Shri T.S.Kolhatkar vs Air India Corpn
2017 Latest Caselaw 8701 Bom

 Rng                                         1                                                     
                                                                                           o.s.wp757.96

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORGINAL CIVIL JURISDICTION

                         WRIT PETITION NO.757 OF 1996

 T.S.Kolhatkar                     }
 residing at MHB 1/58
 New Anand Nagar, Express           }
 Highway, Santacruz (East)
 Mumbai-400 055.                    }                                .. Petitioner  
             vs
 Air India Corporation               }
 Air India Building
 Nariman Point,
 Mumbai - 400 021                     }                              .. Respondent

Mr.Arshad Shaikh I/b M/s Sanjay Udeshi & Co for Petitioner Mr.S.K.Talsania Sr.Advocate with Mr.Lancy D'Souza and Ms.Deepika Agarwal I.b Bhasin & Co for Respondent

CORAM : A.A.SAYED AND M.S.KARNIK, JJ JUDGMENT RESERVED ON: 27.7.2017 JUDGMENT PRONOUNCED ON: 15 NOVEMBER, 2017

ORAL JUDGMENT (Per M.S.Karnik, J)

1. This Petition filed under Article 226 of the

Constitution of India seeks a direction to the Respondent to

promote the Petitioner as a Senior Manager with retrospective

effect with all consequential benefits.

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The facts of the present case in a nutshell are these :

2. The Petitioner belongs to the S.C.category. The

Petitioner was appointed as a Progress Clerk with the

Respondent-Air India Corporation on 8.11.1973. He was

promoted as a Technical Assistant on 1.6.1977 and thereafter

promoted as a Senior Technical Assistant on 1.6.1978.

Subsequently, he came to be promoted as a Planning Officer

with effect from 1.12.1981.

3. Learned counsel for the Petitioner invited our

attention to the Memorandum at Exhibit A dated 16.8.1986

appreciating the work of the Petitioner. He submitted that with

effect from 7.9.1987 to 9.9.1988 the Petitioner fell ill and

could not get leave for the said period. The same was however

regularized by the Respondent.

4. In the submission of the learned counsel for the

Petitioner, his senior Officer started harassing him and his

colleagues. His senior officer demanded apology for unknown

reasons. The Petitioner was asked to tender an apology for his

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leave period during which he was ill. The Petitioner made

representations to higher authorities protesting against the

illegal practice of spoiling his annual appraisal performance at

the behest of one Shri Sannaki. Learned counsel for the

Petitioner invited our attention to the communication dated

16.8.1993 addressed by him to Shri Bheekha Bhai the then

Member of Parliament and Ex-Chairman,National Commission

for SC/ST, Director on Board of Air India to intervene by

sending a letter to the respondent. He also invited our attention

to several representations made on behalf of the Petitioner by

the SC/ST Employees Association for ventilating the grievances

of the Petitioner. In the submission of the learned counsel for

the Petitioner, the Petitioner was rated as "B'' i.e above average

in the appraisal report for the year 1988. Prior to that he was

always rated above average in the Appraisal Report. In his

submission, since the year 1988, the Petitioner's confidential

reports are spoilt purposely and malafidely only to deny him

promotion. The Petitioner was denied promotion year-after-

year. The petitioner made several representations which are

listed at Exhibit G-1 to G-7 but the rightful claim of the

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Petitioner for promotion was denied.

5. Learned counsel for the Petitioner submitted that

this happened at the instance of one Shri Sannaki who

developed a grudge against the Petitioner and other subordinate

employees. Shri Sannaki for no ryhme or reason started

harassing the Petitioner. During the period 7th to 9th September

1986 the Petitioner fell ill. Shri Sannaki instead of sanctioning

leave of the Petitioner recommended deduction of three days

wages for the said period. Learned counsel contended that

though the petitioner was entitled for leave, with malafide

intentions the wages of the Petitioner were deducted at the

instance of Shri Sannaki. Even the representation which the

Petitioner submitted was not favourably considered and on the

contrary Shri Sannaki asked the Petitioner to apologise. Though

sanction was later on granted for three days sick leave, only

because he did not tender apology to Shri Sannaki, Shri.Sannaki

meted out ill treatment to the Petitioner. According to him, the

Petitioner was thereafter denied promotions only at the instance

of Shri Sannaki.

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6. Learned counsel for the Petitioner invited our

attention to the President's Directives 1975 on Reservation for

Scheduled Castes, Scheduled Tribes and other Backward classes.

He invited our attention to clause 14.2 of the said Directives and

contended that the procedure therein has not been followed. In

his submission, the Petitioner has not been provided adequate

opportunity for institutional training and for attending

seminars/symposia/conferences. He further submitts that it is

the responsibility of the immediate superior Officer of the SC/ST

Officers Association in Group A to give advise and guidance to

the employees about the quality of their work. In his submission,

the Petitioner was never considered and sent for training. He

further invited our attention to clause 19 (ii) and (iii) of the

President's Directives 1975 to show that the Petitioner is not

only senior-most in the category of the employees but he is also

senior-most in the general category. According to the learned

counsel for the Petitioner, his service till the year 1987 was

rated as ' B+' i.e. above average and therefore, it is highly

improbable that after the year 1988 onwards his performance

would come down from B+ to B and remained stagnant at that

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stage. Specific allegations are therefore made that all this was

done at the behest of Shri Sannaki with a malafide intention and

for victimization of the Petitioner to deny him promotion. In the

submission of the learned counsel for the Petitioner though the

Petitioner had received call letter for attending the interview on

5.4.1996 for promotion to the post of Deputy Manager, the

same was nothing but an eye-wash. Learned counsel for the

Petitioner would submit that though the records of the Annual

Performance Appraisal Report are submitted, the Respondent

failed to show on what basis marks are given.

7. Learned Senior counsel for the Respondent on the

other hand submitted that the entire case of the Petitioner is

based on allegations of malafide against Shri Sannaki. Specific

allegations of malafides are attributed to Shri Sannaki alleging

that it was at the behest of Shri Sannaki that the Petitioner was

not promoted. Learned Senior Counsel for the Respondent

would further contend that though specific allegations of

malafides are made against Shri Sannaki, the Petitioner has not

made him a party and on this ground alone, the Petition

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deserves to be dismissed. This contention goes to the root of the

matter. Learned Senior Counsel appearing for the Respondent

would further contend that the Respondent has given a fair

treatment to the Petitioner and that his case has been

considered for promotion time and again when due. In his

submission, several times the Departmental Promotion

Committee has met to consider the cases of eligible Officers. He

further points out that Shri Sannaki against whom so-called

allegation of malafide is made, is the most Senior Officer

belonging to Scheduled caste. The learned Senior Counsel has

produced the original records of the Performance Appraisal

report and relied upon the Affidavit-in reply filed by Shri

V.A.Ferreira General Manager (HRD) on behalf of the

Respondent.

8. In so far as the contention of the Petitioner about

compliance of the President's Directives, 1975 the learned senior

counsel submits that reservation in promotion is applicable only

to the lowest rank in Group 'A' category i.e. up to the level of

Planning Officer in the case of the Petitioner. All subsequent

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promotions are determined by a selection process. The

promotion policy of the Respondent-Company, based on which

the Petitioner now seeks promotion, does not have any

reservation. In this view of the matter, in our opinion, the

contention of the Petitioner that the President's Directives 1975

are violated can only be stated to be rejected. We do not find

any merit in the contention of the Petitioner that there has been

any violation of the President's Directive, 1975.

9. The learned Senior Counsel for the Respondent

further invited our attention to various paragraphs of the

Affidavit in-reply filed showing that the Petitioner was

counselled time and again but, he showed no signs of

improvement in his work. In the submission of the learned

Senior Counsel for the Respondent the Petitioner was

considered on several occasions for promotion as he was in the

zone of consideration on the basis of the promotion policy for

considering the cases of the employees for promotion. It is

brought on record that the said promotion policy was

challenged in this Court and the validity of the said promotion

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policy has been upheld by this Court as well as the Apex Court.

The learned Senior Counsel further submitted that when a

candidate belonging to Scheduled caste/Scheduled tribe is

declared un-suitable and is superseded, the said supersession of

the said candidate has to be approved at various levels before it

becomes final. As and when vacancies arise, the Departmental

Promotion Committee is constituted by the Competent Authority

comprising of one representative from the user department

(i.e.Engineering Department) one representative belonging to

the Scheduled Caste/Scheduled Tribe community (if any of the

candidate falling within the zone of consideration belongs to the

SC/ST community) and one representative from HRD to assess

the suitability of the candidates coming within the zone of

consideration for promotion to the next grade (Assistant

Manager to Deputy Manager, Deputy Manager to Manager etc.).

The learned senior counsel further invited our attention to the

procedure where the Promotion Committee after conducting the

personal interview, scrutiny of the Performance Appraisal

Reports and the personal files of the eligible candidates submits

a report (i.e. marks for personal interview = 40 marks and

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Performance Appraisal Reports=60 marks) recommending

suitable candidates for promotion to the next higher grade to

the competent authority (Director of Engineering). The Director

of Engineering, if he accepts the report, forwards the report to

the Special Cell for SC/STs of the HRD Department under cover

of a letter which, after considering the report submits the same

to the Managing Director. The Managing Director then puts up

the matter before the Board of Directors. Once the Board

approves the supersession, the same is confirmed and conveyed

to the concerned department by the SC/ST Cell of HRD

Department. The above procedure for obtaining the approval of

the Board before superseding SC/ST candidate for promotion

came into force in November 1989 vide a letter dated

16.11.1989. This was in keeping with the provisions contained

in para 9.7 of the Brochure on Reservation for SC/ST

candidates. In the submission of the learned senior counsel, the

entire procedure was duly followed in case of the Petitioner and

the Promotion panel found the Petitioner un-suitable and

therefore, recommended supersession of the Petitioner.

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10. We have considered the submissions of the learned

counsel for the Petitioner and the learned Senior Counsel for the

Respondent.

11. From the records, we find that the Petitioner was

superseded for the first time in February 1989. The Promotion

Panel vide its report dated 9.2.1989 found the Petitioner un-

suitable and therefore, recommended supersession of the

Petitioner from the post of Planning Officer to Administrative

Officer (Planning). The Promotion Panel while considering the

Petitioner 's Appraisal Reports stated that the said reports

indicated the following : for the year 1986- "Requires more

experience ; 1987 -"Promotability is "NO" and requires more

experience" ; 1988: "Promotability is "NO" and does not have

initiative, interest in work, can do routine jobs, has very limited

knowledge. The Petitioner was therefore superseded. The

Promotion Panel Report was accepted by the Director of

Engineering who at the relevant time was the Competent

Authority. Since the rule pertaining to the prior approval of the

Board before supersession of an SC/ST candidate came into

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force only in November 1989, there was no requirement of

obtaining the Board's approval for supersession. The Promotion

Panel vide its report dated 26.2.1990 superseded the Petitioner

for promotion from Planning Officer to Administrative Officer

(Planning). The reasons stated in the report were that "His

overall rating is 'B' and promotability has been rated as "NO"

during the last 3 years. Further, his Appraisal Reports indicate

adverse remarks. It has been observed that the adverse remarks

have been conveyed to him. Further he has obtained 51.7 marks

which are much below the passing level of 70 marks. The Board

of Directors granted approval for the supersession. Like-wise

the Promotion panel by its report dated

14.3.1991,14.2.1992,15.4.1993 and 13.1.1995 has not

recommended the case of the Petitioner and necessary approval

of the Board of Directors has been sought for supersession. We

further find that in the year 1996 the Respondent-Company

introduced a new Promotion Policy wherein candidates having

completed certain number of years become eligible for multiple

promotions. The Petitioner came to be considered for the post

of Deputy Manager and Manager. The Promotion Panel vide its

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report dated 5.4.1996 has not recommended the Petitioner for

promotion to the post of Deputy Manager (equivalent to the

post of Administrative Officer-Planning) as he was found to be

un-suitable having obtained 36 marks in total as against the

minimum stipulated 70 marks. The necessary approval of the

Board of Directors for supersession of SC/ST candidate was

obtained. The Promotion panel vide its report dated 10.4.1996

declared the Petitioner to be un-suitable for promotion to the

post of Manager as he had failed to secure the stipulated

minimum 70 marks. He had obtained a sum total of 23.33

marks. In this case, as the Petitioner was junior-most amongst

the eligible candidates, and as such no supersession was

involved, his matter was not referred to the Board.

12. In the Promotion Panel convened on 15.7.1996 to

assess the suitability of the Petitioner amongst others to the post

of Deputy Manager, the Petitioner did not appear for the

interview despite intimation. Therefore, the marks obtained by

the Petitioner on the Performance Appraisal Reports only had to

be considered which were 87 marks. In accordance with the

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promotion policy Mr.J.L.Joshi and Mr.M.Dey who had secured

70 marks and above were considered suitable for promotion.

Even as regards the contention that Mr.M.M.Vaidya is junior to

the Petitioner as alleged we find that Mr.M.M.Vaidya is Deputy

Deputy Manager-Planning w.e.f. 1.4.1993 whereas the

Petitioner is Assistant Manager- Planning only. Thus, the said

Mr.M.M.Vaidya was promoted from the post of Deputy Manager

to Manager w.e.f. 1.9.1996 whereas the Petitioner was being

considered for promotion from the post of Assistant Manager to

Deputy Manager. We find that Mr.Vaidya and the Petitioner

belonged to two different cadres and therefore, the question of

Mr.Vaidya being junior to the Petitioner does not arise.

13. In the Affidavit-in reply, a categoric stand has been

taken by the respondent that one of the members of the Board

of Directors belonging to the SC/ST community studied the

records of all candidates who were superseded including the

records of the Respondents for a period of 5 to 10 years. After

verification of the same the said member conveyed his

recommendation for the supersession to the Board of Directors

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for approval. We have already found that the President's

Directive 1975 are only applicable to the lowest rank in group

"A" category i.e. up to the level of the Planning Officer in the

case of the Petitioner. All the succeeding promotions are

determined by a selection process as per the promotion policy of

the Respondent. At the cost of repetition, in para 8 we have

already held that there is no merit in the contention of the

learned counsel for the Petitioner that there is any breach of the

President's Directive 1975.

14. As regards the case of the Petitioner that till the

year 1988 his performance was good, we find that the

Respondents have taken a stand that from the year 1981

onwards, the performance of the Petitioner has been average

and not fit for promotion. The Petitioner was rated B+ only in

1985 and 1986. In 1984, though Reporting Officer had rated the

Petitioner 'B+' the Countersigning Officer had moderated the

rating to 'B'. Apart from this fact though the Reporting Officer

had assessed the Petitioner as 'B' + the said Reporting Officer

had under Part III (A-Promotability) of the Appraisal Report had

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assessed the Petitioner as not ready for promotion to the next

grade, his potentiality for shouldering higher responsibility as

limited and the limiting factors hindering his advancement were

Decision Making and Power of Analysis. Even in 1987, a year

prior to the alleged victimisation the Petitioner was rated as 'B'

and he was assessed as not ready for promotion. In fact it is the

categoric stand of the respondent that though the President's

Directives 1975 may not be applicable, nonetheless in terms of

the President's Directives 1975 he was nominated for an in-

house training programme. The same was not availed by the

petitioner on two occasions.

15. We have perused the Performance Appraisal Report.

We do not find that the same is arbitrary. It is not possible for us

in exercise of our Extra-Ordinary Writ Jurisdiction under Article

226 of the Constitution of India to re-assess and re-appreciate

the Appraisal Reports and arrive at our own conclusions. We do

not find that the procedure adopted by the Respondent

superseding the Petitioner is illegal and violative of the

Petitioner's right for promotion. The Petitioner has only a right

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to be considered for promotion. We find that the Petitioner has

been considered on all occasions but not found suitable. We

further find that though allegations of malafides are made

against Shri Sannaki at whose instance the supersession of the

Petitioner is alleged has not been made a party and hence we

refrain from giving a finding of malafides in the matter of

superssession.

16. In the result, we do not find any merit in the

present Petition and the same deserves to be dismissed and is

accordingly is dismissed with no order as to costs.

Rule is discharged.

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