Sh. J. Chandra Hassan vs M/S. Indian Airlines Ltd. And Anr.
2013 Latest Caselaw 2689 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) No.2333/1997
%                                                             1st July, 2013

SH. J. CHANDRA HASSAN                                        ..... Petitioner
                   Through:              Mr. Samir Sagar Vashistha, Advocate
                                         with petitioner in person.

                          versus

M/S. INDIAN AIRLINES LTD. AND ANR.           ..... Respondents

Through: Ms. Ratna D. Dhingra, Advocate with Ms. Bhavna Dhami, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?          YES


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner-Sh. J. Chandra

Hassan praying for grant of promotion to the post of Assistant

Manager/Security Officer/Vigilance Officer (post being same only

nomenclature being different) w.e.f 22.8.1994.

2. Before me, on behalf of petitioner the entitlement to promotion

is prayed on two counts. The first count is that the petitioner was

empanelled alongwith one Sh. J. Sathyanarayan in the recruitment process

pursuant to the recruitment process of the year 1993 and the petitioner had

higher marks. As per the recruitment process of the year 1993, the panel

was prepared for one year w.e.f 11.11.1993. In this selection process of the

year 1993 for which the panel was effective till 10.11.1994, petitioner

received 70.05% marks whereas Sh. J. Sathyanarayan secured only 60%

marks. It is accordingly argued that the petitioner having received higher

marks in the process of selection which included the written test and the

interview, Sh. J. Sathyanarayan could not have been appointed over and

above the petitioner. Second count which is urged for seeking promotion is

that the petitioner was a Scheduled Caste (SC) candidate and since in the

relevant recruitment process besides four general category candidates there

was vacancy for one SC candidate and one ST candidate, and if Sh. J.

Sathyanarayan (SC candidate) is to be taken as validly appointed to the post

of Assistant Manager, then the petitioner pursuant to the Ministry of Home

Affairs notification dated 2.4.1979 was entitled to convert the unfilled

vacancy of ST into SC vacancy inasmuch as the ST vacancy was a carry

forward vacancy. It is argued that after three consecutive recruitment years

of the ST vacancy arising in terms of the circular dated 2.4.1979, ST

vacancy can always be converted in the absence of an ST candidate to an SC

vacancy and the petitioner being an SC candidate ought to have been

appointed to the post.

3. So far as the first submission made on behalf of the petitioner is

concerned, the petitioner places reliance upon the recruitment and promotion

rules of the respondent No.1 filed as Annexure-C to the writ petition. The

second proviso to Rule 9 of Chapter II pertaining to direct recruitment and

promotion rules is relied upon and which provides that only on all things

being equal, a seniority of a person or a higher grade of a person will entitle

such person to be appointed in preference to the other person in the panel.

The relevant proviso of the said Rule 9 reads as under:-

"PROVIDED that in selecting the candidates, all things being equal, existing employees of the Corporation from the grades or inter-linked grades immediately below shall be given the first preference and "Retrenched", or ex-employee of the former constituent airlines shall be given second preference provided they are suitable in all respects"

4. In response, on behalf of respondents reliance is placed upon

the guidelines which have been issued in terms of the respondent No.1‟s

guidelines/letters dated 28.3.1973. The relevant portion of the guidelines

which is relied upon are paras 18 and 19 of the guidelines for Selection

Board issued on 28.3.1973 and which read as under:-

"18. Selection from within Indian Airlines Successful Candidates (i.e. those who have obtained 60% marks and above) will be placed on a panel in order of

seniority. For this purpose persons in the higher grade will be ranked senior to persons in the lower grade. Within each grade seniority will be reckoned by length of service in the grade. Those of the candidates who have obtained 80% marks and above will be termed as „Outstanding‟. They will be given priority for appointment but, on appointment, their seniority vis-a-vis persons appointed in the same batch with them will be in the order shown in the panel mentioned above.

19. Direct Recruitment from outside Indian Airlines: If there are any successful internal candidates (i.e. those who have obtained 60% marks and above) they will be placed on top of the panel in order of seniority as mentioned in para 18 above."

5. On the basis of aforesaid paras, it is contended by the

respondents that even if a person in the selection process receives higher

marks, such person is not entitled to be appointed if in the panel there is a

person of the organization who is ranked senior to the person though he has

received lower marks in the selection process. Great stress is laid on the

first line of para 18 which states that successful candidates will be placed on

a panel in order of seniority and persons in higher grade will be ranked

senior to persons in lower grade. It is argued that since it is not disputed on

behalf of the petitioner that Sh. J. Sathyanarayan was senior to the petitioner

in the post of Security/Vigilance Assistant, therefore, for promotion to the

post of Assistant Manager/Security Officer/Vigilance Officer the petitioner

will be ranked below to Sh. J. Sathyanarayan.

6. In my opinion, the argument as urged on behalf of petitioner

relying upon the second proviso to Rule 9 of the recruitment rules is correct

and has to be accepted. The argument and the submission which is urged on

behalf of the respondents carries no substance whatsoever for two reasons.

The first reason is that the guidelines cannot be used to amend specific

recruitment and promotion rules. Even if the recruitment and promotion

rules are not statutory, the amendment to such rules necessarily will have to

be by means of a specific amendment which must do away with the direct

application and categorical language of the second proviso to Rule 9 which

specifically states that only on all things being equal, seniority or higher

grade will be given preference, and meaning thereby if all things are not

equal a person who has received higher marks in the direct recruitment

process has to be appointed and a person who has received lesser marks in

the direct recruitment process cannot be placed above the person with the

higher marks merely on the ground of seniority or higher grade. Nothing

contained in paras 18 and 19 of the guidelines issued on 28.3.1973 in any

manner whittles down the scope and effect of the second proviso to Rule 9

of the recruitment and promotion rules. The second reason for rejecting the

argument urged on behalf of the respondents is that even assuming that there

is some sort of conflict between paras 18 and 19 of the guidelines dated

28.3.1973 and the recruitment and promotion rules then there will have to be

harmonious construction/interpretation of the rules unless the language does

not permit of harmonious construction. As already stated above, nothing

contained in paras 18 and 19 states that even if marks are different i.e a

person receives higher marks, yet he will still be placed in the merit panel

lower than the person who receives lesser marks merely on the ground of the

fact that the person who receives lesser marks is otherwise senior or of a

higher grade. Paras 18 and 19 of the guidelines dated 28.3.1973 are only in

the nature of explanation to the second proviso to Rule 9 of the recruitment

and promotion rules and in no manner repeals the second proviso to the

aforesaid Rule 9.

7. I, therefore, hold that the respondents were not justified in

giving promotion to Sh. J. Sathyanarayan over the petitioner in terms of

panel which was approved on 11.11.1993 and which was valid up to

10.11.1994. There is no valid basis for the respondents to justify their stand

in their counter-affidavit that seniority and grade will take preference even

though a candidate in the direct recruitment process receives higher marks

than the person who is given promotion merely on the ground of seniority or

higher grade.

8. So far as the first argument urged on behalf of the petitioner for

converting the ST vacancy into an SC vacancy is concerned, the argument

does not merit acceptance. This is for the reason that it is the common case

of both the parties that the third year in which the entitlement exists for an

SC candidate to convert the ST vacancy into an SC vacancy is that the ST

vacancy has not remained filled for the third direct recruitment year i.e the

third year need not be a third calendar year or the financial year for arising

of the ST vacancy but has to be the third recruitment year in which the

recruitment actually takes place. In the present case, on record, it is quite

clear that the ST vacancies existed only at two points of time till 1993/1994.

For the ST vacancy of the year 1979 first recruitment was in the year 1986.

In the year 1979, the petitioner was not even the employee of the respondent

no.1. This vacancy of 1979 as per the roster filed before me remained

continuously unfilled till 1986. Recruitments took place in this regard for

the ST vacancy firstly in the year 1986 and secondly in the year 1993/1994

and thirdly in the year 1997. Thus so far as the recruitment process of the

year 1993 which is in question is concerned, the said year in 1993 will only

be the second recruitment year and not the third recruitment year.

Admittedly, as per the common case of the parties, it is only in the third

recruitment year for the ST vacancy that the ST vacancy be converted to an

SC vacancy and for 1993/1994 the same was only a second year. In the third

year of recruitment which is in the year 1997, the ST vacancy was filled up

by an ST candidate. If in the year 1997 when the third recruitment took

place, the ST vacancy was filled in by an ST candidate namely Sh. Kumud

and hence there does not arise conversion of the ST post/vacancy into an SC

post/vacancy on the basis of the Government of India‟s circular dated

2.4.1979. This argument urged on behalf of the petitioner therefore is

rejected.

9. In view of the fact that the petitioner succeeds so far as the first

contention is concerned, inasmuch as that the petitioner could not have been

refused promotion to the post of Assistant Manager/Vigilance

Officer/Security Officer in the recruitment process of the year 1993/1994 on

the ground that as Sh. J. Sathyanarayan was senior to the petitioner, the

petitioner will have to be granted seniority as an Assistant Manager/Security

Officer/Vigilance Officer with effect from the date of creation of panel on

11.11.1993 and subject to vacancy existing, otherwise the date will be the

date of vacancy. The petitioner, however, has not worked at the higher post

of the Assistant Manager/Security Officer/Vigilance officer and was granted

promotion to such post only from the year 2007 as per the statement made

before me by the counsel for the petitioner on instructions from the

petitioner who is present in person in Court. Since the petitioner has not

worked at the higher post and has not performed the duties of the higher

post, I am not inclined to grant higher emoluments to the petitioner from the

year 1993 to the year 2007 in the facts and circumstances of the present

case, however, the petitioner will get notional promotion to the post of

Assistant Manager/Security Officer/Vigilance Officer w.e.f 11.11.1993

whereby when the petitioner actually ought to have been promoted to the

post of Assistant Manager/Security Officer/Vigilance Officer. The

pay/salary/monetary emoluments which would be granted to the petitioner

as in the year 2007 on his actual promotion will at that stage be that

salary/pay package which would be available to the petitioner on the

petitioner having been granted promotion on 11.11.1993. As already

clarified above, no arrears of emoluments would be granted at higher pay-

scale to the petitioner from 11.11.1993 till his promotion in the year 2007.

Of course in addition to the notional promotion w.e.f 11.11.1993, the

petitioner will get all consequential benefits including higher emoluments as

Assistant Manager w.e.f 2007 and for his further promotions and further

higher scales of pay as an employee of the organization. The petitioner will

also be entitled to interest at the rate of 9% per annum simple on the amount

which would be due to him at a higher scale of pay from the year 2007 till

disposal of the writ petition. The arrears from the year 2007 from the date

when the petitioner was actually promoted to the post of Assistant

Manager/Security Officer/Vigilance Officer till date be paid to him within a

period of three months from today. In case, these arrears are not paid within

three months from today, interest payable thereafter will be at 12% per

annum simple.

10. The writ petition is accordingly allowed and disposed of in

terms of the aforesaid observations.

VALMIKI J. MEHTA, J JULY 01, 2013 ib/Ne