K.A. Nagamani Vs.
Indian Airlines & Ors. [2009] INSC 636 (27 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 5314 OF 2007 K.A.
Nagamani ...Appellant Versus Indian Airlines & Ors. ...
Respondents
B.SUDERSHAN REDDY, J.
1.
This
appeal has been filed against the judgment and order of the High Court of Delhi
passed in LPA (C) No. 1069 of 2004 affirming the judgment of the learned Single
Judge in CWP No. 2338 of 1991.
2.
Brief
facts needed for disposal of this appeal are as under:
3.
The
appellant Ms. K.A. Nagamani was appointed as a Programmer with the Indian
Airlines in the year 1984. The designation of the post of Programmer was
changed to that of System Officer in the year 1985.
The appellant was
promoted to the next higher post of Assistant Manager (Systems) in the
Department of Electronic Data Processing (for short `EDP') sometime in the year
1986 and confirmed in the said post on 15.9.1987. The EDP consisted of four
divisions viz.
Software, Hardware,
Data Communications and Computer Operations. Indian Airlines Officers'
Association vide its representations dated 19.9.1990 and 28.9.1990 suggested
and requested the Management to merge the hardware and software cadres and to
prepare a common seniority list. A 3 common seniority list dated 24.9.1990 had
been drawn for the purpose of promotions.
4.
Thereafter
interviews were held on 15.10.1990 for the post of Deputy Manager
(Maintenance/Systems).
The said post was to
be filled from the merged seniority list of hardware and software cadres. The
Management vide its letter dated 23.11.1990 informed the appellant and others
that their candidatures were being considered for filling up the post of Deputy
Manager (Maintenance/Systems). Thereafter, respondent nos. 2, 3 and 4 were
selected for the post of Deputy Manager (Maintenance/Systems). The appellant
unsuccessfully challenged the promotion of respondent nos. 2 to 4 as the writ
petition filed by her was dismissed and confirmed in Letters Patent Appeal by
the Division Bench of the High Court.
5.
The
High Court inter alia held that promotion to the post of Deputy Manager
(Maintenance/Systems) is 4 to be on the basis of merit and, therefore, found
no merit in the submission of the appellant that her juniors (respondent nos. 3
& 4) could not have been promoted to the said post. That so far as the
promotion of the second respondent is concerned the Division Bench while
confirming the order of the learned Single Judge found that his promotion had
been upheld by the court in Civil Writ Petition No. Indian Airlines & Ors.
in which the appellant herein was also arrayed as a party respondent.
6.
The
main thrust of the submission made by the appellant in-person was that the
promotion to the post of Deputy Manager (Maintenance/Systems) could not have
been made based on the terms of the settlement between the Indian Airlines and
its Officers' Association. That all along there has been separate seniority
list of Assistant Managers and Senior 5 Computer Officers in EDP Department of
the Corporation. The respondent no. 2 was on seniority list of Systems Officers
who was promoted as Assistant Manager (Systems) in 1985 and continued to be
borne on the seniority list of Assistant Manager (Systems) till 1988. Though,
he was on the cadre of Systems called for interview for the post of Senior
Computer Officer (Technical) in 1988 and was illegally shown at sl. no. 1 in
the seniority list of Senior Computer Officer. He was not eligible to be
considered for the higher post. That Rule 4 (d) of the Recruitment and
Promotion Rules provides that within a department, employees will be divided
into kindred occupational groups called cadres as shown in the annexed schedule
to the Rules and seniority shall be on the basis of such cadres. That the
cadres of Systems and Maintenance being new cadres have not been shown in the
annexed schedule but have been shown separately on seniority lists. The
submission was: two separate cadres could not have 6 been merged into one
based on agreement arrived at between the Corporation and the Officers'
Association.
It was submitted that
settlement arrived at between the Management and the Officers' Association is
contrary to the Recruitment and Promotion Rules which govern the promotions of
the officers from the lower post to the higher post. It was submitted that the
Recruitment and Promotion Rules are statutory in nature and binding upon the
Management. The agreement/settlement is contrary to the Recruitment and
Promotion Rules.
7.
Shri
P.S. Narasimha, learned senior counsel appearing on behalf of the first
respondent ably supported the judgment under appeal and submitted that the
impugned judgment does not suffer from any errors requiring interference of
this court.
8.
Be
it noted, the appellant did not make any challenge in the writ petition as
regards the validity of the merger of two cadres. She, however, appears to have
raised the dispute for the first time in her rejoinder affidavit filed in the
High Court. There is no prayer to set aside the settlement arrived at between
the Management and the Officers' Association of which she is also a member. It
is not as if the appellant was not aware of the merger of two streams in the
EDP Department and consequent preparation of a combined seniority list. The
appellant was a party- respondent in writ petition No. 3647/93 in which the
same issue as the one raised by the appellant had fallen for consideration and
the High Court after an elaborate consideration found nothing wrong with the
settlement and merger of the cadres. The Letters Patent Appeal no. 75/94
preferred against the said judgment of the learned Single Judge came to be
dismissed because of 8 the non-appearance of the appellant vide order dated
7.5.2001.
9.
The
main issue that arises for our consideration is whether the Recruitment &
Promotion Rules are statutory in nature or mere administrative instructions?
The said Rules are issued in exercise of the powers conferred by Rule 4 read
with Rules 8 to 15 of Indian Airlines (Flying Crew) Service Rules, Indian
Airlines (Aircraft Engineering Department) Service Rules and Indian Airlines
(Employees other than Flying Crew and those in the Aircraft Engineering
Department) Service Rules. The Air Corporations Act, 1953 (for short `the Act')
is an Act to provide for the establishment of Air Corporations, to facilitate
the acquisition by the Air Corporations of undertakings belonging to certain
existing air companies and generally to make further and better provisions for
the 9 operation of air transport services. The Central Government by
notification established two Corporations to be known as `Indian Airlines' and
`Air- India International'. Under Section 4 of the Act the general
superintendence, direction and management of the affairs and business of each
of the Corporations vest in a Board of directors which consists of a Chairman
and other Directors appointed by the Central Government. Section 8 provides for
appointment of officers and other employees of the Corporations. The
appointment of the Managing Director and such other categories of officers as
specified after consultation with the Chairman shall be subject to such rules
and approval of the Central Government. Section 44 of the Act, which is crucial
for our purpose empowers the Central Government to make rules to give effect to
the provisions of the Act; in particular, and without prejudice to the
generality, such rules may provide for all or any of the matters, namely: the
terms and 10 conditions of service of the Managing Director of the two
Corporations; and such other categories of officers as may be specified from
time to time under sub- section (1) of Section 8. The rules so made are
required to be published by notification in the official gazette. Every rule
made under Section 44, shall be laid as soon as may be after it is made before
each House of Parliament as provided for. Section 45, confers power on
Corporations to make regulations. It provides that each of the Corporations may
subject to the rules made by the Government, by notification in the Official
Gazette, make regulations not inconsistent with the Act or the rules made
thereunder for the administration of the affairs of the Corporation and for
carrying out its functions; the regulations inter alia may provide for the
terms and conditions of service of officers and other employees of the
Corporation other than the Managing Director and officers of any other
categories referred to in Section 44. The regulations 11 made are also
required to be placed before each House of Parliament. The Parliament is
entitled to make modifications.
10.
The
Indian Airlines Corporation vide its Notification dated 6th April, 1955 in
exercise of the powers conferred by clauses (b) and (c) of sub-section (2) of
Section 45 of the Act (27 of 1953) with the previous approval of the Central
Government notified the regulations which have come into force from 1st
January, 1955. The Regulations are called the Indian Airlines Corporation
Employees Service Regulations, 1955. The Regulations deal with the conditions
of service, recruitment, promotion, discipline, control and appeal, pay and
allowances, leave and retirement benefits of (a) Flying Crew; (b) Aircraft
Engineering and (c) other employees, which shall be respectively as in the
following rules namely:- 12 a) The Indian Airlines Corporation (Flying Crew)
Service Rules;
b) The Indian
Airlines Corporation (Aircraft Engineering Department) Service Rules;
c) The Indian
Airlines Corporation (Employees other than Flying Crew and Aircraft Engineering
Department) Service Rules.
11.
Rule
4 of Service Rules for employees other than the Flying Crew and Aircraft
Engineering Department with which we are concerned provides the Corporation
with a right to modify, cancel, or amend all or any of these rules or supplementary
rules issued in connection with these rules, without previous notice of their
intention, and the right to give effect thereto immediately from the time or
date of issue. Rule 8 provides for appointments to various posts to be made by
promotion or direct recruitment in accordance with such conditions as the
Corporation may determine from time to time. Rule 14 provides that the
employees of the Corporation will be eligible for promotion to the higher grade
subject to possessing the requisite educational, technical and other
qualifications and is considered fit in all respects for the promotion.
Promotions normally
will be made on the basis of merit.
12.
As
noticed herein above the Recruitment and Promotion Rules were framed in
exercise of the powers conferred under the Regulations referred to herein
above. Be it noted, there is no power vested in the Corporation to make any
rules since Section 44 of the Act confers power to make rules only in the
Central Government and not in the Corporation. The Corporation is entitled to
make only regulations which it did and published by way of Notification
referred to herein above dated 6th April, 1955. The Recruitment and Promotion
Rules are not even notified in the Gazette as it is not required whereas the
service Regulations referred to herein above have been gazetted. The Indian
Airlines Corporation Employees Service Regulations, 1955 which are made in
exercise of the powers conferred upon the Corporation by the Act are
undoubtedly statutory in nature but the Recruitment and Promotion Rules are not
statutory in their nature. These Rules are not framed in exercise of any Rule
Making Power. Mere administrative rules are not legislation of any kind. They
are in the nature of statements of policy and the practice of government
departments, statutory authorities, whether published or otherwise. Statutory
rules, which are made under the provisions of any enactment and regulations,
subject to Parliamentary approval stand on entirely different footing. The
administrative rules are always considered and have repeatedly been held to be
rules of administrative practice merely, not rules of law and 15 not delegated
legislation and they have no statutory force. Mere description of such rules of
administrative practice as "rules" does not make them to be statutory
rules. Such administrative rules can be modified, amended or consolidated by
the authorities without following any particular procedure. There are no legal
restrictions to do so as long as they do not offend the provisions of the
Constitution or statutes or statutory rules as the case may be.
13.
In
the present case the agreement/settlement arrived at between the Management and
its Officers' Association has the effect of protanto amending the Recruitment
and Promotion Rules. The Rules and the agreement/settlement are complimentary
to each other and have to be read together.
14.
Bhagat
Ram Sardar Singh Raghuvanshi [ AIR 1975 SC 1331], B.K. Srinivasan Versus State
of 16 Karnataka [ AIR 1987 SC 1059] and Inder Pradash [(2004) 6 SCC 786], in
no manner assist the point urged by the appellant. The High Court having
analysed those decisions came to the right conclusion that they are not
applicable in deciding the issue whether the Recruitment and Promotion Rules
are statutory in nature? We are in agreement with the view taken by the High
Court. It is unnecessary to burden this short order of ours with the various
authorities upon which the appellant sought to place reliance as we have no
doubt in our mind whatsoever that the Recruitment and Promotion Rules are not
statutory in nature.
15.
For
the aforesaid reasons, we are in complete agreement with the view taken by the
Division Bench of the High Court and as well as the learned Single judge in
coming to the conclusion that the Recruitment 17 and Promotions Rules do not
draw any statutory flavour from the service Regulations.
16.
The
next question that requires consideration is whether the merger of the two
cadres is valid? The Indian Airlines Officers' Association of which the
appellant is also a member had requested the Corporation for merger of
seniority of the cadres. The Corporation having considered the representations
so made decided that the software and hardware divisions of EDP Department
should be merged and a common seniority list should be maintained. It was also
decided that the vacancies of Deputy Manager (Maintenance/Systems) may be
filled up through the merged cadre of software and hardware where technically
qualified personnel are available. Later, pursuant to a further request by the
Officers' Association, it was decided that the seniority of software and
maintenance cadre be merged.
17.
We
find it difficult to agree with the contention of the appellant that the
respondents could not have entered into agreement/settlement with the Indian
Airlines Officers Association and decided to make promotions/appointments as
per the said agreement contrary to Recruitment and Promotion Rules. It is not
unusual for the Managements to consider the representation of its Officers'
Association and arrive at a mutually agreed settlement after negotiations as
long as such settlement does not run counter or contrary to any statutory
instrument. Once it is to be held that the Recruitment and Promotions Rules are
not statutory in nature but are in the nature of guidelines, there are no
impediments to uphold the merger of software and hardware cadres into one
cadre. Be it noted, the appellant did not question the merger of cadres in the
19 writ petition filed by her except contending the decision of the authorities
of merger of two cadres into one was in violation of the Recruitment and
Promotion Rules. No doubt an attempt was made by the appellant to contend
before us that the merger of the two cadres into one is violative of Articles
14 and 16 of the Constitution of India. This belated attempt on the part of the
appellant cannot be countenanced and we cannot entertain any such plea at this
stage without there being any pleadings in that regard in the writ petition
filed in the High Court.
18.
The
appellant herself relied on number of recruitments and promotion guidelines
issued from time to time without questioning and challenging the same. The
agreement between the Corporation and its Officers' Association including the
promotion of 2nd respondent as noted herein above was subject matter of the
writ petition filed by Joydev Chakraborthy in which the appellant was arrayed
as respondent. The High Court upheld the promotion of the 2nd respondent as
Deputy Manager (Maintenance/Systems) based on the agreement between Indian
Airlines and its Officers' Association. The High Court upheld the merger of the
two cadres/streams. The judgment of the High Court attained its finality.
19.
Now
we proceed to consider the case on merits as to whether the promotion of the
respondent nos. 2, 3 and 4 is not in accordance with law? The appellant nowhere
disputed the fact that respondent no. 2 - Mr. M.M. Narula is senior to her in
terms of "length of service". It is apparent from the record that
when seniority of two cadres was merged, the Senior Computer Officers
(Technical/Assistant Manager (Systems), who had completed two years in any capacity
in any of the divisions were taken into 21 consideration. Respondent No. 2 was
initially appointed as an Assistant Manager (Systems) in the erstwhile grade
13/14 w.e.f. August, 1985 and later appointed as Senior Computer Officer
(Tech.) which was also in the same department. The appellant herein was
appointed to the post of Assistant Manager (Systems) much later to the
respondent no. 2 and only on 5.9.1986. The attack is mounted only on the ground
that the respondent no. 2 belonged to different cadre, namely hardware cadre
and therefore, he was not eligible to be considered for promotion. It is by
virtue of the agreement/settlement, Senior Computer Officers
(Technical/Assistant Manager (Systems) who had completed two years in any
division - be it hardware or software, were considered for the post of Deputy
Manager (Maintenance/Systems) and a common seniority list was prepared. It is
on that basis the Corporation has rightly considered the case of the 2nd
respondent and selected him to the post of Deputy Manager
(Systems/Maintenance). There is no substantial challenge to the decision of
merger of software and hardware cadres into one cadre having the common
seniority list as arbitrary or on the ground of mala fide on the part of the
Corporation. The challenge is based on violation of the Recruitment and
Promotion Rules about which we have already dealt with in preceding paragraphs.
It needs no restatement that the authorities are entitled to determine all
conditions of service, alteration thereof by amending rules, constitution,
classification, abolition of posts, cadres or categories of service,
amalgamation or bifurcation of departments, reconstitution, restructuring of
the pattern etc. as the same pertain to the field of policy within the
exclusive jurisdiction of the employer, subject to limitations or restrictions
envisaged in the Constitution. "There is no right in any employee to claim
that rules governing conditions of his service should be forever the same as
the one when 23 he entered service for all purposes and except for ensuring
rights or benefits already earned, acquired or accrued at a particular point of
time, a government servant has no right to challenge the authority of the State
to amend, alter and bring into force new rules Accountant General [(2003) 2 SCC
632]. The High Court came to the right conclusion that the promotion of the
respondent no. 2 as Deputy Manager (Maintenance/Systems) is not vitiated for
any reason whatsoever requiring interference.
20.
Now
we shall consider the question whether promotion of respondent no. 3 and 4 was
valid? The selection of respondent no. 3 and 4 by a duly constituted Selection
Committee was made on the basis of assessment of comparative merit, as per
Rules 19 to 22 of the Recruitment and Promotion Rules.
24 Rules 19 to 22 of
the Recruitment and Promotion Rules are as follows:
"19. The
recommendations of the Promotion Committees will be passed on to the Competent
Authority in the matter of appointments as defined in the `Instrument of
Delegation of certain powers and Functions I.A.'
20. Promotions will
be considered on the basis of suitability-cum-seniority in the grades or
inter-linked grade below the grade for which promotions are being considered
subject to fitness of the employee being certified by the
Sectional/Departmental Head for the employee in the following form:
`Certified that Shri
/Smt. ......................
Designation
............................... Grade .............. in view of his/her
integrity/ability is fit to be considered
for promotion/selection
to scale or pay......... .'
21. No employee can
claim promotion as a matter of right. The advancement of an employee will
depend as much on his suitability as on his relative standing with the others
eligible for promotion.
22. Promotions to
Selection Grade will be on the basis of rigorous selection on merit from
amongst the employees in grades or inter-linked grades below the grade
concerned and shall be limited to the number of posts declared as such on the
cadre 25 according to the sanctioned strength from time to time."
21.
The
appointments to the post of Deputy Manager (Maintenance/Systems) in the present
case were obviously not made on the basis of direct recruitment but the
selection and appointment were made on the basis of promotion. The list of
candidates called for selection was only of serving employees and no claim of
any outsider was considered. It is evident from a bare reading of Rule 21, that
no employee can claim promotion as a matter of right. It will depend on one's
own suitability as on his relative standing with the others eligible for
promotion. Rule 20, provides that promotions will be considered on the basis of
`suitability-cum-seniority' in the grades or inter-linked grade below the grade
for which the promotions are being considered subject to fitness of the
employee being certified by the Head of the Department. A combined reading of
Rules 20, 21 and 22 makes it abundantly clear that suitability of a candidate
for promotion has to be compared with others eligible for promotion. Promotion
to selection grade is to be on the basis of `selection on merit' from amongst
the employees in grades or inter-linked grades below the grade concerned and
shall be limited to the number of posts declared as such on the cadre according
to the sanctioned strength from time to time. Rule 22 is specific in its terms.
It says, in case of `selection grade posts', the selection is a `rigorous
selection on merit'.
22.
It
is not the case of the appellant that her case was not at all considered for
promotion to the post of Deputy Manager (Maintenance/Systems). It is clear from
the record that the claim of the appellant for promotion was duly considered
along with other eligible candidates including respondent nos. 3 and 4 who were
ultimately found eligible and suitable for promotion. The Selection Board
having assessed the 27 ratings of each of the previous three years' annual
performance appraisals and performance of the appellant in the interview found
her not suitable for promotion. The respondent nos. 3 and 4 had outstanding
ratings in their annual performance appraisals and were found suitable by the
Selection Board. We cannot sit in appeal over the assessment made by the
Selection Board and substitute our own opinion for that of the Board. In the
result, we find the decision to select and appoint respondent nos. 3 and 4 is
not vitiated for any reason whatsoever.
23.
The
post of Deputy Manager (Maintenance/Systems) is a an upper managerial post,
which in terms of the existing Recruitment and Promotion Rules, could be filled
either by direct recruitment or by promotion. If the vacancy was to be filled
up by way of promotion, promotion in such cases obviously means promotion on
the basis of suitability- 28 cum-seniority. The process of selection on the
basis of suitability-cum-seniority is in accordance with the package of Rules
referred to herein above. It is not necessary in this case to restate and
reiterate the difference between promotion based on seniority-cum- merit and merit-cum-seniority.
The concept is different. In case of the former, greater emphasis is laid on
seniority, though it is not the determinative factor, while in the latter,
merit is the determinative Co. Ltd. [ (2004) 9 SCC 286].
24.
For
the aforesaid reasons, we concur with the view taken by the High Court that
seniority alone was not the determinative criteria for promotion, merit or
comparative merit was also taken into consideration by the Selection Board and
the same is not contrary to law and guidelines.
25.
Yet
another aspect remains to be dealt with. The appellant made an attempt to
challenge the selection procedure in which 50% marks were reserved for
interview and balance 50% marks on the evaluation of the annual confidential
reports. The High Court in this Indian Airlines Corporation & Ors. in W.P.
(c) No. 3364/90 dated 31.8.1995 in which the Court took the view that post of
Deputy Manager belongs to upper managerial cadre and allocation of 50% marks
for the interview and 50% marks on the evaluation of the ACRs is not arbitrary.
In R.S. Parti (supra) reliance was placed upon the decision of this Court in
Indian [(1993) 1 SCC 17], in which the post of Deputy Operations Manager was in
question and the method of evaluation was the same as in the present case. In
the said case, this Court held as under:
30 "Law on the
proportion between written test and interview or evaluation on confidential
entries and personality test have been laid down in a series of decisions by
this Court commencing from Ajay Hasia v. Khalid Mujib Sehravardi; Lila Dhar v.
State of Rajasthan; Ashok Kumar Yadav v. State of Haryana and State of U.P. v.
Rafiquddin. Distinction appears to have been drawn in interview held for
competitive examinations or admission in educational institutions and selection
for higher posts. Effort has been made to eliminate scope of arbitrariness in
the former by narrowing down the proportion as various factors are likely to
creep in.
But same standard
cannot be applied for higher selections. Lila Dhar case brings it out fully. In
respondent's case the personality of the respondent was being judged by a
Committee constituted under the rules for purposes of higher promotional posts
and, therefore, it was governed by the ratio laid down in Lila Dhar case and it
would be unsafe to strike down the rules as arbitrary when the evaluation was
job oriented. Marks to be allotted by the Committee were on professional
ability and management capacity."
This authoritative
pronouncement of this Court, in our considered opinion, should put an end to
the controversy raised by the appellant. It is not necessary to dilate any
further on the subject.
26.
Yet
another aspect of the matter: That the appellant admittedly had participated in
the similar selection process for erstwhile grade 15 and 16, Manager
(Maintenance/Systems) and Senior Manager (Maintenance/Systems) respectively.
The Corporation had given adequate opportunity to the appellant to compete with
all other eligible candidates at the selection for consideration of the case of
all eligible candidates to the post in question. The Corporation did not
violate the right to equality guaranteed under Articles 14 and 16 of the
Constitution. The appellant having participated in the selection process along
with the contesting respondents without any demur or protest cannot be allowed
to turn round and question the very same process having failed to qualify for
the & Ors.[ (1995) 3 SCC 486], this Court observed: "It is now well
settled that if a candidate takes a calculated chance and appears at the
interview, then, 32 only because the result of the interview is not palatable
to him, he cannot turn round and subsequently contend that the process of interview
was unfair: Therefore, the result of the interview test on merits cannot be
successfully challenged by a candidate who takes a chance to get selected at
the said interview and who ultimately finds himself to be unsuccessful."
Reference may also be made to the decision of this Court in [(2002) 6 SCC 127].
27.
No
other point arises for consideration.
However, before
parting with the case, we must make it clear that the appellant in her anxiety
to persuade this Court to set aside the promotion of respondent nos. 2, 3 and 4
and to secure a writ of mandamus to grant her seniority, cited number of 33
authorities in her written submissions. On consideration, we find many of them
are not relevant for the purposes of disposal of this appeal and for that
reason we have relied upon only such of those judgments which are relevant to
decide the appeal.
28.
We
are unable to grant any relief to the appellant but appreciate the manner in
which the appellant presented her case before us.
29.
The
appeal is, accordingly, dismissed with no order as to costs.
..........................................J.
(Lokeshwar Singh Panta)
..........................................J.
(B. Sudershan Reddy)
New
Delhi;
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