REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 670 OF 2008 U.P. POWER CORPORATION LTD. …  APPELLANT

VERSUS

AYODHYA PRASAD MISHRA & ANR. …   RESPONDENTS

J U D G M E N T 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  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-

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,  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

2

‘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  present  appeal  relates  to

appointment  by  promotion  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

3

working as Executive Engineer and was eligible

and qualified to be promoted as Superintending

Engineer under the regulations. In accordance

with the 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  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  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.

4

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 vacancy. That action is

challenged by the Corporation in this Court by

filing the present appeal.

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  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.

9. Learned  counsel  for  the  Corporation

contended that the order passed by the High

5

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  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 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

6

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. 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 in

Category  I  would  get  priority  in  getting

promotion as Superintending Engineer over those

7

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 was precisely for that reason

that  separate  lists  were  to  be  prepared  in

three categories viz., Category I, Category II

and Category III. Executive Engineers placed in

Category  III  were  held  ineligible  for

promotion. The High Court, therefore, held that

it was not open to the Corporation to ignore

legal  and  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

were eligible and qualified to be promoted as

Superintending  Engineers  but  included  in

Category II.

8

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 Category I of Executive Engineers. Though

the writ petitioner had obtained highest number

of marks, another Executive Engineer, namely,

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  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, therefore, directed the Board

to offer to the writ-petitioner the first post

of Superintending Engineer which was to fall

vacant in near future.

9

13. The High Court stated that Mr. Sandeep

Dixit,  learned  counsel,  appearing  for  the

Corporation, stated that the 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 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

10

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 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  for  the  Corporation.  No

appeal lies against 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.

11

17. The  counsel,  however,  submitted  that

even on merits, 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

clear 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  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 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

12

included in Category II was to be considered.

Since it was not done, the writ petitioner had

to approach the 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. 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 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 II comprises of different Cadres

and ‘Strength of Service’. Part III specifies

‘Source of Recruitment’. Regulation 5 declares

that initial recruitment to the service shall

13

be made to 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

14

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’. In making such appointment, the order in which the  names of the officers appear in the Select list shall be followed.

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 (Level I), Chief Engineer (Level II),

Superintending Engineer and Executive Engineer.

In  the  present  case,  we  are  concerned  with

selection  to  the  post  of  Superintending

Engineer.  The  relevant  part  of  Appendix  ‘D’

relating to Superintending Engineer is found in

para 3 and paras 5 to 8.

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

15

declares that for the selection to the post of

Chief Engineer (Level I), Chief Engineer (Level

II) and Superintending Engineer, there shall be

a Selection Committee consisting of the members

enumerated therein. Most important provision is

found in para 6 which prescribes ‘Criteria for

Promotion’. It reads as under: Criteria for Promotion

The  selection  to  the  post  of Chief Engineer (L-1), Chief Engineer (L-II) and  Superintending Engineer shall be made  on  the  basis  of  Merit while promotion to the post of E.E. shall be based  on  seniority  subject  to rejection of the unfit.

 (emphasis supplied)

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. (1) The  Selection  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.

16

(a) The list in case of selection for the post  of  Superintending  Engineer  and above shall be rearranged 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  Engineer shall be prepared in order of seniority of the post of Assistant Engineer.

(b) The  Chairman  shall  issue  appointment orders  in  respect  of  Superintending Engineer, 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  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)

17

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 Singh]

Secretary.

25. The  criteria  for  selection  procedure

for promotion were also mentioned in the Office

Memorandum.  The  relevant  part  relating  to

selection  to  the  post  of  Superintending

18

Engineer [as also Chief Engineer (Level I and

II)], is reproduced hereunder;

[1] Where the criterion is ‘Merit’:-

Selection  to  the  post  of  Chief Engineer  [Level-I  and  II]  and Superintending Engineer and posts equivalent thereto, shall be done, in accordance with this criterion.

[1] Eligibility:-

The  Appointing  Authority  shall prepare separate eligibility lists of senior most candidates for each category  i.e. General,  Scheduled Castes  and  Scheduled  Tribes,  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,

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:-

(a) For the second year -

The  number  according  to  the said  proportion  plus  the number  of  vacancies  for  the first year.

19

(b) For the third year –

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 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:- Category 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 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.

Category No.2

20

For the post of Chief Engineer (Level-1)  and  equivalent, officers  securing  seventy  (70) per  cent (that  is 140  marks); for the post of Chief Engineer (Level-2)  and  equivalent, Officers  securing  Seventy  (65) percent (that is 130 marks); and for the post of Superintending 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

21

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  officers  of 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,  shall then be rearranged, according to their respective  serials,  in  their  original order of seniority and a select 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)

29. It is the case of the writ petitioner

that he was Executive Engineer and was eligible

to be considered for the promotional post of

Superintending  Engineer.  On  the  basis  of

Confidential Reports and marks obtained by him,

22

he was placed in Category I. According to him,

he had secured highest number of marks  i.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 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  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

23

promoted  as Superintending  Engineers and  the

list  got  exhausted.  It  was  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  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.

31. We express our inability to agree with

the  learned  counsel.  In  our  judgment,  the

scheme of promotion 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

24

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 instant Category I),

25

he retains his original seniority 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 category.

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 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.

26

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

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.

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

27

prohibit classification, if such 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  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.

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

28

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  priority  and

29

preference  for  promotion  to  the  post  of

Superintendent  Engineer  over  Executive

Engineers found in Category II.  Acceptance of

argument  of  the  learned  counsel  for  the

appellant  Corporation  that  all  eligible

Executive  Engineers  maintain  their  inter  se

seniority  irrespective of  their placement  in

different categories may result in regulations

being  declared  arbitrary,  irrational  or

unreasonable. A Court of law would interpret a

provision  which  would  help  sustaining  the

validity of law by applying 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  Corporation,

Bombay,  (1985)  3  SCC  545;  Japani  Sahoo

v.Chandra Sekhar Mohanty, (2007) 7 SCC 394] 38. It was also submitted by the learned

counsel  for  the  Corporation  that  the

regulations have been interpreted, understood

30

and  applied  from  the  very  beginning  in  the

manner  as  suggested  by  the  Corporation.  All

Executive  Engineers  retain  their  inter  se

seniority once their names are included in the

select list either in Category I or Category II

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  practice

consistently followed by the Department if the

view  taken  or  practice  followed  is  also

reasonable. 39. In  our  opinion,  however,  the  above

principle  does  not  help  the  appellant-

Corporation in the present case. As observed by

us,  under  the  Scheme  of  Regulations,  1970,

promotion  to  the  post  of  Superintending

Engineer, Chief Engineer II and Chief Engineer

I  is  based  on  ‘merit’.  If  it  is  so,

31

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  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 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 Punjab & Ors.

(1998) 2 SCC 523;  Union of India v. Mohanlal

32

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 quantified at Rs.25,000/-.

43. Ordered accordingly.

33

……………………………………………………………J. (C.K. THAKKER)

……………………………………………………………J. (LOKESHWAR SINGH PANTA)

NEW DELHI, September 11, 2008.

34