Rajpal Chataula vs National Aviation Company Of ...
2015 Latest Caselaw 837 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 578/2001

%                                              30th January , 2015

RAJPAL CHATAULA                                             ..... Petitioner

                           Through:      Mr. Vinay Sabharwal and Ms. Neha
                                         Sabharwal, Advs.

                           versus

NATIONAL AVIATION COMPANY OF INDIA LTD. (FORMERLY AIR
INDIA LTD.) AND ORS.                     ..... Respondents

                           Through:      Ms. Meenakshi Sood, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, the petitioner, an employee of the respondent-Air India Ltd.,

challenges the action of the respondent/employer in not giving the petitioner

promotion from the post of Traffic Supervisor/ Senior Office Assistant to the

post of Assistant Manager for the promotion exercise of the year 1996. The

post of Traffic Supervisor/Senior Office Assistant is a Group B post and the

post of Assistant Manager is the lowest rung post in Group A posts.

Petitioner has got the requisite promotion w.e.f 1997, but, he claims

promotional benefits from one year earlier viz 1996.

2. The promotion policy in the present case is admittedly the

policy dated 8.5.1996. The defence of the respondent/employer for denying

the promotion to the petitioner is based upon paras 5, 6.2, 6.3.2, 6.6 and

more importantly read with para 7.1, of the policy, and the cumulative effect

of which paras as contended by the respondent is that after apprising the

performance of the petitioner for the earlier years and seeing the marks of

the petitioner in the interview, petitioner for being successful in the

promotion exercise ought to have secured a total of 70 marks out of 100

marks, but since the petitioner had only secured 64.33 marks out of 100

marks, therefore, the petitioner was not entitled to and so was denied

promotion. Para 7.1 of the promotion policy dated 8.5.1996 reads as under:-

"7.1 The staff who secures total 70 marks, consisting of Annual Performance Appraisal and Interview Marks will be eligible for promotion to the higher grade."

3. Petitioner on the contrary relies upon para 12 of the promotion

policy which creates exception in favour of SC/ST employees, petitioner

being an SC employee, and as per this para 12, the necessary governmental

orders have to be followed and whereunder petitioner was entitled to

promotion automatically once he was in the zone of consideration and was

considered in the promotion process. The applicable governmental order in

this case admittedly is an Office Memorandum of the Government of India,

Ministry of Personnel, Public Grievances and Pensions dated 10.4.1989 with

the relevant para thereof being para 6.3.2(ii). Para 12 of the promotion

policy of the respondent/employer dated 8.5.1996 and para 6.3.2(ii) of the

DOPT circular dated 10.4.1989, read as under respectfully:-

"Para 12 of the Promotion Policy

12. The above Promotion Policy is subject to reservations for SC/ST employees as per the Presidential Directives.

Para 6.3.2(ii) of the DOPT circular dated 10.4.1989

(ii) In promotion by selection to posts/services in Group 'B' within Group 'B' within Group 'B' and from Group 'B' to the lowest rung in Group 'A', selection against vacancies reserved for SCs and STs will be made only from those SCs/STs officers, who are within normal zone of consideration prescribed vide the Department of Personnel and A.R. O.M. No. 22011/3/76-Estt.(D) dated 24th December, 1980. Where adequate number of Scs/Sts candidates are not available within the normal field of choice, it may be extended of five times the number of vacancies and the SCs/STs candidates coming within the extended field of choice should also be considered against the vacancies reserved for them. If candidates from SCs/STs obtain on the basis of merit with due regard to seniority, on the same basis as others, lesser number of vacancies than the number reserved for them, the difference should be made up by selecting candidates of those communities, who are in the zone of consideration, irrespective

of merit and 'bench mark' but who are considered fit for promotion." (underlining added)

4. The case of the petitioner is that even if the petitioner does not

meet the 'bench mark', as long as the petitioner is not declared unfit for

promotion, and since the existing vacancies were not being filled up,

petitioner was entitled to promotion to the post of Assistant Manager for the

year 1996. Petitioner in this regard has raised the following ground (VIII) in

the writ petition:-

"VIII. Because the promotional exercise in question was violative of the Circular dated 10.3.89 issued by the DOPT Government of India (Annexure 15 hereto). According to the Circular if the candidates from SC's/ST's obtain on the basis of merit with due regard to Seniority, on the same basis as others, less number of vacancies than the number reserved for them, the difference should be made up by selecting candidates of its communities who are in the Zone of consideration, irrespective of merit and bench mark."

5. In the counter-affidavit, the respondent/employer has not given

any specific reply to this ground and has only made a general denial with

respect to this ground by stating that since petitioner has not given a copy of

the DOPT circular dated 10.4.1989, respondent cannot comment to the

same. However, this stand of the respondent is misconceived as not only the

respondent is bound as an employer government organization by the relevant

DOPT circular but also because the petitioner has filed with the writ petition

the letter of the respondent dated 5.6.2000 and para 3 of which shows that

respondent is aware of the various DOPT circulars till November 1991 i.e

the respondent would be aware even of the subject circular dated 10.4.1989

i.e two years prior to 1991. Also, reference of the DOPT circular of 1989

was made by the petitioner in the proceedings before the National

Commission for Scheduled Castes and Scheduled Tribes, and which

proceedings were contested by the respondent unsuccessfully for the

promotion of the petitioner for the year 1997.

6. A reading of the counter-affidavit shows that the

respondent/employer admits that petitioner has to get promotion from Group

'B' post to the lowest rung post in Group 'A' and therefore para 6.3.2(ii) of

the DOPT circular dated 10.4.1989 will apply because it is not the case of

the respondent that all the vacancies were filled or vacancies were not

available for promoting the petitioner to the posts of Assistant Managers in

the promotion exercise for the year 1996. In view of para 6.3.2(ii) of the

DOPT circular dated 10.4.1989, and which has necessarily to be read with

para 12 of the applicable promotion policy of the respondent dated 8.5.1996,

consequently, even if the petitioner does not meet the bench mark, petitioner

is still entitled to promotion once the necessary vacancies did exist in the

posts of the Assistant Manager with the respondent for the year 1996.

7. There is no defence of the respondent/employer that there were

no vacancies, and the only defence of the respondent was that he did not

meet the bench mark of 70 marks out of 100 marks. This defence is

specifically stated in preliminary objections 3 and 4 of the counter-affidavit

of the respondent/employer and which paras read as under:

" 3. That the Petitioner has misrepresented before this Hon'ble Court with regard to the promotion policy dated 8.5.96 in representing that the promotion to the post of Asst. Manager which is a Group-A post is based merely on seniority. It is submitted that promotion from the supervisory post of Traffic Supervisor (Group-B post) to the post of Asst. Manager (Group-A) is based on merit i.e by selection. As per promotion policy the selection is based on Annual Performance Appraisal for last five year and on the basis of personal interview (60 and 40 mark respectively). As per promotion policy the promotions to the post of Asst. Manager is subject to suitability and 60% of total eligible candidates are to be promoted. Under the promotion exercise for the year 1996 the petitioner neither achieved qualifying marks nor was he within the zone of promotability i.e even if he would have achieved the qualifying marks he could not have been promoted as the last SC candidate listed was at Sr. No. 472 while the petitioner was listed at Sr. No.522 of the seniority list. As far as the promotion exercise for the year 1997 is concerned, the fact is that he has been promoted w.e.f. 1.7.1997 with all consequential benefits. It is, therefore, submitted that the Petitioner has no legal right to file the present writ petition more so after having duly considered for promotion.

4. That in the promotion exercise for year 1996 a total 741 staff (SC 105, ST 30 GEN 606) were called for interview. The Petitioner Mr. Raj Pal Chautala (SC), Staff No. 41032, Seniority No. 522, although was not meeting the eligibility criteria, was called for interview as some of his juniors had

completed the requisite eligibility criteria stipulated in the promotion policy and were eligible to be called for interview. The last SC staff promoted was at Seniority No. 472 whereas the Petitioner was at Seniority No. 522. Further, the Petitioner even otherwise was not eligible having scored only 64.33 marks out of 100. It is also pertinent to mention that between the last SC staff promoted i.e. from seniority No. 472 to Seniority No. 522 there were 5 more SC staff although suitable but could not be promoted since they were not within the promotability zone i.e 60% of the eligible candidates, as laid by the promotion policy. It is thus amply evident that the Petitioner neither has any right for promotion w.e.f. 1.7.96 nor any cause of action has accrued in his favour for filing the present writ petition, and therefore the writ petition is liable to be dismissed at the threshold."

8. In view of the above, the following conclusions emerge:-

(i) The admitted promotion policy which is applicable is the promotion

policy of the respondent/employer dated 8.5.1996.

(ii) No doubt, under the policy with respect to General Candidates, such

general candidates cannot get promotion unless they achieve the bench mark

of 70 marks out of 100 marks, divided as 60 marks for appraisal reports and

40 marks for interview, however the selfsame policy contained in para 12 is

that there were to be exceptions for SC/ST employees in terms of the

Presidential Directives. The Presidential Directives in the present case

would be the DOPT circular dated 10.4.1989 and which provides that once

there are vacancies with respect to the officers in the zone of consideration,

petitioner admittedly being in the zone of consideration inasmuch as he was

called for the interview and his reports were apprised, vacancies could not be

left unfulfilled on the ground that an SC candidate in the zone of

consideration did not meet the bench mark.

9. The only other ground for denying promotion would be in

terms of para 6.3.2(ii), if the petitioner was declared unfit for promotion

other than that for the reason that he did not meet the bench mark, but this is

not the case of the respondent that the petitioner was unfit for promotion for

the promotion exercise for the year 1996.

10. Therefore, petitioner being an SC candidate was covered under

para 12 of the promotion policy of the respondent/employer dated 8.5.1996

read with para 6.3.2(ii) of the DOPT circular dated 10.4.1989 which

provided that all SC candidates in the zone of consideration have to be

granted promotion even if the officers do not meet the bench mark, once

there are vacancies and there is no reason to hold them unfit for promotion.

Hence, petitioner was entitled to promotion from the post of Traffic

Supervisor/Senior Office Assistant to the post of Assistant Manager for the

year 1996.

11. The issue will then arise is that what should be the benefits

which are to be given to the petitioner, inasmuch as, petitioner has not

worked on the promoted post. No doubt, there is a doctrine of 'no work no

pay', however, the Supreme Court in the judgment in the case of State of

Kerala & Ors. Vs. E.K.Bhaskaran Pillai (2007) 6 SCC 524 has held that

this doctrine is not an inflexible one and it depends upon the facts of each

case as to whether an employee should or should not be denied the monetary

benefits. In the present case, petitioner cannot be denied monetary benefits

inasmuch as, petitioner has not refused to work on the promoted post.

Counsel for the petitioner very fairly has agreed that petitioner by partially

respecting the doctrine of 'no work no pay', but however it was the

respondent who prevented the petitioner from working at the promoted post

and non-working on the promoted post was not on account of any act or

omission of the petitioner, the petitioner will be satisfied if the petitioner

gets 40% of the total monetary emoluments which were to be given by the

respondent to the petitioner on the promoted post of Assistant Manager for

the year 1996 and that the petitioner should get consequential benefits for

the subsequent years taking the petitioner as promoted in 1996.

12. Accordingly, this writ petition is allowed. Petitioner will be

held to be entitled to the promotion to the post of Assistant Manager for the

year 1996 with all consequential benefits. Petitioner however will only get

40% monetary benefits limited to the year 1996 of the post of Assistant

Manager and petitioner on such amounts will also be entitled to interest at

5% per annum simple from 1.1.1997 till the date of payment of such amount

for the year 1996 by the respondent to the petitioner. It is clarified that

petitioner will also get all consequential monetary emoluments taking that

the petitioner would be promoted to the post of Assistant Manager from the

year 1996 along with pendente lite and future interest @ 5% p.a. simple.

Respondent is directed to make the necessary payments to the petitioner

positively within a period of three months from today. Parties are left to

bear their own costs.

JANUARY 30, 2015                                 VALMIKI J. MEHTA, J
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