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

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 2

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 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;

(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 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

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 6

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 7

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 8

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.

9

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.

10

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 11

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.

12

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 13

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 14

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 15

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 16

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. 17

(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) 18

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 19

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. 20

(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 21

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 22

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, 23

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 24

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 25

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), 26

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.

27

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 28

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 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'.

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 30

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 31

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, 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.

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 33

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.

34

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

.....................................................................J. (LOKESHWAR SINGH PANTA) NEW DELHI, September 11, 2008.