CORAMTHE HONOURABLE MR v. The Airports Authority of Indiarep. By its ChairmanOperational OfficesGurgaon Road

2.The brief facts leading to the filing of this writpetition are as follows :(i)The petitioner had joined the Indian Air Force (I.A.F.)in August 1969 and had served in the Indian Air Force from 1969 to31.08.1984. He retired from I.A.F. as a Sergeant, who wasentrusted with security, counter intelligence and police duty inthe airfield and he had a record of excellent and distinguishedservice during his tenure of 15 years in the I.A.F. After havingbeen relieved from the I.A.F. in the year 1984, the petitioner hasjoined duty as Apron Security Supervisor in the InternationalAirport Authority, Madras on 02.05.1985.(ii)In the International Airport Authority, the next cadreof promotion was the post of Assistant Airport Manager, which felldue to the petitioner in the year 1988. The petitioner was nothowever called for the test for the sole reason that he was shortby 49 days of the requisite 3 years experience. Though thepetitioner had made representations to condone the shortage of 49days, taking into account the fact that he had 15 years ofblemishless record of service, his claim was not considered;whereas, a few other persons, who fell short of the requisiteperiod of experience were given permission to appear for thewritten test. The discrimination meted out to the petitioner wassolely due to the reason that he was an active member andPresident of the Workers' Union. Thereafter, the petitioner waspromoted as Assistant Airport Manager in the year 1990 and hejoined duty in May 1991 at the Mumbai Airport. After havingserved in the Mumbai Airport for about four years, the petitionerwas transferred to Trivandrum Airport, where he joined duty on15.06.1998.(iii)The next stage of promotion from the post ofAssistant Airport Manager is the post of Airport Manager(Operations) and the requisite qualification for the said post isan experience of three years or by direct recruitment. In theyear 1996, a list of Officers, who were working as AssistantAirport Managers, including the petitioner and and 6 others whowere working as Executive Housekeeping (who were not eligible)were called to appear for a written test and the petitioner hascome out successful in the written test. On 11.04.1996, thepetitioner was asked to attend an interview to be held on12.04.1996 at 11.00 hours at New Delhi. The petitioner hadperformed well in the test and interview and he was expecting tobe promoted as Airport Manager having due regard to his seniorityand his performance. To his shock and surprise, the firstrespondent had passed an order on 30.04.1996, promoting 11 personsas Airport Managers, which did not include the petitioner. Since https://hcservices.ecourts.gov.in/hcservices/ the 11 persons who were promoted were juniors to the petitionersand 4 of them being ineligible for being considered to the saidpost, the petitioner was constrained to file a writ petitionbefore the Kerala High Court at Ernakulam in O.P.No.8131 of 1996.In the counter to the writ petition filed by the first respondentherein, it is stated that the petitioner was not promoted to thepost of Airport Manager for the reason that he was not recommendedby the Departmental Promotion Committee (D.P.C.) for promotion,since the annual confidential report of the petitioner was belowaverage for 2 years and that he did not satisfy the bench mark.(iv)Thereafter, there was an amendment in the Rules toconsider the cases for promotion without a written test orinterview and therefore, the petitioner was promoted as AirportManager on 23.12.1999, pending O.P. before the Kerala High Court.On 11.01.2002, the O.P. filed by the petitioner before the KeralaHigh Court came up for hearing and the respondents representedthat the petitioner had already been promoted as Airport Manager.The only question that arose for consideration before the saidCourt was the seniority of the petitioner to the post of AirportManager. The High Court of Kerala passed an order recording thepromotion granted to him and directing the petitioner to file adetailed representation with a further direction to therespondents to consider the same and pass orders within 3 monthsfrom the date of receipt of a copy of the order.(v)As per the order of the Kerala High Court, thepetitioner made a representation to the effect that he should begiven promotion as Airport Manager with effect from 30.04.1996 andthe action of the respondents in having overlooked his claim forpromotion and he sought restoration of his seniority in thecategory of Airport Manager, reckoning his promotion as on30.04.1996. Though there was a direction by the Kerala HighCourt to the respondents to consider the representation of thepetitioner within 3 months, the respondents took their own timeand ultimately, by order dated 02.07.2003, rejected therepresentation of the petitioner on the ground that he waspromoted to the post of Airport Manager on the basis of theDepartmental Promotion Committee held in 1999. Aggrieved by the order of the respondents rejecting his claim forseniority, the petitioner has approached this Court for the reliefas stated above. 3.The Deputy General Manager (Law) of the AirportsAuthority of India (International Airports Division) filed acounter affidavit on behalf of the respondents herein and statedthat as per rules, candidates who have fulfilled the criterion of3 years experience in the lower cadre are called for promotion andno relaxation has been given to the petitioner in the case of https://hcservices.ecourts.gov.in/hcservices/ promotion from the post of Assistant Airport Manager to the postof Airport Manager. In the counter, he also brought to the noticeof the Court, the correct date of joining of the petitioner in theTrivandrum Airport as 15.06.1995. 4.In the counter, it is further stated that as per the jobspecification applicable at that time, the promotion to the postof Airport Manager was also on the basis of a written test whichthe candidates had to qualify, followed by an interview of thequalified candidates. A Departmental Promotion Committee forfilling up the post of Airport Manager was held on 12.04.1996 andthe candidates in the feeder cadre were considered for promotionas per the amended job specification. The petitioner wasconsidered along with other eligible candidates and though he wasqualified in the written test, his name was not recommended by theD.P.C. and therefore, he was not found fit for promotion.Subsequently, the petitioner was promoted as Airport Manager witheffect from 23.06.2000. During that period, job specification forpromotion to the post of Airport Manager and interview wasabolished and hence, the petitioner was promoted on the basis ofthe recommendation of the D.P.C. and since the seniority isdetermined from the date of promotion, the petitioner's seniorityin the cadre of Airport Manager cannot be determined with efectfrom April 1996.For the foregoing reasons stated in the counter affidavit, therespondents prayed for dismissal of the writ petition. 4.Heard Mr.R.Muthukumarasamy, learned Senior Counselappearing on behalf of the petitioner and Mr.Vijay Narayan,learned Senior Counsel appearing on behalf of the respondents. 5.Mr.R.Muthukumarasamy, learned Senior Counsel for thepetitioner contended that though the petitioner was due forpromotion as Airport Manager in the year 1996 and had been calledfor written test followed by an interview for promotion to thesaid post, it is not open to the respondents to contend that theconfidential report of the petitioner during the three yearspreceding the selection disclosed the records of the petitioner tobe below average for 2 years and average for the third year.According to the learned Senior Counsel, if really the records ofthe petitioner had been below average for two years and averagefor the third year, he would not have been called for written testand interview. He vehemently contended that the action of therespondents in denying the promotion of the petitioner which wasdue to him in the year 1996 was on account of extraneousconsideration and the said action was sought to be masked by theaforesaid contention which factually did not exist. https://hcservices.ecourts.gov.in/hcservices/

6.Learned Senior Counsel for the petitioner furthersubmitted that the promotion of the petitioner as Airport Managerin 1999 is not in dispute. It was his further contention thatwhen the Kerala High Court has raised a question of fixing theseniority as regards the promotion of the petitioner de hors hisactual promotion, the respondents failed to consider the same onthe ground that the petitioner was promoted to the post of AirportManager on the basis of the Departmental Promotion Committee heldin 1999. According to the learned Senior Counsel, the respondentsin having failed to consider the said question, have failed inexercising proper jurisdiction and pleaded that the petitioner,who is an ex-serviceman with extraordinary good record beconsidered for the post of Airport Manager with due seniority,with effect from 30.04.1996. 7.Learned counsel for the petitioner, in support of hiscontentions has relied on :(i)a Supreme Court decision reported in (2006) 10 SCC 1 inthe case of Reliance Airport Developers (P) Ltd. vs. AirportsAuthority of India and others, wherein it is held as follows:"102.H.W.R.Wade and C.F.Forsyth in their bookAdministrative Law, 7th Edition, (1994) discuss thesubject regarding the jurisdiction of superior courtsover subordinate courts and tribunals under the head"Jurisdiction over fact and law" in Chapter 9, pp.284-320. The decisions before Anisminic and those in thepost-Anisminic period have been discussed in detail. Atpp.319-320, the authors give the Summary of Rules thus:"Jurisdiction over fact and law : summaryAt the end of a chapter which is top-heavy with obsolescent material it may beuseful to summarise the position as shortly aspossible. The overall picture is of anexpanding system struggling to free itselffrom the trammels of classical doctrines laiddown in the past. It is not safe to say thatthe classical doctrines are wholly obsoleteand that the broad and simple principles ofreview, which clearly now commend themselvesto the judiciary, will entirely supplant them.A summary can therefore only state the long-established rules together with the simplerand broader rules which have now supersededthem, much for the benefit of the law.Together they are as follows:Errors of fact https://hcservices.ecourts.gov.in/hcservices/ Old rule : The court would quash only if theerroneous fact was jurisdictional. New rule: The court will quash if anerroneous and decisive fact was(a)jurisdictional(b)found on the basis of no evidence;or(c)wrong, misunderstood or ignored.Errors of lawOld rule:The court would quash only if the error was(a)jurisdictional; or(b)on the face of the record.New rule :The court will quash for anydecisive error, because all errors of law arenow jurisdictional."(emphasissupplied)The above position was highlighted by thisCourt in Mafatlal Industries Ltd. vs. Union ofIndia, SCC pp.736-37, para 337. "(ii)yet another decision of the Supreme Court reported inAIR 1979 SC 1622 in the case of Gurdial Singh Fijji vs. State ofPunjab and others, the relevant portion of which is extracted asunder:"The principle is well-settled that in accordancewith the rules of natural justice, an adverse report ina confidential roll cannot be acted upon to denypromotional opportunities unless it is communicated tothe person concerned so that he has an opportunity toimprove his work and conduct or to explain thecircumstances leading to the report. Such anopportunity is not an empty formality, its object,partially, being to enable the superior authorities todecide on a consideration of the explanation offered bythe person concerned, whether the adverse report isjustified. Unfortunately, for one reason or another,not arising out of any fault on the part of theappellant, though the adverse report was communicated tohim, the Government has not been able to consider hisexplanation and decide whether the report was justified.In these circumstances, it is difficult to support thenon-issuance of the integrity certificate to theappellant. The chain of reaction began with the https://hcservices.ecourts.gov.in/hcservices/ adverse report and the infirmity in the link ofcausation is that no one has yet decided whether thatreport was justified. We cannot speculate, in theabsence of a proper pleading, whether the appellant wasnot found suitable otherwise, that is to say, forreasons other than those connected with the non-issuanceof an integrity certificate to him."8.On the other hand, Mr.Vijay Narayan, learned SeniorCounsel appearing on behalf of Airports Authority of India, therespondents herein, submitted that the petitioner has causedinordinate delay in filing the writ petition and pleaded that thewrit petition ought to be dismissed. According to him, when thepetitioner was promoted as Airport Manager in the year 2000, jobspecification for promotion to the post of Airport Manager andinterview was abolished and hence the petitioner was promotedbased on the recommendations of the Departmental PromotionCommittee and it is for this reason the representation made by thepetitioner was rejected. 9.Learned Senior Counsel for the respondents has relied onthe following decisions in support his contentions :(i)1992 (2) SCC 299 (Baikuntha Nath Das and another vs. Chief DistrictMedical Officer, Baripada and another)(ii)1996 (2) SCC 488(Nutan Arvind (Smt) vs. Union of India and another)(iii)2000 (8) SCC 395(Badrinath vs. Government of Tamil Nadu and others)(iv)2002 (9) SCC 765(Joginder Singh and others vs. Roshan Lal and others)(v)2004 (2) SCC 76(Ramrao and others vs. All India Backward Class BankEmployeesWelfare Association and others)(vi)2006 (8) SCC 129(Indu Shekhar Singh and others vs. State of U.P. andothers)10.The relevant portions of the decisions cited by thelearned Counsel for the respondents are extracted hereunder : https://hcservices.ecourts.gov.in/hcservices/ (a)In (1996) 2 SCC 488 in the case of Nutan Arvind (Smt)vs. Union of India and another, the Supreme Court has held asfollows :"6.The DPC which is a high-level committee,considered the merits of the respective candidates andthe appellant, though considered, was not promoted. Itis contended by learned counsel for the appellant thatone K.S.Rao was the officer at the relevant time toreview the performance of the appellant whereas in factone Menon had reviewed it. The latter was not competentto review the performance of the appellant and to writethe confidentials. We are afraid we cannot go into thatquestion. It is for the DPC to consider at the time whenthe assessments of the respective candidates is made.When a high-level committee had considered therespective merits of the candidates, assessed thegrading and considered their cases for promotion, thisCourt cannot sit over the assessment made by the DPC asan appellate authority. The DPC would come to its ownconclusion on the basis of review by an officer andwhether he is or is not competent to write theconfidentials is for them to decide and call for reportfrom the proper officer. It had done that exercise andfound the appellant not fit for promotion. Thus we donot find any manifest error of law for interference. "(b)The Supreme Court in (2002) 9 SCC 765 in the case ofJoginder Singh and others vs. Roshan Lal and others, has held asfollows :"5.... The High Court in exercise of itsjurisdiction under Article 226 of the Constitution isnot supposed to act as an Appellate Authority over thedecision of the Departmental Selection committee. Ifthe Committee has been properly constituted, as in thiscase, and the post is advertised and a selectionprocess known to law which is fair to all, is followed,then the High Court could have no jurisdiction to gointo a question whether the Departmental SelectionCommittee conducted the test properly or not when thereis no allegation of mala fides or bias against anymember of the Committee. Merely because there were alarge number of candidates who appeared on two days,cannot ipso facto lead to the conclusion that theprocess of selection was a farce and fair chance wasnot given. ... " https://hcservices.ecourts.gov.in/hcservices/ (c) In (2004) 2 SCC 76 in the case of Ramrao and others vs.All India Backward Class Bank Employees Welfare Association andothers, the Supreme Court has held as hereunder :"27....An order issued against a person withoutimpleading him as a party and, thus, without giving himan opportunity of hearing must be held to be bad inlaw. The appellants herein, keeping in view the factthat by reason of the impugned direction, the orders ofpromotion effected in their favour had been directed tobe withdrawn, indisputably, were necessary parties. Intheir absence, therefore, the writ petition could nothave been effectively adjudicated upon. In absence ofthe "promotees" as parties, therefore, it was notpermissible for the High Court to issue the directionsby reason of the impugned judgment."(d) The Supreme Court in (2006) 8 SCC 129 in the case ofIndu Shekhar Singh and others vs. State of U.P. and others, inparagraph 56 has held as hereunder :"... The appellants herein were not joined asparties in the writ petition filed by the respondents.In their absence, the High Court could not havedetermined the question of inter se seniority. In thecase of Ram Janam Singh, this Court held :"It is now almost settled that seniorityof an officer in service is determined withreference to the date of his entry in theservice which will be consistent with therequirement of Articles 14 and 16 of theConstitution. Of course, if thecircumstances so require a group of personscan be treated a class separate from the restfor any preferential or beneficial treatmentwhile fixing their seniority. But, whethersuch group of persons belong to a specialclass for any special treatment in matters ofseniority has to be decided on objectiveconsideration and on taking into accountrelevant factors which can stand the test ofArticles 14 and 16 of the Constitution.Normally, such classification should be bystatutory rule or rules framed under Article309 of the Constitution. The far-reachingimplication of such rules need not beimpressed because they purport to affect the https://hcservices.ecourts.gov.in/hcservices/ seniority of persons who are already inservice."11.I have considered the submissions made by the learnedcounsel on either side and perused the materials available onrecord.12.There are circumstances where the respondents can bedirected to consider the claim of the petitioner for retrospectivepromotion, as held by the Supreme Court in its decision reportedin (1997) 1 SCC 111 in the case of U.D. Lama v. State of Sikkim.Though the said decision is not factually applicable to the caseon hand, the principles adopted therein can be followed in thismatter for the sake of judicial review. The relevant portion ofthe decision is extracted hereunder :20. On the other hand, it cannot be overlookedthat the appellants were not appointed by following theregular procedure of appointment. Under Rule 4(1),recruitment could be made to the newly-created StateCivil Service by competitive examinations to be held bythe Sikkim Public Service Commission. This competitionis not confined to persons who are already ingovernment employment. The second method of recruitmentis selection from persons serving in connection withthe affairs of the State of Sikkim. In the secondcategory of recruitment, specifically no provision ofholding written examination and viva voce has been laiddown. The respondents claim that had the procedure inRule 4(1)( b ) been followed, they would have got intothe Service without any examination. But their lawfulexpectation was denied by the failure of the Governmentto set up a Commission or appoint a Chairman. Whatwould have happened in normal course, did not happenbecause of the Government's failure. Only because ofthis, quite contrary to the Rules, written and oraltests were held. This was upheld by this Courtprincipally on the ground of what was described aspeculiar situation. which was created by the absence ofa Commission and its Chairman. The selection andappointments made in 1982 were dictated by peculiarcircumstances obtaining at that time. The appointmentswere not made strictly in accordance with the Rulesbut, as was held by this Court, in exercise of theexecutive power of the State. It is true that some ofthe respondents appeared in the tests and did notqualify but there is substance in the contention of therespondents that they were entitled to be appointedeven without these tests if Rule 4(1)(b) was followed.They were deprived of this chance. Even for Rule 4(1) https://hcservices.ecourts.gov.in/hcservices/ (b), the instrumentality of Public Service Commissionwas necessary for making any appointment. Now that thePublic Service Commission has been set up, the StateGovernment has to undo the wrong that was initiallydone to these employees by subjecting them to testswhich was not warranted by Rule 4(1)(b). Therefore,they should not be made to suffer in the matter ofseniority or promotion in any way by failure of theState Government to implement the Rules laid down byit. In these circumstances by directing the newrecruits to be treated to have been recruited on theday the appellants were recruited, the State Governmenthas not done anything contrary or wrong but has reallyrestored ( sic removed) the injustice done to therespondents by the State Government's failure torecruit them into the Service in accordance with Rule 4(1)(b). In fact, the only door that was open to theappellants under the Rules to enter the Service wasthrough Rule 4(1)(b). They might have also joinedthrough open competition but neither of the two stepswere taken or could be taken. In these circumstances,the appellants have really tried to steal a march uponthe respondents by being successful in the tests whichshould not have been held in any event. 13.While deciding the case, it would be useful to refer tothe relevant guidelines on promotion to Group 'A' and within Group'A' framed by the Airports Authority of India, the respondentsherein:DPC-Composition and methodology of Assessment :"10.The Departmental Promotion Committee forpromotion upto the level of Senior Manager shall bechaired by respective Members and for promotion to DGMand above shall be chaired by Chairman, IAAI, being therespective appointing authorities.11.As in Government each Departmental PromotionCommittee will decide its own method and procedure forobjective assessment of the suitability of theofficers. Under the Government guidelines, the DPC isnot guided merely by the overall grading, if any, thatmight have been recorded in PAR, but DPC makes its ownassessment on the basis of the entries in the PARsbecause it has been noticed that sometimes the overallgrading in the PARs may be inconsistent with thegrading under the various parameters or attributes.Departmental Promotion Committee in IAAI, therefore,will have full discretion to devise its own way for https://hcservices.ecourts.gov.in/hcservices/ moderation of the grading obtained by the officers intheir PARs keeping in view the Governmentguidelines/instructions as applicable for the purpose."14.In the instant case, even according to the respondents,the petitioner was considered along with the eligible candidatesand though he was qualified in the written test, his name was notrecommended by the DPC and therefore, he was not found fit forpromotion.15.In this context, it would also be useful to refer to theimpugned order of the respondents, dated 02.07.2003, the relevantportion of which is extracted hereunder:"The above issue has been examined at appropriatelevel. The seniority in the cadre is determined on thebasis of panel position as per DPC. Since Shri Subbiahwas promoted to the post of Airport Manager on the basisof DPC held in 1999, his request for determining hisseniority in the cadre of Airport Managerretrospectively i.e. from April '96 cannot be agreedto."From a reading of the impugned order, it is seen that therespondents have not at all considered the case of petitioner inits entirety. 16.Apart from the above, the judgment of the Kerala HighCourt in the O.P. filed by the petitioner also deserves referenceand the relevant portion of the said judgment is as under:". . . During the pendency of this OriginalPetition, petitioner was promoted as Airport Manager asper Ex.P.9 order dated 23.12.1999. Therefore, the onlyquestion to be considered now is regarding his serviceseniority. In this case, petitioner may file a detailedrepresentation before the respondents. Respondents aredirected to consider and pass orders on therepresentation filed by the petitioner after hearing allthe aggrieved persons expeditiously within three monthsfrom the date of receipt of a copy of this judgmentalong with the representation."17.In view of the judgment of the Kerala High Courtreferred to above, this Court feels that the petitioner's case hasto be considered with all relevant materials and the backgroundcircumstances under which he has moved the Kerala High Court forpromotion and consequential reliefs. Thus, the respondents, whileconsidering the petitioner's case regarding his seniority, cannotsimply reject it mechanically without assigning any reason, muchless a valid reason; rather, they have to consider his case in its https://hcservices.ecourts.gov.in/hcservices/ entirety. It is also relevant for consideration that the secondrespondent, while deciding the case of the petitioner, ought tohave seen under what circumstances and for what relief, thepetitioner had approached the Kerala High Court. The respondents,having been parties to the Original Petition before the KeralaHigh Court and having contested the matter, ought to have seenthat the Original Petition had been filed seeking direction to therespondents to produce all the records leading to Ex.P.7 (markedbefore the Kerala High Court) and to quash the same and to furtherdirect the respondents to appoint the petitioner as AirportManager and such other reliefs. In other words, the respondentsought to have taken into account the relief sought by thepetitioner seeking to call for the entire records leading toEx.P.7 in which the legality of the proceedings dated 30.04.1996of the respondents has been questioned. That apart, whileconsidering the petitioner's case for seniority, the respondentsshould have given due consideration with clear application of mindto the available records, besides giving an opportunity ofpersonal hearing to the parties to decide the issue. Instead, therespondents have simply rejected the petitioner's case by merelystating that they have examined the petitioner's case and withoutassigning any reason and thereby passing a non-speaking orderwithout giving due consideration to the challenge of thepetitioner based on the DPC meeting held on 12.04.1996 and hisposition as on 30.04.1996.18.In the light of the discussion made above and thematerials placed before this Court and particularly, the order ofthe Kerala High Court dated 11.01.2002 as well as the claim madeby the petitioner based on the records relevant to Ex.P.7 (markedbefore the Kerala High Court) which is the office order dated30.04.1996 passed by the respondents and also the eligibilityconditions as per the guidelines framed by the respondents forconsideration by the DPC, without expressing any opinion on thevires or otherwise of the decision of the DPC in the petitioner'scase in view of the settled law that this Court is not supposed toact as an appellate authority over the decision of the DPC, I amof the firm view that the petitioner's claim for retrospectivepromotion has to be considered, taking note of his case in itsentirety. In that view of the matter, since there cannot be meredenial of the petitioner's claim, the impugned order dated02.07.2003 passed by the second respondent which is of non-speaking nature passed with total non-application of mind non-consideration of material records, is set aside and taking note ofthe claim made by the petitioner based on Ex.P.7, i.e., the officeorder of the respondents dated 30.04.1996 and the eligibilityconditions as per the guidelines framed by the respondents asindicated above, the matter is remitted back to the respondentsfor fresh consideration and they are directed to pass an https://hcservices.ecourts.gov.in/hcservices/ appropriate speaking order with due reasoning within a period ofeight weeks from the date of receipt of a copy of this order. In the result, the writ petition is allowed with the abovedirections. No costs.abeSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The ChairmanThe Airports Authority of IndiaOperational OfficesGurgaon Road, New Delhi 110 0372.The Assistant General Manager(Personnel)The Airports Authority of IndiaGurgaon Road, New Delhi 110 037+ 1 cc to Mr.R. Parthiban, Advocate, SR No.67107+ 1 cc to Mr.A. Jenasenan, Advocate, SR No.66944CU(CO)SR/19.11.2007 Order inW.P.No.28421 of 2003