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Madhya Pradesh High Court · body

2010 DIGILAW 246 (MP)

SUBHASH SONA v. STATE OF M. P.

2010-03-03

R.K.GUPTA, R.S.GARG

body2010
Judgment R.K.Gupta, J. ( 1. ) As the question of fact and law involved in this batch of three writ petitions is common, they are being disposed of by this singular judgment. ( 2. ) In these writ petitions, the petitioners, Assistant Regional Transport Officers in the Transport Department of the State of Madhya Pradesh, have prayed for issue of a Writ of Mandamus declaring Rule 7 and corresponding Column 5 under Schedule-II of the M.P. Transport (Gazetted) Service Recruitment Rules, 1972 as ultra vires the Constitution of India and the Motor Vehicles Act, 1988 and consequentially to convene a Departmental Promotion Committee for their promotions to the posts of ATC/RTO/Additional RTOs. The petitioners have further prayed for a direction restraining the respondents from filling up the posts of the Regional Transport Officers by deputation/transfer from the members of the State Civil Services and any other cadre except that of Assistant Regional Transport Officers. ( 3. ) For the sake of convenience, the facts of the case are referred to from W.P. No.3428/2003. The petitioners initially entered into the services of the Transport Department as Transport Sub-Inspectors. Their services are governed by the M.P. Transport (Gazetted) Service Recruitment Rules, 1972. The channel of promotion from the post of Transport Sub-Inspectors is to the posts of Transport Inspector and then to the post of Assistant Regional Transport Officer. By virtue of the service rendered in the department the petitioners got their promotion as Assistant Regional Transport Officers. Prior to publication of the Gazette Notification dated 20.9.1999, Annexure P-3, the post of Assistant Regional Transport Officer was not a Gazetted Post. As per the channel of promotion, the petitioners are now to be promoted as Assistant Transport Commissioner (ATC), Regional Transport Officer (RTO) and Additional Regional Transport Officer, all these posts are treated as equivalent and carry a pay scale of Rs.6,500-10,500. ( 4. ) M.P. Transport (Gazetted) Service Recruitment Rules, 1972 (hereinafter referred to in short as "the 1972 Rules") were framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India and they came into effect on publication in the Madhya Pradesh Gazette on 18th November, 1972. ( 5. ) Rule 4 provides for classification and scale of pay etc. and the number of posts included in the service as per the provision contained in the Schedule-I appended thereto. ( 5. ) Rule 4 provides for classification and scale of pay etc. and the number of posts included in the service as per the provision contained in the Schedule-I appended thereto. Rule 5 relates to the method of recruitment wherein Sub-Rule (a) provides two methods of recruitment to the service, namely, (1) by promotion of departmental personnel and (2) by transfer/deputation of persons, who are holding such posts in substantive capacity in such service as may be specified in this behalf. It is specified in Sub-Rule (b) that the number of persons recruited under clause 1 and 2 of Sub-Rule (a) shall not at any time exceed the percentage shown in columns 3 and 5 of Schedule-II. Appointment by Transfer/Deputation has been further specified in Rule 7. As per Sub-Rule (1) of Rule 7, appointment to the post of Regional Transport Officers mentioned in Column 5 of Schedule-II shall be made by taking persons on transfer from the M.P. State Civil Service Class-II and appointment to the post of Assistant Transport Commissioner (Tax) shall be made by taking a person on transfer either from M.P. State Civil Service Class-II or M.P. State Accounts Service Class-II or on deputation from Accountant General, Madhya Pradesh. Rule 6 provides that the appointment to the service of the Transport Department after commencement of the 1972 Rules shall be made by the Government only after selection by one of the methods of recruitment specified in Rule 5. ( 6. ) Initially there were only seven posts of Regional Transport Officers, only two senior officers of the department were working on the said posts, while the remaining five were filled by deputation. Subsequently, by way of amendment published in the Gazette Notification on 26th August, 1975, 1972 Rules were amended and one post was added by amending the Rules and the posts of RTOs were increased to "8" and accordingly the promotees quota was also enhanced to "3" in place of "2", however, five posts to be filled by deputation/transfer remained the same. A Departmental Promotion Committee met on 29.11.1989 wherein the case of some of the petitioners was considered and they were found fit to be promoted as Regional Transport Officer but no promotion was effected. A Departmental Promotion Committee met on 29.11.1989 wherein the case of some of the petitioners was considered and they were found fit to be promoted as Regional Transport Officer but no promotion was effected. According to the petitioners, though certain attempts were made to fill up the said posts at the behest of Deputy Collectors but because of the confrontation from the representative Union of the officers and the employees of the Department i.e. the M.P. Transport (Govt.) Department Officers and Employees Union, for a considerable period the posts of Regional Transport Officers were not filled by the persons from Revenue Department, but vide order dated 19.3.2001, as contained in Annexure P-2, the private respondents were posted as Regional Transport Officers in terms of Rule 7(1) much to the detriment of the petitioners and alike persons who are serving as the Assistant Regional Transport Officers. However, before that, an attempt was made by certain colleagues of the petitioners by filing original application No.908/2001 before State Administrative Tribunal with a prayer to restrain the respondents from filling up vacancies by transfer of Deputy Collectors on deputation. The Tribunal vide order dated 27.3.2001, Annexure P-6, directed to maintain status-quo with regard to posting of Additional RTOs. The action of the respondents in placing the services of the private respondents as the Regional Transport Officers vide order dated 19.3.2001 was challenged by certain colleagues of the petitioners as well as the M.P. Transport Department Officers and Employees Union before the M.P. State Administrative Tribunal in Original Application No. 1333/2001. After abolition of the tribunal, the said application has been transferred to this Court for its adjudication and was registered as W.P. No. 17238/2003, which has also been taken up for analogous hearing. ( 7. After abolition of the tribunal, the said application has been transferred to this Court for its adjudication and was registered as W.P. No. 17238/2003, which has also been taken up for analogous hearing. ( 7. ) Understandably, as the department itself was taking shape at the beginning it might have made a provision of five posts to be filled from the M.P. Civil Services Class-II services as provided under Column 5 of Schedule-II of the Rules but the grievance of the petitioners is that by efflux of time when the departmental candidates with technical qualifications are available then persistence with the provision of filling of the post of Regional Transport Officers on deputation/transfer by the officers of the Class-II services of the M.P. Civil Services is the very antitheses of what the 1972 Rules and the provisions of the Motor Vehicle Act, 1988 stand for. It is urged on behalf of the petitioners that the provision of posting of employees of other department on deputation on the post of Regional Transport Officer is violative of Articles 14 and 16 of the Constitution of India inasmuch as it deprives the petitioners and similarly situated officers of the department a right to further promotion as Regional Transport Officer/Additional Regional Transport Officers. ( 8. ) Per-contra, the respondents-State in their return have contended that it is within the powers of the State to provide for mode of appointment which could either be through direct appointment, promotion or by deputation. Refuting the contention of the petitioners it is submitted on behalf of the State that there is no such provision in the 1972 Rules that only a person with specialization or skill can only be appointed as Regional Transport Officer. According to them, even the petitioners also do not possess any extra-ordinary technical qualification and as such there is no violation of any fundamental right of the petitioners by filling the posts on transfer/deputation. We have also been apprised that presently in the cadre of Assistant Commissioner/Regional Transport Officer and Additional Regional Transport Officers the strength is of 30 posts out of which total 25 posts are meant for departmental officers and five posts of R.T.O. are reserved to be filled on deputation. ( 9. We have also been apprised that presently in the cadre of Assistant Commissioner/Regional Transport Officer and Additional Regional Transport Officers the strength is of 30 posts out of which total 25 posts are meant for departmental officers and five posts of R.T.O. are reserved to be filled on deputation. ( 9. ) It would be apt to mention here that this Court at the stage of motion hearing on 1.9.2008 has passed the following order: "Shri Rahul Jain, learned counsel for the State submits that due to some inadvertence or misunderstanding certain statements were made in the earlier affidavits in relation to the departmental candidates but the State after realising its mistake is seeking withdrawal of insinuating pleadings. According to him, the departmental candidates are as efficient and competent as any other. It is submitted by him that the Government is proposing to amend Schedule-I, II and IV appended to the Rules and the draft amendment has already been sent to the Law Department. It is also submitted by the learned counsel for the State that the Department may consider the question of deleting filling of post by deputation. In our opinion, if the State is of the opinion that the departmental candidates are efficient and competent as others then ordinarily there would be no need to fill the post by deputation. From the reply filed by the State it does not appear that why the State Government wants to have a small gully open to it to invade into the rights of the departmental candidates. Even otherwise it is to be seen that the original rules provide that out of seven posts, two would be filled by promotion while the other five would be filled by deputation by the Government of its sweet will. We are also unable to understand that why such ratio should be allowed to continue which goes to the extent 2:5 or 28:72. Let the Government justify its stand as to why it is continuing filling of the post of deputation. The Government should also inform this Court that within what time the State Government would pass necessary orders amending the Rules. Put up in week commencing 22.9.2008." ( 10. Let the Government justify its stand as to why it is continuing filling of the post of deputation. The Government should also inform this Court that within what time the State Government would pass necessary orders amending the Rules. Put up in week commencing 22.9.2008." ( 10. ) After some additional documents were filed on behalf of the State, the case was listed on 24.10.2008 on which date the following order was passed: "Shri Jain submits that on 6.10.2008 the respondents have filed some additional documents. The said documents are not available in the records. Office is hereby directed to place the documents along with the records. The office is hereby informed that the delay on part of the office in placing the documents on record is not in good taste because the Court has to adjourn the cases unnecessarily. Shri Jain, learned counsel for the State submitted that a Notification has been issued by the State Government on 23rd August, 2008 from which it would clearly appear that out of 30 posts, only five posts have been reserved and the said five posts, if are filled by deputation, then as many as 25 posts would be available to be filled by the departmental candidates. Shri Tiwari, learned counsel for the petitioners, on the other hand, submitted that as they have not been supplied with copy of the reply and the documents, they are unable to make their comments. Shri Rahul Jain, learned counsel for the State submits that the Secretary of the department may be asked to remain in attendance to clarify the position that whether the five posts can be filled by deputation or only five posts of Regional Transport Officer out of nine are to be filled deputation. At the request of Shri Jain, it is hereby directed that the concerned Secretary of the department shall remain in attendance on 21.11.2008 to clarify the said position." ( 11. ) The case was listed on 3.3.2009 but nothing was clarified as to why five posts of Regional Transport Officer have been reserved to be filled on deputation and this Court passed the following order: "Though the State Government has filed an additional return but till date they have not informed us that if thirty posts are equal in cadre then why reservation is made only in the post of Regional Transport Officer. Repeatedly, we have been asking the State, its officers and the Transport Commissioner that if all the posts of Regional Transport Officers, Assistant Transport Officers/Transport Officers are equal in cadre then why reservation of five posts in total number of thirty posts is not being made. The respondents are purposely playing game with the Court by avoiding the answers. If on the next date of hearing, appropriate reply is not filed then this Court is likely to issue a direction that all the deputationists be repatriated and all the nine posts of Regional Transport Officers be filled by the competent officers of the department. A complaint is being made by the learned counsel for the petitioners that this Court simply directed that further posts in the cadre of Regional Transport Officers be not filled by deputation but taking undue advantage of the facts and misinterpreting the orders, the respondents have stopped the meeting of the D.P.C. and are not promoting the competent officers to occupy the office of R.T.O. Let learned counsel for the respondents seek instructions in the matter and inform us that assuming five posts are reserved for deputation then why the other four posts are not being filled after conduction of D.P. C. and in case the posts are to be filled through the D.RC. then within what time the D.RC. would be convened. " ( 12. ) On behalf of the petitioners it is argued that excessive reservation made in favour of the deputationists not only affects the promotional avenues of in-service candidates but the excessive reservation also discourages in-service candidates. On this basis it is submitted that the policy as such is violative of Article 14 of the Constitution of India being arbitrary. It is also contended that in-service candidates are being ignored and preference is being given to the deputationists by prescribing higher percentage of reservation for the deputationists. This submission is supported on the basis of the fact that out of total eight posts of Regional Transport Officer, five posts have been given for transfer/deputation and no justification is given by the respondents to prescribe such a higher percentage for the deputationists to the higher posts. ( 13. This submission is supported on the basis of the fact that out of total eight posts of Regional Transport Officer, five posts have been given for transfer/deputation and no justification is given by the respondents to prescribe such a higher percentage for the deputationists to the higher posts. ( 13. ) On behalf of the respondents it is contended that the persons on deputation wherever they are posted as RTOs more revenue is being earned by them and therefore, on the basis of the revenue earned by the persons on deputation, the State is justified in prescribing the higher percentage to fill the vacancy of RTO from deputationists. It is also submitted that while making the recruitment rules the State has the discretion to prescribe the percentage of the posts to fill by in- service candidates and by deputationists and the Rule as such cannot be held to be arbitrary. ( 14. ) The rival submissions made by the parties are considered. In this reference, with profit we may take into account the decision rendered by the Apex Court in Ashutoth Gupta v. State of Rajas than and others, (2002) 4 SCC 34 wherein it is held that mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. When a law is challenged as violative of Article 4, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. The Court has to apply a dual test in examining the validity as such whether the classification is rational and based upon an intelligible differentia which distinguished persons or things grouped together from those left cut of the group and whether the basis of differentiation has any rational nexus of relation with its avowed policy and objects. The relevant para-6 of the said decision is reproduced as under:- "The concept of equality before law does not involve the idea of absolute equality amongst all, which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 enjoins that the people similarly situated should be treated similarly but what amount of dissimilarity would make the people disentitled to be treated equally, is rather a vexed question. A legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must of necessity, have the power of making special laws, to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not "per se" amount to discrimination within the inhibition of the equal protection clause. The State has always the power to make classification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. When a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. When a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and the object of the Act, the court has to apply a dual test in examining the validity, the test being, whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. In order that a law may be struck down under this article, the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will "hot be liable to attack under Article 14. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect. If we examine the impugned provisions of the Emergency Recruitment Rules from the aforesaid standpoint the conclusion is irresistible that the aforesaid set of Rules have been framed for a specific recruitment to the administrative service. The provision of Rule 25 dealing with seniority has been specifically designed to meet all situations under which people from different walks of life could be recruited to Rajasthan Administrative Service under the Emergency Recruitment Rules. The law-making authority must be presumed to have examined pros and cons in making the aforesaid provision for seniority in the cadre which is in pari materia with similar provisions for recruitment to the Indian Administrative Service and, therefore, it is difficult for us to hold that the aforesaid provision is discriminatory in nature." ( 15. ) It may also be seen that a person has only right to be considered for promotion but he has no right to be promoted. Any rule which reduces the chances of promotion cannot be held to be bad. ) It may also be seen that a person has only right to be considered for promotion but he has no right to be promoted. Any rule which reduces the chances of promotion cannot be held to be bad. In this reference, we may profitably refer to a decision rendered by a Division Bench of this Court in S.S. Shrivastava vs. State of Madhya Pradesh and others, 2006 (2) M.P.L.J. 164 and the reliance is placed on paras 13, 14, 15 and 16 of the said decision, which are reproduced as under:- "13. Mr. Sanjay Yadav, learned Government Advocate for the State and Mr. Rajendra Tiwari, learned Senior Counsel for the respondent No.2, on the other hand, submitted that the State Government has powers under the Proviso to Article 309 of the Constitution to amend the Rules relating to conditions of service of State Government servants and such powers are subject to only constitutional limitations and merely because the chances of the petitioner for being promoted to the post of Engineer-in-Chief of the Public Health Engineering Department are taken away by the impugned amendment of the Rules of 1980 under the said Proviso to Article 309 of the Constitution of India, the impugned rule cannot be held to be illegal. 14. We find full force in the aforesaid submission of Mr. Yadav and Mr. Tiwari, learned counsel for the respondents, that the power of the Governor under the Proviso to Art. 309 of the Constitution to frame rules is subject to only the Constitutional provisions. As the opening words of Article 309 of the Constitution indicate, the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or any State can be regulated by Acts of the appropriate legislature subject to provisions of the Constitution. The Proviso to Art. 309 of the Constitution states that until such provision is made for regulating the recruitment and conditions of service of person appointed to public service and post in connection with the affairs of the Union or of a State by an Act of the appropriate Legislature, the President or the Governor, as the case may be, may direct making of rules regulating such recruitment and conditions of service of persons appointed to service and post under the Union of the State. Hence, the power to make a rule regulating the recruitment and conditions of service of persons appointed to service and post in connection with affairs of the Union or any State is subject to the provisions of the Constitution. Unless a rule or an amendment to such rule made under Proviso to Article 309 of the Constitution is shown to be violative of the provisions of the Constitution, the Court cannot strike down such a rule or amendment to the Rules as ultra-vires. Hence, the contention of the petitioner that the impugned amendment to the rules made by the notification dated 1st May, 1998 is ultra-vires inasmuch as it takes away the chances of the petitioner for promotion as Engineering-in-Chief in the Public Health Engineering Department is misconceived. 15. In the case of R.S. Deodhar (supra) cited by the petitioner, a contention was raised that the Proviso to section 115(7) of the States Reorganisation Act, 1959 provided that the service conditions of Tehsildars of the Ex-Hyderabad State would not be varied without the prior concurrence of the Central Government. The Supreme Court found that the Rules of July, 1959 did not really vary the service conditions of the petitioner in thai case to his disadvantage and only reduced the chances of his promotion and held that the Rules of 1959 impugned in the said case were not in violation of the Proviso to section 115 of the said Act. In the instant case, as we have seen, the power of the Governor to make Rules regulating recruitment and conditions of service of persons appointed in connection with affairs of any State are wide enough to amend or vary any rules and such power is only subject to the provisions of the Constitution. The decision of the Supreme Court in the case of R.S. Deodhar (supra) , therefore, is of no assistance to the petitioner. ( 16. ) In the case of State of Maharashtra vs. Chandrakant (supra) cited by the petitioner, a similar question arose as in the case of R.S. Deodhar (supra) and the Supreme Court held that mere chances are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a chance in the conditions of service, therefore, the Proviso to section 115(7) of the States Re-organization Act, 1956 was not attracted. As we have discussed above, the Governor has powers under the Proviso to Article 309 of the Constitution, not only to make rules regulating the recruitment and conditions of service of any person appointed in connection with the affairs of the State but also to amend of such rule and such power is only subject to provisions of the Constitution. Hence, the decision of the Supreme Court in the case of State of Maharashtra vs. Chandrakant (supra) is of no help to the petitioner. " 16. As per Schedule-II appended to the 1972 Rules after its amendment, out of eight posts of the Regional Transport Officers, only three posts of RTOs are there to be filled by promotion from in-service candidates whereas five posts have been reserved for the officers to be brought on deputation/transfer as the Government may decide. Thus, out of total eight posts, the total percentage of posts of Regional Transport Officers which are prescribed to be filled on deputation is 60% as compared to 40% posts which are reserved for in-service candidates to be filled by way of promotion. In this reference, we may refer to the decision rendered by the Apex Court in P.K. Sandhu (Mrs) v. Shiv Raj V. Patil, (1997) 4 SCC 348 . In the said case, the validity of the Rules relating to the reservation for 25% from the deputationists was challenged as 25% posts were reserved for the persons to be brought on deputation and 75% were reserved for the promotion. Their Lordships upheld the said percentage of 25 for the posts to be filled on deputation on the ground that if the persons are brought on deputation then 25% of quota will be an opportunity to accelerate competence and efficiency apart from improving excellence. On that basis it was held that providing of quota is fair and in the best interest of the service and it cannot be characterised as arbitrary. Para-7 of the said decision is quoted as below: "Shri Aruneshwar Gupta, learned counsel for the petitioner, contends that this Court has indicated in the order thai to improve efficiency of administration and also to enthuse discipline and inculcate, among in service officers, the spirit of competence, efficiency and excellence, opportunity for promotion would be made available. Para-7 of the said decision is quoted as below: "Shri Aruneshwar Gupta, learned counsel for the petitioner, contends that this Court has indicated in the order thai to improve efficiency of administration and also to enthuse discipline and inculcate, among in service officers, the spirit of competence, efficiency and excellence, opportunity for promotion would be made available. This method of reserving 75% recruitment by way of promotion and giving option to call for transfer on deputation from other sources is ultra vires. We find no force in the contention. It is seen that the rule indicates that in service candidates would be eligible to be considered for promotion to the extent of 75% of the posts in accordance with the eligibility conditions prescribed in column 3 thereof. In that event, if the officers were not found eligible to be promoted, instead of keeping the post vacant and work suffering, options have been kept given to the Speaker to take the service of other officers on deputation. Therefore, the officers on deputation would remain on deputation without any incursion into the 75% quota reserved for the promoted officers. As and when the promoted officers are found to be fit for promotion, considered and promoted, the deputation officers necessarily would give place to the officers promoted within the 75% quota. 75% quota for in-service officers encourages the officers and inculcates spirit of competence, character and integrity. Otherwise, the in-service officer would lose his chances of promotions to higher echelons of service. Equally, induction of officers of competence and ability on deputation of 25% quota will be an opportunity to accelerate competence and efficiency apart from improving excellence. Therefore, the respective quota is fair and in the best interest of the service. It cannot be charactersied as arbitrary." ( 17. ) An analysis of the decision rendered in P.K. Sandhu (supra) would further reveal that the Apex Court upholding the 25% of quota for the deputationists has taken into account that in-service candidates towards the quota of 75% would also get encouraged as it would inculcate the spirit of competence, character and integrity, otherwise the in-service officers would lose chances of promotions to higher echelons of service. ( 18. ) In the present case, it is not that the State Government has not reserved more percentage of posts for deputationists in comparison to the in-service candidates. ( 18. ) In the present case, it is not that the State Government has not reserved more percentage of posts for deputationists in comparison to the in-service candidates. As we have already discussed in the foregoing paragraph, out of 8 posts of the Regional Transport Officer, 60% posts have been reserved to be filled on deputation and only 40% posts are to be filled from in-service candidates. There is nothing that towards the quota of deputationists i.e. 05, in-service candidates gradually may get promotion and in the meanwhile they will replace the deputationists. The only justification is given that the persons coming on deputation are earning more revenue in their respective places than what is earned by the in-service candidates. ( 19. ) In the present case, if the object sought to be achieved is taken into account as per the decision rendered by the Apex Court in Ashutosh Gupta (supra) then what is to be further taken note of the situation is that whether ideologically it is proper for the State Government to bring the persons on deputation particularly when the eligible candidates are already available in the department for their promotion. It is not the case of the State Government that number of eligible and efficient officers are not available in the department for getting them promotion to the post of Regional Transport Officer. The question of getting more revenue would also depend upon the situation when in-service candidates are also trusted by giving posting to the places where the persons on deputation are posted. The object sought to be achieved by prescribing the promotional avenue in the department is related to the aspect of giving preference to the in-service candidates over the persons to be brought on deputation. Whatever be the reason, a right balance has to be stuck and reasonableness has to prevail while framing the recruitment rules and allocating the posts both for in-service candidates and the persons to be brought on deputation so that not only the in-service candidates have fair chance of promotion but the object of improving excellence of work by inducting officers of competence from other departments is also achieved. We are not addressing ourselves on a question that the State Government has no right to bring the officers on deputation to fill the post by making a provision in the relevant recruitment rules. We are not addressing ourselves on a question that the State Government has no right to bring the officers on deputation to fill the post by making a provision in the relevant recruitment rules. We accept the right of the State to bring the officers on deputation but there has to be justification with the State Government to prescribe the higher percentage of quota to fill the vacancy of Regional Transport Officer by the officers brought on deputation. In service jurisprudence there appears no rationality in the excessive percentage of posts prescribed to be filled on deputation/transfer by ignoring the rightful claim of in-service candidates those who serve the department for number of years and belong to the cadre. Therefore, the provision as such is arbitrary and thus violative of Articles 14 of the Constitution of India. ( 20. ) Apart from the aforesaid, the controversy can also be viewed from another angle. Learned counsel for the petitioners has produced a chart on 22.2.2010 showing the cadre strength as mentioned by the respondents in there reply and the amendment to the reply. The same is reproduced as under:- Total Number of Posts of Assistant Commissioner/Regional Transport Officer/Additional Regional Transport Officer Total Number of Posts meant for Departmental Officials Number of posts reserved for deputationists 30 25 5 ( 21. ) On basis of the aforesaid, it is clear that out of 30 posts, 25 are meant for promotees and only five are reserved for the persons to be brought on deputation, the ratio is thus, 80:20. There has been a reasonable classification with respect to the posts in the cadre as in all other posts in the cadre in-service candidates are to be given promotion. Article 14 of the Constitution of India permits reasonable classification but prohibits a classification within the classification. The posts of Assistant Regional Transport Officer have already been defined to be included in the cadre and out of total eight posts of the Regional Transport Officer, five have been reserved for the persons to be brought on deputation at the discretion of the State Government from the Class-II services of the M.R State Civil Service. ( 22. ) The justification with respect to earning of more revenue by the persons brought on deputation will not be a classification in itself for creating a class within the class. ( 22. ) The justification with respect to earning of more revenue by the persons brought on deputation will not be a classification in itself for creating a class within the class. No other justification has been given by the State Government for reserving five posts out of total eight posts to be filled from the officers by deputation/transfer. Thus, apparently the State Government by reserving five posts has created a class within the class and for this reason, even otherwise also, we cannot approve the action of the State Government while framing the recruitment rules. In this context, the reliance is placed on the Apex Court decision in The Manager, Govt. Branch Press and another v. D.B. Belliappa, AIR 1979 SC 429 wherein it is held that expression as used in Article 16(1) not only applies to appointment but includes termination of or removal from service or matters relating to employment which includes promotion. Thus, in the present case there has to be equality of opportunity in the matters of public employment. ( 23. ) In view of the above, if the amendment made to the Rules is considered and particularly when in the light of the only reason supplied by the State Government to justify the provision we are of the considered view that such a provision is contrary to the Article 14 and 16(1) of the Constitution of India firstly on the ground that it creates a class within the class and secondly there are no equal opportunities in the employment and there is a differentiation with respect to the officers in service and officers brought on deputation. ( 24. ) In view of the foregoing discussion, in order to strike a right balance in equality of opportunity i.e. the chances of promotion on the post of Regional Transport Officer from in-service candidates and to fill the said posts from the deputationists, we are inclined to declare and accordingly declare Rule 7 and corresponding column 5 under Schedule-II of the Madhya Pradesh Transport (Gazetted) Service Recruitment Rules, 1972 as unconstitutional and set aside the same. However, it will be open to the State Government to prescribe a reasonable percentage of posts of Regional Transport Officer to be filled by deputation/transfer. In the result, the writ petition succeeds and is allowed accordingly. No order as to costs. Petition allowed.