K.A. Nagamani vs Indian Airlines & Ors

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.

3647/93 titled as Jaidev Chakraborthy & Ors. Vs.

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. 7

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 13

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 14

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. The decisions, in Sukhdev Singh Vs.

Bhagat Ram Sardar Singh Raghuvanshi [ AIR 1975

SC 1331], B.K. Srinivasan Versus State of 16

Karnataka [ AIR 1987 SC 1059] and Inder Pradash

Gupta Vs. State of Jammu & Kashmir & Ors.

[(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' 18

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 20

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 22

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

relating to existing service." (See: P.U. Joshi Vs.

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 26

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

factor. (See: K. Samantaray Vs. National Insurance

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.

29

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

regard rightly relied upon the decision in R.S. Parti Vs.

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

Airlines Corporation Vs. Capt. K.C. Shukla & Ors.

[(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. 31

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

promotion. In Madan Lal & Ors. Vs. State of J & K

& 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

Chandra Prakash Tiwari Vs. Shakuntala Shukla

[(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;

March 27, 2009