ORDER
Shantanu Kemkar, J.
1. Feeling aggrieved by the decision of the State Government communicated to the M.P. Public Service Commission (second respondent) vide letter dated 24.5.2007 (Annexure P/1) whereby it had decided as one time measure to reduce the bench mark for promotion from the post of Assistant Professor to the post of Professor on the position as existed on 1.1.2004 from ‘very good’ (minimum 13 marks) to ‘good’ (minimum 10 marks), the petitioners have filed this petition.
2. As per the petitioners, the petitioner No. 1 is working on the post of Professor in Higher Education Department of the State of M.P. He is the State Secretary of petitioner No. 2 M.P. Gazetted Officers Association (for short ‘Association’) and has been authorized by the President of the Association vide letter dated 15.6.2007 (Annexure P/2) to file the present petition. In the meeting of the Departmental Promotion Committee (for short ‘DPC’) held on 5.12.2005 and 15.12.2005, the petitioner No. 1 along with several other Assistant Professors was promoted to the post of Professor vide order dated 23.5.2006 (Annexure P/3). Thereafter, in meeting of the DPC held on 18.5.2006, 27.5.2006 and 4.10.2006 other incumbents were also promoted from the post of Assistant Professors to the post of Professors vide order dated 8.12.2006 (Annexure P/4).
3. The case of the petitioners is that the service conditions of the petitioner and similarly placed candidates are governed by Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 (`Rules of 1990 for short). The promotion from the post of Assistant Professor to the post of Professor is governed by M.P. Public Services (Promotion) Rules, 2002 (‘Rules of 2002’ for short). According to the petitioners, the impugned decision of the State Govt. of lowering the standard of bench mark from `very good (13 marks) to `good (10 marks) as communicated vide Annexure P/1 is wholly illegal, arbitrary and without jurisdiction. There is no power to relax the bench mark of very good to good under the Rules of 2002. The relaxation of bench mark from very good to good for consideration of the cases of promotion from the post of Assistant Professor to the post of Professor would render the rule requiring bench mark of very good for the said promotion redundant. It is stated that decision to relax the bench mark retrospectively with effect from 1.1.2004 would have prejudicial effect upon the petitioner No. 1 inasmuch as the yardistics and parameters to which the petitioner No. 1 was required to face, would be different from the candidates whose cases would be considered in view of the impugned decision of relaxation of bench mark of very good to good. It is further averred that the decision of relaxation of the bench mark has been taken to favour few candidates and the said decision is violative of Articles 14 & 16 of the Constitution of India.
4. The State Govt. filed return and has denied the averments made by the petitioners. According to the respondents, the petitioner No. 1 having been already promoted from the post Assistant Professor to the post of Professor is not entitled to raise any objection against the decision of relaxation of the bench mark for the promotion from the posts of Assistant Professor to the posts of Professors. It is stated that the Rule 7(8) of Rules of 2002 is applicable only in the cases where the promotion of Class-I Officer is made in the higher pay scale of Class-I post and in that case only the bench mark of very good is required. In the present case the promotion is from Class-I post of Assistant Professor to the Class-I post of Professor of same pay scale, therefore, the bench mark of very good is not the requirement of the Rules of 2002.
5. The interveners in their reply have stated that for the promotion to the post of Professor from the post of Assistant Professor the requirement is not very good but is of `consistently good performance appraisal reports, therefore, the decision of relaxation of bench mark from very good to good is justified. According to the interveners from Class-I post of Assistant Professor selection grade promotion to the post of Professor a post of Class-I being in the same pay scale, Rules of 1990 would be attracted and not the Rules of 2002.
6. I.A. No. 7281/2007 and I.A. No. 8750/2007 have been filed on behalf of the petitioner No. 2 seeking deletion of its name from array of the cause title. Along with I.A. No. 8750/2007 a letter of the President of the petitioner No. 2 Association has been filed seeking withdrawal of the petition. Having regard to this controversy this Court on 4.10.2007 issued following direction to the petitioners:
Counsel for the petitioner has raised an objection. It is contended by her that the Secretary of the Association i.e. petitioner No. 2 has preferred the petition. Counsel appearing on behalf of the petitioner No. 2 Shri Atul Anand Awasthy submitted that the application has been moved to delete the name of the petitioner No. 2. Now there seems to be a dispute between the officer bearers of the petitioner No. 2.
Under the circumstances the counsel for the petitioner Smt. Shobha Menon, Sr. Advocate who was appearing earlier for the petitioners is directed to file a resolution authorizing Dr. Kailash Tyagi to file a petition on behalf of the Association. She is also directed to file bye-laws of the Association, wherein the Secretary without there being any resolution is permitted to file a case. She is also directed to file a fresh resolution whereby it is decided to continue the case for the petitioner No. 2. The necessary documents may be filed within a period of two months.
7. However, the resolutions as directed by this Court have not been filed, on the other hand it was declared on behalf of the petitioners that the petitioners do not want to file any further documents except submission made in I.A. No. 9003/2007. Thus the resolution authorizing the petitioner No. 1 to file the petition on behalf of the Association has not been filed, the bye-laws of the Association have also not been filed, neither a fresh resolution whereby it is decided to continue the case for petitioner No. 2 has been filed. On the other hand a letter as aforesaid of the President of the Association has been filed by Shri Atulanand Awasthy, who appeared for the petitioner No. 2 Association, seeking withdrawal of the petition.
8. Heard learned Counsel for the parties and perused the record. Before dealing with the merits of the petition, I propose to consider and decide the aforesaid applications filed on behalf of petitioner No. 2. Through these applications the President of the petitioner No. 2 Association is seeking deletion of the name of the petitioner No. 2 from the petition and for withdrawal of the petition on its behalf.
9. Admittedly the petitioner No. 2 is a recognized M.P. Gazetted Officers Association. No resolution of the Association authorizing Dr. Kailash Tyagi to file the petition and to continue with it in the light of the specific objection taken by the interveners and through I.A. No. 7281/2007 submitted on behalf of the President of the petitioner No. 2 Association has been filed. Inspite of the specific direction of this Court the petitioners have not filed such resolution passed by the Association authorizing Dr. Kailash Tyagi to file the present petition on behalf of the association. Pursuant to the application I.A. 8750/2007 filed by the President of the Association by its newly appointed counsel seeking withdrawal of the petition, the petitioners were directed to file a fresh resolution of the Association resolving to continue the case for the petitioner No. 2 Association but the petitioners failed to file such resolution. Thus, in the absence of resolution authorizing Dr. Kailash Tyagi to file and continue with the petition on behalf of the petitioner No. 2 Association, in my considered view the petition filed by Dr. Kailash Tyagi on behalf of the Association petitioner No. 2 is not maintainable. Hence I.A.7281/2007 and I.A.8750/2007 stands allowed.
10. So far as the question of locus-standi of the petitioner No. 1 to challenge the impugned decision, I am of the view that the petitioner No. 1 though has already been promoted, still as is clear from the decision of relaxation, the same is made applicable with retrospective effect from 1.1.2004. In the circumstances those candidates who had secured `good and were senior to the petitioner as Assistant Professor would become again senior to the petitioner if the impugned decision is implemented. In the circumstances, the petitioner No. 1 has got sufficient locus-standi to challenge the impugned decision of the State Govt.
11. Coming to the merits of the case, the Rules of 2002 have been framed for determination of the basis for promotion on the public services and posts and relating to reservation in favour of Scheduled Castes and Scheduled Tribes. It applies to establishment as defined in the said rules and provides for determination of basis for promotion. It further provides that promotion from Class-I to higher pay scale of Class-I posts shall be made on the basis of merit-cum-seniority. Rule 7(8) of Rules of 2002 deals with eligibility for promotion from Class-I to higher pay scale of Class-I posts and for it benchmark requirement is ‘very good’. Rule 7(9) requires preparation of the select list from the feeder cadre who are graded very good. Rule 8 of Rules of 2002 provides for power to the Government for lowering the standard of evaluation. Rule 8 reads thus:
8. Lowering the standards of evaluation-The Government, may by order, make provisions in favour of the public servants of the Scheduled Castes and the Scheduled Tribes for lowering the standards of evaluation in the matter of promotion to any class or classes of services or posts in connection with the affairs of the State.
12. Except the aforesaid Rule 8, empowering the Government for lowering the standard of evaluation there is no other provision for relaxation. On a plain reading of Rule 8, it is clear that the Government may by order make provisions in favour of public servants of the Scheduled Castes and Scheduled Tribes for lowering the standard of evaluation in the matter of promotion to any class or classes of services or posts in connection with the affairs of the State. Thus it is clear that the lowering standard of evaluation is permissible only for the public servants of the Scheduled Castes and Schedules Tribes categories and none else. In the impugned decision there is absolutely no whisper that the decision to relax the criteria from very good to good for the promotion from the post of Assistant Professors to the post of Professor has been taken in favour of the public servants of the Scheduled Castes and Scheduled Tribes. Moreover there is no mention in the communication Annexure P/1 and also in the return of the State Govt. as to under which rule the power of relaxation has been exercised.
13. It is not disputed by the respondents and the interveners that after coming into force of Rules of 2002 the promotions of the Assistant Professors to the post of Professors are being done by applying Rules of 2002 and the bench mark of very good was being consistently followed by the State Govt. On a conjoint reading of Rule 2(F) which defines Establishment, Rule 3 which deals with the Scope and Application and Rule 14 which deals with Repeal and Saving and on a close scrutiny of Rules of 2002 it is clear that for the promotions in question the Rules of 2002 alone would be attracted and not the Rules of 1990. Admittedly for the promotion to the post of Professors the feeder cadre is Assistant Professor.
14. Having regard to the aforesaid, in the absence of any power of relaxation provided under Rules of 2002 except in the cases of Scheduled Caste and Scheduled Tribe categories the State Govt. was not justified in taking decision to relax and reduce the benchmark from very good to good for promotions from the post of Assistant Professor to the post of Professor. The impugned decision (Annexure P/1) being clearly contrary to the statutory rule position and being impermissible under Rules of 2002 deserves to be and is hereby quashed.
15. The promotions which have been made during the pendency of this petition giving benefit of relaxation (Annexure P/1) shall stand cancelled as by way of interim order dated 27.6.2007 passed in Writ Appeal No. 1067/2007 the State Govt. was directed to make it clear in the promotion orders as may be issued that the same shall be subject to final order passed in this Writ Petition No. 7509/2007(s).
16. Accordingly, the petition on behalf of petitioner No. 1 succeeds. No orders as to costs.