Ms. K.A. Nagmani vs Indian Airlines And Ors.
2004 Latest Caselaw 970 Del

JUDGMENT

A.K. Sikri, J.

1. This writ petition is preferred by the petitioner, Ms. K.A. Nagmani, who is an employee of Indian Airlines, the respondent herein. She claims that after her brilliant academic record she was appointed as Programmer with the Indian Airlines in the year 1984 and was placed at serial No. 1 in the seniority on the basis of her merit in the selection process. The designation of the post of Programmer was changed to that of System Officer in the year 1985. Petitioner was, thereafter, promoted as Assistant Manager (Systems), EDP in the year 1986 to which post she was confirmed on 15th September, 1987. Next promotion is to the post of Deputy Manager (Systems/Data Communication/Maintenance). She became eligible to be considered for promotion to this post and was called for interview on 10th October, 1990. Initially 10 persons were considered for this post, namely, the petitioner and nine other candidates. However, thereafter name of one Mr. M.M. Narula was also added. Ultimately, vide Establishment Order No. 159 dated 6th December, 1990 appointments/promotions were made to the post of Deputy Manger System/Maintenance) and Mr. M.M. Narula was also promoted to this post whose name appeared in the said order at serial No. 3. According to the petitioner Mr. M.M. Narula was not eligible to be considered for this post as he had not completed two years' tenure as Senior Computer Operator (Technical).

2. Further promotions were made in the year 1991 and vide Establishment Order No. 54 dated 22nd April, 1991 when one Mr. N.C. Jain was promoted to this post the petitioner felt aggrieved against this appointment, as according to her, Mr. N.C. Jain was junior to her. Raising these grievances the present writ petition was filed on 24th July, 1991 impleading Indian Airlines as respondent No. 1, Mr. M.M. Narula as the respondent No. 2 and Mr. N.C. Jain as the respondent No. 3 challenging the appointments of respondents No. 2 and 3 and also seeking a mandamus to promote the petitioner to the post of Deputy Manager (Systems) with effect from 6th December, 1990.

3. Before stating the grounds on which the challenge to the appointment of the respondents No. 2 and 3 is made, it would be appropriate to glance through the relevant statutory provisions as well as rules laying down the service conditions of the categoris of employees covered by this writ petition and govern the promotion to the post of Deputy Manager (Maintenance/System). Indian Airlines is a statutory Corporation created by passing Air Corporations Act, 1953 (hereinafter referred to as 'the Act'). Is affairs are governed by the Board of Directors as mentioned in sections 3 and 4 of the Act. Under Section 44 of the Act, the Central Government has power to make Rules to give effect to the provisions of the Act and under Section 45 the first respondent has been given power to make Regulations not inconsistent with the Act and rules made there under. These Regulations are, however, to be made by notification in the official gazette. Clause (b) of sub-section (2) of Section 45 empowers, the first respondent to make Regulations in connection with the terms and conditions of service of officers and other employees of the first respondent, other than the Managing Director, etc. and sub-section (3) provides that no such Regulations shall be made except with the previous approval of the Central Government.

4. Under these rule making powers, the Indian Airlines made Indian Airlines (Flying Crew) Service Rules, Indian Airlines (Aircraft Engineering Department) Service Rules and Indian Airlines (Employees other than Flying Crew and those in the Aircraft Enginering Department) Service Rules. In exercise of powers conferred by Rule 4 read with Rules 8 to 15 of the aforesaid Rules, rules known as Indian Airlines Recruitment and Promotion Rules (hereinafter referred to as the R and P Rules) were also framed. In the instant case we are concerned with these R and P Rules. These R and P Rules are held to be administrative and not statutory in character as we would find out later.

5. Rule 3 of these RandP Rules provides that all the employees of Indian Airlines shall be grouped in eight specific departments named therein. These departments are:-

i) Headquarters

a) Headquarters Officer

b) Central Revenue Accounts Branch

ii) Operations Department

a) Flying Operations

b) Ground Operations (Associated with Flying Branch)

iii) Aircraft Engineering Departments

iv) Traffic Department

v) Accounts, Costing and Statistics Department

vi) Internal Audit Department

vii) Stores and Supplies Department

viii) General Administration Department

a) Administrative and Personnel Branch

b) Catering and Cabin Servicing Branch

c) Surface Transport Branch

6. Rule 4 provides the manner in which seniority is to be regulated and specifies that it would be according to the department to which an employee is assigned. It reads as under:-

''4. Seniority shall be regulated according to the Department to which an employee is assigned provided that

a) for the purpose of this rule, Accounts, Costing and Statistics Department and Internal Audit Department shall be treated as one and the same Department.

b) An employee in a higher grade shall be senior to one in the lower grade.

c) Within the same grade, seniority shall be determined according to the point of entry in the grade, provided that where the point of entry is the same, seniority shall be determined by the competent authority in accordance with age, experience and qualifications of the individual.

d) Within a Department, employees will be divided into kindred occupational groups, called cadres, as shown in the annexed schedule and seniority inter-se shall be on the basis of such cadres.

e) Seniority in Grade I to IX in a Department (except Flying Operations) shall ordinarily be regulated according to the Sanctioned Strength of the cadre in each Region.

f) Seniority in all grades in the Flying Operations Branch of the Operations Department and in Grade-X to XIX in all other Departments shall be regulated in accordance with the Sanctioned Strength of the cadre in each Department in the Corporation as a whole.

Note: The above rules will not apply to employees retained on contract or on special terms of employment.''

7. As would be noticed, as per Rule 4(d), within a department employees would be divided into kindred occupational groups called cadres as shown in the annexed schedule and seniority shall be on the basis of such cadres. It is the case of the petitioner that cadres of system and maintenance being new cadres have not been shown in the annexed schedule to the RandP Rules, but have been shown separately in the seniority list. Rule 5 provides that when an employee is transferred from one department to another or from one region to another on a permanent basis, his seniority will be determined in accordance with the provisions of Rule 4 and he shall be deemed to be borne on the cadre to which he is assigned. As per Rule 6 all the vacancies are to be filled either by direct recruitment or by promotion, or with the approval of the Chairman/Managing Director, by deputation of personnel from the Government of India or any of the State Governments. In Chapter II, Rules 9 to 16 deal with direct recruitment. Rule 3 thereof, is of some relevance, and is quoted below:-

''13. The Board 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 filling 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 an 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/IV 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 matter of safeguarding adequate representation to members of Scheduled Caste/Scheduled Tribes etc.''

8. Rules 17 to 23 relate to the appointment by way of promotions. As per Rule 17, promotion committees are to be established at headquarters and regions on the same pattern as direct recruitment committees. Rule 18 provides that the Board shall proceed to arrange their selection in order of inter se seniority amongst the candidates. Rules 18, 20 and 22, providing for manner of promotions, make the following reading:-

''18. The Board shall proceed to arrange their selections in order of inter-se seniority amongst the candidates who have qualified and shall also keep a suitable number of candidates on the panel/waiting list. Such a panel may be used for filling 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 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/IV 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 matter of safeguarding adequate representation to members of Scheduled Castes/Scheduled Tribes etc.

20. Promotions will be considered on the basis of suitability-cum-seniority in the grades or inter-linked grade below the grade for which promotions are being considered subject to fitness of the employee being certified by the Selectional/Departmental Head for the employee in the following form:

'Certified that Shri/Smt................................................. Designation........................................................................Grade ..................... in view of his/her integrity/ability is fit to be considered for promotion/selection to Scale of Pay..........................................................................

22. Promotions to Selection Grade will be on the basis of rigorous selection on merit from amongst the employees in grades or inter-linked grades below the grade concerned and shall be limited to the number of posts declared as such on the cadre according to the sanctioned strength from time to time.''

9. It may be mentioned that Rule 21 prescribes that no employee can claim promotion as a matter of right and the promotion would depend as much on his suitability as on his relative standing with other promotions.

10. It is the case of the petitioner that she was at serial No. 7 of the seniority list in the post of Assistant Manager (Systems) and was senior to respondent No. 3, who was at serial No. 8 in the said seniority list. She further states that ratings of actual performance appraisals of the petitioner have been 'Good', 'Very Good' and there have never been any adverse report against her. Therefore, she was dismayed to find that ignoring her, the respondent No. 2 was promoted vide order dated 6 December, 1990 who was not even eligible. She had the same feeling when she came to know that she was ignored and the respondent No. 3 was promoted as the Deputy Manager (Systems/Maintenance), EDP Headquarters vide order dated 22nd April, 1991.

11. In the counter affidavit filed on behalf of the respondents, it is stated that the petitioner belongs to the Department of Electronics Date Processing (EDP) and is presently serving as Assistant Manager (Systems). The EDP has four divisions viz., Software, Hardware, Data Communications and Computer Operations. The seniority of these four divisions was maintained separately. However, the Indian Airlines Officers Association (IAOA) requested for a merger of the seniorities of the Maintenance and Data Communications Cadres. Accordingly, in September, 1990 it was decided that Software and Hardware Divisions should be merged and a common seniority list for the EDP Department should be maintained. It was also decided that the vacancies of Deputy Managers, the relevant post in the present writ petition, may be filled up through the merged cadre of Software and Hardware, wherever technically qualified personnel are available. Subsequently, pursuant to a further request received from the IAOA, it was decided that seniority of Software and Maintenance Cadre be merged.

12. It is further stated that pursuant to the said merger of seniorities a notional merged seniority of Hardware/Date Communications/System was prepared, whereunder Mr. M.M. Narula, the respondent No. 2, was placed at seniority No. 2 among 16 candidates.

13. It is also stated that selections for the post of Deputy Manager (Systems/Maintenance), a selection cadre post, were held in October, 1990. The post was to be filled from the merged seniority of systems cadre and maintenance cadre in which 10 Assistant Managers (Systems) and 1 Senior Computer Officer (Technical) (Mr. M.M. Narula) were considered. It is clarified that since the seniority was merged, those Senior Computer Officers (Technical)/Assistant Manager (System) who had completed two years service in any capacity in either of the Divisions were considered. The petitioner was also considered for the said posts. Mr. M.M. Narula was already an Assistant Manager (Systems) with effect from August, 1985. As per the Recruitment and Promotions Guidelines, vacancies in higher grades were to be filled on the basis of 'selection' from amongst employees in the immediately below grade of the same cadre. Admittedly, the cadre of Assistant Manager (Systems) was the immediate cadre below the cadre of Deputy Manager (Systems). The designation of Senior Computer Officer (Technical) was not a separate cadre but only carried some additional benefits by way of technical allowances. Mr. M.M. Narula was appointed as Senior Computer Officer (Technical) with effect from 7th November, 1988.

14. It is further stated that 10 Assistant Managers (Systems) were considered for this selection; 5 belongs to the same batch of Mr. M.M. Narula and the remaining 5 were junior to him in the cadre of Assistant Manager (Systems). The petitioner was also on of the Assistant Managers (Systems) and was much junior to Mr. M.M. Narula in the cadre of Assistant Manager (Systems). It is further clarified that only technically qualified personnel were manning the Data Communications Branch but the cadre was that of Assistant Manager (Systems). The post of Deputy Manager (Systems/Maintenance) belongs to Grade XV. The mode of filling up of such post is either by direct recruitment or through promotion. Rule 22 of the Service Rules stipulates that promotion to selection grade could be on the basis of rigorous selection on merits from amongst the employees in grades or inter-liked grades below the concerned grade and is limited to the number of posts declared as such on the cadre according to the sanctioned strength from time to time. Therefore, in selection grade posts, the criterion would be ''rigorous selection on merits''.

15. It may be noted that during the pendency of this writ petition the petitioner was promoted to the post of Deputy Manager. However, she claims promotion from earlier date.

16. The petitioner argued her case in person and filed written submissions. The written submissions were also filed by the respondents and reply to those written submissions was filed by the petitioner. The arguments advanced by the petitioner, in nutshell, are summarised as under:-

A) Deputy Manager (System) is a post in Grade 15. As per RandP Rules promotion has to be from one Grade to another Grade (Rule 20) and within the cadre by virtue of Rules 4 and 5, on the basis of seniority. Thus, only those officers in Grade 13/14 could be considered for promotion to Grade 15. Respondent No. 2 belonged to another cadre, namely, hardware cadre. Exercise for promotion to Grade 15 was started. He, therefore, was not eligible to be considered.

Respondents are trying to justify eligibility of respondent No. 2 and his consequent promotion to Grade 15 on the basis of purported settlement as per which cadres were merged and common seniority was drawn on 28th September, 1990. Even if there was settlement it necessitated amendment in RandP Rules also which are statutory in character. Rules were, however, not amended or modified or repealed and, therefore, the respondent Corporation was under statutory obligation to make promotion as per these rules and not on the basis of alleged settlement.

B) Even while making the promotion of respondents No. 3 and 4, Rule 8 was violated. It was submitted that as per RandP guideline DPD 01/L-1400 dated 5th February, 1975 criteria for promotion laid down is '' Seniority-cum-Fitness''. However, contrary to this respondents followed the method of ''Selection by Suitability-cum-Seniority''as stated in their affidavit. Therefore, promotion was not made in accordance with the existing promotion policy.

Another irregularity, according to the petitioner, was that according to respondents nomenclature of the post was changed whereas appointment was to a post not in the schedule. Schedule of Cadres showing designations was not amended and appendix to service regulation continued to uphold. Grade 15 post was in upper managerial grade and was governed by Rule 8. It was not a selection cadre post and, therefore, criteria of selection could not be adopted. She referred to the judgment of Calcutta High Court in the case of Capt. Digvijay Singh Dube Vs. Indian Airlines and Ors., 1990 Lab. IC 810 (Cal.) wherein issue of selection grade was elaborately dealt with.

C) Each department is divided by ''Kindred Occupational Groups'' into Cadres by Rule 4(d). All promotions in a cadre to the next grade. Seniority is on the basis of such cadres and date of entry into a grade actually means date of entry into the cadres as per Rule 4(b). Rule 4(a) lays down the only recognised clubbing of seniority. Therefore, any combined seniority must be reflected by an amendment of Rule 4 and in the absence of such amendment there could not have been clubbing of seniority of different cadres.

D) It was also argued that personnel manual of the respondent No. 1 had been severely indicted by CAG in its report on the extent of arbitrariness in promotion to higher levels. There was no objective criteria as the respondents were changing the qualifying criteria for promotion/selection arbitrarily. Respondents had also committed breach of guidelines to be observed for promotion/selection as reasons for rejection were not disclosed and mandatory appraisal interviews were not held. Board relied only of assessment sheet of APA Ratings and merits of the petitioner was not apprised to the Members and relevant APAs were not consolidated.

E) It was also submitted that fixation of 50% of marks from interview were totally arbitrary and impermissible.

17. In the detailed written submissions filed by the petitioner the aforesaid contentions are repeated in different manner. However, thrust of these submissions is what is indicated above.

18. Before embarking on the discussion relating to the contentions raised by the petitioner it would be apposite to refer to some of the cases decided by this Court as well as the Supreme Court relating to the Indian Airlines Corporation itself, which were cited at the Bar. Discussion of these cases would provide answers to some of the issues raised in the petition.

19. I may first take note of the judgment dated July 8, 1994, rendered by a learned Single Judge of this Court in Writ Petition No. 3647/93 entitled Joydev Chakraborty and Ors. v. Indian Airlines and Ors., inasmuch as in this writ petition challenge was made to the same very promotions by some other persons wherein the present petitioner was also arrayed as respondent No. 9. The petitioner in the case had challenged promotions made to the post of Dy. Manager (Systems/Maintenance) in the year and were seeking restraint against similar promotions to some other respondents. The petitioners in that writ petition belonged to the stream called Maintenance (Computer Maintenance) and those who were given promotions belonged to the stream called Systems (Software Maintenance). Incidentally, the petitioner here also belongs to the stream of Assistant Manager (Systems) and was considered for the post of Dy. Manager (Systems/Maintenance) and she was also not promoted in the year 1990 as noticed above. One of the issue raised by the petitioners in Civil Writ No. 2647/93 was the non-eligibility of the persons promoted (who were respondents No. 2 to 7) and included Mr. M.M. Narula (respondent No. 2 herein). There also the employer defended the case on the ground that as a result of settlement with the Officers' Association, merger of the two streams in the Electronic Data Processing Department (EDP Department) had taken place and a combined seniority list was drawn. Upholding this action of the employer in the said judgment it was observed as under:-

''10. It is undisputed that petitioners are members of the association while entered into a settlement with the management. In fact some of the petitioners are the executive members of the association. They cannot plead ignorance of the settlement. The combined seniority list of the officers of the two streams was a result of the settlement. The association has not been imp leaded as a party to the present writ petition. The binding nature of the settlement is also not questioned in the writ petition.

In the larger interest of the service, the settlement arrived at between the management and the Association of the employees should normally be upheld and respected. A settlement would cover several aspects of the service terms and if the court venture to upset one of the terms of settlement, it may have an adverse effect on other aspects of the settlement. Usually a settlement is arrived at as a package deal governing various claims of the employees.''

Same very challenge to the promotion of the respondent No. 2 was thus upheld in the proceedings where the petitioner was also a party.

20. Another judgment, which may be relevant, is rendered by a Division Bench of this Court in the case of R.C. Parti v. Indian Airlines and Ors. (W.P. No. 3364/90) decided on August 31, 1995. Challenge was to the promotions given to certain persons (respondents No. 2 to 10 in that case) to the post of Dy. Manager (Flight Operations) on the ground that the said respondents were junior to the petitioner. The contention of the petitioner in the said writ petition was that the post of Dy. Manager (Flight Operations) was a promotional post and ought to have been filled in on the basis of seniority, subject to fitness. Another grievance raised was that allocation of 50% of marks for the interview was contrary to the law laid down by the Supreme Court, as the save was violative of Articles 14 and 16 of the Constitution of India. Indian Airlines pleaded that the post in question was an upper managerial cadre post which was required to be filled through process of selection. Duties of the post were enumerated in the counter affidavit filed by the respondents which were of managerial nature. Reference was also made to Resolution dated July 30, 1970 of the Board of Directors, as per which such posts had to be filled in from the direct recruitment from the office of the respondents and the same would be treated as selection post. Allocation of 50% marks for the interview was also sought to be justified keeping in view the status of this post as it came within the range of high managerial post. It was also mentioned that since 1970 upper managerial post had been filled in only by selection and the Bombay High Court had already upheld such position in Appeal No. 857/87 in the case of N. Karamchandani and Ors. v. Indian Airlines and Ors. by observing that it was not in dispute that right from the year 1970 the management had filled up such posts by process of selection and the words 'direct recruitment' as understood in the Indian Airlines meant the process of selection on merits from employees working in the respondent-Airlines. The Division Bench accepted the case of the respondents and dismissed the writ petition, and in the process made the following observations:-

''The learned counsel for the petitioner has vehemently contended that in view of the judgments given by the Supreme Court in the case of Lila Dhar v. State of Rajasthan and Ors., , Mohinder Sain Garg v. State of Punjab and Ors., , Vikram Singh and Anr. v. The Subordinate Services Selection Board, Haryana and Ors., , Sri Ashok @ Somanna Gowda and Anr. v. State of Karnataka and Ors., and Munindra Kumar and Ors. v. Rajiv Govil and Ors. , the allocation of 50% marks for the interview in respect of the post in question is totally illegal. All these judgments are not applicable, in our view, to the present case inasmuch as the nature and functions of this post as have been enumerated on the counter-affidavit of the respondent which are not disputed by the petitioner clearly show that this post requires higher caliber and managerial skill and the Supreme Court while dealing with such like post has already upheld the allocation of 50% marks for interview in the case of Indian Airlines Corporation v. Capt. K.C. Shukla and Ors., . In the said case, the post of Deputy Operations Manager was in question. The method of evaluation was the same, 50% marks on ACRs and 50% marks on interview. Referring to the cases of Ajay Hasia v. Khalid Mujib Sehravardi, , Ashok Kumar Yadav v. State of Haryana, and State of U.P. v. Rafiquddin, 1987 Supp SCC 401, the Supreme Court held that distinction appears to have been drawn in the interview held for competitive examination or admissions in educational institutions and selections for higher post. It was laid down that efforts have been made to eliminate the scope of arbitrariness in the former by narrowing down the proportion of marks as various factors are likely to creep in, but same standard was held to be not applicable for selection for higher posts. It was specifically held that such a rule cannot be stated to be arbitrary when the evaluation was job-oriented. Like the post of Deputy Operations Manager, the present post, in our view, also belongs to upper managerial cadre and the ration laid down in this judgment, in our view, applies on all fours to the present case and the allocation of 50% marks for the interview and 50% marks on the evaluation of the ACRs, in our view, is not arbitrary and cannot be struck down.''

The post in the present case is an equivalent post post inasmuch as we are concerned with promotion to the post of Dy. Manager (Systems/Maintenance) whereas the post involved in the aforesaid case was Dy. Manager (Flight Operations).

21. Similar challenge to promotions for the post of Charge Hand (Mechanical/Electrical and Master Technicians), namely, it was to be on the basis of seniority subject to rejection of unfit in view of Rule 20 and allocation of higher marks, namely, 70 out of 100 during the interview, was negatived by a Single Judge of this Court in R.S. Adhikari v. Indian Airlines Corporation, (CWPs No. 1238 and 1378/1981) decided on March 26, 1984 by making the following remarks:-

''A balanced promotion policy is laid down by the Corporation in the Rules. Promotion to Selection Grade is on the basis of rigorous selection on merit. Promotions to other posts are made on the basis of ''suitability-cum-seniority''. This is the combine effect of Rules 20 and 21. Suitability of an employee as also his relative standing with other eligible for promotions made the criterion for promotion but, the seniority is also given its due weight. The comparative merit is to be adjudged by the Selection Board in accordance with the guidelines issued from time to time. The total marks for all factors assessed during the interview are 100 and qualifying marks are 60% (50% under promotion quota). The successful candidates are those who have obtained 60% (or 50%) marks and above. Employees securing marks below 60% (or 50%) are not considered suitable. The successful candidates are placed on a panel in order of seniority. Those of the candidates who have obtained 80% marks and above are termed as outstanding''. They are only given priority for appointment, but on appointment, their seniority vis-a-vis persons appointed in the same batch with them is governed in the order dhow on the panel. In other words, the seniority is maintained even though as outstanding candidate may be appointed earlier. The seniority thus plays an important role in the promotion policy of the Corporation in posts other than selection grade. The fitness for the promotional post under the Rules is only when the candidate secures 60% (or 50%) marks or above. This is the minimum standard of individual merit and suitability for inclusion in the promotion panel. Seniority plays the dominant role in determining the order on the panel of the employees found suitable for promotion. Thus, in my view, the filed of eligibility is on the basis of the seniority in the grade or inter-linked grade subject to the fitness of the employee being certified by the competent authority. The Selection Board is then to evaluate the comparative merit of the eligible candidates and declare those qualified who secure 60% (or 50%) or more marks and arrange the panel in the order of seniority. The Corporation has placed on record the minutes of the proceedings of the Promotion/Selection Committee. The Committee did not find Shri R.S. Adyikari fit for the post of Charge Hand or Master Technician as he was lacking in job knowledge and supervisory skill beside average APAs for both the years. Shri J.N. Patni was found suitable for Master Technic an only as his APAs. for both the years under consideration were found to be average. The Competent Authority also did not recommend him to be considered for the post of Charge Hand. The petitioners in both the writ petitions were duly considered but not found suitable.''

22. The Court, in the process, also held that RandP Rules are administrative in nature and have no statutory force by making the following statement:-

''The Corporation may be considered as an authority within the meaning of article 12 of the Constitution and thus the employees of the statutory Corporation are entitled to claim protection of Articles 14 and 16 of the Constitution including equal chances of promotion. It is open to the state to regulate matters relating to conditions of service either by administrative instructions or by frame of statutory rules or regulations. The administrative instructions would operate in the field as long as statutory rules or regulations have not been made. If the statutory rules or regulations have been made, then administrative instructions have the effect of amending the service rules, then the statutory rules which have been framed in exercise of the statutory power would prevail over the administrative instructions. In that case, the administrative instructions would be bad in law.

23. It may be mentioned that a Division Bench of this Court in its judgment dated May 29, 1991 in the case of Capt. K.C. Shukla v. Indian Airlines and Ors. (CWP No. 2159/90) did not find favor with the view taken by the learned Single Judge in R.S. Adhikari v. Indian Airlines Corporation (Supra) and held that allocation of 50% marks for interview test was arbitrary and violative of Articles 14 and 16 of the Constitution of India. However, Indian Airlines Corporation appealed against the aforesaid judgment to the Supreme Court and the Supreme Court reversed the Division Bench judgment of this Court. Judgment of the Supreme Court is titled Indian Airlines Corporation v. Capt. K.C. Shukla and Ors., . The discussion, relevant for our purpose, s contained in para 3 of the said judgment, which makes the following reading:-

''3. Law on the proportion between written test and interview or evaluation on confidential entries and personality test have been laid down in a series of decisions by this Court commencing from Ajay Hasia v. Khalid Mujib Sehravardi, , Lila Dhar v. State of Rajasthan, (1881) 4 SCC 159, Ashok Kumar Yadav v. State of Haryana, and State of U.P. v. Rafiquddin, 1987 Supp. SCC 401. Distinction appears to have been drawn in interview held for competitive examination or admission in educational institutions and selection for higher posts. Effort has been made to eliminate scope of arbitrariness in the former by narrowing down the proportion as various factors are likely to creep in. But same standard cannot be applied for high or selections. Lila Dhar case beings it out fully. In respondent's case the personality of the respondent was being judged by a Committee constituted under the rules for purposes of higher promotional posts and, therefore, it was governed by the ratio laid down in Lila Dhar case and it would be unsafe to strike down the rules as arbitrary when the evaluation was job oriented. Marks to be allotted by the Committee were on professional ability and management capacity. Further the Corporation has amended the rules and narrowed it down in 1991 by reducing the interview marks to 40 per cent only. Moreover, after examining the record, which was examined by the High Court, as well, it appears the Committee was neither guilty of arbitrariness nor it violate any rule or regulation in allotting the marks which of course were very law in interview.''

24. The aforesaid judgments, relating to the same respondent and interpreting the same Rules with which we are concerned, would demonstrate the determination of following principles:-

1. Post of Dy. Manager (Systems/Maintenance) is an upper managerial post. The mode of filling up such post is either direct recruitment or promotion. It is a selection post which is to be filled up on the basis of merit.

It may further be added that Rule 22 of the Recruitment and Promotion Rules stipulates that promotion to selection grade could be on the basis of ''Rigourous Selection on Merits''. Therefore, the contention of the petitioner that the post was required to be filled on the basis of 'seniority subject to fitness' may not be correct. One may refer to paras 5 and 6 of the RandP Rules, which read as under:-

''5. In respect of grades other than 1/2, 3/6, 7/8, 9 and 10/12... which provides for appointments partly by promotion and partly by direct recruitment, direct recruitment vacancies are filled on the basis of selection from amongst employees in the immediate below grade of the same cadre................

6. In certain cases the Recruitment Rules provide that the appointment to the grade shall be by direct recruitment or by promotion. In such cases, as and when vacancy arises the management decides at its discretion, which method of recruitment be adopted to fill the vacancy, namely by direct recruitment or by promotion. In the case of promotion para 2 applies. In the case of direct recruitment the procedure indicated in para 5 applies.''

Thus, direct recruitment may imply selection from within and, therefore, procedure followed by the respondent No. 1, namely, selection from within, on the basis of merit for the post of Dy. Manager (Systems/Maintenance), which is an upper managerial post cannot be faulted with.

2. While making promotion to the post in question prescription of 50% marks for interview was followed as upheld by this Court as well as the Supreme Court in Capt. K.C. Shukla v. Indian Airlines and Ors.

3. Merger of two cadres and drawal of combined seniority list was the result of settlement with the Association. It was the implementation of this settlement that the combined seniority list was drawn and Mr. M.M. Narula was included in the list of eligible candidates to be considered for promotion to the post in question. He, therefore, cannot be treated as ineligible.

4. The RandP Rules are not having statutory force but are administrative in nature.

25. Once we deduce the aforesaid ratio from various cases, those very contentions raised in the writ petition stand answered against the petitioner. The petitioner, therefore, is not justified in her challenge to the promotions of the respondents No. 2 and 3 on the ground that they were junior to the petitioner and had wrongly superseded the petitioner by not adhering to the principles of ''seniority-cum-fitness''. It is clear that the respondents rightly followed the method of selection by the touchstone of merits. It may be mentioned at this stage that in the counter affidavit filed on behalf of the respondents it is explained that the respondent No. 3 had an outstanding rating in his Annual Performance Appraisal. Therefore, he was found suitable by the Selection Board and hence he superseded the petitioner in the said exercise. It is also stated by respondent No. 1 that both respondents No. 2 and 3 had better ratings in their APAs in comparison to the petitioner for the three years immediately proceeded the selection to the post of Dy. Manager (Systems/Maintenance).

In view of the aforesaid judgments which include the Division Bench judgment in the case of R.C. Parthi (Supra), and thus binds me, I am unable to accept the view taken by the learned Single Jude of the Calcutta High Court in the case of Capt. Digvijay Singh (Supra). It may be interesting to note at this stage that the Division Bench of this Court in the case of Capt. K.C. Shukla (Supra) agreed with the view of the learned Single Judge of the Calcutta High Court in Capt. Digvijay Singh (Supra). However, that Division Bench judgment of this Court stands overruled by the Supreme Court as already indicated above.

26. As far as eligibility of the respondent No. 2 to be considered for the post in question is concerned, his inclusion in the combined seniority was the result of merger of the two cadres while implementing the settlement of the employer with the Officers Association. This exercise is upheld by the learned Single Judge of this Court in the case of Joydeb Chakraborty (Supra) relating to this very promotion wherein the petitioner was arrayed as the respondent No. 9. Appeal against this judgment was filed before the Division Bench. However, because of non-appearance of the appellant the said appeal being LPA No. 75/94 was dismissed for non-prosecution vide order dated 7th May 2001.

27. This leaves us with only one contention of the petitioner, namely, even when there was a settlement, it necessitated amendment in the Rand P Rules which are statutory in character and since the rules were not amended, promotions had to be made as per those Rules. It was argued that as respondent No. 2 belonged to another cadre, namely, hardware cadre, he could not be considered for promotion as per the existing Rules, namely, Rules 4, 5 and 20, which mandate promotion to higher grade within the cadre on the basis of seniority. While answering this contention one has to keep in mind that the RandP Rules are not statutory in character. This is so held by this Court in R.S. Adhikari v. Indian Airlines Corporation (Supra). Therefore, although it would have been proper to amend the RandP Rules as well, on the lines of the settlement, non-amending the Rules may not make the promotion invalid when the purported exercise was the result of settlement between the parties. It may be significant to add that this very promotion exercise wherein the respondent No. 2 was also promoted has been upheld by this Court in Joydev Chakraborty and Ors. v. Indian Airlines and Ors. (Supra), which was a judgment rendered 10 years ago. Respondent No. 2 was promoted 14 years ago. He was much more senior to the petitioner in terms of length of service. For all these years, settlement with the Association has been implemented. Therefore, it would not, even otherwise, be proper to upset the promotion of the respondent No. 2 at this stage after such a long period. It is possible that on the basis of his promotion as Dy. Manager (Systems/Maintenance) in the year 1990 the respondent No. 2 might have got further promotions as well. It may also be added that in so far as the petitioner in concerned, she was also considered for the post but not selected on the basis of comparative merit.

28. In the circumstances, no relief can be given to the petitioner in this case. Before parting, I may add that the petitioner, who appeared in person, had argued her case with much dexterity, precision and deftness. It may, however, be her ill fate that most of her challenges stand covered against her by series of judgments while interpreting the same Rules of the Indian Airlines Corporation. Thus, even while putting my appreciation of the petitioner's endeavor on record, I am not in a position to give her any relief.

29. This petition is accordingly dismissed with no order as to cost.