C.A.V. ORDER
Sanjay K. Agrawal, J.
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
1. Challenge in the Writ Petition
Constitution of India. The petitioners also seek to challenge the
by one year as stated above.
after impleading them as party respondents. Accordingly, the
they are allowed to exchange pleadings. This is how this present
2. Writ Petition
and, therefore, the same is unconstitutional.
Constitution of India. The said provision travels beyond the rule-
3. Return on behalf of the State
invoking Rule 45 of the Rules of 2017. Rule 45 of the said Rules
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
Government within the statutory framework. It is also stated that
the State to create avenues of promotion for its employees. It is also
Article 226 of the Constitution of India is limited. The State has
of recruitment or eligibility criteria or avenues of promotion. It is
them i.e. Chief Municipal Officer Class-B, which cannot be a ground
the Rules of 2017. As such, the Writ Petition deserves to be
4. Rejoinder has been filed on behalf of the petitioners controverting
taken by the State in the return is constitutionally impermissible.
5. Return on behalf of the private respondents
validity of the subject Rules. Therefore, their stand is not being
repeated herein to avoid unnecessary repetition of facts.
6. Submissions on behalf of the petitioners
Mr. Kishore Bhaduri, learned Senior Counsel appearing on behalf of
6.2) The effect of impugned provision i.e. the provision mentioned
short, 'the Rules of 1968'), respectively. Therefore, the impugned
parent Act. As such, it is unconstitutional and is liable to be struck
94(4) of the Act of 1961. Therefore, they are unequals and they
of statutory rules and different sources of recruitment. Reliance is
Limited v. Ayodhya Prasad Mishra and another2 and Indian
General and another v. Rajinder Singh and others3.
Municipal Service that is Chief Municipal Officer of Class A, B & C. It
amount to new source of recruitment under the Rules. Learned
Supreme Court in the matter of Naresh Chandra Agrawal v.
2 (2008) 10 SCC 139
3 2024 SCC OnLine SC 2137
Institute of Chartered Accountants of India and others 4.
Pharmaceuticals Ltd. v. State of Maharashtra and others 5 to
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.
of column (3) of Schedule-IV of the subject Rules. Relying upon the
Chowdhury v. Union of India and others 7, he would submit
another v. State of Andhra Pradesh and others 8 to submit
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
Municipal servants of the Municipal Council. He would also submit
1961. Furthermore, the power of relaxation cannot be exercised to
Officer Class-B.
challenge it. Therefore, column (3) of Schedule-IV of the Rules of
7. Submissions on behalf of the State
Mr. Prasun Kumar Bhaduri, learned Deputy Advocate General
promotion order etc.. The writ petition as pleaded and presented is
infringing the fundamental and legal rights of the petitioners. In the
Revenue Officers with near to experience were available. Thus the
mind practical necessities and for objective reasons. As such, the
impugned order dated 2-2-2018 is in accordance with law.
of Articles 14 & 16 of the Constitution of India.
post the 74th Amendment to the Constitution w.e.f. 1-6-1993 and the
Municipalities are now part of the Constitution. Moreover, Article
are to be constituted in terms of Article 243Q of the Constitution.
urban areas. Further, Schedule XII to the Constitution enumerates
243W. The Municipal Services whether executive or non-executive
Schedule of the Constitution. Thus the Rules of 2017 though created
of the Constitution. He would also submit that although the Rules of
from doubt. He would submit that if the rule enacted is within the
no restrictions on that power, the rule must be upheld. As such, the
8. Submissions on behalf of the private Respondents
8.1) Mr. Manoj Paranjpe, learned Senior Counsel appearing on
rule is constitutionally valid. The only way available for the Revenue
Officer. As such, the impugned Rule is constitutionally valid and the
law and the Writ Petition deserves to be dismissed.
8.2) Mr. Amrito Das, learned counsel appearing on behalf of
aggrieved". At the best, they can be considered as the "persons
annoyed". The present Writ Petition questioning the constitutional
fundamental rights of the petitioners herein. He would further
material in the instant case. In the absence of necessary pleadings as
8.3) Mr. Rajesh Kumar Kesharwani, learned counsel appearing on
behalf of respondents No.18 to 20; Mr. Santosh Bharat, learned
counsel appearing on behalf of respondents No.23 to 45; and Mr.
9. We have heard learned counsel for the parties, considered their rival
10. The questions that arise for determination in the present Writ
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?
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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,
(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
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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
(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
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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
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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.
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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: -
(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
(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
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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.
(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,
(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
(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.
(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
(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
(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:-
(WPS No.3793/2018)
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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
(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.
(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
