Pushpa Khalko v. State of Chhattisgarh, Through Urban Administration & Development Department, Mahanadi Bhawan, Naya

: 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. For the sake of convenience, this Order is divided in following parts:- S.No. Particulars

#1. Challenge in the Writ Petition Page Nos. 7 (WPS No.3793/2018)

#2. Writ Petition

#7. Return on behalf of the State Return on behalf of the private Respondents Submissions on behalf of the Petitioners Submissions on behalf of the State Submissions on behalf of the private Respondents

#8. Questions for Determination

#9. Presumption of Constitutionality of the Act or Rules

#10. Challenge to the constitutional authority of the Act or Rules

#11. Locus standi to challenge the constitutional validity of Rule

#12. Equation of Posts

#13. Power of Relaxation

#14. Promotion – Not a vested right

#15. Provision for promotion

#16. Constitution of Municipalities

#17. The Chhattisgarh Municipal Service (Executive) Rules, 1973 8 9 10 11 14 16 18 19 19 24 25 28 29 31 31 34

#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

#21. The Chhattisgarh State Municipal Engineering/Health) Services, Conditions of Service Rules, 2017 (Executive/ Recruitment

#22. Pleadings in challenging the constitutional validity of law

#23. Prescription of eligibility is prerogative of the employer

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

#25. Findings and analysis

#26. Conclusion 37 38 40 42 43 44 58 (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. (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 (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 (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. (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

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 (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 (WPS No.3793/2018) Institute of Chartered Accountants of India and others4.

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 others5 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 others7, 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