JUDGMENT : Hasnain Massodi, J. 1. Revised Promotion Policy for NHPC Executives introduced by National Hydro Power Corporation (NHPC) (hereinafter called as "New Promotion Policy") w.e.f., 5.3.1997 to the extent it relates to diploma holders is at the bottom of controversy in three writ petitions on hand i.e., SWP Nos. 515/1997, 885/1997 and 849 of 2011. Before mapping out contours of the controversy, it would be appropriate to trace the course of three writ petitions during the last two and half decades. 2. Diploma holders aggrieved with the New Promotion Policy, approached Writ Court with the writ petitions being SWP Nos. 515/1997 and 885/1997 respectively. Their grievance was that according to the old promotion policy i.e., the policy in vogue till New Promotion Policy was introduced w.e.f. 5.3.1997, both the diploma holders and degree holders had an equal opportunity to go up the promotional ladder. It was pleaded that the old promotion policy neither made a distinction on the basis of qualification between diploma holders and degree holders after a particular level nor were diploma holders required to have more experience as compared to the degree holders to their credit at a particular level, so as to be eligible for promotion to the next level in the Executive Cadre. Petitioners pleaded that new promotion policy not only prescribed a longer period at a particular level for diploma holders, for promotion to the next level in the Executive cadre, but blocked their promotional avenues after they reached E-5 level. In other words, petitioners insisted that diploma holders though having sufficient experience were not to cross E-5 level, in any circumstance. 3. Petitioners, on the grounds urged in the writ petitions, sought quashment of New Promotion Policy to the extent it blocked their promotion avenues beyond E-5 Executive Cadre and required diploma holders to have longer stay at a level as compared to the degree holders for their promotion to the next level. The writ petitions did not find favour with the Writ Court and were dismissed on 02.06.2000. 4. The Writ Court judgment was questioned in two Letters Patent Appeals being LPA (SW) Nos. 355/2000 and 328/2000. The matter was concluded by a split judgment. The writ petitions did not find favour with the Writ Court and were dismissed on 02.06.2000. 4. The Writ Court judgment was questioned in two Letters Patent Appeals being LPA (SW) Nos. 355/2000 and 328/2000. The matter was concluded by a split judgment. One of the Hon'ble Judges held the classification made between diploma holders and degree holders unreasonable without any nexus to the object sought to be achieved and, therefore, in conflict with Articles 14 and 16 of the Constitution of India. The view taken by other Hon'ble Judge was that diploma holders and degree holders were two distinct classes and the respondents were within their power to make the classification, prescribe different period of experience for diploma holders and to restrict, promotional avenues only to degree holders, beyond E-5 Executive Cadre. 5. The Division Bench stated points of difference as under: "1. Whether classification based on educational qualification alone is permissible or nexus with the objectives of the statute or policy has to be established while making promotion to the higher post? 2. Whether Diploma Holder Engineers can be discriminated from Degree Holder Engineers for the purpose of promotional avenues beyond a particular level by prescribing higher qualification?" 6. The matter in terms of Rule 36(2) of the Jammu and Kashmir High Court Rules, 1999 was referred to third judge. The learned judge on hearing the matter recorded agreement with the view that classification made in the facts and circumstances of the case was impermissible. However, the learned judge on 18.02.2010, held the pleadings to be deficient and required to be supplemented by the parties, as in the opinion of the learned judge, it was only after the pleadings were supplemented, it would be possible to find out whether classification made on the basis of higher qualification has a reasonable nexus with the object intended to be achieved and determine validity of Rule 8 of New Promotion Policy. In the said background, though the writ court judgment was set aside, the matter was remanded to the writ court for deciding it afresh after permitting the parties to supplement their pleadings in light of observations made in the judgment. 7. In the said background, though the writ court judgment was set aside, the matter was remanded to the writ court for deciding it afresh after permitting the parties to supplement their pleadings in light of observations made in the judgment. 7. The view taken by the learned Judge (Third Judge), recording agreement with the finding that the New Promotion Policy was not in tune with mandate of the Constitution, should have ordinarily ended the controversy as there was in effect agreement between two learned Judges, and two of the three learned Judges, held that New Promotion Policy to the extent it related to the promotional avenues of diploma holders, was liable to be set aside However, the direction as regards fresh consideration of the matter after the parties supplemented pleadings, extended life of the controversy. 8. NHPC during the pendency of the matter introduced changes in promotion policy on 04.03.2011. In terms of the changes, different qualifying periods were prescribed for diploma holders and degree holders to be eligible for promotion at different levels and the diploma holders were to be denied consideration for promotion beyond E-5 level, unless they acquired higher qualification i.e. degree in engineering. 9. The changes introduced in "New Promotion Policy" vide order dated 04.03.2011 were questioned in yet another writ petition being SWP No. 849/2011. The writ court (Hon'ble the Chief Justice) on examining the controversy raised, held it to be identical to the controversy in SWP Nos. 515/1997 and 885/1997. The Court concretized the controversy as under: "1. Whether classification based on educational qualification alone is permissible or nexus with the objectives of the statute or policy has to be established while making promotion to the higher post? 2. Whether Diploma Holder Engineers can be discriminated from Degree Holder Engineers for the purposes of promotional avenues beyond a particular level by prescribing higher qualification? 3. Whether the Corporation is within its power to revise its promotion policy so as to introduce new procedure for promotion or it is bound by the old policy." The Court thereafter referred the matter to a Bench of two Judges, so that the issues raised were authoritatively settled. The writ petitions were directed to be heard by the Division Bench. Writ petitions being SWP Nos. The writ petitions were directed to be heard by the Division Bench. Writ petitions being SWP Nos. 515/1997 and 885/1997 that in terms of the judgment of the learned third Judge were to be listed before the learned Single Judge, were also directed to be listed alongside SWP No. 849/2011. This is how these three writ petitions ordinarily to be heard and disposed of by learned Single Judge, have come up before this bench. So much about the background facts and over-view of the case set up by the petitioners and the stand taken in opposition to the petition. 10. We have gone through the pleadings as well as record available on the file. We have heard learned counsel for the parties at length. 11. There is hardly any scope for disagreement with argument advanced by Mr. R.S. Thakur, Senior Advocate, counsel for the respondents that it is for the employer to decide qualification or experience required for promotion to a higher post. An employee cannot insist on a particular promotion policy or on criteria for promotion to the next level. It is equally true that an employer may revise promotion policy, or change criteria for promotion to higher post and an employee or for that matter, the union/association of employees cannot be heard saying that promotion policy once decided is to be left unchanged or all times to come. The competent authority would always free to amend, alter and change the existing promotion policy or introduce a new policy, replacing the existing policy Reliance in this regard on law laid down in 2008 AIR SCW 1967, 2009 AIR SCW 3930, AIR 2012 SC 3281 , is well placed. 12. This Court in exercise of power of judicial review is not to embark on an exercise to find out whether the competent authority would have devised or come up with a better promotion policy. The Court in the name of "judicial review" is not to replace the decision taken by the competent authority by its own decision as regards promotion policy or criteria for promotion to the higher post or conclude that there ought to have been some other policy as against one devised by the employer. All that the Court may examine, is the legality of the promotion policy or legality of eligibility criteria prescribed for consideration to promotion. All that the Court may examine, is the legality of the promotion policy or legality of eligibility criteria prescribed for consideration to promotion. It is "decision taking process" not the decision itself that could call for close scrutiny by the Court in exercise of power of judicial review, unless the decision offends a Constitutional provision or Statute. The Court is to always ready to interfere where the decision is tainted with arbitrariness or discriminatory in character and, therefore, in conflict with the principle of equal opportunity and equal protection of laws. 13. In the present case petitioner Association is not aggrieved with the revision of the promotion policy per se. Had it been aggrieved with the revision in policy or the petition on hand used as an effort to question competence of respondents to revise the policy, the respondents would be within their rights to seek dismissal of the petition at its threshold. Petitioner Association, on the other hand, is aggrieved that the impugned revised promotion policy introduced on 5th March, 1997 is discriminatory in character and, therefore, violative of fundamental rights guaranteed under Articles 14 and 16 Constitution of India. The revision of promotion policy is different from revising it selectively with disadvantage to one section of the employees or withdrawal of benefit already extended to such section. To illustrate an employer may fix X-qualification or X-year's experience for promotion to higher level and after a few years on review of the promotion policy decide to fix Y-qualification or Y-year's experience as criteria for promotion. Such decision cannot be faulted on any ground. However, if the promotion policy is revised selectively, discriminating between two segments of employees in the same cadre, it cannot stand legal scrutiny. 14. The New Promotion Policy introduced by respondent Corporation with effect from 5th March 1997 treats two segments of same cadre differently. The Policy brightens up promotional avenue of degree holders and slows down promotional avenue of diploma holders and even places their promotional chances a complete embargo at E-5 level. 15. Perusal of record available on file would reveal that officers with different technical qualification i.e. Diploma Holders and Degree Holders, merge into a single cluster or cadre called Executives. The Policy brightens up promotional avenue of degree holders and slows down promotional avenue of diploma holders and even places their promotional chances a complete embargo at E-5 level. 15. Perusal of record available on file would reveal that officers with different technical qualification i.e. Diploma Holders and Degree Holders, merge into a single cluster or cadre called Executives. The cluster, i.e. Diploma and Degree Holder Engineers share and are borne on the one seniority list and are, therefore, expected to climb the same promotion ladder without any road blocks for either of them. Both are governed by same promotion criteria i.e. seniority, merit, efficiency, grade and suitability. The objectives of the Promotion Policy do not envisage role for educational qualification. Notwithstanding its objectives, the New Promotion Policy prescribes different period of "minimum qualifying experience" for Executives with Diploma and Degree in Engineering. An Executive with Diploma in Engineering is to serve at E-1 level for four years, so as to be considered for promotion to E-2 level. In case of Executive with Degree in engineering such period is fixed as three years. Same is true about promotion from E-2 to E-2A, E-2A to E-3, E-3 to E-4 and E-4 to E-5 level. The New Promotion Policy makes executive with diploma in engineering to stagnate at said level for the rest of his service career while Executive with degree in engineering at E-5 level can go upto E-9 level. 16. The New Promotion Policy, therefore, discriminates between Executive with diploma in engineering and Executive with degree in engineering as regards their promotional prospects. It is pertinent to point out that the promotion policy introduced in 1989 did not provide for such classification till 5th March, 1997, i.e. the date New Promotion Policy was introduced. Let us scan the case law on the subject to find out whether course followed by respondents while devising Promotion Policy would be permissible under Articles 14 and 16 Constitution of India. 17. While going through the case law, we, however, have to be conscious of candid and clear admission made by respondents in their reply that after merger or integration of officers with diploma and degree engineering into one cluster, nature of the duties remains all along similar. The Apex Court in S.L. Sachdev and Anr. v. Union of India & Ors. While going through the case law, we, however, have to be conscious of candid and clear admission made by respondents in their reply that after merger or integration of officers with diploma and degree engineering into one cluster, nature of the duties remains all along similar. The Apex Court in S.L. Sachdev and Anr. v. Union of India & Ors. (1980) 4 SCC 562 held: "Once cadre is formed by recruiting person from different departments of the government there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. Different tests should not be prescribed for determining their respective promotional opportunities and that too solely in reference to the source from which they are drawn. In the present case, the duties, functions and responsibilities in all the UDCs in the new Organization are identical. They are all in the same cadre and they draw the same pay in the same grade. Therefore, different tests should not be laid for their promotion." 18. The principle that where nature of duty is same, distinction between graduate and non-graduate in the matters of promotion would not be permissible was emphasised by Hon'ble the Supreme Court in N. Abdul Basheer & Ors. v. K.K. Karunakaran & Ors. 1989 Supp. (2) SCC 344, by observing: "In the present case, the conditions of employment and the incidents of service recognized no distinction between Graduate and Non-Graduate officers and for all practical purposes they are treated as equivalent. This is not a case where the cadre of officers was kept into separate divisions. It was a single cadre, and they were all equal members of it, there is no evidence that graduate preventive officers enjoyed higher pay than non graduate preventive officers. The High Court has noted that the nature of the duties of preventive officers whether graduate or non graduate was identical, and both were put to field work. Non graduate preventive officers, there is no evidence of any special responsibility being vested in graduate preventive officers. Once they were promoted as Excise Inspectors there was no distinction between graduate and non graduate Excise Inspectors. Non graduate preventive officers, there is no evidence of any special responsibility being vested in graduate preventive officers. Once they were promoted as Excise Inspectors there was no distinction between graduate and non graduate Excise Inspectors. Therefore, the prescription of a ratio dividing the quota of promotion between graduate preventive officers and non graduate preventive officers is invalid on the ground that it violates Article 14 and 16." The Supreme Court again in 2011 AIR SCW 6281 relied upon by learned counsel for the respondents held that where an integrated services formed by drawing persons from different sources, in case of merger of different cadres into one cadre and class-distinction, may not be made later on the basis of difference of educational qualification. 19. The case set up by petitioner Association, against the above back-drop finds support from the settled legal proposition. The New Promotion Policy dated 05.03.1997 impugned in the petition herein, divides Executives into two groups, without any intelligible differentia and nexus of such differentia with its objectives spelt out in paragraph 03 of the policy. It after classifying the Executives into two groups provides two different promotional avenues, prescribes different criteria for promotion and even block promotional prospectus of one of the groups. 20. Right to equality of opportunity in matters of public employment guaranteed under Article 16 of the Constitution is not restricted to initial appointment. Right to be considered for promotion has been held to be an integral component of the right to equality of opportunity in the matters of public employment. A Division Bench of this Court in Ashok Sharma and Ors. v. State and Ors. (SWP No. 1290/2014) while dealing with different facets of right guaranteed under Article 16, observed:- "Article 16, in its scope, is not confined to employment as the expression is used in common parlance. In other words right guaranteed under Article is not restricted to initial stage of appointment to government service or public office. It brings within its sweep all matters that are related to employment. Apex Court in Govt. In other words right guaranteed under Article is not restricted to initial stage of appointment to government service or public office. It brings within its sweep all matters that are related to employment. Apex Court in Govt. Branch Press v. D.B. Belliappa 1979 (1) SCC 477 , while commenting upon ambit and scope of Article 16 has held that expression "matters relating to employment" used in Article 16(1) is not confined to initial matters at or prior to act of employment, but comprehends all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, matters as regards salary, increment, leave gratuity, pension, age of superannuation, promotion and even suspension, discharge, removal or termination of employment come within spread and sweep of the right guaranteed under Article 16. It follows that in all such matters right of equality of opportunity and protection against discrimination to a citizen, are to be respected and adhered to." 21. From above discussion, it emerges that classification based on educational qualification to be valid must have a nexus or relationship with the objectives of the promotion policy and that once the officers with different educational backgrounds are merged into a single cadre or cluster with similar duties to be performed by such officers, it would not be permissible to discriminate between them on the basis of educational qualification or a stop put on promotional opportunities of one of the groups while allowing other to move ahead on promotional avenue. It further transpires that while an employer-in the present case respondent-Corporation, may review or revise its promotion policy, such revision or review cannot be selective so as to expose one of the similarly circumstanced or placed segments of cadre or cluster to discriminatory treatment. In the circumstances and for the reasons discussed, the writ petition is allowed and the New Promotion Policies introduced on 5th March 1997, by respondent Corporation quashed to the extent these pertain to Executives with diploma in engineering. The respondents are directed to give similar treatment to the Executives with the Diploma in Engineering as given to the Executive with Degree in Engineering and accord consideration to their promotion to different levels including the levels beyond E-5 and upto E-9 as given to the Executive with Degree in Engineering. The respondents are directed to give similar treatment to the Executives with the Diploma in Engineering as given to the Executive with Degree in Engineering and accord consideration to their promotion to different levels including the levels beyond E-5 and upto E-9 as given to the Executive with Degree in Engineering. Let such exercise be completed with three months from the date of receipt of copy of this judgment.