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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.