be the same nor is it essential that qualifications for appointments to the posts must be identical. All that is reasonably required is that there must not be such difference in the pay scales or qualifications of the incumbents of the posts concerned or in their duties or responsibilities or regarding any other relevant factor that it would be unjust to treat the posts alike or, in other words, that posts having substantially higher pay scales or status in service or carrying substantially heavier responsibilities and duties or otherwise distinctly superior are not equated with posts 19 1989 Supp (1) SCC 34 Page 28 of 59 (WPS No.3793/2018) carrying much lower pay scales or substantially lower responsibilities and duties or enjoying much lower status in service."
Power of relaxation
25. Power of relaxation is provided under Rule 45 of the Rules of 2017, which is similar to Rule 50 of the Chhattisgarh Municipal Service (Executive) Rules, 1973 (for short, 'the Rules of 1973'), which states as under:-
"45. Relaxation.-Save as otherwise provided in the Act and these Rules, the State Government may relax the provisions contained herein in individual cases in a manner that seems just and fair:
Provided that in no case will the manner of dealing be lower than as provided in the Rules."
26. A careful perusal of the said Rule would show that the State Government has been conferred power to relax the provision of this rule in individual cases in a manner which is just and equitable. Proviso to the said rule provides that the cases shall not be dealt in the manner less favourable than provided in this rule. As such, power to relax the rules is available to the Government, but the power to relax is not a carte blanche to act on whims and fancies. A relaxation must be based on objective facts and must be granted to further the very service rules it seeks to serve and above all it must be in public interest.
27. In the matter of Amrik Singh v. Union of India 20, their Lordships of the Supreme Court, while considering the similar rule granting relaxation i.e. Rule 3 of the All India Services (Conditions of Service 20 (1980) 3 SCC 393 Page 29 of 59 (WPS No.3793/2018) and Residuary Matters) Rules, 1960, called for an objective satisfaction on the part of the Government before applying the rule regarding relaxation.
28. Similarly, in the matter of J.C. Yadav v. State of Haryana 21, their Lordships of the Supreme Court have observed that many times such relaxation is granted because there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation, the Government has power to relax requirement of the Rules. Their Lordships have further held that such rule of relaxation must receive a liberal construction as it is beneficial in nature and that it should not be interpreted in a manner to defeat the very object and purpose of such power.
29. The judgment rendered in J.C. Yadav (supra) has been followed in the matter of Sandeep Kumar Sharma v. State of Punjab 22 and it has been held that rule of relaxation must get a pragmatic construction so as to achieve effective implementation of a good policy of the Government.
Promotion - Not a vested right
30. A Government servant has no right to be promoted, he has a right to be considered for promotion. This right to be considered for promotion is one of the "matters relating to employment or appointment" within the meaning of Article 16(1) of the Constitution of India.
21 (1990) 2 SCC 189 22 (1997) 10 SCC 298 Page 30 of 59 (WPS No.3793/2018)
31. In the matter of Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy 23, their Lordships of the Supreme Court have clarified the meaning of vested right in para-39 which reads thus:-
"39. Vested right has been defined as fixed; vested; accrued; settled; absolute; and complete; not contingent; not subject to be defeated by a condition precedent. The word `vest' is generally used where an immediate fixed right in present or future enjoyment in respect of a property is created. It is a "legitimate" or "settled expectation" to obtain right to enjoy the property etc. (Vide: Mosammat Bibi Sayeeda & Ors., etc. v. State of Bihar & Ors., etc., AIR 1996 SC 1936; Howrah Municipal Corporation & Ors. v. Ganges Rope Co. Ltd. & Ors., (2004) 1 SCC 663; and J.S. Yadav v. State of Uttar Pradesh & Anr., (2011) 6 SCC 570). "
32. In the matter of Union of India and others v. Krishna Kumar and others24, their Lordships of the Supreme Court have observed at para-10 as under:-
"10. ... it is well settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose."
33. In the matter of Deepak Agarwal v. State of Uttar Pradesh 25, their Lordships of the Supreme Court have observed at paras-26 & 27 as under:-
"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on 23 (2011) 9 SCC 286 24 (2019) 4 SCC 319 25 (2011) 6 SCC 725 Page 31 of 59 (WPS No.3793/2018) the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
27. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (Supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."
Provision for promotion
34. The condition of service must provide for promotional opportunities. The absence of promotional opportunities may amount to violation of Articles 14 & 16 of the Constitution of India. Promotion is a normal incidence of service. The provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective.
35. Constitution of Municipalities 35.1) The Municipalities are constituted as per the provisions contained in Section 5 of the Act of 1961. By virtue of Section 5 of the Act of 1961, there shall be constituted a Municipal Council for a smaller urban area and a Nagar Panchayat for a transitional area, that is to say, an area in transition from a rural area to an urban area by the State Government. By virtue of Section 18 of the Act of 1961, Page 32 of 59 (WPS No.3793/2018) every municipality constituted under Section 5 of the Act, shall be a body corporate by the name of the Municipal Council or Nagar Panchayat, as the case may be, and shall have perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable and subject to the provisions of the Act or any rules made thereunder, to transfer any property held by it and to contract and to do all other things necessary for the purposes of the Act and may sue and be sued in its corporate name. Section 19 of the Act of 1961 provides for composition of Municipal Council or Nagar Panchayat which states that a Municipal Council or a Nagar Panchayat, shall consist of President, that is Chairperson, elected by direct election from the Municipal area; Councillors elected by direct election from the wards; and also consist of not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Panchayats having special knowledge or experience in Municipal Administration nominated by the State Government.
35.2) Chief Municipal Officer: The Chief Municipal Officer is the principal executive officer of the Municipality who is appointed under Section 87 of the Act of 1961. The State Government may, for the purpose of providing officers to the Council under Section 87 or 88, constitute in the prescribed manner, the Municipal Services for the State to be called - State Municipal Service (Executive), State Municipal Service (Health) and State Municipal Service (Engineering) under Section 86 of the Act of 1961. By virtue of Page 33 of 59 (WPS No.3793/2018) Section 86(2) of the Act of 1961, the State Government may make rules in respect of recruitment, qualification, appointment, promotion, etc., and other service conditions of the members of the State Municipal Service. By virtue of Section 86(3), the salary, allowances, gratuity, annuity, pension and other payments required to be made to the members of the State Municipal Service in accordance with the conditions of their service shall be a charge on the Municipal Fund and the members of the State Municipal Service are transferable from one Council to another. 35.3) Section 87(1) of the Act of 1961 provides that there shall be a Chief Municipal Officer to every Council who shall be the principal executive officer of the Council and all other officers and servants of the Council shall be subordinate to him. By virtue of sub-section (2) of Section 87, the Chief Municipal Officer of a Council shall be a member of the State Municipal Service (Executive) and shall be appointed by the State Government.
36. Municipal servants under Sections 94(2) and 94(4) of the Act of 1961 The appointment of Revenue Officer is governed by Section 94(2) of the Act of 1961, as by virtue of Section 94(2), every Council not falling under sub-section (1) shall, subject to rules framed under Section 95, appoints a Revenue Inspector and such other officers and servants as may be necessary and proper for the efficient discharge of its duties, and by virtue of Section 94(4), the appointment of Revenue Officer and other officers by the Council is subject to Page 34 of 59 (WPS No.3793/2018) confirmation by the State Government and they are transferable by the order of the State Government under Section 94(7) of the Act of 1961.
37. Section 95 of the Act of 1961 confers power upon the State Government to make rules in respect of qualification, recruitment, appointment, leave, scale of pay and other service conditions for Municipal employees other than a member of the State Municipal Service. Similarly, Section 355 also confers power upon the State Government, in addition to any power specially conferred by this Act, to prescribe forms and make rules generally for the purpose of carrying into effect the provisions of this Act. By virtue of Section 355(2)(iv)(a), the State Government may make rules for constitution of Municipal service for the State and recruitments and appointments thereto.
38. The Chhattisgarh Municipal Service (Executive) Rules, 1973 38.1) In exercise of the powers conferred by sub-section (1) and item
(b) of clauses (iv) and (v) of sub-section (2) of Section 355 read with Section 86 of the Act of 1961, the State Government had framed the rules known as the Chhattisgarh Municipal Service (Executive) Rules, 1973 for constitution of Municipal service for the State and the State Municipal Service (Executive) shall consist of Four Classes, namely, Select Grade, Class I, II and III. Rule 5 of the Rules of 1973 provides Method of recruitment. Clause (c) of sub-rule (1) of Rule 5 provides that the filling up of vacancies in all classes of Municipal Councils by direct recruitment and by promotion shall be as shown Page 35 of 59 (WPS No.3793/2018) in the Second Schedule. The Second Schedule of the Rules of 1973 states that the post of Chief Municipal Officer Class II and Class III will be filled 50% by direct recruitment and 50% by promotion, however, Select Grade and Class I posts shall be filled 100% by promotion.
38.2) Thus, it states that the posts of Chief Municipal Officer Class II and Class III shall be filled 50% by promotion i.e. by promotion from amongst CMOs of Class C Municipal Councils, Revenue Inspectors of Select Grade, Class I and Class II Municipal Councils, having experience of at least 7 years of the respective posts of CMO/Revenue Inspector. As such, CMOs of Class C Municipal Councils and Revenue Inspectors of Select Grade, Class I and Class II Municipal Councils having experience of at least 7 years on the respective posts of CMO/Revenue Inspector were also held entitled for promotion on the post of Chief Municipal Officer Class II. The relevant portion of the rule as mentioned in the Second Schedule states as under: -
"By promotion of CMOs of Class C Municipal Councils, Revenue Inspectors of Select Grade, Class I and Class II MCs, having experience of at least 7 years of the respective posts of CMO/Revenue Inspector."
38.3) These Rules were repealed by the Rules of 2017, which came into force with effect from 10-10-2017.
The Chhattisgarh Municipal Services (Scale of Pay and Allowances) Rules, 1967
39. In exercise of the powers conferred by sub-section (1) and item (b) of clause (iv) of sub-section (2) of Section 355 read with Section 95 of Page 36 of 59 (WPS No.3793/2018) the Act of 1961, the State Government has framed the rules known as the Chhattisgarh Municipal Services (Scale of Pay and Allowances) Rules, 1967 (for short, 'the Rules of 1967') which classify Municipal Councils as Class A, AA, B and C depending upon their annual income. Rule 7 of the Rules of 1967 provides for Equation of posts and it prescribes that the present posts in each Municipal Council will be equated with the posts mentioned in Schedule III as per Schedule IV and the State Government will have the power to add, delete or make any amendment in the equation of the post made and shown in Schedule IV after consulting the Municipal Council concerned.
The Chhattisgarh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968
40. Thereafter, the State Government in exercise of the powers conferred by sub-section (1) of Section 355 read with Section 95 of the Act of 1961, has framed the rules known as the Chhattisgarh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968, defining "Municipal Employee" means a person appointed to or borne on the cadre of the Municipal staff other than a member of the State Municipal Service (Executive) and "Municipal service" means the service or group of posts in connection with the affairs of the Municipality other than the State Municipal Service (Executive). The qualification required for appointment to the various categories of posts by direct recruitment or otherwise shall be as specified in Schedule III appended to the Rules of 1967.
Page 37 of 59
(WPS No.3793/2018) 74th Amendment in the Constitution
41. The Constitution of India was amended by the 74 th Amendment with effect from 1-6-1993 and the Municipalities have been conferred with the constitutional status and the Municipalities are now part of the Constitution as Part IXA. Article 243P of the Constitution creates municipalities as institutions of self-government, which are to be constituted in terms of Article 243Q. Under Article 243Q of the Constitution, municipalities are constituted. Article 243Q(1) of the Constitution states as under: -
"243Q. Constitution of Municipalities.--(1) There shall be constituted in every State,--
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township."
42. Article 243W of the Constitution prescribes powers, authority and responsibilities of Municipalities, etc.. It provides for twin purposes for municipalities, (i) preparation of plans for economic development and social justice; and (ii) the performance of functions and the implementation of schemes as may be entrusted to them including Page 38 of 59 (WPS No.3793/2018) those in relation to the matters listed in the Twelfth Schedule. The Twelfth Schedule of the Constitution enumerates eighteen items listed within the ambit of the twin purposes mentioned in Article 243W. Municipal Services whether executive or non-executive exist to carry out the mandate of Article 243W read with the Twelfth Schedule of the Constitution. However, the Rules of 1967, the Rules of 1968 and the Rules of 1973, though repealed by the Rules of 2017, were created before the 74th Constitutional Amendment, but protected by Article 243ZF of the Constitution, which provides for Continuance of existing laws and Municipalities. In accordance with the 74th Constitutional Amendment, the Act of 1961 was suitably amended by the State Government.
The Chhattisgarh State Municipal (Executive/Engineering/ Health) Services, Recruitment and Conditions of Service Rules, 2017
43. In exercise of the powers conferred by Section 86 read with sub- section (2) of Section 355 of the Act of 1961, the State Government has made the rules relating to the terms and conditions of the service of Chhattisgarh State Municipal (Executive/Engineering/Health) Services known as the Chhattisgarh State Municipal (Executive/ Engineering/Health) Services, Recruitment and Conditions of Service Rules, 2017, repealing the Rules of 1973. It provides that persons enumerated in Rule 3 of the Rules of 2017 shall be included in the service and method recruitment has been specified in Rule 6 which provides that recruitment to the service will be done by direct Page 39 of 59 (WPS No.3793/2018) recruitment, by promotion of members of the service and by transfer/deputation. Rule 15(1) of the Rules of 2017 provides as under: -
"15. Conditions of eligibility for promotion.-(1) Subject to the provisions of sub-rule (2) the Committee shall consider the cases of all persons who on first day of January of that year had completed such number of years of service (whether officiating or substantive) in the posts, from which promotion is to be made or in any other post or posts declared equivalent thereto by the Government, as specified in column (3) of Schedule-IV and are within the zone of consideration in accordance with the provisions of sub-rule (2)."
44. A careful perusal of Rule 15(1) of the Rules of 2017 would provide that subject to the provisions of sub-rule (2), the Committee shall consider the cases of all persons who on first day of January of that year had completed such number of years of service in the posts, from which promotion is to be made or in any other post or posts declared equivalent thereto by the Government, as specified in column (3) of Schedule-IV and are within the zone of consideration in accordance with the provisions of sub-rule (2). As such, power has been conferred to the State Government to declare any post equivalent as specified in column (3) of Schedule-IV of the Rules of 2017, which states as under: -
Schedule-IV (See rule 14 and 15) S. Name of the service or post Minimum period Name of service Departmental Remarks No. from which promotion to required to or post to which promotion be made qualifying for promotion is to committee promotion to the be made next higher post (1) (2) (3) (4) (5) (6)
1. Chief Municipal Officer, 06 years Chief Municipal 1. Chairman, Class "A" Officer, Class Public Service Page 40 of 59 (WPS No.3793/2018) "AA" Commission or his nominee:
2. Chief Municipal Officer, 06 years Chief Municipal Class "B" and Revenue Officer, Class
-Chairman Officers in Municipal "A"
Council/Nagar Panchayat
2. Principal
3. Chief Municipal Officer, 06 years Chief Municipal Secretary/ Class "C" and Revenue Officer, Class Secretary/Special Inspectors "AA/A/B/" "B" Secretary (Independent
4. Office Superintendent, Office Chief Municipal Charge), Urban Revenue Inspector Class Superintendent, Officer, Administration "C", Deputy Revenue (10 years) Class"C"
and Development Inspector, Assistant Grade- Revenue Department II, Head Clerk, Head Clerk Inspector Class cum Accountant, "C" (7 years),
-Member Accountant Grade-II Deputy Revenue Inspector (9
3. Commissioner/ years), Assistant Director, Grade-II, Head Directorate of Clerk, Head Urban Admin and Clerk cum Development Accountant, Department Accountant Grade-II (10
-Member years)
5. Superintendent Engineer 5 years Chief Engineer 4. Representative of Scheduled
6. Executive Engineer 5 years Superintendent Caste/Scheduled Engineer Tribe
-Member
45. The aforesaid Rule 15 read with column (3) of Schedule-IV of the Rules of 2017, would show that the post of Revenue Inspectors "AA/A/B" are made equivalent to the post of Chief Municipal Officer, Class "C" who should have minimum qualifying service of 6 years on the said posts and Chief Municipal Officer, Class "C" and Revenue Inspectors "AA/A/B" of Municipal Councils both are eligible to be promoted as Chief Municipal Officer, Class "B". Pleadings in challenging the constitutional validity of law
46. The petitioners in the writ petition have not made specific averment while challenging the constitutional validity of column (3) of Schedule-IV enacted under Rules 14 & 15 of the Rules of 2017. The petitioners ought to have made specific pleadings to challenge the Page 41 of 59 (WPS No.3793/2018) Rule. The petitioners have not alleged lack of competence on the part of the State Government to enact the Rules of 2017.
47. In the matter of Haji Abdul Gani Khan and another v. Union of India and others26, their Lordships of the Supreme Court have clearly held that when a party wants to challenge constitutional validity of a statute, he must plead in detail grounds on which validity of statute is sought to be challenged and in absence of specific pleadings to that effect, court cannot go into issue of validity of statutory provisions. It was further held by their Lordships that constitutional courts cannot interfere with law made by legislature unless it is specifically challenged by incorporating specific grounds of challenge in pleadings, reason is that there is always a presumption of constitutionality of laws. Burden is always on person alleging unconstitutionality to prove it. For that purpose, challenge has to be specifically pleaded by setting out specific grounds on which challenge is made. A constitutional court cannot casually interfere with legislation made by a competent legislature only by drawing an inference from pleadings that challenge to validity is implicit. It was also held by their Lordships that State gets a proper opportunity to defend legislation only if State is made aware of grounds on which legislation is sought to be challenged.
48. Similar proposition has been laid down by the Supreme Court in the matters of Union of India and others v. Manjurani Routray and others27, State of Kerala and others v. Shibu Kumar 26 (2023) 11 SCC 432 27 (2023) 9 SCC 144 Page 42 of 59 (WPS No.3793/2018) P.K. and another28 and Ashutosh Gupta v. State of Rajasthan and others29.
49. Similarly, in the matter of Sant Lal Bharti v. State of Punjab 30 the Supreme Court has held that a petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum.
Prescription of eligibility is prerogative of the employer
50. It is a well settled proposition of law that prescribing condition of service and promotional avenues is prerogative of the employer unless it suffers from patent illegality and manifest arbitrariness. Similar view has been taken by the Supreme Court in the matters of Dwarka Prasad and others v. Union of India and others 31, State of Maharashtra and another v. Chandrakant Anant Kulkarni and others32, Air Commodore Naveen Jain v. Union of India and others33, P.U. Joshi and others v. Accountant General, Ahmedabad and others34, State of Jammu and Kashmir v. Shri Triloki Nath Khosa and others35, T.R. Kothandaraman and others v. Tamil Nadu Water Supply & Drainage BD and others36, M. Rathinaswami and others v. State of Tamil Nadu and 28 (2019) 13 SCC 577 29 (2002) 4 SCC 34 30 (1988) 1 SCC 366 31 (2003) 6 SCC 535 32 (1981) 4 SCC 130 33 (2019) 10 SCC 34 34 (2003) 2 SCC 632 35 (1974) 1 SCC 19 36 (1994) 6 SCC 282 Page 43 of 59 (WPS No.3793/2018) others37, Union of India v. Pushpa Rani and others 38, Maharashtra Public Service Commission v. Sandeep Shriram Warade39 and Chief Manager, Punjab National Bank and another v. Anit Kumar Das40.
To provide channels of promotion is the right of the Government
51. The Supreme Court in the matter of Govt. of T.N. and another v. S. Arumugham and others41 relying upon its two earlier decisions has held that the Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices, and observed as under: -
"10. ... The Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. In Indian Rly. Service of Mechanical Engineers' Assn. v. Indian Rly. Traffic Service Assn. 42 this Court reiterated that the correctness of a policy should not be questioned by the Tribunal. The appellants in their affidavit before the Tribunal have given in detail the history of these provisions and the justification for these provisions in the interests of efficiency and proper administration. The Tribunal cannot substitute its own views for the views of the Government or direct a new policy based on the Tribunal's view of how the allocation should be made. The three groups which have been formed as far back as in 1977 for the purposes of allocation consist of officers performing different functions and having different prospects and different avenues of promotion. They cannot be equated for the purpose of Articles 14 or 16. In the case of Govind Dattatray Kelkar v. Chief Controller of 37 (2009) 5 SCC 625 38 (2008) 9 SCC 242 39 (2019) 6 SCC 362 40 (2021) 12 SCC 80 41 (1998) 2 SCC 198 42 1993 Supp (4) SCC 473 : 1994 SCC (L&S) 237 : (1994) 26 ATC 352 Page 44 of 59 (WPS No.3793/2018) Imports & Exports43 this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. ..."
52. It is well settled law that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. {See Chandrakant Anant Kulkarni's case (supra), Union of India and others v. S.L. Dutta and anothers 44 and Panchraj Tiwari v. Madhya Pradesh State Electricity Board and others 45.) FINDINGS AND ANALYSIS Answer to Question No.1
53. As already noticed in the foregoing paragraphs, by virtue of Section 19 of the Act of 1961, a Municipal Council or a Nagar Panchayat shall consist of President, that is Chairperson, elected by direct election from the Municipal area; Councillors elected by direct election from the wards; and not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Panchayats having special knowledge or experience in Municipal Administration nominated by the State Government. By virtue of Section 87(1) of the Act of 1961, the Chief Municipal Officer of every Council would be the principal executive officer of the Council, who has to be appointed by the State Government by virtue of Section 43 AIR 1967 SC 839 : (1967) 2 SCR 29 : (1967) 1 LLJ 691 44 (1991) 1 SCC 505 45 (2014) 5 SCC 101 Page 45 of 59 (WPS No.3793/2018) 87(2) by framing rule under Section 87 of the Act of 1961. As such, the Chief Municipal Officer including the Chief Municipal Officer Grade-C are to be appointed by the State Government and they hold civil post under the State as held by the M.P. High Court in Suresh Chandra Sharma (supra). Similarly, a Revenue Inspector is a Municipal servant appointed under Section 94(2) of the Act of 1961 by the Municipal Council subject to confirmation by the State Government under Section 94(4) and thus, he is a Municipal servant and a Municipal servant cannot be suspended for a period exceeding one month without previous approval of the State Government. Similarly, by virtue of Section 86(4) of the Act of 1961, the State Government is empowered to transfer any member of the State Municipal Service from one Council to another Council and similarly, by virtue of Section 94(7), the State Government may transfer any officer or servant of a Council mentioned in sub-sections (1) and (2) to any other Council. As such, the Chief Municipal Officer of every Council, who happens to be the principal executive officer of the Council appointed by the State Government under Sections 86 and 87 of the Act of 1961, shall be a member of the State Municipal Service (Executive).
54. The Legislature has conferred power upon the State Government to make rules for the purpose of providing Chief Municipal Officers, Health Officers and Engineers to Municipal Councils for the purpose of which the State Municipal Service (Executive) was enacted by the Rules of 1973, which have now been repealed and the Rules of 2017 Page 46 of 59 (WPS No.3793/2018) have been brought into force. The earlier Rules of 1973 which have now been repealed by the Rules of 2017 enacted in exercise of the powers conferred by Section 86 read with sub-section (2) of Section 355 of the Act of 1961. The Second Schedule enacted under clause (c) of sub-rule (1) of Rule 5 of the Rules of 1973 provided that the posts of Chief Municipal Officer Class II shall be filled 50% by promotion from amongst CMOs of Class C Municipal Councils, Revenue Inspectors of Select Grade, Class I and Class II Municipal Councils, having experience of at least 7 years of the respective posts of CMO/Revenue Inspector, as noticed herein-above.
55. The Rules of 2017 were enacted in exercise of powers conferred under Sections 86(2) and 355(iv) of the Act of 1961. The object of the Rules of 2017 is to recruit and provide Chief Municipal Officers to the Municipalities constituted under Section 5 of the Act of 1961.
56. A careful perusal of Rule 15(1) of the Rules of 2017, which has already been reproduced in the preceding paragraph, would provide that subject to the provisions of sub-rule (2), the Committee, as per rules, shall consider the cases of all persons who on first day of January of that year had completed such number of years of service (whether officiating or substantive) in the posts, from which promotion is to be made or in any other post or posts declared equivalent thereto by the Government, as specified in column (3) of Schedule-IV and are within the zone of consideration in accordance with the provisions of sub-rule (2). As such, the aforesaid rule clearly directs that apart from the persons who are already in the feeder cadre of CMO, the Page 47 of 59 (WPS No.3793/2018) rule-making authority/State Government is empowered to include in the feeder cadre any other post or posts declared equivalent thereto by the State Government, as specified in column (3) of Schedule-IV and therefore Revenue Inspectors AA/A/B of Municipal Council(s) have been declared equivalent to that of Chief Municipal Officers Class-C for the feeder cadre for the promotional post of Chief Municipal Officer Class-B. Therefore, Rule 15(1) of the Rules of 2017 being enabling provision empowers the State Government to provide equivalence to the posts for the purpose of constituting the feeder cadre for promotion and the constitutional validity of Rule 15(1) of the Rules of 2017 i.e. power to make equivalence has not been questioned by the petitioners for the good reasons known to them which empowers the Government to declare any post in column (3) of Schedule-IV as to who are entitled to be promoted and in column (3) of Schedule-IV, the Revenue Inspectors AA/A/B who have completed 6 years of service on that post are also included in the feeder cadre to be considered and promoted to the post of Chief Municipal Officer, Class B. Thus, column (3) of Schedule-IV of the Rules of 2017 provides for multiple feeder cadres for promotion to the post of Chief Municipal Officer Class-B.
57. The Supreme Court in Aphali Pharmaceuticals Ltd. (supra) held that a Schedule in an Act of Parliament is a mere question of drafting. It is the legislative intent that is material. Their Lordships further held as under: -
Page 48 of 59
(WPS No.3793/2018) "31. A Schedule in an Act of Parliament is a mere question of drafting. It is the legislative intent that is material. An Explanation to the Schedule amounts to an Explanation in the Act itself. As we read in Halsbury's Laws of England, Third Edn., Vol. 36, para 55146:
"To simplify the presentation of statutes, it is the practice for their subject-matter to be divided, where appropriate, between sections and Schedules, the former setting out matters of principle, and introducing the latter, and the latter containing all matters of detail. This is purely a matter of arrangement, and a Schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced."
The Schedule may be used in construing provisions in the body of the Act. It is as much an act of legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the Schedule cannot control or prevail against the express enactment and in case of any inconsistency between the Schedule and the enactment, the enactment is to prevail and if any part of the Schedule cannot be made to correspond it must yield to the Act. Lord Sterndale, in IRC v. Gittus47 said: (at p. 576) "It seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose, you ought to do it. But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act." 46 Ed.: See in Fourth Edition, Vol. 44, para 822 47 (1920) 1 KB 563 Page 49 of 59 (WPS No.3793/2018)
32. The above observation was not disapproved in appeal in Gittus v. IRC48. However, the basic principle is that in case of a conflict between the body of the Act and the Schedule, the former prevails. In the instant case, we do not find any such conflict."
58. In the present case, the petitioners have questioned the constitutional validity of column (3) of Schedule-IV of the Rules of 2017. Column (3) of Schedule-IV of the Rules of 2017 is in accordance with Rule 15(1) of the Rules of 2017 by which the post of Revenue Inspector AA/A/B has been equated to that Chief Municipal Officer Class-C empowering both of them to be promoted on the post of Chief Municipal Officer Class-B. As such, column (3) of Schedule- IV of the Rules of 2017 is in accordance with Rule 15(1) of the Rules of 2017 and it is the power of the State Government by virtue of sub- rule (1) of Rule 15 to equate the post and to make multiple feeder cadre for promotion to the post of Chief Municipal Officer Class-B.
59. The Supreme Court in S. Arumugham's case (supra) has held that the Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. Their Lordships relying upon the earlier decision of the Supreme Court in Govind Dattatray Kelkar (supra) further held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source.
60. As noticed in the preceding paragraphs, it is well settled that the determination of the source of promotion to any particular post falls 48 (1921) 2 AC 81 Page 50 of 59 (WPS No.3793/2018) squarely within the domain of the rule-making authority. While exercising such power, the authority is required to take into consideration various relevant factors, including the functional needs of the post in question, administrative efficiency and the overall organisational structure of the department. In order to ensure smooth administration and to maintain institutional discipline, the rule-making authority, in its wisdom, prescribes the feeder cadre and the channel of promotion through the applicable service rules framed for that purpose. It is equally within the prerogative of the rule- making authority to prescribe one or more feeder cadres for a particular promotional post, depending upon the nature of duties attached to the post and the administrative framework of the department. The rule-making authority may, for valid administrative reasons, provide that promotion to a higher post may be made from multiple cadres possessing comparable qualifications, experience or functional relevance. Such determination is essentially a matter of policy and lies within the exclusive domain of the rule- making authority. Once the service rules clearly specify and identify the feeder cadre from which promotions are to be effected, the same must necessarily govern the field and be strictly adhered to by all concerned. The rules, having been framed in exercise of statutory rule-making powers, carry binding force and are required to be implemented as they stand, unless they are amended, modified or declared invalid by a competent court of law.
Page 51 of 59
(WPS No.3793/2018)
61. It is equally well settled that no employee can claim, as a matter of right, that a particular cadre should be treated as the sole or exclusive feeder cadre for the purpose of filling up a promotional post, unless such a claim is specifically supported by the governing service rules. The right of promotion, if any, is always subject to the conditions and eligibility criteria prescribed under the applicable rules, and an employee can only claim consideration for promotion in accordance with those rules.
62. Therefore, in light of the above discussion, it is not open to the petitioners to insist that Chief Municipal Officer, Class-C alone must be treated as the feeder cadre or that the promotional post must necessarily be filled from that cadre (Chief Municipal Officer, Class- C) and Revenue Inspectors AA/A/B should not constitute feeder cadre. The State, as a model employer, retains the prerogative to prescribe eligibility criteria and multiple feeder cadre for the promotional post of Chief Municipal Officer Class-B and such policy decision is not subject to judicial interference unless the same is not patently arbitrary, discriminatory or in violation of constitutional provisions.
63. It is well settled that the employer is vested with the discretion to treat different categories of posts as holding equal or equivalent status for the purpose of promotion. In this regard, it is further well settled from the decision of the Supreme Court in S.B. Mathur (supra) that the discretion vested in the employer to equate posts must be exercised in a reasonable and non-arbitrary manner, Page 52 of 59 (WPS No.3793/2018) consistent with the mandate of Articles 14 and 16 of the Constitution of India. It is not necessary that the posts so equated should involve identical functions, emanate from the same source of recruitment, or prescribe the same qualifications for appointment. The governing consideration is that there should not exist such substantial differences in pay scales, qualifications, duties, or responsibilities as would render the equation of posts unjust or irrational.
64. In view of the foregoing discussion, it is held that the authority to equate different categories of posts, for the purpose of constituting one or more feeder cadres for promotion, lies exclusively within the domain of the executive or the rule-making authority. Consequently, such determination, in the instant case equating the posts of Revenue Inspector AA/A/B to that of Chief Municipal Officer Class-C, being a matter of policy and administrative discretion, would not warrant judicial interference, as it is neither shown to be arbitrary or unreasonable nor contrary to the statutory provisions.
65. At this stage, the submission of learned Senior Counsel appearing on behalf of the petitioners deserves to be noticed. The sole submission of the petitioners is that the petitioners, who are Chief Municipal Officers, are holding the civil post under the State as held by the Full Bench of M.P. High Court in Suresh Chandra Sharma (supra), whereas the private respondents are Municipal servants appointed under Section 94(2) of the Act of 1961, as the CMOs are governed by the Rules of 2017 and the Municipal servants are governed by the Rules of 1968, thus, the Municipal servants/Revenue Inspectors Page 53 of 59 (WPS No.3793/2018) cannot be merged into the cadre of CMO Class-C. As we have already held herein-above, the Government is entitled to provide multiple feeder cadre for promotion, as the Municipality is a constitutional body after the 74th Amendment in the Constitution and the Municipality has to discharge twin purposes i.e. (i) preparation of plans for economic development and social justice; and (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule, as enumerated in Article 243W of the Constitution, which prescribes powers, authority and responsibilities of Municipalities, etc., and for good governance of the Municipalities, in accordance with Section 86 of the Act of 1961, the CMOs are to be appointed. By virtue of Rule 15(1) of the Rules of 2017, the State Government has the power of equivalence of posts and as such, the argument that Revenue Inspectors cannot be merged into the cadre of CMO Class-C deserves to be rejected, as in S.B. Mathur (supra), the Supreme Court has held that there is nothing inherently wrong in an employer treating certain posts as equated posts or equal status posts, and further held that for treating certain posts as equated posts or equal status posts, it is not necessary that the holders of these posts must perform completely the same functions or that the sources of recruitment to the posts must be the same nor is it essential that qualifications for appointments to the posts must be identical. As such, the argument of learned Senior Counsel for the petitioners deserves to be rejected and it is accordingly, rejected. Page 54 of 59
(WPS No.3793/2018)
66. Similarly, the submission made on behalf of the petitioners that prolonged existence of an unconstitutional provision does not confer validity relying upon the decision of the Supreme Court in Motor General Traders (supra) also deserves to be rejected, as the Rules of 1973 providing feeder cadre for Revenue Inspectors and CMOs for promotion on the post of CMO Class-B, remained in force and the same were repealed only by the Rules of 2017. Thus, this argument also has no merit and deserves to be rejected. It is accordingly, rejected.
67. It is a settled principle of law that the Schedule of the Rules has to be in conformity with, and is required to advance the object of the primary statutory provision. Thus, a schedule cannot in any way wipe out the statutory provisions of the Act in effect and spirit. {See Jagdish Prasad (supra).}
68. Not only this, there are other grounds for not entertaining the plea challenging the constitutional validity of column (3) of Schedule-IV of the Rules of 2017. The petitioners, who, at the time of filing writ petition, were holding the post of Chief Municipal Officer Class-C, now stood promoted to the post of Chief Municipal Officer Class-B and as a matter of right, they have questioned the constitutional validity of the said Schedule without indicating as to in what manner their legal or constitutional rights are violated, as pleading in this regard is absolutely vague and there is no pleading at all to that effect. It is not the case of the petitioners that there is lack of competence on the part of the State Government to frame the rules Page 55 of 59 (WPS No.3793/2018) particularly, column (3) of Schedule-IV of the Rules of 2017 providing multiple feeder cadre for promotion on the post of Chief Municipal Officer Class B, including Revenue Inspectors AA/A/B. As such, the petitioners did not plead in detail the specific grounds on which they wish to question the constitutional validity of column (3) of Schedule-IV of the Rules of 2017, which is sine qua non for questioning the constitutional validity of a rule as held by the Supreme Court in Haji Abdul Gani Khan (supra) and it has been questioned in vacuum.
69. Even otherwise, it has already been held in the foregoing paragraphs that reduction in chances of promotion is not a condition of service or fundamental right of the petitioners, only the right to be considered objectively and fairly is the fundamental right of a Government servant. The petitioners even did not plead specifically that by including Revenue Inspectors AA/A/B in the feeder cadre, their chances of promotion have reduced and/or likely to be reduced. The constitutional validity of rule cannot be questioned in abstract or vacuum as held by the Supreme Court in Sant Lal Bharti (supra). As such locus standi to challenge the constitutional validity of a rule, the petitioners could not demonstrate that their legal, constitutional or fundamental rights are effected by the impugned rule i.e. column (3) of Schedule-IV of the Rules of 2017 in line with the decisions of the Supreme Court in D.K. Nabhirajiah (supra) and Dwarkadas Shrinivas (supra), as they have not pleaded and established that column (3) of Schedule-IV of the Rules of 2017 is directly affecting Page 56 of 59 (WPS No.3793/2018) them. As already held, mere reduction in chances of promotion would not be a condition of service and thereby no legal, constitutional or fundamental right of the petitioners are affected/prejudiced.
70. The decisions cited by learned Senior Counsel appearing on behalf of the petitioners namely, Ayodhya Prasad Mishra's case (supra), Rajinder Singh's case (supra), Naresh Chandra Agrawal (supra) and Charanjit Lal Chowdhury (supra), are quite distinguishable to the facts of the present case.
71. In view of the above, we are of the considered opinion that the petitioners could not demonstrate that column (3) of Schedule-IV of the Rules of 2017 is constitutionally ultra vires and violative of their legal and fundamental right. As such, challenge to the constitutional validity of the said rule is hereby repelled. Question No.1 is answered accordingly.
Answer to Question No.2
72. By the order Annexure P-1, the State Government in exercise of its power conferred under Rule 45 of the Rules of 2017 relaxed the qualifying service provided in Schedule-IV, column (3), from 6 years to 5 years for one time, which is sought to be challenged by the petitioners as unconstitutional and contrary to the power conferred to the State Government under Rule 45 of the Rules of 2017. For the sake of convenience, order dated 2-2-2018 (Annexure P-1) is reproduced herein-below:-
Page 57 of 59
(WPS No.3793/2018) NRrhlx<+ 'kklu uxjh; iz'kklu ,oa fodkl foHkkx ea=ky;
egkunh Hkou] u;k jk;iqj &&&&&&&&&&&&&&&&& @@vkns'k@@ u;k jk;iqj] fnukad 02 Qjojh] 2018 Øekad ,Q 4&06@2018@18 %% jkT; 'kklu ,rn~}kjk eq[; uxj ikfydk vf/kdkjh *[k* oxZ ds fjDr inksa ij inksUufr gsrq NRrhlx<+ jkT; uxjikfydk ¼dk;Zikyu@;kaf=dh@LokLF;½ lsok] HkrhZ rFkk lsok dh 'krsZa fu;e] 2017 dh vuqlwph&pkj ds ljy Øekad 3 esa mYysf[kr jktLo fujh{kd dh mPprj in ij inksUufr gsrq vgZ gksus ds fy;s U;wure dkykof/k 06 o"kZ esa dsoy ,d ckj ds fy, 01 o"kZ dh NwV iznku djrk gSA NRrhlx<+ ds jkT;iky ds uke ls rFkk vkns'kkuqlkj] lgh@& ¼vkj- ,Ddk½ mi lfpo NRrhlx<+ 'kklu uxjh; iz'kklu ,oa fodkl foHkkx
73. However, a careful perusal of the writ petition would show that the petitioners have not brought real and tangible material on record to show any prejudice, only vague pleading has been made unsupported by any material to demonstrate that prejudice has been caused to them by giving relaxation of one year in qualifying service.
74. The Supreme Court in Sandeep Kumar Sharma (supra) has held that the interpretation of a rule relating to relaxation to be made in a liberal manner and relying upon its earlier decision in J.C. Yadav (supra), it has been held that the rule of relaxation must get a pragmatic construction so as to achieve effective implementation of a good policy of the Government.
75. The petitioners were Chief Municipal Officers Grade-C at the relevant point of time and relaxation has been granted to the Revenue Page 58 of 59 (WPS No.3793/2018) Inspectors of Municipal Councils in the qualifying service for a period of one year as one time measure. It appears from the record that in the present case there was dearth of officers available for promotion in the feeder cadre of Chief Municipal Officer, whereas in the equivalent post of Revenue Inspector persons with near to experience were available. Therefore, the Government took a policy decision in accordance with Articles 162 and 166 of the Constitution of India to give one year relaxation as one time measure in the qualifying service to the Revenue Inspectors in order to provide Chief Municipal Officers to the Municipalities in which we find that the power of relaxation has rightly been granted by the State Government, as one time measure and we do not find any material to hold that the power of relaxation exercised by the State Government is either perverse or contrary to the record or it has been exercised for extraneous consideration. In that view of the matter, the power of relaxation exercised by the State Government by way of Annexure P-1 is in accordance with law. Question No.2 is answered accordingly.
Conclusion
76. In view of the aforesaid discussion, we hold as under: -
1. Column (3) of Schedule-IV enacted under Rules 14 & 15 of the Rules of 2017 is a constitutionally valid piece of legislation and challenge to its constitutionality is hereby repelled.Page 59 of 59
(WPS No.3793/2018)
2. The power of relaxation exercised by the State Government by way of order impugned dated 2-2-2018 (Annexure P-1) is also in accordance with law and we do not find any merit in the challenge to the said order.
77. Consequently, column (3) of Schedule-IV enacted under Rules 14 & 15 of the Rules of 2017 is held to be intra vires and it is not unconstitutional, and accordingly, the writ petition challenging the constitutional validity of the said provision deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).
Sd/- Sd/-
(Sanjay K. Agrawal) (Arvind Kumar Verma)
Judge Judge
Barve/Soma