Airports Authority Officers ... vs Union Of India & Anr.
2008 Latest Caselaw 1308 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.1662/2008

%                                 Date of Decision : August 11, 2008

Airports Authority Officers
Association & Ors.                                        ...Petitioners

                          Through : Mr. Arvind K. Sharma,
                                    Advocate

                                 Versus

Union of India & Anr.                                     ....Respondents

Through : Mr. Prag Tripathi, Addl. Solicitor General with Ms. Anjana Gosain and Mr. Varun Sarin, Advocates for respondent No.2

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment?

2.         To be referred to the Reporter or not ?               No

3.         Whether the judgment should be reported
           in the Digest ?                                       No


SUDERSHAN KUMAR MISRA, J. :

CM Nos.3204/2008 & 4017/2008

1. These two applications have been filed by the petitioners.

By these, the petitioners are seeking an ad interim stay

restraining the respondents from implementing the draft

Recruitment and Promotion Regulations, 2005 announced on

25.5.2006. In application CM No.3204/2008, they have sought the

following reliefs :

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(a) grant an ad-interim ex-parte stay whereby restraining the respondents from implementing the Draft of Recruitment and Promotion Regulations 2005;

(b) set aside all promotions that have taken place in pursuance of the Draft Recruitment and Promotion Regulations 2005, by the respondents;

(c) direct the respondents to produce the complete records including Rules and Regulations adopted for both the Divisions on 31.3.2007 in pursuance to Section 18(7) of AAI Act, 1994, and other records pertaining to the issue involved in the present matter, before this Hon'ble Court;

(d) pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the present case.

2. CM No.4017/2008 came to be filed because after filing

of this writ on 27.2.2008, the respondent issued a circular dated

29.2.2008. In the application, the following reliefs are sought :

(a) grant an ad-interim ex-parte stay of the circular bearing No.F.No.32013/26/2008-DPC dated 29th February, 2008 for the selection interview for the post of Airport Director at the Joint General Manager level to be held on 15th March, 2008.

(d) pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the present case.

3. As regards CM No.4017/2008, it was ordered on 18 th March,

2008 that since the appointments in question have already been

processed, any appointments made shall be subject to the

outcome of this writ petition and if any appointment is made, the

same could not in any manner create any equity in favour of the

new appointee in view of the pendency of the present writ

petition, and that the said appointee would abide by the result of

this petition.

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4. Thereafter, further arguments were heard on the scope of

the interim orders that are required on these applications.

Petitioner No.1 claims to be the Airports Authority Officers

Association which is suing through its President. Petitioners No.2

to 7 are other employees of the Civil Aviation Department,

Government of India, working under the Director General of Civil

Aviation.

5. The petitioner's services, along with all other employees of

the Civil Aviation Department working under the DGCA were to

be on mandatory deputation with the National Airports Authority

on the same terms and conditions of service until they are duly

absorbed by the National Airports Authority or repatriated to their

parent cadre. Petitioners claim to have been absorbed in the

regular service of the National Airports Authority with effect from

2nd October, 1989. They claim that the National Airports Authority

had assured its employees that it would formulate the terms and

conditions of the services at the earliest possible date.

Petitioners claim that however the regulations governing

conditions of their services that were required to be framed under

Section 38 of the National Airports Authority Act, 1985 were not

framed and the National Airports Authority continued to follow

the rules existing in the erstwhile Civil Aviation Department.

6. According to the petitioners, in terms of Section 38(4) of the

National Airports Authority Act, 1985, no regulation made by the

Authority under that Section shall have effect, until it has been

WP(C) No.1662/2008 Page PAGE 11 of NUMPAGE \*Arabic 11 approved by the Central Government and published in the official

Gazette.

7. In 1994, the Airports Authority of India Act was enacted

bringing both, the National Airports Authority, as well as the

International Airports Authority, under one unified authority

called, the Airports Authority of India. There, two separate

divisions were created. The terms and conditions of service of the

employees in these two divisions remained the same as they

were before the creation of the Airports Authority of India.

8. Section 18 of the Airports Authority of India Act provides

that all employees of the erstwhile International Airports

Authority and also of the National Airports Authority, shall

become employees of the International Airports Division and the

National Airports Division respectively, of the newly constituted

Authority. It is also provided that all such officers shall hold office

on the same terms and conditions, including remuneration etc.,

as held under the previous entities. It was provided that they

shall continue to hold office on their previous terms until the

expiry of one year from the appointed day and that the period so

fixed may be extended by the authority upto a maximum of one

year. Sub-section (7) of Section 18 also provides that after the

expiry of a period of one year or the extended period, all

employees transferred or appointed to the Authority, other than

those opting not to remain with the Authority within the

prescribed period, shall be governed by the rules and regulations

WP(C) No.1662/2008 Page PAGE 11 of NUMPAGE \*Arabic 11 made by the Authority in respect of the service conditions of the

officers and other employees of the said Authority.

9. In addition, the newly constituted authority is empowered

under Section 42, to make regulations not inconsistent with the

Airports Authority of India Act. There, in sub-section 4, it is also

provided that no regulation made by the Authority under this

section shall have effect until it has been approved by the Central

Government and published in the official Gazette; while sub-

Section (6) postulates that the first regulations made under sub-

Section (5) by the Central Government shall remain in force until

such time the Authority makes regulations and publishes them in

the official Gazette.

10. It is the petitioners' case that on 31st March 1997, the Board

of the Airports Authority of India passed a resolution stating that

every employee will hold office in the same terms and conditions

existing in the respective divisions. After taking legal opinion of

the Ministry of Law and Justice on this, the Civil Aviation

Department Recruitment and Promotion Rules (R & P Rules)

became applicable to the employees of the National Airports

Division as regulations.

11. The petitioners claim that the respondents have been

illegally replacing the existing designations in the Civil Aviation

Department (R&P) Rules, applicable to the National Airports

Division, with the designations existing in the R&P guidelines,

that are being followed in the International Airports Division.

They claim that designations existing in the recruitment rules,

WP(C) No.1662/2008 Page PAGE 11 of NUMPAGE \*Arabic 11 "applicable to the National Airports Division in pursuance to

Section 18(7) of the AAI Act, 1994 were unlawfully amended by

the respondent No.2 without the approval of Central Government

in the name of adopting unified designations and pay scales."

The petitioners' case is that "designations inconsistent with the

recruitment and promotion rules adopted as regulations in

pursuance of Section 18(7).... cannot be adopted unless amended

designations are notified in official Gazette." The petitioner

claims that this action violates Section 42(6) of the Airports

Authority of India Act, 1994 and also goes against the ratio of the

judgment of this Court in the case of S. C. Duggal & Ors. Vs.

National Airports Authority, 1993 [1] Delhi Lawyer 220.

12. At the same time, the petitioners contend that the Study

Committee constituted on 8.11.2002 to explore the possibility of

retrospective promotions to executives under the Flexible

Complimenting Scheme and/or the Career Progression Scheme,

rendered a report that was untenable for a number of reasons.

They contend that despite this, the said report was accepted by

the second respondent on 20.12.2003.

13. The petitioners are also aggrieved of the introduction of a

formula whereby, according to the petitioners, Assistant

Managers having 5-8 years of service on the operational side and

juniors with 3 years of service in the technical side were

promoted. The petitioners claim that the respondent No.2 is

functioning contrary to the terms of appointment as defined

under Section18(2) of the Airports Authority of India Act read with

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said Act. Similarly, the petitioners are aggrieved of the action of

respondent No.2 granting eligibility to Assistant Manager (P&A)

with two years' service for appointment as Manager (P&A) in

December, 2002. The petitioners are similarly aggrieved of

promotions granted under the Flexible Complimenting Scheme.

They also claim that the respondents are not granting career

progression to the petitioners although they are eligible for the

same in terms of the letter of respondent No.2 dated 08.08.2002.

14. The petitioners are also aggrieved of the implementation of

the draft Recruitment and Promotion Regulations announced on

26.5.2006 by respondent No.2 because, according to the

petitioners, the Regulations are first to be accepted by the

Central Government and notified in the official Gazette and, since

the same has not been done, they cannot be implemented. It

appears that the petitioners had also protested against these

Regulations on 19.6.2006 itself.

15. The stand of respondent No.2 is that as a matter of fact,

several members of the petitioner itself have already been

benefited by the new rules and that there has been no disclosure

of this fact by the petitioner. It is therefore not clear whether the

petition represents all the constituent members of petitioner

No.1. In any case, it cannot be denied that on this issue, the

interests of at least some of the constituents of petitioner No.1

are bound to be at variance with the rest. It was therefore

incumbent upon petitioner No.1 to fully disclose the relevant

WP(C) No.1662/2008 Page PAGE 11 of NUMPAGE \*Arabic 11 facts on this aspect of the matter right at the outset. It is also

contended that since the resolution dated 31.3.1997 came about

more than 11 years ago, it is impossible to believe that the

petitioners' Association was unable to approach this Court in a

timely fashion. They also point to the resolution passed by the

first petitioner on 10.8.2006 to oppose the implementation of the

impugned draft R&P Regulations, 2005 to show that even

thereafter the petitioners have waited for more than 1½ years to

approach this Court.

16. It is also pointed out that the guidelines were forwarded to

all establishments of the Authority by a letter dated 29.12.2006

and therefore, it is obvious that the petitioners had full

knowledge of the same at least from that day onwards. In the

same context, it is pointed out that approximately 4500

promotions/ recruitments have already been made on that basis.

Furthermore, the respondents contend that while finalising these

guidelines, the views of five other officers' Associations as also

their comments and suggestions were duly considered.

17. The main grievance of the petitioners appears to be that the

draft regulations have not been published in the official Gazette.

In response, the stand of the respondents is that the decision not

to publish the same in the official Gazette is based on the opinion

received from the Ministry of Law and Justice in this behalf which

also stated, inter alia, that it was not necessary for the said

regulations to be accepted by the Government of India, i.e.

respondent No.1 herein.

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18. Furthermore, the learned Additional Solicitor General of

India contends that the proposition being canvassed by the

petitioners in effect means that if relevant rules and regulations

are not framed by an employer within a timeframe envisaged

either under some regulation or Statute, that employer/authority

loses the power to frame any regulations in future; and that such

a proposition cannot be countenanced in law. He states that

such a proposition is alien to the very fundamentals of

administrative law.

19. It is obvious that the draft Recruitment and Promotion

Regulations, 2005, that were announced nearly 2½ years ago,

have been in operation for a considerable length of time.

Promotions as well as additional recruitments have been made in

terms of these Regulations. The petitioner association was also

fully aware of these Regulations and the on-going promotions and

appointments in terms of the same. Whilst finalising these

guidelines, the views of the employees' association were also

taken. According to the respondents, the views of five other

officers' associations along with their comments and suggestions

were duly considered. The petitioner association is not the only

body of employees who are affected by the impugned

Regulations. They do not even constitute the majority of the

employees. They have also not disclosed their membership or

the fact that some members of their own association may well

have benefited from these Regulations. The specific contention in

this regard raised by respondent No.2 by way of preliminary

WP(C) No.1662/2008 Page PAGE 11 of NUMPAGE \*Arabic 11 objections has not been traversed by the petitioners, except for

the bald statement that the petition is not hit by delay and

laches, and that the petitioners reserve their right to address the

issue in regard to delay and laches at the time of hearing. The

claims of respondent No.2 that the said R&P Regulations, 2005

have been in existence since February, 2005 and till date, more

than 4500 promotions and recruitments have already taken

place, and that the petitioner has decided to challenge the said

Regulations only now after nearly 3½ years when more than

4500 employees out of 20,000 have been benefited in some way

or the other, have also not been traversed, except for the

statement that the entire contents of paragraphs 4 and 5 of the

preliminary objections, "are denied in toto."

20. There is therefore no gainsaying the fact that the petitioner

organisation has been fully aware of these regulations for nearly

three years. It is also impossible to believe that the petitioners

have remained unaware of all the recruitment and promotions

that have been carried out pursuant to these regulations over the

past three years or so. It was always open to the petitioners to

challenge these regulations in a timely fashion. In addition,

learned Addl. Solicitor General has contended that in the present

competitive environment, where employers are competing to

employ and retain able personnel, if this court were to attach any

rider to appointments made by the second respondent, its task

would become even more onerous.

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21. Under the circumstances, I do not think it appropriate to

pass any interim orders in this matter at this stage restraining the

respondents from further implementation of the aforesaid

Recruitment and Promotion Regulations, 2005 or to set aside all

promotions that have taken place in pursuance to the said

Recruitment and Promotion Regulations, 2005 as prayed for in

CM No.3204/2008. To do so would cause immense disruption in

the working and efficiency of the second respondent. However,

all further actions taken by the second respondent under the said

regulations shall be subject to the final outcome of this petition.

Further, it would be open to the petitioners to apply for the

production of any records of the respondents in support of their

case, in case the same becomes necessary henceforth.

22. As regards CM No.4017/2008, the interim orders dated 18 th

March, 2008 are made absolute till the disposal of the writ

petition.

23. The applications are disposed of accordingly.

Dasti.

Sudershan Kumar Misra, J.

August 11, 2008 skw

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