TMI Blog2008 (9) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... omote him to the said post. 2. To appreciate the points raised in the present appeal, few relevant facts may be noted. 3. The Uttar Pradesh Power Corporation (`Corporation' for short) (previously known as Uttar Pradesh State Electricity Board) is a `Board' as defined in Clause (2) of Section 2 and constituted under Section 5 of the Electricity (Supply) Act, 1948 (hereinafter referred to as `the Act'). It is thus an instrumentality of State within the meaning of Article 12 of the Constitution. For conditions of service of its employees, the Board, in exercise of power conferred by Clause(c) of Section 79 of the Act framed `regulations' known as the Uttar Pradesh State Electricity Board Service of Engineers Regulations, 1970 (hereinafter referred to as `the regulations'). The regulations are thus statutory in nature. They deal with appointment of Engineers, their promotion and other service conditions. 4. The regulations, inter alia, provide for appointment and promotion to the following posts; (i) Chief Engineer Level-I (ii) Chief Engineer Level-II (iii) Superintending Engineer (iv) Executive Engineer (v) Assistant Engineer 5. The pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Superintending Engineer. For that purpose, categories were to be fixed. It was stated that under the regulations, Executive Engineers placed in Categories I and II could be promoted to the promotional post of Superintending Engineer. Executive Engineers in Category III were not considered eligible for promotion. According to the counsel, once an Executive Engineer is considered eligible to the promotional post of Superintending Engineer either because his name is found in Category I or Category II, inter se seniority of such Executive Engineers was required to be maintained and promotion as Superintending Engineer was to be given on the basis of such seniority. 10. It was not disputed by the counsel that the writ petitioner was placed in Category I as he had obtained maximum marks. He was, hence, eligible and qualified to be promoted as Superintending Engineer. But the case of the Corporation was that several other Executive Engineers were also found suitable and eligible who were placed in Category II. In view of the fact that they were senior to the writ- petitioner, their cases were considered before the case of the writ-petitioner as they were required to be promoted. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancy of Superintending Engineer to the writ petitioner. 14. The learned counsel for the appellant- Corporation contended that the counsel appearing for the Corporation had no power or authority to make any concession on behalf of the Corporation and no order could have been made on `so called' concession by the advocate for the Corporation. It was urged that even otherwise, it is well settled that there can be no concession on a question of law and, hence, even if such concession was made, it was of no avail. Since the writ petitioner had no right to get promotion, notwithstanding concession or statement by the counsel for the Corporation, neither mandamus could have been issued by the High Court nor direction could have been given to the Corporation to offer first vacancy of Superintending Engineer to the writ petitioner. 15. The learned counsel for respondent NO.2-State supported the stand taken by the Corporation and submitted that the High Court was wrong in issuing the direction to the Corporation and the said order deserves to be set aside. 16. The learned counsel for the writ petitioner, on the other hand, supported the order passed by the High Court. The couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the post of Assistant Engineer from three different cadres, viz., (i) by appointment from amongst Trained Engineers (65.1/3%), (ii) by promotion from amongst members of Junior Engineers (33.1/3%), and (iii) by promotion from amongst the confirmed and qualified Computers (Selection Grade) (E/M) (1.13%). 19. Clause (2) of Regulation 5 reads; (2) Appointments to the other higher posts shall be made by promotion on the basis of selections which will be made in accordance with the procedure laid down in Appendix `D'. 20. Regulation 6 provides for `Reservation of Vacancies'. Part IV prescribes `Qualifications'. Part V relates to `Appointment, Probation and Confirmation'. Regulation 18 provides for appointment to the posts of Executive Engineer, Superintending Engineer, Chief Engineer (Level II) and Chief Engineer (Level I) and reads as under: Appointment to the posts of Executive Engineer, Superintending Engineer, Chief Engineer (Level-II) and Chief Engineer (Level-I).- (1) Appointment to the posts higher than that of Assistant Engineer shall be made by the Appointing Authority from the `Select List' prepared in Rule 8(1) of Appendix `D' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers selected for the posts above Superintending Engineer shall be placed before the Board for approval. (3) The list so prepared shall be reviewed and revised every year and fresh names added to it, if necessary. (4) If, in the process of selection, review or revision, it is proposed to supersede any officer of the post from which the selection is made, the Selection Committee shall record its reasons for the suppression. The reasons so recorded shall, however, not be communicated. (emphasis supplied) 24. Attention of the Court was also invited to an Office Memorandum dated July 11, 1996. The said O.M. reads as under: Uttar Pradesh State Electricity Board, Shakti Bhavan, 14, Ahoka Marg, Lucknow. No:-1327 - P FP/SEB-29/96-14P FP/87 Dated:-11th July 1996. Office Memorandum The Board has laid down the procedure, as per annexure, for granting promotions, to the posts of all the cadres, which are filled on the basis of recommendations of the Departmental Selection Committees, on the basis of criteria, Merit and Seniority subject to rejection of unfit . The same shall come into force, with immediate effect. By Order of the Board Sd/- illegible [Ranveer S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending Engineer and equivalent officers securing seventy (60) percent (that is 120) marks shall be classified in the category-2. Category No.3 Officers securing marks below the marks as laid down for category No.2 shall be classified in category No.3. 27. Thus, for the purpose of promotion to the post of Superintending Engineer, Executive Engineers are to be divided in the following three Categories on the basis of marks obtained; Category Marks obtained (i) Category I 180 or more (ii) Category II 120 to 179 (iii) Category III Below 120 28. Finally, para VIII deals with `Selection and Preparation of Select List', a step before a person is promoted to the higher post on the basis of his placement in the list and reads; [VIII] Selection and preparation of select list:- (a) The officers, classified in category No.3 as per provisions of clause (vii) supra, shall not be fit for selection to any post. (b) Subsequent to the classification/ categorization of the candidates, in accordance with clause (vii) supra, firstly the officers of category-1 shall be selected according to their seniority. Thereafter, if need be, for remaining vacancies the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is explicitly clear. Posts of Chief Engineer I and II as also of Superintending Engineer are considered as `higher' posts and sole criterion for promotion to these posts is `merit'. Promotion to the post of Executive Engineer from the post of Assistant Engineer, on the other hand, is based on `seniority subject to rejection of unfit'. In other words, the test of promotion to the post of Superintending Engineer (as also Chief Engineer I and II) and to the post of Executive Engineer is different. Whereas in the former, it is the `merit' (positive test) which is relevant and material, in the latter, it is `seniority subject to rejection of unfit' (negative test), which is important. It is in the light of the `positive test' that selection to the promotional post of Superintending Engineer was to be made and names of eligible and qualified Executive Engineers were to be placed in different Categories i.e. I, II (and III) on the basis of marks obtained by them. Executive Engineers who find place in Category I are considered `most suitable' for the promotional post of Superintending Engineer. Once a person finds his placement in a particular Category (for inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. 36. In the present case, the sole criterion for promotion of an Executive Engineer to the post of Superintending Engineer is `merit'. The Regulations, therefore, contemplate preparation of different select lists and allotment of marks. An Executive Engineer having 90% marks i.e. 180 or more out of 200 are to be placed in Category I, while Executive Engineer having 60% or more i.e. 120 or more (up to 179) are to be found in Category II. Such classification, in our considered opinion, is perfectly reasonable and wholly rational. The classification neither offends Article 14, nor Article 16 nor is otherwise unreasonable infringing Article 19 of the Constitution. We have, therefore, no hesitation in coming to the conclusion that Executive Engineers placed in Category I and Category II are `unequals'. 37. It is well-settled that equals cannot be treated unequally. But it is equally well settled that unequals cannot be treated equally. Treating of unequals as equals would as well offend the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. The High Court was, therefore, right in holding that Executive Engineers placed in Category I must get p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt in regulations being declared ultra vires. The High Court, in our opinion, rightly not accepted such interpretation and we see no infirmity therein. 40. There cannot be two opinions that a concession of law cannot bind a party. [Vide B.S. Bajwa Anr. v. State of Punjab Ors. (1998) 2 SCC 523; Union of India v. Mohanlal Likumal Punjabi, (2004) 3 SCC 628; Union of India Anr. v. S.C. Parashar, (2006) 3 SCC 167]. The learned counsel appearing for the writ petitioner also did not dispute this proposition. In our opinion, however, the so called `concession' was not against law. On the contrary, it was in consonance with the scheme of statutory regulations as also consistent with the Constitution. We have, therefore, kept aside the `so called' concession and have considered the question in the light of statutory regulations referred to above. Under the regulations, only one view is possible which has been taken by the High Court and to us, the said view is correct. 41. For the foregoing reasons, we see no substance in the appeal filed by the Corporation, the same deserves to be dismissed and is hereby dismissed. 42. The appeal is accordingly dismissed with costs qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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