Shamkant
Narayan Despande Vs. Maharashtra Industrial Development Corporation & ANR [1992]
INSC 212 (21 October
1992)
[P.B.
SAWANT AND G.N. RAY, JJ.]
ACT:
Civil services
:
Maharashtra Industrial Development Act, 1991:
Section
64- Resolution passed in 1988- Promotion to the post of superintending
Engineer- Resolution reserving 75% of posts Engineering graduates and 25% to
diploma holders - validity of.
Constitution
of India, 1950:
Article
14, 16-Promotion-officer holding the same post- classification on the basis of
qualification- whether violative of.
HEADNOTE:
The
petitioner, a diploma holders in Engineering, was Executive Engineer in the
respondent-Corporation. He would have been promoted as superintending Engineer,
but for a Resolution passed in 1988 making 75% of the posts of Superintending
Engineers available to Executive Engineers with diploma in Engineering degrees
and 25% to Executive Engineers with diploma in Engineering Respondent No.2 who
junior to petitioner but had engineering degree was promoted as superintending
Engineer. The petitioner challenged the promotion of Respondent No. 2 before
the High court by way of a writ petition. The High court having dismissed the
same, the petitioner preferred the present special Leave petition.
On behalf
of the petitioner, it was contended that since there was a common seniority
list of Executive Engineers, any classification on the basis of education
qualification was discriminatory and violative of Articles 14 and 16 of the
Constitution; and that in the absence of any statutory rule or regulation, a
mere resolution could not effect such discrimination.
Dismissing
the petition, this court,
HELD:
1.1. It is now well settled that for the purpose of promotion, a valid
classification can be made among the members holding the same post on the basis
of their qualification. Such a classification is permissible 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 consideration 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 qualification.
[99-D] State of Jammu & Kashmir v. Triloki Nath Khosa & ors., [1974]1
SCR 771, followed.
H.C.
Sharma & 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 1988, nor
the resolution passed by the respondent Corporation in 1988 was a regulation passed
in accordance with section 64 of the Act. However, it is well settled that in
the absence of a rule or regulation, the authority can prescribe service
conditions by executive instructions and this is what was done till year 1988
and is also sought to be done since 1988 by the resolution under challenge.
[100 A,B] 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, relied on.
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 diploma- holders 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 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 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 non- matriculate 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 diploma- holder 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.
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