JUDGMENT S.H.A Raza, J. - The petitioners have prayed in this bunch of writ petitions that the promotion policy and the promotions made by the U. P. State Electricity Board, Lucknow to the posts of Junior Engineers (Ordinary Grade) in U. P. State Electricity Board Subordinate Electrical and Mechanical Engineering service be quashed and it has further been prayed that Regulation 31 of U. P. State Electricity Board Subordinate Electrical and Mechanical Engineers Services Regulations, 1972 (hereinafter referred to as the Regulations) be declared ultra vires and the two office memos dated 1101980 and the selection and appointments made on its basis be quashed and a mandamus be also issued directing the declaration of complete result of the examination held in 1977 and 1979 and 1980 and further a mandamus not to make further promotions without declaring the result and exhausting the list of successful candidates in the examination held in the year 1977 and 1979 and oral test held in 1979 and 1980. Regulation 31 of the Regulations reads as under: 31 Relaxation (1) Nothing in these regulations shall be construed to limit or abridge the power of the Board to deal with the case of any person or class of persons governed by these regulations in such manner as may appear to the Board to be just and equitable. Provided that, where any of the foregoing regulations is applicable to the case of any person or class of persons, the case shall not be dealt with in a manner less favourable to him or to that class than that provided by the regulations. (2) When in the opinion of the Board it appears necessary to do so, the Board may make any appointment or appointments to the service in relaxation of these Regulations and in the case of any such appointment which is not in strict accordance with these regulations, the Board shall be deemed to have made the appointment in relaxation of these regulations. Regulation 5 (b) of the Regulations prescribes for the recruitment for the ordinary grade which reads as under : 5 (b) ordinary Grade : (1) By direct recruitment from Apprentice Junior Engineers selected in accordance with the procedure laid down in part V of these Regulations. Regulation 5 (b) of the Regulations prescribes for the recruitment for the ordinary grade which reads as under : 5 (b) ordinary Grade : (1) By direct recruitment from Apprentice Junior Engineers selected in accordance with the procedure laid down in part V of these Regulations. (2) By promotion in accordance with the procedure laid down in regulations 17 and 18.'' According to regulation 6, 25% of the vacancies in the ordinary grade are reserved to be filed by promotion. Part VI of the Regulations lays down procedure for promotion. Regulation 17 provides for appointment to the ordinary grade by promotion. Regulation 17 read as under: 17. Selection for appointment to the Ordinary grade by Promotion (1) For purposes of recruitment to the posts in the Ordinary Grade under regulation 5 (b) (ii) a selection based on merit shall be made from the following : (a) Members of operating staff 9 skilled who have put in 3 years or more of continuous service including service rendered on work charged establishment if they have passed any of the examinations mentioned in appendix'A' or 5 years or more of service if they have passed I.T.I. examination or 5 years or more of service if they have passed High School Examination or 10 years or more of service, if they have not passed High School Examination. (b) Unqualified work charged Junior Engineers and Asstt. Junior Engineers and unqualified Excadre Junior Engineers who have put in 5 years or more of continuous service if I.T.I, passed, 5 years of more of service if High School passed, 7 years or more of service if not High School passed. (c) Assistant Junior Engineers (Regular) having I.T.I. certificate or Diploma who have put in 3 years or more of continuous service. (2) The selection shall be based on a written test followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test. (3) The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For computing the merit of a candidate the marks obtained by him both in the written test and the practical and oral test shall be added. (3) The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For computing the merit of a candidate the marks obtained by him both in the written test and the practical and oral test shall be added. (4) The number of names in the list drawn up under clause (3) shall not exceed the number of vacancies announced at the time of the announcement of the examination by more that 25 P. C. (5) The syllabus for the written test and practical and oral test shall be laid down by the Chief Engineer from time to time. (6)A Committee comprising the following will supervise the written examinations and hold the practical and oral test : (i) Additional Chief Engineer, Deputy Chief Engineer to be nominated by Chief Engineer. (ii) One superintending Engineer to be nominated by Chief Engineer. (iii) An officer of the Board not below the Rank of Deputy Secretary to be nominated by Chairman. (7) The chief Engineer shall have the power to remove the names of any candidate from the list drawn up under clause (3) if his work or conduct at any time subsequent to the holding of the test is reported to be such as to render him unfit for promotion. Regulation 6 has been amended and the existing 25% of promotion quota for appointment to the post of Junior Engineer (Ordinary Grade) from operating staff has been raised and fixed as 33 1/3% vide letter No. 2557kIX (A)/SEBTV8313 (3) KIX/82 dated April 14, 1983. Regulation 18 provides for the appointment to the ordinary grade by promotion and Regulation 18 (2) provides as under : 18 (2): Appointments of the candidates of any subsequent selection shall be made only after all the candidates of an earlier selection whose name have been promoted. Provided that nothing in this subregulation shall be deemed to make eligible for promoting a Candidate whose name has been removed from the list under cluase 17 (7). To fill up the post of ordinary grade belonging to promotion quota the written test was held in 1977 twice i. e. on 23rd June and 18th September in accordance with the Regulation 17 (2) of the Regulations. To fill up the post of ordinary grade belonging to promotion quota the written test was held in 1977 twice i. e. on 23rd June and 18th September in accordance with the Regulation 17 (2) of the Regulations. It was further stated that though in the Regulation 17, unqualified workcharge, supervisors, unqualified Assistant Supervisors, unqualified Excadre supervisor and Assistant Supervisors (Regular) are not indicated amongst the persons falling within the field of eligibility, they were also allowed to appear in the written test for promotion to the post of Junior Engineer (Ordinary Grade) by the Board. The result of the written examination was announced on April 12, 1978. 2. The fact of appointment of such persons has not been denied in the counter affidavit on behalf of the Board but it has been admitted that certain Assistant Supervisors were also promoted as Junior Engineers and certain persons working in stopgap arrangement having service of about 15 years and who were working for over 5 years as Junior Engineers were also promoted to the post of Junior Engineer. Further, certain persons being lower post diploma holders were appointed as Junior Engineers from amongst the operating staff cadre without affecting the quota of reserved seats to be filled in by way of promotion. The oral test was held on 15th October, 1978 but the result of the same was not announced. The results of written tests in 1977 and 1979 were declared in 1978 but a large number of persons who along with other persons were asked to appear in it even though the promotion had not been made till then. One of the grievance of the petitioners is that they should not have been required to appear in the oral test of 1980. 3. The petitioners have stated that no final merit was announced. The Board vide its letter No. 557 dated 1921980 had given appointment to 345 candidates; In the counter affidavit it has been stated that the list which was so prepared was prepared in accordance with merit and there is no denial to that fact. 4. On 1891979 an office memorandum was issued making Assistant Supervisors eligible for promotion to the post of Junior Engineer (ordinary grade) the procedure laid down was a written test and oral test. 4. On 1891979 an office memorandum was issued making Assistant Supervisors eligible for promotion to the post of Junior Engineer (ordinary grade) the procedure laid down was a written test and oral test. This office memorandum was modified by another office memorandum dated 1731980 whereby the written test was dropped and the Assistant Supervisors were allowed to be promoted on the basis of oral examination. The Board issued yet another memorandum on 1101980 said to be on the behest of Assistant Supervisors laying down the procedure for promotion of Assistant Supervisors to post of Junior Engineer (ordinary grade). The criterion was held to be on the basis of character roll and working ability. The petitioners have raised grievance that despite these rules and regulations a separate class of Assistant Supervisors was created and they were allowed to be promoted only on the basis of screening. Several candidates who were declared successful in the written tests held in the year 1977 and 1979 and whose results were not announced made representations. On 121985 73 candidates who had appeared in the examinations held in the year 1977 and 1979 were again appointed to the post of Junior Engineer (ordinary grade). Thereafter another batch of 13 Assistant supervisors was given promotion vide letter No. 2181 dated 2251985 while the candidates who had appeared in the examinations 7 years back were still awaiting their results. However, by appointment letter dated 3071985 a batch of 31 persons belonging to schedule caste were promoted after holding a 3rd interview for scheduled caste candidates on the basis of written test held in 1977 and 1979. This 3rd interview was held only for scheduled caste candidates. Subsequently vide office memorandum dated 1101980 a separate procedure for promotion of Junior Engineers working in a stop gap arrangement was provided. It has been further submitted that holding zonal examination is not warranted under the service regulations. On the basis of the said letter the examination of the Obra project has already been held on 28101985. 5. From the counter affidavit it appears that both written and practical tests were to be of 100 marks each and in order to qualify the candidate, he was required to secure 30% in individual test with an aggregate of 66 marks in total. 5. From the counter affidavit it appears that both written and practical tests were to be of 100 marks each and in order to qualify the candidate, he was required to secure 30% in individual test with an aggregate of 66 marks in total. It is submitted in the counter affidavit that the promotion of Assistant Supervisors have nothing to do with the reserved quota of the operating staff. For the promotion of Assistant supervisors additional posts were created. The case of Assistant Supervisors is altogether different from that of the petitioners as that are of the separate cadre and that they were working on the post of Assistant Supervisors for over 15 years and the said cadre was declared as dying cadre. In 1963 when there was a dearth of diploma holders and the work was suffering badly the Board decided to appoint the Assistant Supervisors in excadre to cope with the supervisor work on the technical side and, therefore, they cannot be treated at par with the members of operating cadre staff. Regulations under section 79 have been framed under the powers conferred by the Board with the previous approval of the State Government. Similarly the Board has got power to amend the Regulations which can similarly be amended with the previous approval of the State Government and under section 17A of the Electric (Supply) Act, 948 it is provided that the Board may do it with previous approval by the State Government. It has not been asked in the instant matter that these Regulations were not amended by the previous approval of the State Government or to issue any order or memorandum which may result in deviation from the existing regulations. Under the Regulations promotion can be made only from amongst the members of operating staff who have put in some years of service or service rendered on work charge basis and the Junior Engineers who have put in three years or more continuous service alone are eligible to be promoted. The Board had justified their promotion on the ground that they had got sufficient experience in a particular field and their promotion does not affect operating staff cadre and for them no post has been created. The Rules and Regulations as it exist provides that 25% of the posts are reserved for promotions from subordinate staff and the rest 75% are reserved for direct appointments. The Rules and Regulations as it exist provides that 25% of the posts are reserved for promotions from subordinate staff and the rest 75% are reserved for direct appointments. The reservation later on which increased to 33% that is 8% more than what it was provided in the Regulation. 6. The rules and Regulations do not provide for creation of post for other persons who are not covered by these Regulations. The only power which has been conferred upon the Board is regulation 31 extracted above. Power of the Board to deal with the case of a person or class of persons covered by these Regulations as may appear to be just and equitable to the Board and the Board can do relaxation to these Regulations only when it appears necessary to the Board to do so. On behalf of the petitioners the validity of these Regulations has been challenged and a perusal of Regulation 31 would show that it gives to the Board arbitrary, unguided and unchanalised power to act in violation of the Regulations framed under section 79 (c) of the Electric (supply) Act, 1948. 7. From Rules 17 and 18 as extracted above it is clear that a list is to be prepared after the written and oral examination and after exhausting the names from that list, the persons from the list prepared after subsequent examination alone can be promoted. In the instant case it has been found that although the written examination took place in the year 1977 and the oral examination took place in 1978 yet against the specific provisions of the Regulations the promotion was made of the selectees for which examination took place in 1979 and interview took place in 1980. It is only after exhausting the previous list that the selectees of subsequent examination could be given a chance. Even in the registers prepared for the same names of the candidates and the marks against them have been mentioned. The opposite parties are dutybound to prepare the list after taking into consideration the inclusion of the names of scheduled castes and scheduled tribe candidates. So far as the fixation of minimum marks in the written test is concerned, that is permissible. In this connection reference may be made to the case of State of U.P. Vs. The opposite parties are dutybound to prepare the list after taking into consideration the inclusion of the names of scheduled castes and scheduled tribe candidates. So far as the fixation of minimum marks in the written test is concerned, that is permissible. In this connection reference may be made to the case of State of U.P. Vs. Rafiquddin and others (1987 Supplementary Supreme Court cases401) in which earlier cases on the post have already been considered. Before us the contention has been raised that the examination which was held in the instant case is not a fair examination and that is why list has not been declared. Arbitrarily marks were given at the interview so as to include those who could not have been included and to exclude those who were disfavoured. If the marks in interview are placed upto the extent of 50% or near about 50% obviously it is not a fair selection and the same cannot be upheld. In this connection reference may be made to the case of Ashok Kumar Yadav and others Vs. State of Haryana and others ( 1985 SCC 417 ). It has b2en held in this case that the spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit by an inordinalety high marking in the viva voce test. Same view has been taken in Lila Dhar Vs. State of Rajasthan ( 1981 (4) SCC 159 ) and Ajay Hasia Vs. Khalid Mujib ( 1981 (1) SCC 722 ). 8. Thus, by giving more marks in the oral interview obviously the 12. In the result, the writ petitions are allowed. A mandamus is issued directing the U. P. State Electricity Board to declare the list of the candidates appeared in 1977 examination and after exhausting the same to make appointments from the list of the candidates appeared in 1979 examination. Thus, by giving more marks in the oral interview obviously the 12. In the result, the writ petitions are allowed. A mandamus is issued directing the U. P. State Electricity Board to declare the list of the candidates appeared in 1977 examination and after exhausting the same to make appointments from the list of the candidates appeared in 1979 examination. The Appointments shall be made in accordance with the above direction within two months from the date of production of a copy of this order. A further mandamus is issued directing the U. P. State Electricity Board to declare the list of temporary Junior Engineers and thereaftar to make appointments from that list in accordance with law. A mandamus is also issued to the U.P. State Electricity Board to reduce the marks for interview and oral test and to make selection accordingly and this shall also be done within two months from the date of production of a copy of this order. The U. P. State Electricity Board is also directed to relax the qualifications only in accordance with law and taking into consideration the Regulation 31. 13. All the writ petitions are disposed off finally in these terms. However, there will be no order as to costs.