# SHAMKANT NARAYAN DESHPANDE v. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND ANR

- **Citation:** [1992] Supp. 2 S.C.R. 95
- **Court:** Supreme Court of India
- **Decided:** 1992-10-21
- **Bench:** P.B. Sawant, G.N Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shamkant-narayan-deshpande-v-maharashtra-industrial-development-corporation-and-11887
- **Pages:** 6

## Headnote

Civil Services :
Maharashtra Industrial Development Act, 1961 :
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 :
Articles 14, Z<r-Promotion--Officers holding the same post-Clas·
sification on tht: basis of qualificalion-U'hether violative of
A
B
c
D
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.
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,
95
H
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,
B
c
a valid classification can be made among the members holding the same
post on the basis of their qualifications. 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 qualifications. [99-D]
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1
SCR 771, followed.
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
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
F
G
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.

## Text

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1
SHAMKANT NARAYAN DESHPANDE
v.
MAHARASHTRA INDUSTRIAL DEVELOPMENT
CORPORATION AND ANR.
OCTOBER 21, 1992
[P.B. SAWANT AND G.N RAY, JJ.J
Civil Services :
Maharashtra Industrial Development Act, 1961 :
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 :
Articles 14, Z<r-Promotion--Officers holding the same post-Clas·
sification on tht: basis of qualificalion-U'hether violative of
A
B
c
D
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.
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,
95
H
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,
B
c
a valid classification can be made among the members holding the same
post on the basis of their qualifications. 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 qualifications. [99-D]
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1
SCR 771, followed.
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
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
F
G
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)
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.
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
I'
I
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J
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SHAMKANT DESHPANDE v. IND. DEV. CORPN. [SA WANT, 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-cumseniority. This was so according to the practice followed by the Corporation 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
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
B
c
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 :
(i) that no classification could be made among the Executive Engineers on the basis of their educational qualifications 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 list 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 by a statutory rule or regulation framed
under Section 64 of the said Act. A mere resolution or an
exe_cutive instruction could not effect such discrimination.
E
F
G
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
B
c
of the Constitution The Court has observed there that in State of Mysore
& 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
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 consideration of educational qualifications which was not a discrimination in
relation to the source of recruitment. The Court also pointed out that the
E
F
G
H
very Bench which decided Rosha11 Lat's case [supra] held about a fortnight
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,
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 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 qualifications. 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 degreeholder Junior Engineers and diploma-holder Junior Engineers. The degree-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 necessity 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 :
" ...... 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 ...... ".
E
F
G
However, these observations have been made without noticing the
decision in Khosa's case (Supra). Hence, the observations are per incuriani. H
A
B
c
JOO
SUPREME COURT REPORTS IJ992J SUPP. 2 S.C.R.
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
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
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.
..