D.P. Wadhwa, J.
(1) The petitioner is a Commander In the Indian Airlines, the first respondent. He is aggrieved by the action of the first respondent in not appointing him to the next higher post of the Deputy Operations Manager and rather appointing respondent 2 to 22 who are junior to him to this post by order No. 34/90 dated 10-4-1990. The petitioner.therefore, seeks, quashing of this promotion order and further seeks a direction to the first respondent to appoint the petitioner to the post of Deputy Operations Manager retrospectively w.e.f. 1/02/1990. He also seeks certain other directions connected with this.
(2) First respondent is a body corporate constituted under the Air Corporations Act, 1953 (for short 'the Act') and its affairs are governed by the Board of Directors as mentioned in sections 3 and 4 of the Act. Under section 44 of the Act,the Central Government has power to make rules to give effect to the provisions of the Act and under section 45 the first respondent has been given power to make regulations not inconsistent with the Act and rules made there under. These regulations are, however, to be made by notification in the official gazette. Under clause (b) of sub-section (2) of section 45, the first respondent is empowered to make regulations in connection with the terms and conditions of service of officers and other employees of the first respondent other than the Managing Director, etc. and under sub-section (3)no such regulation shall be made except with the previous approval of the Central Government. The first respondent made regulations called (1) Indian Airlines Employees (other than Flying Crew and the Aircraft Engineering Department)Regulations, (2) Indian Airlines (Flying Crew) Service Regulations, and (3) Indian Airlines Employees (Aircraft EngineeringDepartment) Service Regulations. We are concerned with the service regulations for Flying Crew. Under Regulation 14 an employee of the first respondent is eligible for promotion to the higher scale in accordance with the regulations made by the Indian Airlines from time to time. The Flying Crew Regulations contain Appendix I giving scales and designations of (Flying)Operations Department. Under Regulation 9 every person appointed to a service or post is to undergo a certain period ofprobation. From the Second Officer, as given in the Appendix I, higher officers are First Officer, Flight Engineer, Captain,Commander, Deputy Operations Manager, Operations Manager/Deputy Director of Operations, Regional Director (Pilots),Director of Operations, Deputy Managing Director and Managing Director and their pay scales are prescribed. We were told under powers conferred by Regulations 4, 7 and8 of the Flying Crew Regulations, the first respondent framed Recruitment and Promotion Rules (R & Rules). Some of the relevant provisions of these rules will have to be referred to. In the Schedule to these rules, post of Commander falls in Grade XVII under Cadre Vi pertaining to OperationsDepartment. Under Cadre Vi first post is that of the Second Officer and is to be filled by direct recruitment. There are posts in ascending order of First Officer, Captain, Commander, CheckPilot, Flying Instructor. Chief Flying instructor and Chief Pilot which are all to be filled in by promotion. The next post is of Grade xviii under Cadre Vi and is that of Operations Manager.This is to be filled in by direct recruitment or promotion. The last post in this_ Cadre is Grade Xix and is that of Director of Operations which is again to be filled in by direct recruitment orpromotion. Except for the post of Director of Operations, all other posts are technical posts. Contention of the petitioner is that the post of Chief Pilot which is of Grade XVII was redesignated as Deputy Operations Manager, According to him, thereforee method of appointment to the post of Deputy Operations Manager is by promotion. The respondent however, says that the post of Chief Pilot was abolished in the year 1971 and the post was upgraded and designated as Deputy Operations Manager (see Appendix I to Crew Regulations) and mode of recruitment to this post is either by promotion or direct recruitment. They further say that this post of Deputy Operations Manager is in Grade Xvii while the Chief Pilot in Grade XV(.B. Then the respondent says that ever since the creation of the posts of Deputy Operations Manager these have always been filled bythe process of selection which is akin to the process of Directorecruitment, the only difference in this process being that the candidates so selected are from within the organisation and that the pests as such are not advertised. It says this method has been adopted since the year 1971. It is interesting however.to note that the R & P Rules, which have been brought on record and even produced at the time of hearing, do not show the post of Deputy Operations Manager in the Schedule while that ofChief Pilot has been shown. From these rules, thereforee, it cannot be said that any such post of Deputy Operations Manager is tobe filled by direct recruitment or promotion. Our attention was drawn to the Minutes of the Board of Directors of the firstrespondent held on 30/07/1970. Item 5 of these minutes is relevant for our purpose and is reproduced below :'5 Amendment to recruitment and promotion rules :
9.Chairman stated that the method of recruitment to all posts in Grade 15 in all the non-technical departments, except Account, and Audit Departments, was specified in the Recruitment and Promotion Rules as 'Direct Recruitment or Promotion'. But the method of appointment to posts in Grade 15 in the Accounts and Audit Departments had been laid down as'Direct Recruitment 50 per cent-Promotion 50 per
10.The term 'Direct Recruitment' as used in the Airlines means a process of selection on merit from within while 'promotion' implies appointment to the next higher grade only by seniority subject to there being no adverse entry in the Annual Confidential Repoerts.
CHAIRMAN stated that Grade 15 is a crucial grade.At this stage, the Management should pick up good and efficient persons because thereafter these officers had to move to upper managerial cadre. It was.therefore, necessary that this anomaly in the case of Accounts and Audit Departments should be removed and appointment to Grade 15 should be made on the basis of merit only.
11.As regards the Operations Department, Chairmanstated that with the approval of the Board, the postof Chief Pilot in Grade 16B had been upgraded to Grade 17 and designated as 'Deputy OperationsManager'. The post of Deputy Operations Manager belongs to upper managerial cadre and, thereforee it was essential that it should be filled up by direct recruitment or promotion at the discretion of theManagement.
12.After some discussion, the Board accorded its approval to the changes in the Recruitment & Promotion Rulesas proposed in the Memorandum.
(3) Coming back to the R&P; Rules, Rules 9, 10(c), 11,12 and 13 falling in Chapter It relating to direct recruitment, areas under:-
'9.All posts available for direct recruitment shall be given the widest possible publicity and, in particular.following steps shall be taken :-
(A)An advertisement incorporating the minimum qualifications and experience necessary for all posts.except those in Grade I and Ii, shall be inserted to such of the leading newspapers as may appearnecessary.
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(B)Alt applications received at Headquarters and Regions shall be registered in the Administrative and Personnel Branch and a record of the same maintained by a classification into occupationalgroups.
(C)Local Employment Exchange may be approached in case of recruitment to Grades I and Ii and maybe approached in other cases also with a view to suggesting suitable candidates.
(D)A public notice indicating the existence of vacancies shall be put upon the Notice Board at Local Offices of the is and the Workshops.
(E)Those already in the employment of the Corporation shall be entitled to apply for any of the posts subject to eligibility:
PROVIDED that in emergent cases, the procedure outlines in1(a) above may be dispensed with in respect of Regions with the permission of the Regional Director and in other case with that of the Chairman/General Manager:
PROVIDED that in selecting the candidates, ail things beingequal, existing employees of the Corporation from the grades or inter-linked grades immediately below shall be given the first preference and 'Retrenched', ex-employees of the former constituent Airlines shall be given second preference provided they are suitable in all respects.' '10.There shall be Recruitment Boards constituted asfollows:-
(a)............(b) .........(e)
(I)For vacancies in Grade X and upwards : Recruitment Board shall consist of :
1. Head of the Department concerned at Headquarters.2. Secretary.3. An officer to be nominated by the General Manager. (II)Before the Promotion Committee meets at Headquarters, the Regional Director will be asked to make recommendations in regard to eligibility for promotion. The eligible officer will, in the first instance be reported upon by the Regional Departmental Heads and then the Regional Director will forward there commendations to the Headquarters DepartmentalHeads.
NOTE: 1. For upper Managerial grade the appointing authority B may constitute such adhoc Boards as are necessary for thepurpose.
2,In the case of Recruitment Board for Technical personnel a Technical Officer will be co-opted to assist the Board.
3.Both the Recruitment & Promotion Board will maintain records of their proceedings including the answer papers for tests conducted and marks sheets etc.
(d)........
PROVISO: Notwithstanding the provisions of Rule 10, the General Manager may in any particular case constitute a Recruitment Board consisting of such officers as he considers necessary.
'11.The Recruitment Boards shall after due scrutiny of the particulars of the candidates considered eligible in accordance with Rule 9. invite such of them for test (Practical, written ororal) and also interview as may appear necessary.
NOTE: In all such cases above Grade Ii, a written test may beheld. In the case of Engineering Department, test must be held in the case of technical personnel.'
'12.The Recruitment Boards shall report the results of their selections to the Competent Authority in the matter of appointments as defined in the Instrument of Delegation of certain Powers and Functions of Indian Airlines when the authority competent to make the appointments shall proceed to do so.'
'13.The Boards shall proceed to arrange their selections in order of merit and shall also keep a suitable number of candidates on the waiting list. Such awaiting list may be used for filling vacancies (hat may arise subsequently but it will lapse after a period of one year, when the procedure as outlined above may be followed afresh, provided that......'.Rules 17 to 20 are relevant where there is appointment by promotion and these are :-
'17.Promotion Committee will bf established at Headquarters and Regions whose composition will be the same as that of the Direct Recruitment Committees.
18.The Promotion Committee will meet from time to time and will draw up a panel of names of employees considered suitable for promotion in vacancies which may arise and which are to be filled bypromotion. Such a list will be reviewed every three months and earlier, if considered necessary.
19.The recommendations of the Promotion Committee will be passed on to the competent authority in thematter of appointments as defined in the 'Instrumentof Delegation of certain powers and functions ofI.A.'.
20.Promotion will be on the basis of seniority in high grade or inter-linked grades below the grade concerned, subject to the fitness of the employee being certified by the competent authority in the following form in the same manner as is prescribed in the case of Crossing the Efficiency Bar under Rule 15 :-'Certified that Shri/Smt.-Designation-Grade - in view of his/her ability andintegrity, is fit to be promoted to Grade-.'Designation. '
Rules 21 and 22, which are also relevant for our purpose,are as under :-
'21.No employee can claim promotion as a matter ofright. The advancement of an employee will depend as much as his suitability as on his relative standing with the others eligible for promotion.
22.Promotions to Selection Grade will be on the basis of rigorous selection on merit from amongst the employees in Grades or inter-linked grades below the grade concerned and shall be limited to the number of posts declared as such on the cadre according tothe sanctioned strength from time to time.'
(4) The petitioner contended that the first respondent has not only violated the R & P Rules but also the directions ofthe Central Government conveyed to it by their letter dated 9/01/1987. This letter is as under :-'Confidential No. Av. 18014/2/87-AC dated : 9-1-87.The Managing Director,Indian Airlines,Airlines House, New Delhi.Sir,
THIS is with reference to your letters No. HPDO1'/01/1201 dated 2CMO-86 and 21-10-86, regarding selection tothe posts of Operations Manager in I.A.
2.Considering the fact that the present system of selection for promutions, due to its heavy weightage or interview, has an element of subjectivity that may make the promotion process look unfair, I am to advise that Indian Airlines should strick to the seniority list/panel as it existed and not supersede any one until and unless the person superseding hissenior(s) has an exceptional and outstanding performance record.
3.It is also suggested that a system which is likely to look to totally/substantially subjective, should notbe followed in future by the' Indian Airlines.
Yours faithfully,sd/-(Dev Swarup) Director.'
(5) About this letter the first respondent states that it is not a direction. It does not tantamount to any direction as envisaged by section 34 of the Act and it is only an advice in nature and, thereforee, not binding on the first respondent. thereforee, it further says that this communication was in respect of weightage given to the Apa (Annual Performance Appraisal) and interview and that it was on the basis of this advice that the APA marks and the marks allowed for interview were revised as50 : 50 in December 1988 while earlier the marks were in the ratio of 30 : 70. The petitioner also contended that the Selection Committee which was same both for direct recruitment and promotion was not validly constituted. The committee comprised of (1) Shri S. C. Rastogi, Director Systems, HQrs. (2) Capt.V. P. Singh, Operations Manager, Northern Region, (3) Capt.
R.N. Tandon, Deputy Director of Operations, Hqrs. and (4)Shri J. K. Deb Burman, Deputy Commercial Director, Hqrs., and was constituted as under :-
I.A. HEADQUARTERS The following selection board for Deputy Operations Managers may please be approved :--1. Shri S. C. Rastogi, Director Systems, Hqrs.2. Capt V. P. Singh, Operations Manager, NorthernRegion.3. Capt. R. N. Tandon, Deputy Director of Operations,Hqrs.4. Shri J. K. Deb Burman, Deputy Commercial Director,Hqrs.(Krishan Dev)Director of Personnel17-10-1989
(6) This committee was certainly not what the R & P Rulesstipulated. Reliance was then placed by the first respondent on proviso to rule 10. It was also stated that Secretary who was having the same grade as that of the Deputy Operations Manager could not sit in the recruitment board. There is nothing, however,in the record to support this submission. The record also does not show if there was any decision by the Board of Directors of the first respondent that the post of Deputy OperationsManager shall be filled in either by promotion or by direct recruitment. Petitioner says even if it was direct recruitment, proper procedure was not followed. He said appointment could only be by promotion. He has also referred to his qualifications and experience and has questioned the allocation of marks to interview of 50 per cent. In the recruitment rules, however, there is nothing to show as to how the marks are to be allocated in the case of selection by interview. The petitioner also questioned the bona fides of the first respondent in selecting candidates up to No.85 in seniority list when he was No. 17 in the list. He 'referredto his brilliant academic record and his record in the service of the first respondent as a Commander. He said he had' all the attainment to be appointed to the post of Deputy Operations Manager and his supersession was illegal both in law and on facts. In the second affidavit filed by the first respondent job requirements of the post of Deputy Operations Manager has been given Petitioner said that the. never got any adverse report and his work had been commended all through and selection board had acted in most arbitrary manner.
(7) Respondents 2 to 23 have not come forward to defend the petition. Respondent No. 23 Capt. R. N. Tandon, between added as ^ party as he being a member of the Selectior Committee is stated to be related to Respondent No. 13, a candidate for the post of Deputy Operations Manager, a fact which has been denied by Respondent No. 23. The allegationwas, however, not pressed by the petitioner.
(8) Reference to respondents, thereforee, is to the first respondent only. This respondent says that rules 17 to 20 are not relevant and rule 21 is the most important rule. It says promotior.to the post of Deputy Operations Manager is made through the process of selection and the suitability of a candidate is determined on the basis of the interview as well as APAs for the last three years, and those found suitable are ranked in order oftheir existing inter se seniority. No candidate who has an adverse entry in his record during the last three years is considered.Respondent further says that it had increased the weightage to APA in matters of selection promotion from 30 per cent to50 per cent and thereby reduced the marks to be assigned to interview from 70 per cent to 50 per cent in December 1988and that selection of Deputy Operations Managers had been done on the basis of revised weightage. Respondent further says that candidates had been called for selection according to zone ofconsideration, i.e., if there are more than three vacancies candidates are to be called in the ratio of I : 3. For selection of 21candidates for the post of Deputy Operation Manager, 60 candidates were called for interview out of which only 31 appeared, but22 were selected to be appointed. In the seniority the petitioner topped them all except one. All persons Junior to him have beenselected. Respondent further says that the interview board was duly constituted in accordance with rule 10 and that ManagingDirector was competent to do so.
(9) As to how there was a decision to promote by Directorecruitment, reference has been made to a note dated 23/11/1970, which may be reproduced as under :__IA : HEADQUARTERS Personnel Department)No. HQ/GA-XII 23/11/1970Appointments-Deputy Operations Manager Reference D.O.'s note on preceding page.
2.There are six vacancies in the post of Deputy OperationsManager in Grade-17. These include two consequential vacancies of Operations Manager, Grade-18.
3.The vacancies in the post of Deputy Operations ManagerGrade-17, being the upper managerial cadre, could be filled either by promotion or by selection from amongst the Commanders, Grade-16A. To fall in line with the present policy, these vacancies are to be filled by Selection. It is proposed that30 senior-most Commanders may be called for selection to6 posts of Deputy Operations Manager in Grade-17.
4. As per the Recruitment & Promotion Rules, the Selection Board should comprise the following officers :-1. Director of Operations.2. Secretary.3. G.M.'s nominee.5. G.M. may kindly be requested to indicate his nominee onthe Selection Board.sd/-(J R sharma)
G/M.Ref. Para 4 above. In the recruitment the head of Personnel Deptt. or his nominee has to be on the Board both at Hqrs or Regions. Earlier the Secretary was the Head ofPersonnel & General Administration Deptt. Since Director ofPersonnel is now the Head for the Personnel Deptt. the Recruitment and Promotion Rules needs amendments. The posts ofDy. Operations Manager is in Grade 17 and the Director ofPersonnel himself will be on the Board.
G.M. may kindly be requested to indicate his nominee onthe Board.sd/- A. S. BHAT4-12-70sd/- S. N. Chakraverty FIRM 5-12-70Int/D. Pers.As my representative:Shri B. Israni, Agm and CD Shri Lisely, instead of Dir. Pers.sd/- K. T. SatarwalaG.M. 21-12-70
(10) Mr. Jaitley, learned counsel for the first respondent,submitted that though malafides have been attributed by the petitioner in not selecting him but these were not pressed during the course of arguments and in fact given up by Mr. Hans and the challenge remained confined to violation of the statutoryrules. Mr. Jaitley said that all through right from the creation ofthe post of Deputy Operations Manager it had to be filled In by selection and that allocation of 50% marks for interview was not arbitrary, unreasonable or vocative of Article 14 ofthe Constitution as contended by the petitioner. He said with reference to various decisions of the Supreme Court and theHigh Courts that allocation of marks for interview had to be judged with reference to the service and no uniform rule could be laid for the purpose. According to the first respondent the job requirements of the post of Deputy Operations Manager were such that allocation of 50% marks for interview was quite reasonable and said this has been held to be so. Mr. Jaitley also submitted that this Court could not go into the comparative assessment of the candidates to the post in question and the relief sought could not be granted to the petitioner, and then in any case if this court came to the conclusion that there was any illegality in the process it could only set aside the selection and then require the Corporation (Indian Airlines) to go all over again toe whole process of appointment to the post by selection-or promotion as per rules.
(11) We have already noticed above that the post of Deputy Operations Manager though mentioned in Appendix I to Flying Crew Regulations does not find mention in the Schedule turn & P Rules which we were told were framed in 1964. In the minutes of 96th meeting of the Board of the first respondent held on 30/07/1970, extracts from which have been reproducedabove, though it is stated therein that the post of Chief Pilot inGrade Xvi had been upgraded to Grade Xvii and designated Deputy Operations Manager and further that the post of DeputyOperations Manager belongs to upper managerial cadre, there is nothing, however, to show on the record as to when the approval of the Board of the Indian Airlines was first accorded and how many posts of Deputy Operations Manager were created and what were the job requirements of this post. Itis, however, not clear if the post of Deputy Operations Manager was created with the previous approval of the Central Government as required by sub-section (3) of section 45 of the Act.But since the post of Deputy Operations Manager finds mention in Appendix I to the Flying Crew Regulations it cannot be said that prior approval of the Central Government was not obtained.Again in these minutes it is mentioned that since the post belongs to upper managerial cadre it was essential that it should be filled up by direct recruitment or promotion at the discretion of the Management. The word 'management' is a vague term and does not find mention in the Act. We were told, however,that this word means the Board of the Indian Airlines. If thispost of Deputy Operations Manager was created as far back in 1970, normally we would have expected it to be in the Schedule to the R&P; R.ules so that every one knew the creation of the post and as to how the post was to be filled up. The resolution of creation of post of Deputy Operations Manager, itappears, only remained in the annals of the minutes book ofthe first respondent in the form of Resolution. We have already noted that under section 45 of the Act, powers have been given to the first respondent to make regulations by notification in the official gazette in the administration of the affairs of the first respondent and for carrying out its functions and these regulations may provide the terms and conditions of serviceof officers and other employees of the first respondent otherthan the Managing Director and Officers and any other categories referred to in section 44, but then any such regulation has to be made only with the previous approval of the CentralGovernment. The return by the first respondent is silent as to when in fact the post of Deputy Operations Manager was created and when approval of the Central Government obtained both.as regards creation of the post and terms and conditions attached to that post.
(12) COUNTER-AFFIDAVIT and the additional affidavit filed by the first respondent have been verified by Mr. Daya Narain, Secretary of the first respondent. Both these affidavits have been verified as true to the knowledge of the Secretary. These have not been verified on the basis of the official records of the first respondent.These would, thereforee, be hardly the affidavits worth consideration. For example, the Secretary has verified that the interview time taken for each candidate was twenty minutes and in some cases even beyond an hour. The Secretary was not a member of the interview board. He could certainly have no personal knowledge about this. There is also nothing in the records ofthe first respondent to show that this was the time taken in the interview. Proceedings of the Selection Committee also do not indicate any such thing. Reference may, however, be made to an affidavit filed only in these proceedings by one of the members of the interview board (Capt. R. N. Tandon) that duration of the interview of each candidate varied from about20 minutes in some cases and even over an hour in certain other cases. This does not improve the matter for the firstrespondent as the verification should show as to how the Secretary has verified all the statements made in the affidavit. A third affidavit has also been filed on 2/05/1991 by the first respondent during the course of the hearing. Again this is of the Secretary Daya Narain and here it is only stated in the verification that 'the contents are true and correct and that nothing stated herein is false and nothing material has been concealedthere from'. This is the worst form of verification that we have come across. Contents of the affidavit are neither to the personal knowledge nor based on records. Normally we should have rejected all these affidavits. But be that as it may, in the additional affidavit the functions of the Deputy Operations
MANAGER have been given and these include 'his duties to act as Head of all the pilots assigned to him, to ensure training ofthe Pilots as per procedure, to arrange check flights, to makerecommendations with regard to aviation manuals, to keep personal contact with various regional pilots, postering of flyingcrew, movement control, technical aspects, licensing, administration, flight safety, etc. The functions of pilot-in-command only include the safe operation of the flight as assigned to him and are non-managerial in nature. The Commanders are inthe category of 'workmen'. For selection to the post of Dy.
OPERATIONSManager, only eligible Commanders who come within the zone of consideration, are called for interview.Eligibility includes a pilot-in-command endorsement on IA'sjet fleet, no adverse entry in last 3 years' Apa, no punishment(except warning) during last 3 years and integrity and fitness certificate from the competent authority. Whereas a pilot generally gets familiarized with the functions of the Airlines, his managerial and professional knowledge is normally not put to test during the performance of his functions as pilot'. It is also stated in this affidavit that for the purpose of selection of DeputyOperations Managers it had been long felt that the candidates so selected should be familiar with the operations of the airlines and also competent to perform managerial functions. It is saidthat because of this specific job requirement that the first respondent passed the resolution dated 30/07/1970, aforementioned.Admittedly, no training is imparted to the pilots to perform managerial functions and in the course of their duties theyare also not expected to perform any such functions. There isno basis for all what the first respondent has said. Our attention was drawn to certain guidelines for recruitment and promotion issued by the first respondent on 6/12/1988. These are in the form of a letter written by Director of Personnel to Regional Directors and to the Director of Training, Hyderabad.These guidelines show that it had been decided for the purpose of selection/promotion that last 3 years' APAs would be considered as against the then existing instructions of 2 years and further that weightage to be given to APAs in the interview would be 50% against the then existing 30% and the remaining50% marks would be assigned to interview. Then it is stated thatAPAs in the new form used for Officers including Engineering Executives and Executive Pilots, Engineers and Pilot would berated as follows :-
(i) Each year 'Outstanding' Apa - 16 marks(ii) Each year 'Good' Apa - 10 marks(iii) Each year 'Below Average' Apa - 0 marks 'Below Average' rating on any factor will be considered as adverse entry'.
(13) We have not been shown under, what authority these guidelines had been issued and whether they have any statutory force or otherwise.
(14) Another look at this stage to the R & P Rules would be relevant. All employees of the first respondent have been grouped into 8 departments :-(i) Headquarters: (a) Headquarters Office(b) Central Revenue Accounts Branch(ii) Operations Department:(a) Flying Operations (b) Ground Operations (Associated with FlyingBranch)(iii) Aircraft Engineering Department (iv) Traffic Department '(v) Accounts, Costing & Statistics Department(vi) Internal Audit Department '(vii) Stores & Supplies Department(viii) General Administrative Department :(a) Administrative & Personnel Branch(b) Catering & Cabin Servicing Branch(c) Surface Transport Branch.
(15) As shown above, the Operations Department has two departments within it-(1) Flying Operations and (2) GroundOperations. All the posts in the Flying Operations except that of Flight Steward and Air Hostess and Chief Cabin Attendant havebeen described as technical posts. These technical posts include Radio Officer, Communications Superintendent, Flight Engineer,Flight Navitagor, Captain, Commander, Check Pilot, Flying Instructor, Chief Flying Instructor, Chief Pilot and OperationsManager. The last post in the Flying Operations department isthat of Director of Operations which is not a technical post.Similarly, under the Ground Operations department, post of Technical Instructor, Chief Technical Instructor, NavigatorInstructor, Flight Operations Officer and Planning Officer havebeen described as technical posts while those of Junior Operations Assistant, Chief Operations Assistant, Syn. Flight Training Instructor and Senior Syn. Flight Training Instructor and even the Chief Navigator Instructor are not technical post. In the Engineering Department also there are technical posts. There are no other technical posts in other departments except that of Driver or Medical Officer. With all these departments functioning and so many posts being there, it does not appear us to be quite correct for the Secretary to say as to the functions of the DeputyOperations Managers. As noted above, we do not know from which record of the first respondent the Secretary had to say all this.
(16) A serious question did arise for our consideration duringthe course of arguments if not the Central Government have abdicated their functions by completely delegating to the Board of Directors of the first respondent to make regulations prescribing the terms and conditions of service of the officers and other employees of the first respondent which could be framed withthe previous approval of the Central Government as required under sub-section (3) of section 45 of the Act. However, we need not dilate on this question as Mr. Hans, learned counsel for the petitioner, submitted that he would not challenge the validity ofthe relevant service regulations but he would confine his attack only to the breach of the rules committed by the first respondent.
(17) We have seen above, Chapter Ii of R & P Rules prescribes the procedure for direct recruitment. Here the direct recruitment does not mean the same thing as mentioned in the minutes of the meeting of the Board of Directors of the first respondent of 30/07/1970. Those minutes merely show as to what thefirst respondent means by direct recruitment but the interpretation so put is contrary to R & P Rules. It is not that in thisBoard's meeting rules relating to direct recruitment were sought to be modified. In the present case before us there has not been any advertisement anywhere and the procedure for receipt of applications has not been followed nor any other agency approached for filling up the posts. No public notice was alsodisplayed. It was also not mentioned anywhere as to how many posts of Deputy Operations Manager were to be filled in and what were the job requirements of the post. It is true that if we follow the R & P Rules and if the method to fill the post ofDeputy Operations Manager was promotion, then only the Commanders could have filled up that post. These rules do not say that in case of direct recruitment only the Commanders wouldbe eligible. Perhaps what the resolution of the Board of Directorsof the first respondent in its meeting of 30/07/1970 meant was that the post of Deputy Operations Manager could be a selection50 post to be filled in from the lower grade of Commanders. But then this is not what the R & P Rules would say. No argument is needed to show that the recruitment board was not validly constituted as per Rule 10 of these Rules. Reliance has been placed on the proviso staling that this proviso shows the last intention of the rule making authority and the General Manager(now the Managing Director) could constitute a recruitmentboard on the strength of this proviso. We do not find any force in such a submission. Proviso is an exception to the rule. It is only that in any particular case the Managing Director could constitute a recruitment board consisting of such officers as he may consider necessary. We are of the opinion that when the Managing Director acts under the proviso he has to indicate as to why he feels it necessary to constitute a recruitment board different than what prescribed and the exigency of that situation and the reason must be discernible from the action of theManaging Director as to why the normal rule is being departedfrom, otherwise action of the Managing Director will have tobe struck down on the ground of being arbitrary. Again, but for the affidavit of the Secretary, we have not been shown any record of the first respondent as to why the Managing Director thought it fit to constitute a recruitment board in the present case different than that prescribed. This action of the ManagingDirector to our mind is not legal and we must hold that the recruitment board was not validly constituted.
(18) We also find that under Note 3 to Rule 10 both therecruitment and promotion boards will maintain records of their proceedings including the answer papers for tests conducted and marks sheets, etc. This would also show that the recruitmentboard was to conduct written test in the case of direct recruitments and could not merely depend upon viva voce or interview. Asa matter of fact, from the whole process right from the time when intimation was sent to the Operation Managers of the
OPERATIONSManager should be filled up by direct recruitment or promotion at the discretion of the Management, the Board had to decide as to whether in any particular case the post had tobe filled in by direct recruitment or promotion and the reason thereforee. There is nothing on the record to show that the Board of Directors of the firstrespondent ever took any such decision. Reference was, however,made to a note dated 23/11/1970, starting from some Assistant wherein it was said that as per the then policy the vacancies in the grade of Deputy Operations Manager had tobe filled 'i by selection. This Assistant suggested that as per recruitment and promotion rules the selection board should comprise the Director of Operations, Secretary and G.M.'s nominee. The note was put up to the General Manager only for the purpose of nominating his nominee which he did on 21/12/1970. In the absence of any decision of the Board of Directors to treat the post of Deputy Operations Manager either promotional or direct recruitment post, the note staling that as per policy the post has been treated as selection post is meaningless. In fact if that was so resolution of 30/07/1970 hadto be reversed. That not being so Board of Directors of the firstrespondent had to take a conscious decision in the form of are solution why all the posts had to be filled in by direct recruitment or if some by promotion and why. R & P Rules in any service are a serious matter affecting the careers of hundred nay thousands of the employees and these have to be framed and enforced as per law and cannot be left to the whims and. fancies of an individual officer or even officers. The note of the Assistant cannot take the place of a statutory rule. We are, thereforee, ofthe opinion that in the absence of any decision of the Board of Directors to fill in the post of Deputy Operations Manager by direct recruitment, the present selection suffers from patent infirmity and cannot stand.
(19) We have already noticed that R & P Rules do not prescribe if 50 marks out of 100 are to be assigned to last 3 yearsAPAs and 50 marks to the interview. Whether 50 marks forinterview are otherwise excessive or not we will examine later but from the record of proceedings of the Recruitment Board
IT is further to be seen that these 50 marks have further been bifurcated into 30 for managerial ability and 20 for professional and job knowledge. This does not appear to have been done by the Selection Board as the proceedings are silent. The assessment sheet of each individual candidate would show as if it hasbeen done by the office of the first respondent but under what authority we would not know.
(20) Coming to the relevance of reserving 50% marks forinterview, we find that this action of the first respondent is againarbitrary. We have been referred to various judgments of the Supreme Court and of the High Courts including one of this Court on the question of fixing percentage of marks for viva voce test vis-a-vis written test. In these judgments no distinction appears to have been made in a viva voce and an interview though we think both are not always the si me thing. Viva voce is normally associated with written test when it is said that there will be both written and viva voce examinations. An interview is to find out the suitability of a candidate for a post considering his background, experience and the job requirement of thepost. It will have different connotation when the candidate isa rank outsider and when he is to be selected for a higher gradepost. We have, however, been unable to understand as to what is the sanctity of reserving 50% marks for interview when the post can even be filled in by promotion in the present case.Also the post of Deputy Operations Manager in Air India.another Corporation under the Act, is a promotional post and has to be filled in strictly by seniority. A Deputy OperationsManager in Air India which operates international flights will certainly have same responsibility If not more than that of in Indian Airlines, domestic carriers. In Air India v. Nargesh Meerza and others : (1981)IILLJ314SC , the Supreme Court observed that the two Corporations-Indian Airlines and
AIRIndia, form one single unit to be controlled by the Central Government under the Act. The court observed that it might be that the two Corporations might have different functions toperform. Air India operating international flights and the other(Indian Airlines) operating domestic flights within the country,but that fact alone, however, would not make the two Corporations absolutely separate entities and that the two Corporations were part of the same organisation set up by the Act. That apart it has been the stand of the first respondent before the Khosla Tribunal that generally speaking the Management ofthe Indian Airlines was prepared to grant the same pay and conditions of service with minor modifications to its employees as obtained in the Air India particularly with regard to thepilots, flight crew and the engineering staff. This was so recorded by the Central Government Industrial Tribunal, NewDelhi, which was deciding a reference made to it under the Industrial Disputes Act, 1947, as to whether the demand ofthe Indian Flight Engineers' Association for having two scales of pay for line Flight Engineers in Indian Airlines viz.(i) Rs. 1550-2480, (ii) Rs. 1720-2580, at par with Air India was justified and if so, to what relief they were entitled and from which date. The Tribunal answered this reference in favor of the workmen. No reason has been shown to us asto why the first respondent should depart from this stand particularly when we have been the court has been further told that there is parity or near parity with the officers of the first respondent with those of the Air India.
(21) The hierarchy of the posts in the Flying Operations inthe Operations Department right from Cadre Iii, Grade XI(Radio Officer) to Grade xviii (Operations Managers) are all technical posts. The first respondent has various departments to control its other activities and to administer the same. No resolution of the Board of Directors or any other document hasbeen brought on record to show as to what are the job requirements of the post of Deputy Operations Manager, or for that matter even of the Operations Manager. To interview the Commanders to test their suitability and their competency to perform managerial, administrative and other functions andinterview lasting for 20 minutes period or may be little more orless, when all these years they have been flying planes, can hardly be justified. ' '...
(22) We cannot give any credence to the statement of theSecretary of the first respondent in the affidavit as to the functions of the Deputy Operations Manager without there being anything on record to support as to what the Secretary had tosay. We find many Commanders do not find any charm in thepost of Deputy Operations Manager. This is apparent from the fact that out of 60 senior most eligible Commanders called for interview 29 did not appear for the interview. The job ofthe Commander is not less onerous. He is to fly the plane andon one error of judgment many lives depend. The petitioner is Commander since 1973 and his efficiency as a Commander isnot in doubt. APAs which contain exhaustive reporting onthe Commander as to his flying record, performance-flying andperformance-general, all being the performance factors, his personality factors and training and development needs show thatthe petitioner is a very good Commander, if not an outstanding one and out of 60 Commanders called for interview he has go highest rating of 32 marks out of 50 for the last 3. years ofAPAs which rating is next only to respondent No. 18 who has got 38 marks out of 50. There are 7 more respondents who have sot the same rating as that of the petitioner. Others have got 30 and one even less than that. We have not been shown the APAs of the petitioner or any of the other respondents but with reference to a proforma filed with the rejoinder by the petitioner he. has contended, which is not controverter that it has been certified in his APAs that the petitioner was ready and capable to take over higher responsibility and had the potential for progress for higher levels of responsibility. The Reporting Officer of the Apa is the Operations Manager of the Region B and the Reviewing Officer is the Director of Operations. The report is also signed by the Head of the Department. APAs also show that the managerial ability and professional knowledge are also duly tested and apprised through these APAs. In our view a Deputy Operations Manager is to know more about flying the planes than anything else and also supervise the work of the officers of the lower grades on the technical side. Duringthe course of hearing we have been shown notices for inviting applications from serving employees for filling the higher post.In this job requirement is clearly mentioned. In the present case before us the post is to be filled in by the Commanders but they have not been asked to apply and have not been told the job requirements. They have been asked to come for interview just on the basis of a telex message. They were not made aware as to what was the interview about and what questions they were expected to answer. The Commanders were also not told as to how many posts of Deputy Operations Managers were to be filled in. In fact nobody knew as to how many-posts of Deputy Operations Managers existed. During the course of hearing we were told that these were 69. Intimation was sent to 60 senior most Commanders for filling in 20 posts of the Deputy Operations Managers and when it came to recommendation 22 persons were recommended for 22 posts. How this was done we would not know. Then it is not that theCommanders are entering into the service for the first time.They are already there and are merely to be promoted from one technical post to another in the higher grade. These would be different considerations and allocation of marks for a person entering into service than when he is to be promoted from one grade to another in the same service. 20 minutes or so of interview is hardly sufficient to judge the ability of an officer though it may be good enough to. judge his appearance, and allocation of 50 marks for such an in
(23) As noted above, we have been referred to various judgments of the Supreme Court and the High Courts on question if the allocation of 50 marks for interview in the present case would be void or not. The Supreme Court judgments are (I) Ajay Hasia etc. v. Khalid Mujib Sehravardi and others : (1981)ILLJ103SC ; (2) Lila Dhar v State of Rajasthan and others : (1981)IILLJ297SC ; (3) AshokKumar Yadav and others v. State of Haryana and others, : AIR1987SC454 ; and (4) Mehmood Alam Tariq and othersv. State of Rajasthan and others, : AIR1988SC1451 . In Mehmood Alam Trip case the relevant rules of the Rajasthan Administrative Service Rules, Rajasthan Police Service Rules and Rajasthan Forest Service Rules which were special to these services and were not applicable to other services provided that the candidates should secure a minimum of 33% of marks in the' viva voce lest(applicable to candidates of general category). The court B held that the' prescription of minimum qualifying marks of 33% out of the marks set apart, for the viva voce examination did not by itself incurred any constitutional infirmity and thatthere was nothing unreasonable or arbitrary about it. The Administrative and Police Services constituted the cutting edge of the administrative machinery and the requirement of higher traits of personality was not an unreasonable expectation. The court observed that there were features that distinguished, for instance Accounts Service from the Police Service on the basisof personal qualities of the officer. Degree of requirement of personal traits varied according to the nature of service. Officers to be selected for higher services and who were, with the passage of time, expected to man increasingly responsible positions inthe core services should be men endowed with personality traits conducive to the levels of performance expected in such services.In this case the maximum marks for the written examination were 1400 and for the viva voce and personality test 180 which constituted 11.9% of the aggregate marks. The rules required in relation to Administrative, Police and Forest Services thatcandidates should secure 33% as minimum qualifying marks inthe viva voce test, i.e. they should secure minimum of 60 marks out of 180 marks. The court in this case examined its earlier decisions in Ajay Hasia, Lila Dhar and Ashok Kumar Yadavcases. The court referred to the following observation in AshokKumar Yadav case :-
'THE spread of marks in the viva voce test being enormously large compared to the spread of marks56 in the written examination, the viva voce test tended to become a determining factor in the selectionprocess, because even if a candidate secured the highest marks in the written examination, he couldbe easily knocked out of the race by awarding him;the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the topmost position in the merit list by an inordinately high marking in the viva voce test. Itis, thereforee, obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness and in order to diminish,if not eliminate, the risk of arbitrariness, the percentage needs to be reduced'.
(24) The court observed that these observations were madein the context that 'the spread of marks in the viva voce was so enormously. large compared to the spread of marks of the written examination, the viva voce test tended to become a,determining factor'. The reference was to the possibility of acandidate unreasonably being allotted high marks at the interview.The court observed that that was a very different thing whether a candidate should acquire at least a certain minimum percentage of marks at the viva voce. The court upheld the rule that;candidates must secure a minimum of 33 per cent of marks inthe viva voce test. It must, however, been noticed that 1,80marks set apart there for viva voce and personality test constituted only 11.9% of the aggregate marks. In Lila Dhar case the court observed that there could not be any rule of thumb regarding the precise weight to be given for interview test and.that it must vary from service to service according to the.requirements of the service, the minimum qualifications prescribed, the age group from which the selection was to be made,the body to which the task of holding the interview test was proposed to be entrusted and a host of other factors. In LilaDhar case 25% of marks had been allotted to viva voce under.the rules of the Rajasthan Judicial Service Rules. The court observed that 25% marks for the interview test was not on thehigh side especially when the interview test was conducted bya body consisting of a Judge of the High Court, the Chairman and a Member of the Public Service Commission and a special invitee expert. It further observed that there could surely be no,legitimate grievance or hint of arbitrariness against such body and yet another factor worthy of consideration was that thecandidates expected to offer themselves for selection were not raw graduates freshly out of college but were persons who had already received a certair. amount of professional training.
AJAY Hasia was a case where admission to an educational institution was under challenge and the court held that allocati'on of as high a percentage as 33.3% of the total marks for the oral interview should be regarded as affecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure should notbe sustained. The court observed that allocation of more- that15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. In Ashok Kumar Yadav case . theSupreme Court had occasion again to examine its earlier two decisions in Ajay Hasia and Lila Dhar cases. In this case thequestion was whether the allocation of as high a percentage of marks as 33.3% in the case of ex-service officers and 22.2%in the case of other candidates for viva voce test rendered the selection test arbitrary. The services concerned was that of Haryana Civil Service (Executive) and a composite written test and viva voce was held by the Haryana Public Service Commission under the relevant rules. For our purposes we may consider the rules applicable to candidates of general category.They were required to appear in a written examination in eight subjects carrying in the aggregate 700 marks and also to appear in viva voce test carrying 200 marks. Marks allocated for viva voce test came to 22.2% of the total number of marks forthe competitive examination. The court held that figure of22.2% was quite high and would consequently tend to become a determining factor in the process of selection tilting the scale in favor of one candidate or the other according to the marks awarded to him in the viva voce test. The court noticed that consequent upon the Kothari Commission report, an expert committee constituted for the purpose of examining recruitment policy and selection methods for the Indian Administrative Service and other allied services, the percentage .of marks allocated for the viva voce test in the competitive examination forthe Indian Administrative Service and other allied services was brought down to 12.2% of the total marks. The court held the allocation of 22.2% of the total marks for the viva voce'test as infecting the selection process with the vice of arbitrariness.The court, however, did not disturb the selection but at the same time issued directions to the Haryana Public Service Commission that in future selections were to be made on the basis that the marks allocated for the viva voce test would not exceed 12.2%m case of candidates belonging to the general category. It willbe, thus, seen that highest marks that could be awarded for a service like the Indian Administrative Service was 12.2% and that too at the time when a candidate was entering in service.Keeping these principles as laid by the Supreme Court in view and considering the R & P Rules and circumstances of thepresent case we are of the view that allocation of 50% marks for interview test suffers from vice of arbitrariness. We have examined the assessment sheets of the individual candidates appearing for interview. Most of the candidates are either metric or Higher Secondary, very few graduates but no one is as highly qualified academically as the petitioner who holds a post-graduate degree (M.A.) in Sociology in the subjects AdvanceSociology, Contemporary Indian Society and Culture, Criminology and Penalogy, Industrial Sociology and viva voce on the above-mentioned subjects. His record of service in unquestionably good. His professional attainments like any other Commander have been amply reflected in the APAs. Capt. R. N.Tandon, who was one of the members of the Recruitment Board,in his affidavit does not say as to what was the nature of questions asked of the candidates at the interview. He said thecandidates appeared before the Board in order to determine the suitability of each candidates keeping in view his APAs and his professional and managerial capabilities as reflected m the interview. This is as vague as it could be. There is nothing to contradict the averment of the petitioner that in the interview which lasted 5 to 10 minutes questions asked were of general nature relating to the flying experience, places of postings and willingness to be transferred outside Delhi, if required. As notedabove, the petitioner has seriously questioned the validity of the50% marks allocated to interview being arbitrary and unconstitutional. Record of the proceedings of the Recruitment Board show merely the awarding of marks to various candidates andthat too only for managerial ability and professional knowledge.
THEfirst respondent it appears, had already indicated the marks earned by each candidate respecting past 3 years APAs. The proceedings sheet show no more. In some cases we find thatthere have been overwritings on the marks awarded by each member of the Interview Board though by the member himself,but it will appear that was done to give a particular candidate qualifying marks of 60 when earlier he was getting less marks after taking average of the marks given by each member of the Interview Board. We may have the examples of Capt. J. R.Singh (though senior to the petitioner and, thus, not made arespondent), Capt. R. K. Bhargava and Capt. A. A. Siddique as to how they have been given marks by the four members(A, B, C and D) of the Recruitment Board for the managerial ability (30) and professional ability (20) of these candidates.The bricket portions show the marks over written to those given in the first instance : A B C DI. Mr. J.R. Singh Managerial 13(18) 21 10(12) 18Professional 10(12) 12 13(18) 12D 2. Mr. A.A. Siddique Managerial 10(14) 15 10(14) 14Professional 10(16) 10(15) 10(16) 163. Mr. P..K. Bhargava Managerial 10(15) 10(20) 15 15Professional 15 10 10(15) 10(15)
(25) It may also be noted that out of 50 marks assigned forAPAs each secured 30 marks. If the marks remained as originally given for interview, none of them would have qualified securing less than 60 marks, the qualifying marks.
(26) These three instances are enough to show how arbitrariness can creep in the selection process and can impair or pushup the career of a deserving and not so deserving officer. And we may also examine the extent of supersession which is quite staggering because of high percentage of marks for the interview. In the seniority list of Commanders Capt. J. R. Singh ranked 9, petitioner 17 and respondent No. 22 at 85.
(27) At this stage again reference may be made to certain decisions of the High Courts cited at the Bar. In R. S. Adhikariv. Indian Airlines Corporation, (6) (C.W.Ps. 1238- and 1378of 1081, decided on 26/03/1984) the court was concerned with the promotion to Grade VII/VIII of the technical staff of the Engineering Department of the Indian Airlines. The'method of' appointment to this post was by direct recruitment25% and promotion 75%. In the case of direct recruitment70% of the marks were assigned to interview and 30% marks to the APAs for the last two years. The petitioner were inGrade III/VI and next promotional grade was VII/VIII. One of the grievance raised was that allocation of high percentageof inarks for interview test introduced an irredeemable elemental arbitrariness so as to offend Articles 14 and 16 of the Constitution. The court noticed that the Indian Airlines had issued enough guidelines superseding its earlier instructions and now laying down 50% marks for APAs and 50% marks for interview. The learned Single Judge of this Court observed thatthe object of promotion system was to secure the best possible incumbents for the higher posts and the Corporation must have felt that it was not being achieved by granting heavy weight age to APAs and that the proportion of weightage was then changed in the guidelines issued as a matter of policy in the interest of requirement of the service. The court was, thereforee of the opinion that unless an exaggerated weight which might shock the conscience of the court, is given, the decision has to be left to the Corporation. The court, thereforee, upheld the weight age of 70% marks given for interview. With respect we are unable to agree with this view. We do not think while interpreting the provisions of the Constitution or judging the constitutional validity of a provision we should import the equitable doctrine of 'shock the conscience of the court'. TheIndian Airlines must satisfy as to why 50% of the marks allocated for interview was the requirement of the service. This we find has not been done. In Capt. Nanik Karamchandani and others v. Indian Airlines and others 1988 (3) S.L.R. 365, (7) there was challenge to the supersession of the petitioners who were Commanders and to the entire process of selection to the posts of Deputy Operations Managers. A learned Single Judge did find that the allocation of 70% marks forinterview was on the higher side but left it to the Indian Airlines to decide what proportion should be fixed for interview test.
IN Tracy Aranha v. Air India Corporation (C.W.P. No. 1674of 1990, date of decision 28-6-1990, Bombay) (8), there was challenge to 40% marks assigned to viva voce test for selection/promotion to the post of Station Manager in the Air India. Of the facts the case court negatived the complaint that high percentage of marks was reserved. It referred to five factors mentioned in the new promotion policy and different marks assigned to each of the factors. That is not the case here before us and correctness of 40% marks for interview test should:be confined to the facts of that case. In S. V.Puranik v. Indian Airlines and others (C.W.P. No.59 of 1988, date of decision 12-9-1990) a Division Bench of the Bombay High Court (9) upheld the validity of70 per cent marks assigned for interview in the case of promotion to the post of Traffic Officer, a non-technical post. The Bench did not agree with the view expressed by a learned Single Judge of that court in Capt. Nanik Karamchandani case and also ofthe Calcutta High Court in Capt. Digvijay Singh Dube v. Indian Airlines and others 1990 lab I.C. 810(10). The court in this case observed that there could not be any rule of familiarity regarding the precise weightage to be given and it must vary from service to service according to the requirements of thatservice. Since the court was concerned with a non-technical post,though also governed by R & P Rules and of which we do not know the job requirement, we do not feel necessary to analyses that case. Our attention was also drawn to a bench decision of this Court in Cwp No. 1048 of 1990 (C.P. Kalra v. Air India)dismissed in liming on 1/04/1991, where also this Court upheld the validity of 40 per cent marks out of .100 for interview for promotion to the post of Station Superintendent. This judgment cannot be a binding precedent for us as we do notknow the job requirements of the post of Station Superintendent and other facts of the case. A Single Judge of Calcutta High Court in Capt. Digvijay Singh Dube held that allocation of 70 per cent of marts to interview to the post of Operation?Manager as per R & I* Rules of the Indian Airlines was illegal He also questioned the bifurcation of 70 per cent marks to 40per cent and 30 per cent respectively for managerial ability and professional ability. The learned Judge examined in depth various decisions of the Supreme Court and. High Courts and observed that the post of Operations Manager in the Flying Operations of the Operation Department of Indian Airlines was not a selection post and further that the Selection Board wasnot validly constituted as per R & P Rules and that the viva voce interview for 10/25 minutes duration was totally inappropriate to the assessment of either managerial ability or professional ability. The Judge also observed that in the case before him on an admitted position the interview board was not trying together a total impression of the candidate's personality but they were only seeking to assess the managerial and professional ability of the candidate which was purely objective process converted by APAs. The court directed. the promotion of the petitioner to the post of Operations Manager. We were told that an appeal against this judgment is pending before a Division Beach of the High Court. We, however, find ourselves in agreement with the observation of the learned Single Judge as the facts of that case are some what quite similar to the facts before us except that be allocation of the marks for interview test is now 50 per cent and not 70 per cent. The post of OperationsManager also falls in the Flying Operations of the Operation Department of the Indian Airlines and is Grade Xiii post and anointment could be made by direct recruitment or promotion.On the tact of this case we find that the process of interview has been thoroughly inappropriate for promotion to the postof Deputy Operations Manager and allocation of 50 per cent marks for interview test is arbitrary and vocative of Articles 14 and 16 of the Constitution. As to how we came to this conclusion we may, correlate; the factors which have been enumeratedabove:
1.The petitioner is not entering into any service. He is merely to be promoted to the next higher grade in the same department.
2.Appointment to the post of Deputy Operations Manager can be by promotion as well.
3.There is parity with the Air India where the post ofDeputy Operations Manager is invariably to be filled in by promotion.
4.In Ashok Kumar Yadav case, where a candidate was entering into IAS/IPS the allocation of marks forviva voce test were 12.2 per cent and the SupremeCourt said that the precise percentage of marks for such a test in Haryana Civil Service (Executive)could not be more that, and in fact issued a direction that the marks for viva voce test should not be more than this percentage.
5.The Central Government also was of the view that heavy weightage was being given to interview and advised Indian Airlines to stick to seniority list and not to supersede any one untill and unless theperson superseding his senior had an exceptional or outstanding performance record. This advice of the Central Government may not be in the form of a direction under the Act and at best was advice which normally Indian Airlines should have followed unless it had any cogent reasons to depart from the same,Any such reason has not been brought to oar notice and we are not aware as to how this letter of theCentral Government was dealt by the Indian Airlines. The letter coming from the Administrative Ministry to the Indian Airlines is not a valueless document which is to be thrown into a waste paperbasket.
6.Number of posts were never indicated nor the jobrequirements thereof. It was also not made known if any of the post were also to be filled in by promotion. Also there were apparent violation of the R &P; Rules even if the selection was to be made within.
7.Spread of marks for interview compared with the spread of marks for APAs is so enormous that the interview tends to become a determining factor. There is clear possibility of a candidate undeservingly allotted higher marks or lower marks at the interview evenunwittingly. In fact the danger of allocating such high marks for interview have been amply demonstrated above and the element of arbitrariness is very much there.
8.There are no proper R & P Rules and these have alsonot been up dated to the prejudice of the candidatesappearing for interview.
9.The post of Deputy Operations Manager is a technicalpost. As to what is a technical post has not been defined in the Rap Rules and we have also not been told as to what the Indian Airlines means in describing such like post as technical post. In common parlance a technical post has to be differentiated from managerial post. A person holding a technical post should have a special knowledge of industrial or scientific subjects. A Commander who is promoted as Deputy Operations Manager should know more about the techniques of flying the plane than anything else.
10.APAs which are comprehensive innature give all the relevant qualities of a candidate as a Commander and his fitness to be promoted to the next higher post of Deputy Operations Manager. Was the interview of 10 to 20 minutes meant only to judge the appearance or the personality of the candidate or anything more The attainments or accomplishments of the candidates were already before the Recruitment Board in the form of APAs. The time forinterview was hardly enough for any other purpose.
(28) Interview Board/Selection Board/Recruitment Board is the same thing in this judgment.
(29) We, thereforee, hold that the order No. HPDO1/0-1201dated 10/04/1990, of the first respondent promoting respondents 2 to 22 is not legal and has to be set aside. Consequently,selection of respondents 2 to 22 to the post of Deputy Operation Manager is quashed. There shall be fresh selection by the first respondent as per rules keeping in. view the principles set out in the judgment.
(30) We are aware that our holding the selection of respondents 2 to 22 as illegal will upset the working in the IndianAirlines. We have been told during the course of hearing that some more selections on same very rules have further been madeto the posts of Deputy Operations Managers. But then if we do not interfere it will be perpetrating injustice as far as the petitioner is concerned. However, we find that there is an alternative and it is like this. The Supreme Court has held that12.2 per cent marks allocated for interview is valid for entering into various all India services. We may apply that principle herefor promotion to the post of Deputy Operations Manager. If that be so, then 87.8 marks would stand allocated for APAs forthe last 3 years and 12.2 for the interview. On the basis of theratio of marks already granted to the petitioner when the allocation was 50 for APAs and 50 for interview, the petitioner would get marks over 60 which is the qualifying marks for promotion to the post of Deputy Operations Manager. We would thereforee, direct, though, in the alternative, that petitioner will be promoted to the post of Deputy Operations Manager w.e.f.the date respondents 2 to 22 were promoted and he shall also be entitled to all consequential benefits from that date. That musthowever, be done within one month from today and petitioner informed otherwise our direction quashing the selection of the respondents 2 to 22 To the post of Deputy Operation Manager shall come into operation at once after the expiry of one month from today.
(31) We are further of the opinion, in view of the statement of law as declared by the Supreme Court particularly in AshokKumar Yadav and Mehmood Alam Tariq cases, that not morethan 15.2 (and perhaps even less) marks should have been allocated for the interview. The Indian Airlines is plagued with litigation because of the faulty rules and even not adhering to the existing ruiss. In the circumstances of the case, we will issue a mandamus directing the Indian Airlines to frame within three months from today proper recruitment and promotion rules as per law even updating the existing rules.
(32) We record our appreciation of conduct of the petitioner. In not pressing malafides against any member of the InterviewBoard. We must also not be understood to have lured in wrong motive to the members of the Interview Board or other officers. Our criticism was based solely in showing how allocation of such high percentage of marks for interview would suffer from the vice of arbitrariness and thus unconstitutional.
(33) Petitioner will be entitled to costs. Rule is made absolute.