Ashutosh Vs. Indian Airlines Ltd. & Ors  Insc 420 (18 April 2007)
S. H. Kapadia & B. Sudershan Reddy
CIVIL APPEAL No. 2024 OF 2007 (Arising out of S.L.P. (C) No. 10446/2006)
The short question which arises for determination in this civil appeal is
whether the appellant (employee) is entitled to seniority in the matter of
promotion to the post of Deputy Chief Aircraft Engineer vis-`-vis Respondent
nos. 3 to 17.
On 31.3.1992, a Settlement was reached between Indian Airlines and All India
Aircraft Engineers' Association under which the then existing designations were
revised as follows:
"REVISION OF SCALES OF PAY:
i) With effect from 1.4.1989, the existing designations and the scales of
pay applicable will be as under:- Existing Designation (Scale of Pay) Revised
Designation (Scale of Pay) Asstt. Aircraft Engineer (Rs.2005-50-2105-60-
2825-70-2965) Asstt. Aircraft Engineer (Rs.2005-50-2105- 60-2825-70-2965)
Aircraft Engineer (Rs.2285-60-2825-70- 3035-120-3395) Aircraft Engineer
(Rs.2765-60-2825- 70-3035-120-3275- EB-120-3875) Sr. Aircraft Engineer
(Rs.2765-60-2825-70- 3035-120-3875) Aircraft Engineer (Rs.2765-60-2825-
70-3035-120-3275- EB-120-3875) Supdtg. Aircraft Engineer (Rs.2965-70-3035-
120-4115) Sr. Aircraft Engineer (Rs.2965-70-3035- 120-4115) (ii) With effect
from 1st April, 1992 a new cadre of Dy. Chief Aircraft Engineer in the pay
scale of Rs.3155-120-4235 will be created.
The strength of Dy. Chief Aircraft Enginers will be maintained at 20% of the
total standard force of the cadre of Aircraft Engineers (Aircraft Engineer to
Dy. Chief Aircraft Engineer)."
The revised designation was to operate from 1.4.1989.
By the said Settlement dated 31.3.1992, appellant was redesignated as
Aircraft Engineer whereas respondent nos. 3 to 17 were redesignated as Sr.
Aircraft Engineer w.e.f.
1.4.1989. Under the said Settlement, approval qualification had to be
acquired by Sr. Aircraft Engineer (feeder post) for being promoted as Deputy
Chief Aircraft Engineer. Under the Settlement, for promotion to the post of
Deputy Chief Aircraft Engineer, the Sr. Aircraft Engineer had to obtain
approval of nine groups. Under the Settlement, the post of Deputy Chief
Aircraft Engineer was created for the first time with effect from 1.4.1992 to be
filled from the said feeder post of Sr. Aircraft Engineer. The candidate was
required to acquire specified number of points before 1.4.1995. However, the
Jet Shop which was established in 1992 for Delhi by Indian Airlines did not get
its approval in time from DGCA (Directorate General of Civil Aviation).
Therefore, the Association requested the Management to grant conditional
promotion in various grades to enable employees like respondents 3 to 17 to
complete their eligibility before the cut-off date. This request was made as
employees like respondents 3 to 17 would have stagnated on account of above
anomalies created by Settlement dated 31.3.1992. Therefore, on 23.7.1993, the
Management and the Union entered into Discussions with regard to conditional
Vide Order dated 7.2.1994, respondents 3 to 17 were given conditional
promotions to the post of Deputy Chief Aircraft Engineers with effect from
1.4.1992/ 1.4.1993 respectively. They were required to obtain nine approvals by
31.3.1995. As stated above, the Jet Shop set up by Indian Airlines for Delhi
was approved only in February, 1995, therefore, respondents 3 to 17 could not
fulfil the requisite qualification by the cut-off date. On the other hand,
appellant herein completed two years service in the post of Sr. Aircraft
Engineer on 31.3.1993. He acquired the requisite qualification on 15.12.1993.
According to the appellant, till today respondent nos. 3 to 17 have failed
to acquire approval qualification. According to the appellant, the cut-off date,
namely, 1.4.1995 has since passed. Appellant states that on 1.4.1991 he as well
as respondents 3 to 17 were Sr. Aircraft Engineers. Appellant states that on
7.2.1994 respondents 3 to 17 were conditionally promoted with effect from
1.4.1992/1.4.1993. Therefore, according to the appellant, he was qualified for
promotion on 15.12.1993 whereas respondents 3 to 17 till date have not acquired
the requisite qualification. Appellant, therefore, prayed that respondents 3 to
17 were not entitled to promotions to the post of Deputy Chief Aircraft
Engineers. It is the case of the appellant that he has been ultimately promoted
to the post of Deputy Chief Aircraft Engineer vide order dated August, 2000
with effect from 1.10.1999. However, he has not been given promotion as Deputy
Chief Aircraft Engineer from 15.12.1993 when he acquired the qualification and,
therefore, Indian Airlines had erred in showing respondents 3 to 17 as senior
to the appellant herein in the post of Deputy Chief Aircraft Engineer with
effect from 1.4.1992/1.4.1993.
The main argument advanced on behalf of the appellant was that seniority in
a cadre under the Promotion Rules did not entitle respondents 3 to 17 for
promotions to the higher post of Deputy Chief Aircraft Engineer unless the
candidate acquired the Approval Qualification prescribed by such Rules.
It was submitted that eligibility under the said Rules was different from
seniority. It was submitted on behalf of the appellant that under the Promotion
Rules what was contemplated was "seniority amongst the qualified". It
was submitted that appellant had acquired the qualification on 15.12.1993 and
since respondents 3 to 17 did not acquire the requisite qualification appellant
was entitled to be promoted not from 1.10.1999 but from 15.12.1993 and,
consequently, appellant has been discriminated vis-`-vis respondents 3 to 17
inasmuch as the said respondents were promoted with effect from
1.4.1992/1.4.1993 herein. It was urged on behalf of the appellant that the
qualification prescribed by the Recruitment and Promotion Rules cannot be
overruled by Industrial Settlement dated 31.3.1992 or by Note of Discussions
dated 23.7.1993. It was urged on behalf of the appellant that, in any event,
Industrial Settlement dated 31.3.1992 and the Promotion Rules had to be read in
tandem; that the Industrial Settlement retained the qualification prescribed by
the Recruitment and Promotion Rules; that even the Note of Discussions retained
the said qualifications but it is the Management who said that as a one time exercise,
weightage should be given to seniority and as a one time exercise respondents 3
to 17 should be allowed to be promoted to the posts of Deputy Chief Aircraft
Engineers in terms of Order dated 7.2.1994 (Exhibit 'P-4'). It was urged that
the Recruitment and Promotion Rules only referred to "seniority amongst
qualified" as the criteria of promotion to the post of Deputy Chief
Aircraft Engineer which could not be eliminated either by the Industrial
Settlement dated 31.3.1992 or by Note of Discussions dated 23.7.1993. It was
urged that the appellant herein acquired the approval qualification on
15.12.1993 but vide impugned order dated 7.2.1994 the Management gave
conditional promotions to respondents 3 to 17 with effect from
1.4.1992/1.4.1993 which created discrimination which violated the appellant's
fundamental right to equality under Article 14 of the Constitution.
Before dealing with the above arguments, we quote hereinbelow para 13 of the
Indian Airlines Recruitment and Promotion Rules, as applicable to Aircraft
"The Board shall proceed to arrange their selections in order of
inter-se seniority amongst the candidates who have qualified (other than the
candidates who have been marked as 'outstanding' in which case such candidates
will be placed at top of the list) and shall also keep a suitable number of
candidates on the panel/waiting list. Such a panel may be used for filling
vacancies that may arise subsequently and will be valid for a period of two
years in respect of all posts in erstwhile Grade = and 3/6 (and its equivalent
and one year in other cases, from the date of the approval of such panel by the
competent authority whereafter the procedure as outlined above may be followed
afresh; provided however, i) the Managing Director in his sole discretion and
being satisfied on the relevant considerations, may extend the validity of such
panels in other than erstwhile Grade = and 3/6 for a further period of six
months at one time subject to a maximum of one year in respect of any panel.
ii) In preparing the panel the Board shall pay attention to the circulars
and instructions issued by Government of India from time to time in matter of
safeguarding adequate representation to members of Scheduled Castes/ Scheduled
Tribes etc." (emphasis supplied) We also quote hereinbelow the relevant
recital from the Industrial Settlement dated 31.3.1992;
"WHEREAS after signing the MOU with the Indian Airlines hereinafter
called 'Management' on 26.2.1989 on their Charter of Demands for the wage period
1.10.1985 to 31.8.1990 (copy enclosed and marked as Annexure 'A'), the All
India Aircraft Engineers' Association, hereinafter called "Association'
asked for payment of additional qualification pay, creation of new pay scales
and certain other allowances to the Aircraft Engineers.
2. AND WHEREAS the Management could not accept the demand of the
3. AND WHEREAS this dispute was referred by the Central Government vide
items Nos. (i) and (ii) as contained in the schedule to the Order No. L.11011/3/89-IR(Misc.)
dated 7th December, 1990 for adjudication by the NIT presided over by Justice
Shri S.N. Khatri.
4. AND WHEREAS parties, during the pendency of the proceedings before the
NIT, have held bilateral negotiations without prejudice to their rights and
contentions in respect of relativity and parity of wage structure with
corresponding categories of employees of Air India and as a result of such
negotiations, have arrived at this Settlement, as a consequence of which Terms
of Reference No. (i) and (ii) of the dispute pending before the NIT stand
settled between the parties without prejudice to the rights and contentions of
both the parties in regard to the term of Reference No. (v) before the NIT
which would remain operative with regard to the matter of relativity/ parity
vis-`-vis Aircraft Engineers of Air India."
the relevant term of Settlement;
"2. The Qualification/ Productivity Scheme for Aircraft Engineers is
contained in Appendix 'B'. With the introduction of the revised Qualification Pay
from 1st April, 1989, the existing Qualification Pay and Certification
Allowance shall stand withdrawn from 1.4.1989 and 1.8.1989 respectively."
the relevant clauses of Appendix 'A';
"2(d) Sr. Aircraft Engineer (scale of pay of Rs.
2965-70-3035-120-4115) with two years service in the scale and on acquiring
prescribed licence/ approval qualifications for the post of Dy. Chief Aircraft
Engineer (as per Annexure 1, 2 &
3 to Appendix 'B') will be eligible for appointment to the post of Dy. Chief
Aircraft Engineer in the scale of pay of Rs. 3155-120-4235. The appointment to
the cadre of Dy. Chief Aircraft Engineer, will, however, be subject to
availability of vacancies as per the Standard Force and Recruitment and
Xxx 3(iii) The existing Sr. Aircraft Engineers appointed in the pay scale of
Rs. 2765- 60-2825-70-3035-120-3875 prior to 1.4.1989 would be re-designated as
Aircraft Engineer in the pay scale of Rs.
2765-60-2825-70-3035-120-3275-EB- 120-3875 w.e.f. 1.4.1989. These Engineers
will be eligible for consideration for the post of Sr. Aircraft Engineers in
the pay scale of Rs. 2965- 70-3035-120-4115 w.e.f. 1.4.1991 onwards subject,
however, to possession of prescribed licence/ approval qualifications and
4. All appointments to the cadre of Aircraft Engineer, Sr. Aircraft Engineer
Chief Aircraft Engineer will be subject to Recruitment and Promotion Rules.
The processing of such appointments for Sr.
Aircraft Engineer and Dy. Chief Aircraft Engineers will be done with
reference to the DGCA examination session. The appointments to the cadre of Sr.
Aircraft Engineer will, however, take place from the month following the month
in which the prescribed qualification/ experience have been acquired by the
Aircraft Engineer. The appointment from Sr.
Aircraft Engineer to Dy. Chief Aircraft Engineer will be subject to
availability of vacancies as per the Standard Force and Recruitment and
and, the relevant clause of Appendix 'B':
"A. Qualifications requirement for appointment Designation
Qualifications Aircraft Engineer (entry into pay scale) 'C' licence on one jet
engine of IA fleet.
Confirmation Subject to obtaining approvals of any two groups of Enclosure
Crossing EB Stage 'C' licence on one jet engine of IA fleet and approvals of
any three groups of enclosure 1.
Sr. Aircraft Engineer 'C' licence on one jet Engine of IA fleet and
approvals of any six groups of Enclosure 1.
Dy. Chief A/c Engineer 'C' licence on one jet Engine of IA fleet and
approvals of any nine groups of Enclosure 1."
We also quote hereinbelow the relevant excerpt of Note of Discussions dated
"After detailed deliberation, the following decisions were arrived at:-
i) That Engineers who have not been given opportunity for training on jet
aircraft and Shop/ Major Maintenance approvals, as on 1.4.1993, will be given
ii) Turbo prop aircraft licences held by engineers will be considered for
promotion only as a one time exercise till 1.4.93 and such engineers will be
given conditional promotion.
iii) Wherever all group approvals in Engine Overhaul shops as per the new
agreement dated 31st March, 1992 have not become operative, the Engine Overhaul
Trade Engineers will be promoted on conditional basis subject to the
following:- (a) They must obtain 'C' licence on jet aircraft of IA fleet for
which training has already been imparted to them within three consecutive DGCA
chances effective 1.4.1993.
(b) They must obtain desired group approvals as per the clause (i), (ii) and
(iii) shall have to obtain qualifications within three consecutive DGCA chances
after getting training with effect from 1.4.1993, failing which they will be
reverted to their substantive pay scales.
iv) The engineers who are promoted on conditional basis as per clause (i),
(ii) and (iii) shall have to obtain qualifications within three consecutive
DGCA chances after getting training with effect from 1.4.1993, failing which
they will be reverted to their substantive pay scales.
All other terms and conditions of the agreement dated 31st March, 1992 will
remain unchanged." (emphasis supplied) For the following reasons, we do
not find any merit in this civil appeal. Firstly, under the Recruitment and
Promotion Rules, seniority amongst the candidates who qualified was the
criteria for promotion. However, the said Rules did not prescribe such
qualifications. They were left to the joint wisdom of the Management and the
Association. The approval qualifications were prescribed under Settlement dated
31.3.1992. These approval qualifications were prescribed under clause 2(d) of
Appendix 'A', quoted hereinabove.
Appendix 'B' to the Settlement indicated that the candidate for promotion to
the post of Deputy Chief Aircraft Engineer had to obtain approvals of nine
groups and a licence on one Jet Engine of the Indian Airlines fleet. In the
present case, the recitals in the Industrial Settlement quoted hereinabove show
that during the pendency of proceedings before the National Industrial Tribunal
with regard to the parity of wage structure, bilateral negotiations took place
and the Settlement herein came to be filed before the Industrial Tribunal.
Therefore, the eligibility criteria for appointment to various pay scales was
laid down in the above quoted para 2(d) of Appendix 'A'. This eligibility
criteria for acquiring the approval qualification was not a part of the
Recruitment and Promotion Rules. It was a part of the Industrial Settlement
filed before the Industrial Tribunal pending the main dispute on the wage
After entering into the Settlement, while implementing, some difficulties
were detected, therefore, a decision was taken by the Management in
consultation with the Association on 9.6.1993 (Annexure P-2) as a part of
Settlement to have 20% out of 49 posts to be earmarked for Sr. Engineers. This
was the decision taken as the Sr. Engineers were facing stagnation.
Therefore, one has to read the impugned Order dated 7.2.1994 by which
conditional promotions were given to respondents 3 to 17 with effect from
1.4.1993/ 1.4.1994 in the light of the policy decision dated 9.6.1993 and Note
of Discussions dated 23.7.1993. In the circumstances, it cannot be said that
the impugned order dated 7.2.1994, based on policy decision dated 9.6.1993 read
with Note of Discussions dated 23.7.1993, violated Recruitment and Promotion
Secondly, there is a concurrent finding of fact recorded by the courts below
that respondents 3 to 17 had acquired the approval qualifications prior to
25.11.1993 but the communication of the approval by DGCA occurred only on
20.11.1994 and that was the reason why an asterisk mark was inserted against
the names of the said respondents in the order dated 7.2.1994. This has been
disputed by the appellant. According to the appellant, the Jet Shop set up in Delhi
in 1992 by Indian Airlines stood approved by DGCA only in 1995 and, therefore,
the management was wrong in stating that respondents 3 to 17 had acquired the
approval qualifications by 25.11.1993. Be that as it may, even assuming for the
sake of argument that respondents 3 to 17 had failed to acquire approval
qualifications till 1995, no fault could lie at the doorstep of respondents 3
to 17. These respondents could not avail of the opportunity of obtaining the
approval qualifications as DGCA had not granted approval to the Jet Shop till
1995. Further, as stated hereinabove, the said respondents were senior to the
appellant. Further, as stated hereinabove, there were anomalies in the matter
of approval qualifications which were eliminated by joint discussions between
the Union and the Management, as indicated by Note of Discussions dated
23.7.1993. Moreover, as stated above, the main anomaly was that while granting
approval, DGCA did not go by seniority and, consequently, approvals were given
earlier in point of time to engineers who were junior to the respondents which
created an anomaly. For the above reasons, there is no need to discuss various
judgments cited on behalf of the appellants since we have come to the
conclusion that there was no violation of Recruitment and Promotion Rules. The
approval qualifications formed part of the Industrial Settlement filed before
the Tribunal which was subsequently modified by the policy decision dated
9.6.1993 read with Note of Discussions dated 23.7.1993 between the Management
and the Association.
For the aforestated reasons, there is no merit in this civil appeal and the
same is dismissed with no order as to costs.