Sh. J. Chandra Hassan vs M/S Indian Airlines Ltd. & Ors
2017 Latest Caselaw 219 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 2333/1997

%                                                        13th January, 2017

SH. J. CHANDRA HASSAN                                          ..... Petitioner

                          Through:       Mr.   Anoop      Awasthi          and
                                         Ms.Madhumita, Advocates.

                          versus

M/S INDIAN AIRLINES LTD. & ORS                              ..... Respondents

                          Through:       Mr. Lalit Bhasin, Advocate for R-1 &


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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition under Article 226 of the Constitution of India was

allowed by a detailed judgment passed on 1.7.2013. The writ petition was

allowed by granting to the petitioner notional promotion to the post of

Assistant Manager/Security Officer/Vigilance Officer with effect from

11.11.1993 as also certain consequential benefits. Interest was also granted.

2. The judgment dated 1.7.2013 was carried in appeal by the respondent

no. 1 and this appeal being LPA No. 690/2013 was disposed of by a consent

order dated 7.3.2014 by setting aside the judgment dated 1.7.2013. Counsel

for the parties state that the judgment passed on merits on 1.7.2013 by this

Court in this writ petition was set aside by the consent order dated 7.3.2014

because the promotion granted to the petitioner would have effect on one

Mr. J. Sathyanarayan, but who was not made a party to the writ petition, and

therefore, the writ petition should not have been decided in the absence of

Mr. J. Sathyanarayan. The order dated 7.3.2014 passed by the Division

Bench of this Court in LPA No. 690/2013 reads as under:-

"1. This appeal is disposed of today by a consent order.

2. It is agreed by learned counsel for the parties that the matter may be remanded back for a fresh decision after impleadment of one Mr. J. Sathyanarayan against whom the respondent no.1 herein had a grievance that in the selection process he (Mr. J. Sathyanarayan) had secured 60% marks while the appellant had secured 70.05% marks but still Mr. J. Sathyanarayan was ranked senior to the appellant. It is also agreed that fresh decision to the Writ Court shall be confined only to the point which has been decided in favour of respondent no.1.

3. We, therefore, by this consent order remand back the matter for fresh disposal of the writ petition after impleadment of Mr. J. Sathyanarayan and giving him an opportunity of hearing. The matter shall now be taken up by the learned Single Judge on 28th March, 2014. Before that date, the respondent no.1 shall place on record the amended memo parties impleading Mr. J. Sathyanarayan as one of the respondents in his writ petition. The learned Single Judge shall then issue notice to Mr. J. Sathyanarayan before deciding the matter afresh.

4. All the pending applications also stand disposed of."

3. Pursuant to the order dated 7.3.2014 of the Division Bench, Mr.

J. Sathyanarayan was impleaded as respondent no. 3 in this writ petition.

After various endeavors to serve this respondent no. 3, the respondent no. 3

was firstly served by personal service as noted in order of the Registrar of

this Court dated 21.7.2015. Respondent no. 3 was again served through his

employer being the respondent no. 1 and this is so noted in the order of the

learned Single Judge of this Court dated 14.10.2015.

4. Respondent no. 3 in spite of service has not appeared and has

not contested this writ petition.

5. In view of the fact that the only reason for remand of the case

by the Division Bench in LPA No. 690/2013 by order dated 7.3.2014 was to

ensure any response of the respondent no. 3 to the writ petition, and since

respondent no. 3 has not appeared and contested the case, accordingly, in

my opinion, this writ petition again would stand disposed of in terms of the

observations, reasoning and conclusions given in the judgment dated

1.7.2013 and which are again adopted today. The judgment dated 1.7.2013

passed in this writ petition earlier reads as under:-

"1. This writ petition is filed by the petitioner-Sh. J. Chandra Hassan praying for grant of promotion to the post of Assistant Manager/Security Officer/Vigilance Officer (post being same only nomenclature being different) w.e.f 22.8.1994.

2. Before me, on behalf of petitioner the entitlement to promotion is prayed on two counts. The first count is that the petitioner was empanelled alongwith one Sh. J. Sathyanarayan in the recruitment process pursuant to the recruitment process of the year 1993 and the petitioner had higher marks. As per the recruitment process of the year 1993, the panel was prepared for one year w.e.f 11.11.1993. In this selection process of the year 1993 for which the panel was effective till 10.11.1994, petitioner received 70.05% marks whereas Sh. J. Sathyanarayan secured only 60% marks. It is accordingly argued that the petitioner having received higher marks in the process of selection which included the written test and the interview, Sh. J. Sathyanarayan could not have been appointed over and above the petitioner. Second count which is

urged for seeking promotion is that the petitioner was a Scheduled Caste (SC) candidate and since in the relevant recruitment process besides four general category candidates there was vacancy for one SC candidate and one ST candidate, and if Sh. J. Sathyanarayan (SC candidate) is to be taken as validly appointed to the post of Assistant Manager, then the petitioner pursuant to the Ministry of Home Affairs notification dated 2.4.1979 was entitled to convert the unfilled vacancy of ST into SC vacancy inasmuch as the ST vacancy was a carry forward vacancy. It is argued that after three consecutive recruitment years of the ST vacancy arising in terms of the circular dated 2.4.1979, ST vacancy can always be converted in the absence of an ST candidate to an SC vacancy and the petitioner being an SC candidate ought to have been appointed to the post.

3. So far as the first submission made on behalf of the petitioner is concerned, the petitioner places reliance upon the recruitment and promotion rules of the respondent No.1 filed as Annexure-C to the writ petition. The second proviso to Rule 9 of Chapter II pertaining to direct recruitment and promotion rules is relied upon and which provides that only on all things being equal, a seniority of a person or a higher grade of a person will entitle such person to be appointed in preference to the other person in the panel. The relevant proviso of the said Rule 9 reads as under:-

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

4. In response, on behalf of respondents reliance is placed upon the guidelines which have been issued in terms of the respondent No.1‟s guidelines/letters dated 28.3.1973. The relevant portion of the guidelines which is relied upon are paras 18 and 19 of the guidelines for Selection Board issued on 28.3.1973 and which read as under:-

"18. Selection from within Indian Airlines Successful Candidates (i.e. those who have obtained 60% marks and above) will be placed on a panel in order of seniority. For this purpose persons in the higher grade will be ranked senior to persons in the lower grade. Within each grade seniority will be reckoned by length of service in the grade. Those of the candidates who have obtained 80% marks and above will be termed as „Outstanding‟. They will be given priority for appointment but, on appointment, their seniority vis-a-vis persons appointed in the same batch with them will be in the order shown in the panel mentioned above.

19. Direct Recruitment from outside Indian Airlines:

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

5. On the basis of aforesaid paras, it is contended by the respondents that even if a person in the selection process receives higher marks, such person is not entitled to be appointed if in the panel there is a person of the organization who is ranked senior to the person though he has received lower marks in the selection process. Great stress is laid on the first line of para 18 which states that successful candidates will be placed on a panel in order of seniority and persons in higher grade will be ranked senior to persons in lower grade. It is argued that since it is not disputed on behalf of the petitioner that Sh. J. Sathyanarayan was senior to the petitioner in the post of Security/Vigilance Assistant, therefore, for promotion to the post of Assistant Manager/Security Officer/Vigilance Officer the petitioner will be ranked below to Sh. J. Sathyanarayan.

6. In my opinion, the argument as urged on behalf of petitioner relying upon the second proviso to Rule 9 of the recruitment rules is correct and has to be accepted. The argument and the submission which is urged on behalf of the respondents carries no substance whatsoever for two reasons. The first reason is that the guidelines cannot be used to amend specific recruitment and promotion rules. Even if the recruitment and promotion rules are not statutory, the amendment to such rules necessarily will have to be by means of a specific amendment which must do away with the direct application and categorical language of the second proviso to Rule 9 which specifically states that only on all things being equal, seniority or higher grade will be given preference, and meaning thereby if all things are not equal a person who has received higher marks in the direct recruitment process has to be appointed and a person who has received lesser marks in the direct recruitment process cannot be placed above the person with the higher marks merely on the ground of seniority or higher grade. Nothing contained in paras 18 and 19 of the guidelines issued on 28.3.1973 in any manner whittles down the scope and effect of the second proviso to Rule 9 of the recruitment and promotion rules. The second reason for rejecting the argument urged on behalf of the respondents is that even assuming that there is some sort of conflict between paras 18 and 19 of the guidelines dated 28.3.1973 and the recruitment and promotion rules then there will have to be harmonious construction/interpretation of the rules unless the language does not permit of harmonious construction. As already stated above, nothing contained in paras 18 and 19 states that even if marks are different i.e a person receives higher marks, yet he will still be placed in the merit panel lower than the person who receives lesser marks merely on the ground of the fact that the person who receives lesser marks is otherwise senior or of a higher grade. Paras 18 and 19 of the guidelines dated 28.3.1973 are only in the nature of explanation to the second proviso to Rule 9 of the recruitment and promotion rules and in no manner repeals the second proviso to the aforesaid Rule 9.

7. I, therefore, hold that the respondents were not justified in giving promotion to Sh. J. Sathyanarayan over the petitioner in terms of panel which was approved on 11.11.1993 and which was valid up to 10.11.1994. There is no valid basis for the respondents to justify their stand in their counter-

affidavit that seniority and grade will take preference even though a candidate in the direct recruitment process receives higher marks than the person who is given promotion merely on the ground of seniority or higher grade.

8. So far as the first argument urged on behalf of the petitioner for converting the ST vacancy into an SC vacancy is concerned, the argument does not merit acceptance. This is for the reason that it is the common case of both the parties that the third year in which the entitlement exists for an SC candidate to convert the ST vacancy into an SC vacancy is that the ST vacancy has not remained filled for the third direct recruitment year i.e the third year need not be a third calendar year or the financial year for arising of the ST vacancy but has to be the third recruitment year in which the recruitment actually takes place. In the present case, on record, it is quite clear that the ST vacancies existed only at two points of time till 1993/1994. For the ST vacancy of the year 1979 first recruitment was in the year 1986. In the year 1979, the petitioner was not even the employee of the respondent no.1. This vacancy of 1979 as per the roster filed before me remained continuously unfilled till 1986. Recruitments took place in this regard for the ST vacancy firstly in the year 1986 and secondly in the year 1993/1994 and thirdly in the year 1997. Thus so far as the recruitment process of the year 1993 which is in question is concerned, the said year in 1993 will only be the second recruitment year and not the third recruitment year. Admittedly, as per the common case of the parties, it is only in the third recruitment year for the ST vacancy that the ST vacancy be converted to an SC vacancy and for 1993/1994 the same was only a second year. In the third year of recruitment which is in the year 1997, the ST vacancy was filled up by an ST candidate. If in the year 1997 when the third recruitment took place, the ST vacancy was filled in by an ST candidate namely Sh. Kumud and hence there does not arise conversion of the ST post/vacancy into an SC post/vacancy on the basis of the Government of India‟s circular dated 2.4.1979. This argument urged on behalf of the petitioner therefore is rejected.

9. In view of the fact that the petitioner succeeds so far as the first contention is concerned, inasmuch as that the petitioner could not have been refused promotion to the post of Assistant Manager/Vigilance Officer/Security Officer in the recruitment process of the year 1993/1994 on the ground that as Sh. J. Sathyanarayan was senior to the petitioner, the petitioner will have to be granted seniority as an Assistant Manager/Security Officer/Vigilance Officer with effect from the date of creation of panel on 11.11.1993 and subject to vacancy existing, otherwise the date will be the date of vacancy. The petitioner, however, has not worked at the higher post of the Assistant Manager/Security Officer/Vigilance officer and was granted promotion to such post only from the year 2007 as per the statement made before me by the counsel for the petitioner on instructions from the petitioner who is present in person in Court. Since the petitioner has not worked at the higher post and has not performed the duties of the higher post, I am not inclined to grant higher emoluments to the petitioner from the year 1993 to the year 2007 in the facts and circumstances of the present case, however, the petitioner will get notional

promotion to the post of Assistant Manager/Security Officer/Vigilance Officer w.e.f 11.11.1993 whereby when the petitioner actually ought to have been promoted to the post of Assistant Manager/Security Officer/Vigilance Officer. The pay/salary/monetary emoluments which would be granted to the petitioner as in the year 2007 on his actual promotion will at that stage be that salary/pay package which would be available to the petitioner on the petitioner having been granted promotion on 11.11.1993. As already clarified above, no arrears of emoluments would be granted at higher pay-scale to the petitioner from 11.11.1993 till his promotion in the year 2007. Of course in addition to the notional promotion w.e.f 11.11.1993, the petitioner will get all consequential benefits including higher emoluments as Assistant Manager w.e.f 2007 and for his further promotions and further higher scales of pay as an employee of the organization. The petitioner will also be entitled to interest at the rate of 9% per annum simple on the amount which would be due to him at a higher scale of pay from the year 2007 till disposal of the writ petition. The arrears from the year 2007 from the date when the petitioner was actually promoted to the post of Assistant Manager/Security Officer/Vigilance Officer till date be paid to him within a period of three months from today. In case, these arrears are not paid within three months from today, interest payable thereafter will be at 12% per annum simple.

10. The writ petition is accordingly allowed and disposed of in terms of the aforesaid observations."

6. The writ petition is, accordingly, allowed and disposed of as

per the discussion in the same and as per the operative portion as contained

in Para 9 of the judgment dated 1.7.2013. Parties are left to bear their own

costs.

7. Respondent no. 1 is requested, in view of the facts of the

present case, to take expeditious steps to pay the amounts which will be due

to the legal heirs (including widow) of the erstwhile petitioner (since

deceased) and steps in this regard be completed preferably within a period

of two months from today.

JANUARY 13, 2017/AK                                     VALMIKI J. MEHTA, J