Delhi High Court
Shakti Sharan Tripathi & Ors. vs Airport Authority Of India & Anr. on 31 August, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
1. WP (C) No. 2136 of 2010
% Decided on: 31.08.2010
SHAKTI SHARAN TRIPATHI & OTHERS ........Petitioners
Through: Mr. Rakesh Tiku with
Mr. Prakash Gautam, Adv.
Versus
AIRPORT AUTHORITY OF INDIA & ANR. ....Respondents
Through: Mr. P.S. Patwalia, Sr. Adv. with
Ms. Anjana Gosain, Adv. for R-1.
Ms. Manjusha Wadhwa, Adv. with
Mr. Kanwaljeet Singh, Section
Officer, for R-2/UOI.
and
2. WP (C) No. 2133 of 2010
ARUN KUMAR JAIN & OTHERS ........Petitioners
Through: Mr. Rakesh Tiku with
Mr. Prakash Gautam, Adv.
Versus
AIRPORT AUTHORITY OF INDIA & ANR. ....Respondents
Through: Mr. P.S. Patwalia, Sr. Adv. with
Ms. Anjana Gosain, Adv. for R-1.
Ms. Manjusha Wadhwa, Adv. with
Mr. Kanwaljeet Singh, Section
Officer, for R-2/UOI.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this common judgment I shall dispose of the two
similar writ petitions filed by the petitioners against the
respondents wherein the petitioners were selected for the posts of
Manager (Electronics) and Manager (ATC) but were later on
rejected on the ground of less number of vacancies.
2. Brief facts of the case relevant for the disposal of the
present writ petition are as under:
3. An advertisement No. 2/2007 was issued in December,
2007 by the respondent (AAI) for filling up of 68 posts of Manager
(ATC) and 171 posts of Manager (Electronics) inviting applications
by way of direct candidature and the applicants were required to
take competitive examination. These posts were disintegrated into
the following categories:
Manager (ATC) Manager (Electronics)
WP(C)2133 of 2010 WP(C)2136 of 2010
General 36 General: 88
OBC: 18 OBC: 46
SC: 10 SC: 25
ST: 04 ST: 12
Total 68 Total 171
4. The last date of applying for the post was 24.12.2007.
The requisite qualification for the post is detailed below:
Qualifications:
Manager (ATC)
Manager (Electronics): First class Engineering
degree in
Electronics/Telecommunic
ations/Radio Engineering
Electrical with
specialization in
Electronics or M.Sc.
degree or its equivalent
with Wireless
Communications,
Electronics, Radio Physics
or Radio Engineering as a
special Subject or
equivalent with first Class.
5. The written examination was conducted on 09.11.2008
and the selected candidates out of the written examination were
called for the interview from 6-9th August, 2009. The results
pursuant to the interview were declared on the website on
01.12.2009, selecting 68 candidates. The result was in order of
merit and the petitioners were declared successful. The name of
the petitioners also appeared in the selected list of candidates.
However, in January, 2010 a fresh list was issued selecting only 35
candidates for the post of Manager (ATC), leaving aside the
petitioners herein by reducing the number of posts to almost 50%.
Aggrieved by the same the petitioners filed the writ petition
bearing no. W.P.(C) No. 2133/2010.
6. In the category of Manager (Electronics) the results were
declared in June 2009. The petitioners were declared successful in
the written examination and were called for interview. Pursuant to
the interview, a final list of 87 candidates was issued who were
finally selected for the post of Manager (Electronics). The
petitioners were not included in the said list. Aggrieved by the
same, the petitioners have filed the writ petition being W.P.(C) No.
2136/2010.
7. The case of the respondent no.1 is that the
advertisement clearly stipulated the condition that the number of
post may vary. It is further the case of the respondent that since
the recruitment rules of AAI (the R&P Regulations) have undergone
a change, it would not be appropriate to recruit such a large
number of candidates in a haste especially as the post of Manager
(ATC) is a highly technical one, it was thought appropriate to call
for only the best talent available.
8. As per the case of the respondent no.1 later on it was
decided that the experience required for the post of Manger (ATC)
should be revised to "essential" (as per the revised R&P
regulations) where as originally as per the advertisement the
experience required was "desirable". Accordingly it was decided
that the stipend also needed to be revised to Rs. 60,000/- pm (as
per the amended R&P regulations) this was as opposed to Rs.
13,000/- mentioned in the advertisement. It is submitted that
appointment letters have been sent to the selected candidates.
9. Further the case of respondent no.1 is that, due to these
key changes made in the recruitment rules, the respondent no.1
has decided to cut down on the number of vacancies to be filled for
the post of Manager (ATC). The underlying reason behind reducing
the candidates for the post of Manager (ATC) is to have the finest
candidates in the aviation industry.
10. Initially, the petitioners in both the petitions claimed their
relief against respondent no.1 but in their rejoinder they have
relied upon the Minutes of meeting dated 26.04.2010 held under
the Chairmanship of the Joint Secretary, Ministry of Civil Aviation
calling upon the Respondent no.1 to appoint the required number
of candidates for the post of Manager (Electronics).
11. The respondent no.1 has however, submitted a review of
the decision taken in the Minutes of Meeting dated 26.04.2010
before the Ministry of Civil Aviation who had participated in the
meeting and a view was taken for appointing these petitioners to
the respective posts.
12. Later on with the consent of the petitioners and
respondent no.1 vide order dated 19.07.2010 the respondent no.2
was impleaded as a respondent in the array of parties. The stand
of the respondent no.2 has been brought on record by way of a
letter dated 05.08.2010 which is reflected in the aforesaid letter as
well as oral submission of the learned counsel for the respondent
No.2. that the meeting dated 26.04.2010 was held under the
Chairmanship of the Joint Secretary of the respondent No.2
wherein the Director of respondent No.1, its Under Secretary and
also other senior officials of respondent No.1 participated.
13. The said meeting was held with a view to fill up
recruitment action plan in ATC and CNS Disciplines. Necessity to
hold the said meeting arose because there was shortage of
manpower in the critical Air Traffic Control (ATC) and
Communication and Navigation Services (CNS) and so as to take a
policy decision to accelerate filling up of 515 vacancies at various
levels in ATC and 1115 vacancies at various levels in CNS
Disciplines of respondent No.1.
14. In para 3 of the minutes of the said meeting, it was noted
that process of recruitment for 68 posts of Manager under ATC
Discipline and 171 posts of Manager (CNS) Discipline had been
undertaken. Stand of the respondent No.1 to the effect that the
offer of appointment had only been issued to 35 candidates under
ATC and 87 candidates under CNS Discipline was also noted.
15. Para 3 of the minutes of the said meeting it was
observed as under :
"after discussion, it was decided that since
the offer of appointment for the remaining
candidates had been held up for no valid
reasons, the same be issued to remaining
33 candidates under ATC Discipline and 84
candidates under CNS Disciplines for
appointment under Manager Grade so as to
fill up originally declared vacancies of 68
and 171 in ATC and CNS Disciplines
respectively."
16. It was submitted by the respondent No.2 that the copy
of the minutes of the meeting dated 26.4.2010 containing decision
taken in the said meeting was duly circulated and sent to Chairman
of respondent No.1 and other senior officials vide letter dated
6.5.2010. Accordingly, it was expected that the decision taken in
the joint meeting dated 26.4.2010 would be taken due note of and
would be complied.
17. It was also contended that thereafter the respondent
No.2 sent reminder dated 17.5.2010 to the Chairman of respondent
No.1 for the action taken report. The Chairman of respondent No.1
sent letter to the respondent No.2 received on 26.5.2010 whereby
the reasons were stated for non compliance and the respondent
No.2 was apprised of pendency of present 2 cases before this Court
and made a request seeking to review the decision communicated
in the minutes followed by another note of the respondent No.1,
initiated through its General Manager (Law) dated 4.8.2010 almost
on the same lines.
18. It is argued by the learned counsel for the respondent
No.2 that since litigation was pending, the respondent No.2 left
the legal effect of the same for this Court to decide.
19. The contention of the petitioners is that it is evident
from the minutes that it was more in the realm of a policy decision
to have a firm plan for making recruitment to these managerial
posts both under direct recruitment as well as promotion category.
In para 4 of the said minutes it was also decided to give some kind
of relaxation as one time measure. However, that relaxation was
not for the direct recruit category to which the petitioners belong
but was confined to the promotee category. The petitioners after
having came to know about the said minutes, had filed a copy of
the same on record along with the rejoinder.
20. The submission of Mr. Rakesh Tikku, learned counsel for
the petitioners is that once the respondent No.2 has taken its
decision, and the said decision has admittedly been conveyed to
respondent No.1 in writing, therefore, the said respondent No.1 is
bound to follow the same as under Section 40 of the Airport
Authority of India Act, 1994, power is vested with the Central
Government, which is Ministry of Civil Aviation to issue directions
to respondent No.1. The respondent No.1 has no alternative but to
fill up the vacant posts both under the direct recruitment as well as
promotion quota, which was engaging the attention of the
respondent No.2, is in the realm of policy decision as the said
minutes extensively deals with various issues including the issue
of giving offer of appointment to the petitioners and it was not an
isolated decision to give an appointment to any particular person.
21. Mr. Patwalia, Sr. counsel appearing on behalf of
respondent No.1 has argued that respondent No.1 had advertised
in 2007 the above mentioned posts and after the results were
declared on account of three major reasons which are given
below :
a) 1st time large scale recruitment
were done and merit had gone down in
order to invite better talent from outside, it
was decided to fill up the remaining posts
from inviting applications from outside by
giving better scales i.e. earlier the stipend
was Rs.13000/- resulting into a salary of
Rs.20000/- to Rs.25000/- but later on after
the amendment of the rules, it was
increased to Rs.60,000/-.
b) At present all the candidates are
the serving employees of AAI. The earlier
advertisement had the requirement of
experience being desirable but was
changed to be an essential requirement
subsequently.
c) The mode of selection criteria was
changed by keeping the marks of the
written examination of the subject upto
70% and the remaining to 30%. Earlier it
was 50% each.
d) It was also decided to stream line
the functioning in both the subjects of
electronics and CNS Cadres.
(Communication, Navigational Services).
22. It is argued that the petitioners have no vested right to
be appointed just because their names are shown in the selection
lists and even in the matter of post of ATC, only the list of
successful candidates was declared. The respondent No.1 is not
bound by the minutes of the meeting held by its Ministry as it was
only a coordination cell committee meeting which is held every
month and it was in fact not an error as many formalities were to
be complied with before its compliance. The meeting was chaired
by Joint Secretary whereas the Chairman of respondent No.1 is
senior to him and the Joint Secretary is also the Board Member of
respondent No.1 which is chaired by the Chairman. It is argued
that when the respondent No.2 was apprised about the pending
litigations by a letter dated 26.05.2010 a request was made to the
respondent No.2 for review of its minutes of meeting dated
26.04.2010, however, no decision was taken by the respondent
No.2 who has already left the matter to the discretion of this Court.
23. Mr. Tikku, learned counsel for the petitioners has given
his point-wise reply to the submissions made by respondent no.1
and the same are as follows:
a) The first point of the respondent No.1 regarding the new R &
P Regulations were being framed proposing to make certain
qualifications as essential instead of desirable has no force
as it is settled law that any R & P Regulations can only have
prospective effect and these would be retrospectively
applied to the advertisement which was issued in December,
2007 wherein it was specified that "the eligibility with respect
to age, experience will be determined as on 1.10.2007".
Even otherwise, the qualifications at the Managerial level,
which as per respondent No.1 is now proposing to be
essential, are the ones which are already possessed by the
petitioners which is not disputed by the respondent No.1 in
its counter affidavit. Thus, an objection in this regard is
legally misplaced.
b) The second plea namely proposal to enhance the stipend for
these future vacancies from Rs.13,000/- to Rs.60,000/- per
month, it is submitted that it is for the petitioners to take a
call as to what remuneration they will have. During the
course of argument Mr. Tikku has agreed that the
petitioners are content to receive the same remuneration
which has been granted and is being granted to those
candidates to whom the letter of appointment have been
issued and the petitioners claim parity.
c) Coming to the third plea i.e. proposal to insert some question
relating to certain areas in written test for filling up new
vacancies, the petitioners in the present matter have already
qualified the test and also met the qualifications which
were required as per the advertisement. According to the
petitioners, no prospective changes can deprive the
petitioners of the benefit of their success in the written
examination already held.
24. Mr. Patwalia, learned Senior counsel for the respondent
No.1 has referred the following decisions in support of his
submission :
a) Batiarani Gramiya Bank Vs. Pallab Kumar & Ors.
(2004) 9 SCC 100.
b) S.S. Balu & Anr. Vs. State of Kerala & Ors.
(2009) 2 SCC 479.
c) Bangalore Medical Trust Vs. B.S. Muddappa & Ors.
(1991) 4 SCC 54.
d) Poonam Verma & Ors. Vs. Delhi Development Authority
(2007) 13 SCC 154.
e) Bangalore Development Authority & Ors. Vs. R.
Hanumaiah & Ors. 2005 (8) Scale 80.
f) State of UP Vs. Neeraj Awasthi & Ors.
2005 (10) Scale 286
25. In the Batiarani Gramiya Bank's case (supra), the
Supreme Court had noted that after the advertisement was
published, examinations were held, the Bank took a decision to
not filling up any of such posts and the reasons for not filling up
any of the posts was noted by the Apex Court in para 6 of the said
judgment which included the fact that the Bank had incurred
losses of more than Rs.7 crores, the target in the various anti
poverty programmes could not be met on account of the loss, the
ban imposed by the state government on the opening of further
branches, in view of the loss; due to poor recovery performance,
the rural banks became ineligible for refinance from NABARD; and
due to the award given by the financial implications of the National
Industrial Tribunal on 30.4.1990 granting benefits with
retrospective effect from 1987. In view of this arrears payable to
the existing employees alone came to Rs.2 crores and
establishment expenditure increased by 150%. Thus, the Bank in
that case took a decision not to fill up any of the vacancies
because of financial non viability coming to second case it is to be
noted that in that case also decision was taken on facts not to fill
up any of the vacancies. It was so noted in para 3 of the said
judgment. For these reasons the Apex Court had taken a view that
no mandamus can be issued to force the government to fill up any
vacancies.
26. In the present matters facts are materially different.
Each case depends on its own facts and a close similarity between
one case and another is not enough because even a single
significant circumstance may alter the entire aspect. Reliance in
this regard has been placed by the petitioners in the two cases
namely Zee Telefilms Limited and Another Vs. UOI reported as
AIR 2005 SC page 2677 and UOI Vs. Amritlal Manchanda AIR
2004 SC page 1625.
27. It is not a case of respondent No.1 that there
was no need to fill up the vacancies which were advertised.
On the contrary, it is on record that in the month of July
of this year respondent No.1 has itself advertised in the
newspaper for filling up the additional vacancies for
these very posts. Thus, the posts for which the
applicants/petitioners had appeared for examination not
only subsist but an advertisement in the month of July, 2010 have
again been issued for additional posts at the same level.
28. Therefore, there is a force in the submission of Mr. Tikku
that there is no justification for the respondent No.1 to restrict the
offer of letter of appointment only to the extent of approximately
50% of the candidates who were found eligible and were selected.
The petitioners have referred in this regard a judgment of the Apex
Court in the case of UOI Vs. Rajesh P.U. reported as 2003 VII SCC
page 285.
29. The most important aspect of these matters is when this
Court examined the original record/file produced by the respondent
No.2 during the course of argument it was found that there is a
noting dated 14.6.2010 by Sh. Alok Shekhar, Director (s) which is
relevant to refer herein which reads as under :
"2. The issue is about action plan for
recruitment in ATM and CNS disciplines in AAI.
A meeting in this regard was taken by JS(S),
wherein AAI representatives were also
present. The minutes of the meeting can be
seen from 12-17/C.
3. Various decisions were taken in this
meeting. However, the most contentious
issue discussed was about the recruitment
for 68 posts of Managers under ATM discipline
and 171 posts of Managers under CNS
discipline, which was undertaken by AAI.
These posts were advertised and requisite
number of candidates was selected. However,
appointment letters were issued to only 35
candidates (out of 68 posts advertised) under
ATM discipline and 87 candidates (out of 171
posts advertised) under CNS discipline. No
valid reasons were given by AAI for this
decision. Hence during the meeting held by
JS(S), it was decided that offer of appointment
to the remaining candidates may be issued
immediately, as it had been held up for no
valid reasons.
3. Now vide U.O. Note placed at FR,
Chairman, AAI has given several reasons for
this decision. In nutshell, the reasons inter alia
is as under :
i) In such large scale
recruitment, merit has gone down for
candidates lower in the merit list, and
it is much below the desired level.
ii) The posts were advertised
in 2008, and recruitment rules have
undergone a change ever since.
iii) These posts will be included in
the fresh advertisement.
iv) The pay scale has also
undergone a change.
v) Selection criteria need to be
changed.
vi) The cadre needs to be re-
structured.
vii) There is no legal impediment, as
the authority can increase or
decrease the number of vacancy, as
was mentioned in the advertisement.
4. Going through the reasons mentioned
above, there does not seem to be any logical
reason for not issuing offer of appointment to
the selected candidates. All reasons forwarded
by the Chairman, AAI, seem to be an
afterthought, and cannot stand the scrutiny of
law. The posts have been advertised and
selection process has been completed. Now,
withholding the issue of „letter of appointment‟
on the pretext of above reasons defies all logic.
5. It is against the principles of natural
justice to deny offer of appointment to
candidates after their selection, when all the
reasons mentioned above should have been
taken into consideration at an appropriate
stage, before starting the recruitment process.
There is absolutely no justification in with
holding the offer of appointment to a select
number of candidates, after completing the
selection process and issuing offer of
appointment to the some candidates.
6. Hence the decision taken in the
meeting under reference seems to be in order.
We may therefore ask AAI to implement the
decision immediately and issue offer of
appointments to the remaining candidates
selected for the posts of Managers in the CNS
and ATM disciplines, without any further delay.
7. Submitted for approval of Secretary.
Sd/-
(Alok Shekhar)
Director (S)/14.6.2010"
30. Thereafter the file was sent to the Secretary for his
approval who on 14.6.2010 has made the following noting.
"I totally agree. After completing the
selection process there is no valid
justification for withholding the result. In
the case of Manager ATM, the roll numbers
of all 68 successful candidates were
published on the website but were
withdrawn later and after (illegible) months
(!) a list of 35 was issued. ATM/CNS wing
is already facing manpower shortage.
These recruitment will pave the way for
more vacancies at the lower level which
can be readily filled by AAI. For approval of
„X‟ pl.
Sd/-
(illegible)
14.06.2010"
31. At the end of this noting, it is written "let us discuss with
Chairman AAI" dated 22.6.2010.
32. There is another noting dated 12.07.2010 wherein it was
mentioned that the matter was discussed with Chairman of
respondent No.1 in the presence of Secretary and he promised to
recruit it with open mind.
33. From the notings dated 14.06.2010, 22.06.2010 and
12.07.2010 it appears clearly that on these dates the respondent
no.2 was aware about the pendency of litigation in this court as
prior to these dates the respondent no.1 sought the review of
meeting dated 26.04.2010 still the respondent no.2 did not agree
with the suggestion of respondent no.1 rather the same very
contentions raised by respondent no.1 in the present litigation were
rejected.
34. Hence all the submissions made by the respondent No.1
are without any substance. Under these circumstances, the
decisions referred by the respondent No.1 are not applicable in the
facts and circumstances of the present matters. Section 40 of AAI
Act is squarely applied to the facts of the present cases.
35. Admittedly, the respondent No.1 has issued letter of
appointment to almost 50% of the persons who were found to be
selected. The case of the petitioners therefore is not different
from those who have been already issued letter of appointment
and therefore, restricting of the offer of appointment for the same
set of persons by 50% is in violation of Article 14 of the Constitution
of India.
36. In view of the fact that in the month of July, 2010 the
respondent No.1 has again issued advertisement for the same very
post and it is obvious that the respondent No.1 need to fill the
same very vacancies, then where is the question of financial
constraints or any prohibition and legally sustainable compulsion.
37. Therefore, both the writ petitions are allowed. A writ of
mandamus is issued to respondent No.1 to offer the letter of
appointment to the petitioners. This more so when the respondent
No.2 exercising its power under the provisions of the Act had
already issued a direction to that effect based on a joint meeting.
38. No costs.
MANMOHAN SINGH, J.
AUGUST 31, 2010
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