Full Judgment Text
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CASE NO.:
Appeal (civil) 1269 of 2007
PETITIONER:
Indian Airlines Officers’ Association
RESPONDENT:
Indian Airlines Ltd. & Ors
DATE OF JUDGMENT: 30/07/2007
BENCH:
H.K. Sema & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NOs.1269 OF 2007
WITH
Civil Appeal No. 1270 of 2007
Indian Airlines Cabin Crew Association \005.Appellant
Versus
Union of India & Ans. \005.Respondents
WITH
Civil Appeal No. 1271 of 2007
Vayudoot Karamchari Sangh \005.Appellant
Versus
Indian Airlines Ltd. & Anr. \005.Respondents
WITH
Civil Appeal No. 1272 of 2007
Indian Airlines Officers’ Welfare Forum \005.Appellant
Versus
Indian Airlines Ltd. & Ors. \005.Respondents
V.S. SIRPURKAR, J.
1. This Judgment will dispose of Civil Appeal Nos. 1269, 1270,
1271 and 1272 of 2007. Civil Appeal No. 1269 of 2007 is preferred
by Officers’ Association of Indian Airlines; the representative body of
the Indian Airlines employees. The Civil Appeal No. 1270 of 2007 is
preferred by Indian Airlines Cabin Crew Association while Civil
Appeal No. 1271 of 2007 is preferred by Vayudoot Karamchari Sangh
and Civil Appeal No. 1272 of 2007 by Indian Airlines Officers’ Welfare
Forum respectively. All these appeals challenge a common judgment
passed by the Division Bench of the Delhi High Court whereby the
Division Bench has set aside the common judgment passed by the
Ld. Single Judge of that Court which had allowed the four Writ
petitions filed by the Officers’ Association of the Indian Airlines and
the employees of the Vayudoot Limited.
2. The learned Single Judge 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
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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
Vayudoot employees.
FACTS :
*Indian Airlines Ltd. and Air India came to be established under the
Air Corporations Act, 1953.
*Vayudoot Pvt. Ltd. was incorporated in 1982.
*Vayudoot was converted into a Public Ltd. Company in 1983 and its
shares were held by Indian Airlines and Air India jointly.
*The Government of India took a decision on 25th May, 1993 to
merge Vayudoot with Indian Airlines. Some salient features of that
decision were :
(i) Vayudoot should be merged with Indian Airlines
instead of retaining the present form of joint ownership by
Indian Airlines and Air India.
(ii) The dues owed by Vayudoot to creditors in the
public sector on the date of take-over by Indian Airlines
would remain frozen for five years. There will thus be a
moratorium for five years on repayment and servicing of
the dues; thereafter the liabilities will be discharged by
Indian Airlines in 10 annual instalments.
(iii) Equity shares of Vayudoot Limited held by Air India
will be transferred in favour of Indian Airlines on a token
consideration.
(iv) Vayudoot will be retained as a clearly
identifiable separate Division of Indian Airlines.
4. Keeping with these principles, there came a circular dated
25.05.1994 whereby a separate department was created in Indian
Airlines called Short Haul Operations Department (hereinafter called
’SHOD’ in short) for absorption of erstwhile Vayudoot employees.
The features of the absorption are as follows :
(1) By this circular, the employees so absorbed in SHOD were
given the Indian Airlines pay scales and other benefits enjoyed
by the Indian Airlines employees.
(2) There were no inter-departmental transfer in between SHOD
employees and Indian Airlines.
(3) The Indian Airlines Recruitment and Promotion Rules as well as
service conditions were made applicable to the employees of
SHOD.
(4) On absorption of employees of Vayudoot in SHOD, the basic
pay drawn by the employees was to be at appropriate pay
scales as comparable to scales of pay of Indian Airlines.
(5) For the employees of SHOD who then possessed a particular
designation but did not have requisite length of service for such
posts as per Indian Airlines Rules firstly their basic pay was
protected and secondly those persons were to be given
designation commensurate with the employee’s length of
service and that designation was to remain till 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
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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, after their absorption in SHOD, the erstwhile
employees of Vayudoot started making demands. A meeting dated
10th March, 1998, therefore, was convened by the Secretary, Civil
Aviation Department to discuss the issues. In that meeting, those
demands were discussed and considered. The minutes of that
meeting firstly mentioned the background wherein it was noted that
out of the total 1334 employees of the Vayudoot, 311 employees
were absorbed in Air India while remaining 1023 were absorbed in
Indian Airlines. The minutes firstly mentioned the creation of SHOD
and it was further mentioned in the minutes :
"In order to absorb such a large number of employees, the Indian
Airlines created a Short Haul Operations Department (SHOD)
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 Indian Airlines’ Unions and absorption of Vayudoot employees
on the one hand and met with the direction of the Government on
the other. However, slowly over a period of time SHOD employees
started representing on various counts such as the lack of gainful
utilization of their services, maintenance of separate seniority list of
employees of SHOD from that of the Indian Airlines employees, no
avenues for career progression, etc. The various cadres such as
the pilots, the engineers, the technicians, the general category staff
and officers repeatedly represented and held discussion with the
management of the Indian Airlines."
The minutes further mentioned that there were a number of talks held
on the demands. Discussions were held at length and views of said
employees as well as the Indian Airlines employees were presented.
7. The decisions were taken in respect of pilots, aircraft engineers
and technicians with which we are not concerned in these appeals.
Shortl stated, all the employees of the aforementioned three
categories of pilot, aircraft engineers and technicians were to be
absorbed at the bottom of the seniority lists of the posts on which
they were to be absorbed. As regards the general category staff, it
was decided as under :
"General Category Staff : It was decided that the general
category staff of SHOD will be placed at the bottom of each grade
in respective departments as on 10th March, 1998.
General Category Officers : 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.
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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 disposed of by the impugned judgment.
9. In writ petition no. 723 of 1998, the present appellant - Indian
Airlines Officers Association was allowed to be impleaded. As has
already been stated, the said writ petitions were dismissed.
However, in the present appeal, the appellants herein seek to rely
substantially on the counter affidavit filed by the Indian Airlines.
10. It seems thereafter also the question of the demands of the
’SHOD’ officers had remained unanswered and undecided and
therefore a meeting was held at the instance of Secretary, Civil
Aviation on 16.03.2000.
11. As has been seen, till then there was no merger. Paras 2 and
3 of the minutes of this meeting are worth noting :
"2. Secretary, Civil Aviation expressed serious concern over the
delay in deciding the merger of SHOD employees in the
mainstream of Indian Airlines although the Government had
approved the merger of Vayudoot into Indian Airlines on
25.05.1993. This is also resulting in avoidable criticism in the
parliament and having a demoralizing effect on the employees of
Vayudoot without proper career progression. Secretary, Civil
Aviation, therefore, directed Indian Airlines to take immediate
necessary action to resolve the issues once for all. Chairman,
Managing Director, Indian Airlines Limited also assured that the
action will be ensured in a time- bound manner.
3. It was observed that a common type of offer had been made
to all categories at the time of joining SHOD on 01.12.1994, which
provided for their absorption in Indian Airlines as a separate entity
under SHOD, in which their inter-se seniority of Vayudoot would be
carried over and provided time-bound promotion as per their
career progression. These employees would, therefore, have no
other legal claim if SHOD is not merged with Indian Airlines. It
was accordingly decided that :
(a) The employees of SHOD be offered to merge with
mainstream of Indian Airlines on voluntary basis in terms
of the scales defined by the Indian Airlines taking all
factors into consideration.
(b) Those opting against the merger should be allowed to
remain in SHOD, and the time-bound promotion as per
their career progression under SHOD be released
immediately by the Indian Airlines management.
(c) The date of merger of SHOD employees in the
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mainstream of Indian Airlines be uniformally kept as
10.03.1998."
After detailed discussions, 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, 2000 between the
officers of Ministry of Civil Aviation and the representatives of Indian
Airlines. The Minutes of this meeting suggest that it was noted that
unless and until SHOD employees were merged in Indian Airlines,
they would have no legal rights and therefore, their merger was done
as suggested in meeting dated 10.03.1998. The Minutes further
declared that Indian Airlines had taken various measures for merger
of SHOD employees to the mainstream of Indian Airlines not on the
individual basis but on the basis of various class/category of
employees. Minutes do refer to the decisions taken in the meeting
dated 16.03.2000 which are as under :
"1. Whenever the principle of merger already enunciated by
Ministry has been accepted by a category of employees and
the merger process had already commenced, the same will
continue.
2. Wherever the merger process has not commenced, the
employees of SHOD will be offered merger with the
mainstream of Indian Airlines only on voluntary basis on the
terms enumerated below.
3. Those opting against such absorption will continue to be in
SHOD and their career progression will be separately
decided. The date of merger will be kept as 10th March,
1998 as has been agreed earlier. "
15. The Minutes also reiterate the decisions taken in case of
general category employees and general category officers, again in
paragraph 4 & 5 which are as under :
"4. General Category Employees: Management representative
informed that merged seniority has already been displayed and
objections raised have been replied to. In most of the cases, the
final seniority has already been displayed. It was decided by the
Ministry that general category employees will be given opportunity
to opt for such merger with the main stream of India Airlines as on
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10th March, 1998 at the bottom of the seniority in their respective
grades. Those who do not agree for this dispensation shall
continue to be retained in SHOD and their career progression will
be separately decided.
5. General Category Officers : It was decided that the
general category officers will be merged on voluntary basis as on
10th March, 1998 and they will take their seniority at the bottom of
the entry point of officers i.e. at the category of Asstt. Managers in
their respective Departments with protection of basic pay. Those
having objections against such a merger shall be retained 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 taken in the
meeting. It was further reiterated in the letter that contrary to the
decision taken, the minutes reflected as if the decision was for
horizontal entry in their respective grades which was not factual
recording of the decision and such decisions were likely to be
strongly resisted by the Unions/Associations of the Indian Airlines,
other than possibly the ACEU. In this letter, particularly, the stand of
the Indian Airlines was that in the meeting dated 16.03.2000, the
option given to the SHOD employees was to join Indian Airlines at
the entry point at the bottom of the seniority or alternatively continue
to remain in SHOD. In short, the difficulty felt by the Indian Airlines
was that though in the meeting dated 16.03.2000, the decision taken
was that SHOD employees were to be adjusted at the "entry point"
but the minutes reflected as if they were to have the "horizontal
entry". This letter again reiterates and refers to the letter dated
08.05.2000 for the correction of the minutes. This letter was
however replied to by the Civil Aviation Department by its letter dated
17.02.2000 wherein the Civil Aviation department took a very clear
stand that there was no need to modify the minutes of the meeting
dated 16.03.2000 taken by the then Secretary, Ministry of Civil
Aviation, meaning thereby that the entry of SHOD employees would
be in the horizontal level and not at the entry point of the cadre, e.g. if
a Deputy Manager of SHOD was to be merged with Indian Airlines,
he would be merged as a Deputy Manager at the bottom of the
seniority list of the Deputy Managers and not as an Assistant
Manager which is the entry point of the managerial cadre. In
pursuance of this, ultimately on 05.02.2001, came the last decision
which was as under :
"Consequent to the decision taken by the Ministry of Civil Aviation
to merge, the seniority of General Category officers of SHOD in the
mainstream of India Airlines Ltd. on voluntary basis, those officers
of SHOD in the aforesaid categories who are desirous of merger of
their seniority as on 10.03.1998 will be placed at the bottom of the
respective grade/pay scales as on 10.03.1998 with protection of
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their pay and past services.
In pursuance to the above, you are advised to exercise your option
for merger of your seniority with Indian Airlines Ltd. in the
prescribed format to be submitted to the office of general
managers (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 petitions came to be allowed by the learned
Single Judge of the Delhi High Court Hon. Nandrajyog, J. who
quashed these decisions and directed that the whole exercise should
be taken afresh after considering all the aspects. The learned Single
Judge did not specifically approve the "Horizontal entry" and
reiterated that such horizontal entry would mean injustice for the
Indian Airlines employees who were governed by the rules and had
spent number of years for getting the promotion. As against this, the
Vayudoot employees did not have any rules to govern them and had
got the promotions even without any rules and in the most arbitrary
manner.
19. The learned Judge therefore was of the opinion that in ordering
the horizontal entry of the then Vayudoot employees (now SHOD
employees) into the Indian Airlines, equal treatment would be given to
the unequals. He therefore directed the reconsideration of the whole
process taking into consideration particularly all these matters shown
in the judgment.
20. As has already been stated, this judgment was appealed
against before the Division Bench of the Delhi High court and the
appeal was allowed setting aside the judgment of the learned Single
Judge.
21. We had already pointed out, earlier to these decisions some of
the erstwhile Vayudoot employees had filed writ petitions claiming
the treatment on par in the matter of promotions to the post of
Manager from the post of Deputy Manager and the learned Single
Judge Ramamoorthy, J had refused to entertain these writ petitions
on the ground that the Vayudoot employees and the Indian Airlines
employees could not be compared to each other. In the
aforementioned writ petitions, before Hon. Nandrajyog, J., the counter
filed by the Indian Airlines reiterating the incompatibility between the
Vayudoot employees and the Indian Airlines employees was
highlighted and was accepted by the learned Single Judge. That was
also the main stay of the arguments before us as well as before the
Division Bench of the Delhi High Court, which judgment is impugned
before us herein. However, Delhi High Court did not accede to that
challenge and went on to decide the matter holding that this would
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amount to the interference by the High Court in the administrative
policies of the promotions by Indian Airlines or as the case may be
by the Government of India. It is this judgment of the Delhi High
Court 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 Karamchari Sangh in Civil Appeal
No.1271 of 2007. We will first take up, for consideration, the Civil
Appeal Nos.1269 and 1270 of 2007.
23. Shri P.P. Rao, learned Senior Advocate, appearing on behalf of
Indian Airlines Officers’ Association (hereinafter referred to as
"Officers Association" for short) firstly urged, relying upon the
pleadings of the Indian Airlines, that there was no formal merger as
yet between the Indian Airlines and the Vayudoot. Consequently, the
decision taken first in the meeting dated 16.3.2000 followed by
notification dated 5.2.2001 would be non-est in law and would be
liable to be quashed. In our opinion, the argument raised has no
merit. The decision to merge Vayudoot with Indian Airlines was taken
as back as 25.5.1993 and this was a policy decision of the Central
Government. It may be that till 16.3.2000 or the consequent
notification dated 5.2.2001 there was no formal merger between the
two, however, that by itself will not invalidate the decisions taken on
16.3.2000 or 5.2.2001. The policy decision taken was not only
pursued but definite steps were taken in pursuance thereof and for
that purpose SHOD was created as part and parcel of the Indian
Airlines. After the decision was taken to merge, the facts indicate that
the existence of Vayudoot was a mere formality. True it is that there
was a separate procedure and that other legal formalities were not
yet over, however, that by itself would not have the effect of wiping
out the decision taken on 16.3.2000 or the notification dated
5.2.2001. That would be putting the clock back resulting in utter
chaos now and further that by itself would be no reason to start
everything afresh taking a view that since the formal merger is not
there, the subsequent exercise would be non-est. On the basis of
this Shri P.P. Rao also questioned the cut off date i.e.10.3.1998
provided in the notification dated 5.2.2001. This argument is
principally raised in order to wipe out the cut off date. The members
of the Appellant-Association could be benefited, if the cut off date is
pushed forward because in that case the employees of the erstwhile
Vayudoot and thereafter SHOD would be getting the seniority not
from 10.3.1998 but from subsequent date. In our opinion the
argument is completely incorrect.
24. Very strangely, the argument by Vayudoot Karamchari Sangh
in CA 1271 of 2007 is completely contrary 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.
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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
respective grade/pay-scale as on 10.3.1998 with protection of their
pay and past services. The main point of conflict was as to whether
an employee or more particularly, the officer serving in Vayudoot
should be placed in the same grade with the same nomenclature or
should be placed at the entry level of the cadre. It would be better for
us to take an example to understand the controversy. In the
managerial cadre, the entry level post is Assistant Manager, the
second post is Deputy Manager and above that is the Manager. The
contention of the appellant-Officers Association is that even if a
person is serving as a Manager, or the case may be, a Deputy
Manager in Vayudoot, when he is absorbed in the Indian Airlines, he
should be placed at the entry level, i.e., as the Assistant Manager.
While the contention of the Government, Indian Airlines and also the
erstwhile Vayudoot Karamchari Sangh is that such officer should be
placed as the junior-most officer in the same grade, for example, if a
Manager is to be absorbed, he should be made a junior-most
Manager. Similarly, if a Deputy Manager is to be absorbed, he
should be absorbed as a junior-most Deputy Manager. Shri Rao took
us to various individual examples and also to a chart to suggest that if
this horizontal entry is allowed, then a person who is junior to the
officers of the Indian Airlines in the length of service would be put on
their head at the upper level and as such the chances of promotion of
the Indian Airlines Officers would be seriously affected. Taking the
example of one Mr.U.K. Bhowmick from Indian Airlines Officers, he
pointed out that Shri Bhowmick joined the organization on 3.9.1973
and by getting various promotions had become Assistant Manager
(Personnel) on 1.7.1994 and was further promoted as the Deputy
Manager on 1.7.1998. As against this he took the example of one
Shri S.D. Das, a SHOD officer who had joined the organization of
Vayudoot after about 11 years, i.e., 1.8.1994 and was absorbed in
SHOD on 1.12.1994 as Assistant Manager. Thus he was junior in
length of service to Sh.U.K. Bowmick, in so far as absorption in
SHOD is concerned which was five months after Shri Bhowmick’s
promotion, yet he was promoted in SHOD on 1.1.1996 as Deputy
Manager. Shri Rao explained that when Shri Das is to be absorbed
as a Deputy Manager, i.e., on the basis of the horizontal principle, he
would be senior 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
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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 entry level post of the managerial cadre. He pointed
out that thus the Government and the Indian Airlines had shown a
discriminatory attitude as against Indian Airlines employees. Learned
Senior Counsel questions as to how the Central Government can
take a different attitude in respect of Air India and Indian Airlines.
26. We would consider the question of comparative hardship a little
later but would first deal with the argument regarding the different
attitude taken in case of Air India and Indian Airlines. Shri
Nageshwar Rao, learned Senior Advocate appearing on behalf of
Indian Airlines, urged that merely because a particular policy was
taken in case of Air India would not by itself create any obligation that
the same kind of policy should be taken in case of Indian Airlines
also. Shri Nageshwar Rao urges that that was a case of merger or
absorption of ex-Vayudoot employee with Air India like in case of
Indian Airlines. He points out that those employees who were
inducted in Air India way back in 1994, were treated as the fresh
appointees. According to the learned counsel they were bound to be
placed at the entry level in Air India. Learned counsel urges, and in
our opinion rightly, that the entire process of merger of ex-Vayudoot
employees and their absorption in Indian Airlines was a completely
independent process. Shri Nageshwar Rao pointed out that though a
separate Department SHOD was created for the Vayudoot
employees, the Vayudoot employees demanded for their absorption
in Indian Airlines as otherwise they would have stagnated in SHOD
because there was a little scope for SHOD employees for a better
future or career progression. In fact, SHOD employees initially were
not to be transferred from SHOD to Indian Airlines and no Indian
Airlines employee was liable to be transferred to SHOD. In short the
Vayudoot employees who were placed in SHOD were to keep their
independent identity. However, SHOD employees were not satisfied
with this and started demanding some better chances by getting into
the mainstream of Indian Airlines and this was not unnatural because
after the merger decision they had lost their independent status as
Vayudoot employees, they were to be treated as Indian Airlines
employees but belonging to SHOD, thereby though they were part of
the Indian Airlines family, they were to be treated differently to their
chagrin. It is only because 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. The number was substantial which lost
their identity as the Vayudoot employees and as a result of the
demand raised by them and after lot of discussions in Civil Aviation
Ministry on one hand and the Indian Air Lines authorities on the other
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a scheme was formulated. We do not think that there was anything
wrong done in adopting two different methodologies in case of Air
India and Indian Airlines.
28. For the similar reasons we do not think that merely because
some of the employees of Indian Airlines would suffer in terms of
seniority and ultimately in terms of their further chances of promotion,
the whole scheme can be rejected as discriminatory or arbitrary. In
Tamil Nadu Education Department Ministerial and General
Subordinate Services Association & Ors. vs. State of Tamil Nadu
[(1980) 3 SCC 97], this Court was considering the question regarding
the principle underlying the fixation of ratio between the two wings of
a service in different levels like primary, middle and higher schools
which were run by public sector consisting of Panchayats, District
Boards and Governments. Eventually Panchayat schools were
absorbed by the District Boards and ultimately the schools managed
by the District Boards were taken over by the Government. While this
fusion took place, the cut off date was the date of entry into the
District Board service and not the service under Panchayat which
was regarded as relevant for the purpose of reckoning the seniority.
This was challenged as it resulted in wiping out the earlier services
of the teachers who had served with the Panchayat. The whole
scheme of equalization and absorption was challenged. This Court
also noted that the staff i.e. teaching and the non-teaching staff
absorbed as such was to be treated as if they were in the separate
service in education department. In that, the promotional prospects
which were available to the erstwhile government employees were
not open to the members of this new service who were erstwhile
District Board’s servants. The Court also noted that the Government,
on account of the representations by the absorbed staff, issued a
new Government Order and considered afresh the question of
integration of the two services, namely, the Government schools’
servants and the former District Board schools’ servants. Certain
measures were taken in connection with promotional prospects and
promotions 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’, judicial correction is not right. Under Article
32, this Court is the constitutional sentinel, not the national ombudsman.
We need an obudsman but the court cannot make-do.
8. The feeble criticism that the promotional proportion between the
two wings, in the process of interlacing and integration, is unsupported by
any rational guide-line is pointless. The State’s case is that when two
sources merge it is not uncommon to resort to the quota rule for
promotion, although after getting into the common pool further ’apartheid’
shall be interdicted save in a limited class with which we are not
concerned here. Of course, even if the quota rule is an administrative
device to inject justice into the integrating process, the ratio cannot be
arbitrary nor based on extraneous factors. None such is averred nor
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established. The onus is on the challenger and, here, the ratio is
moderately related to the numbers on both sides and we see nothing
going ’berserk’, nothing bizarre, nothing which makes you rub your eyes to
query what strange thing is this government doing? Counsel for the
respondents explain that when equated groups from different sources are
brought together quota-rota expedients are practical devices familiar
inducted, the ratio is rational. May be, a better formula could be evolved,
but the court cannot substitute its wisdom for government’s save to see
this unreasonable perversity, mala fide manipulation, indefensible
arbitrariness and like infirmities do not defile the equation for integration.
We decline to demolish the order on this ground. Curial therapeutics can
heal only the pathology of unconstitutionality, not every injury."
29. That was a case of quota. Here if the erstwhile Vayudoot
employees are being fixed horizontally as the junior most employees
of that post there would be no question of injustice to Indian Airlines
employees. As held by the Supreme Court in the aforementioned
case "if some of the employees suffer because of the merger or
absorption or some employees would be of the same field but of the
different organizations that by itself, would not be a reason to
eradicate the whole scheme if the scheme is not found malafide or
unreasonable." We do not think that the scheme by itself was
malafide and or unreasonable. In paragraph 16 also, the Supreme
Court expressed :
"16\005\005..For argument’s sake, let us 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. \005\005"
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
the principles of law, functional similarity in the posts of two
organisations and was a well thought out policy avoiding undo
advantage to some and undue hardship to others. It will be seen that
though the merger was principally agreed in the year 1993, the basic
seniority offered to the erstwhile Vayudoot employees was from
10.03.1998 when the principles of merger were taken up for
consideration though ultimately they were finalized three years
thereafter.
31. In our opinion, fixing the cut-off dated on 10.03.1998 when
broadly the principles of merger were arrived at for the first time after
thorough discussions, would not be an arbitrary exercise. We are,
therefore, of the clear opinion that there was nothing wrong in fixing
10.03.1998 as the cut-off date. It balanced the equities between the
erstwhile Vayudoot employees and the present Indian Airlines
employees, inasmuch as though the merger was five years old by
then, the Indian Airlines employees got five years advantage whereas
the Vayudoot employees had to sacrifice those five years in lieu of
the better deal of the service they got because of the merger. We,
therefore, reject the argument of Shri Tankha, Senior Advocate for
Vayudoot Karamchari Sangh. For the same reasons we reject the
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stand taken by the appellant that the cut off date should be 5.2.2001
and not 10.3.1998.
32. It cannot be forgotten that in so far as SHOD employees were
concerned, it was completely optional for them to join the mainstream
of Indian Airlines which was one of their major demands. They were
all the time clamouring that by remaining in SHOD they would have
bleak future, whereas if they are allowed to join the mainstream of
Indian Airlines, they would have better chances of promotions. After
the deliberations in various meetings it was decided by the aforesaid
policy decision that they would have an option to join the Indian
Airlines subject to the conditions and one of the conditions was that
the cut off date was to be 10.3.1998. It was, therefore, open for
SHOD employees not to opt for joining the mainstream of Indian
Airlines if they felt that they would be losing five years of service in
joining Indian Airlines. However, the statistics show that practically all
the SHOD employees chose to join Indian Airlines. Therefore, they
cannot now turn back and raise a plea that injustice is caused to them
by fixing a cut 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 paragraph 17 thereof relied on by the learned counsel were
peculiar to the facts of that case and have no application to the
present controversy. In our view CA 1271/2007 filed by Vayudoot
Karamchari Sangh deserves to be dismissed on this count alone.
Same will be the fate of CA 1272/2007 filed by Indian Airlines
Officers’ Welfare Forum.
33. It was also urged by Shri P.P. Rao that there was no equation
between the posts in Indian Airlines and Vayudoot. Heavy reliance
was placed by the learned counsel again on the counter affidavit filed
by Indian Airlines before Justice Ramamoorthy. On that basis the
learned counsel urged that horizontal entry of SHOD officers could
not be allowed without equation of posts, particularly taking into
consideration the qualification for the post, nature of duties and
functions and length of service required for promotion to the next
grade as also scales of pay, etc. Shri Nageshwar Rao, on the other
hand, urged that these issues were discussed threadbare in the
various meetings and it is only thereafter that the decision of fusion or
as the case may be merger was taken by fixing a particular cut off
date. We have already indicated earlier as to how the equities
between the two classes of employees were balanced by fixing a
particular cut off date and we do not think that these factors were not
taken into consideration at the time of taking the final decision. It may
be that it was tried to be shown before Justice Ramamoorthy in the
aforementioned Writ Petition No.1430/2001 that the Vayudoot
employees could not compared with the Indian Airlines so as to claim
a right to be considered for the further promotion in Indian Airlines
and to compete with the Indian Airlines in that behalf. However, it
must be borne in mind that it was a specific situation prevailing at that
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time. The question was as to whether the Vayudoot employees, i.e.,
SHOD employees could be allowed to compete for the promotional
posts in Indian Airlines along with employees of the Indian Airlines.
At that time there was no decision taken for fusion of SHOD
employees with the Indian Airlines which principles were thereafter
settled by the aforementioned policy after the consideration of all the
possible aspects of the matter. Under such circumstances it will now
be impermissible to rely on what stand was taken by the Indian
Airlines to oppose the writ petition 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 the exclusion of the
appellants was in gross violation of principles of natural justice and
fairness in action. The argument is clearly incorrect. The employees
of Indian Airlines did not and could not have any say in the policy
making. We do not find any such right nor is any such right
established before us. It is one thing to consult an Association or as
the came may be a Union for considering its views and quite another
to recognize a right of such Union while taking the policy decision.
We are not prepared to accept that the Indian Airlines Officers did not
have in their mind the future of Indian Airlines employees and were
totally oblivious to the same while framing the policy decision. In fact
the Report of the Committee under the Chairmanship of Shri B.S
Gidwani in para 18 specifically makes the reference to the strong
protest from the various unions of Indian Airlines including that of the
Indian Airlines Commercial Pilots Union. It is noted therein that the
Union formed a Coordination Committee for the purpose and sent
representations expressing their resentment over the decision. Paras
18, 19 and 20 of this Report specifically refer to the protests by the
Trade Unions particularly para 20 refers to the proposal of the
Government to create Short Haul Operations Department (SHOD) in
Indian Airlines. It is in pursuance of this that ultimately on 24th May,
1994 a separate SHOD Department was created. Condition No.5 of
this was as follows:
"For those employees who presently possess a particular
designation but do not have the requisite length of service
for such a post, in accordance with Indian Airlines Rules,
the following procedure will be followed:
i) Basic Pay will be protected.
ii) The persons concerned will be given the
designation commensurate with his/her length of service
and that designation will remain till he/she puts in the
length of service required in accordance with the Rules of
Indian Airlines."
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We have before us one of the appointment orders in pursuance of
this decision dated 24.5.1994. Initially, therefore, while considering
the merger of Vayudoot with Indian Airlines it is not as if the
authorities were oblivious to the future of the employees both of
Vayudoot as well as Indian Airlines. It is by way of policy to protect
the interests of both the Vayudoot as well as the Indian Airlines that
SHOD came to be created on 24.5.1994 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 repeatedly represented and held discussion with the
management of Indian Airlines. It was, therefore, that the decisions
were taken. True it is that the Appellant Union was not called for
direct negotiations in this but firstly it cannot be said that the policy
makers were not alive to the welfare of the Indian Airlines employees
and secondly we did not see any right in favour of the appellant
Association so that their non participation in policy making would
result in wiping out the said policy decision altogether. This is not the
case where the principles of natural justice could be brought in so as
to hold that if the appellant Association was not made a party to the
discussions for policy making, such decision making the policy would
be hit by the principles of natural justice. After-all the number of
SHOD employees was also substantial. They were in all 1023
employees. Therefore, once they were made the part of Indian
Airlines family, their grievances were also liable to be considered and
it is because of that that ultimately a decision was taken for their
fusion with the Indian Airlines employees by way of a policy
enumerating conditions therefore. Where it is seen that the
authorities were alive to the service conditions of the Indian Airlines
employees and had their future in mind also, the authorities were not
bound to negotiate with the Appellant Association before formulating
the policy. Such policy which is framed without active negotiations
with the Appellant Association would not (for that reason alone) be
rendered non est and would suffer from the vice of arbitrariness.
After-all in ultimate policy which has been culled out, we do not see
any arbitrariness, on the other hand we find the equities in between
the Indian Airlines employees and SHOD employees to have been
properly balanced and counter-balanced. The non participation of the
appellant Association, in our opinion, under the peculiar facts and
circumstances of this case would not be fatal to the policy decision.
Where we have found the ultimate policy decision as also the
principles on the basis of which said decision is taken to be
blemishless, we would not chose to annihilate that decision and the
principles on the sole ground that the appellant union was not heard.
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36. In Balco Employees Union (Regd.) vs. Union of India [(2002)
2 SCC 333] this Court opined that in case of policy, 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 decision was relied upon pre-dominantly
for the observations made in para 10 which are as under:
"The following principles had been formulated for being
observed as far as may be, in the integration of
government servants allotted to the services of the new
States:
In the matter of equation of posts:
i) Where there were regularly constituted similar
cadres in the different integrating units the cadres
will ordinarily be integrated on that basis; but
ii) Where, however, there were no such similar
cadres the following factors will be taken into
consideration in determining the equation of posts \026
(a) nature and duties of a post;
(b) powers exercised by the officers holding a
post, the extent of territorial or other charges
held or responsibilities discharged;
(c) the minimum qualifications, if any, prescribed
for recruitment to the post, and
(d) the salary of the post."
It is well settled that these principles have a statutory
force."
37. The contention of Shri Rao was that these principles were
ultimately followed in Union of India & Ors. Vs. S.L. Dutta and Anr.
[(1991) 1 SCC 505] as also in S.P. Shivprasad Pipal vs. Union of
India & Ors. [(1998) 4 SCC 598]. In our view in the peculiar facts
and circumstances of the case these decisions cannot help the
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appellants. On the other hand some of the observations would run
counter to the interest of the appellants. As regards Chandrakant
Anant Kulkarni’s case (supra), the contention of the learned Senior
Counsel was that the learned Single Judge had correctly relied upon
those principles to strike down the impugned notification dated
5.2.2001. Learned counsel very strongly urged that the cadres of
Vayudoot employees was not comparable with the cadres of Indian
Airlines and, therefore, before their fusion, or as the case may,
merger was made, meticulous care was bound to be taken
considering the different nature and duties of the post, powers
exercised by the officers holding the post, minimum qualifications
required for the post as also salary of the post. Learned counsel
urges that all this was not done at all. Learned counsel also heavily
relies on the impugned judgment of the learned Single Judge
Pradeep Nandrajog, J. We are unable to accept these contentions
as, prima facie, we do not find any evidence that there was no
consideration of the factors A to D enumerated in sub-para II of 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 Ramamoorthy where it was said that the two cadres
were not comparable. However, one must bear in mind that at that
time the only question was as to whether the erstwhile Vayudoot
employees could be allowed to compete for the higher posts in Indian
Airlines when there was a complete compartmentalization between
the employees of Vayudoot and Indian Airlines in the sense that the
Indian Airlines employees could not be transferred to Vayudoot and
vice-a-versa and further the SHOD employees were to be maintained
as a separate and distinct Department from the Indian Airlines. The
defence raised in that case, at that time, could not be said to be a be
all and end all of the matter so as to hold that the two cadres even at
the later point of time were wholly incomparable so that they could
not be integrated at all. We have already clarified above that the
matter of integration or as the case may be, fusion of these
employees was a matter of policy which had become necessary in
order to contain the grievances of substantial number of Vayudoot
employees. Any such policy decision, unless the said decision was
arbitrary, unreasonable or capricious, could not have been
challenged by the employees as rightly held by the Division Bench of
the Delhi High Court, which judgment is impugned before us. There
is a specific observation in S.L. Dutta’s case, more particularly in
para 18 thereof to the following effect:
"\005.The court should rarely interfere where the question of
validity of a particular policy is in question and all the
more so where considerable material in fixing of policy
are of a highly technical or scientific nature. A
consideration of a policy followed in the Indian Air Force
regarding the promotional chances of officers in the
Navigation Stream of the Flying Branch in the Air Force
qua the other branches would necessarily involve scrutiny
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of the desirability of such a change which would require
considerable knowledge of modern aircraft, scientific and
technical equipment available in such aircraft to guide in
navigating the same, tactics to be followed by the Indian
Air Force and so on. These are matters regarding which
judges and lawyers of courts can hardly be expected to
have much knowledge by reasons of their training and
experience. In the present case there is no question of
arbitrary departure from the policy duly adopted because
before the decision not to 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\005\005."
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 prior to
the merger of the three cadres, the Cadre Review Committee
recommended the merger of three cadres/services which Committee
was headed by Cabinet Secretary and had members of various other
Ministries such as Secretary Labour, Finance, Department of
Personnel, Law and Defence. These recommendations were
approved by the Cabinet and it is thereafter that the Rules were
framed which Rules were approved by the Department of Personnel
and Law Ministry as also the Union Public Service Commission. The
learned Judge noted that a detailed exercise was done to ensure that
no injustice takes place to any of the merging cadres. The learned
Judge then went on to note that the salary structure was similar in
three cadres by 1987. The qualifications were also almost the same
in all the three merging cadres. The learned Judge also further noted
that the constitution of a unified cadre was in public interest and
hence the merger could take place. The learned Judge went on to
say:
"Hence the merger took place. Since this is essentially a
matter of policy, the scope of review by the Court is
limited. We can, however, examine the grievance of the
appellant relating to unequals being treated as equals and
the grievance relating to losing promotional avenues."
Learned Judge found no fault with the policy decision and in fact went
on to hold in para 19 of the judgment as under:
"However, it is possible that by reason of such a merger,
the chance of promotion of some of the employees may
be adversely affected, or some others may benefit in
consequence. But this cannot be a ground for setting
aside the merger which is essentially a policy decision.
This Court in Union of India v. S.L. Dutta examined this
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contention. In SL Dutta a change in the promotional
policy was challenged on the ground that as a result,
service conditions of the respondent were adversely
affected since his chances of promotion were reduced.
Relying upon the decision in the State of Maharashtra vs.
Chandrakant Anant Kulkarni this Court held that a mere
chance of promotion was not a condition of service and
the fact that there was a reduction in the chance of
promotion would not amount to a change in the conditions
of service."
We do not think anything more is required to be said as regards the
three decisions relied upon by the learned counsel.
39. That the policy decision should not be lightly interfered with has
been observed by this Court in Union of India & Anr. Vs.
International Trading Co. & Anr. [(2003) 5 SCC 437].
40. In our view, therefore, the Division Bench of the High Court was
right in upsetting the judgment of the learned Single Judge Pradeep
Nandrajog, J.
41. For the reasons stated above, we do not find any merits in all
the Civil Appeal Nos.1269, 1270, 1271 and 1272 of 2007. All the
appeals are dismissed with costs.