S S SHRIVASTAVA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) IN this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the notification dated 1st May 1998 of the State government of Madhya Pradesh by which the M. P. Public Health Engineering (Gazetted) Service Rules, 1980 were amended.

(2.) THE facts briefly are that the M. P. Public Health Engineering (Gazetted) Service Rules, 1980 (for short Rules of 1980) were published by notification dated 6th February, 1981. The Rules of 1980 inter-alia provided that promotion to the post of Engineer-in-Chief in the Public Health Engineering Department would be made from amongst Chief Engineers (Civil ). By a notification dated 28th May 1994, certain amendments were made to the Rules of 1980. By the said amendments in Schedule-IV of the English version of the rules, the following provisions were made : <FRM>JUDGEMENT_435_MPHT5_2005Html1.htm</FRM> The aforesaid provisions in Schedule-IV introduced by the amendment vide notification dated 28th May 1994 gave an impression that for promotion to the post of Engineer-in-Chief in the Public Health Engineering Department, chief Engineers (Civil) as well as Chief Engineers (Electrical and Mechanical)would be considered. The aforesaid amendment by notification dated 28th May 1994 was to be effective from 15-10-1981 One K. K. Morab, who was the Chief engineer (Electrical and Mechanical) in the Public Health Engineering Department was however not considered for promotion to the post of Engineer-in-Chief in the Public Health Engineering Department and instead one V. K. Jain, chief Engineer (Civil) was considered and promoted as Engineer-in-Chief in the Public Health Engineering Department. Aggrieved, K. K. Morab filed O. A. No. 76 of 1993 before the M. P. State Administrative Tribunal, Bhopal Bench and by order dated 19-11-1997, the Tribunal inter-alia held that K. K. Morab was entitled to be considered for promotion to the post of Engineer-in-Chief in the Public Health Engineering Department in terms of the Rules of 1980 as amended by the notification dated 28th May 1994 and directed that his case shall be considered by the State of M. P. for promotion to the post of Engineer-in-Chief in the Public Health Engineering Department in accordance with the inter-se seniority as determined in the said order of the Tribunal. Thereafter by a notification dated 1st May, 1998, the aforesaid provisions to Schedule-IV of the Rules of 1980 were amended. By the amendment, the expression 'chief engineer (Electrical and Mechanical)' from Column 2 of the aforesaid entries in schedule- IV was deleted so as to make it clear that the Chief Engineer (Electrical and Mechanical) will not be eligible for promotion to the post of engineer-in-Chief in the Public Health Engineering Department and only chief Engineer (Civil) would be considered for promotion to the said post of engineer-in-Chief in the Public Health Engineering Department. In the meanwhile, the petitioner was promoted to the post of Chief Engineer (Electrical and mechanical) in the Public Health Engineering Department with effect from 17-10-1996 and when his turn as per his seniority came for being considered for promotion as Engineer-in-Chief in the Public Health Engineering Department in 2001, he could not be considered as the Rules of 1980 had been amended by notification dated 1st May 1998 excluding Chief Engineers (Electrical and Mechanical) from consideration for promotion to the post of Engineer-in-Chief in the Public Health Engineering Department. Aggrieved, the petitioner filed o. A. No. 1944 of 2001 before the M. P. State Administrative Tribunal, Jabalpur bench challenging the said amendment to Schedule-IV of the Rules of 1980 by notification dated 1st May 1998. The M. P. State Administrative Tribunal was subsequently abolished and the said O. A. has now been transferred to this Court and has been numbered as W. P. No. 15789 of 2003.

(3.) AT the hearing of the said writ petition, the petitioner who appeared in person, submitted that the impugned amendment to the Rules of 1980 is discriminatory and violative of right to equality under Arts. 14 and 16 of the constitution. He submitted that the law is well settled that although Article 14 of the Constitution permits classification of persons, such classification must be based on an intelligible differentia and the intelligible differentia must have a rational nexus with the object sought to be achieved by the impugned statute. He argued that there was no substantial difference between the post of Chief engineer (Civil) and Chief Engineer (Electrical and Mechanical) inasmuch as the duties of Chief Engineer (Civil) and Chief Engineer (Electrical and Mechanical)are similar and almost the same. He submitted that in the post of Engineering-in-Chief, an Engineer with knowledge and experience in civil engineering and an Engineer with knowledge and experience in electrical and mechanical engineering can both be promoted because there will be no substantial difference between the performance of an Engineer having knowledge and experience in civil engineering and an Engineer having knowledge and experience in electrical and mechanical engineering. He cited the decision of the Supreme court in the case of State of Mysore Vs. Krishna Murthy and others (AIR 1973 sc 1146) wherein the Supreme Court has held that inequality of opportunity of promotion though not unconstitutional per se must be justified on the strength of rational criteria correlated to the object for which the difference is made and where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose could not be justified on any rational grounds, Article 14 of the Constitution would be violated. He also cited the decision of Supreme Court in Chandigarh Administration Vs. State of Punjab (AIR 1995 S. C. 299) in which the Supreme Court has held that for the post of chief Engineer, not only Superintending Engineer (Civil) but also Superintending Engineer (Electrical and Mechanical) can be considered for promotion. He also relied on the decision of the Supreme Court in Swapan Kumar Choudhary and others Vs. Tapas Chakravorty and others (AIR 1996 S. C. 662) in which the supreme Court held that Inspectors of Factories in West Bengal Factories service belonging to General, Chemical and Medical wings were held to perform similar duties and should form part of one cadre.