JUDGMENT

C.K. THAKKER, J. - 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.

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 `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.

3. 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

The present appeal relates to appointment by promotion to the post of Superintending Engineer from the post of Executive Engineer.

4. 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 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. 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.

6. 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 Honble 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.

7. We have heard learned counsel for the parties.

8. Learned counsel for the Corporation contended that the order passed by the High Court was illegal and contrary to law. He submitted that the act