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CASE NO.: Appeal (civil)  2024 of 2007

PETITIONER: Ashutosh

RESPONDENT: Indian Airlines Ltd. & Ors

DATE OF JUDGMENT: 18/04/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CIVIL APPEAL No.   2024        OF 2007 (Arising out of S.L.P. (C) No. 10446/2006)

KAPADIA, J.

       Leave granted.

       The short question which arises for determination in this  civil appeal is whether the appellant (employee) is entitled to  seniority in the matter of promotion to the post of Deputy  Chief Aircraft Engineer vis-‘-vis Respondent nos. 3 to 17.

       On 31.3.1992, a Settlement was reached between Indian  Airlines and All India Aircraft Engineers’ Association under  which the then existing designations were revised as follows:         "REVISION OF SCALES OF PAY: i)        With effect from 1.4.1989, the existing  designations and the scales of pay applicable  will be as under:-

Existing Designation (Scale of Pay) Revised Designation (Scale of Pay)

Asstt. Aircraft  Engineer (Rs.2005-50-2105-60- 2825-70-2965)

Asstt. Aircraft  Engineer (Rs.2005-50-2105- 60-2825-70-2965)

Aircraft Engineer (Rs.2285-60-2825-70- 3035-120-3395)

Aircraft Engineer (Rs.2765-60-2825- 70-3035-120-3275- EB-120-3875)

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Sr. Aircraft Engineer (Rs.2765-60-2825-70- 3035-120-3875)

Aircraft Engineer (Rs.2765-60-2825- 70-3035-120-3275- EB-120-3875)

Supdtg. Aircraft  Engineer (Rs.2965-70-3035- 120-4115)

Sr. Aircraft Engineer (Rs.2965-70-3035- 120-4115)

(ii)       With effect from 1st April, 1992 a new cadre  of Dy. Chief Aircraft Engineer in the pay  scale of Rs.3155-120-4235 will be created.  The strength of Dy. Chief Aircraft Enginers  will be maintained at 20% of the total  standard force of the cadre of Aircraft  Engineers (Aircraft Engineer to Dy. Chief  Aircraft Engineer)."

       The revised designation was to operate from 1.4.1989.          By the said Settlement dated 31.3.1992, appellant was  redesignated as Aircraft Engineer whereas respondent nos. 3  to 17 were redesignated as Sr. Aircraft Engineer w.e.f.  1.4.1989. Under the said Settlement, approval qualification  had to be acquired by Sr. Aircraft Engineer (feeder post) for  being promoted as Deputy Chief Aircraft Engineer. Under the  Settlement, for promotion to the post of Deputy Chief Aircraft  Engineer, the Sr. Aircraft Engineer had to obtain approval of  nine groups. Under the Settlement, the post of Deputy Chief  Aircraft Engineer was created for the first time with effect from  1.4.1992 to be filled from the said feeder post of Sr. Aircraft  Engineer. The candidate was required to acquire specified  number of points before 1.4.1995. However, the Jet Shop  which was established in 1992 for Delhi by Indian Airlines did  not get its approval in time from DGCA (Directorate General of  Civil Aviation). Therefore, the Association requested the  Management to grant conditional promotion in various grades  to enable employees like respondents 3 to 17 to complete their  eligibility before the cut-off date. This request was made as  employees like respondents 3 to 17 would have stagnated on  account of above anomalies created by  Settlement dated  31.3.1992. Therefore, on 23.7.1993, the Management and the  Union entered into Discussions with regard to conditional  promotion.  

Vide Order dated 7.2.1994, respondents 3 to 17 were  given conditional promotions to the post of Deputy Chief  Aircraft Engineers with effect from 1.4.1992/ 1.4.1993  respectively. They were required to obtain nine approvals by  31.3.1995. As stated above, the Jet Shop set up by Indian  Airlines for Delhi was approved only in February, 1995,  therefore, respondents 3 to 17 could not fulfil the requisite  qualification by the cut-off date. On the other hand, appellant

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herein completed two years service in the post of Sr. Aircraft  Engineer on 31.3.1993. He acquired the requisite qualification  on 15.12.1993. According to the appellant, till today respondent nos. 3 to  17 have failed to acquire approval qualification.  According to  the appellant, the cut-off date, namely, 1.4.1995 has since  passed. Appellant states that on 1.4.1991 he as well as  respondents 3 to 17 were Sr. Aircraft Engineers. Appellant  states that on 7.2.1994 respondents 3 to 17 were conditionally  promoted with effect from 1.4.1992/1.4.1993. Therefore,  according to the appellant, he was qualified for promotion on  15.12.1993 whereas respondents 3 to 17 till date have not  acquired the requisite qualification. Appellant, therefore,  prayed that respondents 3 to 17 were not entitled to   promotions to the post of Deputy Chief Aircraft Engineers. It is  the case of the appellant that he has been ultimately promoted  to the post of Deputy Chief Aircraft Engineer vide order dated  August, 2000 with effect from 1.10.1999. However, he has not  been given promotion as Deputy Chief Aircraft Engineer from  15.12.1993 when he acquired the qualification and, therefore,  Indian Airlines had erred in showing respondents 3 to 17 as  senior to the appellant herein in the post of Deputy Chief  Aircraft Engineer with effect from 1.4.1992/1.4.1993.         The main argument advanced on behalf of the appellant  was that seniority in a cadre under the Promotion Rules did  not entitle respondents 3 to 17 for promotions to the higher  post of Deputy Chief Aircraft Engineer unless the candidate  acquired the Approval Qualification prescribed by such Rules.  It was submitted that eligibility under the said Rules was  different from seniority. It was submitted on behalf of the  appellant that under the Promotion Rules what was  contemplated was "seniority amongst the qualified". It was  submitted that appellant had acquired the qualification on  15.12.1993 and since respondents 3 to 17 did not acquire the  requisite qualification appellant was entitled to be promoted  not from 1.10.1999 but from 15.12.1993 and, consequently,  appellant has been discriminated vis-‘-vis respondents 3 to 17  inasmuch as the said respondents were promoted with effect  from 1.4.1992/1.4.1993 herein. It was urged on behalf of the  appellant that the qualification prescribed by the Recruitment  and Promotion Rules cannot be overruled by Industrial  Settlement dated 31.3.1992 or by Note of Discussions dated  23.7.1993. It was urged on behalf of the appellant that, in any  event,  Industrial Settlement dated 31.3.1992 and the  Promotion Rules had to be read in tandem; that the Industrial  Settlement retained the qualification prescribed by the  Recruitment and Promotion Rules; that even the Note of  Discussions retained the said qualifications but it is the  Management who said that as a one time exercise, weightage  should be given to seniority and as a one time exercise  respondents 3 to 17 should be allowed to be  promoted to the  posts of Deputy Chief Aircraft Engineers in terms of Order  dated 7.2.1994 (Exhibit ’P-4’). It was urged that the  Recruitment and Promotion Rules only referred to "seniority  amongst qualified" as the criteria of promotion to the post of  Deputy Chief Aircraft Engineer which could not be eliminated  either by the Industrial Settlement dated 31.3.1992 or by Note  of Discussions dated 23.7.1993. It was urged that the  appellant herein acquired the approval qualification on  15.12.1993 but vide impugned order dated 7.2.1994 the  Management gave conditional promotions to respondents 3 to  17 with effect from 1.4.1992/1.4.1993 which created  discrimination which violated the appellant’s fundamental  right to equality under Article 14 of the Constitution.  

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       Before dealing with the above arguments, we quote  hereinbelow para 13 of the Indian Airlines Recruitment and  Promotion Rules, as applicable to Aircraft Engineering  Department: "The Board shall proceed to arrange their  selections in order of inter-se seniority  amongst the candidates who have qualified  (other than the candidates who have been  marked as ’outstanding’ in which case such  candidates will be placed at top of the list) and  shall also keep a suitable number of  candidates on the panel/waiting list. Such a  panel may be used for filling vacancies that  may arise subsequently and will be valid for a  period of two years in respect of all posts in  erstwhile Grade = and 3/6 (and its equivalent  and one year in other cases, from the date of  the approval of such panel by the competent  authority whereafter the procedure as outlined  above may be followed afresh; provided  however,  

i)      the Managing Director in his sole  discretion and being satisfied on the  relevant considerations, may extend the  validity of such panels in other than  erstwhile Grade = and 3/6 for a further  period of six months at one time subject  to a maximum of one year in respect of  any panel.

ii)     In preparing the panel the Board shall  pay attention to the circulars and  instructions issued by Government of  India from time to time in matter of  safeguarding adequate representation to  members of Scheduled Castes/  Scheduled Tribes etc." (emphasis  supplied)

       We also quote hereinbelow the relevant recital from the  Industrial Settlement dated 31.3.1992; "WHEREAS after signing the MOU with the  Indian Airlines hereinafter called ’Management’  on 26.2.1989 on their Charter of Demands for  the wage period 1.10.1985 to 31.8.1990 (copy  enclosed and marked as Annexure ’A’), the All  India Aircraft Engineers’ Association,  hereinafter called "Association’ asked for  payment of additional qualification pay,  creation of new pay scales and certain other  allowances to the Aircraft Engineers.

2.      AND WHEREAS the Management could  not accept the demand of the Association.

3.      AND WHEREAS this dispute was referred  by the Central Government vide items Nos. (i)  and (ii) as contained in the schedule to the  Order No. L.11011/3/89-IR(Misc.) dated 7th  December, 1990 for adjudication by the NIT  presided over by Justice Shri S.N. Khatri.

4.      AND WHEREAS parties, during the  pendency of the proceedings before the NIT,

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have held bilateral negotiations without  prejudice to their rights and contentions in  respect of relativity and parity of wage  structure with corresponding categories of  employees of Air India and as a result of such  negotiations, have arrived at this Settlement,  as a consequence of which Terms of Reference  No. (i) and (ii) of the dispute pending before the  NIT stand settled between the parties without  prejudice to the rights and contentions of both  the parties in regard to the term of Reference  No. (v) before the NIT which would remain  operative with regard to the matter of  relativity/ parity vis-‘-vis Aircraft Engineers of  Air India."

the relevant term of Settlement; "2.     The Qualification/ Productivity Scheme  for Aircraft Engineers is contained in  Appendix ’B’. With the introduction of the  revised Qualification Pay from 1st April,  1989, the existing Qualification Pay and  Certification Allowance shall stand  withdrawn from 1.4.1989 and 1.8.1989  respectively."

the relevant clauses of Appendix ’A’; "2(d)   Sr. Aircraft Engineer (scale of pay of Rs.  2965-70-3035-120-4115) with two years  service in the scale and on acquiring  prescribed licence/ approval  qualifications for the post of Dy. Chief  Aircraft Engineer (as per Annexure 1, 2 &  3 to Appendix ’B’) will be eligible for  appointment to the post of Dy. Chief  Aircraft Engineer in the scale of pay of  Rs. 3155-120-4235. The appointment to  the cadre of Dy. Chief Aircraft Engineer,  will, however, be subject to availability of  vacancies as per the Standard Force and  Recruitment and Promotion Rules.

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3(iii)  The existing Sr. Aircraft Engineers  appointed in the pay scale of Rs. 2765- 60-2825-70-3035-120-3875 prior to  1.4.1989 would be re-designated as  Aircraft Engineer in the pay scale of Rs.  2765-60-2825-70-3035-120-3275-EB- 120-3875 w.e.f. 1.4.1989. These  Engineers will be eligible for  consideration for the post of Sr. Aircraft  Engineers in the pay scale of Rs. 2965- 70-3035-120-4115 w.e.f. 1.4.1991  onwards subject, however, to possession  of prescribed licence/ approval  qualifications and confirmation.

4.      All appointments to the cadre of Aircraft  Engineer, Sr. Aircraft Engineer and Dy.  Chief Aircraft Engineer will be subject to  Recruitment and Promotion Rules. The

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processing of such appointments for Sr.  Aircraft Engineer and Dy. Chief Aircraft  Engineers will be done with reference to  the DGCA examination session. The  appointments to the cadre of Sr. Aircraft  Engineer will, however, take place from  the month following the month in which  the prescribed qualification/ experience  have been acquired by the Aircraft  Engineer. The appointment from Sr.  Aircraft Engineer to Dy. Chief Aircraft  Engineer will be subject to availability of  vacancies as per the Standard Force and  Recruitment and Promotion Rules."  

and, the relevant clause of Appendix ’B’:

"A.     Qualifications requirement for appointment

Designation

Qualifications Aircraft  Engineer (entry into pay  scale)

’C’ licence on one jet  engine of IA fleet.

Confirmation Subject to obtaining  approvals of any two  groups of Enclosure 1.

Crossing EB  Stage ’C’ licence on one jet  engine of IA fleet and  approvals of any three  groups of enclosure 1.

Sr. Aircraft  Engineer ’C’ licence on one jet  Engine of IA fleet and  approvals of any six  groups of Enclosure 1.

Dy. Chief A/c  Engineer ’C’ licence on one jet  Engine of IA fleet and  approvals of any nine  groups of Enclosure 1."

       We also quote hereinbelow the relevant excerpt of Note of  Discussions dated 23.7.1993:

"After detailed deliberation, the following  decisions were arrived at:-

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i)      That Engineers who have not been given  opportunity for training on jet aircraft  and Shop/ Major Maintenance approvals,  as on 1.4.1993, will be given conditional  promotions.

ii)     Turbo prop aircraft licences held by  engineers will be considered for  promotion only as a one time exercise till  1.4.93 and such engineers will be given  conditional promotion.

iii)    Wherever all group approvals in Engine  Overhaul shops as per the new  agreement dated 31st March, 1992 have  not become operative, the Engine  Overhaul Trade Engineers will be  promoted on conditional basis subject to  the following:-

(a)     They must obtain ’C’ licence on jet  aircraft of IA fleet for which training  has already been imparted to them  within three consecutive DGCA  chances effective 1.4.1993.

(b)     They must obtain desired group  approvals as per the clause (i), (ii) and  (iii) shall have to obtain qualifications  within three consecutive DGCA  chances after getting training with  effect from 1.4.1993, failing which  they will be reverted to their  substantive pay scales.

iv)     The engineers who are promoted on  conditional basis as per clause (i), (ii) and  (iii) shall have to obtain qualifications  within three consecutive DGCA chances  after getting training with effect from  1.4.1993, failing which they will be  reverted to their substantive pay scales.

All other terms and conditions of the  agreement dated 31st March, 1992 will remain  unchanged."                      (emphasis supplied)

       For the following reasons, we do not find any merit in  this civil appeal. Firstly, under the Recruitment and Promotion  Rules, seniority amongst the candidates who qualified was the  criteria for promotion. However, the said Rules did not  prescribe such qualifications. They were left to the joint  wisdom of the Management and the Association.  The approval  qualifications were prescribed under Settlement dated  31.3.1992. These approval qualifications were prescribed  under clause 2(d) of Appendix ’A’, quoted hereinabove.  Appendix ’B’ to the Settlement indicated that the candidate for  promotion to the post of Deputy Chief Aircraft Engineer had to  obtain approvals of nine groups and a licence on one Jet  Engine of the Indian Airlines fleet. In the present case, the  recitals in the Industrial Settlement quoted hereinabove show  that during the pendency of proceedings before the National  Industrial Tribunal with regard to the parity of wage structure,

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bilateral negotiations took place and the Settlement herein  came to be filed before the Industrial Tribunal. Therefore, the  eligibility criteria for appointment to various pay scales was  laid down in the above quoted para 2(d) of Appendix ’A’. This  eligibility criteria for acquiring the approval qualification was  not a part of the Recruitment and Promotion Rules. It was a  part of the Industrial Settlement filed before the Industrial  Tribunal pending the main dispute on the wage structure.  After entering into the Settlement, while implementing, some  difficulties were detected, therefore, a decision was taken by  the Management in consultation with the Association on  9.6.1993 (Annexure P-2) as a part of Settlement to have 20%  out of 49 posts to be earmarked for Sr. Engineers. This was  the decision taken as the Sr. Engineers were facing stagnation.  Therefore, one has to read the impugned Order dated 7.2.1994  by which conditional promotions were given to respondents 3  to 17 with effect from 1.4.1993/ 1.4.1994 in the light of the  policy decision dated 9.6.1993 and Note of Discussions dated  23.7.1993. In the circumstances, it cannot be said that the  impugned order dated 7.2.1994, based on policy decision  dated 9.6.1993 read with Note of Discussions dated  23.7.1993, violated Recruitment and Promotion Rules.  Secondly, there is a concurrent finding of fact recorded by the  courts below that respondents 3 to 17 had acquired the  approval qualifications prior to 25.11.1993 but the  communication of the approval by DGCA occurred only on  20.11.1994 and that was the reason why an asterisk mark  was inserted against the names of the said respondents in the  order dated 7.2.1994. This has been disputed by the  appellant. According to the appellant, the Jet Shop set up in  Delhi in 1992 by Indian Airlines stood approved by DGCA only  in 1995 and, therefore, the management was wrong in stating  that respondents 3 to 17 had acquired the approval  qualifications by 25.11.1993. Be that as it may, even  assuming for the sake of argument that respondents 3 to 17  had failed to acquire approval qualifications till 1995, no fault  could lie at the doorstep of respondents 3 to 17. These  respondents could not avail of the opportunity of obtaining the  approval qualifications as DGCA had not granted approval to  the Jet Shop till 1995. Further, as stated hereinabove, the said  respondents were senior to the appellant. Further, as stated  hereinabove, there were anomalies in the matter of approval  qualifications which were eliminated by joint discussions  between the Union and the Management, as indicated by Note  of Discussions dated 23.7.1993. Moreover, as stated above,  the main anomaly was that while granting approval, DGCA did  not go by seniority and, consequently, approvals were given  earlier in point of time to engineers who were junior to the  respondents which created an anomaly. For the above  reasons, there is no need to discuss various judgments cited  on behalf of the appellants since we have come to the  conclusion that there was no violation of Recruitment and  Promotion Rules. The approval qualifications formed part of  the Industrial Settlement filed before the Tribunal which was  subsequently modified by the policy decision dated 9.6.1993  read with Note of Discussions dated 23.7.1993 between the  Management and the Association.

       For the aforestated reasons, there is no merit in this civil  appeal and the same is dismissed with no order as to costs.