CIVIL APPELLATE JURISDICTION: Special Leave petition (c) No. 4748 of 1991. From the Judgment and Order dated 21.1.91 of the Bombay High Court in W.P. No. 3481 of 1990. N.B. Shetye, P.M. Pradhan and A.M. khanwilkar for the petitioner. 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
SAWANT, J. The petitioner is diploma- holder in Engineering and holds the post of Executive Engineer in the respondent-Corporation. Till 1974, the promotion post of the superintending Engineer was available both for diplomaholders and degree-holders according to merit-cum-seniority. This was so according to the practice followed by the Corporation without making any rules or regulation in that behalf. In 1974, the corporation made regulation by passing a resolution by passing a resolution and continued the same practice. Admittedly, the regulation were not made under section 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 the Executive Engineers who were diplomaholders. 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 got 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.
(i) that no classification could be
made among the Executive Engineers
on the basis of their educational
qualification 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 was also a common
seniority of the Executive
Engineers maintained. hence the
classification was discriminatory
in nature and violative of Articles
14 and 16 of the Constitution .
(ii) that if at all such a
discrimination was permissible, it
could be made only be a statutory
rule or regulation framed under
Section 64 of the said Act. A mere
resolution or an executive
instruction could not effect such
discrimination. 3. We find not merit in either of the two contentions. It is now well settled that for the purpose of promotion, a valid classification can made among the members holding the same post on the basis of their qualification. In state of Jummu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1 SCR 771, a Constitution Bench of his 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 & Anr. v. P. Narasing Rao, [1968] 1 SCR 407 and The Union of India and others v. Dr.(Mrs.) S.B. Kholi, AIR 1973 SC 811, it was already held that classification on the basis of educational qualification was permissible. The Court then referred to Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185 and distinguished it on the facts by pointing out that it was a case of the direct recruits and promotees integrated into one cadre. Once they were integrated they lost their birth birth-marks, viz. the different sources from which they were recruited. [Emphasis supplied]. The court pointed out that Roshan Lal’s case [supra] was thus no authority for the proposition that if direct recruits and promotees are integrated into one class they cannot be classified for purposed of promotion on a basis other than that in the case before the them the classified for purpose of promotion on a basis other than that they were drawn from different sources. The court also pointed out that the very Bench which decided Roshan Lal’s case [supra] held about a fortnight later in Narsingh Rao’s case [supra t] that higher educational qualifications were a relevant consideration for fixing higher pay--scale and , therefore, matriculates Tracers could be given a higher scale than nonmatriculate Tracers thought their duties were identical . The court, further on the same reasoning distinguished Mervyn Coutindo & Ors. Collector of Customs Bombay & Ors.,[1966] 3 SCR 600 and S.M. Pandit and others, etc. v. state of Gujarat and 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 educations. The court then concluded :
"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 Engineers, be
classified on the basis of
educational qualification. The rule
providing that graduates shall be
eligible for such promotion to the
exclusion of diploma-holders 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. Sharma and others v. Municipal Corporation of Delhi and others, [1983] 3 SCR 372 372 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 diplomaholder Junior Engineers. The degree-holders 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 don e 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 case where the writ petitioners wanted such a classification to be 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 necessity for making such a classification that quotas could be prescribed on the basis of educations. It is true that the following observation made in that case while dealing with the relief claimed, do support the petitioner:
" Prayer No. 4 is to declare the
petitioner Graduate Engineers as a
separate category amongst Junior
Engineers and give them equal quota
like the Diploma holder Junior
Engineer‘s out of the 50% quota for
promotion a Assistant Engineers.
This cannot be done except by
carving out two classes in the same
category of Junior Engineers o
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 on seniority is well known and
permissible. The Junior Engineers
do the same kind of work and bear
the same responsibility 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 observation are per incuriam as regards the next contention, admittedly neither the practice followed till 1988, nor the resolution passed by the respondent Corporation in 1988 nor the resolution passed in accordance with section 64 of the Act. It is well settled that in the absence of rule or regulation the authority can prescribe 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 impugned resolution.
The proposition that in the absence of the rules and regulations, the authority can act by executive instruction finds direct support in Mysore state Road Transport 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. In view of the above, the petition stands dismissed. G.N Petition dismissed.