[Cites 10, Cited by 0]
Madhya Pradesh High Court
Dr Pankaj Kumar Yadav vs The State Of Madhya Pradesh on 5 January, 2026
1 W.P.No. 13803/2023 & 13517/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION No.13803 OF 2023
DR. PANKAJ KUMAR YADAV
Versus
STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri S.S.Tomar - Advocate for the petitioner.
Shri Sohit Mishra- Advocate for the respondents/State.
Shri Alok Katare- Advocate for respondent no. 3.
Shri Rajendra Kumar Shrivastava- Advocate for respondent no. 4.
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AND
WRIT PETITION No.13517 OF 2024
DR. AKSHARA GUPTA
Versus
GAJRA RAJA MEDICAL COLLEGE, GWALIOR AND OTHERS
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Appearance:
Shri Amit Lahoti - Advocate for the petitioner.
Shri Alok Katare- Advocate for respondents no. 1 & 2.
Shri Sourav Singh Tomar- Advocate for respondent no. 3.
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RESERVED ON: 03/12/2025
ORDER PASSED ON: 05/01/2026
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ORDER
This order shall govern disposal of both the aforesaid writ petitions as the
issue involved in both these petitions is same.
AS REGARDS W.P. No.13803/2023
1. In exercise of powers conferred by the proviso to Article 309 of the
Constitution of India, the Governor of Madhya Pradesh has made rules namely
M.P. Civil Services (General Conditions of Service) Rules, 1961, (in short 'Rules
of 1961') for regulating the recruitment & conditions of service of persons
appointed to public services and posts in connection with the affairs of the State of
Madhya Pradesh. The center of discussion in these cases is the provisions of Rule
6 which provides for disqualification for appointment in public service and post.
By way of notification, dated 10.03.2000, following sub-rule 6 is inserted in Rule
6 of Rules of 1961:
"(6) No candidate shall be eligible for appointment to a service or
post who has more than two living children one of whom is born on
or after the 26th day of January' 2001."
2. The vires of similar provisions of Section 175(1)(q) and 177(1) of Haryana
Panchayat Raj Act, 1994, came to be challenged before Apex Court in the case of
Javed v. State of Haryana reported in (2003)8 SCC 369. Upholding the vires of
said provisions, the Apex Court held in as under:
"8. It is well settled that Article 14 forbids class legislation; it does
not forbid reasonable classification for the purpose of legislation.
To satisfy the constitutional test of permissibility, two conditions
must be satisfied, namely: (i) that the classification is founded on
an intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and (ii)
that such differentia has a rational relation to the object sought to
be achieved by the statute in question. The basis for classification
may rest on conditions which may be geographical or according to
objects or occupation or the like. (See Constitution Bench decision
in Budhan Choudhry v. State of Bihar [AIR 1955 SC 191 : (1955) 1
SCR 1045 : 1955 Cri LJ 371] .) The classification is well defined
and well perceptible. Persons having more than two living children
are clearly distinguishable from persons having not more than two
living children. The two constitute two different classes and the
classification is founded on an intelligible differentia clearly
distinguishing one from the other. One of the objects sought to be
achieved by the legislation is popularizing the family
welfare/family planning programme. The disqualification
enacted by the provision seeks to achieve the objective by creating
a disincentive. The classification does not suffer from any
arbitrariness. The number of children viz. two is based on
legislative wisdom. It could have been more or less. The number is
a matter of policy decision which is not open to judicial scrutiny."
3. While Rule 6(6) of Rules of 1961 makes violation of this rule a
disqualification for appointment, provisions of Rule 22(4) of M.P. Civil Services
(Conduct) Rules, 1965, (in short 'Rules of 1965') makes it a misconduct if the
third child is born after appointment in service.
4. It is thus evident that the provisions of Rule 6(6) of Rules of 1961 and Rule
22(4) of Rules of 1965 have been made with an object of popularizing the family
welfare/family planning programme.
5. With the aforesaid legal provisions, the facts of these cases need to be
examined. The petitioner as also respondent no.4 are working in Radio Diagnosis
Department of respondent no.3 College. Their service profile is not in dispute and
the same is as under:
Assistant Professor Associate Professor Professor
Respondent no.4 24.04.1998 04.07.2005 15.10.2015
Petitioner 2001 05.10.2007 09.01.2022
6. Thus, the petitioner is admittedly junior to the respondent no.4 in all
cadres. It is also not in dispute that the respondent no.4, being senior most, was
given the charge of Head of the Radio Diagnosis Department.
7. The petitioner challenges the promotion of respondent no.4 on the post of
Associate professor, dated 04.07.2005, and her further promotion on the post of
Professor, dated 15.10.2015, on the ground of violation of Rule 6(6) of Rules of
1961. It is his submission that the third child to respondent no.4 is born on
01.01.2005 and, therefore, she was disqualified from being appointed as Associate
Professor and Professor.
8. The respondent no.4, in turn, refutes the submission of petitioner inter-alia
on the ground that the disqualification attached with Rule 6(6) of Rules of 1961 is
only regarding initial appointment in service and the same is not applicable in
cases of promotion. The respondent no.4 submits that she had only two children at
the time of her initial appointment as Assistant Professor on 24.04.1998 therefore
she does not suffer any disqualification under Rule 6(6) of Rules of 1961. As per
her submission:
i. first child was born on 30.06.1992;
ii. second child was born on 01.08.1996;
iii. third child was born on 01.01.2006;
9. The petitioner initially submitted a representation on 19.01.2023 (Annexure
P/7) questioning appointment of respondent no.4 on the post of Associate
Professor and Professor being in violation of Rule 6(6) of Rules of 1961 and
requested for appointing him as Head of the Department. When no action was
taken on his representation, he filed W.P. No.3502/2023 which was disposed of by
this Court vide order, dated 10.02.2023, (Annexure P/9) thereby directing
respondent no.3 to pass appropriate order on petitioner's representation. The
respondent no.3 thereafter obtained legal opinion and passed order, dated
27.04.2023, (Annexure P/1) thereby closing the matter observing that no action is
required to be taken on petitioner's representation. The petitioner is aggrieved by
this communication, dated 27.04.2023, and has thus filed this writ petition.
10. It appears, after passing of order, dated 27.04.2023, the respondent no.3
sought guidance from Commissioner, Gwalior Division, Gwalior vide memo,
dated 15.05.2023, (Annexure P/11). Thereafter, while this writ petition was
pending, the respondent no.3 passed the order, dated 08.05.2024, thereby directing
charge of Head of Radio Diagnosis Department to be given to petitioner.
Challenging this order, respondent no.4 has filed another writ petition which is
subject matter of W.P. No.13517/2024.
11. The learned counsel appearing for petitioner submitted that a third child
was born to respondent no.4 on 01.01.2005 and, therefore, she incurred
disqualification under Rule 6(6) of Rules of 1961 and, therefore, her appointment
on the post of Associate Professor and Professor is illegal. He submitted that once
respondent no.4 is declared disqualified, he would be the only candidate to hold
the charge of the Head of the Department. The learned counsel also argued that
the respondent no.3 erred in not cancelling appointment of respondent no.4 on the
post of Associate Professor and Professor and only took charge of post of HOD
from her. He thus prayed for setting aside of appointment of respondent no.4 as
Associate Professor and Professor.
12. Refuting aforesaid submissions, the learned counsels appearing for
respondent no.4 submitted that the services of petitioner and respondent no.4 were
earlier governed by provisions of separate rules namely Shwasasi Chikitsa
Mahavidyalaya ke Samvardhan Evam Samviliyan Sambandhi Niyam, 1998, (in
short 'Rules of 1998') and thereafter by M.P. Shwasasi Chikitsa Evam Dant
Chikitsa Mahavidyalaya Sheshknik Aadarsh Sewa Niya, 2018, (in short 'Rules of
2018'). It is his submission that the provisions of Rules of 1961 are not applicable
in case of respondent no.4 and, therefore, the disqualification provided under Rule
6(6) is also not attracted. The learned counsel placed reliance upon judgment
rendered by coordinate bench of this Court in the case of Dr. Sachin Chittawar &
ors. vs. State of M.P. & others in W.P. No.3431 of 2012 and also in the case of
Dr. Om Prakash Raichandani vs. State of M.P. & another in W.P. No.8038 of
2021.
13. Alternatively, the learned counsel submitted that the disqualification as
provided in Rule 6(6) is applicable only in case of initial appointment in service
and is not attracted in case of promotion. It is their submission that since
respondent no.4 had only two children at the time of her initial appointment as
Assistant Professor in the year 1998, she does not suffer any disqualification by
virtue of Rule 6(6).
14. In rejoinder, the learned counsel for petitioner submitted that the provisions
of Rules of 2018 are not attracted inasmuch as promotion of respondent no.4 as
Associate Professor and Professor is prior to coming into force of these rules. He
thus submitted that the judgment rendered in the case of Dr. Sachin Chittawar &
Dr. Om Prakash Raichandani (supra) are not applicable in the facts of this case.
He also submitted that by virtue of Rule 2 of Rules of 1998, the general conditions
of service of respondent no.4 are governed by Govt. Rules. He thus submitted that
provisions of Rules of 1961 are applicable on respondent no.4. The learned
counsel also submitted that promotion is also a mode of appointment and,
therefore, the respondent no.4 cannot claim exclusion of Rules of 1961 in case of
promotion. The learned counsel relied upon Apex Court judgment rendered in the
case of M.Ramachandran Vs. Govind Ballabh & Ors., reported in (1999)8 SCC
592 to say that promotion is also one of the modes of appointment.
15. Considered the arguments and perused the records.
16. Based upon the respective contentions made by counsel for parties,
following issues arises for consideration:
I. Whether provisions of Rule 6(6) of Rules of 1961 are attracted even in
case of promotion or the same is applicable only in case of initial
appointment in service?
II. Whether Rule 6(6) of Rules of 1961 is not applicable since the
respondent no.4 is governed by provisions of Rules of 2018?
III. Whether the appointment/promotion of respondent no.4 on the post of
Associate Professor and Professor is liable to be quashed being in violation
of Rule 6(6) of Rules of 1961?
ISSUE I:
17. In order to decide this issue, provisions of Rule 7 of Rules of 1961 are
relevant which reads as under:
"7. Methods of Recruitment.- Candidates shall be selected for
appointment to a service or post by one or more of the following
methods as may be prescribed, namely:-
(i) direct recruitment;
(ii) promotion;
(iii) transfer of person or persons already employed in another service
or post:
Provided that the commission shall be consulted before a person is
appointed to a service or post if such consultation is necessary under
Article 320 of the Constitution read with the Madhya Pradesh Public
Service Commission (Limitation of Functions) Regulations, 1957."
18. It is thus evident that in case of recruitment by way of promotion on any
post, the provisions of Rules of 1961 are applicable. The disqualification
contained in Rule 6(6) applies in case of appointment to a service or post. A
conjoint reading of Rule 6(6) & Rule 7 makes it clear that the disqualification
contained in Rule 6(6) is attracted also in case of appointment by promotion.
Thus, Rule 6(6) of Rules of 1961 is attracted even in case of promotion. The
argument of learned counsel for petitioner that the disqualification prescribed
under Rule 6(6) is attracted only in case of inception in service is thus not
acceptable and is accordingly rejected.
ISSUE II:
19. It is not disputed by the parties that earlier the petitioner and respondent
no.4 were governed by Rules of 1998 which were superseded by Rules of 2018.
At the time of promotion of respondent no.4 to the post of Associate Professor and
Professor, the provisions of Rules of 1998 were in vogue. Rule 2 thereof provides
as under:
"lsok dh lkekU; 'krsZa&
tc rd fdlh izdj.k esa vU;Fkk izkof/kr u gks] Lo'kklh laLFkk ds lsod dk laiw.kZ
le; laLFkk ds v/khu gksxk ] tks mls Hkqxrku djrh gS A Lo'kklh laLFkk ds lsod dks
cxSj fdlh vfrfjDr ikfjJfed ds fdlh Hkh izdkj ls fu;ksftr fd;k tk ldrk gS A
fu;qfDr ds fy;s vgZrk] fu;qfDr ds fy;s vik= fu;qfDr ds i'pkr~ vik= ik;s tkus
ij dk;Zokgh Lo'kklh lsok esa izos'k dh vf/kdre lhek] HkrhZ ds le; LokL:;
ijh{k.k] lsok ls R;kx i= ds fy;s e/;izns'k 'kklu ds fu;e ykxw gksaxs A"
20. It is seen that for purposes of eligibility, disqualification for appointment
etc. the rules applicable to Govt. employees were made applicable to persons
governed by Rules of 1998. Thus, by way of incorporation, the Rules of 1961 are
also made applicable to the persons governed by Rules of 1998. Consequently, it
is to be held that at the time of promotion of respondent no.4, she was governed
by Rules of 1961.
21. The counsel for respondent no.4 has placed heavy reliance on the
coordinate bench judgments of this Court rendered in the case of Dr. Sachin
Chittawar and also in the case of Dr. Om Prakash Raichandani (supra) to say
that the Rules of 1961 are not attracted in the case in hand. However, if the facts
of these cases are seen, the judgments have been rendered interpreting Rules of
2018 wherein there is no provision available akin to Rule 2 of Rules of 1998.
Thus, the judgment rendered by this Court in aforesaid two cases is
distinguishable on facts and the respondent no.4 do not get any help form these
judgments.
22. Thus, issue no.ii is answered by holding that at the time of promotion of
respondent no.4 on the post of Associate Professor and Professor, Rules of 1998
were in force and, therefore, by virtue of Rule 2 thereof, the provisions of Rule
6(6) of Rules of 1961 were also applicable.
ISSUE III:
23. The respondent no.4 was promoted to the post of Associate Professor and
Professor on 04.07.2005 and 15.10.2015 respectively. The third child to
respondent no.4 was born on 01.01.2006 i.e. after her promotion on the post of
Associate Professor. Thus, her promotion as Associate Professor is even otherwise
not affected because of birth of third child.
24. The promotion of respondent no.4 on the post of Professor is after the birth
of third child and would be affected by Rule 6(6) of Rules of 1961. However, the
question would be as to whether it is liable to be quashed on this ground at this
stage when more than 10 years have expired after promotion as Professor?
25. Somewhat similar issue came up for consideration before Division Bench
of this Court in the case of Manoj Kumar vs. State of M.P. reported in 2018(4)
MP LJ 78. After upholding the objection with regard to disqualification suffered
under Rule 6(6) of Rules of 1961, the Division Bench quashed the termination
order of petitioners therein, holding as under:
"18. Still further, the petitioners have not disputed such clause prior
to the selection or even in the present writ petition. Having
participated in the selection process wherein 1961 Rules were
adopted in respect of selection process for the post of District Judge
(Entry Leyel), the petitioners are estopped to challenge adoption of
such clause for the purposes of eligibility and disqualification.
Having said so, we find that if such was the eligibility condition, it
was mandatory for the High Court to seek information about the
number of children in the application form itself. The eligibility of
the candidate has to be satisfied before a candidate is permitted to
appear in the examination and to undergo the selection process.
Since the High Court has not sought the information in terms of
1961 Rules in the prescribed application form, it is not open to the
High Court to declare a candidate ineligible for the reason that the
candidate has more than two children as such information was not
elucidated in the application form.
19. The Supreme Court in Shri Krishnan's case (supra) has held
that the Head of the Department nor the University Authorities took
care to scrutinize the admission form then the question of the
candidate committing fraud did not arise. Keeping in view the said
principle, in the absence of any information sought from the
candidate in respect of eligibility of having more than two children
as on 26th January, 2001, it is the High Court which has failed to
elucidate relevant information to determine eligibility of a
candidate and disqualify the candidate from facing the selection
process itself. Once the petitioners have been subjected to selection
and subsequent appointment then to cancel the candidature is
unreasonable action on the part of the High Court."
26. In the present case also, the respondent no.3 failed to call for information
about satisfaction of Rule 6(6) of Rules of 1961 from the respondent no.4. She
was allowed to undergo selection process without seeking information about her
children and was promoted. She has been working on the post of Professor
eversince for last 10 years. As has been held by Division Bench in the case of
Manoj Kumar (supra), in this case also respondent no.3 failed to elucidate
relevant information to determine eligibility of respondent no.4 and to disqualify
her from facing selection process. Thus, after lapse of 10 years, it would be
unreasonable to quash promotion of respondent no.4 on the post of Professor or to
the post of Associate Professor.
27. It is also seen that the petitioner is admittedly much junior to respondent
no.4 right from the date of his inception in service as Assistant Professor. The
petitioner's right to get promoted on the post of Associate Professor and Professor
is independent and is not hampered because of promotion of respondent no.4 on
the said post. Therefore, even if promotion of respondent no.4 on the post of
Associate Professor and/or Professor is set aside, he is not going to be benefitted
in any manner. Merely because the respondent no.4 has been made Head of
Department by virtue of her seniority as Professor, it cannot be said that the
petitioner's right is prejudicially effected. Therefore, the petitioner cannot have
any locus to challenge promotion of respondent no.4.
28. In view of the discussion made above, the promotion of respondent no.4 on
the post of Associate Professor and Professor is not liable to be quashed. The
petitioner is thus not entitled to any relief as claimed by him in the present writ
petition. The petition is accordingly dismissed.
AS REGARDS W.P. No.13817/2024
29. During the pendency of aforesaid writ petition filed by Dr. Pankaj Yadav,
the respondent no.2 sought guidance from Commissioner, Gwalior Division,
Gwalior vide memo, dated 15.05.2023. It appears that based upon instructions, the
respondent no.2 passed the order, dated 08.05.2024, (Annexure P/1) thereby
taking charge of Head of Radio Diagnosis Department from petitioner of this case
and to be given to Dr. Pankaj Yadav. This order is challenged in this writ petition.
30. The order impugned in this petition refers to order passed in W.P.
No.3502/2023 and W.P. No.13803/2023. It also refers to Rule 6(6) of Rules of
1961. So far as W.P. No.3502/2023 is concerned, it was filed by Dr. Pankaj Yadav
when no action was being taken on his representation. The writ petition was
disposed off vide order, dated 10/02/2023 directing respondent no.2 to pass
suitable order on his representation. Further, W.P. No.13803 of 2023 was pending
when the impugned order was passed. Thus, in effect, the impugned order has
been passed only because of the disqualification suffered by petitioner of this
petition by virtue of Rule 6(6) of Rules of 1961.
31. The charge of Head of the Department is given to a senior most Professor.
Admittedly, the petitioner- Dr. Akshara Gupta is the senior most Professor of
Radio Diagnosis Department and, therefore, she was made HOD. By impugned
order, the charge of HOD has been taken from her even though her promotion to
the post of Professor has not been disturbed and the same is still intact. Therefore,
she being senior most Professor, the charge of HOD could not have been taken
from her.
32. Even otherwise, in view of above discussion made by this Court in relation
to W.P. No.13803 of 2023, the promotion of petitioner on the post of Professor is
not liable to be interfered with. Therefore, by virtue of her seniority as Professor,
she is entitled to retain the charge of Head of Radio Diagnosis Department. The
impugned order, dated 08.05.2024, (Annexure P/1) passed by respondent no.2,
Dean, Gajra Raje Medical College, Gwalior, is, therefore, quashed. The said
respondent is directed to restore the charge of HOD to petitioner Dr. Akshara
Gupta.
33. The petition is allowed and disposed off accordingly.
(ASHISH SHROTI)
JUDGE
jps/-
