Ms.Chitra Sharma vs Airline Allied Services Ltd
2008 Latest Caselaw 885 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.1375/2007

%                     Date of decision : 01.07.2008


Ms.Chitra Sharma                              .......      Petitioner
                           Through:   Mr.Ajit Kumar Sinha, Advocate.

                                  Versus


Airline Allied Services Ltd                  .......  Respondent
                          Through:    Mr.Milanka Chaudhary, Advocate.



CORAM :-
 HON'BLE MR. JUSTICE ANIL KUMAR

     1. Whether reporters of Local papers may                YES
        be allowed to see the judgment?
     2. To be referred to the reporter or not?               YES
     3. Whether the judgment should be reported              YES
        in the Digest?


ANIL KUMAR, J.

1. The petitioner has challenged downgrading of her post/status

from Check Cabin Crew to cabin crew on her transfer from Mumbai to

New Delhi and the unethical practice of appointing the Cabin Crew on

contract basis though the post of Senior Cabin Crew is of permanent

nature.

2. The relevant facts for appreciating the controversies are that the

petitioner was appointed as a Senior Cabin Crew for a period of three

years from 7th November, 1996 to 6th November, 1999. The appointment

of the petitioner was contractual and petitioner was initially employed

at New Delhi. The appointment letter of the petitioner categorically

stipulated that the agreement may be extended or renewed by mutual

written agreement between the petitioner and the respondent. The

petitioner asserted that respondent is a company whose affairs are

entirely controlled by Ministry of Civil Aviation, Government of India

and it is an instrumentality of the `State‟ under Article 12 of the

Constitution of India. The agreement between the petitioner and the

respondent has been extended from time to time and is now uptil 30th

September, 2009.

3. After her appointment the petitioner subsequently completed the

period of probation and continued working during the extended period

as Senior Cabin Crew. While serving as Senior Cabin Crew petitioner

after due selection was given the post/status of Check Cabin Crew.

After becoming a Check Cabin Crew the petitioner worked at New Delhi

and thereafter she was transferred to Mumbai. When the petitioner was

transferred to Mumbai she continued to hold Check Cabin Crew

post/status and she was not appointed to the post of Check Cabin Crew

at Mumbai pursuant to fresh selection.

4. While working as Check Cabin Crew at Mumbai, the petitioner

sought transfer to Delhi due to serious heart ailment of her mother.

Pursuant to transfer sought by petitioner by communication dated 24th

August, 2005, the respondent agreed for transfer of petitioner from

Mumbai to New Delhi on 30th September, 2005 on temporary basis for

six months and petitioner was transferred with a stipulation that she

would be entitled for one SOD passage for self from Mumbai to Delhi.

On her transfer from Mumbai to New Delhi the petitioner was relieved

from Mumbai on 4th October, 2005 for a period of six months and

petitioner was advised to join at Delhi on 5th October, 2005. While

transferring the petitioner from Mumbai to New Delhi it was also

categorically stipulated that she will not be entitled for transfer benefits.

The petitioner joined in October, 2005 at Delhi and continued working o

the post of Check Cabin Crew and she was paid executive flying

allowance of Rs.40/- per hour and checkship qualification allowance till

March, 2006

5. The petitioner received a letter dated 24th March, 2006 on 28th

March, 2006 intimating her that she has been transferred from Mumbai

to New Delhi on compassionate grounds and therefore, she will not hold

Check Cabin Crew status/post at Delhi. Therefore she has not been

paid executive flying allowance of Rs.40/- per hour and checkship

qualification allowance from April, 2006 which is apparent from the

salary slips produced by the petitioner from March, 2006.

6. Though the petitioner was transferred for six months by letter

dated 3rd October, 2005 her transfer was made permanent on

compassionate ground by order dated 6th March, 2006 pursuant to

which letter dated 24th March, 2006 was sent to the petitioner

intimating her that she will not hold Check Cabin Crew status/post at

Delhi. At the time she was transferred in October, 2005 on

compassionate ground, it was not disclosed to the petitioner that on

transfer she will not be entitled for post/status of Check Cabin Crew

nor the petitioner had consented to the transfer on compassionate

ground subject to condition that on transfer she will not be given Check

Cabin Crew post/status at New Delhi.

7. The petitioner protested against denial of check Cabin Crew

status/post to her on transfer from Mumbai to New Delhi on the ground

that Check Cabin Crew status/post is given on the criterion of

experience, knowledge, quality and talent of an individual which are

assessed on the basis of a written and oral examination and on the

transfer the same could not be withdrawn. The petitioner it seems was

intimated that according to rules the petitioner is not entitled for Check

Cabin Crew status/post and, therefore, petitioner by letter dated 5th

April, 2006 demanded the copy of the rules and gave a notice for the

supply of the same to her. The petitioner also addressed another letter

dated 16th April, 2006 protesting against denial of check Cabin Crew

status/post on transfer for which she was selected earlier and

according to her on transfer the same could not be withdrawn from her.

It was asserted by the petitioner that the transfer must be made on an

equivalent post. It was also contended by the petitioner that the post of

Sr. Cabin Crew and Check Cabin Crew are not equivalent considering

the status and nature and responsibilities of the two posts/status.

8. The petitioner further contended that since she objected to

withdrawal of her post/status of Check Cabin Crew, the respondent

started harassing the petitioner by making false allegations. Some of the

allegations were communicated to the petitioner by letter dated 27th

March, 2006. The petitioner replied to same and explained about the

decision of off loading rostered cabin crew Ms.Liu Gonmei contending

that off loading her was the commander‟s decision and not her decision.

She justified the assessment of different cabin crew. She clarified that

any remarks regarding any of the cabin crew was just the assessment

in the valuation on the merits of exhibited performance and proficiency

on the day the checks were carried out by her in discharge of her

duties.

9. The petitioner sent another communication dated 29th May, 2006

stating that though she had asked for the relevant circular/office order

regarding withdrawal of her check Cabin Crew post/status on transfer

from Mumbai to New Delhi, however, it was not given to her and,

therefore, she asked atleast to show her the said circular/office order so

that she may understand under what guidelines the check Cabin Crew

post/status was withdrawn. The petitioner also contended that she is

unable to understand as to how her request to see the copy of the

circular/office order declining her the check Cabin Crew post/status

could be refused to be shown to her. By letter dated 29th May, 2006 the

petitioner again requested for the copy of company policy/rule under

which the check Cabin Crew post/status has been declined to her and

under which provision she could be directed to appear for the interview

again for selection to the post/status of Check Cabin Crew. The

petitioner, thereafter, also demanded the copy of the relevant

rule/circular/notice by her letters dated 1st September, 2006 and 13th

September, 2006.

10. On protracted correspondence by the petitioner regarding the

circular/office order, she received a letter dated 18th September, 2006

from the Manager (Personnel) that the circular/office order relating to

policy of withdrawal of Check Cabin Crew post/status on transfer on

compassionate grounds can be seen by her. Consequently, the

petitioner sent a letter dated 28th September, 2006 for seeing the

circular regarding withdrawal of Check Cabin Crew post/status to her.

The petitioner has protested about the alleged proposed policy extract

for inter regional transfers issued by Chief of Personnel Mr.Anil Kumar

Verma which is as under:-

"A large number of cabin crew have been making requests for inter regional transfer due to their personal requirements as and when such requests are accepted, the individual transferred to the region is placed at the bottom of seniority of the designation held by her in her existing region.

The seniority of the cabin crew is at present being maintained region wise and the promotions are also reflected regionally as such a two cabin crew with a specific date of journey may not hold the same designation in two different regions.

It has been observed that over a period of time anomaly has arisen particularly in Delhi region in as much as that the cabin crew coming on transfer from other regions though junior to the cabin crew in terms of date of joining have been ranked higher on account of their having been promoted as senior cabin crew in the respective region due to operational requirements.

With a view to stream line the system as also to correct the above anomaly it is recommended as follows:-

As and when a cabin crew is transferred to operational requirement from one region to another she will carry her seniority and be placed at the appropriate place in terms of her date of joining in Alliance Air..

In case transfers effected on the request of cabin crew on compassionate ground, she will be placed at the appropriate place in terms of date of joining in Alliance Air.

As number of check cabin crew is determined base wise, check cabin crew transfer on compassionate grounds will not hold the check ship in the region of transfer.

Submitted for approval

ED(AO) sd

Anil Kumar Verma Chief of Personnel

11. The petitioner asserted that the alleged policy was only a note

which was submitted for approval by Chief of Personnel and it could not

be a policy decision. Relying on the said note it was contended that it

only suggests that in case of transfer on compassionate ground a Senior

Airhostess was to be placed at appropriate place in terms of date of

joining the respondent. Though the alleged proposal also contemplated

that cabin crew transferred on compassionate grounds will not hold the

check-ship in the region of transfer but it did not stipulate that in order

to get the status/post of Checkship again in the region of transfer, the

transferred employee on compassionate ground will again have to

undergo the process of selection for grant of said status/post. The

petitioner also asserted that if the post/status of Checkship was

granted on merits after due selection and not on the basis of period of

service, it could not to be withdrawn on inter regional transfer on

compassionate grounds. In the circumstances it has been contended

that the petitioner cannot be denied the Check Cabin Crew post/status

and withdrawal of the said post tantamount to reversion of the

petitioner to a lower post/status and the action of the respondent is

illegal and unjustified. Since the petitioner was initially appointed as Sr.

Cabin Crew on 7th November, 1996 and had been selected for Check

Cabin Crew post/status on merit she could not be asked to reappear

for interview again for selection to the status/post of Check Cabin Crew

after holding it for almost nine years.

12. Regarding the allegations of dereliction of duty, the petitioner

categorically pleaded that the decision to off load one of the rostered

Cabin Crew Ms. Liu Gonmei was of the Captain G.S.Sidhu, Sr.

Commander for the safe operation of the flight which was also

confirmed by him to the ED (AO) of the Respondent and so on the basis

of said incident of off loading no dereliction of duty can be imputed

against the petitioner. Despite this the petitioner was kept `off duty‟. On

the representation being made by the petitioner on 29th March, 2006,

she was intimated by communication dated 30th May, 2006 that

consequent to her transfer on compassionate grounds her `Checkship‟

status was withdrawn and she has already been intimated about it by

communication dated 24th March, 2006.

13. The petitioner also pleaded that the rules and guidelines are clear

and specific that upon transfer, the employee has to be posted on the

equivalent post. The petitioner further asserted that at the time of

transfer no letter was issued to her indicating that she will lose her

Check Cabin Crew post/status. Regarding the alleged policy it was

contended that it appears to be a mere proposal which was not

approved and circulated to the employees. Though the respondent is

alleging that the rank and seniority of the petitioner remains

undisturbed and there is no demotion of rank or seniority, however, the

respondent did not disclose the fact that an executive flying allowance

of Rs. 40/- per hour is paid in addition to the regular perks to those

who holds Check Cabin Crew post and a further qualification allowance

of Rs.300/- is also paid. The petitioner also averred that there is

nothing to show that the Check Cabin Crew in a particular region has

to be 20%. It was also averred categorically that in Delhi the posts of

Check Cabin Crew are more than 20% and in the circumstances, the

entire plea of the respondent is misleading and the respondent has

made contradictory allegations.

14. The respondent contested the pleas and contentions of the

petitioner and filed a counter affidavit of its company secretary. The

respondent opposed the prayer of the petitioner seeking regular

appointment. The learned Counsel for the petitioner, however, at the

time of arguments restricted his submissions in respect of prayer (b) in

the writ petition seeking a direction to the respondent not to downgrade

the Checkship status of the petitioner after her permanent transfer on

compassionate grounds in March, 2006 which was awarded to her on

merits in February, 1997. Regarding this plea of the petitioner it was

alleged that the writ jurisdiction of the High Court cannot be invoked to

have the said status by the petitioner. It was contended that the rank

and seniority of the petitioner remains undisturbed and there is no

demotion of rank or seniority complained in the writ petition.

15. The respondent contended that whenever an inter regional

transfer is allowed on the request of an employee on compassionate

ground, and such an employee holds Checkship status in her present

region, then whether she will hold Checkship status in her region of

transfer would depend on the requirement in that region. An employee

who is denied the Checkship status in the region of transfer cannot

make a grievance out of the same as the denial of the said status is not

by way of punishment but the relevant consideration for the denial is

absence of requirement as well as to place such an employee at an

appropriate place at par with others of the same seniority/status

employed at the region of transfer. It was further contended that the

strength of Check Cabin crew in the particular region is restricted to

not more than 20% of the total strength of the cabin crew. Due to Inter

Regional Transfer the above set proportions suffer a serious setback as

the number of Cabin Crew and Check Cabin Crew are determined base

wise. It was further contended that the respondent therefore, adopted a

policy that the Check Cabin Crew transferred on the compassionate

grounds to a new region will not hold the Checkship in the region of

transfer but whenever the vacancy will arise the transferred crew on the

compassionate ground who had earlier held the checkship status in the

earlier region/base will have the opportunity to compete for Check

Status in the new region/base. In the circumstances, it was asserted on

behalf of the respondent that the petitioner on transfer was not entitled

to Checkship status and when the vacancy arose she was asked to

compete and she was called for interview, however, the petitioner chose

not to appear for interview and therefore, she is not entitled for the

post/status of Check Cabin Crew.

16. The respondent also filed sur rejoinder dated 15th March, 2008

and alleged that the petitioner had been transferred to an equivalent

post of senior cabin crew and the petitioner‟s grievance is misconceived,

false and baseless. In reply to the sur rejoinder, the petitioner alleged

discrimination as in case of some of the Check Cabin Crew on transfer

on compassionate ground, their post/status of Check Cabin Crew was

not withdrawn. The respondent, thereafter, filed another additional

affidavit dated 20th May, 2008 justifying not holding the selection for

the post of Check Cabin crew of Ms. P.Seth on her transfer on

compassionate grounds for the reason that the said transfer took place

prior to alleged policy dated 16th September, 2005 and therefore, the

policy was not applicable at that time. Regarding the vacancies at New

Delhi it was contended in the affidavit dated 20th May, 2008 that on

account of decline of operations, though there are 13 vacancies,

however, the existing strength was sufficient to manage the operations

of the flights. The respondent, however, did not disclose whether the

vacancies existed at the time the petitioner was transferred to New

Delhi on compassionate grounds in October, 2005 or that there were no

vacancies in March, 2006 when the Check Cabin Crew post/status of

the petitioner was withdrawn.

17. I have heard the learned counsel for the parties at length. This

cannot be disputed that the petitioner was transferred from Mumbai to

Delhi on 3rd October, 2005 and on permanent basis on compassionate

grounds by order dated 6th March, 2006. The said order did not

stipulate that on transfer she will lose her check Cabin Crew

post/status for which she was selected after a written test and an

interview. By a subsequent communication dated 24th March, 2006 it

was communicated to her that as her transfer is on compassionate

grounds, she will not hold the post of Check Cabin Crew in Delhi where

she had been transferred. While selecting the petitioner for the post of

Check Cabin Crew pursuant to the written test and the interview, it was

not disclosed that the post will be lost on inter regional transfer on

compassionate grounds. By another communication dated 30th May,

2006 it was communicated to the petitioner that as per the policy on

transfer on compassionate grounds as and when a selection for the post

of Check Cabin Crew will be held in the region of transfer, she will be

provided an opportunity to appear for personal interview to adjudge her

suitability for the post. The relevant portion of the communication

dated 30th May, 2006 addressed to the petitioner is as under:

" This is to inform you that as per the existing policy, if a check cabin crew is transferred from one region to another on her own request on compassionate grounds, she will not hold the checkship in the region of transfer. As and when a selection for the post of Check Cabin Crew is held in the region of transfer such a candidate is provided an opportunity to appear for personal interview directly to adjudge her suitability for the post.

Pursuant to various representations given by the petitioner, she

was again intimated by communication dated 21st September, 2006

that her competence has to be reassessed and therefore the petitioner

was directed to appear for viva voce. The relevant portion of the

communication dated 21st September, 2006 is as under:

" In regard to the off loading of cabin crew on CD 7134 of 25 March, 2006, the decision was essentially taken by th

the commander of the flight Capt. G.S.Sandhu. It is, however, observed that you gave conflicting feedback to the commander about the said cabin crew. You first informed him that the cabin crew had poor knowledge about emergencies but subsequently went back to him saying that the cabin crew may be permitted to operate the flight as she has been instructed by IFS Head to take her on board. Considering all the circumstances, I have decided that the letter issued to you in this regard be rescinded. You will however adhere strictly to the laid down procedure of your department.

I find from the records that a clear cut policy was laid down in this regard by E.D (Airlines Ops.) vide his approval dated 16th September, 2005. The policy addressed

anomalies resulting from seniority fixation arising due inter regional transfer.

The following procedure would also be followed while selecting Check Cabin crew in future:

1. Whenever check status is filled up in the new region/base to the crew moving on compassionate grounds will have the opportunity to compete for the same.

2. Crew on competing will have a waiver of written test since she has already cleared the same earlier. In case no written test was cleared while getting earlier check status , crew will be entitled to waiver of written test at the discretion of ED (Airline Ops.) based on her performance and conduct.

Since you had already attained checkship in the past, I have decided the written test will be waived in your case. You may compete for the checkship by appearing in viva voce to reassess your competence. You will be intimated the date and venue for the viva voce separately.

18. The Learned Counsel for the respondent rather submitted that

Check Cabin Crew is only a status and not a post. The plea of the

counsel on behalf of respondent is contrary to the documents of the

respondent. In the letter dated the 30th May, 2006 it was stated by the

respondent that the Check Cabin Crew is a post and that the petitioner

shall be provided an opportunity for personal interview to adjudge her

suitability for the said post. The respondent has referred to `Check

Cabin Crew‟ as post in other communications also. The post of Check

Cabin Crew has different emoluments and the selection is made for the

said post on the basis of a written and oral examination. Circular dated

13.12.2005 and interview call letter show that the post of Check Cabin

crew is a selection post higher in status and rank for which selection is

made on the basis of written test and interview. Therefore the plea of

the counsel for the respondent that it is not a post but only a status is

not acceptable. The learned counsel for the respondent has also not

shown any rules of the respondent to show that the Check Cabin Crew

is only a status and not a post and what is the difference under the

rules of the respondent between „post‟ and „status‟.

19. This has not been denied by the respondent that on account of

withdrawal of the petitioner from the post of Check Cabin Crew, the

petitioner has been paid Rs.40/- per hour less as flying allowance and

another qualification allowance of Rs.300/- has also been not paid to

the petitioner since April, 2006. This fact is also apparent from the pay

bills of the petitioner of March, 2006 and April, 2006 which is not

denied by the respondent. From the pleas and contentions raised by the

respondent, it is apparent that two posts, Sr. Cabin Crew and Check

Cabin Crew are not equivalent. The true criterion for equivalence is to

consider their status, nature and responsibilities of the duties attached

to two posts. In the notification dated 13th December, 2005 issued by

Chief of IFS it is stipulated that the Check Cabin Crew is expected to be

free from prejudice and strong likes and dislikes, capable of recording

fair assessment and shall be known for their impartiality and they

should be capable of instilling high standards of discipline among the

air crews and shall have balance attitude towards them and therefore,

the eligibility for promotion to `Check Cabin Crew‟ has not been solely

left on service seniority. The eligibility conditions were, therefore, laid

down as those having more than two years of cabin crew satisfactory

service for screening process. For selection weightage is give for

technical competence, work knowledge and other human factors.

Whereas Senior Cabin crew is only an up-gradation on completing a

minimum period of service but Check Cabin Crew is appointed after

selection. Circular dated 13.12.2005 and interview call letter show that

the post of Check Cabin crew is a selection post higher in status and

rank for which selection is made on the basis of written test and

interview. The learned counsel for the respondent is unable to

substantiate the plea raised in the counter affidavit that the rank and

seniority of the petitioner remains undisturbed and there is no

demotion of rank and seniority. The petitioner was appointed to the

post of `Check Cabin Crew‟ after written test and interview. On

transfer on compassionate grounds in October, 2005 it was not

disclosed to her that her post of `Check Cabin Crew‟ will be withdrawn.

Later on in March, 2006 it was disclosed to her that her `Check Cabin

Crew‟ post has been withdrawn and she will have to get selected again

for the said post and her suitability and competence for the said post

shall be adjudged on the basis of an interview.

20. The Supreme Court while assessing the post of principal and

reader though having the same pay scale in Vice Chancellor, L.N.Mithila

University Vs Dayanand Jah, (1986) 3 Supp SCC 7 had held that true

criterion of equivalence is the status, nature and responsibility of the

duties attached to various posts. The Supreme Court in para 8 at page

10 had held as under:

"8...........The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Although the two posts of Principal and Reader are carried on the same scale of pay, the post of Principal undoubtedly has higher duties and responsibilities. Apart from the fact that there are certain privileges and allowances attached to it, the Principal being the head of the college has many statutory rights, such as:

(i) He is the ex officio member of the Senate. (ii) He has the right to be nominated as the member of the Syndicate. (iii) As head of the institution, he has administrative control over the college Professors, Readers, Lecturers and other teaching and non-teaching staff. (iv) The Principal of a constituent college is also the ex officio member of the Academic Council of the university. (v) He has the right to act as Centre Superintendent in the university examinations. It is thus evident that the High Court was right in holding that the post of Reader could not be regarded as an equivalent post as that of Principal in the legal sense. Maybe, when the affairs of a college maintained by the university are mismanaged, the Vice-Chancellor may, for administrative reasons, transfer a Professor or Reader of any department or college maintained by it to the post of the Principal of such college, but the converse may not be true. While the Professors and Readers by reason of their learning and erudition may enjoy much greater respect in society than the Dean or Principal of a college, it does not follow that the post of Principal must be treated as equivalent to that of a Reader for purposes of Section 10(14) of the Bihar State Universities Act, 1976, as amended."

21. Petitioner was appointed to the post of Sr. Cabin Crew. In 1997

after becoming eligible for selection, she participated in the process of

selection and after a written test and interview she was selected to the

said post. The nature of duties of the post of Check Cabin Crew are

different from the nature of duties of Sr. Cabin Crew. Merely because

some of the duties of the Sr. Cabin Crew and Check Cabin Crew may

overlap, does not lead to inference that the nature of duties of the two

posts are the same. A Sr. Cabin Crew is not entitled for appointment to

the post of `Check Cabin Crew‟ merely on account of his/her seniority.

The emoluments paid to the Check Cabin Crew are different and higher

than that of Sr. Cabin Crew which fact has not been controverted by the

respondent. The learned counsel for the respondent has not shown

anything to substantiate that despite more allowance being paid to the

`Check Cabin Crew‟, under the rules the two posts are the same. In the

circumstances, the plea of the respondent that on transfer the rank of

the petitioner has remained undisturbed cannot be accepted. The post

of Check Cabin Crew is different from that of Sr. Cabin Crew in status,

nature and responsibilities and withdrawal of the petitioner from the

said post amounts to reversion of the petitioner. The petitioner cannot

be removed from a post merely on the basis of alleged policy which is

also alleged to be a proposal allegedly approved by one of the Executive

Director of the respondent.

22. The learned counsel for the respondent also submitted that if a

Check Cabin Crew is transferred on compassionate grounds his/her

suitability is to be reassessed as there are variations in the requirement

and parameters of the responsibilities of different region. This plea has

not been taken by the respondent in their counter affidavit, sur

rejoinder and additional affidavit. If a Check Cabin Crew is transferred

from one region to another by the respondent on account of

administrative exigencies his/her post of `Check Cabin Crew‟ is not

withdrawn nor his/her suitability is reassessed despite alleged variation

in the requirement and parameters of different regions. Then on what

grounds and under which rules the suitability and competence of Check

Cabin Crew on transfer on compassionate grounds is to be reassessed?

Why a Check Cabin Crew who is transferred at his/her request on the

compassionate ground should lose his/her post of Check Cabin Crew or

she/he will become unsuitable and incompetent and has to

demonstrate and prove his/her suitability and competence again and

those who are transferred by the respondent on account of other

administrative reasons remain fit for the post of `Check Cabin Crew‟,

has not been explained by the respondent.

23. The respondent has not given any other instance when the Check

Cabin Crew post/status was withdrawn on transfer of such a Check

Cabin Crew on compassionate grounds. The respondent has been

unable to give any justifiable reason for withdrawal of post of Check

Cabin Crew on transfer on compassionate grounds. An order of transfer

cannot deprive anyone of the existing rights. It is well settled that where

executive order results in civil consequences, prior thereof, the

principles of natural justice are required to be complied with. An

executive power in absence of any statutory rules cannot be exercised

which would result in civil or penal consequences. If order of transfer,

substantially affect the status of an employee, the same would be

violative of conditions of service and thus will not be sustainable and

transfer must be made to an equivalent post. This is not the case of the

respondent that there was no post of Check Cabin Crew available at

New Delhi and the petitioner had agreed to give up the post of Check

Cabin Crew at New Delhi on her transfer on compassionate ground.

Consequently on the basis of alleged proposal of the Chief of Personnel

which was allegedly approved by the ED (AO), an employee of

respondent cannot be deprived of her post, unless the employee herself

agrees to go to a different or lower post on account of transfer on

compassionate ground.

24. The respondent has also tried to justify the withdrawal of the post

of `Check Cabin Crew‟ from the petitioner obliquely in various

correspondence exchanged between them on the ground of dereliction of

duty by the petitioner. If the post of the petitioner of Check Cabin Crew

had to be withdrawn on the ground of alleged dereliction of duty,

petitioner was entitled for a proper enquiry and a reasonable

opportunity of being heard. From the explanation given, it is apparent

the decision to off load another rostered cabin crew was of the

Commander of the Air Craft Capt. G.S.Siddhu which is apparent from

his communication dated 29th March, 2006 addressed to The Executive

Director (AO). The difference in opinion between the Sr. Commander

Capt. G.S.Sidhu and Ms. Simrath Chopra cannot be imputed only on

the basis of feedback given by the petitioner in discharge of her duties

and cannot be termed, dereliction of duty by the petitioner. The

withdrawal of `Check Cabin Crew‟ post from the petitioner cannot be

justified on this ground nor it can be sustained in the facts and

circumstances nor the learned counsel for the respondent has justified

it on this ground.

25. The respondent next contended that on inter-regional transfer,

transfer to the post of `Check Cabin Crew‟ depends on the requirement

in that region. It was also contended that an employee who is denied

the `Check Cabin Crew‟ post in the region of transfer cannot make a

grievance out of the same, as it is not by way of punishment but the

relevant consideration for denial, is absence of requirement as well as to

place such an employee at an appropriate place at par with others of

the same seniority/status employed at the region of transfer. The plea

of the respondent is that the strength of Check Cabin Crew is not more

than 20% of the total strength of the Cabin Crew. The respondent,

therefore, meant that when the petitioner was transferred on

compassionate ground to New Delhi in October, 2005 there was no post

of `Check Cabin Crew‟ available at the New Delhi region and, therefore,

she could not be appointed to the said post on her transfer. However, in

October, 2005 the post of Check Cabin Crew was not denied to the

petitioner as she has been paid emoluments of post of `Check Cabin

Crew‟ up till March, 2006. In March, 2006 the post of Check Cabin

Crew was withdrawn from the petitioner and it is rather contended that

she will have to compete again to demonstrate her suitability for the

post which is to be reassessed. The respondent is unable to show as to

how a Check Cabin Crew will become unsuitable and incompetent on

transfer on compassionate ground and will remain suitable after an

inter-regional transfer for administrative exigencies. If the strength of

Check Cabin Crew was not to be more than 20% or appointment to the

post of `Check Cabin Crew‟ could not be made in October, 2005 or

March, 2006 the respondent ought not to have transferred the

petitioner or should have taken her consent to appoint on another post

subsequent to her transfer. In order to justify that there were no post of

`Check Cabin Crew‟ in the transferred region, the respondent ought to

have given the details of how many total number of Cabin Crew were in

the New Delhi region and how many `Check Cabin Crew‟ were there and

that no post of `Check Cabin Crew‟ was available at New Delhi. The

respondent did not disclose these relevant facts in the first instance.

Rather an attempt was made to conceal this information. It was only

after the petitioner categorically contended in rejoinder dated 16th April,

2008 that the total strength of Cabin Crew was 84 on 27th December,

2004 and, therefore, even according to the allegations of the respondent

there could be 16 posts of Check Cabin Crew out of which only 4 posts

of Check Cabin Crew in Delhi were filled and 12 posts were lying

vacant, when the respondent took a different stand contending that

because of decline in the operations of the respondent, the existing

strength of Check Cabin Crew already available at Delhi region at that

time was sufficient enough to manage the operation of flights. This plea

was not taken by the respondent. At the time of transfer of the

petitioner, it was not disclosed to her that there is no work for the post

of `Check Cabin Crew‟ in the region of transfer and so it will be

withdrawn from her and she cannot be appointed to the said post. The

plea of the respondent is that as per alleged policy, an employee will

lose her post on which he/she was appointed after proper selection.

Apparently the respondent has taken different stands solely with a view

to deny the post of `Check Cabin Crew‟ to the petitioner on her transfer

from Mumbai region to New Delhi. The respondent has not given any

facts in respect of alleged decline in operations of the respondent and

any decision taken by the respondent to appoint less number of `Check

Cabin Crew‟ on this ground. Therefore in the present facts and

circumstances, the respondent cannot be permitted to deny the post of

`Check Cabin Crew‟ to the petitioner on the ground that the vacancies

were not available at New Delhi when the petitioner was transferred in

October, 2005 and thereafter in March, 2006 on account of alleged

decline of operations of the respondent.

26. Therefore, for the foregoing reasons the action of the respondent

to withdraw the post of Check Cabin Crew from the petitioner on her

transfer on compassionate grounds and appointing her to the post of

Senior Cabin Crew cannot be sustained on any of the grounds as has

been raised by the respondent nor on the basis of alleged policy it can

be held that the petitioner could be denied the post of Check Cabin

Crew on her transfer nor the action of the respondent to reassess the

competence of the petitioner and re-select her for the said post of

`Check Cabin Crew‟ can be sustained in the facts and circumstances.

27. Therefore, for the foregoing reasons the writ petition is allowed

and the action of the respondent not to appoint the petitioner to the

post of `Check Cabin Crew‟ on her transfer to New Delhi region and

withdrawal of the same from March, 2006 is set aside. The respondent

is, therefore, directed to appoint the petitioner to the post of `Check

Cabin Crew‟ from the date of her transfer. In the facts and

circumstances, the petitioner shall also be entitled for continuity of her

service as `Check Cabin Crew‟ from the date her appointment to the

said post was withdrawn. The petitioner shall also be entitled to all

consequential benefits. The petitioner is also awarded a cost of

Rs.10,000/- against respondent in the facts and circumstances.

July 01, 2008. ANIL KUMAR J.

„Dev‟