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Madhya Pradesh High Court · body

2009 DIGILAW 1350 (MP)

S. P. Tiwari v. Registrar, Co-operative Societies

2009-12-04

P.K.JAISWAL, R.S.GARG

body2009
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 : @ Hindi @ 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. @ Hindi @ 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. @ Hindi @ 5. The amended provision of clause-7 of Rule 9 reads as under Clause-7 @ Hindi @ 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. @ Hindi @ 5. The amended provision of clause-7 of Rule 9 reads as under Clause-7 @ Hindi @ 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 ifferentia and the intelligible differentia must have a rational nexus with le object sought to be achieved by the impugned statute. 8. Shri Rahul Jain, learned Dy. He lastly submitted that although Article 14 of the Constitution permits classification of a person, such classification must be based on an intelligible ifferentia and the intelligible differentia must have a rational nexus with le object sought to be achieved by the impugned statute. 8. Shri Rahul Jain, learned Dy. Advocate General for respondent No. 1, on the other hand, submitted that respondent No. 1 has power under Section 55 (1) of the Act of 1960 to amend the rules relating to conditions of service of the Federation employees and such powers are subject to only constitutional limitation and merely because chances of the petitioner for being promoted to the post of Executive Engineer (Civil) are taken away by impugned amendment of the Sewa Niyam, the impugned amendment cannot be held to be illegal. He further submitted that from the sanctioned set up, there is only one post of Chief Engineer, two posts of Executive Engineer (Civil). Four posts are sanctioned for the post of Assistant Engineer (Civil) and eight posts are sanctioned for Junior (Sub) Engineer (Civil). In the Marketing Federation the set up of Engineering Wing is very small and the Bachelor Degree in Civil Engineering has been prescribed as qualification for promotion to the post of Executive Engineer looking to the fact that Chief Engineer is to be promoted having educational qualifications Bachelor degree in Civil Engineering. In the small cadre of Engineering there is possibility that there may be a situation that when the Executive Engineer may occupy two sanctioned posts of Executive Engineer having only diploma, in that situation the post of Chief Engineer will remain vacant. Thus, the Executive Engineer having diploma was not eligible right from the initiation for promotion to the post of C.E. (Civil). Looking to the small sanctioned set up of the Engineering Wing in the Federation and the fact that educational qualification for Chief Engineer (Civil) is degree in Civil Engineering, therefore, the amendment has been made and now for promotion to the post of Executive Engineer (Civil) has also been prescribed B.E. degree in Civil Engineering. The proposal for amendment was initiated by the Marketing Federation and after due consideration the amendment has been made by the Registrar in exercise of power under Section 55 of the Act of 1960. The proposal for amendment was initiated by the Marketing Federation and after due consideration the amendment has been made by the Registrar in exercise of power under Section 55 of the Act of 1960. Thus, there is reasonable nexus for providing the educational qualifications of Bachelor degree in Civil for promotion to the post of Executive Engineer (Civil) from the post of Assistant Engineer (Civil). 9. Mr. Mariish Tiwari, learned counsel for respondents 2 and 3 relied on the averments made in para-8 of the return and contended that the competent authority has complete unfettered power to change the eligibility qualification for promotion to a higher post, the diploma holders are not equal to degree holders, the amendment is not arbitrary. 10. Shri Rajneesh Gupta, learned counsel for respondent No. 4, submitted that new clause-7 has been added in service Rule-9 which provides that in case eligible candidates fulfilling the eligibility criteria are not available then in that caserne DPC with the prior approval of the Registrar for relaxation of experience, can fill up the vacant post by way of direct recruitment of Class-I post. It is also submitted that additional post was created only on 27.8.2008 and, according to amended appendix, respondent No. 4 possesses the B.E. (Civil) degree and having experience of three years on the post of Assistant Engineer, therefore, he has rightly been considered and promoted on the post of Executive Engineer. It is also submitted that the amendment is neither discriminatory nor any violative of Articles 14 and 16 of the Constitution of India. 11. We have heard the arguments of the learned counsel for the parties and perused the record of the case. 12. In the hierarchy of engineering cadre, the initial post is of Junior Engineer (Civil). The post is meant for 100% direct recruitment and the qualification prescribed was "Diploma in Civil Engineering". The next higher post is that of Assistant Engineer (Civil). The rule providing filling up of 25% vacancies on the post of Assistant Engineer (Civil) by those who acquired a Graduate Decree in engineering by means of direct recruitment. The remaining 75% vacancies were to be filled up on the promotion basis from the pool of juniors engineers who were having five years' experience of working as Junior Engineer. The rule providing filling up of 25% vacancies on the post of Assistant Engineer (Civil) by those who acquired a Graduate Decree in engineering by means of direct recruitment. The remaining 75% vacancies were to be filled up on the promotion basis from the pool of juniors engineers who were having five years' experience of working as Junior Engineer. Further promotion in the engineering branch is from the post of Assistant Engineer (Civil) to the post of Executive Engineer (Civil). 13. From a perusal of Sewa Niyam, it is clear that recruitment to the cadre of Executive Engineer and above was to be made only by promotion. But as regards to promotion to the posts of Executive Engineer, and to those only, it was provided that only those Assistant Engineers would be eligible for promotion who possessed Diploma/Degree in Civil Engineering and who had put at least five years' experience of service on the post of Assistant Engineer. As per the above rules, Assistant Engineers were entitled to be promoted to the higher cadre on the basis of their merit and record and no distinction was made between degree holders and diploma holders for the purpose of such promotion. The discrimination is alleged to have been made by the impugned amendment in the appendix between degree holders and diploma holders. After amendment only those Assistant Engineers would be entitled for promotion who possessed the Bachelor's Degree in Civil Engineering and who have put up in at least three years' working experience as Assistant Engineers. 14. It was contended by the learned counsel for the petitioners that after they have been promoted to the post of Assistant Engineers along with Degree holders, after fulfilling the requisite qualifications prescribed for that post, they have become equal as they and the degree holders perform same duties and functions and therefore the posts are interchangeable and they draw same pay-scale and constitute common seniority at the level of Assistant Engineers. He further urged that after the diploma holders and degree holders are fixed in one class and are found eligible for promotion to the higher post, it is discriminatory to place a disadvantageous eligibility requirement on the petitioners. As they have had to have five years experience on the post of Assistant Engineers, they become eligible for promotion to the post of Assistant Engineers. As they have had to have five years experience on the post of Assistant Engineers, they become eligible for promotion to the post of Assistant Engineers. By changing the eligibility criteria for promotion on the post of Executive Engineer they can never be promoted on the said post which amounts to discrimination between them and the degree holders for further promotion. Once the authorities considered the non-graduates and graduates fit for promotion then they cannot be treated as separate class and there cannot be any further classification amongst them so as to give preferential treatment to the graduates in the matter of promotion and permanently debar the diploma holders for promotion on the post of Executive Engineer. 15. The classification of Assistant Engineers into degree holders and diploma holders, was made with a view to achieve administrative efficiency in the Engineering Services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. 16. In the case of The State of Jammu and Kashmir vs. Triloki Nath Khosa and others, (1974) 1 SCC 19 , the Constitutional Bench of the Apex Court has upheld the provisions of the Jammu and Kashmir Engineering (Gazette) Service Recruitment Rules, 1970, whereby eligibility for promotion to the post of Executive Engineers was confirmed to Assistant Engineers who possessed a degree in Engineering and Assistant Engineers, who were diploma holders, were ineligible for such promotion. The said provision was upheld on the ground that it was made with a view to achieving administrative efficiency in the engineering service. On behalf of the diploma holders Assistant Engineers it was urged that degree-holders (direct recruits) and diploma holders (promotees), having been appointed as Assistant Engineers on equal terms they constitute an integrated class and for purposes of promotion they cannot be classified on the basis of educational qualifications. On behalf of the diploma holders Assistant Engineers it was urged that degree-holders (direct recruits) and diploma holders (promotees), having been appointed as Assistant Engineers on equal terms they constitute an integrated class and for purposes of promotion they cannot be classified on the basis of educational qualifications. Rejecting the said contention it was held that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. 17. The Apex Court in the case of T.R. Kothandaraman and others vs. Tamil Nadu Water Supply & Drainage B.D. & others; (1994) 6 SCC 282 , has upheld the proviso to Regulation 19 (2) of the Tamil Nadu Water Supply and Drainage Board Service Regulations, 1972 which permitted diploma holder Assistant Engineers to become eligible for the promotion to the post of Executive Engineer only if they were to have exceptional merit in work and otherwise the diploma holder was not eligible for such promotion. The said provision was upheld was valid in view of the law laid down in Triloki Nath Khosa (supra). 18. In the case of T.R. Kothandaraman and others vs. Tamil Nadu Water Supply & Drainage BD and others (supra), it has been observed: "15. At the same time we shall have to remember that diploma-holders are drawn mainly from poorer families and they are incapable of making the degree grade. The "chill penury" should not, therefore, be allowed to "repress their noble rage". Social justice would not permit us to do so. It may be that social justice is not a fundamental right and what has been stated by Ramaswamy, JL, (a minority Judge) in C.E.S.C. Ltd vs. Subhash Chandra Bose about social justice being a part of fundamental right may not be accepted by all, there is title to doubt that social justice being a requirement of directive principles of our Constitution, the same has to be our desideratum in any case." 19. We now come to the decision in P. Murugesan vs. State of Tamil Nadu, 1993 (2) SCC 340 , related to promotion to the post of Assistant Executive Engineer. Diploma holders (Junior Engineers) as well as degree holders (Assistant Engineers) were eligible for such promotion. We now come to the decision in P. Murugesan vs. State of Tamil Nadu, 1993 (2) SCC 340 , related to promotion to the post of Assistant Executive Engineer. Diploma holders (Junior Engineers) as well as degree holders (Assistant Engineers) were eligible for such promotion. For diploma-holders to become eligible for promotion ten years service was required and-for degree-holders the period of service required as five years. The promotion was to be made in the ratio 3:1 for degree-holders and diploma holders. The said provisions were upheld. It was contended that since a longer qualifying period of service was prescribed for diploma holders, they had been equated with degree holders and, therefore, no distinction could be made between their by prescribing the quota amongst the two cadres for the purpose of promotion. Rejecting the said contention it was observed that if distinction in the matter of longer qualifying period of service is not discrimination it was difficult to see how and why another distinction in the matter of quota rule was discriminatory. It was stated - "Suppose if these two requirements (i.e. longer qualifying service and quota rule) had been introduced at the same time, there could have been no room for the present argument. The rule would have been good. How does it become bad, if they are introduced at different times. Both relate to their eligibility and chances of promotion." 20. On the facts of the case, classification on the basis of the educational qualifications was made with a view to achieve administrative efficiency cannot be said to rest of any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. Graduates and diploma holders furnished a reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision. 21. Under the amended appendix to the Sewa Niyasm, a degree qualification is prescribed as a condition for promotion to the post of an Executive Engineer (Civil) from the cadre of Assistant Engineers. Classification, for the purpose of promotion, on the basis of educational qualifications is an intelligible differentia and was, therefore, not violative of Constitutional provisions of equality. We have, therefore, no doubt that classification between them is based on intelligible differentia. Classification, for the purpose of promotion, on the basis of educational qualifications is an intelligible differentia and was, therefore, not violative of Constitutional provisions of equality. We have, therefore, no doubt that classification between them is based on intelligible differentia. The object sought to be achieved by the Seva Niyam, as amended, is to find out suitable persons for filling up the post of Executive Engineer (Civil) in the Federation. 22. In the case in hand, prior to amendment, for promotion to the post of Executive Engineer (Civil) the diploma holders and the degree holders were at par. The educational qualification was to be considered for the purpose of eligibility alone. In the department both, the degree holders and diploma holders, had been performing the same type of functions. After amendment the promotion of diploma holders were restricted up to the post of Assistant Engineers only. According to the case of Triloki Nath Khosa (supra), diploma holders being less educational qualified than degree holders can be made non-eligible for promotion to higher post. 23. Triloki Nath Khosa's (supra) case is more directly in point. There, Graduate Engineers and Diploma-holders were in a common-cadre of Assistant Engineers. But for purposes of further promotion to the higher cadre of Executive Engineers only the Graduate were held eligible. Diploma-holders were barred for promotion. The Apex Court said : "We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of assistant Engineers, they could, for purpose of promotion of the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Arts. 14 and 16 of the Constitution and must be upheld." 24. We have considered the matter and we find that the moment the diploma holders and degree holders are considered to constitute one class for purposes of promotion there cannot be any different on between the two vis-a-vis qualification for promotion. It could be that for reasons of efficiency and administration the authorities may lay down that diploma holders are not at all eligible for promotion to the higher post and such a bar can be upheld in view of the ratio laid down in the case of Triloki Nath Khosa (supra). 25. It could be that for reasons of efficiency and administration the authorities may lay down that diploma holders are not at all eligible for promotion to the higher post and such a bar can be upheld in view of the ratio laid down in the case of Triloki Nath Khosa (supra). 25. As per clause-5 of Rule-9 of Sewa Niyam, the promotion will be made on the basis of seniority-cum-merit and clause-6 of Rule 9 lays down that experience of five years to be counted for higher pay scale on class-I post. There is no amendment in clause 5 and 6 of Rule 9 of Sewa Niyam. Newly amended clause-7 of Rule 9 of Sewa Niyam provides that for promotion in class-I post, if, eligible candidates fulfilling the eligibility criteria were not available then in that case the DPC with the prior approval of the Registrar can relax the experience clause and fill up the vacant post by direct recruitment. This newly added clause-7 of Rule 9 of the Sewa Niyam would only be applicable where the eligible candidates for the purpose of promotion are not available and in that situation respondents 2 and 3 after obtaining prior approval from the respondent No.1, relax the eligibility criteria and eligible person can be directly recruited to the post of Executive Engineer. It is not disputed by learned counsel for the parties that there is no amendment in clause 5 and 6 of Rule 9 and while promoting respondent No. 4 on the post of Executive Engineer (Civil), no prior approval of respondent No. 1-Registrar was obtained for relaxing the eligibility criteria. The respondent No. 4 was appointed as Assistant Engineer on 31.5.2006 and when his case for promotion was considered and he was promoted to the post of Executive Engineer (Civil) vide order dated 25.2.2009, he was not having five years working experience to the post of Assistant Engineer. The promotion of respondent No. 4 on the post of Executive Engineer (Civil) is in violation to the provisions of Rule-9 of Sewa Niyam. 26. The amended appendix of Sewa Niyam would apply only when suitable Assistant Engineers (Civil) are not available for promotion to the post of Executive Engineer (Civil) and suitable Assistant Engineer would not eligible for promotion to the post of Executive Engineer then only degree holders can be directly recruited on the post of Executive Engineer. 26. The amended appendix of Sewa Niyam would apply only when suitable Assistant Engineers (Civil) are not available for promotion to the post of Executive Engineer (Civil) and suitable Assistant Engineer would not eligible for promotion to the post of Executive Engineer then only degree holders can be directly recruited on the post of Executive Engineer. Here in the present case respondents 2 and 3 without complying with clause-7 of Rule 9 of Sewa Niyam passed an order, promoting respondent No. 4 on the post of Executive Engineer (Civil). Judging from this point of view, we are of the view that respondents 2 and 3, contrary to the Sewa Niyam, promoted respondent No. 4 on the post of Executive Engineer. The said promotion order of respondent No. 4 is dehors the rules and, therefore, we have no hesitation in quashing the promotion order dated 25.2.2009 by which respondent No. 4 was promoted on the post of Executive Engineer (Civil) and direct the respondents 2 and 3 to consider the case of eligible Assistant Engineers for promotion as per Sewa Niyam framed under Section 55 (1) of the Act, bearing in mind that Sewa Niyam will prevail over the schedule and we also direct them to hold a review DPC and consider it within four months from the date of receipt of the order and an appropriate order be passed in accordance with law. 27. For the above mentioned reasons, the impugned amendment in the Appendix to Sewa Niyam dated 7.8.2008 whereby eligibility criteria for promotion to the post of Executive Engineer (Civil) was changed from diploma-holder to degree holder is based on intelligible differentia but the period of reference could not be reduced to 3 years unless amendment was made in condition No. 9 (2) of service conditions. 28. In the result, the petition is partly allowed with the aforesaid, but without any order as to costs.