K.A. Ansari & Anr vs Indian Airlines Ltd

K.A. ANSARI & ANR. -- APPELLANT (S)

VERSUS

INDIAN AIRLINES LTD. -- RESPONDENT (S)

JUDGMENT

D.K. JAIN, J.:

Leave granted.

2. This appeal is directed against two common orders, dated

21st November, 2005, passed by the High Court of Delhi at

New Delhi in L.P.A. Nos. 1135 and 1136 of 2005. By the

impugned orders, the High Court has allowed the appeals,

preferred by the Indian Airlines Limited, the sole

1 respondent in this appeal, against the order passed by a

learned Single Judge of the High Court in the miscellaneous

application filed by the first appellant herein, seeking

clarification of the final judgment rendered by the learned

Single Judge on 11th October, 2004. The Division Bench

has held that after disposal of the writ petitions,

miscellaneous application was not maintainable and, hence

order dated 4th March, 2005 on the said application was

without jurisdiction.

3. In order to appreciate the controversy, it would be

necessary to recapitulate the background facts, stated in

detail by the learned Single Judge. These are as follows:

The appellants were appointed as Field Officers by the

Government of India, Ministry of Agriculture, Directorate of

Agricultural Aviation in the years 1978 and 1979. On 24th

July, 1987, they were transferred under the administrative

control of the Ministry of Civil Aviation. M/s Vayudoot Limited

(for short `Vayudoot'), a public sector undertaking, was

incorporated in the year 1981. In the year 1988, the assets of

2 the Directorate of Agricultural Aviation were transferred to

Vayudoot. As a result thereof, the services of the officers of

Directorate of Civil Aviation were placed at the disposal of

Vayudoot, on deputation. The deputation was on same terms

and conditions including pay and allowances as were being

received by the appellants under the Ministry of Civil Aviation.

4. On 8th April, 1988, posts of the appellants were re-

designated as Operation Officers. Again on 9th May, 1989,

the designation of the appellants was changed to Assistant

Manager. Appellant No.1 - K.P.S. Rathore, was selected as a

trainee pilot on 1st January, 1989 and was confirmed as

such with effect from 1st November, 1990. Appellant No.2 -

K.A. Ansari, was appointed as a junior pilot on 1st July,

1990 and was confirmed as such with effect from 1st

October, 1990.

5. It appears that in the year 1993, the Government of India

took a policy decision to merge Vayudoot with Indian

Airlines. On 24th May, 1994, Ministry of Civil Aviation

issued an order conveying the decision of the Government

3 that the process of absorption of the Vayudoot employees

shall commence by 31st June, 1994 with certain

relaxations/benefits to them on joining the new

organisation. The benefits included protection of basic pay

drawn by the employees of Vayudoot at the time of their

absorption in Indian Airlines.

6. It seems that the employees of Vayudoot, who were

absorbed in the Indian Airlines in a separately created

`Short Haul Operations Department', referred to as `SHOD'

by the learned Single Judge, demanded integration with the

existing employees of Indian Airlines. They claimed that

they had a right to be promoted to the next corresponding

post with the existing employees of Indian Airlines by

including the service rendered by them under Vayudoot. As

expected, the integration was opposed by the existing

employees of the Indian Airlines. Negotiations were held

and in the meeting held on 10th March, 1988, one of the

decisions' taken was as under:

"PILOT

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1. SHOD pilots will undergo training in IA aircraft and on getting type endorsement will be placed at the bottom of the seniority of First Officers (Co-Pilots). However, their past services will be counted for the purpose of pay protection and other financial benefit. Their future growth will be on the basis of the line of seniority. The IA will take necessary action to initiate their training within a period of one month.

2. Pilots who fail to obtain licence endorsement as per IA rules will be retained in SHOD. Such pilots may be provided appropriate ground job. Their basic pay and allowances in such cases will be protected. The proposal is based on the basis of the policy adopted by the company while phasing out turboprop aircraft in 1982.

3. Four executive Pilot will remain in SHOD and will be sent on deputation to Alliance Air. After acquiring training and getting Boeing endorsement they will be appointed as Co-Pilots. Their pay and allowances and status will be protected."

7. Thereafter, some more decisions were taken, with which we

are not directly concerned in this appeal except to note that

in order to find an amicable solution to the

demands/grievances of the employees of Indian Airlines

and SHOD, in the meetings held on 21st April, 1998 and

5 16th March, 2000, it was decided that the SHOD employees

will have to complete their training and obtain the licence to

fly an Indian Airlines' aircraft in three attempts.

Accordingly, vide communication dated 6th September,

2001 the appellants were informed that since they had

failed in two attempts, their training was being terminated

and they would revert to SHOD with immediate effect. The

appellants protested, inter alia, on the ground that they

were entitled to three opportunities, instead of two, to

obtain the requisite licence. However, on 15th November,

2002, the appellants were directed to appear for an

interview for selection to the post of Assistant Manager

(Flight Safety). The said action on the part of the Indian

Airlines was questioned by the appellants by preferring writ

petitions in the High Court. Their plea was that as per the

agreed arrangement, they had to be given three chances to

obtain the licence endorsement and in the alternative they

had a right to be automatically inducted in a ground job

post of equivalent status with protection of pay and

allowances. Notwithstanding the filing of the writ petitions,

6 the appellants joined on the post of Assistant Manager

(Flight Safety), offered to them in terms of the letter issued

by the respondent on 23rd April, 2003, which contained the

following note:

"Please note that you are being given this last and final, opportunity to accept our offer of appointment as Asstt. Manager (Flight Safety) with protection of basic pay. If you fail to report for Medical Examination by the stipulated date as mentioned above, it will be presumed that you are not interested in the alternate employment as a rehabilitation measure offered by the Management and the Management would be constrained to terminate your services."

8. Be that as it may, ultimately the writ petitions preferred by

the appellants were disposed of by the learned Single Judge

on 11th October, 2004 in the following terms:

"Petitioners on failing 3 tests are undoubtedly entitled to be automatically placed for a ground job with benefit of past service. This grounding cannot be at a post lower in the scale held by the petitioners. Since no material has been placed to show what was the scale of post of Assistant Manager (Flight Safety), writ petitions are disposed of with the following directions:-

(i) Petitioners would be entitled to benefit of past service right from inception when they joined

7 service under Government of India for purposes of all terminal benefits and in-service benefits linked to length of service.

(ii) Petitioners would be entitled to be posted to a post in equivalent scale held by them when letter dated 23.4.2003 was issued.

(iii) Petitioners would be entitled to basic pay protection.

(iv) If as a result of direction (ii) above, petitioners are to be put in a post of higher grade, arrears of pay and allowances would be paid within 6 weeks from today.

(v) Petitioners would be entitled (only) to the allowances for the ground post in which they are to be posted."

9. On 25th November, 2004, appellant - K.A. Ansari,

communicated the said order to the Chairman-cum-

Managing Director of the Indian Airlines, requesting for his

posting to a post in the equivalent scale, i.e. Deputy

Manager, in terms of direction (ii), extracted above, with

consequential relief. In response thereto, the Indian

Airlines informed him that he had been placed in the proper

scale and his basic pay was duly protected in terms of the

aforenoted direction (iii) and service rendered in Vayudoot

8 shall also be taken into consideration for the purpose of

gratuity, provident fund, loans, advances and medical

facilities etc.

10. Not being fully satisfied with the response of the Indian

Airlines, the first appellant moved a miscellaneous

application before the High Court, seeking a direction to the

respondent to place him in a ground job in the equivalent

pay scale of Deputy Manager, as directed in the final order

dated 11th October, 2004. In short the grievance of the

applicant was that although on 23rd April, 2003, when

Indian Airlines had asked him to join on the post of

Assistant Manager (Flight Safety), he was in the grade of

Rs.6200-175-6550-200-7500-225-7775-250-8025 but he

had been placed in the pay scale of Rs.5675-175-6550-200-

7500-225-7775-250-8025.

11. After notice to the Indian Airlines, as noted earlier, the

learned Single Judge disposed of the application vide order

dated 4th March, 2005. Inter alia, observing that counsel for

the Indian Airlines had not disputed that when letter dated

9 23rd April, 2003 was issued to the appellants they were in

the grade of Rs.6200-175-6550-200-7500-225-7775-250-

8025, the learned Single Judge disposed of the application

with the following directions to the Indian Airlines:-

"It is not being in dispute that when letter dated 23.4.2003 was issued petitioner being a first officer was in the pay scale of Rs.6200- 175-6550-200-7500-225-7775-250-8025.

Accordingly, petitioner on ground would have to be placed in the said scale.

As this court understands the law to be, if the cadre of a person is changed he would be entitled to an equivalent pay scale and in the absence of an equivalent pay scale would be entitled to be placed in the next above scale.

Scale in which the respondent seeks to place the petitioner is Rs.5675-175-6550-200-7500- 225-7775-250-8025. The fact that the upper limit of the two scales i.e., 6200-175-6550- 200-7500-225-7775-250-8025, and Rs.5675- 175-6550-200-7500-225-7775-250-8025 is the same is immaterial.

Application for directions is accordingly disposed of directing Indian Airlines to, after grounding, place the petitioner in the pay scale held by the petitioner i.e., Rs.6200-175-6550- 200-7500-225-7775-250-8025. In no case the petitioner be placed in a scale lower to the scale aforesaid. However, it is clarified that on grounding, if pay scale of Rs.6200-175-6550- 175-6550-200-7500-225-7775-250-8025 is

10 not available, petitioner would have to be placed in the next higher grade."

12.Aggrieved thereby, the Indian Airlines filed intra-court

appeal and as noted above, the Division Bench has reversed

the said order. That is how the appellants have come up

before us in this appeal.

13.We have heard learned counsel for the parties.

14. Ms. Nisha Bagchi, learned counsel appearing on behalf of

the appellants submitted that the Division Bench of the

High Court failed to appreciate that in the miscellaneous

application, no new dispute requiring fresh adjudication

had been raised. The relief claimed in the application was

only in the nature of clarification to the extent that because

of protection of the pay scales at the time of absorption in

the Indian Airlines, the appellants were entitled for

placement in an equivalent or higher pay scale. It was

asserted that by way of clarification, learned Single Judge

had merely reiterated and directed implementation of the

11 directions issued while disposing of the writ petitions. It

was also pleaded that the main order dated 11th October,

2004, having attained finality, the respondent is otherwise

bound to comply with the same.

15. Per contra, Mr. R.S. Suri, learned counsel appearing on

behalf of the Indian Airlines, supporting the order of the

Division Bench, submitted that when the proceedings stood

terminated on final disposal of the writ petitions, it was not

open to the learned Single Judge to reopen the proceedings

on filing of the miscellaneous application by the appellant

in respect of the same subject matter.

16. It is trite that a party is not entitled to seek a review of a

judgment merely for the purpose of rehearing and a fresh

decision of the case. It needs little emphasis that when the

proceedings stand terminated by final disposal of the writ

petition, it is not open to the Court to reopen the

proceedings by means of miscellaneous application in

respect of a matter which provides fresh cause of action. If

this principle is not followed, there would be confusion and

12 chaos and the finality of proceedings would cease to have

any meaning. (See: State of Uttar Pradesh Vs. Brahm

Datt Sharma & Anr.1 ). At the same time, there is no

prohibition on a party applying for clarification, if the order

is not clear and the party against whom it has been made is

trying to take advantage because the order is couched in

ambiguous or equivocal words.

17.Therefore, the question for consideration in the instant

case is whether the miscellaneous application preferred by

the first appellant could be said to be founded on a fresh

cause of action?

18. Having bestowed our anxious consideration on the rival

submissions, we are of the opinion that keeping in view the

terms of final order dated 11th October, 2004, the

miscellaneous application could not be said to be founded

on a separate or fresh cause of action so as to fall foul of

the aforenoted legal position viz. on termination of

proceedings by final disposal of writ petition, it is not open

1 (1987) 2 SCC 179

13 to the court to reopen the proceedings by means of a

miscellaneous application in respect of a matter which

provided fresh cause of action. It is manifest that in

direction No. (ii), the learned Single Judge had clearly

directed that the writ petitioners would be entitled `to be

posted to a post in equivalent scale held by them when the

letter dated 23rd April, 2003 was issued.' The respondent -

Indian Airlines was obliged to obey and implement the said

direction. If they had any doubt or if the order was not

clear; it was always open to them to approach the court for

clarification of the said order. Without challenging the said

direction or seeking clarification, Indian Airlines could not

circumvent the same on any ground whatsoever. Difficulty

in implementation of an order passed by the Court,

howsoever, grave its effect may be, is no answer for its non-

implementation. In our opinion, in the miscellaneous

application, no fresh relief, on the basis of a new cause of

action, had been sought. It was an application filed for

pursuing and getting implemented the relief granted in the

writ petition, namely, placement in appropriate grade in

14 which he was placed at the time when letter dated 23rd

April, 2003, was issued. This was precisely done by the

learned Single Judge vide his order dated 4th March, 2005.

Without examining those factual aspects of the matter, in

our judgment, the Division Bench was in error in holding

that after the disposal of the writ petitions, miscellaneous

application was not maintainable and the only remedy

available to the appellant was to approach the authorities

and if his interpretation was not acceptable to them, then

he could file a fresh writ petition.

19. For the foregoing reasons, we allow the appeal and set aside

the order of the Appellate Bench and restore the order

passed by the learned Single Judge on 4th March, 2005,

directing the respondent to implement the main order,

dated 11th October, 2004. In the circumstances of the case,

the parties shall bear their own costs.

................................................J. (D. K. JAIN)

15 .................................................J. (P. SATHASIVAM) NEW DELHI;

NOVEMBER 28, 2008.

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