Karam Singh vs Air India Ltd
2017 Latest Caselaw 4913 Bom

                                                                                         WP 946.00.doc

Urmila Ingale

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                           WRIT PETITION NO. 946  OF 2000

                 Karam Singh
                 E-1, New Trishul,
                 Bhavani Nagar,
                 Marol
                 Andheri East
                 Mumbai 400 059                                         .. Petitioner

                         Vs.

                 Air India Limited
                 Backbay Reclamation
                 Nariman Point,
                 Mumbai 400 021                                       .. Respondent

                 Mr.Mohan Bir Singh,  for the Petitioner.
                 Mr.S.K.Talsania,   Senior   Advocate   a/w   Mr.Lancy   D'Souza   & 
                 Ms.Deepika Agarwal, for Respondent.


                                                                 CORAM : A.A.SAYED AND
                                                                                M.S.KARNIK, JJ.
                                                            
                                                       RESERVED ON :  18th JULY, 2017
                                                PRONOUNCED ON :   24th JULY, 2017


                 JUDGMENT (PER M.S.KARNIK, J)  :

. The petitioner joined services of the respondent in July

1977 as an Assistant Flight Purser/Cabin Crew The petitioner was

promoted as a Flight Purser in April 1987. The petitioner was further

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promoted as a Senior Check Flight Purser with effect from

01/07/1997. In or around June 1997, the respondent devised the

promotion policy for its Cabin Crew. The said policy was introduced

in order to overcome the stagnation on account of vacancy based

promotions. The policy makes it a time bound promotion upto the

level of Manager i.e. grade 29 which is first executive level. The

minimum service eligibility criteria provided in clause 4.1 of the said

policy is as follows :

"4.1 The minimum service eligibility criteria for promotion of the cabin crew from one level/grade to the next level/grade will be as under :

Male Cabin Crew"

AFP/FP/Chk, FP/Addl.Sr.Chk.FP/Sr.Chk.FP

From To No. of years Cumulative in the grade years from the 1st grade _____________________________________________________

Chk.FP/CC

FP/CC

Sr.Chk.FP

2. The promotion exercise for promotions to Manager is to

be carried out once a year whilst promotions to other levels are to be

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carried out in January & July every year. The said exercise is to be

carried out in the months of January of each year and cut of date of

eligibility is the 15th of January. The petitioner being a Senior Check

Flight Purser was eligible for promotion under the policy to the next

grade as a Manager as he had completed 22 years of service. The

basis for promotion was personal file and appraisal reports, however

at the relevant point of time, there was no appraisal, therefore

consideration was to be on the basis of personal file. Clause 5.1 of

the policy provides for eligibility of the Cabin Crew to be promoted

(subject to suitability).

3. By an order dated 22/24th September 1998, the

punishment of stoppage of annual increment due to the petitioner on

January 1999 was awarded. In the said order, it was indicated that

he will receive his next increment only on 01/01/2000 depending on

his work and conduct during the aforesaid period of punishment.

Though the petitioner was considered for promotion, he was not

recommended for promotion on account of punishment. It is the

petitioner's case that with effect from 01/01/2000, he started

receiving his next increment and the punishment was no longer

subsisting. The petitioner prays that he may be promoted as a

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Manager with effect from 01/01/2000 with all consequential benefits

and allowances at applicable rate.

4. It is an admitted position that the petitioner was

thereafter promoted with effect from 01/01/2003. The petitioner

has since retired. Learned Counsel for the petitioner urged that the

respondent is not justified in denying the benefits of promotion to the

petitioner with effect from 01/01/2000 as a Manager. In his

submission, the entire object of the promotion policy is to remove

stagnation. He submits that since his juniors are promoted, the

petitioner obviously is entitled for promotion. Learned Counsel for

the petitioner relied upon the decision of the Apex Court in the case

of Ashok Shankar Guha Vs Air India Ltd. in Civil Appeal No. 1916

of 2008 delivered on 11/03/2008. He has placed reliance on

paragraphs 6 to 8 of the said decision which read thus :

"6. It is contended by learned counsel for the appellant that under the promotion policy dated 5.6.1997, promotion to different category of posts depends on the number of years an incumbent serves the Respondent-Organization. Although the promotion policy has referred to suitability of criteria for promotion to different posts but it appears that no such suitability criteria has been made applicable for promotion in Air India. The appellant joined Air India on 1st January, 1980 and was confirmed as an Assistant Flight Purser w.e.f. 1st July, 1980. After completion of 17 years of service he would have been eligible for promotion to the post of Additional Senior Check Flight Purser on 1st January, 1997. That promotion has not been given to the appellant. On 6th August, 1997 after the promotion committee

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met he was served with a charge-sheet and placed under suspension pending enquiry. On 22.9.1998 a punishment of stoppage of two annual increments due on 1.1.1998 and 1.1.1999 was imposed on the appellant. Thus, the stoppage of two annual increments was upto 1.1.2000 and he was eligible to receive his annual increment as on January 1, 2000 and the ineligibility imposed on the appellant for future promotion to the post of Senior Check Flight Purser on completion of 18 years of service stood removed and the appellant would have been entitled for promotion to the said post on 1.1.2000.

7. The promotion policy refers to promotion only on the basis of particular number of years completed in the service. The appellant would have become entitled for promotion to the post of Senior Check Flight Purser on 15.7.1998 itself but due to departmental enquiry and suspension during that period and later on imposition of punishment of the stoppage of two annual increments he was denied promotion. But once the period of stoppage of two increments was over, he was entitled for promotion w.e.f. 1.1.2000 to the post of Senior Check Flight Purser. Accordingly, the respondent by its order dated 24.8.2000 promoted the appellant as Senior Check Flight Purser w.e.f. 1.1.2000, which was, according to us, later on wrongly withdrawn.

8. For the aforesaid reasons, the impugned order of the High Court is set aside. The appellant is entitled for promotion to the post of Senior Check Flight Purser from 1.1.2000 and the appellant shall be entitled for all other consequential benefits.

5. In the submission of the learned Counsel for the

petitioner, the petitioner in regular course would have become

entitled for promotion to the post of Manager in 1999 itself as he

completed 22 years of service. The petitioner is therefore entitled to

be promoted as a Manager with effect from 01/01/2000 as the

punishment is no longer subsisting from 01/01/2000.

6. Learned Senior Counsel for the respondent on the other

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hand contended that the petitioner was not recommended for

promotion for two reasons. Firstly, he did not come within 90% of

the Senior Check Flight Purser who had completed 22 years of service

and therefore could not have been promoted to the post of Manager.

Secondly, it was noticed from the personal file of the petitioner that

by order dated 22/ 24th September 1998, the punishment of stoppage

of annual increment due to the petitioner as on January 1999 was

awarded.

7. Having considered the submissions advanced by the

learned Counsel on behalf of the parties, we find that the petitioner

had requisite eligibility of 22 years of service for promotion to the

post of Manager under the said policy. It was only on account of the

punishment order dated 22/ 24th September 1998, currency of which

was till 31/12/1999 that the petitioner's case was not recommended

for promotion. The promotion policy refers to promotion only on the

basis of particular number of years completed in the service. On 22/

24th September 1998, punishment of stoppage of one annual

increment due to the petitioner as on 01/01/1999 was imposed on

the petitioner. Thus, stoppage of increment was upto 31/12/1999

and he was eligible to receive his annual increment as on

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01/01/2000 and the ineligibility imposed on the petitioner for future

promotion to the post of Manager on completion of 22 years of

service stood removed and the petitioner would be entitled for

promotion to the said post on 01/01/2000 as the petitioner's juniors

also were promoted by then.

8. The petitioner belongs to the Scheduled Caste category.

Learned Counsel for the petitioner pointed out that as per clause 8.1

the promotion policy is subject to reservations for Scheduled

Caste/Scheduled Tribe employees in accordance with the Presidential

directive. The petitioner in any case, therefore, is eligible to be

promoted.

9. The promotion policy refers to promotion only on the

basis of particular number of years completed in the service. The

petitioner would have become entitled for promotion to the post of

Manager in 1999 itself, but due to punishment of stoppage of one

annual increment, he was denied promotion. Once the period of

stoppage of one annual increment was over, he was entitled for

promotion with effect from 01/01/2000. Nothing is brought on

record to indicate that during the currency of punishment his work or

conduct was in question.

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Hence, the following order.

O R D E R

(i) The respondent is directed to notionally promote the petitioner

to the post of Manager with effect from 01/01/2000.

(ii) The petitioner is entitled to all consequential benefits from

01/01/2000.

(iii) The arrears be paid to the petitioner within a period of 3

months from today.

10. Rule is made absolute in the above terms with no order

as to costs.

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