Delhi High Court
Malkeet Singh & Ors. vs Union Of India & Ors. on 31 August, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : August 25, 2015
Judgment Delivered on : August 31, 2015
+ LPA 653/2012
MALKEET SINGH & ORS. .....Appellants
Represented by: Ms.Rekha Palli, Sr.Advocate
instructed by Ms.Saahila Lama and
Mr.Tarun Khanna, Advocates
versus
UNION OF INDIA & ORS. .....Respondents
Represented by: Ms.Anjana Gosain, Advocate for
R-1
Mr.Digvijay Rai, Advocate with
Mr.Dhiraj Kumar, Advocate for
R-2
Ms.Maninder Acharya,
Sr.Advocate instructed by Ms.Puja
Dhara and Mr.Abhishek Kakkar,
Advocates for R-3 to R-54
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. The controversy involved in the above captioned intra-court appeal
relates to appointment to the post of Air Traffic Control (hereinafter
referred to as 'ATC') cadre in Airports Authority of India.
2. To adjudicate upon the controversy in the present case we need to
start our journey from the year 1972 when all airports in India were under
the direct control of the Ministry of Civil Aviation, Government of India.
The employees engaged to manage the airports were the employees of the
Central Government and were paid wages as recommended from time to
time by the Pay Commissions subject to such changes as were made by
the Central Government. In other words these employees were receiving
salary as per the CDA Pattern.
3. At that time the hierarchical structure of ATC Cadre in the
Department of Civil Aviation was as follows:-
Senior Aerodrome Officer
Aerodrome Officer
Assistant Aerodrome Officer
Aerodrome Assistant.
4. The conditions of service of employees of the Department of Civil
Aviation were governed by the Civil Aviation Department (Class I and
Class II Posts) Recruitment Rules, 1969 (hereinafter referred to as the
'1969 Rules'). Under the 1969 Rules direct recruitment in ATC cadre
was at two posts; viz. (i) Aerodrome Assistant; and (ii) Assistant
Aerodrome Officer. The appointment to the post of Aerodrome Officer
was by 100% promotion from the eligible Assistant Aerodrome Officers
having an experience of three to eight years. The age and eligibility
criteria(s) prescribed for promotion to the post of Assistant Aerodrome
Officer was as follows: -
S. No. Age prescribed for Eligibility criteria prescribed for
promotion to the post promotion to the post of Aerodrome
of Aerodrome Officer Officer
Not Applicable (i) Matriculation or equivalent from a
recognized University, Board/School and
(ii) successful completion of specified
training course in Air Traffic Control at
the Civil Aviation Training Centre.
5. On April 01, 1972 by an Act of Parliament the International
Airport Authority of India was constituted and four international airports :
Delhi, Bombay, Calcutta and Madras were handed over to the said
International Airport Authority of India. Employees working in these
airports were given the option to join the International Airport Authority
of India with explicit understanding that they would continue to receive
pay under the CDA Pattern till the year 1977 but thereafter the pay scales
would be converted into IDA Pattern. Remaining airports continued to be
managed directly by the Ministry of Civil Aviation.
6. 1969 Rules were amended in the year 1982 when the Civil
Aviation Department (Class I and Class II posts) Recruitment
(Amendment) Rules, 1982 (hereinafter referred to as the '1982 Rules')
were promulgated. Under 1982 Rules the appointment to the post of
Aerodrome Officer was 66.66% by promotion and 33.33% by direct
recruitment. The age and eligibility criteria(s) prescribed for direct
recruitment to the post of Aerodrome Officer was as follows: -
S. No. Age prescribed for Eligibility criteria prescribed for
direct recruitment to promotion to the post of Aerodrome
the post of Officer
Aerodrome Officer
1. Not exceeding 26 Essential:
years
(A) Degree in Engineering or
Bachelor‟s Degree with Physics
Mathematics as one of the subjects of a
recognized University or equivalent.
OR
(b) (i) Should have passed
Matriculation or equivalent qualification
from a recognized
University/Board/School.
(ii) Commercial pilot‟s license
obtained after acquiring the qualification
at (i) above.
(i) Direct Recruitment:
Note : The candidate shall have to
undergo voice test for determining their
suitability for air traffic control duties.
7. The National Airport Authority of India was formed in the year
1986 by an act of Parliament and all remaining airports under the
Ministry of Civil Aviation came under the control of the National Airport
Authority of India. The employees working in these airports became
employees of the National Airport Authority of India and since as
employees of the Central Government were receiving salary under the
CDA pattern continued to receive salary under the CDA pattern as
employees of the National Airport Authority of India.
8. National Authority of India issued a circular on March 04, 1992
regarding amendment to the 1982 Rules, which circular reads as under:-
"Subject: - AMENDMENT IN RECRUITMENT RULES.
The Recruitment Rules for the post of Aerodrome Officer
circulated vide Ministry of Civil Aviation Notification
No.A.12018/3/79-EA(VE/SFS) dated 7.2.1983 are
amended as under with the approval of the Competent
Authority in National Airports Authority:-
(a) In Serial No. 42 Column No.10.
For
(i) 33 1/3% by promotion, failing which by direct
recruitment.
(ii) 66 2/3% by direct recruitment.
Read
(i) 50% by promotion, failing which by direct
recruitment.
(ii) 50% by direct recruitment.
2. This order takes effect with immediate effect."
9. Thus by virtue of the circular dated March 04, 1992 the source of
recruitment to the post of Aerodrome Officer (in National Airport
Authority of India) became 50% by direct recruitment and 50% by
promotion.
10. Subsequently the National Airport Authority of India and the
International Airport Authority of India were merged with effect from
April 01, 1995 and Airports Authority of India (hereinafter referred to as
'AAI') was constituted.
11. Since under the National Airport Authority of India and the
International Airport Authority of India posts of similar nomenclature
were in different pay scales having different rules and regulations a need
was felt to have a common recruitment rule and unified pay structure. It
was all the more necessary because by said year the International Airport
Authority of India was following the IDA Pay Scales and the National
Airport Authority of India was following the CDA pattern. Vide letter
dated June 16/18, 1996, the IDA Pay Scales were introduced for the
employees of the erstwhile National Airport Authority of India with
retrospective effect from January 01, 1989. In this manner the employees
of the erstwhile National Airport Authority of India and the International
Airport Authority of India who had become employees of the Airport
Authority of India started receiving salary under the IDA Pattern.
12. The conditions of service of the employees of AAI continued to be
governed by the 1982 Rules (as amended by afore-noted circular dated
March 04, 1992 for the post of Aerodrome Officer/Manager (ATC) in
AAI).
13. AAI issued an Office Order on February 09, 1998 adopting unified
pay scales and designation for executives and non-executives in AAI, the
relevant portion whereof reads as under:-
"Sub: ADOPTION OF UNIFIED PAY SCALES AND
DESIGNATION FOR EXECUTIVES AND NON-
EXECUTIVES IN AAI.
The competent authority has approved adoption of unified
pay scales and designations in respect of executives and
non-executives in Airports Authority of India as under:
I (i) adoption of unified pay scales and
designations, as below, for executives in IAD and NAD
w.e.f. 1.4.1996
E-6 Executive Director `11500-13500
E-5 General Manager `9500-11500
E-4 Dy. General Manager `7500-9900
E-3 Senior Manager `6500-9425
E-2 Manager `5000-8400
E-1 Assistant Manager `4600-7975"
14. By virtue of aforesaid adoption of unified pay-scales/designation,
the hierarchical structure of ATC cadre became as follows: -
Executive Director (ATC)
General Manager (ATC)
Dy. General Manager (ATC)
Senior Manager (ATC)
Manager (ATC)
Assistant Manager (ATC).
Be it noted here that the posts of Assistant Aerodrome Officer and
Aerodrome Officer got re-designated as Assistant Manager (ATC) and
Manager (ATC) respectively.
15. The Department of Public Enterprises, Government of India issued
an Office Memorandum on June 25, 1999 on the subject of revision of
pay scales in public enterprises, the relevant portion whereof reads as
under:-
"2. In enterprises, where the scales of pay are different
from those prescribed in the DPE guidelines or where
rates of increments higher than those provided had been
adopted in the past, it may be necessary for such
enterprises to introduce certain intermediary scales or
modify the scales to be provided in the guidelines with
appropriate adjustments in their span and rates of
increments. In doing so, it should be ensured that the
minimum and the maximum of the individual scales
prescribed herein are not altered. Such enterprises shall
introduce these modifications only in consultation with
their administrative Ministries and the DPE." (Emphasis
Supplied)
16. In view of the aforesaid Office Memorandum dated February 25,
1999 an exercise was undertaken in AAI to bring the pay scales of the
posts in AAI at par with the pay scales prescribed in the DPE guidelines
with effect from January 01, 1997.
17. In its Forty-Fifth Meeting, the Board of AAI dealt with the issue of
revision of pay scales to bring them at par with the pay scales prescribed
in the DPE guidelines. The relevant portion of the minutes of the 45th
Board Meeting reads as under:-
"[ITEM NO.5]
Board Level Posts and Below Board Level Posts including
Non-Unionized Supervisors - Revision of Scales w.e.f.
01.01.1997
The pay scales in all Central Public Sector Undertakings
are due for revision w.e.f. 01.01.1997. On
recommendations of the Committee under the
Chairmanship of Justice S Mohan a retired Supreme
Court Judge, Government of India in the Ministry of
Industry, Department of Public Enterprises had decided
that scales of pay attached to Board Level Post and below
Board Level Posts including Non-unionized Supervisors
would stand revised w.e.f. 01.01.1997 through their
communication OM No.2(49)48-DPE(WC) dated 25th June
1999. Copy of which is enclosed (Annexure-1).
2. Ministry of Civil Aviation vide letter No.24033 002
99-AAI dated 15th July 1999 conveyed the presidential
Directive to the Airports Authority of India to implement
the approved pay scales, fitment formula, DA guidelines
and ceiling on prerequisites for Board Level and below
Board Level Executives w.e.f. 01.01.1997 (copy enclosed
as Annexure-II).
3. The Board in its 43rd meeting held on 12.01.2000
accorded in principle approval for implementation of the
revised pay scales as communicated by Department of
Public Enterprises (DPE) and as advised by Ministry of
Civil Aviation (MCA). As directed by the Board against
Item No.43.6 (in its meeting on 12.01.2000), the statement
of implementation schedule is placed before it for
consideration and approval for implementation of the
revised pay scales from 01.01.1997. The implementation
schedule is worked out by the High Level Committee
constituted by the Board.
4. In the light of preceding, detailed pay revision
proposals in respect of Board Level and Below Board
Level Executives have been firmed up for implementation
w.e.f. 01.01.1997. These proposals will cover only pay and
allowances and will not cover perquisites. This will be
finalized while settling the wage revision for unionized
staff. A copy of the implementation schedule is placed in
the Annexure-III.
5. In order to ensure fair implementation of the revised
pay scales to all executives who are placed in higher pay
grades executives levels under the existing Flexible
Complementing scheme and present stipendiary trainees
following are proposed:
5.1 All future induction at Executive level will be as
Executive Trainees and are proposed to be taken on a
consolidated stipend of `7500 per month in the place of
existing `5000 per month. On successful completion of
training, they will be placed as Junior Executives in E-1
level.
5.2 E-1 Executive Grade of `4000-7150 (Pre-revised)
equivalent to the revised scale of `8600-250-14600/- is
proposed to be introduced to Executive Probationers in
direct recruitment. They will be designated as Junior
Executives.
5.3 On completion of two years as Junior Executive, the
direct recruits will be placed in the scale of `4800-8275
(pre-revised) to be revised as `10750-16750.
5.4 Pay scale of `7000-9600 E-5 (Pre-revised) to be
revised as `16000-20800 is proposed to be introduced
where present Senior Managers in the grade of `6500-
9425 - (Revised `14500-18700) will move after three
years regular service subject to necessary clearances and
PAR grading. This grading will be designated as Assistant
General Managers.
5.5 For promotion to DGM a combined regular service
of not less than 5 years in the grade of Sr. Manager
Assistant General Manager would be required.
5.6 The new Executive grades of E-1 & E-5 will be
effective from 01.04.2000." (Emphasis Supplied)
18. AAI issued an advertisement on July 17, 1999 inviting applications
for appointment, by direct recruitment, to fill up sixty posts of Manager
(ATC), the relevant portion whereof reads as under:-
"AIRPORTS AUTHORITY OF INDIA
In pursuit of fulfilling its mission for providing world class Air
Traffic Services, Airport Authority of India requires the
following Personnel:
Code Post General OBC SC ST Total
No. of Posts
1. Manager 30 16 9 5 60*
(Air Traffic
Control)
(Posting
Anywhere in
India)
PAY SCALE UNDER IDA PATTERN DUE FOR REVISION
MANAGEMENT (ATC): 5000-225-5900-250-8400
QUALIFICATION:
MANAGEMENT (ATC): (a) First class (60%) Engineering
Degree in Electronics/Telecommunication/Radio Engineering of
a recognized University: OR (b) Passed Sections A and B in first
class (60%) of the Institution Exams of the Institution of
Engineers (India) in Electronics/Telecommunication/Radio
Engg. Subject: OR (c) Passed in the graduate Membership
Exams of the Institution of Electronics and Telecommunication
Engineers (India) in first class (60%) OR (d) Passed Associate
Membership Exam Parts II and III/Sections A and B of the
Aeronautical Society of India (Electronics/Avionics and a group)
in first class (60%) OR (e) First Class (60%) Master‟s degree in
Science with Physics or Maths as Principal subject, with Physics
as one of the subjects during graduation.
AGE LIMIT (AS ON 01.07.99).
MANAGER (ATC): Below 28 years" (Emphasis Supplied)
19. Respondent Nos.3 to 54 applied, and so did many others.
20. AAI issued letter(s) to the shortlisted candidates including
respondents Nos.3 to 54 on December 12, 1999 requiring them to appear
in the Selection Test to be held on January 09, 2000, the relevant portion
whereof reads as under:-
"REFERENCE NO.A2024/4/98-HR DATED: 10.12.99
Subject: Selection Test for Manager - ATC
Dear Candidate,
We thank you for responding to our advertisement for
recruitment of Manager-ATC, based on preliminary
scrutiny of your application we invite you to appear in the
selection test on 9.1.2000 (Sunday) at 9.45 a.m."
(Emphasis Suppplied)
21. Thereafter AAI issued admit card(s) to the shortlisted candidates,
including respondents Nos.3 to 54, to appear at the Selection Test to be
held on January 09, 2000. Be it noted here that the heading of admit
card(s) issued to the shortlisted candidates was as follows: - „ADMIT
CARD MANAGER (ATC) SELECTION TEST‟.
22. AAI issued letter(s) to the candidates who emerged successful in
the Selection Test including respondents Nos.3 to 54 on February 23,
2000, requiring them i.e. successful candidates to appear at the Voice
Test and Interview, the relevant portion whereof reads as under:-
"Sub: CALL LETTER FOR VOICE TEST AND
INTERVIEW
With reference to your application for the post of Manager
(ATC) in Airports Authority of India (National Sports
Division) and the subsequent written test held on
09.01.2000, you are requested to call us for a qualifying
voice test and interview as per the following programme.
Please note that your selection is subject to qualifying in
the voice test failing which you will not be allowed to
participate in further selection proceedings.
2. Your candidature is purely provisional and subject
to the fulfillment of the necessary requirements with
regard to age, qualification, category etc. as advertised.
Please bring the original certificates of your age,
educational qualifications, experience, case along with a
Photostat copy of all the documents, along with this call
letter, failing which you will not be allowed to appear for
the interview. During interview, you can give replies
either in Hindi or English.
5. The pay revision for executives is to be implemented
w.e.f. 1.1.1997. As a consequence of the executive pay
revision designation, scale of pay and other related terms
and conditions will be suitably decided and will be
applicable to you. You are, therefore, requested to sign
the enclosed declaration as token of your acceptance."
(Emphasis Supplied)
23. The „declaration‟ referred to in the letter dated February 23, 2000
reads as under:-
"DECLARATION
I understand that the executives pay revision in
Airports Authority of India is due for implementation w.e.f.
01.01.97. Though I had applied for the post of Manager
(ATC) in pre-revised scale of `5000-8100 I will have no
objection to accept the designation and the scale of pay in
the revised structure of pay scales as may be decided by
the AAI for this recruitment exercise. I undertake that I
will not make any representation in this regard."
(Emphasis Supplied)
24. AAI issued an Office Order on April 05, 2000 regarding revision
of pay-scales of executives (below Board level) with effect from January
01, 1997 in terms of the instructions contained in the Office
Memorandum dated June 25, 1999 issued by the Department of Public
Enterprises noted above in paragraph 15, the relevant portion whereof
reads as under:-
"Subject: Revision of Scales of Pay of Executives (Below Board
Level) - Effective from 01.01.1997
It has been decided to implement the revised scales of
pay, fitment formula and Dearness Allowance (DA) guidelines
of below Board Level Executives on IDA pattern in terms of
instructions contained in the Department of Public Enterprises
(DPE) OM No.2(49)/98-DPE(WC) dated 25th June 1999 as
under:
1. SCALES OF PAY
1.1 The existing scale of pay of Executives are revised w.e.f.
01.01.1997 as per Annexure-1
1.2 Induction of base level Executives will be Executive
Trainees. They will be taken on a consolidated stipend of
`7,500/- per month in place of the existing `5,000/- per month.
On successful completion of training, they will be placed as
Junior Executives in E-1 level.
1.2.1 E-1 Executive Grade of `4000-175-7150/- equivalent to
the revised scale of `8600-250-14600/- is introduced for
Executives/probationers in direct recruitment. They will be
designated as Junior Executives and will be placed in the
revised scale.
1.2.2 On completion of two years as Junior Executives, the
direct recruits will be placed in the scale of `4800-200-5800-
225-8275/- (pre-revised) revised `10750-300-16750/-.
1.4 The new Executive grades of E-1 & E-5 will be effective
from 01.04.2000.
Pay Scales of Executives (Below Board Level) W.E.F.
01.01.1997
Level of Existing Scale of Designation Revised Scales of
Executives Pay Pay
E-1 --- Junior Executive* 8600-250-14600*
E-2 4600-225-7975 Assistant 10750-300-16750
Manager &
Equivalent
E-3 5000-225-5900- Manager & 13000-350-18250
250-8400 Equivalent
E-4 6500-250-7500- Senior Manager 14500-350-18700
275-9425 & Equivalent
E-5 --- Assistant General 16000-400-20800*
Manager
E-6 7500-300-9900 Dy. General 17500-400-22300
Manager &
Equivalent
E-7 8250-300-10050 Addl. General 18500-450-23900
8500-300-10300 Manager &
Equivalent
E-8 9500-400-11500 General Manager 20500-500-26500
& Equivalent
E-9 11500-400- Executive 23750-600-28550
13500 Director &
Equivalent
Note: *The scale & designation mentioned at E-1 and E-5 will
be introduced w.e.f. 01.04.2000." (Emphasis Supplied)
25. In the meanwhile AAI had conducted the voice test and had
interviewed the respondents Nos.3 to 54 and other candidates who had
emerged successful in the Selection Test. Respondent Nos.3 to 54
successfully cleared the voice test and the interview.
26. AAI issued letters to the successful candidates including
respondents Nos.3 to 54 on May 29, 2000 offering them appointment to
the post of 'Junior Executive Trainee (ATC)', which letter reads as
under:-
"Sub: Appointment to the post of the Junior Executive
Trainee (ATC) in Airports Authority of India (NAD)
Dear Sir/Madam,
We are pleased to offer you an appointment to the post of
Junior Executive Trainee (ATC).
2. The terms and conditions of appointments are as
per appendix to this letter.
3. In case the terms and conditions as offered are
acceptable to you, you may forward your acceptance to us
latest by 16/04/2000 (Friday) failing which this offer shall
be treated as cancelled without any further
correspondence. In the event of your acceptance, you will
report for training to the Principal Civil Aviation Training
College, Airports Authority of India, (National Airport
Division) Bamrauli, Allahabad-211012 on 3rd July, 2000.
It must be noted that no request for
extension/postponement of the reporting date for training
at CATC, Allahabad will be entertained." (Emphasis
Supplied)
27. The relevant portion of the 'Appendix' referred to in the afore-
noted letter dated May 29, 2000 reads as under:-
"APPENDIX
Sub: OFFER OF APPOINTMENT AS JUNIOR
EXECUTIVE TRAINEE (ATC)
The terms and conditions of the above appointments are
stated below:
TRAINING
The period of training will be 52 weeks at the Airports
Authority of India (National Airports Division), Civil
Aviation Training College, Bamrauli, Allahabad and at
any other airport/place as determined by the Management.
The duration of the training may be extended or
terminated based on the performance and conduct of the
Trainee during the training period.
3 AGREEMENT BOND
The trainee will be required to execute an agreement bond
on non-judicial stamp paper of `62/- (Rupees sixty two
only) as per specimen enclosed. The person standing
surety to the above agreement shall be:-
6 SERVICE CONDITION ON REGULAR
APPOINTMENT
On successful completion of the training, trainee will be
appointed as Junior Executive (ATC) in the Airports
Authority of India (NAD) in the scale of `8600-250-
14600(IDA Pattern) plus other allowance as admissible
from time to time at that level. On successful completion of
two years probationary period as Junior Executive they
will be place in the scale of `10750-300-16750.
a) NATURE OF THE POST
The post of Junior Executive (ATC) is temporary at
present but likely to continue. The posting is anywhere in
India or abroad as may be determined by the
management." (Emphasis Supplied)
28. The relevant portion of the Form of Agreement required to be
executed by the successful candidate (including respondents Nos.3 to 54)
who accepted appointment to the post of Junior Executive (Trainee) as
offered by AAI reads as under:-
"This agreement (hereinafter referred to as the Junior
Executive (ATC) Trainee) of the first part
(hereinafter referred to as the surety) of the second part
and the Chairman, Airports Authority of India of the third
part.
WHEREAS the Junior Executive (ATC) Trainee has
agreed to undergo training in the Airports Authority of
India and on the successful completion of the same to
accept employment as Junior Executive (ATC) in that
department, on the terms and condition hereinafter
appearing.
In witness whereof, the Junior Executive (ATC) Trainee
and the surety have hereinto set their respective hands and
the Chairman has hereinto.
Caused
_______________________________________________
_______________
______ on his behalf to set his/her hand the _____ day of
_____ thousand.
Signature of the
Junior Executive (ATC) Trainee"
29. Significantly, respondents Nos.3 to 54 accepted the appointment to
the post of Junior Executive (ATC) offered to them by AAI (vide letter
dated May 29, 2000) and underwent required training.
30. After successful completion of their training, AAI appointed
respondents Nos.3 to 54 to the post of Junior Executive (ATC).
31. Soon thereafter, on July 25, 2001 the respondents Nos.3 to 54
submitted representation(s) to the competent authority in AAI inter-alia
stating therein that AAI committed an illegality in appointing respondents
Nos.3 to 54 to the post of Junior Executive (ATC) when the post which
was advertised by AAI and in respect whereof the respondents Nos.3 to
54 had applied was that of Manager (ATC), particularly when the post of
Junior Executive (Trainee) was two steps below the post of Manager
(ATC) in the hierarchy. It was thus prayed that the respondents Nos.3 to
54 be appointed to the post of Manager (ATC) or an equivalent post
instead of post of Junior Executive (ATC).
32. On the issue of undertaking(s) given by them at the time of
appearing for voice test and interview and acceptance of appointment(s)
to the post of Junior Executive (ATC) by them, following was stated by
respondents Nos.3 to 54 in the representation(s) submitted by them:-
"Though the post advertised for which the written test and
the interviews were held, was that of Manager (Air Traffic
Control), but the appointment letter which has been given
to us is for the post of the Junior Executive Trainee (ATC).
We accepted the same under the belief that the offered
post of Junior Executive (ATC) in new scale is the same
and equivalent to the post of Manager in the old scale.
However, we have come to know that even after the
training is over we will be designated as Junior Executive
(ATC) which is lower than the post of Manager (ATC).
The administration had taken an undertaking from us that
we will not object to the restructuring of the pay scales.
The restructured pay scale of `5000-225-5900-250-8400
is `13000-350-18250. However, instead of giving us the
revised pay scale of `13000-350-18250 w.e.f. 1.1.97 we
have been given the scale of `8600-250-14600 which scale
is below the scale applicable to the post of Assistant
Manager (ATC). The post of Assistant Manager is one step
below the post of Manager (ATC).
We may so point out that earlier the Assistant Manager
were entitled to the post of Manager and the Manager was
entitled to be promoted to the post of Senior Manager.
Now the Junior Executive is to promoted to the post of
Assistant Manager and the Assistant Manager is to be
promoted to the post of Manager and the Manager is
entitled to be promoted to the post of Senior Manager.
This it self shows that we, who were selected for the post
of Managers, are in fact being appointed to the post of
Junior Executive (ATC). This is not in accordance with
Rule of law and fair play. We may add that at the time the
undertaking was taken from us it was not disclosed to us
that the post is being downgraded. We were told only of
restructuring. We are, therefore, not bound with the said
undertaking."
33. Receiving no response to their representation(s), respondents Nos.3
to 54 filed a writ petition under Article 226 of Constitution of India being
W.P. (C) No.7390/2001 before a Single Judge of this Court making same
submissions as were made by them in their representation(s) and praying
that they be appointed to the post of Manager (ATC) or an equivalent
post instead of post of Junior Engineer (ATC).
34. At this stage it would be useful to note the following averments
regarding giving of undertaking and acceptance of appointment to the
post of Junior Executive (ATC) made by respondents Nos.3 to 54 in their
writ petition:-
"5. Petitioners successfully qualified in the written test.
On the basis of their performance in the written test
petitioners were called for voice test and interview vide
letter dated February 23, 2000. A copy of this letter is
annexure -P4. Even in this letter post for which
petitioners were called described the post as Manager
(ATC). It was not disclosed at even at this stage that the
post has been downgraded or is proposed to be
downgraded.
7. Even in this appointment letter it was not disclosed
that the said post was being downgraded by two steps
below the post of Manager (ATC) which had been
advertised and for which the petitioners had been selected.
Petitioners believed that after training period they will be
posted on a regular post as Managers (ATC) or a post
equivalent to that of Manager (ATC) and in the pay scales
applicable to the post of Manager (ATC).
8. Apart from what has been stated above it is
submitted that a perusal of the letters annexure P-3 and P-
4 and the appendix appended thereto will show that no
where it has been disclosed that the advertised post of
Manager (ATC) was being down graded. All along it has
been said that the pay scales were in revision. However
after successfully completing training the petitioners have
been posted as Junior Executives and have been placed in
the pay scale of `8600-250-14000 (revised) instead of the
revised pay scale of Manager (ATC) which had been
revised from `5000-6400 to 13000-18250.
14. It is respectfully submitted that the above
undertaking was given at a time when the petitioners had
not been informed that posts were being downgraded. The
petitioners, therefore, are not bound by the same and the
respondents cannot take advantage of the said
undertaking. It is respectfully submitted that the
petitioners were not ad idem when the undertaking was
given.
15. Apart from above, it is submitted that the said
undertaking even otherwise is invalid as it is not only
oppressive it is unconscionable and is liable to be struck
down. It is respectfully submitted that the employment
conditions in India are well known. Had the petitioners
not given the undertaking asked for, the petitioners would
have been denied the employment, despite their having
passed the selection process successfully and they would
have exposed themselves to hazards of finding another job
which is not easy if not impossible. The petitioners and
respondents were not equal bargaining position.
GROUNDS
A The action of the respondents is contrary to the
principles of promissory estoppel. Respondent advertised
the post of Manager (ATC). The petitioners applied for the
post of Manager (ATC). They undertook the written test,
voice test and interview for the said post. In none of the
letters i.e. annexure P-2 and P-3 it was disclosed that the
post advertised was being downgraded. The emphasis was
all along on the revisions of pay scales. Petitioners did not
apply for any other post and applied only for the post
advertised on account of the information contained in the
advertisement, believing the same to be true. Now the
petitioners cannot leave this job and try for another post.
The respondent having advertised a post which has been
accepted by the petitioners, the respondent is bound to
place the petitioners in the post of Manager (ATC) or
equivalent post, having the scale of Pay advertised."
(Emphasis Supplied)
35. In addition to above it was contended by the respondents Nos.3 to
54 (in their writ petition) that another reason which entitles them to be
appointed to the post of Manager (ATC) is that they were imparted
training prescribed for the post of Manager (ATC). The aforesaid
contention raised by respondents Nos.3 to 54 was based on the letter
dated June 28, 2000 written by the Chief Instructor (ATM) regarding
imparting of training to respondents Nos.3 to 54 and response thereto sent
by the General Manager (ATM) vide letter dated July 03, 2000.
36. The letter dated June 28, 2000 written by Chief Instructor (ATM)
reads as under:-
"During the last visit Mr. S.P. Sikka, AGM (OPS) had
stated that new recruits (Aerodrome Officers) will be
joining at CATC for training in July, 2000. Now the letter
received from Executive Director (P&A) designates these
recruits as Jr. Executive Trainee (ATC) for whom no
defined course has been mentioned. Normally a letter is
sent by the ARA Directorate specifying the course/training
to be imparted to the trainees.
This may please be confirmed that these trainees have to
be given same course/training that of Aerodrome Officers.
Since no letter has been received from ARA Directorates.
The Principal may like to talk to the Executive Director
(ATM) or DARA (O) for confirmation."
37. The response to letter dated June 28, 2000 sent by General
Manager (ATM) vide letter dated July 03, 2000 reads as under:-
"Junior Executive trainees (ATC) reporting at CATC for
training will be imparted instructions and training from
the course curriculum earlier prescribed for AO ab-initio
course. Duration of training remains unchanged.
Course may be renamed as Junior Executive (ATC) ab-
initio course."
38. Appellants, nineteen in number, are employees of AAI who were
promoted to the post of Manager (ATC). In case the relief as prayed for
by respondents Nos.3 to 54 in the writ petition would have been granted
the same would have adversely affected the promotion/seniority of
appellants to the post of Manager (ATC) thus they i.e. the appellants got
themselves impleaded as a party in the writ petition.
39. In essence, the stand taken by AAI and respondents Nos.3 to 54 in
the writ petition was that while seeking employment in AAI the
respondents Nos.3 to 54 had given an undertaking to the effect that they
would have no objection in accepting the designation and pay-scales in
the revised structure of pay scales as may be decided by the AAI and
further accepted appointment to the post of Junior Executive (ATC). In
this view of the matter, the respondents Nos.3 to 54 are estopped from
claiming appointment to any post other than Junior Executive (ATC).
40. Before proceeding further we note that during the pendency of writ
petition AAI formulated the Airports Authority of India (Recruitment and
Promotion) Regulations, 2005 (hereinafter referred to as the '2005
Regulations') which replaced 1982 Rules.
41. As per 2005 Regulations, the hierarchical structure of ATC cadre
in AAI became as follows: -
Executive Director & equivalent (E-9)
General Manager & equivalent (E-8)
Joint General Manager & equivalent (E-7)
Deputy General Manager & equivalent (E-6)
Senior Manager (SG) & equivalent (E-5)
Senior Manager & equivalent (E-4)
Manager & Equivalent (E-3)
Assistant Manager & equivalent (E-2)
Junior Executive & equivalent (E-1).
42. At this juncture we note following relevant prescription relating to
appointment by direct recruitment to the posts of Manager and Junior
Executive in ATC cadre contained in 2005 Regulations:-
"SECTION-II
DIRECT RECRUITMENT AND RELATED MATTERS
6. INDUCTION LEVELS DIRECT RECRUITMENT
(DR) IN EXECUTIVE & NON-EXECUTIVE CADRES:
6.1 Generally, the intake from outside the authority through
direct recruitment will be at the following levels called the
induction levels.
(i) EXECUTIVE CADRES:
GR Leve Designation % age Discipline Qualifications
l quota
A E-3 Mgr. & 25% All disciplines First Class
Equivt. MBA/M.Tech/B.E/
B.Arch/B.Tech/LL
B OR equivalent,
with relevant
experience in the
concerned
discipline as
prescribed for
each discipline.
B E-1 Junior 75% Communication, B. Tech/B.E. OR
Executive & ATC, Electronics, equivalent/MBA/C
Equivt. Engg (Civil) & A/ICWA/
(Elect) and other
Professional
disciplines as per
Degree from a
requirement
reputed institute
OR equivalent.
INDUCTION IN E-1 JUNIOR EXECUTIVE LEVEL
(Scale of Pay `8600-250-14600)
S. Discipline Qualification Maximum Age: 27 years
No.
1. Air Traffic Engineering degree in
Control Electronics/Telecommunication/Radio Engg.
Electrical with specialization in Electronics OR
equivalent
INDUCTION IN E-3 MANAGER LEVEL
(Scale of Pay `13000-350-18250)
S. Discipline Qualification with minimum 2 years relevant
No. experience in the concerned discipline
Maximum Age: 32 years
12 Air Traffic First Class Engineering degree in
Control Electronics/Telecommunication/Radio Engg./
Electrical with specialization in Electronics OR
equivalent
Note: The Executives in the cadre of Communications and ATC
will be inducted after passing the specialized training/courses.
Considering the specialized nature of job, two years experience
will not be applicable in these cadres."
43. We may note that in the year 2007, AAI issued an advertisement to
appoint 68 Manager (ATC), the relevant portion whereof reads as under:-
"Applications are invited for the following Group „A‟ posts in
the pay scale of `13000-350-18250(IDA)
Post Name of the Post No. of Vacancies (Number of
Code posts may vary)
02. Manager (ATC) 68 (Gen - 36, OBC - 18, SC-25,
ST-12) including PH-5*
Qualification & Experience:-
02. Manager (ATC) First Class Engineering degree in
Electronics/Telecommunications/Radio
Engg/Electronic 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.
Experience : A minimum experience of 2 years in the
concerned discipline/field is essential for all
posts against Post Code 03 to 12.
Experience in the fields of
maintenance/operation of various
communication equipments such as NAV-AIDS,
Radar etc. for post of Manager
(Electronics)(Post Code01) and experience in
the field of Air Traffic Control for post of
Manager (ATC) (Post Code02) is desirable.
All the candidates selected for Post Code 01 &
02 shall be required to undergo ab-initio
training course comprising various aspects of
Air Traffic Management/Operations and
Maintenance/Operation of various NAV-AIDS,
Radar etc. upto 1 year, during which they shall
be aid consolidated stipend of `13,000/- p.m.
Prior to joining, they would be required to
furnish a surety bond of `2.00 Lakhs to serve
AAI for a period of 5 years after completion of
training.
AGE LIMIT (As on 1.10.2007):- 32 Years"
44. AAI issued an office order on February 02, 2010 relating to
amendments in 2005 Regulations in respect of Executives, the relevant
portion whereof reads as under:-
"Subject: Amendments in the R & P Regulations, 2005
in respect of Executives.
In continuation of CHQ letter dated 12.11.2009 on
the above subject, it has been decided as follows:
(a) Para 4(i) of CHQ letter dated 12.11.2009 shall be
read as follows:
"Two years‟ work experience will be required for
direct recruitment at Manager (E-3) level in the ATC, CNS
and Electronics cadres."
45. Vide impugned judgment and order dated July 17, 2012 the learned
Single Judge has allowed the writ petition filed by respondents Nos.3 to
54 and has held that „respondents Nos.3 to 54 are entitled to the post of
Manager (ATC) with pay scale attached thereto with effect from the date
of their actual appointment‟. Further, the learned Single Judge has
directed AAI to pay 50% back wages to respondents Nos.3 to 54.
46. Briefly stated the reasons by the learned Single Judge are as
under:-
a) Post which was advertised by AAI and in respect whereof the
respondents Nos.3 to 54 had applied was that of Manager (ATC).
b) 2005 Regulations which were implemented with effect from
February 01, 2005 provides for (direct) induction in AAI at E-3 level i.e.
level of Manager and the qualification prescribed for said direct induction
is same as prescribed in the advertisement pursuant to which respondents
Nos.3 to 54 had applied.
c) The State has to act fairly in its action as a model employer and
thus cannot make its employees sign the undertaking when they i.e. the
employees do not have any bargaining power. In the instant case,
respondents Nos.3 to 54 were made to sign the undertaking after they had
qualified in the written test and were sent letters for appearing in the
voice test i.e. at the time when they had no bargaining power.
d) The vacancies in question occurred prior to the amendment of the
Rules and thus will be governed by the old Rules. The change of policy
after the start of selection process is not permissible.
e) Letter dated April 05, 2000 relied upon by AAI (and appellants)
for purposes of restructuring of posts is a mere administrative order and
not passed by the competent authority. In these circumstances, change of
policy vide letter dated April 05, 2000 when 1982 Recruitment Rules
were in existence was not proper. Moreover, change of policy after start
of selection process and when written test had already been conducted is
not permissible.
f) By virtue of office order dated April 05, 2000 the post of Junior
Executive (ATC) was made an entry post and post of Manager (ATC)
was made a promotional post. Subsequently, 2005 Regulations were
framed whereby 25% of posts of Manager (ATC) were to be filled
through department candidates. This action of AAI has caused prejudice
to respondents Nos.3 to 54 inasmuch as post on which respondents Nos.3
to 54 were appointed of Junior Executive (ATC) was two steps below the
post of Manager (ATC).
g) The qualification(s) and training prescribed for the (two) posts of
Junior Executive (ATC) and Manager (ATC) are same. Further, on two
occasions in the year 2007 and 2010 AAI had issued advertisement(s) for
filling up vacancies occurring in the post of Manager (ATC).
47. Aggrieved by the aforesaid decision the appellants (who were
promoted to the post of Manager (ATC)) have filed the present Letters
Patent Appeal.
48. During hearing of the present appeal the learned senior counsel
appearing for the appellant drew our attention to the following facts:-
(a) The advertisement issued by AAI in respect whereof respondents
Nos.3 to 54 had applied prescribed that 'PAY SCALE UNDER IDA
PATTERN DUE FOR REVISION‟.
(b) Letter dated February 23, 2000 issued by AAI to the candidates
who emerged successful in the Selection Test including respondents
Nos.3 to 54 requiring them i.e. successful candidates to appear in the
Voice Test and Interview clearly brought to their notice that „the pay
revision for executives is to be implemented w.e.f. 1.1.1997. As a
consequence of the executive pay revision designation, scale of pay and
other related terms and conditions will be suitably decided and will be
applicable to you (read selected candidate). You (read selected
candidate) are, therefore, requested to sign the enclosed declaration as
token of your acceptance.‟
(c) Before appearing for the voice test and the interview the
respondents Nos.3 to 54 had given an undertaking to the effect that
'though I (read respondents Nos.3 to 54) had applied for the post of
Manager (ATC) in pre-revised scale of `5000-8100 I (read respondents
Nos.3 to 54) will have no objection to accept the designation and the
scale of pay in the revised structure of pay scales as may be decided by
the AAI for this recruitment exercise. I (read respondents Nos.3 to 54)
undertake that I (respondents Nos.3 to 54) will not make any
representation in this regard.‟
(d) The appointment offered to respondents Nos.3 to 54 by AAI (vide
letter dated May 29, 2000) was to the post of „Junior Executive (ATC)‟.
(e) The „Appendix‟ to letter dated May 29, 2000 containing offer of
appointment clearly prescribed that the post of Junior Executive (ATC)
offered to respondents Nos.3 to 54 was in the pay scale `8600-250-14600
(IDA pattern). It further informed that after completion of two years
probationary period the respondents Nos.3 to 54 will be placed in the
pay-scale `10750-300-16750 (the scale attached to the post of Assistant
Manager (ATC), a post below the post of Manager). Counsel placed
strong emphasis on the reference of pay scales of `8600-250-14600 and
`10750-300-16750 in the Appendix to argue that at the time of offering
appointment to respondents Nos.3 to 54 it was made very clear to
respondents Nos.3 to 54 that the post of Junior Executive (ATC) was two
steps below the post of Manager (ATC), inasmuch as (revised) pay-scales
of the posts of Junior Executive (ATC) and Assistant Manager (ATC)
were `8600-250-14600 and `10750-300-16750 respectively, while the
pay scale of the post of Manager (ATC) was `13000-350-18250.
(f) The respondents Nos.3 to 54 accepted the offer of appointment to
the post of Junior Executive (ATC) in the pay-scale of `8600-250-14600
without any demur and underwent required training.
49. Learned senior counsel for the appellants argued that aforesaid
facts pointed out by her show that right since the inception of the
selection process i.e. issuance of advertisement, the respondents Nos.3 to
54 were made aware of the fact that the restructuring of posts in ATC
cadre is underway and designation and pay-scale of the post of Manager
(ATC) are likely to change. An undertaking was given by the respondents
Nos.3 to 54 to the effect that they would have no objection to the change
of designation/pay-scale. It was made clear to respondents Nos.3 to 54
that the post which was being offered to them is that of Junior Executive
(ATC) in the pay-scale of `8600-250-14600 and that their next
promotional post would be that of Assistant Manager (ATC) in the pay-
scale of `10750-300-16750.
50. Per contra, learned senior counsel for respondents Nos.3 to 54
advanced following five submissions:-
A The advertisement in respect whereof respondents Nos.3 to 54 had
applied was for the post of Manager (ATC); The letter dated December
12, 1999 issued by AAI to respondents Nos.3 to 54 requiring them to
appear for Selection Test indicated „Selection Test for post of Manager
(ATC)‟; the admit card issued by AAI to respondents Nos.3 and 54
indicated „ADMIT CARD MANAGER (ATC) SELECTION TEST‟.
Counsel argued that aforesaid three facts unequivocally show that the
respondents Nos.3 to 54 had participated in the selection process for the
post of Manager (ATC) and thus they were entitled to be appointed to the
post of Manager (ATC).
B That it is settled law that a vacancy has to be filled up on the basis
of Recruitment Rules existing on the date of occurrence of vacancy. In
the instant case, counsel urged that admittedly sixty vacancies, against
which respondents Nos.3 to 54 were appointed, fell vacant when Civil
Aviation Department (Class I and Class II posts) Recruitment
(Amendment) Rules, 1982 were in existence. 1982 Rules did not envisage
the post of Junior Executive (ATC) and provided direct induction in ATC
cadre at the level of Manager (ATC). Such being the position, AAI
committed a manifest illegality in appointing respondents Nos.3 to 54 on
the post of Junior Executive (ATC), a post which was not envisaged
under 1982 Rules in vogue at the time when sixty vacancies accrued,
against which the respondents Nos.3 to 54 were appointed. In this
regards learned senior counsel further pointed out that:- (i)
recommendations of Wage Revision Committee set up the Chairmanship
of Justice S.Mohan, a retired Judge of Supreme Court of India, which
purportedly led AAI to stop direct induction at level of Manager (ATC)
and create a new post of Junior Executive (ATC) for direct induction
related only revision of pay scales and not restructuring of posts; (ii)
direct induction in ATC cadre at level of Manager (ATC) is envisaged
even in new (amended) Recruitment Rules i.e. 2005 Regulations; and (iii)
AAI issued an advertisement in the year 2007 for direct induction of
employees in ATC cadre at the level of Manager (ATC).
C As a limb to the second argument it was argued that action of AAI
to fill up sixty vacancies against which respondents Nos.3 to 54 were
appointed on the basis of office order dated April 05, 2000 when 1982
Rules were in existence, that too after start of selection process, was
clearly impermissible.
D That giving of undertaking and acceptance of offer of appointment
to the post of Junior Executive (ATC) by respondents Nos.3 to 54 do not
bind respondents Nos.3 to 54 for they i.e. respondents Nos.3 to 54 were
not made aware at any stage before giving of undertaking or acceptance
of offer of appointment that the post of Junior Executive (ATC) is two
steps below the post of Manager (ATC) for which they had applied. The
undertaking given by respondents Nos.3 to 54 was only to the effect that
they would not raise any objection to revision of pay-scales attached to
the post of Manager (ATC) and had no relation whatsoever with
restructuring of posts in ATC cadre. In this regard, counsel placed strong
emphasis on the fact that the training imparted to respondents Nos.3 to 54
before joining was the same as prescribed for the post of Manager (ATC)
as is clearly evident from a conjunctive reading of letter dated June 28,
2000 written by Chief Instructor (ATM) regarding imparting of training
to respondents Nos.3 to 54 and response thereto sent by General Manager
(ATM) vide letter dated July 03, 2000.
E As an alternative to the fourth submission, it was argued that
giving of undertaking and acceptance of offer of appointment to the post
of Junior Executive (ATC) by respondents Nos.3 to 54 is unconscionable
for the reason the respondents Nos.3 to 54 had no bargaining power to
negotiate with AAI and were forced to accept the terms and conditions
imposed by AAI while offering employment to them.
51. From the aforesaid detailed conspectus of facts, it is clear that the
controversy in the present case relates to the post of Manager (ATC) in
AAI.
52. Prior to creation of Airports Authority of India, the post of
Manager (ATC) was known as Aerodrome Officer in Department of Civil
Aviation/International Airport of India/National Airport Authority.
53. Till the time 1969 Rules were in vogue i.e. till the year 1982, the
appointment to the post of Aerodrome Officer (in Department of Civil
Aviation/International Airport of India) was by 100% promotion.
54. Then came 1982 Rules. Under 1982 Rules, the appointment to the
post of Aerodrome Officer (in Department of Civil Aviation/International
Airport of India/National Airport Authority) was 66.66% by promotion
and 33.33% by direct recruitment.
55. By virtue of circular dated March 04, 1992 the appointment to the
post of Aerodrome Officer (in National Airport Authority) was 50% by
promotion and 50% by direct recruitment.
56. Subsequently, National Airport Authority of India and
International Airport Authority of India were merged with effect from
April 01, 1995 and Airport Authority of India was constituted.
57. By virtue of office order dated February 09, 1998 the post of
Aerodrome Officer (in Airport Authority of India) got re-designated as
Manager (ATC) and was then in the pay-scale of `5000-8400.
58. As already noted herein above, the conditions of service of
employees of AAI continued to be governed by 1982 Rules (as amended
by afore-noted circular dated March 04, 1992 for the post of Aerodrome
Officer/Manager (ATC) in AAI). Meaning thereby, the appointment to
the post of Manager (ATC) in AAI was 50% by promotion and 50% by
direct recruitment.
59. On June 25, 1999 Department of Public Enterprises issued an
Office Memorandum essentially prescribing therein that pay-scales in all
public enterprises should be at par with the pay-scales prescribed in
guidelines issued by Department of Public Enterprises.
60. Thereafter an exercise was undertaken in AAI to bring the pay
scales of posts in AAI at par with the pay scales prescribed in the DPE
guidelines with effect from January 01, 1997.
61. In its 45th Meeting, the Board of AAI dealt with the issue of
revision of pay scales at par with the pay scales prescribed in the DPE
guidelines. Following key decisions were taken in the said meeting:-
(a) All future induction at Executive Level will be as Executive
Trainees.
(b) After completion of training (directly recruited) Executive Trainees
will be appointed on the post of Junior Executive carrying the pay-scale
of `8600-250-14600.
(c) On completion of two years of service, Junior Executives will be
placed in the (revised) pay-scale of `10750-16750.
62. Before aforesaid decisions taken in the 45th Board Meeting could
be implemented, on July 17, 1999 AAI issued an advertisement inviting
applications for appointment by direct recruitment to (sixty) posts of
Manager (ATC), which advertisement clearly prescribed that 'PAY
SCALE UNDER IDA PATTERN DUE FOR REVISION‟.
63. Respondents Nos.3 to 54 applied. The selection process started.
Selection Test of respondents Nos.3 to 54 and other candidates was
conducted.
64. While the aforesaid selection process was going on, the modalities
of implementation of afore-noted decisions taken by AAI Board in its 45th
Meeting were underway.
65. On February 23, 2000 AAI issued letter(s) to respondents Nos.3 to
54 requiring them to appear for voice test and interview, clearly
informing therein that designation and pay-scales attached to the post of
Manager (ATC) are likely to change as a consequence of revision of pay-
scales of executives and changed/revised designation and pay-scales shall
be applicable to the selected candidates.
66. Pursuant thereto, respondents Nos.3 to 54 gave an undertaking to
the effect that „though they had applied for post of Manager (ATC) they
will have no objection to accept the designation and the scale of pay in
the revised structure of pay scales as may be decided by the AAI for this
recruitment exercise‟.
67. Thus, right from the commencement of selection process the
respondents Nos.3 to 54 were made aware of the fact that an exercise of
revision of pay-scales and re-designation of posts (which would subsume
a change in cadre hierarchy) is underway in AAI and respondents Nos.3
to 54 undertook to accept the change(s) made by AAI in said regard.
68. On April 05, 2000 AAI issued an Office Order implementing the
afore-noted decisions taken by AAI Board in its 45th Meeting. Further,
the Office Order prescribed that the posts of Junior Executive, Assistant
Manager and Manager shall be in the (revised) pay-scales of `8600-250-
14600, `10750-300-16750 and `13000-350-18250 respectively.
69. Thereafter letter(s) dated May 29, 2000 were issued by AAI
offering appointment to respondents Nos.3 to 54. Most significantly, the
letter dated May 29, 2000 clearly prescribed that:-
(a) The appointment being offered to respondents Nos.3 to 54 is to the
post of Junior Executive (ATC) in the pay-scale of `8600-250-14600.
(b) On completion of two years probationary period as Junior
Executives, the respondents Nos.3 to 54 shall be placed in the scale of
`10750-300-16750.
70. With their eyes wide open and without any demur, respondents
Nos.3 to 54 accepted appointment to the post of Junior Executive (ATC)
and underwent required training.
71. It was only after successful completion of training the respondents
Nos.3 to 54 submitted a representation laying a challenge to their
appointment to the post of Junior Executive (ATC).
72. A conjunctive reading of representation(s) and writ petition filed
by respondents Nos.3 to 54 (relevant portions whereof have been noted
by us in foregoing paras) goes to show that the respondents Nos.3 to 54
sought to wriggle out of the acceptance of offer of appointment to the
post of Junior Executive (ATC) by them on the grounds that:- (i) offer of
appointment on the post of Junior Executive (ATC) was accepted by
respondents Nos.3 to 54 on the belief that post of Junior Executive (ATC)
in new scale is same and equivalent to post of Manager (ATC) in old
scale; (ii) respondents Nos.3 to 54 were under the belief and under the
impression that after completion of training they i.e. respondents Nos.3 to
54 would be posted on a regular post as Manager (ATC) or an equivalent
post and in pay-scales applicable to the post of Manager (ATC); and (iii)
respondents Nos.3 to 54 were nowhere informed (either in the
undertaking or appointment letter) that post of Junior Executive (ATC) is
two steps below the post of Manager (ATC).
73. The letter dated May 29, 2000 containing the offer of appointment
throws light on this aspect of the matter.
74. The letter dated May 29, 2000 not only offers appointment to
respondents Nos.3 to 54 to the post of Junior Executive (ATC) but goes
on to state that the post of Junior Executive (ATC) shall be in the pay-
scale of `8600-250-14600. It further states that on completion of
probationary period of two years on the post of Junior Executive (ATC),
respondents Nos.3 to 54 shall be placed in the scale of `10750-300-
16750, which is the scale attached to the post of Assistant General, a post
one step below the post of Manager (ATC). At that time, the post of
Manager (ATC) was in the pay-scale of ` 13000-350-18250. Respondents
Nos.3 to 54 who are qualified persons cannot feign ignorance about the
pay-scale attached to the post of Manager (ATC). The letter offering
appointment has been noted by us in paragraph 24 above. It clearly
records that above the post of Junior Executive is the post of Assistant
Manager and above that is the post of Manager. Respondents No.3 to 54
were clearly informed that they were being appointed as Junior
Executives.
75. In view of the clear prescription of pay-scales contained in the
letter dated May 29, 2000, we wonder where was the scope for the
respondents Nos.3 to 54 to remain under the belief/impression that the
post of Junior Executive (ATC) offered to them is the same and
equivalent to the post of Manager (ATC) or that after completion of
training they i.e. respondents Nos.3 to 54 would be posted on a regular
post as Manager (ATC) or an equivalent post and in pay-scales applicable
to the post of Manager (ATC).
76. We also do not agree that respondents Nos.3 to 54 were not aware
of the fact that post of Junior Executive (ATC) was two steps below the
post of Manager (ATC) at the time when they accepted the offer of
appointment to the post of Junior Executive (ATC). What more was
required to be told to respondents Nos.3 to 54? The clear and categorical
reference to pay-scales being offered to the respondents Nos.3 to 54 in
the letter dated May 29, 2000 left no scope for any doubt that the post of
Junior Executive (ATC) which was offered to respondents Nos.3 to 54
was two steps below the post of Manager (ATC).
77. Having consciously accepted appointment to the post of Junior
Executive (ATC) offered to them after being fully made aware of the fact
that the post of Junior Executive (ATC) is two steps below the post of
Manager (ATC) for which they had applied, in these circumstances, it is
not open to the respondents Nos.3 to 54 to challenge their appointment to
the post of Junior Executive (ATC).
78. A somewhat comparable situation had arisen before the Supreme
Court in the decision reported as (2008) 7 SCC 70 P.S. Gopinathan vs.
State of Kerela. In said case, appellant therein was directly recruited to
the post of Munsif and late promoted to the post of Subordinate Judge. In
exercise of powers conferred upon by clause (1) of Article 233 of
Constitution of India, on January 14, 1992 Governor, State of Kerala
appointed appellant to the post of District and Sessions Judge in Kerala
State Higher Judicial Service. On February 29, 1992 High Court of
Kerala issued an order posting appellant as Additional District Judge on
temporary basis. Subsequently, on July 31, 1992 another order was issued
stating therein that appellant was working as Additional District Judge on
temporary basis and shall function as regular Additional District Judge
with effect from July 31, 1992. The grievance raised by the appellant was
that the High Court committed an illegality in treating him as Additional
District Judge on temporary basis between the period from January 14,
1992 to July 31, 1992.
79. After noting the conspectus of facts and relevant statutory
provisions, the Supreme Court held that the High Court indeed committed
an error in treating the appellant as Additional District Judge on
temporary basis between the period from January 14, 1992 to July 31,
1992 but declined to grant any relief to the appellant essentially on the
ground that the appellant had readily accepted posting orders dated
February 29, 1992 and July 31, 1992 issued by High Court treating him
i.e. the appellant as temporary Additional District Judge. In essence, it
was held by the Supreme Court that since he had readily accepted the
posting orders dated February 29, 1992 and July 31, 1992 the appellant is
estopped from challenging the same. It would be most apposite to note
the following portions of the judgment of the Supreme Court:-
"The law of equitable estoppel by acquiescence has been
clearly stated by Fry, J. in Wilmott v. Barber, 1880, 15 Ch
D 96, 105: 43 LT
95. It has been said therein that the acquiescence which
will deprive a man of his legal rights should amount to a
fraud. A man is not to be deprived of his legal right unless
he has acted in such a way as would make it fraudulent for
him to set up those rights. What, then, are the elements or
requisites necessary to constitute fraud of that description,
are stated thus:
(i) The plaintiff (i.e. the party pleading acquiescence)
must have made a mistake as to his legal rights;
(ii) The plaintiff must have expended some money or
must have done some act (not necessarily upon the
defendant‟s land) on the faith of the mistaken belief;
(iii) The defendant, the possessor of the legal right, must
know of the existence of his own right which is
inconsistent with the right claimed by the plaintiff. If he
does not know of it, he is in the same position, as the
plaintiff, and the doctrine of acquiescence is founded upon
conduct with a knowledge of your legal rights;
(iv) The defendant, the possessor of the legal right, must
know of the plaintiff‟s mistaken belief of his rights. If he
does not, there is nothing which calls upon him to assert
his own rights; and
(v) The defendant, the possessor of the legal right must
have encouraged the plaintiff in his expenditure of money,
or in the other acts which he has done, either directly or
by abstaining from asserting his legal right. Where all
these elements exist, there is fraud of such a nature as will
entitle the court to restrain the possessor of the legal right
from exercising it, but nothing short of this will do.
These principles were followed and applied in many cases
in India.
26. ....It is, therefore, apparent from the second
appointment order that the appointing authority as well as
the posting authority have all along treated the appellant
as a temporary District Judge, but the appellant did not
object on both occasions when he joined on 7.3.1992 and
31.7.1992 of he being treated as a temporary District
Judge. The act and action of the appellant in accepting his
appointment as temporary one amounts to his assent to the
temporary appointment and the appellant throughout till
he raised an objection on 29.10.1992 has slept on his right
of being appointed permanently on the post of District &
Sessions Judge. By his conduct at the time of the issuance
of the order by the High Court on 29.2.1992 and
thereafter issuance of the second appointment order on
15.7.1992 with full knowledge of his own right and the act
of the High Court which infringes it, led the High Court to
believe that he has waived or abandoned his right. Lord
Campbel in Cairncross v. Lorrimer, 3 LT 130 held that
"generally speaking if a party having an interest to
prevent an act being done had full notice of its being done,
and acquiesce it, so as to induce a reasonable belief that
he consents to it and the position of the others is altered by
their giving credit to his sincerity, he has no more right to
challenge the act of their prejudice than he would have
had if it had been done by his previous license.
27. The aforesaid facts clearly make out an
acquiescence of the appellant of accepting order dated
14.1.1992 being treated as temporary appointment order
on the post of District & Sessions Judge and he cannot
now be permitted to change his position and claim the
permanent appointment from 14.1.1992 to claim seniority
on the post."
80. We next note the decision of a Division Bench of this Court in
W.P. (C) No.6085/2011 „Aniruddha Panda & Ors vs. Union of India &
Ors‟ decided on August 23, 2011. In said case, the petitioners were
appointed as Inspectors in Central Excise and Customs in the year 1990
and onwards; and were posted at Indore, Bhopal and other
Commissionerates. The petitioners had given undertaking(s) to the effect
that in case they are transferred to Delhi zone they would not claim
seniority on the basis of service rendered by them in the earlier
Commissionerate and that their seniority would be reckoned from date of
their joining Delhi zone. It was contended by the petitioners that they
were compelled and forced to give said undertaking(s) and thus said
undertaking(s) be ignored, which contention was repelled by the Court. It
was held that it is not open to the petitioners to resile from the
undertakings given by them after having taken advantage on the basis of
said undertaking. It would be relevant to note the following portion of the
judgment:-
"5. We do not find any merit in the contentions raised
by the petitioners. The petitioners were allocated
respective commissionerates and were assigned seniority
within the said commissionerates. Without their
consent/willingness, they could not be transferred out of
the commissionerates. On 17th October, 2003, in view of
the shortage of Inspectors in some of the
commissionerates, a policy decision was taken to call for
options from the Inspectors for inter-commisionerate
transfers. It was specified that their previous seniority
would not be counted and date of joining the Delhi zone
would be the relevant date for the purpose of seniority.
The petitioners, it appears did have reservation on the
aforesaid term, but they accepted the said term and gave
undertakings in writing in 2003. They gave up their claim
of seniority on the basis of past service in different
commissionerate and joined the Delhi commissionerate.
We do not think that they should be permitted to resile
from the said undertakings. They cannot take advantage of
the policy and transfer, but ignore the terms and
conditions on the basis of which they were transferred.
Sanctity and inviolability must be attached to the terms on
which the transfer was made and to the solemn
undertakings executed by the petitioners. These cannot be
brushed aside or ignored. In case there was no loss of
seniority, many others including those who were senior to
petitioners may have applied and expressed their
willingness to the transfer."
81. In this regard, it would also be apposite to note the following
observations made by Supreme Court in the decision reported as (2003) 5
SCC 163 A.K. Bindal & Anr. vs. Union of India & Ors:-
"The petitioners are officers of the two companies and are
mature enough to weigh the pros and cons of the options
which were available to them. They could have waited and
pursued their claim for revision of pay scale without
opting for VRS. However they, in their wisdom thought
that in the fact situation VRS was a better option available
and chose the same. After having applied for VRS and
taken the money it is not open to them to contend that they
executed the option under any kind of compulsion."
82. We now proceed to deal with the arguments advanced by the
learned senior counsel for respondents Nos.3 to 54.
83. In view of the facts that right from the commencement of selection
process the respondents Nos.3 to 54 were made aware of the fact that an
exercise of revision of pay-scales is underway in AAI and respondents
Nos.3 to 54 undertook to accept the change(s) made by AAI in said
regard and that respondents Nos.3 to 54 accepted the appointment to the
post of Junior Executive (ATC) with their eyes wide open, no mileage
can be drawn by respondents Nos.3 to 54 upon the facts that
advertisement in respect whereunder they had applied was for the post of
Manager (ATC) and that various documents/correspondence issued by
AAI to respondents Nos.3 to 54 before issuance of appointment letter
referred to the post of Manager (ATC). Likewise, nothing turns upon the
fact that the training imparted to respondents Nos.3 to 54 before joining
was the same as prescribed for the post of Manager (ATC)
84. In dealing with the submission that sixty vacancies against which
respondents Nos.3 to 54 had applied were to filled up on basis of 1982
Rules which did not envisage the post of Junior Executive (ATC), we
note following observations made by a Division Bench of this Court, of
which one of us namely Pradeep Nandrajog J. was a Member of, in Writ
Petition (Civil) No.3586/2008‟R.P. Nautiyal & Ors vs. Govt. of NCT of
Delhi & Ors‟ decided on November 24, 2010:-
"15. The only issue which needs to be decided is whether
a conscious decision taken by the Government not to fill
up the existing vacancies pending amendment to the rules
was a good justification to fill up the vacancies as per the
amended rules.
16. In the decision reported as 1997 (3) SCC 59 Dr.K.
Ramulu & Anr. vs. Dr. S. Suryaprakash Rao & Ors, the
Supreme Court had set aside a decision of the Tribunal
which directed promotion to be made by preparing the
panel with respect to the year when the vacancy arose and
as per the rules then in vogue.
17. It may be noted that the rules pertaining to AP
Animal Husbandry Service were amended on 12.6.1996
and the vacancies had accrued for the panel year 1995-96
since the existing rules were under amendment, the
Supreme Court reversed the decision of the Tribunal.
18. In para 6 of the decision the Supreme Court has
categorically held that: It is also clear from the record
that the Government had taken a decision not to fill up any
of the vacancies until the repealed rules were duly
amended.
19. It is true that in para 7, the Supreme Court noted
that the pre-amended Rule 4, which continued to exist
post-amendment, vide clause (ii) of the 2nd Proviso, gave
the power to the State Government not to prepare the
panel and to consider the cases though the vacancies were
available at a later stage evidenced by the expression "or
where the appointing authority does not consider it
necessary" and thereafter once again noted a conscious
decision not to fill up any pending vacancy till the process
of amendment was completed, and notwithstanding that
under the rules being considered by us there is no such
provision, yet we feel that the ratio of law laid down by the
Supreme Court in Dr.K. Ramulu‟s case (supra) is
attracted; evidenced by the observations of the Supreme
Court in para 12 of the decision in Dr.K.Ramulu‟s case
(supra). The process of reasoning relates to the
applicability of the ratio of law laid down by the Supreme
Court in the decision reported as 1983 (3) SCC 284 Y.V.
Rangaiah vs. J. Sreenivasa Rao. The Supreme Court
observed:-
"Therefore, the mere fact of subsequent
amendment does not take away the right to be
considered in accordance with the existing
Rules. As a proposition of law, there is no
dispute and cannot be disputed. But the
question is whether the ratio in Rangaiah
case would apply to the facts of this case. The
Government therein merely amended the
Rules, applied the amended Rules without
taking any conscious decision not to fill up
the existing vacancies pending amendment of
the Rules on the date the new Rules came into
force. (Underline emphasized)"
20. Thereafter, in para 13 of the decision in
Dr.K.Ramulu‟s case (supra), the Supreme Court once
again re-emphasized: "it is seen that since the
Government have taken a conscious decision not to make
any appointment till the amendment of the rules....
21. Sine we have rested our decision on the law, as we
understand it to be, flowing out of the decision of the
Supreme Court in Dr.K.Ramulu‟s case (supra), we need
not deal with the decision cited by learned counsel for the
respondents on the issue of retrospective application of an
amending rule. We are not dealing with the same for the
reason it is not in dispute that neither the amending rule of
2007 states it expressly that it is retrospective application
of an amending rule nor is there anything in the rule
which indicates it to be of retrospective operation. The
debate at the bar was not on the issue of retrospectivity. At
the crux of the debate is the effect of a conscious decision
taken by the Government not to fill up the posts in DASS
Grade II pending amendment to the rules constituting the
service.
22. On facts we have noted hereinabove as to how the
amendments incorporated in the original rules framed in
the year 1967 caused immense hardship to the Ministerial
Cadre and the requirement to amend the existing rules and
in respect whereof the hardship was first noted in the year
1999 and thereafter steps taken to undo the wrong and till
the wrong was undone, a conscious decision taken not to
effect promotions."
85. In the instant case, on April 05, 2000 a conscious decision was
taken by AAI to create the post of Junior Executive and that direct
induction of Executives in all cadres shall be at the level of Junior
Executive. In view thereof, respondents Nos.3 to 54 were
inducted/directly recruited in ATC cadre at the level of Junior Executive.
86. In the year 2005, 1982 Rules were replaced by 2005 Regulations.
2005 Regulations envisaged direct recruitment/induction in ATC cadre at
two levels/posts viz. Junior Executive (ATC) and Manager (ATC). 2005
Regulations further envisaged that a person before being inducted at the
level of Manager (ATC) should pass specialized courses/training. The
advertisement issued in the year 2007 inviting applications for the post of
Manager (ATC) prescribed that two years experience in the field of Air
Traffic Control is desirable. In the year 2010 it was decided by AAI that
two years work experience is required for direct recruitment for the post
of Manager (ATC).
87. From the aforesaid, it emerges that on April 05, 2000 a conscious
decision was taken by AAI that the post of Junior Executive (ATC)
would be created and one of the sources for appointment to said post
would be direct recruitment. In the light of said conscious decision, it was
further decided by AAI to recruit respondents Nos.3 to 54 in the newly
created post of Junior Executive (ATC) and accordingly letters dated May
29, 2000 were issued offering appointment to respondents Nos.3 to 54 to
the post of Junior Executive (ATC), which offer was accepted by
respondents Nos.3 to 54. The respondents Nos.3 to 54 could have
declined offer of appointment to the post of Junior Executive (ATC) but
they chose to not to do so. The respondents Nos.3 to 54 were mature
enough to weigh the pros and cons of the options which were available to
them. They, in their wisdom chose to accept the appointment to the post
of Junior Executive (ATC). After having accepted offer of appointment to
post of Junior Executive (ATC) and secured employment in AAI it is not
open to respondents Nos.3 to 54 to challenge their appointment to the
post of Junior Executive (ATC) or to contend that they accepted the
appointment to post of Junior Executive (ATC) under any kind of
compulsion.
88. In this regard, it would also be apposite to note that the
advertisement in respect whereof respondents Nos.3 to 54 had applied
was not in strict consonance with prescriptions contained in Recruitment
Rules existing at that time i.e. 1982 Rules for the post of Manager (ATC)
as would be evident from the following table:-
Item Prescription Prescription contained in
contained in 1982 advertisement issued for post of
Rules for direct Manager (ATC) for which
recruitment to respondents Nos.3 to 54 had applied
Aerodrome Officer
(Manager)
Age Not exceeding 26 Below 28 years
years
Eligibility Essential: (a) First class (60%) Engineering
Criteria Degree in
Electronics/Telecommunication/Radio
(A) Degree in Engineering of a recognized
Engineering or University: OR (b) Passed Sections A
Bachelor‟s Degree and B in first class (60%) of the
with Physics Institution Exams of the Institution of
Mathematics as one Engineers (India) in
of the subjects of a Electronics/Telecommunication/Radio
recognized Engg. Subject: OR (c) Passed in the
University or graduate Membership Exams of the
equivalent. Institution of Electronics and
Telecommunication Engineers (India)
in first class (60%) OR (d) Passed
OR Associate Membership Exam Parts II
and III/Sections A and B of the
Aeronautical Society of India
(b) (i) Should (Electronics/Avionics and a group) in
have passed first class (60%) OR (e) First Class
Matriculation or (60%) Master‟s degree in Science
equivalent with Physics or Maths as Principal
qualification from a subject, with Physics as one of the
recognized subjects during graduation.
University/Board/
School.
(ii) Commercial
pilot‟s license
obtained after
acquiring the
qualification at (i)
above.
(i) Direct
Recruitment:
Note : The candidate
shall have to undergo
voice test for
determining their
suitability for air
traffic control duties.
89. The fourth and fifth submissions advanced by the learned senior
counsel for the respondents Nos.3 to 54 relating to giving of undertaking
and acceptance of offer of appointment to the post of Junior Executive
(ATC) by respondents Nos.3 to 54 stands dealt by us in the preceding
paras.
90. Lastly, we note that learned senior counsel is not right in
contending that recommendations of Wage Revision Committee set up
the Chairmanship of Justice S. Mohan, a retired Judge of Supreme Court
of India only related to revision of pay-scales and thus AAI could not
have restructured ATC cadre and created post of Junior Executive (ATC)
under the garb of implementation of recommendations of Wage Revision
Committee. In this regard, suffice would it be to note that Office
Memorandum dated June 25, 1999 (which has been extracted by us in the
preceding para) issued by Department of Public Enterprises prescribed
the Public Enterprises to introduce certain intermediary scales in order to
bring the pay-scales of posts in Enterprises at par with DPE guidelines.
91. The upshot of the above discussion is that the present appeal
deserves to be allowed. The impugned judgment dated July 17, 2012
passed by the learned Single Judge is hereby set aside. The writ petition
filed by respondents No.3 to 54 is dismissed.
92. Parties shall bear their own costs all throughout.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 31, 2015/mamta
