U.P. POWER CORPORATION LTD. versus AYODHYA PRASAD MISHRA AND ANR.

Citation: [2008] 13 S.C.R. 373 · Decided: 11-09-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

j 
[2008] 13 S.C.R. 373 
. 
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 
B 
c 
D 
E 
F 
G 
H 
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 
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 
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 
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 
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 
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 
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. 
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 se

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