Concurring Opinion by
President Judge Bowman:I concur in the result reached by the majority because the Commonwealth has chosen not to apply the September 10, 1969, resolution of the Executive Board uniformly and because it has apparently been interpreted and applied in such a fashion as to bring within its exception employees who happen to be physicians although these qualifications are not prescribed for the position held.
As disclosed in the majority opinion, the Commonwealth for unspecified reasons chose to settle litigation or not seek judicial review of Civil Service Commission action excluding five employees from the resolution’s coverage but now seeks to enforce the resolution as to the appellee here. This is palpably unfair and discriminatory. The Commonwealth cannot be permitted to grant exception to the Executive Board resolution on *348an ad hoc basis whether it be achieved by affirmative action or nonaction. The inherent discrimination afforded some of those in the excepted class (physicians) who happen to be physicians is inexplicable and unsupportable inasmuch as the job classification for the position they hold does not require such credentials. As so interpreted and applied, the exception may just as logically have singled out graduates of a particular college, regardless of the position held and the qualifications prescribed.
I do not agree with the majority, however, that the general subject matter of the resolution itself constitutes “personnel action” within the meaning of Section 905.1 of the Civil Service Act of August 5, 1941, P. L. 752, as amended, 71 P.S. §741.905a. This Section proscribes discrimination against Commonwealth employees in the classified service with respect to “. . . recruitment, examination, appointment, training, promotion, retention or any other personnel action ... because of labor union affiliations or because of race, national origin or other non-merit factors.”
In my opinion, the Executive Board, under the power and authority conferred upon it by Section 709 of the Administrative Code of 1929, Act of April 9, 1929, P. L. 177, as amended, 71 P.S. §249, may exercise its power with respect to Commonwealth employees in appropriate cases if done in a nondiscriminatory fashion even though such action may arguably be considered personnel action and based upon factors other than merit. Surely, if it is to perform its functions, it could place a ceiling on all salaries for reasons of economy or other “non-merit” factors as, in my opinion, it could modify salary ranges for the same reason. Whether such action is taken by way of amendment of the compensation plan or by other procedure is not controlling nor persuasive that the action so taken constitutes pro*349scribed personnel action if otherwise not discriminatory within the provisions of the statute and not constitutionally prohibited.