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Mangesh Kashinath Vakade vs Ai Engineering Services Ltd & Ors on 20 April, 2023

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~100
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     W.P.(C) 6606/2022 & C.M. APPL. 20075/2022 & 32088/2022

                                MANGESH KASHINATH VAKADE           ..... Petitioner
                                            Through: Mr. Jawahar Raja, Ms. Meghna
                                            and Ms. L. Gangmei, Advocates
                                            versus
                                AI ENGINEERING SERVICES LTD
                                & ORS.                               ..... Respondents
                                             Through: Mr.        A.P.       Singh    and
                                             Mr. Shreyansh Rathi, Advocates for R-1.
                                             Mr. Himanshu Pathak and Mr. Krishna
                                             Kumar, Advocates for R-3.

                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                       ORDER

% 20.04.2023

1. Present writ petition has been filed by the Petitioner seeking the following reliefs:-

"a) Issue an appropriate writ, order or direction, thereby directing the respondents to withdraw the office order dated 15.11.2018 issued by the respondent no. 1 whereby the minimum qualification for the post of Executive Director in the Respondent no. 1 has been changed; and

b) Issue an appropriate writ, order or direction, thereby directing the respondents to withdraw the amendment in memorandum of exposition of the respondent no. 1 made in December 2018 whereby academic qualification for the post of executive director was amended; and

c) Issue writ of mandamus or of similar nature directing the respondent no. 1 to promote the petitioner on the post of Executive Director with all consequential benefits w.e.f. the date his junior gets promoted; and

d) Allow the present writ petition in favour of the Petitioner while imposing exemplary cost on the Respondent."

2. By this petition, Petitioner essentially assails an office order Signature Not Verifieddated 15.11.2018 issued by Respondent No. 1/AIESL, whereby Signed By:KAMAL KUMARW.P.(C) 6606/2022 Page 1 of 6 Signing Date:25.04.2023 21:04:21 minimum qualification for the post of Executive Director ('ED') has been changed and stipulated as a Graduate Engineer with B.E./B.Tech. and was to take effect after 03 years from the date of approval of the CMD. Prior thereto, even a non-graduate but diploma holder General Manager was eligible for promotion to the post of ED.

3. Petitioner had joined erstwhile Engineering Department of Air India Limited ('AIL') as Trainee Technician in March, 1985 and is presently posted as General Manager (Engineering) Group-B with AIESL. AIL was merged with Indian Airlines Limited ('IAL') in the year 2007, however, the exercise of harmonising the service conditions of the two stream of employees viz. those of AIL and IAL was not carried out. In 2011, Respondent No. 3/Union of India set up a Committee headed by Justice D.M. Dharmadhikari to give recommendations in respect of harmonisation of the service conditions of the two streams of employees. For the cadre of Aircraft Maintenance Engineers and their Executives, the Committee recommended a career path as per which the required entry criteria for the post of ED was vacancy based and one year service as General Manager. The career path remained unchanged when the employees of Engineering Department of AIL were hived off to AIESL in 2013 and a transfer letter dated 10.05.2013 was issued which reads as follows:-

"...

without any adverse change in service conditions and without affecting continuity of service, pay and allowances, career progression, benefits and perquisites. You shall remain entitled to all benefits of past service, that there would be no adverse change in the service conditions till you are in service with AIESL.

2. To further clarify, you would continue to be entitled to pay and allowances, career progression, benefit and perquisites, retirement benefits and other conditions as would have been applicable to you had you continued in the parent company."

4. Petitioner complains that when the impugned office order was issued on 15.11.2018, in order to avoid an immediate vacuum in the Signature Not Verified Signed By:KAMAL KUMARW.P.(C) 6606/2022 Page 2 of 6 Signing Date:25.04.2023 21:04:21 system, the order was made effective after 03 years from 18.10.2018, in order to enable the concerned officers to acquire necessary qualifications in the meantime, however, this purpose was totally defeated since the order was never disseminated to the Executives of AIESL in general and the Petitioner in particular, besides the fact that the HR Policy was also not amended. Petitioner learnt of the order only in March, 2020 after which he addressed an e-mail to the then Chief of Personnel of AIESL, who also expressed his ignorance of the said development, which according to the Petitioner is evident from his email dated 08.03.2020, extracted hereunder, for ready reference:-

"....

Subject: Re: CEO Office Order ED Qualification w.e.f. 18-10-2021 I am also surprised, it appears that the post has been tailor- made for QM only.

The process of change was not routed through COP, even though it is a hard core HR issue. In fact I find no copy was also marked to me.

Let me know how and who initiated the process and obtained CEO's signature to make the changes. ED(Engg) is 100% promotional post with seniority. If QM made the changes then it cannot be effected as no one can be judge in his own case as it hits the Principle of natural Justice and cannot have legal enforce ability. In any case it also hits the process of selection and zone of consideration, the two main pillars to any internal selection post.

Further the changes are in contradiction to JDC report accepted by Cabinet/ MOCA.

We need to undo the changes brought-in the MoE immediately."

5. Pithily put, the grievance of the Petitioner is that services of the Petitioner were transferred to AIESL w.e.f 01.02.2013 granting protection not only of continuity of service but also service conditions, categorically providing that there will be no adverse change in the terms and conditions, pay and allowances 'career progression' etc. till the employees are in service with AIESL. The amendment in the eligibility conditions for the post of ED is a serious amendment from the requirement of being a non-graduate to being a graduate and that Signature Not Verified Signed By:KAMAL KUMARW.P.(C) 6606/2022 Page 3 of 6 Signing Date:25.04.2023 21:04:21 too for the Petitioner at this age. Moreover, the eligibility condition was never incorporated as a part of the HR Policy and has no legal sanctity besides the fact that AIESL does not follow the mandatory procedure of disseminating the change in the eligibility condition to the environment and to the stakeholders.

6. Learned counsel for the Petitioner submits that when the writ petition was filed, finding merit in the plea of the Petitioner, this Court vide order dated 27.04.2022 had passed the following order, protecting the rights of the Petitioner:-

"1. Mr. A. P. Singh, Advocate, appears for respondent No.1 and states as per his instructions, the petitioner is not being considered for the promotion to the post of Executive Director, in view of the office order dated November 15, 2018 wherein the eligibility for the post is confined to candidates who possess Graduate degree in Engineering, which the petitioner does not possess as he is only a Diploma holder.

2. He states, as per his instructions, three vacancies of the Executive Director are being filled and the result of the interview process can be declared at any point of time.

3. He also states that till such time the issue is decided by this Court, the respondent No.1 shall keep one post of Executive Director vacant. His statement is taken on record.

4. Counter affidavit be filed within three weeks. Rejoinder thereto, be filed within two weeks thereafter.

5. List on July 27, 2022."

7. Learned counsel further submits that the Petitioner is due to superannuate on 30.04.2023 and therefore the matter be heard on interim relief. It is stated that if the Petitioner superannuates, AIESL will not conduct an interview or grant him promotion to the post of ED, even if he succeeds in the writ petition and therefore as an interim relief direction be issued to conduct the interview of the Petitioner, prior to his retirement, so that the Petitioner is not faced with a fait accompli in case he succeeds in this litigation.

8. Learned counsel for AIESL, on the other hand, submits that one post has been reserved by the order of this Court and therefore the apprehensions of the Petitioner are misplaced and in any case since the very eligibility of the Petitioner is in question, he cannot be interviewed at this stage.

9. On a pointed query by the Court as to whether the impugned office order was disseminated to all concerned and whether the HR Policy was amended to change the eligibility conditions, it is candidly submitted that there is no specific response to these questions in the counter affidavit. Further time is sought to file an additional affidavit on these aspects.

10. I have heard the learned counsels for the parties and examined their respective stands on the grant of interim relief at this stage. Albeit Mr. A.P. Singh points out that the order was placed on the website, however, this Court is unable to discern any response to the averments that the order was not disseminated and that the office order did not take the form of an HR Policy. To my mind, some crucial questions arise in the present writ petition which need examination viz.

(a) whether the terms and conditions of the Petitioner could be changed including condition of eligibility, which according to the Petitioner adversely impacts his career progression/avenues, in view of the transfer letter, aforementioned and recommendations of the Committee headed by Justice D.M. Dharmadhikari; (b) whether the office order dated 15.11.2018 was disseminated to the environment and whether any HR Policy was issued incorporating the change; and

(c) whether the change of eligibility condition to graduation with B.E./B.Tech. can be termed as an adverse condition to the Petitioner, hampering his career path.

11. In view of the aforesaid, it is necessary that an additional affidavit is filed by AIESL. Let the needful be done within four weeks from today.

12. Response to the additional affidavit, if any, be filed by the Petitioner within four weeks thereafter.

13. Petitioner is retiring on superannuation on 30.04.2023 and therefore in order to balance the equities this Court deems it appropriate to direct AIESL to conduct the interview of the Petitioner for the post of ED prior to his retirement and place the result in a sealed cover so that the writ petition is not rendered infructuous in the event the Petitioner succeeds finally. This is also keeping in backdrop the fact that one post of ED has been kept reserved by interim order of this Court.

14. Needless to state that participation of the Petitioner in the interview will not create any equity in his favour and shall be subject to the outcome of the writ petition. The sealed cover containing the result shall be brought to Court on the next date of hearing.

15. It is made clear that if the Petitioner qualifies the interview and ultimately succeeds in the writ petition, the factum of his having superannuated on 30.04.2023 shall not come in his way of getting notional promotion to the post of ED with consequential benefits.

16. It is also made clear that the exercise of conducting the interview of the Petitioner will not preclude AIESL from carrying out interviews for promotions to the post of ED qua remaining vacancies.

17. List on 21.08.2023.

JYOTI SINGH, J APRIL 20, 2023/kks/shivam Signature Not Verified Signed By:KAMAL KUMARW.P.(C) 6606/2022 Page 6 of 6 Signing Date:25.04.2023 21:04:21