Delhi High Court
Air India Limited vs N.K. Sethi [Along With Lpa No. 57 Of 2003] on 4 September, 2006
Equivalent citations: 134(2006)DLT147
Author: S. Muralidhar
Bench: Mukul Mudgal, S. Muralidhar
JUDGMENT S. Muralidhar, J.
1. These two appeals are taken up together as common questions are involved.
2. LPA No 940 of 2002 is directed against an order dated 1.5.2002 passed by the learned Single Judge disposing of the Writ Petition(C) 4550 of 2000 filed by the respondent Shri N.K. Sethi and directing the appellant- Air India to consider the case of Shri Sethi for promotion to the post of Assistant Manager, if otherwise eligible, by including the tenure of his past service rendered during the time he was in Mumbai.
3. LPA No 57 of 2003 is directed against the impugned judgment dated 1.5.2002 passed by the learned Single Judge disposing of the Writ Petition (C) 5549 of 2000 filed by the respondent Shri S.K. Sahni whereby the appellant Air India was directed to consider the case of Shri Sahni for promotion to the post of Assistant Manager, if otherwise eligible, by including the tenure of his service rendered as Store Keeper in Mumbai.
3. The issue arising in this case stems from a Note No. 3 in the promotion policy dated 8.5.1996 of the appellant, which reads as under:
Note 3 In the case of those staff who have, in the past, opted for voluntary transfer, the period of service rendered in the grade prior to such voluntary, transfer, will not be counted for reckoning the total service in the clerical cadre for the purposes of eligibility.
As per the said promotion policy dated 8.5.1996, in order to provide avenues for promotion on the completion of a certain number of years in the Clerical and other allied categories, it was stipulated that a Senior Office Assistant and those in a similar grade, would be considered for promotion to the post of Assistant Manager on the completion of a total number of 19 years from the initial entry in the "clerical grade."
Background Facts:
4. In Shri Sethi's case, he joined as a Canteen Assistant on 16.5.1978 in Mumbai and he was subsequently promoted to post of Senior Canteen Assistant. In the letter dated 28.7.1984 accepting his request for transfer, Air India informed Shri Sethi as follows:
On your transfer as Clerk in the Commercial Department at Delhi in the lower pay scale of Rs. 320-700, your Basic Pay will be Rs. 390/- p.m. Further, please note that you will be ranked as Junior most among the clerical categories including probationers in the Northern India Region of the Commercial Department, from the date of your transfer under Manager-Delhi Airport. In other words, you will lose your claim for seniority in the category of Senior Canteen Assistant which you are holding at present in the Personnel Department. Please note that since this is a voluntary transfer, you will not be admissible for any transfer benefits.
5. In reply to the said letter, Shri Sethi conveyed his acceptance in writing on the same date, i.e, 28.7.1984 in the following terms:
Acceptance Form I accept the terms and conditions mentioned in your letter No. BD/EMP/21134 dated 28.7.1984, regarding my transfer as a Clerk in the Commercial Department under Manager Delhi Airport.
Yours faithfully, Sd/-
(N.K. Sethi) St. No. 21134, Sr. Canteen Assistant Canteen Services Divn, Personnel Department, Santa Cruz.
6. Later, Shri Sethi was promoted as Senior Clerk on 1.7.1990, as Office Assistant (Asstt. Officer- Admn) on 1.7.1994 and Officer (Admn.) on 1.7.1998. Taking the view that Shri Sethi entered the clerical grade only on 28.7.1984 upon his transfer to Delhi, Air India did not consider him for time-bond promotion to the post of Assistant Manager as of 2000 since he had not completed 19 years in that grade. Applying Note 3 to the promotion policy, it included the period served by Shri Sethi in Mumbai while completing the 19 years.
7. Aggrieved by this, Shri Sethi filed a Writ Petition (C) No 4550 of 2000 in this Court challenging the constitutional validity of Note No. 3 of the promotion policy and praying for a writ of mandamus to Air India to promote him to the post of Assistant Manager by reckoning the total services rendered by him in Mumbai.
8. In Shri Sahni's case, he was appointed as a Store Keeper in Mumbai on 22.6.1977 and he was confirmed on 1.1.1978. Pursuant to a staff notice dated 17.6.1980 inviting applications from eligible candidates for their transfer on the post of Store Keeper in the Delhi Stores, Shri Sahni applied and by an order dated 3.7.1980 his request was accepted. However, the following stipulation was contained in the said letter dated 3.7.1980:
You will lose your seniority in Mumbai and you will be junior to all the Storekeepers who are already working in Delhi.
9. Thereafter in Delhi, Shri Sahni was promoted as a Senior Store Keeper on 1.1.1986, as Sectional Storekeeper on 1.1.1990, as Store Supervisor on 1.7.1997 and finally as Assistant Manager (Stores) on 1.7.1999. In Shri Sahni's case as well, Note 3 of the promotion policy was invoked and the period of service served by him in Mumbai was excluded for the purpose of considering the eligibility for the time bound promotion in terms of promotion policy dated 8.5.1996. Shri Sahni then filed Writ Petition (C) NO 5549 of 2000 challenging the said Note No. 3 of the promotion policy, as extracted hereinabove, and praying for a writ of mandamus to Air India to promote him to the post of Assistant Manager with effect from 30.8.1996 on which date he had completed 19 years of continuous service after including the service rendered by him in Mumbai.
Judgment of the learned Single Judge
10. The learned Single Judge relied upon the judgments of the Hon'ble Supreme Court in Union of India v. C.N. Ponnappan and Scientific Advisor to Raksha Mantri v. V.V.M. Joshph and held that there was a distinction between seniority and eligibility for promotion. Even where a voluntary transfer was placed as the junior- most in the cadre, the same would not affect the eligibility for promotion and the services rendered before the transfer would have to be counted for determining the eligibility of the persons for promotion. Accordingly, the learned Single Judge issued a writ of mandamus, as noticed hereinabove, in both the cases.
Submissions of Counsel
11. Mr. A.Sharan, learned ASG appearing on behalf of the appellant submitted that the learned Single Judge erred in placing reliance upon the judgment of the Hon'ble Supreme Court in C.N. Ponnappan's case (supra) and V.V.M. Joseph's case (supra) as those cases were distinguishable on their respective facts. In both cases, the question pertained to eligibility for regular promotions whereas the present case related to the grant of time- bound promotion. Moreover, in neither of those cases was there any specific stipulation as contained in Note No. 3 of the promotion policy in the instant case. He further submitted that in Shri Sethi's case, his request for transfer to Delhi was accepted on the express stipulation that his rank would junior most amongst the clerical categories. His case for promotion to the post of Assistant Manager had, therefore, to be considered only in terms of promotion policy dated 8.5.1986 according to which he had completed 19 years of service in the clerical grade only some time in 2003. He further pointed out that in fact Shri Sethi has since been promoted as Assistant Manager with effect from1.7.2005. He submitted that since Shri Sethi was seeking a time-bound promotion to the post of Assistant Manager, he could trace his right to be considered only to the promotion policy dated 8.5.1996, which included Note 3 as well. Significantly, the learned Single Judge had not specifically struck down Note 3 although its validity was challenged in the writ petition.
12. As regards Shri Sahni, it was submitted that the services rendered in the post of Store Keeper at Mumbai could not be counted for the purposes of the time bound promotion since separate seniority lists were maintained region-wise, even in the same cadre. Therefore, a person volunteering for a transfer from one region in the same cadre to another region would have to forego the years of service at the place from where the transfer took place. In this connection, Shri Sharan, the learned ASG drew our attention to the Staff Notice dated 7.9.1981 stipulating the criteria for determination of inter-se seniority in respect of Ground Staff and Flying Crew. Clause (viii) of the said Staff Notice which reads as under:
(viii) In the case of categories of staff whose seniority was maintained unit wise/station wise/department wise prior to June 30, 1974, their inter-se seniority on their transfer at their own request from one promotional unit/station/ department to another promotional unit/station/ department. In the same scale of pay shall be reckoned from the date of their transfer to the latter promotional unit/station/department, as the case may be, except in cases of categories of staff in respect of whom the inter-se seniority is maintained department wise. Subsequent to July 1,1974, such staff, on voluntary transfer to another promotion unit/station/department in same scale of pay, shall be ranked junior to the staff in the said promotion unit/station/department holding the post in the same grade from an earlier date on a substantive basis, irrespective of whether the former staff is confirmed or not, except in cases of categories of staff in respect of whom the inter-se seniority is maintained department wise. In other words, such staff will be regarded as junior to all other staff, including probationers, in the same scale of pay, in the said promotion unit/station/department, subject to the exception mentioned above.
13. In reply, Mr. D.K. Garg, learned Counsel for the respondents in both the appeals, submitted that Note No. 3 of the promotion policy dated 8.5.1996 could not be applied retrospectively with a view to denying the respondents the benefits of the services rendered by them at Mumbai. In other words, the eligibility for promotion would have to be determined with reference to the policy relevant at the time of transfer of the respondents. In this context, Mr. Garg relied upon the staff notice dated 1.9.1981 to contend that there was no such stipulation for foregoing the past services and that this was introduced for the first time in the promotion policy dated 8.5.1996. He further submitted that Note No. 3 is arbitrary and irrational and in this context he relied upon the judgments of the Hon'ble Supreme Court in C.N. Ponnappan (supra) and V.V.M. Joseph (supra). He further submitted that although both the respondents have since been promoted as Assistant Manager, the promotions had to relate back to the date when they became eligible, i.e., the date they completed 19 years of service after including the service rendered by them at Mumbai.
Findings and Conclusions:
14. There is no dispute on the facts either of these cases. As far as Shri Sethi is concerned, it was a case of voluntary transfer from the post of Senior Canteen Assistant in Mumbai to the post in the clerical cadre in Delhi fetching a lower pay scale. Shri Sethi accepted the stipulation that he would lose his claim for seniority in the cadre of Senior Canteen Assistant and that he would be ranked junior most amongst the clerical cadre in the seniority list. The effect of this, in our view, would be that Shri Sethi could count his entry into the clerical cadre only from the date, he jointed in Delhi, i.e., only after 28.7.1984. As far as Shri Sahni is concerned, the transfer order dated 3.7.1980 contained a stipulation that he would be junior most amongst all the Store Keepers working in Delhi. Therefore, Shri Sahni could have counted 19 years' period for the purpose of time-bound promotion as Assistant Manager only from the date he joined at Delhi. In our view, he has rightly been granted promotion as Assistant Manager with effect from 1.7.1999.
15. Shri Sethi and Shri Sahni are both claiming time-bound promotions and not regular promotions. The time-bound promotion scheme was introduced only on 8.5.1996 with a view to meeting the "aspirations of staff for an assured career path consistent with their skills." No such policy existed prior to 8.5.1996. The Staff Notice dated 1.9.1981 does not talk about time-bound promotions at all. Therefore, the reliance placed by the respondents on the said document to contend that there is no such stipulation as contained in Note No. 3 of the promotion policy dated 8.5.1996, is to no avail. The respondents can not seek to avail the benefit of the time-bound promotion under the promotion policy dated 8.5.1996 while at the same time seeking to challenge one part of the said policy, which is the stipulation contained in Note No. 3.
16. In any event, we are of the view that the challenge to the validity of Note 3, on the basis of the two judgments of the Hon'ble Supreme Court, is not well-founded. One of the cases involved the regular promotion from the post of a Lower Division Clerk to that of an Upper Division Clerk. The relevant rules required "eight years' regular service in the grade". The other concerned the regular promotion from the post of Stenographer Grade III to Stenographer Grade II which required "five years of regular service in the post of Stenographer Grade III". Since there was no express stipulation that a person who took a voluntary transfer from one unit to another unit would forego the benefit of his past service for the purpose of promotion, the Hon'ble Supreme Court held that such past service could not be ignored. It was held that the mere fact that upon such transfer the employee is placed at the bottom of the seniority list at the place of transfer could not wipe out his service at the place from where he was transferred. It was observed that:
The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.
17. It requires to be noticed that the judgment in C.N. Ponnappan proceeded on the express wording of the relevant rules. In fact, when the Court's attention was drawn to a subsequent amendment to the rules by which the requirement was of regular service in the grade "in the unit/ office/establishment/aboratory/centre/unit etc. in which they are considered for promotion", the Hon'ble Supreme Court did not examine the effect of such an amendment because it was subsequent to the judgment of the Tribunal which had interpreted the rules that were in force at the relevant time. It would appear that had the amended rule be in force at the relevant time, the order of the Court may have been different. As far as the present case is concerned, Note No. 3 expressly stipulates that the services rendered in the grade prior to the voluntary transfer would not be counted for the purpose of eligibility for the time-bound promotion. Therefore, in our view the judgment in C.N. Ponnappan cannot be applied to the facts of the present case. The decision in V.V.M. Joseph essentially follows the judgment in C.N. Ponnappan. The relevant rules there again only provided for regular service in the grade and there was no stipulation similar to the one in Note No. 3 in the instant case. In these circumstances, we are of the view that the learned Single Judge was in error, in placing reliance upon the aforementioned two judgments of the Hon'ble Supreme Court, to come into the conclusion that the respondents were entitled to time-bound promotions irrespective of Note No. 3 of the promotion policy dated 8.5.1996.
17. The stipulation of foregoing the period of service at the place from where an employee seeks a voluntary transfer has been explained in a recent judgment of the Hon'ble Supreme Court in K.P. Sudhakaran v. State of Kerala (2006) 5 SCC 386 in the following wordsz:
11. In service jurisprudence, the general rule is that if a government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer and will be placed at the bottom below the junior most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employee in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service rules.
18. Viewed in the light of the above decisions, we are unable to hold Note. 3 of the promotion policy dated 8.5.1996 to be either arbitrary or irrational. Note 3 classifies a distinct set of employees who seek voluntary transfer to another unit, either in a different post or to a post having a separate seniority list, and subjects them to a different treatment consistent with known principles of service jurisprudence. This to our mind cannot be held to violate Article 14 or Article 16(1) of the Constitution. Neither of the respondents here had any vested rights to a time-bound promotion at the time they were transferred for the simple reason that no such policy existed at that time. So, it cannot be said that any service condition has been changed to their detriment with retrospective effect.
19. In view of the foregoing reasons, we set aside the impugned judgments dated 1.5.2002 passed by the learned Single Judge in Writ Petition (C) 4550 of 2000 and Writ Petition(C) 5549 of 2000. Accordingly, the above appeals are allowed with no orders as to costs.