U.P.Power Corpn. Ltd vs Ayodhya Prasad Mishra & Anr

2. To appreciate the points raised in the present appeal, few relevant facts may be noted.

(c) of Section 79 of the Act framed 3 `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;

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 4 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. 5

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.

(c) The list of the officers selected for the posts above Superintending Engineer shall be placed before the Board for approval.

(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.

Appointment orders shall then be issued, in accordance with this seniority list. (emphasis supplied)

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.

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;

Engineer to the post of Superintending Engineer is `merit'. The Regulations, therefore, contemplate preparation of different select lists and allotment of marks. An Executive 29 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'.

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, 32 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.

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.