The reduction of chances of promotion does not constitute a variation in the condition of service, and the State Government has the authority to frame rules under the Act of 1973.

ORDER PURUSHAINDRA KUMAR KAURAV, J. : – The petitioners in the instant writ petition are challenging the constitutional validity of the Rules, namely, The Madhya Pradesh Technical Education Engineering College (Teaching Cadre) Service (Recruitment) Rules, 2004 (for short the “Rules of 2004”) as ultra vires to the Constitution. Petitioners have also prayed for declaring the advertisement dated 28-1-2005 (Annexure P-7) and 11-2-2005 (Annexure P-8) as void and illegal.

2. The facts of the case are that petitioners are holding the post of Reader and Professor in Government Engineering Colleges. According to them, some of the petitioners are having qualification such as M.E, M.Tech, and Ph.D etc. They all have been appointed between 1990 to 1993 on their respective posts.

3. The appointments of the petitioners have been made through Public Service Commission (for short “PSC”). Their appointments were made in accordance with the Rules known as Madhya Pradesh Technical Education (Gazetted Service) Recruitment Rules, 1990 (for short the “Rules of 1990”). The post of Principal under the Rules of 1990 is 100% promotional and the eligible Professors are entitled to be promoted to the post of Principal. On 29th May, 1997, the State Government has taken a decision to declare all Engineering Colleges as autonomous Society to be registered under the Society Registration Act, 1973 (for short the “Act of 1973”). The said order was published in the Official Gazette on 6th June, 1997 (Annexure P-3). It is stated that the State Government in exercise of powers conferred under section 43 of the Act of 1973 has made the Rules of 2004 relating to recruitment and other conditions which are under challenge in the instant petition.

4. Learned counsel appearing for the petitioners submits that the Rules of 2004 are not sustainable as the same are in contravention to the Rules of 1990 which are already governing the service conditions of the petitioners. The appointment of Teachers as per Rules of 1990 were to be made by the Government through PSC, however, in the Rules of 2004, the Societies are empowered to recruit the Teachers. The Rules of 2004 would create anomaly, inasmuch as, there would be two cadres of Teachers. One would work under the State Government and the other would be working under the Societies. The Teachers working under the Societies would not be entitled for the benefit of Pension and other dues. As per Rules of 1990, the channel of promotion to the post of Principal is available to the Professors, whereas, such benefit is not available in the Rules of 2004. The cadre of Teachers working against various posts as per the Rules of 1990 is declared as dying cadre. The Teachers working as per 1990 Rules shall be treated to be on deputation with the Society with no deputation allowance. The reservation Policy of the State Government has not been made applicable in the Rules of 2004. Each College is now treated to be an independent Society and the post of Head of the Department (H.O.D) and Principal have become singular posts and, therefore, the reservation would not be applicable. Under the Rules of 1990, the post of Principal and Professors is transferable from one college to another college. However, as per the Rules of 2004, the transfer of a Teacher would not be permissible from one Society to another Society. Since the Rules of 1990 are framed under the Proviso of Article 309 of the Constitution, therefore, the Rules of 2004 which are framed in exercise of powers vested under the provisions of the Act of 1973 would not override the Constitutional Rules. The petitioners have also challenged the advertisement dated 28-1-2005 and 11-2-2005 on the ground that if such appointments are made, they would not be treated as Government employees and their services would be governed by the Rules of 2004. It is, therefore, submitted that the Rules of 2004 are arbitrary, unjust and unreasonable and in violation of Article 14 and 16 of the Constitu