Allahabad High Court
Kishor Kumar Chaturvedi vs Airports Authority Of India ... on 6 January, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 17 Case :- WRIT - A No. - 2549 of 2022 Petitioner :- Kishor Kumar Chaturvedi Respondent :- Airports Authority Of India Thru.Chairman Rajiv Gandhi Bhawan New Delhi And Others Counsel for Petitioner :- Ashwani Kumar Counsel for Respondent :- Birendra Prasad Singh Hon'ble Pankaj Bhatia,J.
1. Heard Shri Kapil Dev, learned counsel assisted by Shri Ashwani Kumar, learned counsel for the petitioner and Shri Birendra Prasad Singh, learned counsel for the respondent nos.1 to 5 & 7.
2. Present petition has been filed for the following reliefs:
"i. issue a writ, order or direction in the nature of certiorari, quashing the impugned orders dated 12.3.2021, 4.1.2022 (so far as it relates to the petitioner), 14.2.2022, 21.4.2022 and 21.4.2022 issued by the opp- parties nos. 5, 3, and 7, as contained in Annexures Nos.1, 2, 3, 4 and 5 respectively to the writ petition.
ii. issue a writ, order or direction in the nature of mandamus, commanding the opp- parties to consider and provide the benefit to the petitioner, as has been given in the letter dated 12.3.2021, issued by the opp party no.5, as contained in Annexure No.1 to the writ petition.
iii.issue a writ, order or direction in the nature of further mandamus, commanding the opp-parties, to allow the petitioner to discharge his duties and functions on the post of Deputy General Manager (HR) at Lucknow Airport, Lucknow, and pay him salary and other admissible allowances regularly every month as and when it shall become due to be payable.
iv. issue such other order or direction, which this Hon'ble Court may deem just and proper in the circumstances of the case in favour of the petitioner; and;
......."
3. Genesis of the dispute arises out of an order of transfer passed on 4.1.2022 whereby the petitioner was transferred from Lucknow Airport to RHQ, WR in public interest as contained in Annexure - 2.
4. Contention of learned counsel for the petitioner is that the transfer is discriminatory; for arguing the same, he places reliance mainly on the clarification dated 12.3.2021 wherein certain employees at three airports namely Guwahati, Thiruvananthapuram and Jaipur were permitted to continue at the concerned airport till the end of deemed deputation period. The petitioner approached this Court by filing Writ - A No.1059 of 2022 which was heard and decided on 7.4.2022 wherein the case of the petitioner insofar as it related to challenge to the transfer stood dismissed, however, the petitioner was permitted to challenge the clarification dated 12.3.2021. The operative portion giving liberty to the petitioner to challenge is quoted herein below:
".........
It is open for the petitioner to challenge the clarification dated 12.03.2021 and seek such relief as he deems fit and proper. In that context he may also challenge his transfer on the limited ground that his retention at Airport at Lucknow is discriminatory viz-a-viz the personnel posted at Guwahati, Thiruvananthapuram and Jaipur Airports."
5. In the light of the said liberty granted by this Court, the petitioner challenged the clarification dated 12.3.2021 and prays that in case the said challenge is accepted as argued by the petitioner, the necessary benefits would be consequential which shall include the transfer of the petitioner also.
6. The petitioner has placed reliance in support of his argument a judgment of the Delhi High Court in the case of Delhi International Airport Pvt. Ltd. v. Union of India & Anr.; W.P. (C) No.11047 of 2016 decided on 10.4.2017 against which Petition(s) for Special Leave to Appeal (C) No(s). 18128 of 2017 was preferred which was dismissed on 17.8.2017.
7. Contention of learned counsel for the petitioner is that the petitioner is employed by the Airports Authority of India and his services were governed in terms of the statutory rules of the of the Airports Authority of India. It is on record that the Airports Authority of India with a view to promote privatization of the airports entered into agreements with Adani Group of Companies in respect of Lucknow, the Concession Agreement is on record as Annexure - 8, which was an agreement entered on 14.2.2020 in between Airports Authority of India (hereinafter referred to as 'the AAI') and Adani Lucknow International Airport Limited (hereinafter referred to as 'the Concessionaire'). In terms of the said agreement, the parties agreed for handing over the running of the airport in question to the Concessionaire on the terms and conditions which were set forth in the said agreement.
8. For the purposes of the present petition, the relevant paragraphs relating to the petitioner are contained from Para - 6.5.1 up to 6.5.3 of the agreement, which are quoted herein below:
"6.5.1 For the purpose of this Clause 6.5:
(i) "Select Employees" shall mean these employees of the Authority as set forth in Schedule S (of the rank of assistant general manager and below) who are posted at the Airport by the Authority and shall be deployed at the Airport for the duration of the Joint Management Period and Deemed Deputation Period.
The Select Employees shall stand reduced to the extent of employees who retire, are deceased or otherwise separated from Autliority's services during the Joint Management Period or Deemed Deputation Period. It is clarified that the Select Employees shall not be reduced to the extent of employees who are transferred by AAI.
(ii) "Joint Management Period" shall mean the period commencing from the COD and ending on the date which is 1 (one) calendar year after the COD.
(iii) "Deemed Deputation Period" shall mean the period commencing from the expiry of the Joint Management Period and ending on the date which is 2 (two) calendar years therefrom.
6.52 With the exception of the Select Employees, the Concessionaire shall have no obligations in relation to the existing employees of the Authority serving in connection with the Airport.
6.5.3 The senior management staff of the Authority of the rank of deputy general manager and above ("Senior Personnel") shall remain deputed at the Airport for a period not exceeding 3 (three) months from the COD.
(i) On the expiry of such 3 (three) month period, the Senior Personnel shall be transferred out of the Airport and redeployed by the Authority.
(ii) It is clarified that the Concessionaire shall not be liable to bear any costs in respect of the Senior Personnel, which costs shall be borne entirely by the Authority."
9. It is argued that although the "Select Employees" as defined under Clause 6.5.1(i) would mean employees of the authority as set forth in Schedule S (of the rank of assistant general manager and below) who are posted at the Airport by the Authority and shall be deployed at the Airport for the duration of the Joint Management Period and Deemed Deputation Period, the phrase "Deemed Deputation Period" itself finds mention in the definition clause and means as under:
"Deemed Deputation Period" has the meaning as set forth in Clause 6.5.1(iii);"
10. It is argued that similar agreements were executed in between AAI and 5 other Airports other than Lucknow, which include Guwahati, Thiruvananthapuram, Ahmedabad, Jaipur and Manglore at PPP Airports. It is argued that after the execution of the agreement, the clarification was sought at the instance of representation made by the Union/Associations in respect of Airports of Guwahati, Thiruvananthapuram and Jaipur and the AAI issued a clarification dated 12.3.2021 making certain clarification in respect of the status of the employees. The relevant clause for the purposes of the present writ petition is Clarification No.23, which is quoted herein below:
S. No. Point Raised Clarification
1.
Since AGM & below shall be in the Select List (except CNS/ATC) what would be situation in the event of promotion as DGM during the period of COD i.e. as to whether the select emplyoee/AGM would be transferred or remain with private operator during the COD Period.
Such Officials will stay at the concerned airport till end of deemed deputation period.
11. Submission of learned counsel for the petitioner is that certain benefits in the form of clarification were extended to the personnel posted at three Airports of Guwahati, Thiruvananthapuram and Jaipur wheres the same benefit was not extended to the employees who are posted at Lucknow, Manglore and Ahmedabad Airports and this, according to the petitioner, is violative of Article 14 of the Constitution of India insofar as the employees who are placed on these Airports are working under the same set of conditions and rules and cannot be discriminated with regard to any of the condition of his service.
12. It is further argued that the issue with regard to discrimination was dealt with by the Delhi High Court in the case of Delhi International Airport Pvt. Ltd. (supra) wherein the Delhi High Court has observed as under:
"37. The settled principle of law that a classification is sustainable in law only if it is based on intelligible differentia and the differentia has a nexus with the objective sought to be achieved has been explained in Budhan Choudhary Vs. State of Bihar (supra) as under:-
"5. The provisions of article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal Chowdhuri v. The Union of India, The State of Bombay v. F. N. Balsara, The State of West Bengal v. Anwar Ali Sarkar, Kathi Raning Rawat v. The State of Saurashtra, Lachmandas Kewalram Ahuja v. State of Bombay and Qasim Razvi v. State of Hyderabad and Habeeb Mohamad v. State of Hyderabad. It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court."
38. In a latest decision of the Supreme Court in Union of India vs. N S Ratnam; (2015) 10 SCC 681, while reiterating the principles of law it was further clarified:
"12. The judgment of this Court in Kasinka Trading case [(1995) 1 SCC 274] , no doubt, lays down the principle that there is wide discretion available to the Government in the matter of granting, curtailing, withholding, modifying or repealing the exemptions granted by earlier notifications. It is also correct that the Government is not bound to grant exemption to anyone to which it so desires. When the duty is payable under the provisions of the Act, grant of exemption from payment of the said duty to particular class of persons or products, etc. is entirely within the discretion of the Government. This discretion rests on various factors which are to be considered by the Government as these are policy decisions. In the present case, however, the issue is not of granting or not granting the exemption. When the exemption is granted to a particular class of persons, then the benefit thereof is to be extended to all similarly situated persons. The notification has to apply to the entire class and the Government cannot create sub-classification thereby excluding one sub-category, even when both the sub-categories are of same genus. If that is done, it would be considered as violating the equality clause enshrined in Article 14 of the Constitution. Therefore, judicial review of such notifications is permissible in order to undertake the scrutiny as to whether the notification results in invidious discrimination between two persons though they belong to the same class. In Aashirwad Films v. Union of India [(2007) 6 SCC 624] , this aspect has been articulated in the following manner: (SCC pp. 628-29, paras 9-12) "9. The State undoubtedly enjoys greater latitude in the matter of a taxing statute. It may impose a tax on a class of people, whereas it may not do so in respect of the other class.
10. A taxing statute, however, as is well known, is not beyond the pale of challenge under Article 14 of the Constitution of India.
11. In Chhotabhai Jethabhai Patel & Co. v. Union of India [AIR 1962 SC 1006], it was stated: (AIR p. 1021, para 37) "37. But it does not follow that every other article of Part III is inapplicable to tax laws. Leaving aside Article 31(2) that the provisions of a tax law within legislative competence could be impugned as offending Article 14 is exemplified by such decisions of this Court as Suraj Mall Mohta & Co. v. A.V. Visvanatha Sastri [AIR 1954 SC 545 : (1955) 1 SCR 448] and Shree Meenakshi Mills Ltd. v. A.V. Visvanatha Sastri [AIR 1955 SC 13 : (1955) 1 SCR 787] . In K.T. Moopil Nair v. State of Kerala [AIR 1961 SC 552] the Kerala Land Tax Act was struck down as unconstitutional as violating the freedom guaranteed by Article 14. It also goes without saying that if the imposition of the tax was discriminatory as contrary to Article 15, the levy would be invalid."
12. A taxing statute, however, enjoys a greater latitude. An inference in regard to contravention of Article 14 would, however, ordinarily be drawn if it seeks to impose on the same class of persons or occupations similarly situated or an instance of taxation which leads to inequality. The taxing event under the Andhra Pradesh State Entertainment Tax Act is on the entertainment of a person. Rate of entertainment tax is determined on the basis of the amount collected from the visitor of a cinema theatre in terms of the entry fee charged from a viewer by the owner thereof."
13. It is, thus, beyond any pale of doubt that the justiciability of particular notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough. Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification.
14. What follows from the above is that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that, that differential must have a rational relation to the object sought to be achieved by the statute in question. If the Government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory. In Sube Singh v. State of Haryana[(2001) 7 SCC 545] , this aspect is highlighted by the Court in the following manner: (SCC p. 548, para 10) "10. In the counter and the note of submission filed on behalf of the appellants it is averred, inter alia, that the Land Acquisition Collector on considering the objections filed by the appellants had recommended to the State Government for exclusion of the properties of Appellants 1 and 3 to 6 and the State Government had not accepted such recommendations only on the ground that the constructions made by the appellants were of ,,B‟ or ,,C‟ class and could not be easily amalgamated into the developed colony which was proposed to be built. There is no averment in the pleadings of the respondents stating the basis of classification of structures as ,,A‟, ,,B‟ and ,,C‟ class, nor is it stated how the amalgamation of all ,,A‟ class structures was feasible and possible while those of ,,B‟ and ,,C‟ class structures was not possible. It is not the case of the State Government and also not argued before us that there is no policy decision of the Government for excluding the lands having structures thereon from acquisition under the Act. Indeed, as noted earlier, in these cases the State Government has accepted the request of some landowners for exclusion of their properties on this very ground. It remains to be seen whether the purported classification of existing structures into ,,A‟, ,,B‟ and ,,C‟ class is a reasonable classification having an intelligible differentia and a rational basis germane to the purpose. If the State Government fails to support its action on the touchstone of the above principle, then this decision has to be held as arbitrary and discriminatory. It is relevant to note here that the acquisition of the lands is for the purpose of planned development of the area which includes both residential and commercial purposes. That being the purpose of acquisition, it is difficult to accept the case of the State Government that certain types of structures which according to its own classification are of ,,A‟ class can be allowed to remain while other structures situated in close vicinity and being used for same purposes (residential or commercial) should be demolished. At the cost of repetition, it may be stated here that no material was placed before us to show the basis of classification of the existing structures on the lands proposed to be acquired. This assumes importance in view of the specific contention raised on behalf of the appellants that they have pucca structures with RC roofing, mosaic flooring, etc. No attempt was also made from the side of the State Government to place any architectural plan of different types of structures proposed to be constructed on the land notified for acquisition in support of its contention that the structures which exist on the lands of the appellants could not be amalgamated into the plan."
39. Coming to the case on hand, we have already taken note of the fact that the objective of NCAP, 2016 is to have a uniform and proper development of all airports across India. The fact that the policy areas that are covered by NCAP, 2016 included "airports developed by State Government, private sector or in PPP mode" vide Clause 3(i) of the Policy itself shows that NCAP is aimed at promoting the entire civil aviation sector including existing airports being operated under the PPP mode. It appears to us that these are all the modes for development of aviation sector in India and there is no justifiable reason to treat the "existing PPP airports" as a separate class for the purpose of extending the benefit of the liberalization of the land use under NCAP, 2016.
50. For the aforesaid reason, we are of the view that the classification that has been drawn between the "existing PPP Airports" and "future PPP Airports" is in clear violation of Article 14 of the Constitution of India. While passing the order dated 10.10.2016, it appears to us that the Respondent No.1 failed to take into consideration the effect of clause 2.2.3 of OMDA and more particularly the fact that the power under Section 12(A)(1) of AAI Act has to be exercised in the interest of better management of airports and in the public interest. Liberalizing the end use of the airport land and unlocking the potential of the same is undoubtedly to advance the public interest and for better management of the airport. The Respondent No.1 had apparently failed to notice that denial of the benefit of liberalization of the restrictions on the use of land allocated for commercial use of airports to the "existing PPP airports" would manifestly be against public interest. Such exclusion of "existing PPP airports" from the benefit of liberalization of land use therefore apparently suffers from the vice of arbitrariness.
51. It is no doubt true that the Courts are normally slow in interfering with a policy decision. However, the law is well settled that even a policy has to be struck down if it is found to be violative of the principles of equality enshrined in the Constitution of India. In Rashbehari Panda vs. State of Orissa; (1969) 1 SCC 414, it was explained: "17. Validity of the schemes adopted by the Government of Orissa for sale of Kendu leaves must be adjudged in the light of Article 19(1)(g) and Article 14. Instead of inviting tenders the Government offered to certain old contractors the option to purchase Kendu leaves for the year 1968 on terms mentioned therein. The reason suggested by the Government that these offers were made because the purchasers had carried out their obligations in the previous year to the satisfaction of the Government is not of any significance. From the affidavit filed by the State Government it appears that the price fetched at public auctions before and after January 1968, were much higher than the prices at which Kendu leaves were offered to the old contractors. The Government realised that the scheme of offering to enter into contracts with the old licensees and to renew their terms was open to grave objection, since it sought arbitrarily to exclude many persons interested in the trade. The Government then decided to invite offers for advance purchases of Kendu leaves but restricted the invitation to those individuals who had carried out the contracts in the previous year without default and to the satisfaction of the Government. By the new scheme instead of the Government making an offer, the existing contractors were given the exclusive right to make offers to purchase Kendu leaves. But insofar as the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year the scheme was open to the same objection. The right to make offers being open to a limited class of persons it effectively shut out all other persons carrying on trade in Kendu leaves and also new entrants into that business. It was ex facie discriminatory, and imposed unreasonable restrictions upon the right of persons other than existing contractors to carry on business. In our view, both the schemes evolved by the Government were violative of the fundamental right of the petitioners under Article 19(1)(g) and Article 14 because the schemes gave rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatory treatment.
18. The classification based on the circumstance that certain existing contractors had carried out their obligations in the previous year regularly and to the satisfaction of the Government is not based on any real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved i.e. effective execution of the monopoly in the public interest. Exclusion of all persons interested in the trade, who were not in the previous year licensees is ex facie arbitrary, it had no direct relation to the object of preventing exploitation of pluckers and growers of Kendu leaves, nor had it any just or reasonable relation to the securing of the full benefit from the trade to the State."
55. In the present case, we found that clause 12(d) of NCAP, 2016 to the extent of excluding the "existing PPP airports" from the benefit of the liberalized use of airport land is arbitrary and in violation of Article 14 of the Constitution of India. In the light of the settled legal position noticed above, we are of the view that the contention of the Respondents that the judicial review of the impugned policy is impermissible under law cannot be accepted."
13. In the light of the said, it is argued that the treatment extended to the petitioner who is posted at Lucknow is discriminatory viz-a-viz the similar personnel posted at Guwahati, Thiruvananthapuram and Jaipur.
14. Learned counsel for the respondent on the other hand justifies the action as well as the policy decision dated 12.3.2021 mainly on the ground that the said clarification was necessitated as there was some delay in handing over the management of the Airports at the two said places; he places reliance on Annexure - 6, the letter dated 20.8.2020, wherein it makes a distinction that in respect of Guwahat, Thiruvananthapuram and Jaipur Airports, it was decided that RHQ is allowed to transfer non-executives posted at these three airports within their regions in a limited manner.
15. He argues that the first distinction in respect of two set of Airports was based in intelligible differentia that the first set of Airports at Guwahati, Thiruvananthapuram and Jaipur were already handed over to the Concessionaire, however, in respect of the other Airports, there was a delay in handing over the Airports to the Concessionaire on account of COVID-19 conditions. He, thus, argues that no discrimination has been meted out to the petitioner as argued by him, as such, the petition is liable to be dismissed.
16. Considering the submissions made at the Bar, the fact that emerges that in respect of six Airports, the agreement was entered into in between the AAI and the private players for handing over the running of the Airports on PPP mode. The clarification dated 12.3.2021 is a step taken in clarifying the import of the agreement entered into in between the parties taking into consideration the operational difficulties (handing over of the charge being one of them). This Court is to adjudicate on the issue with regard to violation of Article 14 of the Constitution of India as pleaded by the petitioner.
17. The law with regard to judicial review of a policy decision on the grounds of Article 14 of the Constitution of India is fairly well settled and for passing the said test of permissible classification it is necessary that the classification must be founded on an intelligible differentia and that differentia must have rational nexus with the object sought to be achieved.
18. In the present case, the petitioner is claiming parity with regard to the employees who were posted at Guwahati, Thiruvananthapuram and Jaipur; the said claim of the petitioner is ill-founded as there is a differentia in between the employees who are posted at Guwahati, Thiruvananthapuram and Jaipur and the employees who are posted at Lucknow and are governed by the clarification dated 12.3.2021. The differentia being that the Airport at Lucknow could not be handed over to the concessionaire in terms of the agreement owning to which the clarification dated 12.3.2021 was necessitated. Even otherwise, the claim of the petitioner merits rejection as the differentiation created by the clarification dated 12.3.2021 was done with an object sought to be achieved, that being, the conclusion of the agreement as arrived at in between the AAI and the concessionaire, this Court cannot lose sight of the fact that there is no challenge to the policy decision of handing over the Airports to the private players and the challenge is confined only to the status of the employees at the two set of Airports which has arisen on account of the situation which could not be anticipated when the agreements were executed. Thus, the contention of the petitioner with regard to violation of Article 14 of the Constitution of India merits rejection on both grounds.
19. The writ petition is accordingly dismissed holding that the clarification dated 12.3.2021 does not in any way violates the rights of the petitioner enshrined under Article 14 of the Constitution of India.
No order as to costs.
Order Date :- 6.1.2023 [Pankaj Bhatia, J.]
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