Holding

Promotion to the post of Superintending Engineer is governed solely by merit; only Executive Engineers placed in Category I are to be considered before any in Category II, and the High Court’s direction is correct.

Summary

The writ petitioners, Ayodhya Prasad Mishra and another, were Executive Engineers who, after scoring the highest marks, were placed in Category I under the Uttar Pradesh State Electricity Board Service of Engineers Regulations, 1970, and sought promotion to Superintending Engineer. The Corporation refused to promote them, arguing that seniority of Category II officers should be considered. The High Court directed the Corporation to offer the first vacant Superintending Engineer post to the petitioner, holding that promotion to that post is based on merit and Category I officers have priority over Category II officers. On appeal, the Supreme Court examined the statutory scheme, held that the promotion criteria are indeed merit‑based, that the classification into Category I and II is a reasonable classification under Articles 14 and 16, and that a concession by counsel does not bind the Corporation. Consequently, the Court affirmed the High Court’s order and dismissed the appeal.

Issues considered

The correct criterion for promotion of an Executive Engineer to Superintending Engineer under the 1970 Regulations – merit (Category I) versus seniority (Category II).
Whether the High Court’s direction to offer the first vacancy to the petitioner is legally valid.
Whether the classification of Executive Engineers into Category I and Category II violates constitutional equality provisions (Arts 14, 16).
Whether a concession made by counsel on behalf of the Corporation is binding on the Corporation.

Legislation cited

Constitution of Indias. Article 12, s. Article 14, s. Article 16, s. Article 19
Electricity (Supply) Act, 1948s. 2, s. 5, s. 79

Subjects

promotionmeritseniorityservice regulationsequalityArticle 14Article 16departmental promotion committeecategorisationU.P. Power Corporation

Judgment

[2008] 13 S.C.R. 373
. j

U.P. POWER CORPORATION LTD. A
v.
AYODHYA PRASAD MISHRA AND ANR.
(Civil Appeal No. 670 of 2008)
--~ SEPTEMBER 11, 2008
B
[C.K. THAKKER AND LOKESHWAR SINGH PANTA,
JJ.]

Service law: Uttar Pradesh State Electricity Board Service
of Engineers Regulations, 1970: c
Promotion to the post of Superintending Engineer -
Criteria for - Executive Engineer placed in category I - Not
promoted - Writ petition - Case of Employer-Corporation
that Executive Engineers placed in category II were senior to
"'." petitioner and their case were to be considered before the D
case of petitioner - High Court directed Corporation to offer
first available vacancy of Superintending Engineer to petitioner
and to promote him on said vacancy - Challenge against -
Held: The sole criterion for promotion of Executive Engineer to
post of Superintending Engineer is 'merit' - Regulations E
contemplate preparation of different select lists and allotment
of marks - If any Executive Engineer placed in Category I is
available for promotional post of Superintending Engineer,

•.- .. Executive Engineer in Category II cannot be considered for
such promotion even if such Executive Engineer in Category F
II, is senior to Executive Engineer, who because of his marks
and ranking, got placement in Category I - Executive Engineers
placed in Category I and Category II are unequals - Thus,
Executive Engineers placed in Category I must get priority and
preference for promotion to the post of Superintendent Engineer
G
over Executive Engineers found in Category II.
Placement of Executive Engineers in Category I and
Category JI - Based on marks - Held: Is reasonable and
rational - Constitution of India, 1950 - Article 14.
373 H
374 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Constitution of India, 1950: Articles 14 and 16 - Equals
cannot be treated unequally - Treating of unequals as equals
would also offend the doctrine of equality enshrined in Articles
14 and 16.
Concession of law - Binding effect of - Held: Cannot
B bind a party
...
The case of respondent No.1 was that he was
working as Executive Engineer and was eligible and
qualified to be promoted as Superintending Engineer
c under the Uttar Pradesh State Electricity Board Service
of Engineers Regulations, 1970. He was considered by
the Departmental Promotion Committee (DPC) and he was
found fit and on the basis of marks obtained by him, he
was placed in Category-I. Though he was in Category-I
and had secured maximum marks (191.3 out of 200), he
D
was not promoted. He filed writ petition before High Court ....
on the ground that the action of appellant-Corporation
was illegal, unlawful and inconsistent with the regulations.
High Court allowed the writ petition and directed the
Corporation to offer to the respondent No.1 first available
E vacancy of Superintending Engineer and to promote him
on the said vacancy. The High Court also noted that the
counsel of the Corporation stated that Corporation had

F
no objection in giving first available vacancy of
Superintending Engineer to the respondent no.1.
In appeal to this Court, the appellant-Corporation
contended that the action of not promoting respondent
. /

no.1 was in consonance with the statutory regulations
framed by the Corporation; that the counsel appearing
for the Corporation had no power or authority to make
G
any concession on behalf of Corporation and no order
could have been made on so called concession by the
counsel; that even otherwise there can be no concession
on question of law.
H Dismissing the appeal, the Court
U.P. POWER CORPORATION LTD. v. AYODHYA 375
PRASAD MISHRA & ANR.

HELD: 1.1. The scheme of promotion is explicitly A
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 B
on 'seniority subject to rejection of unfit'. Thus, 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, c
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 promotiona! post of Superintending
Engineer was to be made and names of eligible and
qualified Executive Engineers were to be placed in
0
different Categories i.e. I, II (and Ill) 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
instance Category I), he retains his original seniority E
irrespective of marks obtained by him. In other words,
after selection and placement of Executive Engineers in
a particular category, there will be rearrangement on the
basis of inter-se seniority. But the said exercise was to be
undertaken only in the same category and not in the other F
category. [Para 31] [391 A·E] •
1.2. There is no doubt that if any Executive Engineer
who has been placed in Category I and is available for
the promotional post of Superintending Engineer, no G
Executive Engineer who is included in Category II can be
considered for such promotion even if such Executive
Engineer, who is in Category II, is senior to an Executive
Engineer, who because of his marks and ranking, got
entry and placement in Category I. The regulations H
376 SUPREME COURT REPORTS [2008] 13 S.C.R. .
A provide for consideration of cases of Executive Engineers
by Departmental Promotion Committee (DPC) and
placement of such Executive Engineers either in
Category I or Category II on the basis of marks obtained
by them. Placement of Executive Engineers in Category
B I and Category ll is lawful, reasonable and rational. [Paras
,. .
32, 33] [391 F-G, 392 A-8]
2.1. It is well settled that Article 14 is designed to
prevent discrimination. It seeks to prohibit a person or
class of persons from being singled out from others
c similarly situated or circumstanced for the purpose of
being specially subjected to discrimination by hostile
legislation. It, however, does not prohibit classification, if
such classification is based on legal and relevant

D
considerations. [Para 34] [392 C-D]
2.2. Every classification, to be legal, valid and
permissible, must fulfil the twin-test, namely, the
. ~

classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped
together from others left out of the group; and such
E differentia must have a rational relation to the object
sought to be achieved by the statute or legislation in
question. [Para 35] [392 D-E]
2.3. The sole criterion for promotion of an Executive
Engineer to the post of Superintending Engineer is 'merit'.
F 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
G found in Category II. Such classification, 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.
Executive Engineers placed in Category I and Category
H
II are 'unequals'. [Para 36] [392 F-H, 393-A]
U.P. POWER CORPORATION LTD. v. AYODHYA 377
PRASAD MISHRA & ANR.

2.4. It is well-settled that equals cannot be treated A
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 B
in Category I must get priority and preference for promotion
to the post of Superintendent Engineer over Executive
Engineers found in Category II. [Para 37] [393-8]
Olga Tellis v. Municipal Corporation, Bombay (1985) 3
SCC545; Japani Sahoo v.Chandra Sekhar Mohanty (2007) C
7 sec 394 - relied on.
N. Suresh Nathan v. Union of India, (1992) Supp 1 SCC
584; S.B. Bhattacharjee v. S.D. Majumdar & Ors., (2007) 6
SCR743 - held inapplicable.
D
3. There cannot be two opinions that a concession
of law cannot bind a party. However, the so called
'concession' by the counsel for the Corporation was not
against law. On the contrary, it was in consonance with
the scheme of statutory regulations as also consistent E
with the Constitution. Therefore, keeping aside the 'so
called' concession and considering the question in the
light of statutory regulations, only one view is possible
which has been correctly taken by the High Court. [Para
40] [394 C-F] F
B. S. Bajwa & Anr v. State of Punjab & Ors. (1998) 2 SCC
523; Union of India v. Mohan/al Likumal Punjabi, (2004) 3
SCC 628; Union of India & Anr v. S. C. Parashar, (2006) 3
sec 167 - relied on.
G
Case Law Reference
(1985) 3 sec 545 relied on Para 38
(2001) 1 sec 394 relied on Para 38
(1992) Supp 1 SCC 584 held inapplicable Para 38
H
378 SUPREME COURT REPORTS [2008] 13 S.C.R.

A (2007) 6 SCR 743 held inapplicable Para 38
(1998) 2 sec s23 relied on Para 40
(2004) 3 sec 628 relied on Para 40
(2006) 3 sec 167 relied on Para 40
B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 670
of 2008
From the final Judgment and Order dated 17.5.2007 of
the High Court of Judicature at Allahabad, Lucknow Bench,
c Lucknow in C.W.P. No. 491 (S/B) of 2007
Jitendra Mohan Sharma for the Appellant.
Shail Kumnr Dwivedi, A.AG., U.U. Lalit, Vishwajit Singn,
Vandana Mishra and Anuvral Sharma for the Respondents.
D The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present appeal is filed by the
Uttar Pradesh Power Corporation Limited, Lucknow against
the judgment and order dated May 17, 2007 passed by the
E High Court of Judicature at Allahabad (Lucknow Bench) in Writ
Petition No. 491 (S/B) of 2007. By the said order, the Division
Bench of the High Court held that criterion for promotion to the
post of Superintending Engineer from the post of Executive
Engineer is merit i.e. selection and placement of an Executive
Engineer in Category I prior to other officers placed in Category-
F II. A direction was issued by the Court to the Corporation to
,. -
offer to the writ-petitioner first available vacancy of
Superintending Engineer and to promote him to the said post.
2. To appreciate the points raised in the present appeal,
G 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
H (hereinafter referred to as 'the Act'). It is thus an instrumentality
U.P. POWER CORPORATION LTD. v. AYObHYA 379
PRASAD MISHRA & ANR. [C.K. THAKKER, J.]

of "State" within the meaning of Article 12 of the Constitution. A
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
•1 (hereinafter referred to as 'the regulations'). The regulations B
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)
c
Chief Engineer Level-I

t
(ii) Chief Engineer Level-II
D
"
' ~
t
(iii) Superintending Engineer

t
E
(iv) Executive Engineer

t
(v) Assistant Engineer
- ~
5. The present appeal relates to appointment by promotion F
to the post of Superintending Engineer from the post of
Executive Engineer. It was the case of writ petitioner (respondent
No. 1) that he was working as Executive Engineer and was
eligible and qualified to be promoted as Superintending
Engineer under the regulations. In accordance with the G
regulations, the case of the writ-petitioner was considered by
~
the Departmental Promotion Committee (DPC), he was found
fit and on the basis of marks obtained by him, he was placed
in Category-I. It was his case that there were several posts of
H
380 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Superintending Engineer which were required to be filled in
initially from Executive Engineers placed in Category-I and
thereafter in the event of more vacancies being available, the
cases of Executive Engineers placed in Category-II were to be

B
considered. Unfortunately, however, according to the writ
petitioner, though he was in Category-I and had secured
maximum marks (191.3 out of 200), he was not promoted. The
. ,

said action was illegal, unlawful and inconsistent with the
regulations which constrained the writ-petitioner to approach
the High Court by instituting a writ petition.
c 6. The High Court was convinced that the action of the
Corporation was illegal and contrary to law. Accordingly, a
direction was issued by the High Court to the Corporation to
offer to the writ-petitioner first available vacancy of
Superintending Engineer and to promote him on the said
D vacancy. That action is challenged by the Corporation in this
Court by filing the present appeal. • 4

7. On September 5, 2007, notice was issued by this Court
and time was granted to file counter affidavit which was,
thereafter, filed. By an order dated March 10, 2008, the Bench
E presided over by Hon'ble the Chief Justice of India directed the
Registry to post the appeal for final hearing during the first part
of summer vacation and accordingly the matter was placed for
final hearing before us.
8. We have heard learned counsel for the parties.
F ~ -
9. Learned counsel for the Corporation contended that
the order passed by the High Court was illegal and contrary to
law. He submitted that the action of not promoting the writ
petitioner was in consonance with the statutory regulations
G framed by the Corporation. It was urged that under the
regulations, promotions are to be given from the post of
Executive Engineer to the post of Superintending Engineer.
For that purpose, categories were to be fixed. It was stated that .....
under the regulations, Executive Engineers placed in
H Categories I and II could be promoted to the promotional post
U.P. POWER CORPORATION LTD. v. AYODHYA 381
PRASAD MISHRA & ANR. [C.K. THAKKER, J.]

of Superintending Engineer. Executive Engineers in Category A
Ill 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
'-1
of such Executive Engineers was required to be maintained B
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 C
Superintending Engineer. But the ca.se 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 D
promoted. Such action of the Corporation was legal and lawful
and the writ-petitioner had no right to make grievance.
11. The High Court, by the impugned order held that
considering the scheme of statutory regulations, it was clear
that Executive Engineers who obtained more marks and placed E
in Category I would get priority in getting promotion as
Superintending Engineer over those Executive Engineers who
were found eligible and qualified but because of less marks
found their placement in Category II. Promotion to the post of
the Superintending Engineer was to be made on 'merit' and it F
was precisely for that reason that separate lists were to be
prepared in three categories viz., Category I, Category II and
Category Ill. Executive Engineers placed in Category Ill were
held ineligible for promotion. The High Court, therefore, held
that it was not open to the Corporation to ignore legal and G
legitimate claim of Executive Engineer placed in Category I by
giving promotion to an Executive Engineer found eligible and
qualified but placed in Category II. Executive Engineers of
Category I must. get. precedence for promotion as
Superintending Engineers over those Executive Engineers who H
382 SUPREME COURT REPORTS [2008] 13 S.C.R.
•
A were eligible and qualified to be promoted as Superintending
Engineers but included in Category II.
12. The High Court held that in view of settled legal position,
the writ petitioner was entitled to have offered promotion to the
post of Superintending Engineer since he was placed in
B Category I of Executive Engineers. Though the writ petitioner ~ '
had obtained highest number of marks, another Executive
Engineer, nameiy, Surya Narain Bajpai also found place in
Category I. In view of maintenance of inter se seniority, i.e.
seniority in the same category (Category I), said Surya Narain
c Bajpai was treated as senior to the writ petitioner. He was,
therefore, considered for promotion as Superintending Engineer.
It may, however, be stated that by the time the High Court heard
and decided the matter, Surya Narain Bajpai was already
promoted as Superintending Engineer. The High Court,
D therefore, directed the Board to offer to the writ-petitioner the
first post of Superintending Engineer which was to fall vacant ~ ,.
in near future.
13. The High Court stated that Mr. Sandeep Dixi:, learned
counsel, appearing for the Corporation, stated that the
E Corporation had no objection in giving the first available vacancy
of Superintending Engineer to the writ petitioner.
14. The learned counsel for the appellant-Corporation
contended that the counsel appearing for the Corporation had
F 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
G
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.
H
U.P. POWER CORPORATION LTD. v. AYODHYA 383
~
PRASAD MISHRA & ANR. [C.K. THAKKER, J.]

15. The learned counsel for respondent No.2~state A
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 B
counsel raised a preliminary objection against the maintainability
of the appeal. It was contended that the order impugned in the·
present appeal was a 'consent order' inasmuch as it was
passed by the Court on concession made by the learned
advocate appearing forthe Corporation. No appeal lies against c
an order made by the Court with consent of parties. This-Court;
therefore, may decline to hear the appellant and dismiss the -
appeal on short ground.
- 17. The counsel, however, submitted that even on merits,
"' ... D
no case has been made out by the Corporation against the
direction issued by the High Court. It was submitted that the
scheme of statutory regulations is abundantly dear and allows
no interpretation other than the one accepted by the High Court.
In accordance with the regulations, promotion from the post of
Executive Engineer to the post of Superintending Engineer E
was to be given on merit. For the said purpose, cases of eligible
Executive Engineers were to be considered and all Executive
Engineers were to be placed in three categories. Promotion
as Superintending Engineer was to be made initially from those
°" >( Executive Engineers who were placed in Category I. In case of F
availability of more vacancies of Superintending Engineers,
Executive Engineers from Category II were to be considered
and promoted. Since the writ petitioner was in Category I, his
case was to be considered before any Executive Engineer
whose name was included in Category II was to be considered. G
Since it was not done, the writ petitioner had to approach the
• 4 High Court and the High Court rightly allowed his petition. No
interference against the said order is called for and the appeal
deserves to be dismissed.
H
384 SUPREME COURT REPORTS [2008) 13 S.C.R.
...
A 18. From what is stated above, the only question which
calls for our consideration is as to how promotion should be
effected from the post of Executive Engineer to the post of
Superintending Engineer. As already noted by us, in exercise
of power under the Act, Regulations have been framed by the
B Board to which our attention has been invited by the learned
)> •

counsel for the parties. Part I is 'General' and contains 'Title,
Commencement of the Regulations and Definition of Various
Terms'. Part 11 comprises of different Cadres and 'Strength of
Service'. Part Ill specifies 'Source of Recruitment'. Regulation
c 5 declares that initial recruitment to the service shall be made
to the post of Assistant Engineer from three different cadres,
viz.,

(i) by appointment from amongst Trained Engineers
(65.1/3%),
D
(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)
E (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
F 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
G 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-I/) and
H
...
U.P. POWER CORPORATION LTD. ·v. AYODHYA 38'5 .
PRASAD MISHRA
.
& ANR.. [C.K
-
. .THAKKER, J.)·~

· · Chief Engineer (Level-I).- A'
'._ ,.
(1) Appointment to th~e posts h.igher than that of.Assistant
Engineer shall be made by the Appointing Authority from
··-.: the 'Select List' prepared in Rule 8(1) of Appendix 'D'. In
making such appointment, the order in which the names
9f the officers appear in the Select list shall be followed. 8
..,. ~ '

21._ Thus, under the scheme of Regulations of 1970,
Regulations 5(2) and 18 have to be read with Appendix 'D'.
Appendix D lays down procedure for selection to the post of
Chief Engineer (Lf:lvel_ I); Chief E_ngine~r (Level II), c·
Superintending Engineer and Executive Engineer. In the present
case; we 'are concerned with '$election to the post of
Supetintending 'Engineer. The· relevant part of App'endix 'D'
relatfng to Supehntendirig Engineer;is found in para 3 and
paras'.5 to a. · ·: · · · ·
0
22. Para 3 prescribes minimum service as Executive
Engineer so as to enable such officer to be considered eligible
for the promotional post of Superintending Engineer. Para 5
declares that for the selection to the post of Chief Engineer
(Level I), Chief Engineer (Level II) and Superintending Engineer, E
there shall be a Selection Committee consisting of the members
enum.erated therein. Most important pr()vision is four:id in para
6 which prescribes 'Criteria for Promotion'. It reads as u~der:
,. Criteria for Promotion
F
The selection to the post of Chief Engineer ·(L-1 ), Chief
Engineer {L~l I) and Superintending Engineer shall be made
on the basis of Merit while promotion to the post of E.E.
shall be based on seniorityi subjecttCi rejection of the unfit.
(emphasis supplied) G
.._. 23. Para 8 is equally important and requires 'Preparation
of a list for selection and of selected candidates'. It reads. thus;
..

Preparation of a list for selection and of selected.
candidates. H
386 SUP.REME COURT REPORTS. [2008] 13 S.C.R.

A (1) The Selectic>n Committee shall, keeping in view the
criteria, on the basis of the selection to a particular
post in the service, prepare a list of such officers as
are adjudged by it to be most suitable for promotion
to that post. >•
B (a) The list in case of selection for the post of
Superintending Engineer and above shall be
reaffanged in order of seniority on the post
from which the selection is made. The list in
the case of selection to the post of Executive
c Engineer shall be prepared in order of seniority
ofthe post of Assistant Engineer.
(b) The Chairman shall issue appointment orders
in respect of Superintending Engineer,
D
Executive Engineers (Special Grade), \. .,
Executive Engineers, Sr. Asstt. Engineers, Sr.
Asstt. Engineers {Special Grade) and Assistant
Engineers.
(c) The list of the officers selected for the posts
E 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.
"<.,...

F (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.
G
(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:
H
. U;P. POWER CORPORATION LtO. v. :AYODHYA ·387
PRASAD MISHRA &ANR. (C.K. ·THAKKER, 'J.]

Uttar Pradesh· State Electricity Board. .A
Shakti Bhavan, 14, Ahoka' Marg,
Lucknow.
No:·1327 - P &FP/SEB-29/96-14P&FP/87
·-oated:-11th July 1996. B
Office Memorandum
The Board has laid down-the procedure, as per,annexure, -
'for granting promotions, to the· posts of allJhe-.cadres,
.which are filled on the basis of recommendations of the c
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:8c>ard o
Sd/- iJ.l~gible
[RanveenSingh]
Secretary.
25. The criteria for·seleation procedure for-promotion were
.also-.mentione(Hn the Office~Memorandum. The relevant part E
""relating to selection to the post of Superintending Engine~i:.{as
~also Chief Engineer (Level I and JI)], is reprodueed hereunder;

[1] Where the criterion is 'Merit':-
..... ->(

Selection to the post of Chief Engineer [Level-I and Ill and F
· Superintending Engineer and posts equivalent 'thereto,
shall be done, in accordance with this criterion.
·{1] Eligibility:-
The Appointing Authority shall prepare separcite eligibility G
lists of senior most candidates for each category i.e.
General, Scheduled Castes and Scheduled Tril:>es, in the
light-of.vacancies available for each of the said categories
.containing names as far·as possible, three times: the
number of vacancies, subject to a minimum of eight,
388 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Provided further that, if the appointment is to be made for
vacancies, for more than one year, separate eligibility lists
shall be prepared, in respect of each such year and such
a case while preparing the eligibility lists, the number of
candidates to be included, shall be as follows:-
B (a) For the second year -
The number according to the said proportion plus
the number of vacancies for the first year.
(b) For the third year -
c
The number according to the said proportion plus
the number of vacancies for the first year and second
year.
26. Categorization of candidates was to be made on the
D basis of marks obtained on combined entries. Para VII of the
· Office Memorandum reads;
[VII} The categorization of candidates on the basis of
··marks obtained:-
~··

E Cate~ory No. 1

The candidates securing either 90% (ninety per cent)
or 180 marks or more, shall be classified into
category No.1. The earning of marks for this category
shall be done on the basis of entries reckoned for a
F period of ten years. In case entries, for any period
out of the said ten years, are not available then entries
... immediately preceding the said period, shall be taken
into account but entry for as many years of the period
under consideration shall be deemed to be omitted.
G
Category No. 2
For the post of Chief Engineer (Level-1) and
equivalent, officers securing seventy (70) per cent
(that is 140 f'llarks); for the post of Chief Engineer
H (Level-2) and equivalent, Officers securing Seventy
U.P. POWER CORPORATION LTD. v. AYODHYA 389
PRASAD MISHRA & ANR. [C.K. THAKKER, J.]

(65) percent (that is 130 marks); and for the post of A
Superintending Engineer and equivalent officers
securing seventy (60) percent(that is 120) marks
shall be classified in the category-2.

Category No. 3
B
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 C
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 Ill Below 120

28. Finally, para VIII dea.ls 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; E
JVlll] Selection and preparation of select list:-
. (a) .The officers, classified in category No.3 as per
provisions of clause (vii) supra, $hall not be fit for
selection to any post. F
(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 officers qf G
category-2 shall be selected. Thus, in this manner;
the names of all such officers having been so
selected, from within category Nos. 1 and 2, sh.all
then be rearranged, according to their respective
serials, in their original order of seniority and a select H
390 SUPREME COURT REPORTS (2008] 13 S.C.R.

A list be prepared accordingly, which shall be their inter-
se seniority list. Appointment orders shall then be
issued, in accordance with this seniority list.
(emphasis supplied)
B 29, It is the case of the writ petitioner that he was Executive
Engineer and was eligible to be considered forthe promotional
post of Superintending Engineer. On the basis of Confidential
Reports and marks obtained by him, he was placed in Category
I. According to him, he had secured highest number of marks
c ;.e. 191.3 out of 200 i.e. more than 180. He, however, conceded
that Surya Narain Bajpai was senior to him (writ-petitioner) in
the Cadre of Executive Engineers who was also found eligible
and suitable and was placed in Category I. As per the rules of
seniority, if two or more persons are placed in one and the
same Category, they will retain their inter se seniority in such
0
Category. In view of the said provision, though the writ petitioner
was at the top in the merit list in Category I, Surya Narain
Bajpai who was also in Category I, maintained his seniority
over the seniority of the writ petitioner. The writ petitioner,
therefore, could be promoted immediately after said Surya
E Narain Bajpai. But all other Executive Engineers who were
placed in Category II could not be considered for the promotional
post of Superintending Engineer before the Executive
Engineers placed in Category I were promoted as
Superintending Engineers and the list got exhausted. It was
F irrespective of seniority in the cadre of Executive Engineer.
The High Court upheld the said contention.
30. The learned counsel for the Corporation vehemently
contended that under the scheme of promotion, Executive
G Engineers retained their seniority for the purpose of getting
promotional post of Superintending Engineer irrespective of
their placement in Category I or Category II. For that the counsel
relied upon para 8(1 }{a) referred to above, which, according to
the counsel, protects seniority of all officers in the cadre of
Executive Engineers.
H
U.P. POWERCORPORATION LTD. v. AYODHYA 391
PRASAD MISHRA & ANR. [C.K. THAKKER, J.]

31. We express our inability to agree with the learned A
counsel. In our judgment, the scheme of promotion is explicitly
clear. Posts of Chief ~ngineer I and II as also of Superintending
Engineer are considered as 'higher' posts and sole criterion
for promotion to these posts is 'merif. Promotion to the post of
Executive Engineer from the post of Assistant Engineer, on the B
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 c
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
0
i.e. I, II (and Ill) 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
instance Category I), he retains his original seniority irrespective
of marks obtained by him. In other words, after selection and .E
placementof Executive Engineers in a particular category, there
will be rearrangement on the basis of inter-se seniority. But the
said exercise was to be undertaken only in the same category
and not in the other category.
F
32. There is no doubt in our mind that if any Executive
Engineer who has been placed in Category I and is available for
the promotional post of Superintending Engineer, no Executive
Engineer who is included in Category II can be considered for
such promotion even if such Executive Engineer, who is in G
Category II, is senior to an Executive Engineer, who because of
his marks and ranking, got entry and placement in Category I. To
put it differently, Executive Engineers in Category I and Category
II cannot be said to be similarly situated. They belong to different
class. They, therefore, cannot be treated equally.
H
/

392 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 33. We have already dealt with the scheme of statutory
regulations. Higher posts of Superintending Engineer and above
(Chief Engineer Level 1 and Chief Engineer Level II) are to be
filled in by way of promotion only on 'merit'. Precisely for that reason,
regulations provide for consideration of cases of Executive
B Engineers by Departmental Promotion Committee (DPC) and ••
placement of such Executive Engineers either in Category I or
Category II on the basis of marks obtained by them. In our
· considered opinion, placement of Executive Engineers in Category
I and Category II is lawful, reasonable and rational.
C 34. It is well settled that Article 14 is designed to prevent
discrimination. It seeks to prohibit a person or class of persons from
being singled out from others similarly situated or circumstanced for
the purpose of being specially subjected to discrimination by hostile
legislation. It, however, does not prohibit classification, if such
D classification is based on legal and relevant considerations.
35. Every classification, to be legal, valid and permissible,
must fulfil the twin-test, namely,
(i) the classification must be founded on an intelligible
E differentia which distinguishes persons or things that are
grouped together from others left out of the group; and
(ii) such differentia must have a rational relation to the
object sought to be achieved by the statute or
legislation in question.
F
36. Jn 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
G 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
JI. 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
H
U.P. POWER CORPORATION LTD. v. AYODHYA 393
· PRASAD MISHRA & ANR. [CX. THAKKER, J.]

·.Article 19 of the Constitution. We have, therefore, no hesitation A
'in 'coming to the conclusion that Executive Engineers pla.tea in
Category I and Category II are 'unequ~/s:. '." . ·
:f· ' ' ·.\>I • •' . 1 . •• , , ) •'' -j

. .. 37. It is well:settled that equals cannot be treated un~qually.
it
. But is equally. well settled that unequ~ls cannot qe treat~d
. equally. Treating 'of.unequals as equals would as well offer:idthe B
. doctrine of equality enshrined.in Artic!es 14 an~ 1.6 of .the
, Constitution. The High .Court was, therefore, right in holding
that Exe¢utive Engineers pfac~d in'Cate'gory I must get priority
:and. prefecence for .p~ornotion
< • • ,1., ,. ) .
·\o the
. . -' '
post
.
of. Superintel}dent
c
. ·' ' •.!

. Engineer ov!:H Executiye ,.~ngineers· found in Category II.
·Acceptance of argument of the le?,rne\:l go~rsel for the appellant : ·
Corporation that all eligible Executive Engineers maintain their
se
iiiler seniority. irrespective of 'their placen:ie,nt. in' 9ifferent
categories may result in r.egulations being declared arbitrary,
irrational or. unreasonable. A Court; of law would interpret a
0
provision which would'help sustaini'ng the validity of law by
applyirig the doctrine of 'reasonable construction' than accepting
. the interpretation which may lead such provision unsustainable
•and ·ultra vires the ,Constitution. [Vide Olga Tellis v. Municipal
· Cmporati6n, Bombay, (1985) 3 SCC 545; Japani Sahoo
v.Chandra•Sekhar Mohanty, (2007) 7 SCC 394] · E
\ .,.
t • ~ -

.
1
.';?8. It was also submitted. by the learned counsel tor the
C,orporation that the regulations have been interpreted,
understood and applied from the very beginning in the manner
·as sugges,ttic! by the Corporation. All Executive Engineers retain
theirJnter se
seniority on.ce their names are included .in the F
select list either in Category I or Category 11 for promotion to the
post of Superintending Engineer. Relying on N: Suresh Nathan
. v. Union of India, (1992) Supp ·1 SCC 584 .and S.B.
Bhattacharjee v. S.D. Majumdar & Ors., (2007) 6 SCR 743, it
was submitted that normally, a Court would not disturb past G
practice co'nsistently followed by the Department if the view
' taken ot'jxactice followed is also reasonable. '
. '

39. In our opinion, however, tl)e above pr[nciple does not
help the appellant-Corporation in fhe present case. As observed
by us, under the .Scheme of Regulations, 1970, promotion to H
394 SUPREME COURT REPORTS (2008l 13 S.C.R.

A the post of Superintending Engineer, Chief Engineer II and Chief
Engineer I is based on 'merit'. If it is so, consideration of merit
alone is relevant and material. It is, therefore, provided that
once an Executive Engineer is considered eligible and fit for
promotion and placed in a particular category (Category I or
8 Category II), he will retain his inter se seniority in the said "•
Category. But that will apply only to those Executive Engineers
who are placed in one and the same Category and not in a
different Category. An Executive Engineer of Category II cannot,
under the scheme of regulations, claim promotion over an
Executive Engineer placed in Category I. Such interpretation
C may possibly result 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
D Punjab & Ors. (1998) 2 SCC 523; Union of India v. Mohan/al '" "'
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 als·J did not dispute this
proposition. In our opinion, however, the so called 'concession'
E was not against law. On the contrary, it was in consonancewith
th~ scheme of statutory regulations as also consistentwith 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,
F only one view is possible which has be\!n taken by the High
Court and to us, the said vlew is correc~.
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.
G 42. The appeal is accordingly dismissed with costs
quantified at Rs.25,000/-.
43. Ordered accordirigly.
D.G. Appeal dismissed.
H