Madhab Chandra Barik vs Odisha Hydro Power Corporation Ltd. & Ors.

Both the writ petitions have been clubbed together and disposed of by the following common judgment.

Instant writ petitions are filed by the petitioner for a direction to the opposite parties to promote him to E-3 Grade with effect from 27^th March, 2008 when opposite party No.3 received such promotion on quota as per and in accordance with Orissa Hydro Power Corporation Officers Service Regulations (hereinafter referred to as ‘the Regulations’) on the grounds stated and grant of consequential service benefits in his favour in terms thereof.

The petitioner challenges the action of opposite party No.1 for not considering him in the newly forming cadre on Instrumentation and Control trade in the post of Assistant Manager E-3 Grade from 27th March, 2008. It is pleaded on record that the petitioner while working as Assistant Manager E-3 Grade in Balimela Hydro Electric Project under the Orissa Hydro Power Corporation Ltd. (shortly as OHPC Ltd.) was posted as such at the Project Unit in the district of Malkangiri. The further pleading is that the petitioner is a Diploma holder in Instrumentation and Control Engineering passed out in 1987 from Bhubananda Orissa School of Engineering, Cuttack and also obtained Post Graduate Diploma in Computer Application. According to the petitioner, he was engaged as Assistant Foreman on NMR basis in Upper Kolab Hydro Electric Project on 6th February, 1989 and by that time the project was under the Energy Department of the State Government and in 1996, a reformation was introduced under the Electricity Reform Act, 1995 and as a result, on such formation of OHPC Ltd., all the staff as well as the assets and liabilities of the project stood transferred from opposite party No.2 and on 26th February, 1997, the convener of the Staff Selection Committee of the OHPC Ltd. called for application to regularize the employees continuing on NMR basis to which the petitioner’s application was forwarded whereafter an interview held between 11th March, 1997 and 13th March, 1997 by the selection committee. On being successful, he was appointed as Junior Manager (E-2 Grade) in the OHPC cadre in the trade of Instrumentation and Control on 18th July, 1998 carrying the scale of pay of Rs.1640-2600/- on regular basis against the existing vacancy and after successful completion of the probation period, his service by order dated 26th August, 2000 (with effect from 26th September, 1999) in the concerned Trade.

Much after the appointment/regularization of the petitioner’s service in the OHPC Ltd., opposite party No.3 was appointed as Assistant Manager E-3 Grade in the OHPC cadre in the same Trade on 13th October, 1999 by direct recruitment in pursuance of the advertisement dated 1st January, 1998. It is pleaded that the petitioner and opposite party No.3 was appointed in the Instrumentation and Control Trade in Grade-2 and Grade-3 respectively but they were shown as Technical Executive (Electrical) cadre at Sl. No.350 and 279 in the Gradation List published on 1st December, 2000 as per Annexure-1. According to the petitioner, he had first joined in OHPC Ltd. in the Trade of Instrumentation and Control prior to the appointment of opposite party Nos.3 to 5 as he was working on NMR basis from 6th February, 1989 with opposite party No.2 to his appointment in the Corporation on 10th February, 1998 and from that cadre list of the Corporation prepared in 2007 indicates that they were in respective Grades at Sl. No.200 and 297 respectively.

On 31st July, 2004, it was decided in the meeting by the Directors of the OHPC Ltd. that the Executives in the isolated posts and also the Executives having no promotional scope and one who remained in one post for certain years of service should be considered by the DPC and recommended the cases shall be placed before the Board for approval followed by a resolution mentioning therein that minimum years of qualifying service for consideration. A copy of the said resolution is at Annexure-3. Subsequent thereto, opposite party No.3 was promoted/upgraded to E-4 Grade in the Trade of Instrumentation and Control with the probation period of one year vide Annexure-4. Though opposite party No.3 and the petitioner were shown in the Gradation List prepared by the Corporation who are Electrical cadre since 2000, his name was dropped from the cadre list after his promotion on 27th March, 2008. The said cadre list is at Annexure-5. It is alleged that the petitioner was ignored for promotion despite having vacancies available especially after promotion of opposite party No.3 to E-4 Grade. Moreover, five posts were approved in E-3 Grade in the Instrumentation and Control Cadre and duly advertised under Annexure-6 followed by a corrigendum dated 1st January, 1998. After promotion of opposite party No.3, it is also pleaded that the case of the petitioner was again ignored besides four other approved posts being available and for such non-consideration is discriminatory and illegal and, therefore, he is to be promoted to E-3 Grade as Assistant Manager from the date when opposite party No.3 was upgraded.

During pendency of W.P.(C) No.14420 of 2008 filed claiming upgradation or promotion to E-3 Grade at least with effect from 27th March, 2008, an advertisement was published on 3rd February, 2009 for direct recruitment of Graduate Engineer Trainee in various discipline including two posts in Instrumentation and Control Trade for placement of its various units vide Annexure-7, as against which opposite party Nos.4 & 5 were appointed on 13th July, 2009 and 14th August, 2009 respectively but the petitioner’s claim for promotion to E-3 Grade was ignored. The petitioner’s plea is that he has been further discriminated having not been considered for promotion to the consequent vacancy of Assistant Manager for Instrumentation and Control Trade even though he satisfied all the requirements for such promotion under the Regulations.

The cadre list of the Corporation indicates that the petitioner is included in the cadre of Electrical Engineer discipline placed at Sl. No.274 when the name of opposite party No.3 was not mentioned therein but the list prepared in the year 2010 indicated both of them were in Electrical cadre. A copy of the said cadre list is at Annexure-8. Since opposite party No.1 recruited opposite party Nos.4 & 5 and both of them joined in 2009, they were accordingly placed in the cadre list in 2012 whereas opposite party No.3 shown in the cadre of Deputy Manager. The claim of the petitioner is that he joined as Junior Manager Grade-2 in the Instrumentation and Control Trade but he has not been brought over to the newly formed cadre. It is alleged that though the objection was invited before the cadre list was finalized but it was confined to Head Quarter only, hence, the petitioner was similarly placed along with others working in the project and was debarred from filing any such objection to the tentative Gradation List prepared as it was not intimated and finally, the cadre list was prepared as per Annexure-9 and it was followed by Annexure-10 in the year 2015.

In the meantime, the petitioner approached this Court in W.P.(C) No.22629 of 2015 challenging his non-consideration of promotion/upgradation to E-3 Grade at least from 27th February, 2008 when opposite party No.3 was taken to E-4 by upgradation and it was disposed of on 24th December, 2015 directing consideration of the same with a fresh representation received from him by the authority concerned but within a stipulated period whereafter such representation dated 6th January, 2016 i.e. Annexure-11 was submitted and it has been acknowledged by the Corporation vide letter dated 11th April, 2016 i.e. Annexure-12 with an intimation to furnish a reply about pendency of W.P.(C) No.14420 of 2008 and it was responded by letter dated 9th September, 2016 at Annexure-14 upon receiving the reply under Annexure-13. Since it was decided to wait till the final order passed therein, CONTC No.498 of 2017 was filed and it was disposed of on 12th December, 2018 directing the authority to decide his plea for promotion with the extended period of three months. It is pleaded that the petitioner was promoted to the post of Assistant Manager (Electrical) w.e.f. 29th December, 2017 i.e. from the date of DPC was held vide Annexure-15 and thereafter, an option was invited for placement of Electrical Diploma Engineer of different discipline on their respective cadres and it was exercised by him and consequent thereto, he was placed in the Instrumentation and Control cadre as Assistant Manager in Grade-3 but his claim to consider it from 27^th March, 2008 was ignored. As against the aforesaid background, the petitioner would plead that at least there are five posts available in the said Trade in Instrumentation and Control as admitted by opposite party No.1 vide Annexure-18 and opposite party No.3 was appointed, the rest are lying vacant and to be filled up by promotion and since the petitioner has fulfilled all such criteria, such promotion in his favour should be considered accordingly and any such non-consideration from 27th March, 2008 is illegal.

On the contrary, counter affidavit is filed by the Corporation through opposite party No.1 and it is pleaded therein that the petitioner was engaged as NMR and was posted at Upper Kolab Hydro Electric Project, Bariniput and subsequently transferred to the OHPC Ltd. and joined in the organization with effect from 1st April, 1996 as per the Transfer Rules, 1996 introduced under the Odisha Electricity Reforms Act, 1995 and that in accordance to the said Act, all the Hydro Power Generating Units functioning under the erstwhile OSEB and the Government of Odisha including the Upper Kolab Hydro Electric Project, Bariniput, Koraput were transferred to OHPC Ltd. w.e.f 1st April, 1996 and while transferring the project, the Government of Odisha also transferred the executives working under the erstwhile OSEB as well as the Govt. along with the posts in the technical cadre. Thereafter, OHPC Ltd. took a decision to regularize all the NMR employees having Diploma qualification engaged in different projects against the existing vacancy under the Electrical cadre in the post of Junior Mangers and accordingly, the petitioner along with 26 others in different Trades were regularized as Junior Managers (Electrical) on 7th November, 1998 and there is no denial to it.

Inter se seniority of the petitioner was placed under the Electrical cadre at Sl. No.350 of the provisional Gradation List of the Technical Executives published in the year 2000 inviting objections/suggestions from all concerned and it was not responded to and thereafter the seniority list was finalized and the final Gradation List was published on 10th July, 2001 as per Annexure-B/1, wherein the petitioner has been placed under the Electrical cadre. Since there was no cadre and no approved post of Junior Manager in Instrumentation and Control Trade under the Corporation by that time, the petitioner’s claim to any such post is unsustainable even if he possessed the qualification. It is further pleaded that the Corporation had no cadre for the Instrumentation and Control for five Executive posts but taking a lenient view the service of the petitioner was regularized against the vacancy of Electrical cadre and accordingly, he accepted and joined in the post of Junior Manager (Electrical) and at no point of time any objection was raised to the same.

The petitioner was working as Assistant Foreman in the Upper Kolab Hydro Electric Project before reformation in the power sector and since there were no approved posts of Junior Managers in the Instrumentation and Control cadre under the Corporation but claim for any such post is unsustainable. Although the petitioner is possessing the Diploma qualification but after formation of the Corporation in the year 1996 all the NMRs in respect of their Trade such as Electrical, Mechanical, Instrumentation & Control were regularized as Junior Manager (Electrical) against the existing vacancy in Electrical Cadre vide office order dated 18th July, 1998 which has not been challenged by him or at any time objected and, hence, therefore, the claim demanding of upgradation/promotion is devoid of merit.

Opposite party No.3 is a direct recruitee and joined in the cadre of Instrumentation and Control after open advertisement held with the approval of the Government vide letter No.10656 dated 31st July, 1999 of Joint Secretary to Government, Department of Energy, Govt. of Odisha, as it was an isolated post with no promotional avenues, he was upgraded to Deputy Manager (Instrumentation & Control) as per the decision of the 86th Board read with 62nd Board decision held on 31st July, 2004 and the petitioner’s promotion to the higher post was considered as per the existing rules and the Regulations.

The Board in its 147th meeting held on 5th September, 2018 approved for placement of Non-Electrical Diploma Engineers in their respective cadre after implementation of restructured sanctioned strength and accordingly, it suggested to seek option at the time of such placement and at that time, the petitioner was given option to respond and, therefore, no discrimination or any non-consideration of the promotion to the higher post in E-3 Grade has taken place, as opposite party No.3 was appointed against the approved post in such Grade through an open advertisement.

The petitioner was not eligible to the post advertised during the year 2009 as he was functioned as Assistant Manager (Electrical) whereas the recruitment was called for Graduate Engineering Trades in the Instrumentation and Control cadre and such other Trades. Furthermore, the petitioner exercised the option towards the change of his cadre pursuant to the decision of the Board of the Corporation in its meeting held on 5th September, 2018. As a result, he was taken into the cadre of Instrumentation & Control with effect from 15th November, 2018. It is pleaded that the case of the petitioner was kept in abeyance in view of pendency of W.P.(C) No.14420 of 2008 while dealing with his representation pursuant to the order in W.P.(C) No.22629 of 2015 on the ground that the dispute is similar. With the above pleadings on record, the Corporation justified the non-consideration of upgradation/promotion of the petitioner and subsequent promotion held in accordance with the extant rules and the Regulations.

In the meanwhile, W.P.(C) No.14709 of 2019 was filed by the petitioner demanding promotion to E-3 Grade w.e.f. 27^th March, 2008 when opposite party No.3 was promoted to E-4 Grade on promotion quota as per the Rules framed by O.H.P.C with consequential benefits in so far as W.P.(C) No.14420 of 2008 is concerned, it was at the behest of the petitioner to direct opposite party No.1 to upgrade him to E-3 Grade on and from the date when opposite party No.3 was upgraded/promoted, if not earlier and to pay the arrear benefits including salary, increment etc. in the said upgraded posts in his favour. Initially upgradation to the next higher rank was pleaded by the petitioner in W.P.(C) No.14420 of 2008 which was followed by a demand for promotion to the said post w.e.f. 27^th March, 2008 by filing W.P.(C) No.14709 of 2019.

Gone through the counter affidavit of the opposite parties in W.P.(C) No.14420 of 2008 besides the counter, an additional affidavit dated 19^th February, 2019 is filed by opposite party No.1 therein. The stand of the Corporation in W.P.(C) No.14709 of 2019 has been described earlier. In W.P.(C) No.14420 of 2008, a similar plea is advanced by the opposite parties. It has been pleaded in the counter dated 2^nd April, 2013 by opposite party No.1 that the basis of entry into service by the petitioner and opposite party No.2 is quite different from each other and the Board of Director’s decision dated 31^st July, 2004 does not apply to him, hence, there is no merit in the claim of upgradation for any consideration. It is also pleaded that the petitioner is in Electrical cadre against the vacancy of Junior Engineer/Junior Manager (Electrical) since 1998 and he was at serial No.350 in the Gradation List published by office order dated 17^th July, 2001 and republished in all subsequent years without any change in the placement therein and it was never objected either and also regarding the cadre, hence, the question of considering upgradation to the consequential vacancy of Assistant Manager (Instrumentation and Control) does not arise at all. Referring to the Gradation List at Annexure-C and the list published in the subsequent years i.e. Annexure-D series. In the additional affidavit dated 19^th February, 2019 in W.P.(C) No.14420 of 2008, it is pleaded that after formation of O.H.P.C. and transfer of the Upper Kolab Hydro Electric Project to the control of O.H.P.C in the year 1996 all the NMRs including the petitioner irrespective of their trade were regularized as Junior Manager (Electrical) against the existing vacancies and it has not been challenged by him thereafter. It is further pleaded therein that the O.H.P.C in its 147^th meeting held on 5^th September, 2018 approved for placement of non-technical Diploma Engineers in their respective cadre after implementation of restricted sanctioned strength and accordingly suggested to seek option from them continuing under the Electrical cadre into the restructured cadres of Electrical, Mechanical and Instrumentation and Control and per the qualification and discipline and basing on that the petitioner, a diploma holder functioning as Assistant Manager (Electrical) exercised such option for change of his cadre w.e.f. 15^th November, 2018 which was communicated to the Director (HRD), O.H.P.C. for consideration and on that option, he was brought over to the cadre of Instrumentation and Control and while so claiming, Annexure-E series to the additional affidavit is referred to.

Such upgradation/promotion demanded by the petitioner is against E-3 Grade post of Assistant Manager w.e.f. 27^th March, 2008 when a direct recruitee joined in the Corporation was upgraded/promoted to E-4 Grade. It is to clarify that said recruitee by lateral entry has been implicated as opposite party No.2 in W.P.(C) No.14420 of 2008 and as opposite party No.3 in W.P.(C) No.14709 of 2019 and accordingly, as against his upgradation/promotion, the petitioner’s demand is put forth.

Mr. Patnaik, learned counsel for the petitioner submits that there was no cadre of Instrumentation and Control and even if, the petitioner was having such trade at the time of formation of O.H.P.C., 1996, he and others were absorbed as against the posts of Junior Engineer/Junior Manager E-2 Grade. It is further submitted that at the relevant point of time, after entry of the direct recruitee, an Engineering Graduate (Instrumentation and Control) on 13^th October, 1999, the petitioner along with him were shown in Electrical cadre which was the only cadre available by them. While claiming that there is no such cadre of Instrumentation and Control existed at the relevant point of time, Mr. Patnaik, learned counsel would refer to Rule-2.4.0 of the Rules read with Annexure-1 thereof. It is contended that O.P. No.3 was upgraded/promoted to E-4 Grade on 27^th March, 2008 by a decision of the Board of O.H.P.C as per Rule-5.4.8 read with its decision as per Annexure-7 in W.P.(C) No.14420 of 2008 and in terms of resolution vide Item No.62/6(a)-Promotion of Executives to next higher grade with the necessary criteria fixed including experience for consideration by DPC. It is the submission that the petitioner’s case was not considered for promotion though five approved posts were available in E-3 Grade in 2008 as per the promotion policy of the Board and a copy of which is at Annexure-3 in W.P.(C) No.14709 of 2019. The claim of the petitioner is for upgradation/promotion to E-3 Grade as per the said policy and according to Mr. Patnaik, learned counsel, he joined like any other technical executive but an Electrical cadre as no any cadre in Instrumentation and Control was in place. For the 1^st time, the cadre list was published in 2001 as further submitted and therein, the petitioner and opposite party No.3 was shown in Electrical cadre and it continued till 2007 when opposite party No.3 was upgraded to Grade-4 and was dropped from the cadre list and again shown below in the cadre list of 2010. Since, in the meantime, two others were appointed in 2009 as shown in the cadre list for Instrumentation and Control in 2012 as per Annexure-12, the petitioner filed W.P.(C) No.22629 of 2015 and according to Mr. Patnaik, learned counsel, it was disposed of on 24^th December, 2015 with a direction to the Corporation to consider his representation however he was promoted to E-3 Grade in Electrical cadre on 15^th January, 2018 and transfer to Instrumentation and Control cadre on 31^st December, 2018 in the same grade vide Annexure-17. But Mr. Rout, learned counsel for the opposite parties would submit that only after creation of a cadre in Instrumentation and Control, the petitioner was accommodated in E-3 Grade but he cannot claim any such upgradation/promotion as against an isolated post filled up by a direct recruitment. Even if, opposite party No.3 was upgraded/ promoted to a higher rank in E-4 Grade in the year 2008, according to Mr. Rout, learned counsel as against any such available vacancy, the petitioner cannot claim upgradation/promotion. Such upgradation was allowed in respect of the post by the Board’s decision. Mr. Rout, learned counsel would further submit that the petitioner is guided and governed by the recruitment rules on promotion and could not have been upgraded/promoted to any such post specially created and sought filled up by a direct recruitment. The petitioner being a Junior Engineer/Junior Manager (Electrical) joined the Corporation after its formation irrespective of any such trade and available vacancies advertised and filled up by opposite party No.3 in respect of one cannot as a matter of right demand upgradation/promotion dehors a recruitments rules and Regulation.

Sole question for determination is whether the petitioner is eligible and entitled to upgradation/promotion to E-3 cadre as Assistant Manager (Electrical) w.e.f. 27^th March, 2008 as belonging to the trade of Instrumentation and Control?

The petitioner was absorbed in E-2 Grade as a Junior Engineer/Junior Manager in Electrical cadre by order dated 18^th July, 1998. As to opposite party No.3, he joined the Corporation as an Assistant Manager in E-3 Grade on 13^th October, 1999 by a direct recruitment as earlier stated. In fact, the appointment of opposite party No.3 is accomplished by a recruitment held by an advertisement dated 30^th December, 1997 and corrigendum dated 1^st January, 1998 published by the Corporation. The very appointment of opposite party No.3 in the Corporation as at direct recruitee and an Engineering graduate is against the post of Assistant Manager in the Electrical cadre with a trade of Instrumentation and Control. The claim is that the petitioner joined as Junior Manager in the same cadre like opposite party No.3 and both have same trade of Instrumentation and Control. Admittedly, the petitioner and opposite party No.3 was shown in the cadre list till 2008 when the latter was upgraded to a higher post in E-4 Grade. According to Mr. Patnaik, learned counsel for the petitioner, upon such upgradation, the name of opposite party No.3 was dropped from the cadre list and was again shown therein in the list of 2010. Admittedly, entry into service of the petitioner and opposite party No.3 is achieved differently. The petitioner was an NMR in the erstwhile Upper Kolab Hydro Electric Project and was absorbed after the creation of O.H.P.C in 1996 and accommodated in Electrical cadre as Junior Manager. The entry of opposite party No.3 is through a direct recruitment and it was in 1999 and he joined as Assistant Manager in E-3 grade. As per the advertisement followed by corrigendum dated 1^st January, 1998, Degree Engineers were allowed to apply for the posts advertised. From the said advertisement/ corrigendum, the Court finds that the posts of Assistant Manager, Civil, Electrical, Instrumentation and Control; Manager (Civil) and DGM (Civil) or Assistant AGM(Civil) were advertised to be filled up from among the Degree Engineers. Admittedly, five posts were advertised to fill up Assistant Manager (Instrumentation and Control) in the scale of pay of Rs.2000/- to Rs.3500/-. Against the said advertisement and recruitment held, opposite party No.3 joined as a direct recruitee in 1999 as Assistant Manager(E-3) and placed in the Electrical cadre along with others including the petitioner as earlier mentioned the petitioner and opposite party No.3 belong to the same trade of Instrumentation and Control. The contention of the petitioner is that despite the Board’s decision dated 31^st July, 2004, he was not considered for upgradation/promotion to the post of Assistant Manager (E-3). Furthermore, from Annexure-4 in W.P.(C) No.14709 of 2019, it is revealed that opposite party No.3 as Assistant Manager (Instrumentation and Control) was upgraded as Deputy Manager in E-4 grade. It is admitted by the petitioner that even though thereafter he was dropped from the cadre list but not shown against any cadre. In fact, the cadre in Instrumentation and Control came into being only in 2018. It does mean, there was no cadre in Instrumentation and Control from the very beginning and only recently in 2018 upon creation of it, the petitioner and opposite party No.3 have been accommodated therein. In fact, opposite party No.3 was in Electrical cadre until then and since he was a direct recruitee such upgradation was allowed to him in 2008 to E-4 grade. In fact, the Board’s decision vis-à-vis promotion of executives to next higher grade dated 31^st July, 2004 is in respect of the executives, who are not in the cadre but in isolated posts and also for such executives having no promotional score or avenue and have remained in one post for a certain years of service for consideration by the DPC as mentioned before two more posts were advertised by the O.H.P.C. on 13^th February, 2009 along with such other posts as against which opposite party Nos.4 and 5 in W.P.(C) No.14709 of 2019 received appointments and the claim of the petitioner to E-3 grade was not considered and according to Mr. Patnaik, learned counsel, it was ignored even if, vacancies were available under 33% promotion quota. As against the rival contentions and facts pleaded on record, the claim of the petitioner with retrospective upgradation/promotion to E-3 grade should be considered after opposite party No.3 received upgradation to E-4 grade. It has to be borne in mind that opposite party No.3 was upgraded as Deputy Manager (Instrumentation and Control) in E-4 grade and not by a promotion. According to Mr. Rout, learned counsel for the opposite parties, it was considered and upgradation was allowed in respect of opposite party No.3, who joined the Corporation through a direct recruitment and hence, subsequent to such upgradation, the petitioner demand either for upgradation or promotion cannot be considered as any such promotion to the next higher level is subject to the recruitment rules.

At the juncture, the Court is inclined to refer to the relevant provisions of the Rules and Regulation for better appreciation, which are extracted hereinbelow:

The above Rules are in place by virtue of Clause 8 and 11 of the Regulations. The details of the recruitment and promotion and the manner in which, it shall be carried out are subject to the rules framed under the Regulations. In so far as, methods of recruitment are concerned, it shall either be direct or departmental. The recruitments of the Corporation shall be made by one or more of the methods prescribed under Rule 2.6.0 of the rules which also includes recruitment through promotion from lower grades who meet prescribed specifications. Any such post to be filled in by promotion according to the rules (supra), it shall be held as per the promotion rules separately framed at Part-B of Chapter-V. According to Rule 5.5.2 of the Rules under Chapter-V, the number of vacancies to be filled up by promotion of Junior Managers in E-2 to Assistant Managers (Electrical) in E-3 shall be so fixed that the promoted Junior Engineers do not exceed 33% of the total posts of Assistant Manager (Electrical) with such other stipulations indicated therein. In other words, requisite number of posts in Assistant Manager (Electrical) not exceeding 33% of the strength shall be filled up from among Junior Managers (Electrical). Having considered the relevant rules, it has to be determined as to if the petitioner is eligible for any such upgradation/promotion to E-3 grade w.e.f. 27^th March, 2008.

At the cost of repetition, it is stated that the Corporation had no cadre of Instrumentation and Control, only created in 2018 as against which the petitioner and opposite party No.3 have been accommodated. It is not in denial that opposite party No.3 was in the cadre list as Assistant Manager (Electrical) till 2008. The petitioner was below opposite party No.3 in the cadre list since he joined as Junior Manager (E-2). It is not in denial that opposite party No.3 entered into service by a direct recruitment process. Such recruitment was followed by upgradation in view of the decision of the Board in 2008. According to the Court, such upgradation of opposite party No.3 was after a decision of the Board in its 62^nd meeting dated 31^st July, 2004. Can the petitioner demand upgradation/promotion after upgradation of opposite party No.3 in 2008? It is to be reminded that the petitioner like opposite party No.3 was in a cadre but the entry into service is different. As an NMR employee, he joined the project and subsequently accommodated in the Corporation whereas opposite party No.3 is an entrant into service by a direct recruitment. It is claimed that by 2004 posts in Instrumentation and Control were available, hence, the Board’s decision dated 31^st July, 2004 i.e. Annexure-7. From the advertisement/ corrigendum dated 1^st January, 1998, it is made to understand that five posts of Assistant Manager (Instrumentation and Control) were to be filled up by recruitment. Subsequent to the said recruitment, opposite party No.3 joined the Corporation and thereafter, was upgraded to E-4 grade in 2008. In so far as, the decision of Board as per Annexure-3 is concerned, it is only to consider upgradation/promotion of any such executives joined in isolated posts or having no scope of promotion. It cannot be said that the petitioner did not have the scope of promotion and he was holding a post which needed upgradation as per Annexure-3.

Referring to the information obtained under the RTI Act as at Annexures-10 and 18, it is contended by Mr. Patnaik, learned counsel for the petitioner that the Board took a decision only to upgrade one post of Assistant Manager (Instrumentation and Control) and the total number of posts in respect of technical executives in all disciplines as on 1^st April, 1997 and till date, such information supplied were 498 (493-Electrical, 5-Instrumentation and Control, 29-Civil and 2-Environment). According to Mr. Rout, learned counsel for the opposite parties, the RTI information does not clarify with regard to the sanctioned posts in the rank of Junior Manger in Electrical cadre and simply, it contends the number of posts and therefore, the claim of the petitioner is misconceived to consider it as cadre posts. The Court finds that there has been a common cadre irrespective of the disciplines of the technical executives. The cadre in Instrumentation and Control was found in 2018 and since, opposite party No.3 belongs to such cadre, he was upgraded. From Annexure-17, it is made to reveal that by order dated 31^st December, 2018 of the Corporation, the Non-Electrical Diploma Engineers were placed in the respective cadres as per their qualification/discipline and the name of the petitioner finds at serial No.8 therein. When there was no cadre at the entry of the petitioner and also opposite party No.3 was shown with a common cadre list, according to this Court, the petitioner though having a similar discipline like him who joined as a direct recruitee cannot demand any such upgradation w.e.f. 27^th March, 2008. In the humble view of the Court, the petitioner does not live within the ambit of Annexure-3 as he was not appointed as an executive against an isolated post and by no stage of imagination can be said to have no scope for promotion in future. The very entry by recruitment of opposite party No.3 may be against the posts approved and advertised does not entitle the petitioner demanding upgradation. Any time during 2008, the Court finds the petitioner was not eligible for promotion. The manner in which, the approved posts are to be filled up is left to the discretion of the Corporation. If five of posts were advertised in 1997, it was well within the discretion of Corporation to fill it up through a direct recruitment. If, it was a decision of Board that the posts of Assistance Manager (Instrumentation and Control) are to be filled up by an open advertisement and through direct recruitment, such a decision cannot be questioned either. That apart, no any executive like the petitioner demand upgradation upon promotion of opposite party No.3 in the year 2008. The promotion of the petitioner though having a discipline like opposite party No.3 shall be governed by the recruitment Rules and Regulations. The petitioner received promotion in 2018 to E-3 grade and it has been in accordance with the rules applicable to him and such promotion cannot be given a retrospective effect when opposite party No.3 was promoted to E-4 grade.

To elaborate further, this Court is of the view that a regular employee cannot demand any such vacancies explicitly reserved for direct recruitment be converted into promotion quota. The allocation of posts between promotion and direct recruitment is a policy prerogative governed by the constitution of frame work of the institution. The appointment must straightly align with the establishment recruitment rules in force at the time the vacancies arise. If any such posts are to be filled up via direct recruitment, any such absorbed/regular employee cannot claim appointments against it as a matter of right unless the takeover agreement or former scheme of absorption dictates otherwise. Any such employees entered into the new entity and their equivalent and existing ranks being absorbed does not automatically translate to a higher pay scale for promotion as thereby it would violate the established quota meant for them and direct recruitees. The only grievance for the absorbed employees would be to demand promotion against quota vacancies provided to them in the requisite technical qualification, length of service and eligibility criteria, but cannot force the employer to convert the direct recruitment vacancies. It is not revealed from the record that there was any provision in the takeover agreement for upgradation/promotion for the absorbed employee like the petitioner which means he shall have to be guided by the recruitment rules applicable to him like other technical executives. The five posts of Assistant Manager (Instrumentation and Control) were advertised to be filled up through an open and direct recruitment as it was meant for the Degree Engineers in Civil, Electrical and Instrumentation and Control or PG Diploma therein in absence of any such provision for the Junior Manager to appear and to participate any such recruitment, it has to be held that the posts available by them in the year 1998 were to be filled in by the Degree Engineers. Since, opposite party No.3 is a lateral entrant into service and it was against an isolated post, the Corporation considered upgradation of it in the year 2008. At the time of the engagement of opposite party No.3, there was no cadre in Instrumentation and Control and he joined by way of recruitment against one of isolated posts, hence, was considered for upgradation vide Annexure-4. Irrespective of the fact that opposite party No.3 was in the cadre list, it does not mean that the petitioner is entitled to upgradation and promotion w.e.f. 27^th March, 2008. If opposite party No.3 was upgraded to E-4 grade in 2008 as against it the petitioner cannot demand upgradation when he is in the cadre with another technical executive similarly situated. If, at last, the cadre was created in 2018 and the petitioner received promotion in the meantime and is placed in that cadre, according to the Court, he cannot demand any such upgradation/promotion retrospectively. The manner, in which, the recruitment has been held and appointment of opposite party No.3 and subsequent upgradation on 27^th March, 2008 is distinguishable and therefore, the petitioner as an executive in the cadre though having a similar discipline like him is not eligible for upgradation and cannot demand any such upgradation/promotion w.e.f. 27^th March, 2008 subsequent to the upgradation of opposite party No.3 to E-4 grade. If all the five posts were to be advertised in 1998 and the Corporation’s decision is not to allocate any one post to the Junior Mangers (Electrical) having a trade of Instrumentation and Control to apply for and to be accommodate by way of promotion, it cannot be questioned either. It is not revealed from the record as to whether any such posts were specifically earmarked for the Junior Managers to be filled in by promotion. In fact, the information supply under the RTI Act as per Annexure-18 only suggests that there are 498 posts in all disciplines as on 1^st January, 1997. Referring to the strength of the Deputy Executive as on the said date, the petitioner demands for upgradation to the post of Assistant Manager, but it cannot be considered nor any such promotion w.e.f. 27^th March, 2008 can be given to him when the vacancy on account of upgradation of opposite party No.3 to E-4 grade was not available against promotion quota. It is reiterated that the petitioner received promotion in the meantime and transferred to the cadre of Instrumentation and Control on the basis of an option exercised in 2018. If there was no cadre at all and by a lateral entry, opposite party No.3 joined the Corporation, the petitioner could not have been considered upgradation in 2008 but to be governed by the Promotion Rules as applicable to him. When the posts held by opposite party No.3 received upgradation/promotion to it cannot be demanded and in any case, the petitioner was not eligible for promotion in 2008. Having said that, considering the submissions of learned counsel for the respective parties, this Court is of the irresistible conclusion that the petitioner’s plea for upgradation/promotion w.e.f. 27^th March, 2008 sans merit and therefore, deserves rejection.

In the facts and circumstances of the case, where any such upgradation/promotion of the petitioner is to be considered with effect from 2008 and the consequential upgradation as in the meantime the petitioner is in E-3 Grade and in the cadre of Instrumentation and Control on the basis of the action in 2018. This Court finds that the petitioner received promotion in usual manner and transferred to Information and Control Cadre in 2018. According to the petitioner, only the option form was taken into consideration without its forwarding letter indicating pendency of W.P.(C) No.14420 of 2008 while complying the direction issued in W.P.(C) No.22629 of 2015. The claim of the petitioner is that in view of the change in cadre allowed in 2018 it should be considered from 2008 when the opposite party No.3 was promoted and five posts were available for being observed. The further claim is that no option was ever asked at any point of time to absorb the petitioner in Junior Manager (Electrical) at any point of time.

The undisputed facts already discussed hereinbefore is that the petitioner prior to 1st April, 1997 was working as NMR in Upper Kolab Hydro-Electric Project under the State Government and there was peace fracture pursuant to Orissa Electricity Reform Act and accordingly, Orissa Electricity Reforms (Transfer of undertakings, Assets, Liabilities, Proceedings and Personnel) Scheme, 1996 was brought into force to absorb the employees of erstwhile State Electricity Board and different projects under the Government of Odisha into Odisha Hydro Power Corporation (OHPC) and accordingly, the petitioner was transferred and joined the Corporation with effect from 1st April, 1997. In the meanwhile, after continuing as NMR, his service was regularized. Not only the petitioner and other NMRs in different trade were regularized without assigning any cadres. In pursuance of the decision of the Board, the petitioner along with 26 NMR Diploma Engineers were regularized by office order No.8524 dated 18th July, 1998 by the order of the Director (HR) of the OHPC which is evident from Annexure-5, this Court finds that in the regularization order, it has been categorically stated that the inter-se seniority of the candidates posts-regularization shall be fixed in due course and all the Diploma Engineers (NMR) to be governed the OHPC officers’ Service Regularizations. At the time of regularization, no objection was received from the petitioner and he joined as Junior Manager (Electrical). After the OHPC framed the Offices Services Regularization came into force with effect from 1st April, 1997, all the offices of the Corporation including the officials had transferred from the OSEB and other organization in order absorbed him in accordance with the Rules, 1996 and in such view of the matter, the petitioner’s service is governed by the service regulation of the Corporation. On a reading of the Regulation 2.4.0 of the Regulations, it is made to understand that the posts are to be grouped in separate cadre/discipline based on their qualification, experience etc. and it clearly indicates that no cadre has been framed in respect of Instrumentation and Control out of nine categories of the employees.

Admittedly, the petitioner joined as Junior Manager and was confirmed in E-2 Grade with a trade as Instrumentation and Control. In fact, there was no cadre in respect of the said trade when the Corporation was formed and as such only NMR Diploma Engineers irrespective of their trades were brought into the folds of the Corporation under Electrical cadre. For the first time in 2000 a Gradation List was prepared inviting objection from different cadres in which the petitioner’s named found place at serial No.350. As such the petitioner’s service has been confirmed in the Electrical cadre with the Gradation List prepared on 26th December, 2000 and this Court finds there was no objection by him. Even the Corporation published revised Gradation List from time to time in the year 2002, 2004, 2005, 2007, 2015 and 2016, wherein, the petitioner was placed at serial Nos.349, 316, 300, 297, 300 and 300 respectively. Again, there has been no objection from the petitioner considering the Gradation List prepared in respect of the Electrical cadre. It was well within the knowledge of the petitioner that there is no such cadre of instrumentation and control, hence, he joined in the Electrical cadre and he willingly accepted the appointed as Junior Manager in that cadre. The question is whether under the above circumstances the petitioners could claim for promotion/upgradation to E-3 from the inception i.e. 2008 when opposite party No.3 join through a lateral entry? Such selection of opposite party No.3 is by virtue of advertisement in order to fill up five posts of Assistant Engineers (Instrumentation and Control) wherein, the qualification was Degree Engineering and for that the petitioner was not eligible nor applied for the said posts having required qualification. In absence of any cadre of instrumentation and control, the petitioner had to remain in Electrical cadre from the very beginning. Until 30th May, 2012, when the OHPC by notification dated 11th April, 2018 framed instrumentation and control cadre. Again, wherein no post in the rank of Junior Manager was available as it was an entry into the cadre of Assistant Manager, for which, the Degree Engineering is available. By the time when opposite party No.3 joined, no cadre was framed in respect of the posts of Assistant Manager (Instrumentation and Control). In fact, the said opposite party continued as Assistant Manager (Instrumentation & Control) is an isolated post. It is further made to understand that the petitioner belonged to Electrical cadre and after rejoining opposite party No.3 was selected as a direct recruitment and join the same cadre and hence, was placed in the common Gradation List but after the cadre in instrumentation and control was framed in 2012, he was brought into that cadre with the separate Gradation List prepared and placed alone side opposite party Nos.4 and 5 who joining in 2009 and again it was through a lateral entry.

In pursuance of 147th Board decision of the Corporation dated 3rd November, 2018, the petitioner was asked to exercise the option as the restructured cadre in respect of instrumentation and control has been framed and it was approved to absorb the personnel in their respective cadre in accordance to their trade and at that time, the petitioner exercise his option on 15th November, 2018 to change the cadre from Electrical to Instrumentation & Control and absorb as against a sanctioned post of Assistant Manager (Electrical) in that cadre but this Court finds that prior to such absorption, the petitioner was promoted on 15th January, 2018 to the post of Assistant Manager (Electrical) in Electrical cadre taking into account the vacancy of the Electrical discipline (cadre). In the meantime, the petitioner received promotion to the rank of Deputy Manager (Instrumentation & Control) cadre (E-4) pursuant to the office order dated 30th July, 2022. In fact, the petitioner in the Electrical cadre received promotion and was absorbed in Instrumentation & Control cadre in 2018, but by then opposite party No.3 and also opposite party Nos.4 and 5 have been placed in that cadre at serial Nos.1, 2 and 3. The demand of the petitioner is that as he is having a trade in which five posts were available as for the information obtained under the RTI Act and it was ever since 1997, the Corporation was to consider upgradation/promotion to E-3 cadre after his absorption or at least on and from the date when opposite party No.3’s post was upgraded in 2008. This Court is unable to accept the contention of Mr. Patnaik, learned counsel for the petitioner demanding such upgradation/promotion for the reason that even if there was any such vacancies available, the petitioner joined as Junior Manager (Electrical) without any such cadre of instrumentation and control which was found in 2012 and thereafter, he exercised the option in 2018 and absorbed as against a sanctioned post of Assistant Manager (E-3). The posts advertised where for a lateral entry and after the advertisement and selection, opposite party No.3 joined in 1999 though placed in one common cadre along with the petitioner. The petitioner has been absorbed and their regularized in Electrical cadre, whereas, opposite party No.3 and also opposite party Nos.4 and 5 join by a direct recruitment in 1999 and 2009 respectively. The posts were available in 1997 but by then no cadre of instrumentation and control was an existence and therefore, the petitioner could not have any right to demand any such upgradation/promotion. It was for the OHPC to consider appointment of eligible degree holders with the post of Assistant Manager and hence, was for the advertisement and therein opposite party No.3 was selected. As against any such posts earmarked for selection of candidates directly to the post of Assistant Manager instrumentation and control leading to the appointment of opposite party No.3 and even placed in the Electrical cadre cannot be a ground for the petitioner to demand his promotion/upgradation along with him. Since there was no separate cadre of instrumentation and control so opposite party No.3 was placed alone side of the petitioner in the Electrical cadre. In fact, the Gradation List prepared by the OHPC ever since 2000 included Diploma Engineers of all trades and therefore, opposite party No.3 was placed therein along with the petitioner and others irrespective of the trade one is possessed of. In fact, the post in Assistant Manager (Instrumentation and Control) was approved by the Government but in absence of any cadre, opposite party No.3 was made to remain in the Gradation List meant for the Junior Manager though opposite party No.3 was placed in the Gradation List with the petitioner but his appointment is through an advertisement and hence, a direct recruitment and as he was holding an isolation post so the upgradation by the decision of the Board. As such, the petitioner was not holding any such isolated post but joined the Corporation and hence, eligible for promotion governed by the Regulations. For an isolated post the appointment has taken place and it was by way of a lateral entry and therefore, the petitioner cannot be allowed to demand any such promotion/upgradation at par with opposite party No.3 whose posts was again upgraded to E-4 vide Annexure-8 and thereafter was dropped from the Gradation List of Electrical cadres from 2008 and shown in the Gradation List of 2010 under the Electrical cadre. Merely for existence of the vacancies for a particular trade may be at from among the Junior Manager (Instrumentation & Control) or through lateral entry and according to the decision of the Board, it was to be filled up through an open advertisement inviting applications from candidates fulfilling the eligibility criteria. In so far as the Board’s decision dated 31st July, 2004 is concerned, the cases of the executive and isolated posts having no promotion scope should be considered by the DPC. From out of the recommended cases placed before it for approval for their upgradation/promotion. The said resolution in the considered view of the Court does not apply to case of the petitioner as he was not holding an isolated post rather it was for opposite party No.3 and therefore, his post was upgraded or considered for promotion to the post of Assistant Manager (E-3). The service conditions of the petitioner are governed by the Regulations. It is reiterated that there was no cadre and all the employees erstwhile project or other organization of the Government joined and absorbed as Junior Manager (Electrical) and much later in 2012 cadre in instrumentation and control was framed and in 2018, the petitioner exercised the option and joined that cadre but by no means he can claim for upgradation/promotion with effect from 2008 by opposite party No.3 was promoted to the post of Assistant Manager (E-3). In respect of an isolated post subsequent to the decision of the Court in 2004 and therefore, the petitioner cannot demand promotion either from 2008 or even before by claiming that five posts were available since 1997. Though the petitioner joined in 1998 and a year after opposite party No.3 appointed as Junior Manager but he was selected through a lateral entry unlike the petitioner and thereafter, received upgradation in 2008 after the Board’s decision in its 62nd meeting under the heading of ‘Promotion of Executives Higher Grade’. Having considered the facts pleaded on record with reference to the claim of the petitioner and the provisions of the Regulations, he shall be eligible for promotion in accordance therewith, whereas, opposite party No.3 though was placed in the Gradation List but his post was upgraded and finally was taken into the cadre of instrumentation and control, hence, shall have to be treated differently than the petitioner and therefore cannot demand any such upgradation/promotion with effect from 27th March, 2008. Taking into account the argument advanced in support of such claim in juxtaposition to the counter of the opposite parties, this Court is inclined to accept the contention of Mr. Rout, learned counsel for the opposite party Nos.1 and 2 to the effect that the petitioner is not similarly situated like opposite party No.3 but to be governed by the provisions of the Regulations and when vacancies existed was considered for promotion. In other words, this Court finds no merits on the claim of the petitioner for any such upgradation/promotion with retrospective effect.

Before winding up with the above conclusion, this Court is inclined to put forth following few words. In public employment, upgradation and promotion are distinct legal concepts. In fact, upgradation is post-centric and it does not create a new vacancy, whereas, promotion is person-centric and in that case, moving to a higher hierarchy creates a vacancy to be filled up. An employee has a right to be considered for promotion when a vacancy arises in their own line of hierarchy and cannot have a right to claim a post because it was upgraded. Upgradation of a specific post is a policy or administrative decision. A common cadre employee cannot substitute into that upgraded position unless the service rules explicitly merge the lines of promotion. Such challenge to the lateral entry may be challenged provided there is violation of service rules or selective discrimination is discriminatory under equality laws.

Any such employee from common cadre cannot demand promotion or upgradation simply because the employee by lateral entry joined the cadre. In service jurisprudence, even seniority within a feeder grade does not automatically translate into a right to promotion when completely separate lateral entry post is upgraded. To reiterate, upgradation is elevation of a specific post to a higher scale due to increased duties or restructuring and promotion as generally understood is an advancement to a higher post based on merit or seniority. The direct recruits via lateral entry often occupy a distinct category, cadre or specialized post even if they share a common broad cadre structure initially. The service law lays down that an employee has a right to be considered for promotion but no vested right to demand a promotion just because another distinct post is upgraded. If the lateral entry post undergoes a targeted upgradation based on administrative necessity, specialized qualification or executive policy, it does legally force the employer to upgrade the traditional posts alongside it. There may be exceptions where an employee may have a valid claim only if the explicit service rules of the organization state that any upgradation in a cadre must maintain strict seniority-cum-merit across all entry streams or that the upgradation was intentionally designed as a malafide move to bypass the seniority list without functional or administrative justification. The service principles dictate that if there is upgradation if a post filled by a lateral entry recruit on account of an administrative decision, the employees of the common cadre claim equality under law because upgradation is tied to the post, not personal seniority unless a differentiation is made alleging violation of Articles 14 and 16 of the Constitution. If upgradation is a promotion in disguise managed purely to favour a lateral recruit, it can be challenged as discriminatory or where there is violation of service rules.

Having discussed this far, this Court is of the humble view that the petitioner has simply demanded promotion since he is not entitled to or having any right to a post filled by lateral entry rather to be governed by the Regulations which entitles him to hierarchical promotion. Nowhere there is any challenge to the lateral entry and upgradation carried out from the side of the petitioner and the demand is only based on the fact that he belongs to the same trade as opposite party No.3 but that by itself is not sufficient to be accommodated against a post though available but by administrative decision was filled through an open recruitment. At no point of time, the lateral entry or for that matter, upgradation of the post of opposite party No.3 has been questioned on the ground of malafide and so therefore, the inevitable conclusion of the Court would be that the demand of the petitioner, who has rightly been considered for promotion as per the Service Rules and Regulations, is without merit and as a necessary corollary, he not entitled to any such promotion/upgradation w.e.f. 27^th March, 2008 and accordingly, it is ordered.

In the result, the writ petitions stand dismissed.