CAPT K C SHUKLA Vs. INDIAN AIRLINES

JUDGEMENT

(1.) The petitioner is a Commander In the Indian Airlines, the first respondent. He is aggrieved bythe action of the first respondent in not appointing him to thenext higher post of the Deputy Operations Manager and ratherappointing respondent 2 to 22 who are junior to him to thispost by order No. 34/90 dated 10-4-1990. The petitioner.therefore, seeks, quashing of this promotion order and furtherseeks a direction to the first respondent to appoint the petitionerto the post of Deputy Operations Manager retrospectively w.e.f. 1/02/1990. He also seeks certain other directions connected with this.

(2.) First respondent is a body corporate constituted underthe Air Corporations Act, 1953 (for short 'the Act') and itsaffairs are governed by the Board of Directors as mentioned insections 3 and 4 of the Act. Under section 44 of the Act,the Central Government has power to make rules to give effectto the provisions of the Act and under section 45 the firstrespondent has been given power to make regulations notinconsistent with the Act and rules made thereunder. Theseregulations are, however, to be made by notification in theofficial gazette. Under cluase (b) of sub-section (2) of section45, the first respondent is empowered to make regulations inconnection with the terms and conditions of service ofofficers and other employees of the first respondentother than the Managing Director, etc. and under sub-section (3)no such regulation shall be made except with the previousapproval of the Central Government. The first respondentmade regulations called (1) Indian Airlines Employees (otherthan Flying Crew and the Aircraft Engineering Department)Regulations, (2) Indian Airlines (Flying Crew) Service Regulations, and (3) Indian Airlines Employees (Aircraft EngineeringDepartment) Service Regulations. We are concerned with theservice regulations for Flying Crew. Under Regulation 14 anemployee of the first respondent is eligible for promotion to thehigher scale in accordance with the regulations made by theIndian Airlines from time to time. The Flying Crew Regulationscontain Appendix I giving scales and designations of (Flying)Operations Department. Under Regulation 9 every personappointed to a service or post is to undergo a certain period ofprobation. From the Second Officer, as given in the Appendix I,the higher officers are First Officer, Flight Engineer, Captain,Commander, Deputy Operations Manager, Operations Manager/Deputy Director of Operations, Regional Director (Pilots),Director of Operations, Deputy Managing Director and ManagingDirector and their pay scales are prescribed. We weretold under powers conferred by Regulations 4, 7 and8 of the Flying Crew Regulations, the first respondentframed Recruitment and Promotion Rules (R & Rules). Some of the relevant provisions of these rules will have tobe referred to. In the Schedule to these rules, post of Commanderfalls in Grade XVIA under Cadre VI pertaining to OperationsDepartment. Under Cadre VI first post is that of the SecondOfficer and is to be filled by direct recruitment. There are postsin ascending order of First Officer, Captain, Commander, CheckPilot, Flying Instructor. Chief Flying instructor and Chief Pilotwhich are all to be filled in by promotion. The next post is ofGrade XVIII under Cadre VI and is that of Operations Manager.This is to be filled in by direct recruitment or promotion. The lastpost in this_ Cadre is Grade XIX and is that of Director of Operations which is again to be filled in by direct recruitment orpromotion. Except for the post of Director of Operations, allother posts are technical posts. Contention of the petitioner isthat the post of Chief Pilot which is of Grade XVIB was redesignated as Deputy Operations Manager, According to him, thereforemethod of appointment to the post of Deputy Operations Manageris by promotion. The respondent, however, says that the post ofChief Pilot was abolished in the year 1971 and the post wasupgraded and designated as Deputy Operations Manager (seeAppendix I to Crew Regulations) and mode of recruitment tothis post is either by promotion or direct recruitment. Theyfurther say that this post of Deputy Operations Manager is inGrade XVII while the Chief Pilot in Grade XV(.B. Then therespondent says that ever since the creation of the posts ofDeputy Operations Manager these have always been filled bythe process of selection which is akin to the process of directrecruitment, the only difference in this process being that thecandidates so selected are from within the organisation and thatthe pests as such are not advertised. It says this method hasbeen adopted since the year 1971. It is interesting however.to note that the R & P Rules, which have been brought on recordand even produced at the time of hearing, do not show the postof Deputy Operations Manager in the Schedule while that ofChief Pilot has been shown. From these rules, therefore, it cannotbe said that any such post of Deputy Operations Manager is tobe filled by direct recruitment or promotion. Our attention wasdrawn to the Minutes of the Board of Directors of the firstrespondent held on 30/07/1970. Item 5 of these minutes isrelevant for our purpose and is reproduced below :"5 Amendment to recruitment and promotion rules :

(3.) Coming back to the R&P Rules, Rules 9, 10(c), 11,12 and 13 falling in Chapter IT relating to direct recruitment, areas under:-