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2009 Supreme(MP) 1345
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
R.S.Garg, P.K.Jaiswal, JJ.
S.P.Tiwari & Anr. - Appellant
Versus
Registrar, Co-operative Societies & Ors. - Respondent
W.P. No. 10010 of 2008 (S)
Decided On : 04-12-2009
For Petitioners:Jitendra Tiwari; For Respondent No. 1:Rahul Jain, Dy. Adv. Gen.; For Respondent Nos. 2 & 3:Manish Tiwari; For Respondent No. 4: Rajneesh Gupta.
The amendment to the service rules was based on an intelligible differentia and was not violative of Constitutional provisions of equality.
Headnote:
AMENDMENT - VALIDITY - M.P. Co-operative Marketing Federation - M.P. Co-operative Societies Act, 1960 - Section 55 - Rule 9 of M.P. Rajya Sahakari Vipnan Sangh Sewa Niyam - [Section 55, Rule 9]
Fact of the Case:
The petitioners challenged the validity of an amendment to the service rules of the M.P. Co-operative Marketing Federation, which changed the eligibility criteria for promotion to the post of Executive Engineer from diploma to degree holder with three years' experience. They argued that the amendment was discriminatory and violated their right to equality under Articles 14 and 16 of the Constitution.
Finding of the Court:
The court found that the amendment was based on an intelligible differentia and was not violative of Constitutional provisions of equality. However, the court also found that the promotion of respondent No. 4 to the post of Executive Engineer was in violation of the service rules, and therefore quashed the promotion order.
Issues: Validity of the amendment to the service rules and the promotion of respondent No. 4 to the post of Executive Engineer.
Ratio Decidendi: The amendment changing the eligibility criteria for promotion was based on an intelligible differentia and was not violative of Constitutional provisions of equality. However, the promotion of respondent No. 4 to the post of Executive Engineer was in violation of the service rules.
Final Decision: The petition was partly allowed, quashing the promotion order of respondent No. 4 and directing a review DPC to consider the case of eligible Assistant Engineers for promotion in accordance with the service rules.
JUDGMENT :
P.K. Jasiwal, J.In this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the validity of amendment dated 7.8.2008 of the Registrar, Cooperative Societies Madhya Pradesh, by which M.P. Rajya Sahakari Vipnan Sangh Sewa Niyam was amended and have sought a direction not to implement the new set up of rules for the purpose of granting promotion to the post of Executive Engineer from the post of Assistant Engineer and promote the petitioners to the post of Executive Engineer.
2. The facts briefly are that the M.P. Co-operative Marketing Federation is a registered society, registered under the M.P. Co-operative Societies Act, 1960 (for short 'the Act of 1960'). In exercise of the powers conferred under Section 55, the Registrar has framed rules regarding he service terms and conditions of the M.P. State Cooperative Marketing Federation known as "M.P. Rajya Sahkari Vipnan Sangh Karmchari Sewa Niyam" (for short 'Sewa Niyam')- Sewa Niyam, inter-alia, provided that promotions to the post of Executive Engineer (Civil) in the M.P. State Cooperative Marketing Federation would be made from amongst Assistant Engineers (Civil). The post of Executive Engineer (Civil) is to be filled up by hundred percent (100%) promotion from the post of Assistant Engineer (Civil) and the qualification was five years' experience on the post of Assistant Engineer (Civil). Rule 9 of the Sewa Niyam deals with promotion reads as under :
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3. As per serial No. 33, Appendix 'A' of the Sewa Niyam, the qualification that an Assistant Engineer had to possess for being promoted to the post of Executive Engineer (Civil) was five years' experience of working as Assistant Engineer.
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4. By amendment in the Appendix to the Sewa Niyam dated 7.8.2008, eligibility criteria for promotion to the post of Executive Engineer (Civil) was changed from Diploma to Degree holder (B.E. Civil) with three years' professional experience as Assistant Engineer instead of five years experience.
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5. The amended provision of clause-7 of Rule 9 reads as under Clause-7
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6. Petitioners 1 and 2, who are diploma holders in Engineering were appointed as Sub Engineer (Civil) on 15.4.1981 and 27.8.1980 respectively. 3n 25.5.2000 they were promoted as Assistant Engineer (Civil). Respondent No. 4 was appointed as Assistant Engineer on 31.5.2006. The petitioners are vorking on the post of Assistant Engineer (Civil) for a period of more than ive years. Prior to amendment the required eligibility for promotion to the post of Executive Engineer (Civil) was five years' working experience to the post of Assistant Engineer (Civil). After the amendment the required eligibility for promotion to the post of Executive Engineer (Civil) is three rears' working experience plus B.E. (civil) degree instead of diploma.
7. It is submitted by learned counsel for the petitioner that the services if the petitioners and respondent No. 4 are governed by the Service Rules ramed by the Federation and both the petitioners are entitled to bi promoted o the post of Executive Engineer (Civil). It is also submitted that in previous occasion the case of one Shri S.K. Pancheshwar was considered on the basis f five years' experience and he was promoted to the post of Executive Engineer (Civil) vide order dated 19.12.2005. As per the gradation list as on 1.3.2007, petitioners 1 and 2 are at serial No. 1 and 2 and they are entitled or promotion to the post of Executive Engineer (Civil). He urged that the amendment is discriminatory and violative of right of equality under Articles 4 and 16 of the Constitution. The contention of learned counsel for the petitioners is that the impugned amendment to the appendix takes away the further chances of promotion of the petitioners as Executive Engineer (Civil). He lastly submitted that although Article 14 of the Constitution permits classification of a person, such classification must be based on an intelligible ifferent
