TMI Blog2007 (7) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... in his judgment had dealt with four writ petitions filed and had granted the relief in the following terms: Rule is made absolute. Decision of the respondents to offer merger to SHOD employees by placing them at the bottom of the seniority list of the post held by them after the existing employees of Indian Airlines is quashed. Notification dated 05.02.2001 is quashed. Notification dated 05.02.2001 requiring SHOD employees to exercise option in terms of the first notification dated 05.02.2001 is also quashed. Directions are issued to Indian Airlines and the Union of India to re-frame the policy of cadre merger by assessing and determining the equation of posts by taking into consideration the four guiding factors laid down by the Supreme Court in Chanderkant Anant Kulkarni's case and in light of the observations made by me in the present decision. 3. This direction was upset by the impugned judgment of the Division Bench whereby the Division Bench has set aside the whole judgment and allowed LPA nos. 646 to 649 of 2004, all writ appeals were filed by Indian Airlines Corporation. The Division Bench by the same judgment also dismissed one LPA No. 382 of 1999 filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the employee put in the length of service required in accordance with the rules of Indian Airlines. 5. Any problem arising after the absorption of Vayudoot employees into SHOD was to be referred to a Committee constituted for that purpose. Accordingly, the appointment orders were issued in favour of the erstwhile Vayudoot employees appointing them in SHOD on and around 29.11.1994. In these appointment letters, some conditions were mentioned in which condition nos. 4 and 9 were as under: Condition No. 4: Your seniority will be maintained separately in the Short Haul Operations Department (SHOD) of Indian Airlines Limited and the same will be determined as per existing rules. Condition No.9: If the offer of appointment on the above terms and conditions is acceptable to you, please return to us the attached duplicate copy of this letter, duly signed, in token of your acceptance of this offer latest by 30th November, 1994. Please send your joining Report in token of your having reported for duty in SHOD department on or after 01.12.1994 through your regional head/ Departmental heads. 6. A circular was issued on 17.12.1994 on the functioning of 'SHOD'. However, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: It was decided to discuss the issue of the general category officers again since some reservations were expressed during the meeting with regard to induction of SHOD officers into the respective grades. Seniority: It was decided that SHOD employees should be reckoned in respective seniorities for the general category staff in respective grades of each department from 10th March, 1998. Future promotions should consider such employees as per the revised seniority of the Indian Airlines. Inter-se seniority of SHOD employees will be maintained while placing them in different grades. 8. A notification was published earlier to that on 2.2.1998 which was issued by the General Manager (Personnel) whereby only few Deputy Managers (Commercial) of Northern Region of Indian Airlines were to appear for personal interview for the post of Manager (Commercial) thereby excluding some of the Deputy Managers (Commercial) working in SHOD. This was challenged by a Writ Petition No. 723 of 1998 and also by another writ petition no. 931 of 1998 which writ petitions were eventually dismissed by Delhi High Court (Ramamoorthy, J.) on 12.07.1999, the LPA No.388 of 1999 against which was also dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions, the category-wise decisions were taken in the meeting within the framework indicated in para 3 above. 12. In the minutes of the meeting dated 16.03.2000, we are not concerned in respect of the Pilots, Executive Pilots and Aircraft Engineers whose conditions of merger were decided in the meeting but we are concerned with the general category of staff : General Category Staff :It was decided that the general category officers may be merged on voluntary basis with Indian Airlines as on 10.03.1998 in their respective grades and cadres with protection of their pay and past services. Those having objections against the merger may be retained in SHOD and offered time- bound promotion as per their career progression. 13. It will be seen from the Minutes, this meeting was attended by the following participants: Ministry of Civil Aviation: S.No. Name Designation 1. Shri Ravindra Gupta, Secretary (CA) in Chair 2. Shri Anurag Goel, JS(G), MCA 3. Shri R.S. Meena, Dy. Secy, MCA Indian Airlines 4. Shri Anil Baijal, CMD, IAL 5. Shri R.N. Saxena, Ex. Director, SHOD, IAL 6. Shri Shekhar Ghore, Director (HRD), IAL 14. Another meeting was held on 6th May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in SHOD and their career progression will be separately determined. 16. It seems that after this meeting of 16.03.2000, there was lot of correspondence in between the Indian Airlines and the Ministry of Civil Aviation. On 8th May, 2000, Chairman and Managing Director, IAL wrote letter No. HRD/00//236 wherein he referred to his earlier letter dated 6.4.2000 bearing No. Av.18050/3/96-ACIA-Vol.II and suggested that the Minutes of the meeting dated 16.03.2000 did not reflect the exact position of the decisions taken in the meeting. He, therefore, sent a proposed draft of the Minutes for the approval of the Ministry of Civil Aviation. This letter was answered by the Civil Aviation Ministry on 19.05.2000 bearing No. AV.18050/3/96-ACIA wherein the Ministry advised Indian Airlines to take necessary action as per decision contained in the minutes issued by the Ministry vide letter dated 06.04.2000. A compliance report was also sought for. 17. Another letter was written by Indian Airlines bearing no. CMD/00/226 dated 06.06.2000 wherein it was again reiterated that the Minutes in the letter dated 06.04.2000 regarding the meeting dated 16.03.2000 did not reflect exactly the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagers (personnel)of the respective Region/HQrs. through proper channel within 30 days of this notification. Employees in respect of whom such an option is not received within the stipulated period, it shall be presumed that he/she has opted to remain in SHOD. Such employees shall forfeit all claims for merger with mainstream. They will be retained in SHOD and offered time bound promotions as per their career progression. (emphasis supplied) 18. It is this letter which was challenged by four different writ petitions mainly by the representatives of the Indian Airlines employees Association, officers' Association, Indian Airlines Cabin crew Association. One writ petition was filed by an individual Shri U.K. Bhowmik, who was working as Deputy Manager and lastly by the Vayudoot Karamchari Sangh. The only reason why Vayudoot Karamchari Sangh challenged this letter was that they objected to the implementation w.e.f. 10.03.1998. They wanted the implementation from the date of merger, i.e., right from the year 1994. Their contention was that their four years have been lost because of the impugned order which was to apply w.e.f. 10.03.1998. As stated earlier, these four writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt which is before us. 22. Since these appeals have been filed by the parties having conflicting interests, we propose to deal with them separately. Strangely enough, the impugned judgment is challenged by the Indian Airlines Officers Association contending that there is no formal merger as yet between Vayudoot and Indian Airlines. Hence there cannot be a merger of the employees of these two organizations, that too with retrospective effect. Diametrically opposite is the stand of the Vayudoot Karamchari Sangh suggesting that this is a merger of their seniority, therefore, the cut off date of seniority should have been from 1994 and not from 1998. The stands are thus conflicting and, therefore, it will be better for us to consider these appeals individually. We shall first take up the appeal filed by Indian Airlines Officers Association being Civil Appeal No.1269 of 2007. The stand taken in Civil Appeal No.1269 of 2007 was endorsed and supported by the Indian Airlines Cabin Crew Association who filed Civil Appeal No.1270 of 2007, whereas the conflicting stand was taken on some points by the Indian Airlines Officers Welfare Forum in Civil Appeal No.1272 of 2007 and by Vayudoot Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary where they insist that this was a case of merger of Vayudoot with Indian Airlines. They rely on the notification dated 25.5.1993 issued by the Government of India and assert that it is a case of merger of Vayudoot with Indian Airlines. Their further argument is, therefore, the cut off date should not be 10.3.1998 but 25.5.1993 itself or, as the case may be, 10.4.1994 when the principles to merge the employees were being crystallized. That subsequent argument will be considered later on, however, we do not agree with the learned counsel Shri P.P. Rao that unless there is a formal merger all the subsequent decisions are rendered non est, as much water had flown under the bridge and now there is no point in putting the clock back. The first submission, therefore, is rejected. 25. Shri P.P. Rao raised one very important question regarding the Government's dual and contradictory policies in case of Air India and Indian Airlines. It was submitted that the impugned notification dated 5.2.2001 as also the minutes of the meeting dated 16.3.2000 clearly suggest that at the time of absorption the Vayudoot employees, who were serving in SHOD, would be placed at the bottom of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to Shri Bhowmick who was in fact much senior to Shri Das if the overall service is to be taken into consideration. Shri Bhowmick's case was compared with the case of Shri Navneet Sidhu, Shri P.K. Sengupta, etc. Similarly, Shri Rao compared the cases of Shri Manab Dhar, Shri Anup Nandi Majumdar, Shri S.S. Talapatra, Shri Arpan Sanyal and Mrs.Swapna Khisha from various other disciplines like, Audit Department, Finance Department, Traffic Department, Commercial Department, etc. and pointed out that in all these Departments the Vayudoot employees would steal a march over the Indian Airlines employees, more particularly the officers which would not only hamper their chances of promotion but would also amount to discriminatory attitude against them. Taking his arguments further Shri Rao pointed out that this was scrupulously avoided in case of Air India where the employees of SHOD were not given the horizontal entry but were put at the bottom at the entry level of their own cadre as, for example, even if the person is serving as a Deputy Manager in Vayudoot, when he went to Air India he did not go as a Deputy Manager but went as the junior-most Assistant Manager which was the entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this that a completely new and independent process was commenced holding several meetings, talks and ultimately a scheme was evolved for absorbing SHOD employees into the mainstream of Indian Airlines. According to learned counsel, and very rightly, all this was conspicuously absent in case of Air India. Indeed no evidence has been brought before us that such kind of exercise was done in case of Air India also. We would, therefore, accept the contention raised by Shri Nageshwar Rao that in case of Air India the Vayudoot employees went as the fresh appointees and that was the basis of merger or as the case may be, absorption of the Vayudoot employees into Air India. The argument is absolutely correct and we accept the same. We, therefore, reject the contention of Shri P.P. Rao that there was a discrimination or that there was a contradiction in the stand taken by the Government of India in case of Air India on one hand and Indian Airlines on the other. 27. Again the case of Air India and Indian Airlines are not comparable to each other. Whereas about 300 employees went to Air India as the fresh appointees, more than thrice that number had to be adjusted in Indian Airlines. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for those from the erstwhile District Board schools services which exercise also came under the fire and ultimately the Government chalked out the principles of integration of the two cadres by fixing the ratio between the two wings and by fixing the principles for computation of service in determining the common seniority. This was challenged before this Court. In this Court, the criticism was that some of the persons who were the erstwhile Government employees would suffer greatly because they would be rendered junior to some others who came from the erstwhile District Boards cadre. It was observed by (Hon. Krishna Iyer, J.) as under: 7. In Service Jurisprudence integration is a complicated administrative problem where, in doing broad justice to many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the executive, not to the court. All life, including administrative life, involves experiment, trial and error, but within the leading strings of fundamental rights, and, absent unconstitutional 'excesses' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assume that there is a volte face on the part of the government in shifting its stand in the matter of computation of seniority with reference to length of service. Surely, policy is not static but is dynamic and what weighed with the government when panchayat institutions were amalgamated with the District Board institutions might have been given up in the light experience or changed circumstances. What was regarded as administratively impractical might, on later thought and activist reconsideration, turn out to be feasible and fair. The Court cannot strike down a G.O., or a policy merely because there is a variation or contradiction. Life is sometimes contradiction and even consistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factor fouls. It is impossible to maintain that the length of service as District Board employees is irrational as a criterion. 30. In view of these expressions, the argument by Shri Rao based on the comparative charts of some of the employees of Indian Airlines and Vayudoot would have to be rejected. There is clear evidence available that this policy was chalked out in conformity with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off date of 10.3.1998 instead of 25.5.1993 or as the case may be, 10th April, 1994. In fact all the challenges by the SHOD employees in CA No.1271/2007 lose all the significance on account of this very important factor of option. Once they chose to join the mainstream on the basis of option given to them, they cannot turn back and challenge the conditions. They could have opted not to join at all but they did not do so. Now it does not lie in their mouth to clamour regarding the cut off date or for that matter any other condition. It is probably because of this that the learned Senior Counsel Shri Krishnamani, appearing for them, did not seriously challenge this aspect. In view of this option , the rulings cited by Shri Tankha in B.K. Mohapatra vs. State of Orissa and Anr. (1987 (Supp.) SCC 553) would not apply. At any rate, it was found, as a matter of fact, that the application of the scheme had resulted in injustice to the particular type of teachers which is not a case here. The other decision relied upon by Shri Tankha in Dwijen Chandra Sarkar and Anr. Vs. Union of India Ors. {(1992) 2 SCC 119} has no application to the facts of the present case since the expressions in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by SHOD employees to assert their right to compete for the promotional post in Indian Airlines. The factual situation was entirely different. We, therefore, reject the argument that there was no exercise on the part of the authorities to consider the conditions of service, educational qualifications, salaries, responsibilities of the job etc. at the time when the decision for merger or, as the case may be, fusion was taken and the principles therefor were culled out. The argument of the learned Senior Counsel Shri P.P. Rao, therefore, must be rejected. 34. Shri P.P. Rao, argued that the minutes of the meeting dated 16.3.2000 as also the notification dated 5.2.2001 were liable to be quashed on the ground of gross violation of principles of natural justice. Learned counsel urged that the appellant Association was not associated in the discussions at the time of the basic policy decision taken in 1993 and 1994 nor were they party to the discussions on 10.3.1998. They were also excluded from participating in the meeting dated 16.3.2000 and as such they were denied any say in the process of decision making affecting the rights of its members. According to the learned counsel t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5.1994 which was to remain as a separate Department without affecting the then Indian Airlines staff. It, therefore, cannot be suggested that the authorities were not alive to the representations made by the Indian Airlines employees or their Unions. The minutes of 10.3.1998 meeting specifically mention as under: In order to absorb such a large number of employees the Indian Airlines created Short Haul Operations Department which consisted of Vayudoot employees in their grouped order of seniority as per their length of service with designation as were applicable in Indian Airlines. This took care of the opposition from the IA's Unions and absorption of Vayudoot employees on the one hand and met with the direction of the Government on the other. (Emphasis supplied) The minutes further go on to suggest that 1023 employees of SHOD started representing against the lack of gainful utilization of their services, maintenance of separate seniority-list from that of the Indian Airlines employees, lack of avenues for career progression, etc. The minutes also suggest that various cadres such as the Pilots, Engineers and the Technicians as also the general category staff and officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the employees may suffer to certain extent, but such sufferings should be taken to be incidence of service. Therein, the Court observed: 48. Merely because the workmen may have protection of Articles 14 and 16 of the Constitution, by regarding BALCO as a State, it does not mean that the erstwhile sole shareholder viz., Government had to give the workers prior notice of hearing before deciding to disinvest. There is no principle of natural justice which requires prior notice and hearing to persons who are generally affected as a class by an economic policy decision of the Government. If the abolition of post pursuant to a policy decision does not attract the provisions of Article 311 of the Constitution as held in State of Haryana vs. Des Raj Sangar on the same parity of reasoning, the policy of disinvestment cannot be faulted if as a result thereof the employees lose their rights or protection under Articles 14 and 16 of the Constitution. (Emphasis Supplied) This leaves us with the cases cited by Shri Rao. According to him the principles in State of Maharashtra Anr. Vs. Chandrakant Anant Kulkarni Ors [(1981) 4 SCC 130] which were followed in the subsequent cases. The dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f para 10. In fact the long deliberations which went on perhaps as a sequel of demands made by the Vayudoot employees ought to have and did in fact include these factors. Shri Nageshwar Rao pointed out that the basic structure of the service in Vayudoot and Indian Airlines was comparable if not entirely identical with each other. He was at pains to point out that integration was made between the well constituted similar cadres in the two organizations in the same field of activity having similar structures and posts. Learned Senior Counsel pointed out that the duties of the managerial staff could not have been much different in Indian Airlines from the duties of the Vayudoot employees. Their activities were same, both being the domestic air carriers. Even the nomenclature of the cadres were more or the less similar. There was no specific evidence put before us that the managerial cadres in Indian Airlines had very high qualifications, responsibilities, duties and salaries and such high responsibilities, duties and salaries were not applicable to the employees of Vayudoot. Our attention was repeatedly drawn to the counter affidavit filed by Indian Airlines before Justice Ramamoor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o promote respondent 1 was taken, the policy had already been changed. There was no question mala fides moreover the change in policy in this case cannot be said to be unwarranted by the circumstances prevailing as the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force. These observations would make us slow in interfering with the policy decision. Even the managerial duties in the Indian Airlines as well as Vayudoot would involve the technical questions as to the nature of duties, training required and desirable qualifications. Again we cannot ignore the lengthy deliberations in various meetings to arrive at a proper decision taken by the responsible persons like Senior officers of Ministry of Civil Aviation, Senior Officers including the CMD of Indian Airlines as also the Ex-Director of SHOD and the Director (HRD) of Indian Airlines. In the wake of these personalities spending their valuable time to frame the policy regarding the fusion, we would be slow to interfere with such policy. 38. In S.P. Shivprasad Pipal vs. Union of India Ors. [(1998) 4 SCC 598] Mrs.Sujata Manohar, J. took into consideration that pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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