Airlines Traffic Employees ... vs Indian Airlines Ltd. And Ors.
2002 Latest Caselaw 1564 Del

JUDGMENT

Madan B. Lokur, J.

1. Petitioner No. 1 is a registered trade union representing the cause of Petitioners No. 2 to 39 who are employees of Indian Airlines (Respondents No. 1 and 2). For convenience, the aggrieved Petitioners No. 2 to 39 are collectively referred to as the Petitioners. Respondents No. 3 to 18 are employees of Indian Airlines who have been appointed to the post of Assistant Manager (Commercial). The Petitioners have challenged their appointment through a writ petition under Article 226 of the Constitution.

The facts

2. On 18th April, 1995, Indian Airlines issued a staff employment notice inviting applications from its employees for appointment to the post of Assistant Manager (Commercial). It was stated that there was 38 vacancies, the break-up being 29 in the general category, 6 reserved for the Scheduled Castes and 3 reserved for the Scheduled Tribes. The qualifications and experience for appointment as Assistant Manager (Commercial) were mentioned in the notice and eligible employees were asked to give their applications as per the prescribed format.

3. The Petitioners submitted their applications, except Petitioner No. 2 who, it appears, did not receive a circular extending the last date for submitting applications and, therefore, did not apply. The facts peculiar to Petitioner No. 2, however, make no material difference in so far as the decision of the present case is concerned.

4. Pursuant to the employment notice, Indian Airlines received 1085 applications from all over India. The applicants were subjected to a written test in which 144 candidates qualified. Thereafter, a group discussion/interview was held between September, 1996 and February, 1997. According to Indian Airlines, a large number of the Petitioners failed in the written test and those who passed were not able to qualify in the interview.

5. Indian Airlines then appointed 47 of its employees as Assistant Manager (Commercial). The break-up of this figure is that 38 appointments were made against actual vacancies and 9 appointments against anticipated vacancies. The appointments were made by an order dated 27th March, 1997.

6. The Petitioners are not aggrieved by the appointment of 38 employees against the actual vacancies nor are they aggrieved by the appointment of 9 employees against the anticipated vacancies.

7. What has upset the Petitioners is that on or about 12th July, 1997, Indian Airlines appointed 16 persons, namely, Respondents No. 3 to 18 over and above the 38 notified vacancies as well as the 9 anticipated vacancies. It is these appointments which are the subject matter of challenge in the present writ petition. The Petitioners objected to the appointment of these 16 employees in excess of the actual and anticipated vacancies but when they did not get any satisfactory reply, they filed a writ petition challenging these 16 appointments which, according to the Petitioners, are illegal.

8. Learned counsel for the parties were heard on 27th August and 2nd September, 2002 when judgment was reserved.

The contentions

9. The stand taken by Indian Airlines for justifying the appointment of 16 employees in excess of the actual and anticipated vacancies rests on four grounds. It is firstly submitted that the Petitioners having failed to qualify in the examination, they cannot make any grievance if others who have qualified are appointed. Secondly, it is submitted that the extra appointments were made from a quota meant for direct recruits and, therefore, if anybody can have a grievance, it is only someone from the open market and not any of the Petitioners. It was submitted that extra appointments were made since there was a ban placed by the Central Government on direct recruitment from the open market. It is then contended that the Petitioners have only a right to be considered for appointment. They have no right to be appointed and as such no prejudice has been caused to them. It is finally submitted that in terms of Rule 13 of the Recruitment and Promotion Rules of Indian Airlines, excess appointments can be made. Rule 13 reads as follows:-

"13. The Boards shall proceed to arrange their selections in order of inter-se seniority amongst the candidates who have qualified (other than the candidates who have been marked as 'outstanding' in which case such candidates will be placed at top of the list) and shall also keep a suitable number of candidates on the panel/waiting list. Such a panel may be used for filing vacancies that may arise subsequently and will be valid for a period of two years in respect of all posts in erstwhile Grade I/II and III/VI (and its equivalent) and one year in other cases, from the date of the approval of such panel by the competent authority where after the procedure as outlined above may be followed afresh; provided however,

i) the Managing Director in his sole discretion and being satisfied on the relevant considerations, may extend the validity of such panels in other than erstwhile grade I/II and III/VI for a further period of six months at one time subject to a maximum of one year in respect of any panel.

ii) In preparing the panel the Board shall pay attention to the circulars and instructions issued by the Government of India from time to time in mater of safeguarding adequate representation to members of Scheduled Castes/Scheduled Tribes etc."

Discussion

10. It is quite clear that all the submissions made by learned counsel for the Respondents are really different facets of the same line of reasoning, namely, that the Petitioners not having qualified, they cannot challenge the selection of successful candidates. Frankly, I find it difficult to accept this contention given the facts of this case.

11. Learned counsel for the Petitioners made it clear, more than once that he is not challenging the selection of 38 candidates against the notified vacancies. He also made it clear that he is not aggrieved by appointments made to the 9 anticipated vacancies. The grievance is to the 16 appointments made against vacancies which were neither notified nor anticipated. In a sense, they were "future vacancies" which apparently arose because of the ban placed by the Central Government on making direct recruitments which made it impossible to make direct recruitments. Indian Airlines decided to fill up these unanticipated or future vacancies from amongst the candidates who had qualified in the written test and the group discussion/interview rather than resort to a fresh selection process.

12. Was this legally permissible? The Supreme Court has answered this question in the negative in two decisions cited by learned counsel for the Petitioners.

13. Madan Lal and Ors. v. State of J & K and Ors., was a case where 11 vacancies of Munsifs were advertised and the Selection Committee (J & K State Public Service Commission) was requested to prepare a select list of 20 candidates. The contention urged by the Petitioners therein was that the preparation of a merit list of 20 candidates was contrary to the recruitment rules since an advertisement was issued for filling up only 11 vacancies and a requisition was also made for filling up only those vacancies.

14. The Supreme Court held that drawing up a merit list of 20 candidates was permissible but on the wording of the requisition sent to the Selection Committee, only 11 vacancies could be filled up from the merit list - even anticipated vacancies could not be filled up with the candidates mentioned in the select list. This is what the Supreme Court said in paragraph 22 and 23 of the Report:-

"22. ..... It is not possible to agree with the respondents that this requisition also took note of anticipated vacancies during the course of one year and therefore it can be said to be a requisition for recruiting 20 candidates on clear and anticipated vacancies. If that was so, the contents of the letter would have been different. We agree with the learned counsel for the respondents that while sending the requisition for recruitment to posts, the Government can keep in view not only actual vacancies then existing but also anticipated vacancies during one more year or for a given period of time and in that case the requisition would cover actual vacancies and anticipated ones. But on the clear wordings of the aforesaid letter, it is not possible to agree with this submisison. It must be held that the requisition in the present case by the Government was for holding selection tests by the Commission for filling up 11 clear vacancies and nothing more. No anticipated vacancies were contemplated to be filled in. The process of recruitment was got initiated by the State through the Commission, for only eleven clear vacancies.

23. It is no doubt true that even if requisition is made by the Government for 11 posts the Public Service Commission may send merit list of suitable candidates which may exceed 11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more....." (emphasis supplied)

15. In the present case, it is not necessary to analyze the requisition since learned counsel for the Petitioners has to questioned the filling up of anticipated vacancies. But, one thing is clear from the decision of the Supreme Court: in a given case, even the filling up of anticipated vacancies may be contrary to law.

16. Prem Singh and Ors. v. Haryana State Electricity Board and ors., reviewed the case law on the subject and also considered Madan Lal. In Prem Singh, 62 posts of Junior Engineer were advertised for being filled up. Eventually, however, 138 posts were filled up filling 25 anticipated vacancies. Of these 25 anticipated vacancies, 13 had arisen because of retirements and 12 because of death. Even though death could not be anticipated, the Supreme Court did not choose to interfere in respect of vacancies caused by death by taking a "lenient view". However, the appointments in excess of 87 (62+25) were set aside. The legal position was stated by the Supreme Court in paragraph 25 of the Report which reads as follows:-

"25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case."

The final direction given by the Supreme Court was as follows:-

"Therefore, in view of the special fats and circumstances of this case we do not think it proper to invalidate the appointments made of those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid."

17. Applying the law laid down by the Supreme Court to the facts of the present case, it is more than abundantly clear that Indian Airlines was wrong in making appointments in excess of 47 (38+9).

18. It was submitted on behalf of Indian Airlines that in view of Rule 13 of the Recruitment and Promotion Rules, excess appointments could be made. On a plain reading of Rule 13, along with the decisions rendered by the Supreme Court, it is more than clear that the vacancies "that may arise subsequently" are those vacancies which are anticipated vacancies. Such vacancies cannot be read to mean future vacancies or those vacancies which are not anticipated because if Rule 13 is so read, it would be in conflict with the law laid down by the Supreme Court. Consequently, Rule 13 of the Recruitment and Promotion Rules of Indian Airlines does not come to the aid of the Respondents.

19. What is the prejudice caused to the Petitioners who were, in any case, unsuccessful in the written test and later in the group discussion/interview? The Petitioners were denied the opportunity of competing for filling up the 16 future or unanticipated vacancies. If a fresh examination had been held for these 16 vacancies, some of the Petitioners may have qualified and been appointed as Assistant Manager (Commercia). Not holding an examination and filling up the vacancies on the basis of an examination conducted for some other recruitment (even though for the same post) resulted in depriving the Petitioners of the prospect of improving their performance and qualifying in a fresh examination. It is this effective denial for a chance to compete and be considered for the post of Assistant Manager (Commercial) that has prejudiced the Petitioners, in a manner contrary to law.

Relief

20. On the question of relief to be granted to the Petitioners, it needs to be stated that by an order dated 10th December, 2001 passed by this Court, it was made clear that Respondents No. 3 to 18 "shall not claim any equity in their favor in case the allegations made by the petitioners in the writ petition are found to be correct and justified, which order shall also be subject to the result of the writ petition." (The order erroneously states Respondents No. 4 to 18, but this is clearly a typographical error). The appointment of Respondents No. 3 to 18 as Assistant Manager (Commercial) being contrary to the law laid down by the Supreme Court, there is no option but to set aside their appointments.

21. Unfortunately, in spite of the law having been unequivocally laid down by the Supreme Court, Indian Airlines has compelled the Petitioners to litigate. Consequently, Petitioners No. 2 to 39 will be entitled to costs which are quantified at Rs. 1,000/- per Petitioner. Indian Airlines will pay Rs. 1,000/- as costs to each of these Petitioners within four weeks from today.

22. The writ petition is allowed and the appointment of Respondents No. 3 to 18 as Assistant Manager (Commercial) is set aside.