l Leave petition c No 4748 of 1991
From the Judgment and Order dated 21191 of the Bombay High Court in WP No 3481 of 1990
NB Shetye PM 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 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 No2 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
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
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 vs Triloki Nath Khosa  Ors   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
vs P Narasing Rao  and The Union of India and others vs DrMrs SB Kholi   it was already held that classification on the basis of educational qualification was permissible
The Court then referred to Roshan Lal Tandon vs Union of India  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  Ors1966 3 SCR 600 and SM Pandit and others etc
vs 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 HC Sharma and others vs Municipal Corporation of Delhi and others  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 Engineers 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 vs Gopinath Gundachar char 1968 1 SCR 767 and vs Balasubramaniam and others vs Tamil Nadu housing Board and others  In view of the above the petition stands dismissed
GN Petition dismissed


Summary:
The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of the Government
The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer was 12 years for diploma holders and 8 years for such Sub Engineers who obtained the degree of graduation in the course of service
By an executive order dated 721989 quota of direct recruitment was reduced to 50 per cent and the quota by promotion from the Sub Engineers Draftsman increased to 50 per cent
The 50 per cent quota by promotion was sub divided
The promotion quota for category of the Graduate Sub Engineers completing 8 years of service was 10
The principle of counting the seniority was from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering
The Departmental Promotion Committee considered the cases of 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers and by order dated 4121989 it prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer
On 6121989 the Government promoted one MBJoshi and six others as Assistant Engineer who are appellants in appeal arising out of Special Leave Petition No2507 of 1992
The Private respondents in the appeal filed and application in the State Administrative Tribunal challenging the orders dated 4121989 and 6121989
They contended that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the graduate degree of engineering and not from the date of attaining the graduate degree of engineering and not from the date of appointment as Sub Engineer
The Tribunal allowed the petition placing reliance on its earlier decision in Sanaulla Sunzani V State of MP  Ors TA No 77188
The Tribunal held that the applicants private respondents in the appeal having secured the degrees in engineering prior to respondents 3 to 9  the appellants in the appeal would rank higher in the graduation list of Graduate Sub Engineers
It directed the State Government and Engineer in Chief Public Health Engineering Department to convene a special DPC to consider the applicants for promotion to the post of Assistant Engineers as on 4121989 and if found suitable for promotion promote them and give them seniority over respondents 3 to 9
Identical questions of law were involved in all the appeals CA Nos 4255 57 of 1992 which were preferred against the judgments of the Tribunals
The appellants contended that so far as the post of Sub Engineers was concerned the minimum qualification prescribed was diploma holder and the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder that the scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers that in the service jurisprudence where the rules were silent the seniority was always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer and that the DPC rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6121989
2 The respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years that the period of 8 years to be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date
Allowing the appeals this Court HELD 11
It is a well settle principle of service jurisprudence that in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance12 B 12
The Government itself has been adopting the practice and making promotion as contended by the appellants
Such practice is upheld by the Court
12 A 13
The Rules do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering
The Rules clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub Engineer shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons
11 C D 14
If the period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit
11 G H 15
The Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government
12 D E N Suresh Nathan  Anr
vs Union of India  Ors 1992 Supp1 SCC 584 explained