SHAMKANT NARAYAN DESHPANDEversusMAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND ANR.

                SHAMKANT NARAYAN DESHPANDE                                        A
                             v.
             MAHARASHTRA INDUSTRIAL DEVELOPMENT


-'                  CORPORATION AND ANR.

                                OCTOBER 21, 1992
                                                                                  B
                       [P.B. SAWANT AND G.N RAY, JJ.J

          Civil Services :

          Maharashtra Industrial Development Act, 1961 :
                                                                                  c
..         Section 64-Resolution passed in 1988-Promotion to the post of
     Superintending Engineer-Resolution reserving 75% of posts to Engineering
     graduates and 25% to diploma holders-Validity of

           Constitution of India, 1950 :
'                                                                                 D
            Articles 14, Z<r-Promotion--Officers holding the same post-Clas·
     sification on tht: basis of qualificalion-U'hether violative of

          The petitioner, a diploma holder in Engineering, was Executive
     Engineer in the Respondent·Corporation. He would have been promoted          E
     as Superintending Engineer, but for a Resolution passed in 1988 making
     75% or the posts or Superintending Engineers available to Executive En·
     gineers holding Engineering degrees and 25% to Executive Engineers "ith
     diploma in Engineering. Respondent No. 2 who was junior to Petitioner
     but had Engineering degree was promoted as Superintending Engineer.
     The petitioner challenged the promotion or Respondent No. 2 before the       F
     High Court by way or a Writ Petition. The High Court having dismissed
     the same, the petitioner preFerred the present Special Leave Petition.
1          On behalr or the petitioner, it was contended that since there was a
     common seniority list of Executive Engineers, any classification on the      G
     basis of educational qualification was discriminatory and violative of
     Articles 14 and 16 or the Constitution; and that in the absence or any
     statutory rule or regulation, a mere resolution could not effect such
     discrimination.

           Dismissing the petition, this Court,                                   H
                                         95
                                                                                     I'
    96                   SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A          HELD : 1.1. It is now well settled that for the purposes of promotion,
    a valid classification can be made among the members holding the same
    post on the basis of their qualifications. Such a classification is permis-
    sible and does not violate Articles 14 and 16 of the Constitution. [99-A-B]

          1.2. It is for the authorities if they so desire, taking into considera-
B   tion the nature of work, the requisite qualification for the work, and the
    necessity for making a classification, to prescribe quotas on the basis of
    educational qualifications. [99-D]

          State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1
    SCR 771, followed.
c
         H.C. Shanna & Ors. v. Municipal Corporation of Delhi & Ors., [1983]
    3 SCR 372, referred to.

           2.2. In the instant case, admittedly neither the practice followed till
D   1988, nor the resolution passed by the respondent Corporation in 1988
                                                                                     I
    was a regnlation passed in accordance with Section 64 of the Act. However,
    it is well settled that in the absence of a rule or regnlation, the authority
    can prescribe service conditions by executive instructions and this is what
    was done till the year 1988 and i,; also sought to be done since 1988 by the
    resolution under challenge. [100 A, BJ
E
         Mysore State Road Transpon Corporation v. Gopinath Gundachar
    Char, [1968] 1 SCR 767 and V. Balasubramaniam and Others v. Tamil
    Nadu Housing Board and Others, [1987] 4 SCC 738, relied on.

          CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
F No. 4748 of 1991.

         From the Judgment and Order dated 21.1.91 of the Bombay Higb
    Court in W.P. No. 3481 of 1990.

          N.B. Shetye, P.M. Pradhan and AM. Khanwilkar for the Petitioner.
G
         Dushyant Dave, Beliram Vakil, Abrar Ali, Ajit Yogi, Gajender Lal,
     Mukul Gupta and Ms. Sonia Khan for the Respondents.

          The Judgment of the Court was delivered by

H          SAWANT, J. The petitioner is a diploma-holder in Engineering and
       SHAMKANT DESHPANDE v. IND. DEV. CORPN. [SAWANT, J.]                  97

    holds the post of Executive Engineer in the respondent-Corporation. Till A
    1974, the promotional post of the Superintending Engineer was available
    both for diploma-holders and degree-holders according to merit-cum-
    seniority. This was so according to the practice followed by the Corpora-
    tion without making any rules or regulations in that behalf. In 1974, the
    Corporation made regulations by passing a resolution and continued the
    same practice. Admittedly, the regulations were not made under Section
                                                                              B
    64 of the Maharashtra Industrial Development Act, 1961 [hereinafter
    referred to as the 'Act'] under which the respondent-Corporation was
    created. Thereafter in 1988, the Corporation passed a resolution, for the
    first time, making 75 per cent of the posts of Superintending Engineers
    available to the Executive Engineers holding degrees and 25 per cent to c
    the Executive Engineers who were diploma-holders. This resolution was
    also admittedly not a regulation made under the said Section 64. But for
    this resolution, the petitioner who was senior to respondent No. 2 would
     have been promoted to the post of Superintending Engineer on 31st
    October, 1990. However, since respondent No. 2 was a degree holder, he D
    got the benefit of the said resolution and was promoted to the said post
    on that date. It is this promotion which was challenged by the petitioner
    by a writ petition in the High Court. The High Court by the impugned
    judgment dismissed the said petition.

            2. Two contentions were raised before us :                           E
            (i) that no classification could be made among the Execu-
            tive Engineers on the basis of their educational qualifica-
            tions for the purpose of promotion to the post of
            Superintending Engineer, since they belong to the same
            cadre of Executive Engineers and do the same work. There             F
            was also a common seniority list of the Executive Engineers
            maintained. Hence the classification was discriminatory in
l           nature and violative of Articles 14 and 16 of the Constitu-
            tion.


J
'
            (ii) that if at all such a discrimination was permissible, it
            could be made only by a statutory rule or regulation framed
            under Section 64 of the said Act. A mere resolution or an
                                                                                 G


            exe_cutive instruction could not effect such discrimination.

         3. We find not merit in either of the two contentions. It is now well H
    98                  SUPREME CCJllR'I Rlol'ORTS IJ992J SUPP. 2 S.C.R.

A settled that for the purposes of promotion, a valid classification can be
  made among the members holding the same post on the basis of their
  qualifications. In State of Jammt1 & Kashmir v. Tri/oki Nath Khosa & Ors.,
  [l 974J I SCR 771, a Constitution Bench of this Court has clearly held that
  such a classification is permissible and does not violate Articles 14 and 16
  of the Constitution The Court has observed there that in State of Mysore
B
  & Anr. v. P. Narasing Rao, [1968] 1 SCR 407 and Ihe U11ion of /11dia a11d
  Others v. Dr. (Mrs.) S.B. Khoti, AIR 1973 SC 811, it was already held that
  classification on the basis of educational qualifications was permissible.
  The Court then referred to Rosha11 Lal Tandon v. Union of India, [1968]
   l SCR 185 and distinguished it on the facts by pointing out that it was a
c case of the direct recruits and promotees integrated into one cadre. Once
  they were integrated they lost their birth-marks, viz., the differe11t sources
  from which they were recruited. [Emphasis supplied]. The Court pointed
   out thatRoshan Lat's case [supra] was thus no authority for the proposition
   that if direct recruits and promotees are integrated into one class, they
D cannot be classified for purposes of promotion on a basis other than that
   they were drawn from different sources. The Court pointed out that in the
   case before them the classification rested fairly and squarely on the con-
   sideration of educational qualifications which was not a discrimination in
   relation to the source of recruitment. The Court also pointed out that the
   very Bench which decided Rosha11 Lat's case [supra] held about a fortnight
E later in Narsi11gh Rao's case [supra] that higher educational qualifications
   were a relevant consideration for fixing a higher pay-scale and, therefore,
   matriculate Tracers could be given a higher scale than non-matriculate
   Tracers though their duties were identical. The Court, further, on the same
   reasoning distinguished Mervyn Coutindo & Ors. v. Collector of Customs,
F  Bombay   & Ors., [1966] 3 SCR 600 and S.M. Pandit and others, etc. v. State
   of Gt1jarat a11d others, AIR 1972 SC 252 by pointing out that both the cases
   related to the classification made on the basis of the sources of recruitment
   and not on the basis of educational qualifications. The Court then con-
   cluded:

G                "We are therefore of the opinion that though persons
             appointed directly and by promotion were integrated into
             a common class of Assistant Engineers, they could, for
             purposes of promotion to the cadre of Executive En-
             gineers, be classified on the basis of educational qualifica-
H            tions. The rule providing that graduates shall be eligible
    SHAMKANT DESHPANDE 1·. IND. DEV. CORPN. jSAWANT. J.J                 99

        for such promotion to the exclusion of diploma-holders                 A
        does not violate Articles 14 and 16 of the Constitution and
        must be upheld."

        The reliance placed by Shri Shetye appearing for the petitioner on a
later decision of a Bench of two learned judges of this Court in H.C.
Shanna and others v. Municipal Corporation of Delhi and Others, (1983] 3 · B
SCR 372 is, we are afraid, not justified. It was a case where no separate
quota for promotion to the post of Assistant Engineer was kept for degree-
holder Junior Engineers and diploma-holder Junior Engineers. The de-
gree-holder Junior Engineers had sought a relief that such a quota be kept.
It is while dealing with this relief claimed, that this Court had observed that C
it could not be done except by carving out two classes in the same category
of Junior Engineers. It may be observed that it was not a case where the
classification was already made which was challenged before the Court. It
was a case where the writ petitioners wanted such a classification to pe
 made. It is for the authorities if they so desire, taking into consideration D
 the nature of work, the requisite qualification for the work and the neces-
 sity for making such a classification that quotas could be prescribed on the
 basis of educational qualifications. It is true that the following observations
 made in that case while dealing with the relief claimed, do support the
petitioner :
                                                                               E
         "...... Prayer No. 4 is to declare .the petitioners Graduate
         Engineers as a separate category amongst Junior Engineers
         and give them equal quota like the Diploma holder Junior
         Engineers out of the 50% quota for promotion as Assistant
         Engineers. This cannot be done except by carving out two              F
         classes in the same category of Junior Engineers on the
         basis merely of their qualification which is not permissible
         in law though the creation of selection grade in the same
         category on the basis of merit and or seniority is well known
         and permissible. The Junior Engineers do the same kind
         of work and bear the same responsibilities whatever their             G
         qualification, whether they are Degree holders or Diploma
         holders ......".

      However, these observations have been made without noticing the
decision in Khosa's case (Supra). Hence, the observations are per incuriani.   H
    JOO                 SUPREME COURT REPORTS IJ992J SUPP. 2 S.C.R.

A          As regards the next contention, admittedly neither the practice
    followed till 1988, nor the resolution passed by the respondent Corporation
    in 1988 was a regulation passed in accordance with Section 64 of the Act.
    It is well settled that in the absence of a rule or regulation, the authority
    can pre,scribe service conditions by executive instructions and this is what
    was done till the year 1988 and is also sought to be done since 1988 by the
B   impugned resolution.

          The proposition that in the absence of the rules and regulations, the
    authority can act by executive instructions finds direct support in Mysore
    State Road Transport Corporation v. Gopinath Gundachar Char, [1968] 1
c   SCR 767 and V. Ba/asubramaniam and Others v. Tamil Nadu Housing
    Board and Others, [1987] 4 SCC 738.

           In view of the above, the petition stands dismissed.

    G.N.                                                     Petition dismissed.




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