SHAMKANT NARAYAN DESHPANDE v. MAHARASHTRA INDUSTRIAL DEVELOPMENT

The Judgment of the Court was delivered by

H SAWANT, J. The petitioner is a diploma-holder in Engineering and

p. 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.

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 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 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 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 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.