S.W.Wadke vs National Aviation Company Of ...
2017 Latest Caselaw 5900 Bom

                                                                             WP 2041.02.doc

Urmila Ingale

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                     WRIT PETITION NO. 2041 OF 2002

                 Subhash Waman Wadke
                 206, Vijay Apartments,
                 Caesar Road,
                 Amboli, Andheri (West),
                 Mumbai 400 058.                              .. Petitioner

                         Vs.

                     1. National Aviation Company of India Ltd.
                 A Govt. of India
                 Undertaking,
                 registered under Companies
                 Act and having its Head
                 Office at Air India Bldg,
                 Nariman Point,
                 Mumbai 400 021.  

                     2.  The Managing Director,
                 N.A.C.I.L.
                 Air India Building,
                 Nariman Point
                 Mumbai 400 021.

                    3. The Director of Operations
                 N.A.C.I.L.
                 Old Airport, Santa Cruz (E),
                 Mumbai 400 029.

                     4. V.V. Karandekar
                 Medini Apartments
                 Ground floor,
                 Baman Wada, Chakala,
                 Vile Parle (East),
                 Mumbai 400 057.


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                                                                         WP 2041.02.doc

      5. Sunil Thula
 Sr. Manager - Flight Despatch,
 Air India Flight Despatch
 Ama International Airport,
 Chennai                                       .. Respondents

 Mr.Mohan Bir Singh,   for the Petitioner.
 Mr.Sudhir K. Talsania, Sr.Advocate a/w Mr.S.D. Shetty and Mr.Arsh 
 Misra i/b M.V.Kini & Co., for Respondents.


                                                 CORAM : A.A.SAYED AND
                                                                M.S.KARNIK, JJ.
                                            
                                       RESERVED ON :  03rd AUGUST, 2017
                                PRONOUNCED ON :  14th  AUGUST, 2017


  JUDGMENT (PER  M.S.KARNIK, J)

:

. By this Petition the petitioner seeks promotion as a

Senior Manager Flight Despatch with effect from 01/07/2002 and/or

from the date not later than the date when respondents No. 4 & 5 are

promoted as Senior Manager Flight Despatch.

2. The petitioner joined the services of Air India on

27/12/1973. On 01/02/1993 the petitioner was promoted as

Manager Flight Despatch. Respondents No.4 & 5 were promoted as

Manager Flight Despatch on 01/04/1995. Learned Counsel for the

petitioner submits that on 13/11/1998 an agreement was reached

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between the Indian Flight Despatchers Union and Managers of

respondent No.1 inter alia providing for a promotion policy in respect

of promotion of flight despatchers. Clause (c) which is material in

the context of the present Petition is quoted hereunder.

"c) Manager Flight Despatch will be eligible for promotions to grade of Sr.Manager Flight Despatch after completing eight years of service as Manager Flight Despatch subject to vacancies. The existing incumbent will be promoted to Sr.Manager-Flight Despatch as a one-time exercise. These additional posts in the grade of Sr.Manager-Flight Despatch will be adjusted against future vacancies. "

3. Learned Counsel for the petitioner pointed out that the

Union on behalf of the petitioner and similar situated Managers

which included respondents No. 4 & 5 requested the respondents on

25/03/2002 to implement the policy and promote the existing

incumbents as Senior Manager Flight Despatch. In the submission of

the learned Counsel for the petitioner therefore atleast till

25/03/2002 the petitioner and respondents No. 4 & 5 were not

promoted to the next higher post of Senior Manager. The grievance

of the petitioner is that on 01/07/2002, respondents No.4 & 5 who

were juniors to the petitioner are promoted as Senior Manager Flight

Despatch. In the submission of the learned Counsel for the

petitioner, the respondents were not justified in promoting

respondents No.4 & 5 with retrospective effect from 1998. According

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to him, the stand of respondent - Air India that respondents No.4 & 5

were found suitable by promotion panel in the year 1998 and since

they were on foreign posting at that point of time, it is only upon

issuance of the promotion letters on 08/07/2002 to respondents

No.4 & 5 that they were promoted with effect from July 1998 and

placed above the petitioner in the seniority list is unreasonable and

arbitrary.

4. Learned Counsel for the petitioner invited our attention

to the promotion policy and procedure for officers, more particularly

clause 11.2 which reads thus :

11.2 Consideration of offices who are away on deputation or on foreign service on their own volition 11.2.1 In the case of an officer who has gone in response to an advertisement, to another Public Sector Undertaking, or on foreign service on his/her own volition, he/she will also be considered for promotion and if found suitable, would be included in the list of selected candidates. However, well in advance of his/her becoming due for promotion, he/she will be required to revert back to the parent cadre, so as to be available in the parent cadre, when the promotion is due. If he/she fails to revert to the present cadre when due for promotion, he/she will not be promoted and will have no claim for promotion to the higher grade. He/she will only be considered in the normal course along with other offices eligible when the Committee meets next after his/her reversion to the parent cadre/parent department."

5. In his submission respondents No.4 & 5 were found

suitable by promotion panel in the year 1998. The respondents could

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not have promoted respondents No.4 & 5 retrospectively as the said

policy provides that they should have been considered in the normal

course along with other officers eligible when the committee meets

next after his/her reversion to the parent cadre. According to the

learned Counsel for the petitioner, respondents No.4 & 5 continued

on foreign posting even after they were found suitable for promotion

in the year 1998 and therefore in the year 2002, no promotion orders

could be issued promoting respondents no.4 & 5 retrospectively from

1998.

6. In the submission of the learned Counsel for the

petitioner in any case new promotion policy has come into effect

from November 1998. Consideration of the case of the respondents

No.4 & 5 should have been in accordance with the new policy as they

had not joined the promoted post consequent upon they being found

suitable in the selection process of 1998.

7. Learned Counsel in the alternate prays that the

respondents have not given benefit of promotion policy of November

1998 to the petitioner as per clause (c). The petitioner being an

existing incumbent should have been promoted as Senior Manager

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Flight Despatch as one time exercise. This has not been done.

8. Learned Counsel for the respondents No. 1 to 3 on the

other hand pointed out that the policy of November 1998 is subject

to existing promotion policy and procedures. He invited our

attention to the affidavit-in-reply filed by Mrs.Meenakshi Kashyap-

Senior Manager on behalf of respondent - Air India. He points out

that regular promotion process was carried out in 1995 and 1998.

The petitioner though was considered was not found suitable. In the

promotion process in the year 1998, respondents No.4 & 5 were

considered and were found suitable. However, as they were on

foreign posting, the promotion letters dated 08/07/2002 were issued

only after they were reposted in India. Learned Counsel submits

that even the petitioner was promoted in the year 2002 in his own

turn and has now taken voluntary retirement in the year 2004.

9. Having considered the submissions made by learned

Counsel for the parties, we find that in the regular promotion process

that was carried on in the years 1995 & 1998 for promotion to the

post of Senior Manager Flight Depatch, the petitioner was duly

considered but was not found suitable as he did not meet the criteria

WP 2041.02.doc

laid down in the relevant circulars. We have been also gone through

the report of the panel constituted in this regard. Furthermore, we

find that the respondents No.4 & 5 were considered for promotion in

1998 and were found suitable. As respondents No.4 &5 were on

foreign posting at the relevant point of time and reposted back in

India in the year 2000, letters of promotion were issued on

08/07/2002 to the respondents No.4 & 5 with effect from July 1998.

We do not find the approach of the respondents as unreasonable or

arbitrary. The promotion policy relied upon by the petitioner in our

opinion has no application to the promotions effected in respect of

officers who are posted abroad by the respondents. Clause 11.2.1 of

the policy indicates that the same is applicable to the officer who has

gone in response to an advertisement to another Public Sector

Undertaking or on foreign service on his own volition. The

petitioner has not made out a case that respondents No.4 & 5 had

gone on foreign service on their own volition or in response to an

advertisement to another Public Sector Undertaking. It appears that

it is the respondent No.1 who had posted the respondents No.4 & 5

on foreign posting. The said clause 11.2.1 will therefore not apply

in case of respondents No.4 & 5.

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10. We thus find that the petitioner was considered for

promotion in 1995 & 1998 but was not found suitable. Respondents

No.4 & 5 who were duly considered in 1998 were found suitable,

thus promoted by letters of 2002 with effect from 1998 in view of the

fact that respondent No.1 had posted respondents No.4 & 5 on

foreign posting.

11. We find that the promotion to the post of Assistant

Manager Flight Despatch under the new policy of November 1998 is

subject to existing promotion policy and procedures. We, therefore,

do not find any merit in the Petition as regards the claim of the

petitioner that he has been wrongly denied promotion and

superseded by the respondents No.4 & 5. However, we find some

merit in the contention of learned Counsel for the petitioner that in

terms of the promotion policy of November 1998, the petitioner's

case should have been considered in accordance with clause (c).

Though the petitioner had prayed for wider relief of promotion to the

post of Senior Manager Flight Despatch challenging the supersession

of respondents No.4 & 5, we are inclined to direct the respondents to

consider the case of the petitioner in terms of clause (c) of the

promotion policy dated 13/11/1998 as Senior Manager Flight

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Despatch.

12. As the petitioner has taken voluntary retirement from

the service, he may be notionally promoted if he is found eligible

under the policy and consequent arrears may be paid to him. No

relief as prayed for in terms of prayer clauses (a), (b) & (c) can be

granted. However, respondents No. 1 to 3 shall consider the case of

the petitioner in terms of clause (c) of the promotion policy of Flight

Despatch dated 13/11/1998 within 2 months from today. If the

petitioner is found eligible, he may be notionally promoted. In the

event, the petitioner is found eligible to be promoted, he may be paid

the arrears within a period of 4 months. The Writ Petition is

accordingly disposed of. Rule is made absolute in the above terms.

No order as to costs.

 (M.S.KARNIK, J.)                                                      (A.A.SAYED, J.)