JUDGMENT : Biswanath Rath, J - Since all these three writ petitions indicated hereinabove have a common relief though involving three writ petitioners, this Court finding one set of pleading involving all the three cases and also for having a common relief, all the three writ petitions are decided by a common hearing as well as common judgment. 2. Petitioner - Niranjan Mishra involving W.P.(C) No.11847 of 2003 working as Manager (Civil) but functioning as In-charge Senior Manager (Civil) at the relevant point of time at Samal Group of Projects of the Orissa Construction Corporation Limited, Petitioner - Sitansu Bhusan Sarangi involving W.P.(C) No.11849 of 2003 working as Senior Manager In-charge at Orissa Construction Corporation Limited, Bhubaneswar and Sri Pradeep Kumar Padhi involving W.P.(C) No.7687 of 2004 also working as In-charge Senior Manager in the Head Office, Orissa Construction Corporation Limited filed respective writ petitions having a common challenge to the illegal and arbitrary action of the common set of opposite parties in the matter of promotion to the post of Senior Manager (Civil), rest opposite party/opposite parties are persons where promotion is under challenge. All the three writ petitioners who are Graduate Engineer in Civil, for their empanelment by the State of Orissa, they are all appointed as Assistant Engineers in the Irrigation Department of the State of Orissa. But, however, for the policy decision undertaken by the State of Orissa, taking into consideration the manpower requirement of Orissa Construction Corporation Limited (for short "Corporation"), 16 nos. of such Graduate Engineers (Civil) including the three petitioners were sponsored to the Corporation as Deputy Project Engineer (Civil) in the different projects of the Corporation. All the three petitioners claimed that even after completion of their service career of fourteen years in the post of Manager (Civil) and in spite of their unblemish career and no adverse entry in their C.C.R. petitioners were all expecting their promotion to the immediate higher posts, i.e., Senior Manager (Civil) . All the three petitioners claimed that the Corporation has not framed any Service Rule to regulate the service condition of the Officers working in the Corporation and all such promotions were undertaken as per the principle and guidelines determined by Board of Directors of the Corporation from time to time. All the three petitioners claimed that the Corporation has not framed any Service Rule to regulate the service condition of the Officers working in the Corporation and all such promotions were undertaken as per the principle and guidelines determined by Board of Directors of the Corporation from time to time. While the matter stood thus, in the year 1988 the Board of Directors of the Corporation passed the proposal of approval of the Memorandum to determine the criteria for promotion to the rank of Managers to Senior Manager includes a Manager having 10 years continuous service will be considered for promotion to the post of Senior Manager subject to however on the basis of seniority and suitability. Petitioners claimed that since they were working on deputation, their promotion were supposed to be guided by Service Regulation prevailing for the Engineers of the State of Orissa. But, for the decision of the Corporation to recruit Engineers of its own for independent functioning of the Corporation, the petitioners were all appointed as Deputy Engineers in the year 1988-89 by the Corporation. Corporation maintains the gradation list of regular Engineers in Civil and Mechanical panel, petitioner - Niranjan Mishra in W.P.(C) No.11847 of 2003 was ranked at Sl. No.12 of the gradation list at Annexure-1, whereas petitioner - Sitansu Bhusan Sarangi in W.P.(C) No.11849 of 2003 was ranked at Sl. No.13, similarly petitioner - Pradeep Kumar Padhi in W.P.(C) No.7687 of 2004 was ranked at Sl. No.6 at Annexure-1, a common document to all the three writ petitions. It is in the premises of their seniority position in the gradation list, all the three writ petitioners claimed to be eligible and qualified to be considered for promotion to the post of Senior Manager (Civil) as against the availability of vacancies in the Corporation. Considering the principle existing then requiring a candidate for promotion must be having 10 years of experience and will be considered on the basis of seniority-cum-merit, it appears, names of all the three writ petitioners were forwarded before the Departmental Promotion Committee to consider their cases from amongst the 26 members in the Manager (Civil) cadre. The Departmental Promotion Committee in its meeting dated 16.05.2001 recommended for filling up 11 nos. of Senior Managers (Civil) by way of promotion from the eligible Manager (Civil) taking into consideration their CCRs. In the process, the Departmental Promotion Committee recommended 15 nos. The Departmental Promotion Committee in its meeting dated 16.05.2001 recommended for filling up 11 nos. of Senior Managers (Civil) by way of promotion from the eligible Manager (Civil) taking into consideration their CCRs. In the process, the Departmental Promotion Committee recommended 15 nos. of Managers to be promoted as against 11 nos. of vacancies as per the list dated 16.05.2001 finds place at Annexure-2 in W.P.(C) No.11847 of 2003 and W.P.(C) No.7687 of 2004. It is when the petitioners were expecting their normal promotion considering the number of vacancies available at the relevant point of time and looking to their position in the recommendation list they became surprised to find that none of the petitioners was issued with any order of promotion appears to be on a malafide decision of the Chairman of the Departmental Promotion Committee and Managing Director of the Corporation. As a result, no Manager (Civil) could be promoted to the post of Senior Manager for about one year, but however, on 21.06.2002 a Memorandum was placed by the then Managing Director of the Corporation before the Board of Directors of the Corporation to change the criteria for promotion from "seniority-cum-merit" to that of "performance, merit-cum-seniority". The Board of Directors in their meeting dated 22.06.2002 approved the Agenda placed by the Managing Director in their Item No.195/14 introducing the modality for promotion from the post of Manager to Senior Manager on the basis of "performance, merit-cum-seniority" (Copy of Minutes finds place at Annexure-3 in all the writ petitions), resulting the aforesaid approval, the recommendations made by the Departmental Promotion Committee (for short "DPC") on 16.05.2001 stood cancelled. Subsequently, the DPC conducted a fresh consideration of the candidates on 18.09.2002 on which date the DPC recommended 11 nos. of Managers to be promoted to the post of Senior Manager on the basis of new modality approved in the meantime and the basis remained "performance, merit-cum- seniority". It is alleged, while the DPC freshly recommending 11 nos. of Managers recommended one Sri Shyamasundar Nayak on the basis of his performance as he was discharging his duties in pursuing for collection of revenue of the Corporation. It is alleged that all the petitioners even if were of same cadre, unfortunately were not recommended for promotion. The petitioners alleged that the faulty criteria of "performance, merit-cum-seniority" is unknown to the service jurisprudence. It is alleged that all the petitioners even if were of same cadre, unfortunately were not recommended for promotion. The petitioners alleged that the faulty criteria of "performance, merit-cum-seniority" is unknown to the service jurisprudence. It is further alleged that to accommodate their favourites the Corporation deliberately changed the modality in the matter of promotion. It is also alleged that the DPC in the process has gone beyond the norms to determine the merit of an employee. It is also averred that in the event the CCRs of all these petitioners vis-?-vis Sri Nayak is considered, the CCR of all the three petitioners march ahead of the CCR of said Nayak. This apart, all the petitioners were also not only having unblemished career but were also stood above Sri Nayak as per the gradation list published by the Corporation. It is on the premises that if the basis of promotion stands "merit-cum-seniority" the petitioners would have been better perspective candidates than Sri Nayak. Further, for the different principle for promotion available at the time of DPC's recommendation under Annexure-1, it is also alleged that the Corporation is not right in adopting a subsequent principle subsequent to the preparation of the list vide Annexure-1. Applying the settled principle of law that a thing which has not seen the light of the day cannot be a basis on the action taken prior to existence of such thing, the petitioners allege that the promotion become bad, they also allege discrimination in the matter of promotion on the premises that the previous principle though applied in the case of other branches of the Engineers but for the reason best known to the Corporation the petitioners have been kept out of the promotion purview on application of a subsequent principle which is not permissible in the eye of law and in any event the principle existing at the time of DPC could have been applied, the fate of the petitioners would have been otherwise. Petitioners also allege that there has been colourable exercise of power in the matter of promotion of different group of Engineers in the same cadre. Petitioners also allege that there has been colourable exercise of power in the matter of promotion of different group of Engineers in the same cadre. Thus, filing the writ petitions the petitioners have claimed this Court for interfering in the promotion of opposite party no.3 to the post of Senior Manager (Civil) vide Annexure-4 in each of the writ petitions, further directing the Corporation to hold a fresh DPC and on being found suitable all the three petitioners may be promoted to the post of Senior Manager with effect from 24.01.2003 on the date when opposite party no.2 in W.P.(C) No.11847 of 2003 and W.P.(C) No.11849 of 2003 whereas with a difference in W.P.(C) No.7687 of 2004 to the effect making the claim for promotion through the fresh DPC to the post of Senior Manager (Civil) with effect from 24.01.2003 i.e. from the date the opposite party nos.2 to 6 in W.P.(C) No.7687 of 2004 were promoted as Senior Manager. Taking the further plea that in the meantime the post has been upgraded since 27.05.2011 a direction is also sought for directing the Corporation to upgrade the post of Manager (Civil) with effect from 24.01.2003 instead of 27.05.2011 and also for release of all differential arrears, in modification of the Office order dated 27.05.2011. 3. Taking this Court to two decisions of the Hon'ble Apex Court in the case of D.S. Nakara and others vrs. Union of India, (1983) AIR(Supreme Court) 130 and in the case of D.P. Das vrs. Union of India, (2011) AIR(Supreme Court) 2947, Shri S.K. Rath, learned senior counsel appearing for all the writ petitioners apart from the above grounds, also contended that for the support of the decisions to the case of the writ petitioners involving all the three writ petitions, all the three writ petitions otherwise deserve to be allowed. 4. Union of India, (2011) AIR(Supreme Court) 2947, Shri S.K. Rath, learned senior counsel appearing for all the writ petitioners apart from the above grounds, also contended that for the support of the decisions to the case of the writ petitioners involving all the three writ petitions, all the three writ petitions otherwise deserve to be allowed. 4. In his opposition, Shri L. Pangari, learned senior counsel appearing for the Corporation on reiteration of the stand taken by the Corporation in its counter to each of the writ petitions, while not disputing the deputation of the petitioners in the Corporation, the date of their joining in the Corporation and the existence of a promotion policy at the time of DPC undertaken the exercise vide Annexure-1, further the change in the promotion policy with the approval of the Corporation later on and application of the policy came into existence later on in the case of promotion involving the post of Senior Manager, but however, taking this Court to the stand of the opposite parties in their counter appears to be almost common, contended that all these officers were guides by the Orissa Service Code and the Corporation was also following the State Government Rules and Regulations in respect of its employees including the deputationists, but however, taking this Court to the decision of the Board of Directors of the Corporation in its 128th meeting held on 07.09.1988 submitted that the Board in principle decided to form its own cadre of Engineers instead of solely depending on the Government Engineers on deputation. It is also claimed that in the same meeting it was also decided that the mode of recruitment will be through paper advertisement and selection may be made by a Committee to be appointed by the Chairman and to start with the vacancies were to be filled up by the Assistant Engineers working on Adhoc basis in the Irrigation and Power Department. Coming to the claim of the petitioners on the principle adopted in the matter of promotion, Shri Pangari, learned senior counsel appearing for the Corporation submitted that not only the Corporation's own rule and service conditions will be applied to these recruits but the condition criteria also endures only a candidate must be at the minimum 10 years of continuous service. It is in the meantime, in the year 1989, the State Government advised the Corporation to observe 17 Assistant Engineers of the Government after conducting formal interview. In the process the Corporation engaged all the 17 Engineers including the petitioners in the three writ petitions and designated them as Deputy Project Manager (C) which was subsequently re-designated as Manager (Civil) . Shri Pangari, learned senior counsel appearing for the Corporation submitted that till 2001 there was no specific promotion criteria adopted by the Corporation as clearly indicated by the petitioners indicated hereinabove. It is on the premises that the Corporation has come up with a promotion criteria through its Board with the approval of the Chairman and having been implemented the case of the petitioners were bound to be considered under the new promotion criteria and the previous recommendation of the case of the petitioners was a mere formality. It is also contended by Shri Pangari, learned senior counsel appearing for the Corporation that cases of all the candidates available including the petitioners and the opposite party no.2 in W.P.(C) Nos.11847 and 11849 of 2003 and opposite party nos.2 to 6 in W.P.(C) No.7687 of 2004 were all considered and for finding opposite party no.2 in the first two writ petitions having outstanding performance and to superannuate within limited period of service before his retirement on 31.07.2003, his name was included in the promotion list of 11 Managers (Civil) to the post of Senior Manager. Shri Pangari, learned senior counsel appearing for the Corporation on the premises that the Board of Directors of the Corporation being the highest policy making body and the Managing Director's function is only to carry out the decision of the Board, contended that the allegations against the Managing Director including the allegation of discrimination or colourable exercise of power are all not maintainable / sustainable. Taking to the response of the opposite parties in paragraph-8 of W.P.(C) Nos.11847 and 11849 of 2003 and in paragraph-9 of W.P.(C) No.7687 of 2004, Shri Pangari, learned senior counsel submitted that in the fresh meeting for recruitment and promotion Committee held on 18.09.2002 to consider the promotion of Manager (Civil) to the post of Senior Manager (Civil), the said Committee considered the promotion of 23 Managers (Civil) who were all listed for promotion and had completed 10 years of service by then and the Committee considering the case of the different Officers available for promotion and also taking into account the promotion policy adopted by the Corporation by then, prepared a panel of 11 Engineers including 2 Scheduled Caste Officers for promotion to the post of Senior Manager and found the two candidates at Sl. Nos.6 (petitioner in W.P.(C) No.7687 of 2004) and 9 of the Gradation list unsuitable for promotion. Placing the relevant extract of the proceeding of the Promotion Committee, Shri Pangari, learned senior counsel appearing for the Corporation submitted that while considering the case of opposite party no.2 in W.P.(C) Nos.11847 of 2003 and 11849 of 2003 and opposite party no.6 in W.P.(C) No.7687 of 2004, found Niranjan Mishra involving W.P.(C) No.11847 of 2003 and Sitansu Bhusan Sarangi involving W.P.(C) No.11849 of 2003 less meritorious than Sri Nayak. It is under the premises, Shri Pangari, learned senior counsel appearing for the Corporation submitted that the allegation that there has been discrimination and colourable exercise of power remain unfounded for the clear fact revealing that there is a consideration of the case of the prospective candidates in the matter of promotion to the post of Senior Manager where all the three writ petitioners were found unsuitable for comparison of the persons who have been promoted. Sri Pangari, for the justified consideration of the case of available candidates, contended that there leaves no scope for this Court in interfering in the promotion process. In the above circumstance, Sri Pangari, learned senior counsel appearing for the Corporation prayed for dismissal of all the three writ petitions on the premises of having no substance. 5. Sri Pangari, for the justified consideration of the case of available candidates, contended that there leaves no scope for this Court in interfering in the promotion process. In the above circumstance, Sri Pangari, learned senior counsel appearing for the Corporation prayed for dismissal of all the three writ petitions on the premises of having no substance. 5. Considering the rival contentions of the parties and from the pleadings available in the writ petitions as well as in the counter, this Court finds, in fact the petitioners were all original employees under the State Government, but for emergency requirement in the Corporation they were all deputed along with several other Engineers to the Corporation. Subsequently, on their permanent observation in the Corporation their post has been re-designated as Manager (Civil) . For their observation in the Corporation the principle adopted for promotion by the State Government are no more available to be applied to the cases of promotion the movement the Corporation comes up with its own promotion policies. What appears here is, there is no doubt that when the recommendations were made in the year 2001 including the name of the petitioners for promotion to the posts of Senior Manager, there existed no promotion policy of the Corporation. There also remains no doubt that the promotion whatever taking place in the Corporation, was taking place on the basis of some ad-hoc system. It, however appears, on subsequent consideration of this aspect, the Corporation has chosen to bring forward its own promotion policy thereby adopted the principle of "performance, merit-cum-seniority" for the purpose of promotion to a higher post. This being the policy of a Corporation with approval of the highest authority, there is absolutely no scope for a Court functioning under Article 226 of the Constitution of India to interfere in such policies unless and until the policies shown to be arbitrary, contrary to law and discriminatory. For the policy enforced by the Corporation, this Court finds no arbitrariness on the policy framed by the Corporation. Further, the policy so introduced by the Corporation having been followed over the years may be by now 16 years and in absence of any challenge to such adoption at relevant point of time, this Court finds absolutely no scope for interfering in such policies after such long lapse of time . Further, the policy so introduced by the Corporation having been followed over the years may be by now 16 years and in absence of any challenge to such adoption at relevant point of time, this Court finds absolutely no scope for interfering in such policies after such long lapse of time . This Court also observes, in the event this Court interferes in the policy decision of the Corporation involved herein after lapse of 16 years, it may end in creating bizarre situation as several promotions adopting such policy has already been undertaken in the meantime. It is at this stage, taking into consideration the extract from the proceeding of the Committee considering the case of the petitioners along with other candidates available for the purpose, this Court finds, the Committee considering the performance of respective parties has observed as follows :- "The working performance of Sri S.S. Nayak and the other Manager (Civil) including Sri Niranjan Mishra and Sri S.B. Sarangi in executing the works entrusted over the years was closely reviewed by the Committee and it was found that Sri S.S. Nayak has an outstanding performance in the field of execution and better than Sri Mishra and Sri Sarangi. Not only in the field of execution but also in other fields like finalization of final bills, rendering accounts, capabilities to administer and ability to control, the performance of Sri Nayak found to be quite competent than Sri Mishra and Sri Sarangi in all the fields of construction works. Considering all these aspects, the committee felt that Sri Nayak should be promoted to the post of Senior Manager (Civil) on out of turn basis in the over all interest of works of the Corporation ahead of Sri Mishra and Sri Sarangi. Accordingly, the committee recommended for promotion of Sri S. S. Nayak to the post of Senior Manager (Civil) and also decided that the promotional case of the above named Managers will be considered in the next DPC when held." 6. From the observations of the Committee indicated hereinabove, this Court finds case of all the candidates including the petitioners had been undertaken taking into account the promotion policy. In the exercise of finding the suitability of the candidates as the first step found Sri Niranjan Mishra involving W.P.(C) . No.11847 of 2003 and Sri Sitansu Bhusan Sarangi involving W.P.(C) No.11849 of 2003 are less meritorious than Sri Nayak. In the exercise of finding the suitability of the candidates as the first step found Sri Niranjan Mishra involving W.P.(C) . No.11847 of 2003 and Sri Sitansu Bhusan Sarangi involving W.P.(C) No.11849 of 2003 are less meritorious than Sri Nayak. Similarly, coming to consider the case of the petitioner - Sri Pradeep Kumar Padhy involving W.P.(C) No.7687 of 2004, this Court also finds, the Committee while considering his case also found him to be less meritorious than opposite party no.6 involved in the said writ petition. There also appears adverse remark involving the petitioner. The Committee so far it relates to consideration of the case of Sri Padhi, the petitioner in the 3rd writ petition had the following observations:- "x xx xx x xx xx x 2. Sri P.K. Padhy, Gen. He was in charge of execution of (I) Power House No.I of Gompakonda Main Canal (2) Power House No.II of Gompakonda Main Canal of Potteru Irrigation Project. It was observed that due to his perfunctory nature of work, the Corporation has received a number of adverse letters from our client, M/s. OHPC. Also the quality of work executed by him is not good for which there was leakage from P.H.-II as observed by the Technical Committee headed by Engineer-in-Chief, Water Resources. Considering these aspects, it is decided that his case will be considered on his future performance in next D.P.C." 7. From the proceedings of the Promotion Committee, this Court finds, not only there is consideration of the case of all the three petitioners herein, but the Committee on consideration of the career assessment of all the three writ petitioners herein in comparison to other candidates available for the purpose, came to observe that all the three writ petitioners are less meritorious than the other selected candidates. In the circumstances, this Court finds no scope for interfering in such findings of the Selection Committee. In the circumstances, this Court finds no merit in all the three writ petitions. As a consequence, this Court dismisses all the three writ petitions for having no substance. There is no order as to cost. Final Result : Dismissed