Madhya Pradesh High Court
Shialesh Soni vs The State Of Madhya Pradesh on 8 July, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND: 18243
1 W.P. No. 31974/2023 & 2 others
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 8th OF JULY, 2025
WRIT PETITION No. 31974 of 2023
MUKESH VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shankar Dayal Mishra (Through V.C.) with Shri Rajendra
Kumar Batham - Advocate for the petitioner.
Shri Bhuwan Gautam - G.A. for the respondents/State.
WITH
WRIT PETITION No. 30155 of 2023
DILIP BHILALA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shankar Dayal Mishra (Through V.C.) with Shri Rajendra
Kumar Batham - Advocate for the petitioner.
Shri Bhuwan Gautam - G.A. for the respondents/State.
WRIT PETITION No. 31265 of 2023
SHAILESH SONI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 16-07-2025
18:41:09
NEUTRAL CITATION NO. 2025:MPHC-IND: 18243
2 W.P. No. 31974/2023 & 2 others
Appearance:
Shri Shankar Dayal Mishra (Through V.C.) with Shri Rajendra
Kumar Batham - Advocate for the petitioner.
Shri Bhuwan Gautam - G.A. for the respondents/State.
---------------------------------------------------------------------------------------------------------
ORDER
Per: Justice Vivek Rusia The present batch of writ petitions has been filed under Article 226 of the Constitution of India, challenging the validity of the Gazette Notification No. F-72-2020-2-Five (24) dated 25.09.2023 issued by the Commercial Tax Department, Government of Madhya Pradesh whereby the rule 6 of the Madhya Pradesh Excise Subordinate Class III (Ministerial ) Services Recruitment Rules, 1983 (hereinafter referred to as "Ministerial Rules of 1983") by which the I.T. Operators/ Data Entry Operators have been made eligible to appear in the Limited Departmental Competitive Examination (hereinafter referred as ―L.D.C.E‖) for promotion/selection to the post of Excise Sub-Inspector but restricted them for the post that would be available from the year 2023 and onwards and was arbitrarily excluded from applying for any earlier vacancies even though they satisfied all other eligibility criteria.
2. Regarding the similitude in the controversy involved in these writ petitions, they are being heard analogously and decided by a common order. For the sake of convenience facts of Writ Petition No. 31974/2023 are taken which are as follows:
3.1 The Government of Madhya Pradesh framed the Madhya Pradesh Excise Subordinate Class III (Executive) Services Recruitment Rules, 1982 (hereinafter referred to as " Executive Rules Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 3 W.P. No. 31974/2023 & 2 others of 1982") in which there is a post of Excise Sub-Inspector in Schedule I. Vide notification dated 4th August 1997 government created 750 posts of Excise Sub-Inspector in the pay scale of Rs. 1400-40-1440-50-2340. In schedule II 25% post of Excise Sub-Inspector has been reserved to be filled by selection from the ‗Ministerial services' and later on amended to Ministerial Excise Head Constable and Constable services. 3.2 The Government of Madhya Pradesh has made M.P. Excise Information Technology Services Recruitment Rules 2011. The post of I.T. Operator is a feeder post to be filled by way of recruitment and there is a channel of promotion in the rules of 2011.
3.3 For the first time Fifty-Five posts of IT Operators were created in the pay scale of Rs. 3050-75-3950-80-4590 IT in Schedule - I of the Ministerial Rules 1983. The post of I.T. operators was also included in Schedule - II by which 55 posts are liable to be filled by way of direct recruitment. For I.T. Operators, the minimum qualification is a higher secondary school certificate examination in the 10+2 pattern or higher secondary school examination old pattern with three years diploma in computer application (DCA).
3.4 Aggrieved by this exclusion, the I.T. Operators/ Data Entry Operators have approached this court seeking quashment of the restrictive clause in the impugned notification dated 25.09.2023 and direction to the respondents to allow them to participate in the L.D.C.E for Sub-Inspector posts in Excise department that arose prior to the year 2023.
3.5 The petitioners were appointed vide order dated 29.08.2013 to the post of I.T. Operator by way of direct recruitment in the Excise Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 4 W.P. No. 31974/2023 & 2 others Department and since then have been duly discharging their duties and clerical functions in various offices across the state including Rajgarh, Indore, Dhar, Ujjain and other places. In pursuant to a notification issued by the State Government on 26.12.2007 the Ministerial Rules of 1983 were amended by which the 55 posts of I.T. Operators/ Data Entry Operators were brought within the clerical category of the Excise services and by this inclusion the I.T. Operators/ Data Entry Operators became entitled to be treated at par with clerical employees. 3.6 The State Government further amended Rule 6 of Executive Rules of 1982 by way of impugned Gazette Notification No. F-72-2020-2-Five (24) dated 25.09.2023. This amendment has introduced substantive changes in the eligibility criteria for selection to the post of Sub- Inspector through the L.D.C.E. 3.7 The relevant portion of Clause 1 of the amendment of Rules of 1982 reads as under:
1. ―ननयम 6 में उप-ननयम ( 1) के खंड ( क) में शब्द ―ननजीकृत नीनत तथा आकस्मिक मूल्य आकस्मिक सेवाओं‖ के स्थान पर शब्द ―ननयनमतीय, आवश्यक मुख्य आकस्मिक एवं आवश्यक तथा टी.ओपीएसटी‖ प्रनतस्थानपत नकए जाएं तथा अंत में नसंनडकेशन के स्थान पर ―टीओपीएसटी‖ प्रनतस्थानपत नकया जाए तत्सम्बंधी ननम्ननिस्मखत फुटनोट जोडा जाए। अथाात--
―परन्तु आईटी ऑनफससा को वर्ा 2023 पश्चात ररक्त पदों के निए आयोनजत की जाने वािी नवभागीय प्रनतयोनगता परीक्षा में सस्मिनित होने की पात्रता होगी।‖ 3.8 Through this amendment the I.T. Operators/ Data Entry Operators were for the first time formally made eligible for the promotional examination but by the proviso such eligibility was confined only to future vacancies arising after 2023. The effect of the amendment is that all the I.T. Operators/ Data Entry Operators in the excise department Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 5 W.P. No. 31974/2023 & 2 others became ineligible and were excluded from participating in the examination for vacancies that arose prior to 01.01.2023 even though they possessed the necessary qualifications and length of service. 3.9 In 2023, the Excise Commissioner issued a notice dated 07.10.2023 for conducting the L.D.C.E 2023 recruitment for filling up posts of Sub-Inspector that had become vacant up to December 2022. Applications were invited from 16.10.2023 till 02.01.2024 but due to the restrictive provision introduced by the amendment through impugned notification dated 25.09.2023, the petitioners were not treated as eligible to apply for the examination in respect of these vacancies as the vacancies were of the period prior to the year 2023. 3.10 The petitioners claim that the amended clause while appearing to confer eligibility in substance operates as a disqualification and denies them an opportunity for promotion despite being otherwise qualified and eligible for the vacancies notified by the commissioner for a period before 2023.
3.11 Aggrieved by this exclusion many other similarly situated employees including petitioners approached this court by filing writ petitions whereby through interim orders they were granted permission to apply for the post and participate in the examination on the condition that it would be subject to the outcome of these petitions. Submission of Petitioner's counsel
4. Learned counsel appearing for the petitioners submitted that the impugned notification dated 25.09.2023 violates the provisions of Articles 14 and 16 of the Constitution of India as it creates an unreasonable and arbitrary classification within the same cadre. Learned Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 6 W.P. No. 31974/2023 & 2 others counsel submitted that the impugned notification discriminates between employees who were similarly situated as on the date of the recruitment notice but have been rendered ineligible by virtue of an arbitrary cut clause.
5. Learned counsel submitted that the petitioners have the requisite experience and qualifications and their exclusion without any cogent reason goes against the principle of parity as the petitioners are entitled to be treated equally since their status as part of the clerical cadre was also recognized long back under a previous notification dated 26.12.2007
6. Learned counsel submitted that at the time when the recruitment notice was issued, they were fully eligible and their legitimate expectation to be considered for the said examination cannot be denied retrospectively by adding a restrictive clause and that such retrospective exclusion amounts to a denial of equal opportunity in public employment which is constitutionally impermissible.
7. Learned counsel submitted that the respondents have failed to provide any justification or reason for creating a distinction between I.T. Operators/ Data Entry Operators and other clerical staff of the same cadre and that no reason has been provided as to how the classification is made between vacancies up to 2022 and those after 2023. Learned Counsel further submitted that the exclusion arbitrarily denies the petitioners their only chance of promotion as within the rules of 1982 there is no other channel of promotion available to the I.T. Operators/ Data Entry Operators and thus prayed that the impugned notification be quashed and suitable relief be given to the petitioners.
Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 7 W.P. No. 31974/2023 & 2 others Submissions of Respondents'/State counsel.
8. Learned Government Advocate Shri Bhuwan Gautam appearing for the respondents submitted that the amendment dated 25.09.2023 was introduced after careful policy deliberation and that the rules have been validly framed under the proviso to Article 309 of the Constitution and in the absence of any express provision to the contrary are presumed to operate prospectively and the proviso was added by amendment merely to clarifies it.
9. Learned G.A. submitted that the amendment to Rule 6 of the Rules of 1982 notified on 25.09.2023 for the first time created a substantive right in favour of I.T. Operators/Data Entry Operators to be considered for promotion to the post of Excise Sub Inspector through the L.D.C.E and that the petitioners have no vested or accrued right to claim retrospective benefit of the said amendment.
10. Learned G.A. submitted that the validity of a statutory provision may only be tested on limited grounds such as violation of fundamental rights, legislative incompetence, breach of constitutional limitations, and extra-territorial application of law or excessive delegation of legislative power none of which have been pleaded or established by the petitioners.
11. Learned G.A. submitted that rights conferred for the first time through subordinate legislation cannot be given retrospective effect and since no right to be considered for past vacancies existed prior to the notification dated 25.09.2023 the petitioners cannot claim such right retrospectively. He placed reliance on the decision of the Hon'ble Apex court in Panchi Devi vs. State of Rajasthan reported in (2009) 2 SCC Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 8 W.P. No. 31974/2023 & 2 others 589.
12. Learned G.A. submitted that no L.D.C.E had been conducted in the department for a considerable period due to which there are several other cadres of Class III employees with longer tenure than the petitioners and since there were only limited promotional posts available in the department in order to accommodate all cadres equally decided to make the benefit of the amendment applicable only prospectively from the year 2023.
13. Learned G.A. submitted that the restriction imposed by the impugned notification was a policy decision based on administrative exigencies and in the absence of any arbitrariness it does not warrant interference from this court and thus prayed that the petition be dismissed.
We have heard learned counsel for the parties and perused the record.
14. For the first time the 55 posts of IT Operators were created in the pay scale of Rs. 3050-75-3950-80-4590 in Schedule - I of the Ministerial Rules 1983. The posts of I.T. operators were included in Schedule - II by which 55 posts were reserved for direct recruitment.
15. Once the post of I.T. Operators had been created and included in the cadre of Grade - III (clerical services) in the M.P. Excise Department and the pay scale has been made at par with the Assistant Grade-II Steno Typist, therefore, the I.T. Operators became eligible for further promotion under the Ministerial Rules of 1983 from the date of creation of posts as well as from the date of appointments to the said post as the case may be. The petitioners were appointed vide order dated Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 9 W.P. No. 31974/2023 & 2 others 29.08.2013 to the post of I.T. Operator by way of direct recruitment.
16. Vide notification dated 13.01.2014, existing rule 6 of the Executive Rules 1982 was substituted by a new rule according to which the recruitment to the service after the commencement of these rules shall be made (a) by competitive examination, by direct recruitment or by interview or by both (b) by promotion of member of service as specified in column 2 of Schedule IV and (c) by transfer of person who held in a substantive or officiating capacity. It was further amended vide notification dated 25.07.2016 in which Clause (a) has been substituted by "direct recruitment through competitive examination‖.
17. By way of impugned notification dated 25.09.2023, the State Government has inserted the post of I.T. Operators along with Clerical Cadre, Excise Head Constable and Constable by way of amendment in Rule 6 sub-rule (1)(b) of Executive Rules of 1982 but restricted the participation of I.T. Operators in departmental limited selection examination on the post created on 2023 or thereafter. After this amendment, an advertisement was issued on 07.10.2023 under the Rules of 1982 for direct recruitment to the post of Sub Inspector by way of departmental limited examination. The qualification for the said post has been prescribed in the advertisement is graduation from recognized university with five years of experience in clerical cadre/ chief excise constable/ excise constable. Because of this proviso in Rule 6(1)(b) of 1982 Rules, the petitioners are not eligible to participate in this examination hence, they approached this Court.
18. By way of return the State Government has tried to justify that the proviso has been inserted for I.T. Operators because first time in the year Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 10 W.P. No. 31974/2023 & 2 others 2023 they have been made eligible for promotion at par with the clerical cadre, excise head constable and constable. The aforesaid contention is not acceptable because the post of I.T. Operators was included in the cadre of ministerial staff under the Ministerial Rules of 1983 in the year 2007. At that time the Executive Rules of 1982 ought to have been amended by including the post of I.T. Operators in Rule 6 sub-rule 1(b) alongwith clerical cadre, excise head constable and constable. The corresponding amendment in the Executive Rules of 1982 made in the year 2023 for which these I.T. Operators cannot made to suffer.
19. Once the I.T. post becomes a cadre post in the Ministerial Rules 1983 at par with the clerical cadre, excise head constables and constables, in the Executive Rules 1982 the promotional right cannot be treated to be created in the year 2023 Had it been a case that the I.T. Operator posts have been created in the year 2023 in the Ministerial Rule, 1983 and Executive Rules, 1982 as well then the respondent/State would have been justified to restricting them for promotion from 2023 onwards. The delay in the amendment in the Executive Rules, 1982 cannot be detrimental to the interest of present I.T. Operators. Therefore, there is no justification for the inclusion of a proviso restricting their selection to the posts created after 2023. The I.T. Operators/ Data Entry Operators have been permitted to appear in the Limited Departmental Competitive Examination (hereinafter referred to as "L.D.C.E") for promotion/selection to the post of Excise Sub-Inspector but by way of proviso wrongly been restricted to participate for the post that would be available from the year 2023 and onwards without any valid justification. Hence, the proviso to rule 6 of the Executive Rules 1982 Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 16-07-2025 18:41:09 NEUTRAL CITATION NO. 2025:MPHC-IND: 18243 11 W.P. No. 31974/2023 & 2 others inserted vide Gazette Notification No. F-72-2020-2-Five (24) dated 25.09.2023 is hereby struck down to that extent.
20. By virtue of an interim order dated 28.12.2023, the petitioners were permitted to appear in the examination, therefore, the interim order is hereby made absolute. The result of the petitioners be declared and if they secure the qualifying marks then they are promoted to the post of Sub Inspector.
21. In view of the above the writ petitions are hereby allowed.
Let a copy of this order be kept in the record of connected writ petitions.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Vatan
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 16-07-2025
18:41:09