Pushpa Khalko vs State Of Chhattisgarh on 20 March, 2026

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    Chattisgarh High Court

    Pushpa Khalko vs State Of Chhattisgarh on 20 March, 2026

    Author: Sanjay K. Agrawal

    Bench: Sanjay K. Agrawal

                                                  Page 1 of 59
    
                                              (WPS No.3793/2018)
    
    
    
    
                                                                               2026:CGHC:13575-DB
               Digitally
               signed by
               SISTA                                                                        AFR
    SISTA      SOMAYAJULU
    SOMAYAJULU Date:
               2026.03.20
               18:08:53     HIGH COURT OF CHHATTISGARH AT BILASPUR
               +0530
    
    
                                          WPS No. 3793 of 2018
    
                                       Order reserved on: 02/03/2026
    
                                       Order delivered on: 20/03/2026
    
                                   Order (Full) uploaded on: 20/03/2026
    
                    1. Pushpa Khalko, W/o Jayprakash Ekka, Aged about 37 years, Posted
                       at Nagar Palika, Bagicha, District Jashpur, Chhattisgarh.
    
                    2. Khirod Bhoi, S/o G.H. Bhoi, Aged about 35 years, Posted at Nagar
                       Palika Dongargarh, District Rajnandgaon, Chhattisgarh.
    
                    3. Prahlad Pandey, S/o Kashi Pandey, Aged about 37 years, Posted at
                       Nagar Panchayat Dabhara, District Janjgir-Champa, Chhattisgarh.
    
                    4. Netram Ratnesh, S/o C.R. Ratnesh, Aged about 48 years, Posted at
                       Nagar Palika      Parishad,      Akaltara,   District    Janjgir-Champa,
                       Chhattisgarh.
    
                    5. Sachit Kumar Sahu, S/o M.R. Sahu, Aged about 36 years, Posted at
                       Nagar Palika Parishad, Sakti, District Janjgir-Champa, Chhattisgarh.
    
                    6. Satish Yadav, S/o Late Anand Ram Yadav, Aged about 41 years,
                       Posted at Nagar Palika, Kamdol, District Raipur, Chhattisgarh.
    
                    7. Vikas Patle, S/o C.B. Patle, Aged about 37 years, Posted at Nagar
                       Palika Parishad, Gobra, Navapara, District Raipur, Chhattisgarh.
    
                    8. Gyan Punj Kulmitra, S/o Late H.R. Kulmitra, Aged about 46 years,
                       Posted at Nagar Palika Parishad, Shivpur Charcha, District Korea,
                       Chhattisgarh.
    
                    9. Vishnu Prasad Yadav, S/o Nandram Yadav, Aged about 43 years,
                       Posted at Nagar Palika, Gaurela, District Bilaspur, Chhattisgarh.
    
                    10. Mobin Ali, S/o Tahir Ali, Aged about 41 years, Posted at Dantewada,
                       District Bastar, Chhattisgarh.
                                  Page 2 of 59
    
                             (WPS No.3793/2018)
    
    
    
    11. Dinesh Kosariya, S/o Chedu Ram Komariya, Aged about 43 years,
      Posted at Nagar       Palika,   Kharod,     District   Janjgir-Champa,
      Chhattisgarh.
    
    12. Smt. Madhulika Singh Chandel, W/o Vineet Singh Chandel, Aged
      about 40 years, Posted at Nagar Panchayat Malhar, District Bilaspur,
      Chhattisgarh.
                                                         ... Petitioners
    
                                 Versus
    
    1. State  of Chhattisgarh, Through Urban Administration &
      Development Department, Mahanadi Bhawan, Naya Raipur, District
      Raipur, Chhattisgarh.
    
    2. The Secretary, Department of Law & Legislative Affairs, Mantralaya,
      Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.
    
    3. Bhoopendar Prasad Upadhyay, S/o Deenanth Upadhyay, R/o Kali
      Mai Ward, P.S. Mungeli, District Mungeli, Chhattisgarh.
    
    4. Khir Sagar Nayak, S/o Nilamber Nayak, Posted as CMO Saraipali,
      District Mahasamund, Chhattisgarh.
    
    5. Anubhav Sahu, S/o Sh. Sant Lal Sahu, Aged about 30 years, R/o I-8,
      Shatabdi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh,
      492001.
    
    6. Rakesh Kumar Sahu, S/o Sh. Roopchand Sahu, Aged about 30 years,
      R/o CMO Quarter, Tehsil Colony, Behind Deendayal Bhawan, Ward
      No.9, Sheorinarayan, District Champa, Chhattisgarh, 495557,
      Janjgir.
    
    7. Neeraj Agrawal, S/o Sh. Vinod Kumar Agrawal, Aged about 30 years,
      R/o 72 Devika Vihar Colony, In front of Smritivan, Rajkishore Nagar,
      Bilaspur, District Bilaspur, Chhattisgarh, 495006.
    
    8. Ravi Shrivastava, S/o Sh. Umesh Prakash Shrivastava, Aged about 35
      years, R/o Q.No.8-B, Street 29, Sector 4, Bhilai, District Durg, Pin-
      490001, Chhattisgarh.
    
    9. Devesh Kumar Sharma, S/o Sh. Bhimbadhar Das Sharma, Aged
      about 32 years, R/o Ward No.5, Near Old Meena Bazar Ground,
      Saraipali, District Mahasamund, Chhattisgarh, 493558.
    
    10. Harish Kumar Sahu, S/o Sh. Ramji Sahu, Aged about 30 years, R/o
      House No.438, Ambedkar Nagar, Supela, Bhilai, District Durg,
      Chhattisgarh, 490023.
                                  Page 3 of 59
    
                             (WPS No.3793/2018)
    
    11. Manish Kumar Nishad, S/o Sh. Raj Kumar Nishad, Aged about 36
      years, R/o Room No.12, Chandra Complex, Near RLC School,
      Dabhara, District Sakti, Chhattisgarh, 495688
    
    12. Bhushan Lal Deshmukh, S/o Sh. Nem Singh Deshmukh, Aged about
      30 years, R/o Q.No.H-34, G.A.D. Colony, Behind Ambedkar Park,
      Ward No.2, P.O. Narayanpur, District Narayanpur, Chhattisgarh,
      494661.
    
    13. Ajeet Kumar, S/o Sh. Balram Prasad Gupta, Aged about 31 years, R/o
      Village Charmar, P.O. Nawapara (Tenda), Teh. Gharghoda, District
      Raigarh, Chhattisgarh, 496111.
    
    14. Vikas Kumar Bhoy, S/o Sh. A. Achyutanand Bhoy, Aged about 29
      years, R/o Village Charmar, P.O. Nawapara (Tenda), Teh.
      Gharghoda, District Raigarh, Chhattisgarh, 496111.
    
    15. Avinash Jaiswal, S/o Sh. Vijay Jaiswal, Aged about 33 years, R/o D
      Ground Floor, Hotel Satkar Deluxe Campus, Rani Road, Korba,
      District Korba, Chhattisgarh, 495677.
    
    16. Pushpendra Singh Thakur, S/o Sh. Bodhan Singh Thakur, Aged
      about 32 years, R/o Purana Sarkanda Mata Chaura, Bihi Badi,
      Bilaspur, District Bilaspur, Chhattisgarh, 495001.
    
    17. Ravikant Dewangan, S/o Sh. Girwar Dewangan, Aged about 37 years,
      R/o D House No. 143, Village & P.O. Godhi, Teh. Mandir Hasaud,
      Block Arang, District Raipur, Chhattisgarh, 492101.
    
    18. Seema Buxy, W/o Nitin Buxy, Aged about 40 years, Chief Municipal
      Officer, Municipal Council, Jamul, District Durg, Chhattisgarh.
    
    19. Yaman Dewangan, S/o Shri Tungnath Dewangan, Aged 47 years,
      Posted as CMO Class-B, At Nagar Panchayat, Chhura, District
      Gariyaband, Chhattisgarh.
    
    20. Amarnath Dubey, S/o Shri Tapnarayan Dubey, Aged 59 years, Posted
      as Zone Commissioner, At Municipal Corporation, Bhilai, District
      Durg, Chhattisgarh.
    
    21. Durgesh Gupta, S/o Raj Kumar Gupta, Aged about 56 years,
      Residence Block 86, Nehru Nagar East Bhilai, District Durg,
      Chhattisgarh.
    
    22. Anish Kumar Thakur, S/o Ramnath Thakur, Aged about 49 years,
      Shivaji Ward, Mungeli, District Mungeli, Chhattisgarh.
    
    23. Hari Singh Thakur, S/o Late Tulsi Ram Thakur, Aged about 59 years,
      CMO, Mungeli, Chhattisgarh.
                                  Page 4 of 59
    
                             (WPS No.3793/2018)
    
    24. Santosh Kumar Vishwakarma, S/o Vishambhar Lal, Aged about 56
      years, CMO Nagar Panchayt, Bhakhara, Chhattisgarh.
    
    25. Majid Khan, S/o Late Anwar Khan, Aged about 58 years, CMO Nagar
      Panchayt, Pawani, Chhattisgarh.
    
    26. Rewa Ram Manu, S/o Late Bajrang Shankar Manu, Aged about 57
      years, CMO Nagar Panchayt, Durg, Chhattisgarh.
    
    27. Hemant Kumar Verma, S/o Late Pardeshi Ram, Aged about 56 years,
      CMO Nagar Panchayt, Patan, Chhattisgarh.
    
    28. Avinash Dewangan, S/o J.S. Dewangan, Aged about 41 years, CMO
      Nagar Panchayt, Gandai, Chhattisgarh.
    
    29. Satish Singh, S/o J.B.S. Singh, Aged about 46 years, CMO Nagar
      Panchayt, Tumgao, Chhattisgarh.
    
    30. Rajiv Rajan Shrivastava, S/o Sudhir Kumar Shrivastava, Aged about
      46 years, CMO Nagar Panchayt, Gandai, Chhattisgarh.
    
    31. Suryakant Shrivastava, S/o Krishan Mohan Shrivastava, Aged about
      59 years, Assistant       Director,       Urban   Department,   Raipur,
      Chhattisgarh.
    
    32. Deepak Sharma, S/o Govind Narayan Sharma, Aged about 48 years,
      CMO Nagar Panchayt, Kunra, Chhattisgarh.
    
    33. Pradeep Singh Thakur, S/o Mahendra Singh Thakur, CMO Nagar
      Panchayt, Indori, Chhattisgarh.
    
    34. Anil Kumar Sonwani, S/o Sabran Ram Sonwani, CMO, Nagar
      Panchayt, Baramkela, Chhattisgarh.
    
    35. Domar Singh Sahu, CMO Nagar Panchayt, Barsur, Chhattisgarh.
    
    36. Hunga Ram Gonde, CMO Nagar Panchayt, Dornapal, Chhattisgarh.
    
    37. Lalit Kumar Sahu, S/o Yati Ram Sahu, Aged about 43 years, CMO
      Nagar Panchayt, Pusouri, Chhattisgarh.
    
    38. Rajesh Kushwaha, S/o Hari Naryan Kushwaha, Aged about 47 years,
      CMO Nagar Panchayt, Bhatgaon (Surajpur), Chhattisgarh.
    
    39. Krishan Kant Kurre, S/o B.D. Kurre, Aged about 47 years.
    
    40. Kiran Patel, S/o Shriniwas Patel, Aged about 55 years, CMO Nagar
      Panchayt, Gundardehi, Chhattisgarh.
                                        Page 5 of 59
    
                                   (WPS No.3793/2018)
    
      41. Shashi Bhushan Mahapatra, CMO Nagar Panchayt, Kirandul,
         Chhattisgarh.
    
      42. Shyam Lal Verma, S/o Shamaru Lal Verma, CMO Nagar Panchayt,
         Kopra, Chhattisgarh.
    
      43. Thanu Ram Yadav, S/o Parsu Ram Yadav, Aged about 56 years, CMO
         Nagar Panchayt, Kotba, Chhattisgarh.
    
      44. Mohar Lal Gaharwariya, S/o Late Sohar Ram, Aged about 53 years,
         CMO Nagar Panchayt, Jarhi, Chhattisgarh.
    
      45. Punit Kumar Verma, S/o Kripa Ram, Aged about 59 years, CMO
         Nagar Panchayt, Nayabaradwar, Chhattisgarh.
    
      46. Ghanshyam Prasad Sharma, S/o late Hanuman Prasad Sharma, Aged
         about 48 years, Posted as Revenue Inspector, Presently working as
         Chief Municipal Officer, Nagar Panchayat, Sargaon, District Mungeli,
         Chhattisgarh.
                                                           ... Respondents
    
    For Petitioners                  : Mr. Kishore Bhaduri, Sr. Advocate with Mr.
                                       Sajal Kumar Gupta, Advocate.
    For Respondents No.1 & 2/State : Mr. Prasun Kumar          Bhaduri,   Deputy
                                     Advocate General.
    For Respondents No.3 & 4         : Mr. Chandresh Shrivastava, Advocate.
    For Respondents No.5 to 17       : Mr. Manoj Paranjpe, Sr. Advocate with Mr.
                                       Rishabh Gupta, Advocate.
    For Respondents No.18, 19 & 20 : Mr. Rajesh Kumar Kesharwani, Advocate.
    For Respondents No.21 & 22       : Mr. Amrito Das, Advocate.
    For Respondents No.23 to 45      : Mr. Santosh Bharat, Advocate.
    For Respondent No.46             : Mr. Vikas Dubey, Advocate.
    
                                Division Bench: -
                       Hon'ble Shri Sanjay K. Agrawal and
                      Hon'ble Shri Arvind Kumar Verma, JJ.
    

    C.A.V. ORDER

    Sanjay K. Agrawal, J.

    SPONSORED

    For the sake of convenience, this Order is divided in following parts:-

      S.No.                         Particulars                        Page Nos.
    
        1.    Challenge in the Writ Petition                                  7
                                     Page 6 of 59
    
                                (WPS No.3793/2018)
    
    2.    Writ Petition                                                 8
    
    3.    Return on behalf of the State                                 9
    
    4.    Return on behalf of the private Respondents                   10
    
    5.    Submissions on behalf of the Petitioners                      11
    
    6.    Submissions on behalf of the State                            14
    
    7.    Submissions on behalf of the private Respondents              16
    
    8.    Questions for Determination                                   18
    
    9.    Presumption of Constitutionality of the Act or Rules          19
    
    10.   Challenge to the constitutional authority of the Act or       19
          Rules
    
    11.   Locus standi to challenge the constitutional validity of      24
          Rule
    
    12.   Equation of Posts                                             25
    
    13.   Power of Relaxation                                           28
    
    14.   Promotion - Not a vested right                                29
    
    15.   Provision for promotion                                       31
    
    16.   Constitution of Municipalities                                31
    
    17.   The Chhattisgarh Municipal Service (Executive) Rules,         34
          1973
    
    18.   The Chhattisgarh Municipal Services (Scale of Pay and         35
          Allowances) Rules, 1967
    
    19.   The Chhattisgarh Municipal Employees (Recruitment             36
          and Conditions of Service) Rules, 1968
    
    20.   74th Amendment in the Constitution                            37
    
    21.   The    Chhattisgarh    State    Municipal   (Executive/       38
          Engineering/Health)     Services,   Recruitment    and
          Conditions of Service Rules, 2017
    
    

    22. Pleadings in challenging the constitutional validity of law 40

    23. Prescription of eligibility is prerogative of the employer 42

    24. To provide channels of promotion is the right of the 43
    Government

    25. Findings and analysis 44

    26. Conclusion 58
    Page 7 of 59

    (WPS No.3793/2018)

    1. Challenge in the Writ Petition

    1.1) The petitioners, who are Chief Municipal Officers, Class “C”

    (now promoted), seek to challenge the constitutional validity of

    Schedule-IV, column (3) enacted under Rules 14 & 15 of the

    Chhattisgarh State Municipal (Executive/Engineering/Health)

    Services, Recruitment and Conditions of Service Rules, 2017 (for

    short, ‘the Rules of 2017’) as unconstitutional and violative of their

    fundamental rights guaranteed under Articles 14 & 16 of the

    Constitution of India and eventually, also seek to question the order

    (Annexure-P/1) by which the State Government in exercise of power

    conferred under Rule 45 of the Rules of 2017, relaxed the qualifying

    service of one year (by which Revenue Inspectors would be entitled

    to be considered for the post of Chief Municipal Officer Class”B” on

    completion of five years on that post in place of six years), to be

    unconstitutional and bad in law.

    1.2) In substance, the petitioners seek to challenge the

    constitutionality of Schedule-IV, column (3) of the Rules of 2017

    enacted under Rules 14 & 15 of the Rules of 2017, equating the post of

    Revenue Inspector (Grade AA/A/B) with that of Chief Municipal

    Officer Class ‘C’ to be considered for promotion on the post of Chief

    Municipal Officer Class ‘B’ and it was prayed that the same be

    declared as unconstitutional and violative of Articles 14 & 16 of the

    Constitution of India. The petitioners also seek to challenge the

    order dated 2-2-2018 (Annexure P-1) relaxing the qualifying service

    by one year as stated above.

    Page 8 of 59

    (WPS No.3793/2018)

    1.3) This Court (Coordinate Bench) in the first round of litigation

    allowed the writ petition and declared the said provision ultra vires,

    however, on Special Leave Petition preferred by the interveners, now

    respondents herein, their Lordships of the Supreme Court set aside

    the order passed herein by order dated 16-9-2025 and remitted the

    matter to decide the same afresh after hearing the interveners herein

    after impleading them as party respondents. Accordingly, the

    interveners have been impleaded as party respondents herein and

    they are allowed to exchange pleadings. This is how this present

    petition is before us.

    2. Writ Petition

    2.1) The petitioners herein, who were holding the post of Chief

    Municipal Officer Class ‘C’ at the time of filing of the writ petition

    and now promoted on the post of Chief Municipal Officer Grade ‘B’,

    are impugning and questioning the subject Rules specifically column

    (3) of Schedule-IV of the Rules of 2017 equating the Revenue

    Inspectors who are municipal servants appointed under Section

    94(2) read with Section 94(4) of the Chhattisgarh Municipalities Act,

    1961 (for short, ‘the Act of 1961’), on the ground that the petitioners

    are holding the civil post within the meaning of Section 86/87 of the

    Act of 1961 and the Revenue Inspectors Grade-AA/A/B are municipal

    servants within the meaning of Section 94(2) & (4) of the Act of 1961

    and, therefore, the same is unconstitutional.

    2.2) It is the case of the petitioners that by the impugned Rules, the

    State has treated unequals as equals by equating two different
    Page 9 of 59

    (WPS No.3793/2018)

    statutory services and thereby violated Articles 14 & 16 of the

    Constitution of India. The said provision travels beyond the rule-

    making power conferred to the State Government under Section 86

    of the Act of 1961, as the State Government, while framing Rules for

    recruitment and service conditions of the State Municipal Service,

    cannot merge or equate a separate service constituted under Section

    95 of the Act of 1961 and as such, the subject provision be declared

    ultra vires and violative of their fundamental rights guaranteed

    under Articles 14 & 16 of the Constitution of India as well as the order

    Annexure P-1 be set aside.

    3. Return on behalf of the State

    In the return filed on behalf of the State/respondents No.1 & 2, it is

    stated that the impugned order dated 2-2-2018 has been issued

    invoking Rule 45 of the Rules of 2017. Rule 45 of the said Rules

    provides for relaxation, according to which, the State Government

    may relax the provisions contained in the Act in individual case in a

    manner it deems just and appropriate. The said relaxation was one

    time and was operative only for one year. It is further stated that the

    impugned order dated 2-2-2018 is in accordance with the Rules and

    the power of grant of relaxation has been exercised by the State

    Government within the statutory framework. It is also stated that

    the Revenue Inspectors form the feeder cadre for promotion to the

    post of Chief Municipal Officer Class-B and the Revenue Inspectors

    of Grade AA/A/B have also been included and it is the prerogative of

    the State to create avenues of promotion for its employees. It is also
    Page 10 of 59

    (WPS No.3793/2018)

    the stand/case of the State that the determination of conditions of

    service, alteration thereof by amending the rules, classification or

    abolition of posts, cadres or categories of services is within the

    exclusive domain of the State and the scope of interference under

    Article 226 of the Constitution of India is limited. The State has

    exclusive discretion and jurisdiction to provide for particular method

    of recruitment or eligibility criteria or avenues of promotion. It is

    also pleaded that the promotion is not a fundamental right of the

    petitioners and the petitioners are aggrieved only on the ground that

    the Municipal servants holding the Municipal post under the Council

    have been provided channel of promotion to the post equivalent to

    them i.e. Chief Municipal Officer Class-B, which cannot be a ground

    to question the constitutional validity of column (3) of Schedule-IV of

    the Rules of 2017. As such, the Writ Petition deserves to be

    dismissed and challenge to the order Annexure P-1 is also not

    sustainable.

    4. Rejoinder has been filed on behalf of the petitioners controverting

    the averments made in the return stating inter alia that the stand

    taken by the State in the return is constitutionally impermissible.

    5. Return on behalf of the private respondents

    The private respondents have filed separate returns in line with the

    stand taken by the State Government in respect of constitutional

    validity of the subject Rules. Therefore, their stand is not being

    repeated herein to avoid unnecessary repetition of facts.
    Page 11 of 59

    (WPS No.3793/2018)

    6. Submissions on behalf of the petitioners

    Mr. Kishore Bhaduri, learned Senior Counsel appearing on behalf of

    the petitioners, would submit as under:-

    6.1) The petitioners being Chief Municipal Officers Class-C are

    holding the civil post under the State, as held by the Full Bench of

    Madhya Pradesh High Court in the matter of Suresh Chandra

    Sharma v. State of M.P. and others1 whereas the persons

    appointed under Section 94(2) of the Act of 1961 are municipal

    servants of the Municipal Council. As such, by virtue of Schedule-IV

    of column (3) of the Rules of 2017, the Revenue Inspectors Grade-

    AA/A/B cannot be equated with the post of Chief Municipal Officer

    Grade-C and they cannot be provided avenues to be considered for

    promotion on the post of Chief Municipal Officer Grade-B, which is a

    civil post under the State constituted under Section 86 of the Act of

    1961.

    6.2) The effect of impugned provision i.e. the provision mentioned

    in column (3) of Schedule-IV, is nothing short of an impermissible

    integration and equation of two distinct statutory cadres, one being a

    State cadre civil post and the other being a Municipal cadre post

    confined to a Municipality, obliterates the statutory distinction

    consciously maintained by the rule making authority, as they are

    governed by the Rules of 2017 and the Chhattisgarh Municipal

    Employees (Recruitment and Conditions of Service) Rules, 1968, (for

    short, ‘the Rules of 1968’), respectively. Therefore, the impugned

    1 2000 SCC OnLine MP 162
    Page 12 of 59

    (WPS No.3793/2018)

    entry of Revenue Inspectors from the Municipal Service into the

    State Municipal Service is without any express authority under the

    parent Act. As such, it is unconstitutional and is liable to be struck

    down.

    6.3) The petitioners being the Chief Municipal Officers are holding

    the civil post and the Revenue Inspectors/private respondents are

    municipal servants appointed under Section 94(2) read with Section

    94(4) of the Act of 1961. Therefore, they are unequals and they

    cannot be treated as equals since they are governed by different sets

    of statutory rules and different sources of recruitment. Reliance is

    placed in the matters of Uttar Pradesh Power Corporation

    Limited v. Ayodhya Prasad Mishra and another2 and Indian

    Council of Agricultural Research Through the Director

    General and another v. Rajinder Singh and others3.

    6.4) Section 86 of the Act of 1961 empowers the State to frame rules

    only for recruitment and service conditions of the members of State

    Municipal Service that is Chief Municipal Officer of Class A, B & C. It

    does not authorize the State Government to merge the municipal

    servants appointed under Section 94(2) read with Section 94(4) of

    the Act of 1961 into the cadre of the Chief Municipal Officer

    (appointed under Section 87 of the Act of 1961), and that would

    amount to new source of recruitment under the Rules. Learned

    Senior Counsel for the petitioners would rely upon the decision of the

    Supreme Court in the matter of Naresh Chandra Agrawal v.
    2 (2008) 10 SCC 139
    3 2024 SCC OnLine SC 2137
    Page 13 of 59

    (WPS No.3793/2018)

    Institute of Chartered Accountants of India and others 4.

    6.5) Learned Senior Counsel for the petitioners would further rely

    upon the decision of the Supreme Court in the matter of Aphali

    Pharmaceuticals Ltd. v. State of Maharashtra and others 5 to

    contend that a schedule forms part of the Act and cannot override or

    enlarge the scope of the parent legislation. In the matter of Jagdish

    Prasad v. State of Rajasthan and others6 also, it was held that

    the schedule provisions must conform to the main enactment.

    6.6) Learned Senior Counsel would also submit that the petitioners’

    right are substantially affected by the impugned legislation and,

    therefore, they are competent to challenge the constitutional validity

    of column (3) of Schedule-IV of the subject Rules. Relying upon the

    decision of the Supreme Court in the matter of Charanjit Lal

    Chowdhury v. Union of India and others 7, he would submit

    that since column (3) of Schedule-IV introduces a new promotional

    source for the municipal servants (Revenue Inspectors) to the post of

    Chief Municipal Officer Class-B, who are governed under the Rules of

    1968, they cannot enter into the municipal service and such

    induction would alter its composition, which would affect inter se

    seniority and directly impact the promotional prospects to higher

    posts such as CMO, Grade-B and, therefore, the same is liable to be

    struck down.

    6.7) Learned Senior Counsel would also rely upon the decision of
    4 (2024) 13 SCC 241
    5 (1989) 4 SCC 378
    6 (2011) 7 SCC 789
    7 1950 SCC 833
    Page 14 of 59

    (WPS No.3793/2018)

    the Supreme Court in the matter of Motor General Traders and

    another v. State of Andhra Pradesh and others 8 to submit

    that prolonged existence of an unconstitutional provision does not

    confer validity. It is submitted that Rule 15(1) of the Rules of 2017

    cannot override the parent Act i.e. Sections 86 to 89 of the Act of

    1961, as the Full Bench of the M.P. High Court in Suresh Chandra

    Sharma (supra) has held that the Chief Municipal Officers hold civil

    posts under the State, whereas the Municipal employees are

    Municipal servants of the Municipal Council. He would also submit

    that the Revenue Inspectors appointed under Section 94(2) read with

    Section 94(4) of the Act of 1961 cannot be equated with the Chief

    Municipal Officers, who are appointed under Section 86 of the Act of

    1961. Furthermore, the power of relaxation cannot be exercised to

    promote ineligible Revenue Officers to the post of Chief Municipal

    Officer Class-B.

    6.8) Lastly, he would submit that the petitioners are directly

    affected by the impugned legislation and as such, they have locus to

    challenge it. Therefore, column (3) of Schedule-IV of the Rules of

    2017 as well as order dated 2-2-2018 be struck down as

    unconstitutional.

    7. Submissions on behalf of the State

    Mr. Prasun Kumar Bhaduri, learned Deputy Advocate General

    appearing on behalf of the State/respondents No.1 & 2, would submit

    as under:-

    8 (1984) 1 SCC 222
    Page 15 of 59

    (WPS No.3793/2018)

    7.1) The petitioners have not placed on record any real and tangible

    instance of prejudice being caused to them by way of any DPC or any

    promotion order etc.. The writ petition as pleaded and presented is

    vague and is unable to demonstrate any real and palpable case of

    discrimination and arbitrary exercise of power directly and clearly

    infringing the fundamental and legal rights of the petitioners. In the

    present case, there was dearth of officers for promotion in the feeder

    cadre of Municipal Officer Class ‘C’ whereas in the equivalent post of

    Revenue Officers with near to experience were available. Thus the

    Government took a conscious decision in accordance with Articles

    162 & 166 of the Constitution of India and as such, relaxation under

    Rule 45 of the Rules of 2017 has been granted by the State keeping in

    mind practical necessities and for objective reasons. As such, the

    impugned order dated 2-2-2018 is in accordance with law.

    7.2) The issue of creation of different promotional avenues and

    ladders for promotion in favour of various categories of posts in

    feeder cadre based upon structure and pattern of the department is a

    prerogative of the employer mainly pertaining to policy making field,

    which cannot be questioned by the petitioners stating to be violative

    of Articles 14 & 16 of the Constitution of India.

    7.3) The Municipalities have been conferred a constitutional status

    post the 74th Amendment to the Constitution w.e.f. 1-6-1993 and the

    Municipalities are now part of the Constitution. Moreover, Article

    243P creates Municipalities as institutions of self-Government which

    are to be constituted in terms of Article 243Q of the Constitution.
    Page 16 of 59

    (WPS No.3793/2018)

    Under Article 243Q(1), Municipalities are constituted for smaller

    urban areas. Further, Schedule XII to the Constitution enumerates

    18 items within the ambit of twin purposes mentioned in Article

    243W. The Municipal Services whether executive or non-executive

    exists to carry out the mandate of Article 243W read with XII

    Schedule of the Constitution. Thus the Rules of 2017 though created

    under provisions of the Act of 1961 can also trace their origins to the

    constitutional authority under Article 243W read with XII Schedule

    of the Constitution. He would also submit that although the Rules of

    1967, 1968 and 1973 as also the Act of 1961 are created before 74 th

    Constitutional Amendment but they are protected by way of Article

    243ZF of the Constitution of India.

    7.4) It has consistently been held by the Supreme Court that there is

    always a presumption in favour of constitutionality and a law will not

    be declared unconstitutional unless the case is so clear as to be free

    from doubt. He would submit that if the rule enacted is within the

    scope of power conferred on the rule-making authority and violates

    no restrictions on that power, the rule must be upheld. As such, the

    challenge to the order dated 2-2-2018 as also the challenge to the

    constitutional validity of column (3) of Schedule-IV deserves to be

    upheld.

    8. Submissions on behalf of the private Respondents

    8.1) Mr. Manoj Paranjpe, learned Senior Counsel appearing on

    behalf of respondents No.5 to 17, would submit that the impugned

    rule is constitutionally valid. The only way available for the Revenue
    Page 17 of 59

    (WPS No.3793/2018)

    Inspectors/Officers Class-I to be considered for promotion to the

    post of Chief Municipal Officer Grade-B is by providing channel of

    promotion by way of the impugned Rule, otherwise there is no

    channel of promotion to them on the higher post of Chief Municipal

    Officer. As such, the impugned Rule is constitutionally valid and the

    relaxation granted by order dated 2-2-2018 is also in accordance with

    law and the Writ Petition deserves to be dismissed.

    8.2) Mr. Amrito Das, learned counsel appearing on behalf of

    respondents No.21 & 22, would submit that the petitioners are not

    the persons aggrieved, as by the impugned Rules and by order dated

    2-2-2018, no legal right is affected and, therefore, the petitioners, by

    any stretch of imagination, can be considered as the “persons

    aggrieved”. At the best, they can be considered as the “persons

    annoyed”. The present Writ Petition questioning the constitutional

    validity of the subject Rules, which is constitutionally valid, deserves

    to be dismissed, as the said Rules do not violate any legal or

    fundamental rights of the petitioners herein. He would further

    submit that in order to challenge the subject Rules, there must be

    necessary pleading(s) in the writ petition, which is lacking in

    material in the instant case. In the absence of necessary pleadings as

    to how they are aggrieved and also the grounds on which they wish to

    question the impugned Rule, the Writ Petition, as filed, is liable to be

    dismissed.

    8.3) Mr. Rajesh Kumar Kesharwani, learned counsel appearing on

    behalf of respondents No.18 to 20; Mr. Santosh Bharat, learned
    Page 18 of 59

    (WPS No.3793/2018)

    counsel appearing on behalf of respondents No.23 to 45; and Mr.

    Vikas Dubey, learned counsel appearing on behalf of respondent

    No.46, would submit that they would adopt the arguments advanced

    on behalf of the State.

    9. We have heard learned counsel for the parties, considered their rival

    submissions made herein-above and gone through the records with

    utmost circumspection.

    Questions for Determination

    10. The questions that arise for determination in the present Writ

    Petition are as follows:-

    1. Whether the prescription in column (3) of Schedule-IV of the

    Rules of 2017 providing multiple feeder cadre for the post of

    Chief Municipal Officer Grade-B including Revenue Inspectors

    Grade-AA/A/B on completion of 6 years Municipal service

    along with Chief Municipal Officer Grade-C, is violative of the

    petitioners’ fundamental rights guaranteed under Articles 14 &

    16 of the Constitution of India and is liable to be struck down as

    unconstitutional?

    2. Whether the notification dated 2-2-2018 (Annexure P-1) issued

    in exercise of power conferred under Rule 45 of the Rules of

    2017 relaxing the qualifying service of one year in favour of the

    Revenue Inspectors AA/A/B, is invalid and unsustainable in

    law?

    Page 19 of 59

    (WPS No.3793/2018)

    Presumption of constitutionality of the Act or Rules

    11. It is settled law that there is always presumption in favour of

    constitutionality or validity of the Act or Rules. A statute is

    construed so as to make it effective and operative on the principle

    expressed in the maxim ‘ut res magis valeat quam pereat’. There is,

    therefore, a presumption that the Legislature does not exceed its

    jurisdiction, and the burden of establishing that the Act is not within

    the competence of the Legislature, or that it has transgressed other

    constitutional mandates, such as those relating to fundamental

    rights, is always on the person who challenges its vires. ‘Unless it

    becomes clear beyond reasonable doubt that the legislation in

    question transgresses the limits laid down by the organic law of the

    Constitution it must be allowed to stand as the true expression of the

    national will’. (See: Principles of Statutory Interpretation by Justice

    G.P. Singh, 12th Edition, page No.591).

    12. It is a settled principle of law that the Statute enacted by the

    Parliament or State Legislature cannot be declared unconstitutional

    lightly. The Court must be able to hold beyond any iota of doubt that

    the violation of the constitutional provisions was so glaring that the

    legislative provision under challenge cannot stand.

    Challenge to the constitutional authority of the Act or Rules

    13. It is well settled that constitutionality of the Act or Rules can be

    challenged on limited grounds namely, (i) it is not within the

    competence of the legislature who passed the law, (ii) it is in
    Page 20 of 59

    (WPS No.3793/2018)

    contravention of any of the fundamental rights stipulated in Part-III

    of the Constitution or any other provision of the Constitution, and

    (iii) it is in contravention of the parent Act or any other law in force.

    14. The Constitution Bench of the Supreme Court in the matter of

    Shayara Bano v. Union of India and others (Ministry of

    Women and Child Development Secretary and others) 9 held

    that legislation can be struck down if it is manifestly arbitrary and

    manifest arbitrariness is the ground to negate legislation as well

    under Article 14 of the Constitution of India. It has been observed by

    their Lordships as under: –

    “101. It will be noticed that a Constitution Bench of this Court
    in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
    India2
    stated that it was settled law that subordinate legislation
    can be challenged on any of the grounds available for challenge
    against plenary legislation. This being the case, there is no
    rational distinction between the two types of legislation when it
    comes to this ground of challenge under Article 14. The test of
    manifest arbitrariness, therefore, as laid down in the aforesaid
    judgments would apply to invalidate legislation as well as
    subordinate legislation under Article 14. Manifest
    arbitrariness, therefore, must be something done by the
    legislature capriciously, irrationally and/or without adequate
    determining principle. Also, when something is done which is
    excessive and disproportionate, such legislation would be
    manifestly arbitrary. We are, therefore, of the view that
    arbitrariness in the sense of manifest arbitrariness as pointed
    out by us above would apply to negate legislation as well under
    Article 14.”

    15. In the matter of Dr. Jaya Thakur v. Union of India and

    others10, it has been held by three-judge Bench of the Supreme

    Court that judicial review is a powerful weapon to restrain

    9 (2017) 9 SCC 1
    10 (2023) 10 SCC 276
    Page 21 of 59

    (WPS No.3793/2018)

    unconstitutional exercise of power by the legislature and executive by

    observing as under: –

    “68. It could thus be seen that the role of the judiciary is to
    ensure that the aforesaid two organs of the State i.e. the
    Legislature and Executive function within the constitutional
    limits. Judicial review is a powerful weapon to restrain
    unconstitutional exercise of power by the legislature and
    executive. The role of this Court is limited to examine as to
    whether the Legislature or the Executive has acted within the
    powers and functions assigned under the Constitution.
    However, while doing so, the court must remain within its self-
    imposed limits.”

    16. Thereafter, in Dr. Jaya Thakur (supra), their Lordships of the

    Supreme Court relying upon their earlier judgment in the matter of

    Binoy Viswam v. Union of India and others 11 and reviewing

    their earlier decisions have held that the statute enacted by

    Parliament or a State Legislature cannot be declared

    unconstitutional lightly, and observed as under: –

    “70. It could thus be seen that this Court has held that the
    statute enacted by Parliament or a State Legislature cannot be
    declared unconstitutional lightly. To do so, the Court must be
    able to hold beyond any iota of doubt that the violation of the
    constitutional provisions was so glaring that the legislative
    provision under challenge cannot stand. It has been held that
    unless there is flagrant violation of the constitutional
    provisions, the law made by Parliament or a State Legislature
    cannot be declared bad.

    71. It has been the consistent view of this Court that
    legislative enactment can be struck down only on two grounds.
    Firstly, that the appropriate legislature does not have the
    competence to make the law; and secondly, that it takes away
    or abridges any of the fundamental rights enumerated in Part
    III of the Constitution or any other constitutional provisions. It
    has been held that no enactment can be struck down by just
    saying that it is arbitrary or unreasonable. Some or the other
    constitutional infirmity has to be found before invalidating an

    11 (2017) 7 SCC 59
    Page 22 of 59

    (WPS No.3793/2018)

    Act. It has been held that Parliament and the legislatures,
    composed as they are of the representatives of the people, are
    supposed to know and be aware of the needs of the people and
    what is good and bad for them. The court cannot sit in
    judgment over their wisdom.

    72. It has been held by this Court that there is one and only
    one ground for declaring an Act of the legislature or a provision
    in the Act to be invalid, and that is if it clearly violates some
    provision of the Constitution in so evident a manner as to leave
    no manner of doubt. It has further been held that if two views
    are possible, one making the statute constitutional and the
    other making it unconstitutional, the former view must always
    be preferred. It has been held that the Court must make every
    effort to uphold the constitutional validity of a statute, even if
    that requires giving a strained construction or narrowing down
    its scope.

    73. It has consistently been held that there is always a
    presumption in favour of constitutionality, and a law will not be
    declared unconstitutional unless the case is so clear as to be
    free from doubt. It has been held that if the law which is passed
    is within the scope of the power conferred on a legislature and
    violates no restrictions on that power, the law must be upheld
    whatever a court may think of it.

    74. It could thus be seen that the challenge to the legislative
    Act would be sustainable only if it is established that the
    legislature concerned had no legislative competence to enact on
    the subject it has enacted. The other ground on which the
    validity can be challenged is that such an enactment is in
    contravention of any of the fundamental rights stipulated in
    Part III of the Constitution or any other provision of the
    Constitution. Another ground as could be culled out from the
    recent judgments of this Court is that the validity of the
    legislative act can be challenged on the ground of manifest
    arbitrariness. However, while doing so, it will have to be
    remembered that the presumption is in favour of the
    constitutionality of a legislative enactment.”

    17. Furthermore, in the matter of Dental Council of India v. Biyani

    Shikshan Samiti and another12, their Lordships of the Supreme

    Court have held that there is always a presumption in favour of

    12 (2022) 6 SCC 65
    Page 23 of 59

    (WPS No.3793/2018)

    constitutionality or validity of a subordinate legislation and the

    burden is upon him who attacks it to show that it is invalid. B.R.

    Gavai, J., as His Lordships then was, speaking for the Supreme

    Court, held in paragraphs 27 & 28 of the report as under: –

    “27. It could thus be seen that this Court has held that the
    subordinate legislation may be questioned on any of the
    grounds on which plenary legislation is questioned. In
    addition, it may also be questioned on the ground that it does
    not conform to the statute under which it is made. It may
    further be questioned on the ground that it is contrary to some
    other statute. Though it may also be questioned on the ground
    of unreasonableness, such unreasonableness should not be in
    the sense of not being reasonable, but should be in the sense
    that it is manifestly arbitrary.

    28. It has further been held by this Court in the said case that
    for challenging the subordinate legislation on the ground of
    arbitrariness, it can only be done when it is found that it is not
    in conformity with the statute or that it offends Article 14 of the
    Constitution. It has further been held that it cannot be done
    merely on the ground that it is not reasonable or that it has not
    taken into account relevant circumstances which the Court
    considers relevant.”

    18. Similarly, in the matter of PGF Limited and others v. Union of

    India and another13, their Lordships of the Supreme Court have

    laid down certain guidelines by taking note of certain precautions to

    be observed whenever the vires of any provision of law is raised

    before the Court and cautioned the Courts in paragraph 37 as under:-

    “37. The Court can, in the first instance, examine whether
    there is a prima facie strong ground made out in order to
    examine the vires of the provisions raised in the writ petition.
    The Court can also note whether such challenge is made at the
    earliest point of time when the statute came to be introduced or
    any provision was brought into the statute book or any long
    time-gap exists as between the date of the enactment and the
    date when the challenge is made. It should also be noted as to

    13 (2015) 13 SCC 50
    Page 24 of 59

    (WPS No.3793/2018)

    whether the grounds of challenge based on the facts pleaded
    and the implication of the provision really has any nexus apart
    from the grounds of challenge made. With reference to those
    relevant provisions, the Court should be conscious of the
    position as to the extent of public interest involved when the
    provision operates the field as against the prevention of such
    operation. The Court should also examine the extent of
    financial implications by virtue of the operation of the
    provision vis-a-vis the State and alleged extent of sufferance by
    the person who seeks to challenge based on the alleged
    invalidity of the provision with particular reference to the vires
    made. Even if the writ court is of the view that the challenge
    raised requires to be considered, then again it will have to be
    examined, while entertaining the challenge raised for
    consideration, whether it calls for prevention of the operation
    of the provision in the larger interest of the public. We have
    only attempted to set out some of the basic considerations to be
    borne in mind by the writ court and the same is not exhaustive.
    In other words, the writ court should examine such other
    grounds on the above lines for consideration while considering
    a challenge on the ground of vires to a statute or the provision
    of law made before it for the purpose of entertaining the same
    as well as for granting any interim relief during the pendency of
    such writ petitions. For the abovestated reasons it is also
    imperative that when such writ petitions are entertained, the
    same should be disposed of as expeditiously as possible and on
    a time-bound basis, so that the legal position is settled one way
    or the other.”

    Locus standi to challenge the constitutional validity of Rule

    19. The Supreme Court in the matter of D.K. Nabhirajiah v. State of

    Mysore14 has held that a citizen must be possessed of a fundamental

    right before he can ask the Court to declare a law which is

    inconsistent with it void; but if a citizen is not possessed of the right,

    he cannot claim this relief. It was held in para-28 as under:-

    “28. It is admitted that after 26-1-1950 there has been no
    infringement of the appellant’s right of freedom of speech or
    expression. In September 1949 he did not enjoy either
    complete freedom of speech or full freedom of expression. It is
    in relation to the freedom guaranteed in Article 19 (1) of the
    14 (1952) 1 SCC 788
    Page 25 of 59

    (WPS No.3793/2018)

    Constitution to the citizen that the provisions of Article 13 (1)
    come into play. This article does not declare any law void
    independently of the existence of the freedoms guaranteed by
    Part III. A citizen must be possessed of a fundamental right
    before he can ask the court to declare a law which is
    inconsistent with it void; but if a citizen is not possessed of the
    right, he cannot claim this relief.”

    20. It is well settled that a person whose rights and interests are

    adversely affected by an unconstitutional law can challenge the

    validity of the law on any ground which affects such validity. For

    instance, he can challenge the validity of the law on the ground that

    the subject-matter of legislation was not within the province of the

    Legislature which passed the law. He can also challenge the validity

    of the law on the ground that it infringes one of the Fundamental

    Rights conferred by the Constitution. (See Dwarkadas Shrinivas

    v. The Sholapur Spinning & Weaving Co. Ltd. and others 15.)

    In Dwarkadas Shrinivas (supra), S.R. Das, J., in a separate but

    concurring judgment, held as under: –

    “… The true principle being that only a person who is directly
    affected by a law can challenge the validity of that law and that
    a person whose own right or interest has not been violated or
    threatened cannot impugn the law on the ground that
    somebody else’s right has been infringed, the same principle
    must prevail irrespective of the form of the proceeding in which
    the question of constitutionality is raised.”

    Equation of Posts

    21. It is well settled that it is not open to the Court to consider whether

    the equation of posts made by the competent authority is right or

    wrong. This is a matter exclusively within the province of the

    15 AIR 1954 SC 119
    Page 26 of 59

    (WPS No.3793/2018)

    executive unless it suffers from unreasonable perversity, mala fide

    manipulations and indefensible arbitrariness.

    22. The Supreme Court in the matter of T. Venkateswarulu v.

    Executive Officer, Tirumala Tirupathi Devasthanams and

    others16 has observed that the equation/equivalence of posts is the

    primary function of the executive and not the judiciary and,

    therefore, ordinarily courts do not enter upon the task of job

    evaluation which is generally left to expert bodies. The court will

    interfere only if there is cogent material on record and exercise of

    jurisdiction becomes necessary to undo the injustice and held in

    para-25 as under:-

    “25. It is well settled that equation of posts and
    determination of pay scales is the primary function of the
    executive and not the judiciary and, therefore, ordinarily courts
    do not enter upon the task of job evaluation, which is generally
    left to expert bodies as several factors have to be kept in view
    while evolving a pay structure. Being a complex matter, the
    court will interfere only if there is cogent material on record to
    come to a firm conclusion that a grave error has crept in such
    an exercise and court’s interference is absolutely necessary to
    undo the injustice being caused. (See Finance Deptt. v. W.B.
    Registration Service Assn.17)”

    23. Similarly, the M.P. High Court in the matter of Nathusingh

    Chouhan v. State of M.P. and another18 has considered the

    effect of equation of posts and observed that from the date of

    equation the new service conditions applicable to the new post will

    apply to those who are equated and absorbed into it, and held as

    under:-

    16 (2009) 1 SCC 546
    17 1993 Supp (1) SCC 153 : 1993 SCC (L&S) 157 : (1993) 24 ATC 403
    18 ILR 1974 MP 89
    Page 27 of 59

    (WPS No.3793/2018)

    “Equation of posts is a compendious expression to indicate the
    change in the service conditions of individual employees. It
    only means that from the date of equation the new service
    conditions applicable to the new post will apply to those who
    are equated and absorbed into it. Since section 95 of the Act
    permits change of service conditions, it was competent for the
    State Government to make rules under which such a change is
    effected, whatever be the expression used to bring about the
    change.”

    24. The Supreme Court in the matter of S.B. Mathur and others v.

    Chief Justice of Delhi High Court and others 19 while deciding

    the issue of equal status posts held that treating Superintendents,

    Court Masters (Readers) and Private Secretaries to Judges as equal

    status posts is valid and not arbitrary, and observed as under: –

    “11. … In appreciating this submission, it must be borne in
    mind that it is an accepted principle that where there is an
    employer who has a large number of employees in his service
    performing diverse duties, he must enjoy a certain measure of
    discretion in treating different categories of his employees as
    holding equal status posts or equated posts, as questions of
    promotion or transfer of employees inter se will necessarily
    arise for the purpose of maintaining the efficiency of the
    organisation. There is, therefore, nothing inherently wrong in
    an employer treating certain posts as equated posts or equal
    status posts provided that, in doing so, he exercises his
    discretion reasonably and does not violate the principles of
    equality enshrined in Articles 14 and 16 of the Constitution. It
    is also clear that for treating certain posts as equated posts or
    equal status posts, it is not necessary that the holders of these
    posts must perform completely the same functions or that the
    sources of recruitment to the posts must be the same nor is it
    essential that qualifications for appointments to the posts must
    be identical. All that is reasonably required is that there must
    not be such difference in the pay scales or qualifications of the
    incumbents of the posts concerned or in their duties or
    responsibilities or regarding any other relevant factor that it
    would be unjust to treat the posts alike or, in other words, that
    posts having substantially higher pay scales or status in service
    or carrying substantially heavier responsibilities and duties or
    otherwise distinctly superior are not equated with posts

    19 1989 Supp (1) SCC 34
    Page 28 of 59

    (WPS No.3793/2018)

    carrying much lower pay scales or substantially lower
    responsibilities and duties or enjoying much lower status in
    service.”

    Power of relaxation

    25. Power of relaxation is provided under Rule 45 of the Rules of 2017,

    which is similar to Rule 50 of the Chhattisgarh Municipal Service

    (Executive) Rules, 1973 (for short, ‘the Rules of 1973’), which states

    as under:-

    “45. Relaxation.-Save as otherwise provided in the Act and
    these Rules, the State Government may relax the provisions
    contained herein in individual cases in a manner that seems
    just and fair:

    Provided that in no case will the manner of dealing be
    lower than as provided in the Rules.”

    26. A careful perusal of the said Rule would show that the State

    Government has been conferred power to relax the provision of this

    rule in individual cases in a manner which is just and equitable.

    Proviso to the said rule provides that the cases shall not be dealt in

    the manner less favourable than provided in this rule. As such,

    power to relax the rules is available to the Government, but the

    power to relax is not a carte blanche to act on whims and fancies. A

    relaxation must be based on objective facts and must be granted to

    further the very service rules it seeks to serve and above all it must be

    in public interest.

    27. In the matter of Amrik Singh v. Union of India 20, their Lordships

    of the Supreme Court, while considering the similar rule granting

    relaxation i.e. Rule 3 of the All India Services (Conditions of Service

    20 (1980) 3 SCC 393
    Page 29 of 59

    (WPS No.3793/2018)

    and Residuary Matters) Rules, 1960, called for an objective

    satisfaction on the part of the Government before applying the rule

    regarding relaxation.

    28. Similarly, in the matter of J.C. Yadav v. State of Haryana 21, their

    Lordships of the Supreme Court have observed that many times such

    relaxation is granted because there may be a situation where

    requisite qualified persons may not be available for appointment to

    the service. In such a situation, the Government has power to relax

    requirement of the Rules. Their Lordships have further held that

    such rule of relaxation must receive a liberal construction as it is

    beneficial in nature and that it should not be interpreted in a manner

    to defeat the very object and purpose of such power.

    29. The judgment rendered in J.C. Yadav (supra) has been followed in

    the matter of Sandeep Kumar Sharma v. State of Punjab 22 and

    it has been held that rule of relaxation must get a pragmatic

    construction so as to achieve effective implementation of a good

    policy of the Government.

    Promotion – Not a vested right

    30. A Government servant has no right to be promoted, he has a right to

    be considered for promotion. This right to be considered for

    promotion is one of the “matters relating to employment or

    appointment” within the meaning of Article 16(1) of the Constitution

    of India.

    21 (1990) 2 SCC 189
    22 (1997) 10 SCC 298
    Page 30 of 59

    (WPS No.3793/2018)

    31. In the matter of Andhra Pradesh Dairy Development

    Corporation Federation v. B. Narasimha Reddy 23, their

    Lordships of the Supreme Court have clarified the meaning of vested

    right in para-39 which reads thus:-

    “39. Vested right has been defined as fixed; vested; accrued;
    settled; absolute; and complete; not contingent; not subject to
    be defeated by a condition precedent. The word `vest’ is
    generally used where an immediate fixed right in present or
    future enjoyment in respect of a property is created. It is a
    “legitimate” or “settled expectation” to obtain right to enjoy the
    property etc. (Vide: Mosammat Bibi Sayeeda & Ors., etc. v.
    State of Bihar & Ors., etc., AIR 1996 SC 1936; Howrah
    Municipal Corporation & Ors. v. Ganges Rope Co. Ltd. & Ors.
    ,
    (2004) 1 SCC 663; and J.S. Yadav v. State of Uttar Pradesh &
    Anr.
    , (2011) 6 SCC 570). “

    32. In the matter of Union of India and others v. Krishna Kumar

    and others24, their Lordships of the Supreme Court have observed

    at para-10 as under:-

    “10. … it is well settled that there is no vested right to
    promotion, but a right be considered for promotion in
    accordance with the Rules which prevail on the date on which
    consideration for promotion takes place. This Court has held
    that there is no rule of universal application to the effect that
    vacancies must necessarily be filled in on the basis of the law
    which existed on the date when they arose.”

    33. In the matter of Deepak Agarwal v. State of Uttar Pradesh 25,

    their Lordships of the Supreme Court have observed at paras-26 & 27

    as under:-

    “26. It is by now a settled proposition of law that a candidate
    has the right to be considered in the light of the existing rules,
    which implies the “rule in force” on the date the consideration
    took place. There is no rule of universal or absolute application
    that vacancies are to be filled invariably by the law existing on

    23 (2011) 9 SCC 286
    24 (2019) 4 SCC 319
    25 (2011) 6 SCC 725
    Page 31 of 59

    (WPS No.3793/2018)

    the date when the vacancy arises. The requirement of filling up
    old vacancies under the old rules is interlinked with the
    candidate having acquired a right to be considered for
    promotion. The right to be considered for promotion accrues
    on the date of consideration of the eligible candidates. Unless,
    of course, the applicable rule, as in Y.V. Rangaiah case [(1983)
    3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular
    time-frame, within which the selection process is to be
    completed. In the present case, consideration for promotion
    took place after the amendment came into operation. Thus, it
    cannot be accepted that any accrued or vested right of the
    appellants has been taken away by the amendment.

    27. The judgments cited by learned counsel for the
    appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar
    Rao Vs. State of Andhra Pradesh (Supra) and N.T. Devin Katti
    & Ors. Vs. Karnataka Public Service Commission & Ors
    (supra)
    are reiterations of a principle laid down in Y.V. Rangaiah’s case
    (supra).”

    Provision for promotion

    34. The condition of service must provide for promotional opportunities.

    The absence of promotional opportunities may amount to violation

    of Articles 14 & 16 of the Constitution of India. Promotion is a

    normal incidence of service. The provision for promotion increases

    efficiency of the public service while stagnation reduces efficiency

    and makes the service ineffective.

    35. Constitution of Municipalities

    35.1) The Municipalities are constituted as per the provisions

    contained in Section 5 of the Act of 1961. By virtue of Section 5 of the

    Act of 1961, there shall be constituted a Municipal Council for a

    smaller urban area and a Nagar Panchayat for a transitional area,

    that is to say, an area in transition from a rural area to an urban area

    by the State Government. By virtue of Section 18 of the Act of 1961,
    Page 32 of 59

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    every municipality constituted under Section 5 of the Act, shall be a

    body corporate by the name of the Municipal Council or Nagar

    Panchayat, as the case may be, and shall have perpetual succession

    and a common seal, with power to acquire and hold property, both

    movable and immovable and subject to the provisions of the Act or

    any rules made thereunder, to transfer any property held by it and to

    contract and to do all other things necessary for the purposes of the

    Act and may sue and be sued in its corporate name. Section 19 of the

    Act of 1961 provides for composition of Municipal Council or Nagar

    Panchayat which states that a Municipal Council or a Nagar

    Panchayat, shall consist of President, that is Chairperson, elected by

    direct election from the Municipal area; Councillors elected by direct

    election from the wards; and also consist of not more than four

    persons in the case of Municipal Councils and not more than two

    persons in the case of Nagar Panchayats having special knowledge or

    experience in Municipal Administration nominated by the State

    Government.

    35.2) Chief Municipal Officer: The Chief Municipal Officer is the

    principal executive officer of the Municipality who is appointed

    under Section 87 of the Act of 1961. The State Government may, for

    the purpose of providing officers to the Council under Section 87 or

    88, constitute in the prescribed manner, the Municipal Services for

    the State to be called – State Municipal Service (Executive), State

    Municipal Service (Health) and State Municipal Service

    (Engineering) under Section 86 of the Act of 1961. By virtue of
    Page 33 of 59

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    Section 86(2) of the Act of 1961, the State Government may make

    rules in respect of recruitment, qualification, appointment,

    promotion, etc., and other service conditions of the members of the

    State Municipal Service. By virtue of Section 86(3), the salary,

    allowances, gratuity, annuity, pension and other payments required

    to be made to the members of the State Municipal Service in

    accordance with the conditions of their service shall be a charge on

    the Municipal Fund and the members of the State Municipal Service

    are transferable from one Council to another.

    35.3) Section 87(1) of the Act of 1961 provides that there shall be a

    Chief Municipal Officer to every Council who shall be the principal

    executive officer of the Council and all other officers and servants of

    the Council shall be subordinate to him. By virtue of sub-section (2)

    of Section 87, the Chief Municipal Officer of a Council shall be a

    member of the State Municipal Service (Executive) and shall be

    appointed by the State Government.

    36. Municipal servants under Sections 94(2) and 94(4) of the

    Act of 1961

    The appointment of Revenue Officer is governed by Section

    94(2) of the Act of 1961, as by virtue of Section 94(2), every Council

    not falling under sub-section (1) shall, subject to rules framed under

    Section 95, appoints a Revenue Inspector and such other officers and

    servants as may be necessary and proper for the efficient discharge of

    its duties, and by virtue of Section 94(4), the appointment of

    Revenue Officer and other officers by the Council is subject to
    Page 34 of 59

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    confirmation by the State Government and they are transferable by

    the order of the State Government under Section 94(7) of the Act of

    1961.

    37. Section 95 of the Act of 1961 confers power upon the State

    Government to make rules in respect of qualification, recruitment,

    appointment, leave, scale of pay and other service conditions for

    Municipal employees other than a member of the State Municipal

    Service. Similarly, Section 355 also confers power upon the State

    Government, in addition to any power specially conferred by this Act,

    to prescribe forms and make rules generally for the purpose of

    carrying into effect the provisions of this Act. By virtue of Section

    355(2)(iv)(a), the State Government may make rules for constitution

    of Municipal service for the State and recruitments and

    appointments thereto.

    38. The Chhattisgarh Municipal Service (Executive) Rules, 1973

    38.1) In exercise of the powers conferred by sub-section (1) and item

    (b) of clauses (iv) and (v) of sub-section (2) of Section 355 read with

    Section 86 of the Act of 1961, the State Government had framed the

    rules known as the Chhattisgarh Municipal Service (Executive)

    Rules, 1973 for constitution of Municipal service for the State and the

    State Municipal Service (Executive) shall consist of Four Classes,

    namely, Select Grade, Class I, II and III. Rule 5 of the Rules of 1973

    provides Method of recruitment. Clause (c) of sub-rule (1) of Rule 5

    provides that the filling up of vacancies in all classes of Municipal

    Councils by direct recruitment and by promotion shall be as shown
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    in the Second Schedule. The Second Schedule of the Rules of 1973

    states that the post of Chief Municipal Officer Class II and Class III

    will be filled 50% by direct recruitment and 50% by promotion,

    however, Select Grade and Class I posts shall be filled 100% by

    promotion.

    38.2) Thus, it states that the posts of Chief Municipal Officer Class II

    and Class III shall be filled 50% by promotion i.e. by promotion from

    amongst CMOs of Class C Municipal Councils, Revenue Inspectors of

    Select Grade, Class I and Class II Municipal Councils, having

    experience of at least 7 years of the respective posts of CMO/Revenue

    Inspector. As such, CMOs of Class C Municipal Councils and

    Revenue Inspectors of Select Grade, Class I and Class II Municipal

    Councils having experience of at least 7 years on the respective posts

    of CMO/Revenue Inspector were also held entitled for promotion on

    the post of Chief Municipal Officer Class II. The relevant portion of

    the rule as mentioned in the Second Schedule states as under: –

    “By promotion of CMOs of Class C Municipal Councils,
    Revenue Inspectors of Select Grade, Class I and Class II MCs,
    having experience of at least 7 years of the respective posts of
    CMO/Revenue Inspector.”

    38.3) These Rules were repealed by the Rules of 2017, which came

    into force with effect from 10-10-2017.

    The Chhattisgarh Municipal Services (Scale of Pay and

    Allowances) Rules, 1967

    39. In exercise of the powers conferred by sub-section (1) and item (b) of

    clause (iv) of sub-section (2) of Section 355 read with Section 95 of
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    the Act of 1961, the State Government has framed the rules known as

    the Chhattisgarh Municipal Services (Scale of Pay and Allowances)

    Rules, 1967 (for short, ‘the Rules of 1967’) which classify Municipal

    Councils as Class A, AA, B and C depending upon their annual

    income. Rule 7 of the Rules of 1967 provides for Equation of posts

    and it prescribes that the present posts in each Municipal Council

    will be equated with the posts mentioned in Schedule III as per

    Schedule IV and the State Government will have the power to add,

    delete or make any amendment in the equation of the post made and

    shown in Schedule IV after consulting the Municipal Council

    concerned.

    The Chhattisgarh Municipal Employees (Recruitment and

    Conditions of Service) Rules, 1968

    40. Thereafter, the State Government in exercise of the powers conferred

    by sub-section (1) of Section 355 read with Section 95 of the Act of

    1961, has framed the rules known as the Chhattisgarh Municipal

    Employees (Recruitment and Conditions of Service) Rules, 1968,

    defining “Municipal Employee” means a person appointed to or

    borne on the cadre of the Municipal staff other than a member of the

    State Municipal Service (Executive) and “Municipal service” means

    the service or group of posts in connection with the affairs of the

    Municipality other than the State Municipal Service (Executive). The

    qualification required for appointment to the various categories of

    posts by direct recruitment or otherwise shall be as specified in

    Schedule III appended to the Rules of 1967.

    Page 37 of 59

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    74th Amendment in the Constitution

    41. The Constitution of India was amended by the 74 th Amendment with

    effect from 1-6-1993 and the Municipalities have been conferred with

    the constitutional status and the Municipalities are now part of the

    Constitution as Part IXA. Article 243P of the Constitution creates

    municipalities as institutions of self-government, which are to be

    constituted in terms of Article 243Q. Under Article 243Q of the

    Constitution, municipalities are constituted. Article 243Q(1) of the

    Constitution states as under: –

    “243Q. Constitution of Municipalities.–(1) There shall be
    constituted in every State,–

    (a) a Nagar Panchayat (by whatever name called) for a
    transitional area, that is to say, an area in transition from a
    rural area to an urban area;

    (b) a Municipal Council for a smaller urban area; and

    (c) a Municipal Corporation for a larger urban area,

    in accordance with the provisions of this Part:

    Provided that a Municipality under this clause may not
    be constituted in such urban area or part thereof as the
    Governor may, having regard to the size of the area and the
    municipal services being provided or proposed to be provided
    by an industrial establishment in that area and such other
    factors as he may deem fit, by public notification, specify to be
    an industrial township.”

    42. Article 243W of the Constitution prescribes powers, authority and

    responsibilities of Municipalities, etc.. It provides for twin purposes

    for municipalities, (i) preparation of plans for economic development

    and social justice; and (ii) the performance of functions and the

    implementation of schemes as may be entrusted to them including
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    those in relation to the matters listed in the Twelfth Schedule. The

    Twelfth Schedule of the Constitution enumerates eighteen items

    listed within the ambit of the twin purposes mentioned in Article

    243W. Municipal Services whether executive or non-executive exist

    to carry out the mandate of Article 243W read with the Twelfth

    Schedule of the Constitution. However, the Rules of 1967, the Rules

    of 1968 and the Rules of 1973, though repealed by the Rules of 2017,

    were created before the 74th Constitutional Amendment, but

    protected by Article 243ZF of the Constitution, which provides for

    Continuance of existing laws and Municipalities. In accordance with

    the 74th Constitutional Amendment, the Act of 1961 was suitably

    amended by the State Government.

    The Chhattisgarh State Municipal (Executive/Engineering/

    Health) Services, Recruitment and Conditions of Service

    Rules, 2017

    43. In exercise of the powers conferred by Section 86 read with sub-

    section (2) of Section 355 of the Act of 1961, the State Government

    has made the rules relating to the terms and conditions of the service

    of Chhattisgarh State Municipal (Executive/Engineering/Health)

    Services known as the Chhattisgarh State Municipal (Executive/

    Engineering/Health) Services, Recruitment and Conditions of

    Service Rules, 2017, repealing the Rules of 1973. It provides that

    persons enumerated in Rule 3 of the Rules of 2017 shall be included

    in the service and method recruitment has been specified in Rule 6

    which provides that recruitment to the service will be done by direct
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    (WPS No.3793/2018)

    recruitment, by promotion of members of the service and by

    transfer/deputation. Rule 15(1) of the Rules of 2017 provides as

    under: –

    “15. Conditions of eligibility for promotion.-(1) Subject
    to the provisions of sub-rule (2) the Committee shall consider
    the cases of all persons who on first day of January of that year
    had completed such number of years of service (whether
    officiating or substantive) in the posts, from which promotion
    is to be made or in any other post or posts declared equivalent
    thereto by the Government, as specified in column (3) of
    Schedule-IV and are within the zone of consideration in
    accordance with the provisions of sub-rule (2).”

    44. A careful perusal of Rule 15(1) of the Rules of 2017 would provide

    that subject to the provisions of sub-rule (2), the Committee shall

    consider the cases of all persons who on first day of January of that

    year had completed such number of years of service in the posts,

    from which promotion is to be made or in any other post or posts

    declared equivalent thereto by the Government, as specified in

    column (3) of Schedule-IV and are within the zone of consideration

    in accordance with the provisions of sub-rule (2). As such, power has

    been conferred to the State Government to declare any post

    equivalent as specified in column (3) of Schedule-IV of the Rules of

    2017, which states as under: –

    Schedule-IV
    (See rule 14 and 15)

    S. Name of the service or post Minimum period Name of service Departmental Remarks
    No. from which promotion to required to or post to which promotion
    be made qualifying for promotion is to committee
    promotion to the be made
    next higher post
    (1) (2) (3) (4) (5) (6)

    1. Chief Municipal Officer, 06 years Chief Municipal 1. Chairman,
    Class “A” Officer, Class Public Service
    Page 40 of 59

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    “AA” Commission or his
    nominee:

    2. Chief Municipal Officer, 06 years Chief Municipal
    Class “B” and Revenue Officer, Class

    -Chairman
    Officers in Municipal “A”

    Council/Nagar Panchayat

    2. Principal

    3. Chief Municipal Officer, 06 years Chief Municipal Secretary/
    Class “C” and Revenue Officer, Class Secretary/Special
    Inspectors “AA/A/B/” “B” Secretary
    (Independent

    4. Office Superintendent, Office Chief Municipal
    Charge), Urban
    Revenue Inspector Class Superintendent, Officer,
    Administration
    “C”, Deputy Revenue (10 years) Class”C”

    and Development
    Inspector, Assistant Grade- Revenue
    Department
    II, Head Clerk, Head Clerk Inspector Class
    cum Accountant, “C” (7 years),

    -Member
    Accountant Grade-II Deputy Revenue
    Inspector (9

    3. Commissioner/
    years), Assistant
    Director,
    Grade-II, Head
    Directorate of
    Clerk, Head
    Urban Admin and
    Clerk cum
    Development
    Accountant,
    Department
    Accountant
    Grade-II (10

    -Member
    years)

    5. Superintendent Engineer 5 years Chief Engineer 4. Representative
    of Scheduled

    6. Executive Engineer 5 years Superintendent
    Caste/Scheduled
    Engineer
    Tribe

    -Member

    45. The aforesaid Rule 15 read with column (3) of Schedule-IV of the

    Rules of 2017, would show that the post of Revenue Inspectors

    “AA/A/B” are made equivalent to the post of Chief Municipal Officer,

    Class “C” who should have minimum qualifying service of 6 years on

    the said posts and Chief Municipal Officer, Class “C” and Revenue

    Inspectors “AA/A/B” of Municipal Councils both are eligible to be

    promoted as Chief Municipal Officer, Class “B”.

    Pleadings in challenging the constitutional validity of law

    46. The petitioners in the writ petition have not made specific averment

    while challenging the constitutional validity of column (3) of

    Schedule-IV enacted under Rules 14 & 15 of the Rules of 2017. The

    petitioners ought to have made specific pleadings to challenge the
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    Rule. The petitioners have not alleged lack of competence on the

    part of the State Government to enact the Rules of 2017.

    47. In the matter of Haji Abdul Gani Khan and another v. Union

    of India and others26, their Lordships of the Supreme Court have

    clearly held that when a party wants to challenge constitutional

    validity of a statute, he must plead in detail grounds on which

    validity of statute is sought to be challenged and in absence of

    specific pleadings to that effect, court cannot go into issue of validity

    of statutory provisions. It was further held by their Lordships that

    constitutional courts cannot interfere with law made by legislature

    unless it is specifically challenged by incorporating specific grounds

    of challenge in pleadings, reason is that there is always a

    presumption of constitutionality of laws. Burden is always on person

    alleging unconstitutionality to prove it. For that purpose, challenge

    has to be specifically pleaded by setting out specific grounds on

    which challenge is made. A constitutional court cannot casually

    interfere with legislation made by a competent legislature only by

    drawing an inference from pleadings that challenge to validity is

    implicit. It was also held by their Lordships that State gets a proper

    opportunity to defend legislation only if State is made aware of

    grounds on which legislation is sought to be challenged.

    48. Similar proposition has been laid down by the Supreme Court in the

    matters of Union of India and others v. Manjurani Routray

    and others27, State of Kerala and others v. Shibu Kumar
    26 (2023) 11 SCC 432
    27 (2023) 9 SCC 144
    Page 42 of 59

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    P.K. and another28 and Ashutosh Gupta v. State of Rajasthan

    and others29.

    49. Similarly, in the matter of Sant Lal Bharti v. State of Punjab 30

    the Supreme Court has held that a petition challenging the

    constitutional validity of certain provisions must be in the context of

    certain facts and not in abstract or vacuum.

    Prescription of eligibility is prerogative of the employer

    50. It is a well settled proposition of law that prescribing condition of

    service and promotional avenues is prerogative of the employer

    unless it suffers from patent illegality and manifest arbitrariness.

    Similar view has been taken by the Supreme Court in the matters of

    Dwarka Prasad and others v. Union of India and others 31,

    State of Maharashtra and another v. Chandrakant Anant

    Kulkarni and others32, Air Commodore Naveen Jain v.

    Union of India and others33, P.U. Joshi and others v.

    Accountant General, Ahmedabad and others34, State of

    Jammu and Kashmir v. Shri Triloki Nath Khosa and

    others35, T.R. Kothandaraman and others v. Tamil Nadu

    Water Supply & Drainage BD and others36, M.

    Rathinaswami and others v. State of Tamil Nadu and

    28 (2019) 13 SCC 577
    29 (2002) 4 SCC 34
    30 (1988) 1 SCC 366
    31 (2003) 6 SCC 535
    32 (1981) 4 SCC 130
    33 (2019) 10 SCC 34
    34 (2003) 2 SCC 632
    35 (1974) 1 SCC 19
    36 (1994) 6 SCC 282
    Page 43 of 59

    (WPS No.3793/2018)

    others37, Union of India v. Pushpa Rani and others 38,

    Maharashtra Public Service Commission v. Sandeep

    Shriram Warade39 and Chief Manager, Punjab National

    Bank and another v. Anit Kumar Das40.

    To provide channels of promotion is the right of the

    Government

    51. The Supreme Court in the matter of Govt. of T.N. and another v.

    S. Arumugham and others41 relying upon its two earlier decisions

    has held that the Government has a right to frame a policy to ensure

    efficiency and proper administration and to provide suitable

    channels of promotion to officers working in different departments

    and offices, and observed as under: –

    “10. … The Government has a right to frame a policy to
    ensure efficiency and proper administration and to provide
    suitable channels of promotion to officers working in different
    departments and offices. In Indian Rly. Service of Mechanical
    Engineers’ Assn. v. Indian Rly. Traffic Service Assn. 42 this
    Court reiterated that the correctness of a policy should not be
    questioned by the Tribunal. The appellants in their affidavit
    before the Tribunal have given in detail the history of these
    provisions and the justification for these provisions in the
    interests of efficiency and proper administration. The Tribunal
    cannot substitute its own views for the views of the
    Government or direct a new policy based on the Tribunal’s view
    of how the allocation should be made. The three groups which
    have been formed as far back as in 1977 for the purposes of
    allocation consist of officers performing different functions and
    having different prospects and different avenues of promotion.
    They cannot be equated for the purpose of Articles 14 or 16. In
    the case of Govind Dattatray Kelkar v. Chief Controller of

    37 (2009) 5 SCC 625
    38 (2008) 9 SCC 242
    39 (2019) 6 SCC 362
    40 (2021) 12 SCC 80
    41 (1998) 2 SCC 198
    42 1993 Supp (4) SCC 473 : 1994 SCC (L&S) 237 : (1994) 26 ATC 352
    Page 44 of 59

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    Imports & Exports43 this Court held that the concept of equality
    in the matter of promotion can be predicated only when
    promotees are drawn from the same source. …”

    52. It is well settled law that mere chances of promotion are not

    conditions of service and the fact that there was reduction in the

    chances of promotion did not tantamount to a change in the

    conditions of service. A right to be considered for promotion is a

    term of service, but mere chances of promotion are not. {See

    Chandrakant Anant Kulkarni‘s case (supra), Union of India

    and others v. S.L. Dutta and anothers 44 and Panchraj Tiwari

    v. Madhya Pradesh State Electricity Board and others 45.)

    FINDINGS AND ANALYSIS

    Answer to Question No.1

    53. As already noticed in the foregoing paragraphs, by virtue of Section

    19 of the Act of 1961, a Municipal Council or a Nagar Panchayat shall

    consist of President, that is Chairperson, elected by direct election

    from the Municipal area; Councillors elected by direct election from

    the wards; and not more than four persons in the case of Municipal

    Councils and not more than two persons in the case of Nagar

    Panchayats having special knowledge or experience in Municipal

    Administration nominated by the State Government. By virtue of

    Section 87(1) of the Act of 1961, the Chief Municipal Officer of every

    Council would be the principal executive officer of the Council, who

    has to be appointed by the State Government by virtue of Section

    43 AIR 1967 SC 839 : (1967) 2 SCR 29 : (1967) 1 LLJ 691
    44 (1991) 1 SCC 505
    45 (2014) 5 SCC 101
    Page 45 of 59

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    87(2) by framing rule under Section 87 of the Act of 1961. As such,

    the Chief Municipal Officer including the Chief Municipal Officer

    Grade-C are to be appointed by the State Government and they hold

    civil post under the State as held by the M.P. High Court in Suresh

    Chandra Sharma (supra). Similarly, a Revenue Inspector is a

    Municipal servant appointed under Section 94(2) of the Act of 1961

    by the Municipal Council subject to confirmation by the State

    Government under Section 94(4) and thus, he is a Municipal servant

    and a Municipal servant cannot be suspended for a period exceeding

    one month without previous approval of the State Government.

    Similarly, by virtue of Section 86(4) of the Act of 1961, the State

    Government is empowered to transfer any member of the State

    Municipal Service from one Council to another Council and similarly,

    by virtue of Section 94(7), the State Government may transfer any

    officer or servant of a Council mentioned in sub-sections (1) and (2)

    to any other Council. As such, the Chief Municipal Officer of every

    Council, who happens to be the principal executive officer of the

    Council appointed by the State Government under Sections 86 and

    87 of the Act of 1961, shall be a member of the State Municipal

    Service (Executive).

    54. The Legislature has conferred power upon the State Government to

    make rules for the purpose of providing Chief Municipal Officers,

    Health Officers and Engineers to Municipal Councils for the purpose

    of which the State Municipal Service (Executive) was enacted by the

    Rules of 1973, which have now been repealed and the Rules of 2017
    Page 46 of 59

    (WPS No.3793/2018)

    have been brought into force. The earlier Rules of 1973 which have

    now been repealed by the Rules of 2017 enacted in exercise of the

    powers conferred by Section 86 read with sub-section (2) of Section

    355 of the Act of 1961. The Second Schedule enacted under clause (c)

    of sub-rule (1) of Rule 5 of the Rules of 1973 provided that the posts

    of Chief Municipal Officer Class II shall be filled 50% by promotion

    from amongst CMOs of Class C Municipal Councils, Revenue

    Inspectors of Select Grade, Class I and Class II Municipal Councils,

    having experience of at least 7 years of the respective posts of

    CMO/Revenue Inspector, as noticed herein-above.

    55. The Rules of 2017 were enacted in exercise of powers conferred

    under Sections 86(2) and 355(iv) of the Act of 1961. The object of the

    Rules of 2017 is to recruit and provide Chief Municipal Officers to the

    Municipalities constituted under Section 5 of the Act of 1961.

    56. A careful perusal of Rule 15(1) of the Rules of 2017, which has already

    been reproduced in the preceding paragraph, would provide that

    subject to the provisions of sub-rule (2), the Committee, as per rules,

    shall consider the cases of all persons who on first day of January of

    that year had completed such number of years of service (whether

    officiating or substantive) in the posts, from which promotion is to be

    made or in any other post or posts declared equivalent thereto by the

    Government, as specified in column (3) of Schedule-IV and are

    within the zone of consideration in accordance with the provisions of

    sub-rule (2). As such, the aforesaid rule clearly directs that apart

    from the persons who are already in the feeder cadre of CMO, the
    Page 47 of 59

    (WPS No.3793/2018)

    rule-making authority/State Government is empowered to include in

    the feeder cadre any other post or posts declared equivalent thereto

    by the State Government, as specified in column (3) of Schedule-IV

    and therefore Revenue Inspectors AA/A/B of Municipal Council(s)

    have been declared equivalent to that of Chief Municipal Officers

    Class-C for the feeder cadre for the promotional post of Chief

    Municipal Officer Class-B. Therefore, Rule 15(1) of the Rules of 2017

    being enabling provision empowers the State Government to provide

    equivalence to the posts for the purpose of constituting the feeder

    cadre for promotion and the constitutional validity of Rule 15(1) of

    the Rules of 2017 i.e. power to make equivalence has not been

    questioned by the petitioners for the good reasons known to them

    which empowers the Government to declare any post in column (3)

    of Schedule-IV as to who are entitled to be promoted and in column

    (3) of Schedule-IV, the Revenue Inspectors AA/A/B who have

    completed 6 years of service on that post are also included in the

    feeder cadre to be considered and promoted to the post of Chief

    Municipal Officer, Class B. Thus, column (3) of Schedule-IV of the

    Rules of 2017 provides for multiple feeder cadres for promotion to

    the post of Chief Municipal Officer Class-B.

    57. The Supreme Court in Aphali Pharmaceuticals Ltd. (supra) held

    that a Schedule in an Act of Parliament is a mere question of

    drafting. It is the legislative intent that is material. Their Lordships

    further held as under: –

    Page 48 of 59

    (WPS No.3793/2018)

    “31. A Schedule in an Act of Parliament is a mere question of
    drafting. It is the legislative intent that is material. An
    Explanation to the Schedule amounts to an Explanation in the
    Act itself. As we read in Halsbury’s Laws of England, Third
    Edn., Vol. 36, para 55146:

    “To simplify the presentation of statutes, it is the practice
    for their subject-matter to be divided, where appropriate,
    between sections and Schedules, the former setting out
    matters of principle, and introducing the latter, and the
    latter containing all matters of detail. This is purely a
    matter of arrangement, and a Schedule is as much a part
    of the statute, and as much an enactment, as is the section
    by which it is introduced.”

    The Schedule may be used in construing provisions in the body
    of the Act. It is as much an act of legislature as the Act itself
    and it must be read together with the Act for all purposes of
    construction. Expressions in the Schedule cannot control or
    prevail against the express enactment and in case of any
    inconsistency between the Schedule and the enactment, the
    enactment is to prevail and if any part of the Schedule cannot
    be made to correspond it must yield to the Act. Lord Sterndale,
    in IRC v. Gittus47 said: (at p. 576)

    “It seems to me there are two principles or rules of
    interpretation which ought to be applied to the
    combination of Act and Schedule. If the Act says that the
    Schedule is to be used for a certain purpose and the
    heading of the part of the Schedule in question shows that
    it is prima facie at any rate devoted to that purpose, then
    you must read the Act and the Schedule as though the
    Schedule were operating for that purpose, and if you can
    satisfy the language of the section without extending it
    beyond that purpose, you ought to do it. But if in spite of
    that you find in the language of the Schedule words and
    terms that go clearly outside that purpose, then you must
    give effect to them and you must not consider them as
    limited by the heading of that part of the Schedule or by
    the purpose mentioned in the Act for which the Schedule
    is prima facie to be used. You cannot refuse to give effect
    to clear words simply because prima facie they seem to be
    limited by the heading of the Schedule and the definition
    of the purpose of the Schedule contained in the Act.”

    46 Ed.: See in Fourth Edition, Vol. 44, para 822
    47 (1920) 1 KB 563
    Page 49 of 59

    (WPS No.3793/2018)

    32. The above observation was not disapproved in appeal in
    Gittus v. IRC48. However, the basic principle is that in case of a
    conflict between the body of the Act and the Schedule, the
    former prevails. In the instant case, we do not find any such
    conflict.”

    58. In the present case, the petitioners have questioned the

    constitutional validity of column (3) of Schedule-IV of the Rules of

    2017. Column (3) of Schedule-IV of the Rules of 2017 is in

    accordance with Rule 15(1) of the Rules of 2017 by which the post of

    Revenue Inspector AA/A/B has been equated to that Chief Municipal

    Officer Class-C empowering both of them to be promoted on the post

    of Chief Municipal Officer Class-B. As such, column (3) of Schedule-

    IV of the Rules of 2017 is in accordance with Rule 15(1) of the Rules

    of 2017 and it is the power of the State Government by virtue of sub-

    rule (1) of Rule 15 to equate the post and to make multiple feeder

    cadre for promotion to the post of Chief Municipal Officer Class-B.

    59. The Supreme Court in S. Arumugham‘s case (supra) has held that

    the Government has a right to frame a policy to ensure efficiency and

    proper administration and to provide suitable channels of promotion

    to officers working in different departments and offices. Their

    Lordships relying upon the earlier decision of the Supreme Court in

    Govind Dattatray Kelkar (supra) further held that the concept of

    equality in the matter of promotion can be predicated only when

    promotees are drawn from the same source.

    60. As noticed in the preceding paragraphs, it is well settled that the

    determination of the source of promotion to any particular post falls

    48 (1921) 2 AC 81
    Page 50 of 59

    (WPS No.3793/2018)

    squarely within the domain of the rule-making authority. While

    exercising such power, the authority is required to take into

    consideration various relevant factors, including the functional needs

    of the post in question, administrative efficiency and the overall

    organisational structure of the department. In order to ensure

    smooth administration and to maintain institutional discipline, the

    rule-making authority, in its wisdom, prescribes the feeder cadre and

    the channel of promotion through the applicable service rules framed

    for that purpose. It is equally within the prerogative of the rule-

    making authority to prescribe one or more feeder cadres for a

    particular promotional post, depending upon the nature of duties

    attached to the post and the administrative framework of the

    department. The rule-making authority may, for valid

    administrative reasons, provide that promotion to a higher post may

    be made from multiple cadres possessing comparable qualifications,

    experience or functional relevance. Such determination is essentially

    a matter of policy and lies within the exclusive domain of the rule-

    making authority. Once the service rules clearly specify and identify

    the feeder cadre from which promotions are to be effected, the same

    must necessarily govern the field and be strictly adhered to by all

    concerned. The rules, having been framed in exercise of statutory

    rule-making powers, carry binding force and are required to be

    implemented as they stand, unless they are amended, modified or

    declared invalid by a competent court of law.

    Page 51 of 59

    (WPS No.3793/2018)

    61. It is equally well settled that no employee can claim, as a matter of

    right, that a particular cadre should be treated as the sole or exclusive

    feeder cadre for the purpose of filling up a promotional post, unless

    such a claim is specifically supported by the governing service rules.

    The right of promotion, if any, is always subject to the conditions and

    eligibility criteria prescribed under the applicable rules, and an

    employee can only claim consideration for promotion in accordance

    with those rules.

    62. Therefore, in light of the above discussion, it is not open to the

    petitioners to insist that Chief Municipal Officer, Class-C alone must

    be treated as the feeder cadre or that the promotional post must

    necessarily be filled from that cadre (Chief Municipal Officer, Class-

    C) and Revenue Inspectors AA/A/B should not constitute feeder

    cadre. The State, as a model employer, retains the prerogative to

    prescribe eligibility criteria and multiple feeder cadre for the

    promotional post of Chief Municipal Officer Class-B and such policy

    decision is not subject to judicial interference unless the same is not

    patently arbitrary, discriminatory or in violation of constitutional

    provisions.

    63. It is well settled that the employer is vested with the discretion to

    treat different categories of posts as holding equal or equivalent

    status for the purpose of promotion. In this regard, it is further well

    settled from the decision of the Supreme Court in S.B. Mathur

    (supra) that the discretion vested in the employer to equate posts

    must be exercised in a reasonable and non-arbitrary manner,
    Page 52 of 59

    (WPS No.3793/2018)

    consistent with the mandate of Articles 14 and 16 of the Constitution

    of India. It is not necessary that the posts so equated should involve

    identical functions, emanate from the same source of recruitment, or

    prescribe the same qualifications for appointment. The governing

    consideration is that there should not exist such substantial

    differences in pay scales, qualifications, duties, or responsibilities as

    would render the equation of posts unjust or irrational.

    64. In view of the foregoing discussion, it is held that the authority to

    equate different categories of posts, for the purpose of constituting

    one or more feeder cadres for promotion, lies exclusively within the

    domain of the executive or the rule-making authority. Consequently,

    such determination, in the instant case equating the posts of Revenue

    Inspector AA/A/B to that of Chief Municipal Officer Class-C, being a

    matter of policy and administrative discretion, would not warrant

    judicial interference, as it is neither shown to be arbitrary or

    unreasonable nor contrary to the statutory provisions.

    65. At this stage, the submission of learned Senior Counsel appearing on

    behalf of the petitioners deserves to be noticed. The sole submission

    of the petitioners is that the petitioners, who are Chief Municipal

    Officers, are holding the civil post under the State as held by the Full

    Bench of M.P. High Court in Suresh Chandra Sharma (supra),

    whereas the private respondents are Municipal servants appointed

    under Section 94(2) of the Act of 1961, as the CMOs are governed by

    the Rules of 2017 and the Municipal servants are governed by the

    Rules of 1968, thus, the Municipal servants/Revenue Inspectors
    Page 53 of 59

    (WPS No.3793/2018)

    cannot be merged into the cadre of CMO Class-C. As we have already

    held herein-above, the Government is entitled to provide multiple

    feeder cadre for promotion, as the Municipality is a constitutional

    body after the 74th Amendment in the Constitution and the

    Municipality has to discharge twin purposes i.e. (i) preparation of

    plans for economic development and social justice; and (ii) the

    performance of functions and the implementation of schemes as may

    be entrusted to them including those in relation to the matters listed

    in the Twelfth Schedule, as enumerated in Article 243W of the

    Constitution, which prescribes powers, authority and responsibilities

    of Municipalities, etc., and for good governance of the Municipalities,

    in accordance with Section 86 of the Act of 1961, the CMOs are to be

    appointed. By virtue of Rule 15(1) of the Rules of 2017, the State

    Government has the power of equivalence of posts and as such, the

    argument that Revenue Inspectors cannot be merged into the cadre

    of CMO Class-C deserves to be rejected, as in S.B. Mathur (supra),

    the Supreme Court has held that there is nothing inherently wrong in

    an employer treating certain posts as equated posts or equal status

    posts, and further held that for treating certain posts as equated

    posts or equal status posts, it is not necessary that the holders of

    these posts must perform completely the same functions or that the

    sources of recruitment to the posts must be the same nor is it

    essential that qualifications for appointments to the posts must be

    identical. As such, the argument of learned Senior Counsel for the

    petitioners deserves to be rejected and it is accordingly, rejected.
    Page 54 of 59

    (WPS No.3793/2018)

    66. Similarly, the submission made on behalf of the petitioners that

    prolonged existence of an unconstitutional provision does not confer

    validity relying upon the decision of the Supreme Court in Motor

    General Traders (supra) also deserves to be rejected, as the Rules

    of 1973 providing feeder cadre for Revenue Inspectors and CMOs for

    promotion on the post of CMO Class-B, remained in force and the

    same were repealed only by the Rules of 2017. Thus, this argument

    also has no merit and deserves to be rejected. It is accordingly,

    rejected.

    67. It is a settled principle of law that the Schedule of the Rules has to be

    in conformity with, and is required to advance the object of the

    primary statutory provision. Thus, a schedule cannot in any way

    wipe out the statutory provisions of the Act in effect and spirit. {See

    Jagdish Prasad (supra).}

    68. Not only this, there are other grounds for not entertaining the plea

    challenging the constitutional validity of column (3) of Schedule-IV

    of the Rules of 2017. The petitioners, who, at the time of filing writ

    petition, were holding the post of Chief Municipal Officer Class-C,

    now stood promoted to the post of Chief Municipal Officer Class-B

    and as a matter of right, they have questioned the constitutional

    validity of the said Schedule without indicating as to in what manner

    their legal or constitutional rights are violated, as pleading in this

    regard is absolutely vague and there is no pleading at all to that

    effect. It is not the case of the petitioners that there is lack of

    competence on the part of the State Government to frame the rules
    Page 55 of 59

    (WPS No.3793/2018)

    particularly, column (3) of Schedule-IV of the Rules of 2017

    providing multiple feeder cadre for promotion on the post of Chief

    Municipal Officer Class B, including Revenue Inspectors AA/A/B. As

    such, the petitioners did not plead in detail the specific grounds on

    which they wish to question the constitutional validity of column (3)

    of Schedule-IV of the Rules of 2017, which is sine qua non for

    questioning the constitutional validity of a rule as held by the

    Supreme Court in Haji Abdul Gani Khan (supra) and it has been

    questioned in vacuum.

    69. Even otherwise, it has already been held in the foregoing paragraphs

    that reduction in chances of promotion is not a condition of service

    or fundamental right of the petitioners, only the right to be

    considered objectively and fairly is the fundamental right of a

    Government servant. The petitioners even did not plead specifically

    that by including Revenue Inspectors AA/A/B in the feeder cadre,

    their chances of promotion have reduced and/or likely to be reduced.

    The constitutional validity of rule cannot be questioned in abstract or

    vacuum as held by the Supreme Court in Sant Lal Bharti (supra).

    As such locus standi to challenge the constitutional validity of a rule,

    the petitioners could not demonstrate that their legal, constitutional

    or fundamental rights are effected by the impugned rule i.e. column

    (3) of Schedule-IV of the Rules of 2017 in line with the decisions of

    the Supreme Court in D.K. Nabhirajiah (supra) and Dwarkadas

    Shrinivas (supra), as they have not pleaded and established that

    column (3) of Schedule-IV of the Rules of 2017 is directly affecting
    Page 56 of 59

    (WPS No.3793/2018)

    them. As already held, mere reduction in chances of promotion

    would not be a condition of service and thereby no legal,

    constitutional or fundamental right of the petitioners are

    affected/prejudiced.

    70. The decisions cited by learned Senior Counsel appearing on behalf of

    the petitioners namely, Ayodhya Prasad Mishra‘s case (supra),

    Rajinder Singh‘s case (supra), Naresh Chandra Agrawal

    (supra) and Charanjit Lal Chowdhury (supra), are quite

    distinguishable to the facts of the present case.

    71. In view of the above, we are of the considered opinion that the

    petitioners could not demonstrate that column (3) of Schedule-IV of

    the Rules of 2017 is constitutionally ultra vires and violative of their

    legal and fundamental right. As such, challenge to the constitutional

    validity of the said rule is hereby repelled. Question No.1 is answered

    accordingly.

    Answer to Question No.2

    72. By the order Annexure P-1, the State Government in exercise of its

    power conferred under Rule 45 of the Rules of 2017 relaxed the

    qualifying service provided in Schedule-IV, column (3), from 6 years

    to 5 years for one time, which is sought to be challenged by the

    petitioners as unconstitutional and contrary to the power conferred

    to the State Government under Rule 45 of the Rules of 2017. For the

    sake of convenience, order dated 2-2-2018 (Annexure P-1) is

    reproduced herein-below:-

    Page 57 of 59

    (WPS No.3793/2018)

    NRrhlx<+ ‘kklu
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    ea=ky;

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    ¼dk;Zikyu@;kaf=dh@LokLF;½ lsok] HkrhZ rFkk lsok dh ‘krsZa fu;e] 2017 dh
    vuqlwph&pkj ds ljy Øekad 3 esa mYysf[kr jktLo fujh{kd dh mPprj in
    ij inksUufr gsrq vgZ gksus ds fy;s U;wure dkykof/k 06 o”kZ esa dsoy ,d ckj
    ds fy, 01 o”kZ dh NwV iznku djrk gSA
    NRrhlx<+ ds jkT;iky ds uke ls
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    73. However, a careful perusal of the writ petition would show that the

    petitioners have not brought real and tangible material on record to

    show any prejudice, only vague pleading has been made unsupported

    by any material to demonstrate that prejudice has been caused to

    them by giving relaxation of one year in qualifying service.

    74. The Supreme Court in Sandeep Kumar Sharma (supra) has held

    that the interpretation of a rule relating to relaxation to be made in a

    liberal manner and relying upon its earlier decision in J.C. Yadav

    (supra), it has been held that the rule of relaxation must get a

    pragmatic construction so as to achieve effective implementation of a

    good policy of the Government.

    75. The petitioners were Chief Municipal Officers Grade-C at the relevant

    point of time and relaxation has been granted to the Revenue
    Page 58 of 59

    (WPS No.3793/2018)

    Inspectors of Municipal Councils in the qualifying service for a

    period of one year as one time measure. It appears from the record

    that in the present case there was dearth of officers available for

    promotion in the feeder cadre of Chief Municipal Officer, whereas in

    the equivalent post of Revenue Inspector persons with near to

    experience were available. Therefore, the Government took a policy

    decision in accordance with Articles 162 and 166 of the Constitution

    of India to give one year relaxation as one time measure in the

    qualifying service to the Revenue Inspectors in order to provide Chief

    Municipal Officers to the Municipalities in which we find that the

    power of relaxation has rightly been granted by the State

    Government, as one time measure and we do not find any material to

    hold that the power of relaxation exercised by the State Government

    is either perverse or contrary to the record or it has been exercised

    for extraneous consideration. In that view of the matter, the power

    of relaxation exercised by the State Government by way of Annexure

    P-1 is in accordance with law. Question No.2 is answered

    accordingly.

    Conclusion

    76. In view of the aforesaid discussion, we hold as under: –

    1. Column (3) of Schedule-IV enacted under Rules 14 & 15 of the

    Rules of 2017 is a constitutionally valid piece of legislation and

    challenge to its constitutionality is hereby repelled.

    Page 59 of 59

    (WPS No.3793/2018)

    2. The power of relaxation exercised by the State Government by

    way of order impugned dated 2-2-2018 (Annexure P-1) is also

    in accordance with law and we do not find any merit in the

    challenge to the said order.

    77. Consequently, column (3) of Schedule-IV enacted under Rules 14 &

    15 of the Rules of 2017 is held to be intra vires and it is not

    unconstitutional, and accordingly, the writ petition challenging the

    constitutional validity of the said provision deserves to be and is

    hereby dismissed leaving the parties to bear their own cost(s).

                      Sd/-                                               Sd/-
                 (Sanjay K. Agrawal)                             (Arvind Kumar Verma)
                      Judge                                              Judge
    
    Barve/Soma
     



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