A.R. Dilipkumar v. Airports Authority of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937** ## **WP(C).No. 30250 of 2003 (A)** **----------------------------** ## **PETITIONER:** **-------------------** **A.R.DILIPKUMAR, S/O. P.K. RAMAKRISHNAN NAIR, MANAGER (AIR TRAFFIC CONTROL), AIRPORTS AUTHORITY OF INDIA 'CHAITRAM CHEMPAKA HOUSING COLONY, B-C ROAD, BEYPORE, CALICUT 15** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.S.SUBHASH CHAND SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN** ## **RESPONDENTS:** - **----------------------------** **1. THE MEMBER (P&A), AIRPORTS AUTHORITY OF INDIA, RAJIV GANDHI BHAVAN, SAFDURJUNG AIR PORT, NEW DELHI 110 003.** **2. THE CHAIRMAN, AIRPORTS AUTHORITY OF INDIA, RAJIV GANDHI BHAVAN, SAFDURJUNG AIR PORT, NEW DELHI 110 003.** **3. THE AIRPORTS DIRECTOR, AIRPORTS AUTHORITY OF INDIA, CALICUT AIR PORT, CALICUT AIR PORT P.O., CALICUT.** **4. JOSE THOMAS, MANAGER (ATC), THIRUVANANTHAPURAM AIR PORT, THIRUVANANTHAPURAM** **5. ADDITIONAL GENERAL MANAGER (PERS.) AIRPORTS AUTHORITY OF INDIA, RAJIV GANDHI BHAVAN, SAFDURJUNG AIR PORT, NEW DELHI 110 003.** **R1TOR3 BY ADV. SRI.N.N.SUGUNAPALAN,S.C.,AIRPORTS AUTHORITY BY ADV. SRI. S. SUJIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 30250 of 2003 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: RELEVANT EXTRACT OF CHAPTER 10 OF THE REPORT OF THE EXPERTS COMMITTEE (AIRPORTS AUTHORITY OF INDIA) PART i, FEBRUARY 1997 (EXCLUDING THE ANNEXURES)** - **P2: TRUE COPY OF THE REPRESENTATION DATED 27.11.2000 SUBMITTED BY THE PETITONER BEFORE THE 2ND RESPONDENT** - **P3: TRUE COPY OF THE REPRESENTATION DATED 16.9.2001 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **P4: TRUE COPY OF THE COMMUNICATION BEARING NO.AA1/CL/AV/ADMN/2001 DATED 28.9.2001 OF THE 3RD RESPONDENT** - **P5: TRUE COPY OF THE MEMORANDUM DATED 5.11.2001 SERVED UPON THE PETITIONER** - **P6: TRUE COPY OF THE APPEAL DATED 22.3.2002 (EXCLUDING THE ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** - **P7: TRUE COPY OF THE JUDGMENT DATED 10.7.2002 PASSED BY THIS HON'BLE COURT IN OP NO.18990/2002** - **P8: TRUE COPY OF THE OFFICE MEMORANDUM DATED 21.8.2002 ISSUED TO THE PETITIONER** - **P9: TRUE COPY OF THE ORDER F.NO.23021/4/99/EA DATED 2.6.2003 ISSUED BY THE 5TH RESPONDENT** - **P10: TRUE COPY OF THE PROCEEDINGS DATED 22.8.2005 ISSUED BY THE RESPONDENTS GRANTING PROMOTION TO THE GRADE OF ASSISTANT MANAGER (ATC) WITHOUT INSISTING FOR THE REQUIREMENT OF PASS IN AERODROME CENTRAL COURSE FROM CATC** - **P11: TRUE COPY OF THE PROCEEDINGS DATED 29.9.2005 ISSUED BY THE RESPONDENTS GRANTING PROMOTION TO THE GRADE OF ASSISTANT MANAGER (ATC) WITHOUT INSISTING FOR THE REQUIREMENT OF PASS IN AERODROME CENTRAL COURSE FROM CATC** - **P12: TRUE COPY OF THE RELEVANT PAGES FROM THE REPORT BY EXPERT COMMITTEE** - **P13: TRUE COPY OF LETTER FROM REGIONAL EXECUTIVE DIRECTOR, SOUTHERN REGION** - **P14: TRUE COPY OF ORDER** - **P15: TRUE COPY OF DRAFT SENIORITY LIST OF ASST. G.M. & SR. MANAGER (ATC)** **...2** **WP(C).No. 30250 of 2003 (A)** **-2-** - **P16: TRUE COPY OF COURSE COMPLETION CERTIFICATE** - **P17: TRUE COPY OF CERTIFICATE OF COMMENDATION** - **P18: TRUE COPY OF OLD SENIORITY LIST OF AERODROME ASSISTANTS AND ASSISTANT MANAGERS** - **P18(A) TRUE COPY OF NEW SENIORITY LIST OF AERODROME ASSISTANTS AND ASSISTANT MANAGERS** ## **RESPONDENT'S EXHIBITS** ## **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** ------------------------------------------ W.P.(C) No. 30250 of 2003 (A) -----------------------------------------Dated this the 25[th] day of February, 2016 ## **J U D G M E N T** The petitioner claims seniority over the 4[th] respondent and, as an alternative measure, claims for a re-consideration as per the directions in Ext.P8 judgment. 2. The contention raised with respect to Ext.P8 is that, therein there was a specific direction to the 1[st] respondent, the Member (P&A), Airports Authority of India to consider an appeal filed by the petitioner. The consideration has been made and orders passed at Ext.P9, which is seen to be one by the 5[th] respondent and not the 1[st] respondent. The petitioner contends that there is an infirmity insofar as the direction in Ext.P8 has not been complied with in its letter and ## **W.P.(C) No.30250/2003** **-2-** spirit. It is to be noticed that the directions were issued in the year 2002 and the writ petition also was filed in the year 2003. In the context of consideration of the writ petition at this distance of time, it is only proper that this Court consider the merits of the contentions raised by the petitioner without relegating the petitioner to the appellate remedy, after about 14 years. 3. This Court heard the learned Counsel appearing for the petitioner and respondents 1 to 3 on merits. Though the 4[th] respondent was issued notice, the same has not been returned. The petitioner could have very well moved a petition for declaration of service. In any event, the same is not required in the nature of the orders to be passed in the writ petition. 4. The petitioner was appointed as an Aerodrome Assistant in the National Airports Authority (NAA) on 7.12.1987 and then promoted as a Senior ## **W.P.(C) No.30250/2003** **-3-** Superintendent (Air Traffic Control). The petitioner's appointment was prior to that of the 4[th] respondent, who was appointed as an Aerodrome Assistant, again under the NAA on 8.1.1988, and then re-designated as Senior Superintendent (Air Traffic Control), as was the case with the petitioner also. The seniority list in the cadre of Senior Superintendent (Air Traffic Control) is produced at Ext.P18. The petitioner is seen at Sl. No.209 and the 4[th] respondent at Sl. No.210. Admittedly, the 4[th] respondent was junior to the petitioner. 5. The further promotion avenue was to the post of Assistant Manager (Air Traffic Control). For consideration to the post, there was a requirement under the NAA that a Senior Superintendent complete a course in Aerodrome Control, conducted by the Civil Aviation Training College at Allahabad. The 4[th] ## **W.P.(C) No.30250/2003** **-4-** respondent having completed the training, was promoted as Assistant Manager (Air Traffic Control) on 13.8.1994. Admittedly, the petitioner was directed to attend the course twice in the year 1994, but he could not attend the same for personal reasons. The petitioner attended the course in the year 1995 and he was promoted as Assistant Manger (Air Traffic Control) on 1.5.1996. 6. In between the dates on which the 4[th] respondent and the petitioner were promoted there occurred some structural changes in the organisation. Earlier, the Director General of Civil Aviation (for brevity 'DGCA') was handling the Aerodromes in the country. Subsequently, National Airports Authority and International Airport Authority of India (IAAI) were formed from the employees of the DGCA. On 1.4.1995, both these entities were amalgamated to form the ## **W.P.(C) No.30250/2003** **-5-** Airports' Authority of India, under which control the airports inside the country have been continuing from 1995 onwards. 7. The 4[th] respondent was promoted prior to the formation of Airports Authority of India and the petitioner was promoted after such formation. The ensuing organisational changes are specifically pointed out by the learned Counsel for the petitioner, to place reliance on the Commission report with respect to the service conditions of the personnel in the erstwhile Airports Authorities and the DGCA to contend that the petitioner would be entitled to seniority over the 4[th] respondent. Specific reliance is placed on Ext.P12, which is an extract of Ext.P1, the entire report of the Commission. Reliance is placed on paragraphs 41 and 42, which are extracted hereunder: ## **W.P.(C) No.30250/2003** **-6-** ## “41. DETAILS FURNISHED BY THE ERSTWHILE NAA IN RESPECT OF JOB DESCRIPTIONS ARE NOT COMPREHENSIVE The committee notes that the details in respect of job description furnished by erstwhile NAA are sketchy. In fact, the erstwhile NAA was not able to formulate its own rules and staff regulations and had continued to rely on Central Government rules. It is for this reason that detailed job descriptions for each level of post for the executives have not been furnished by the erstwhile NAA. However, from the discussions held with the officials of erstwhile NAA, the Experts Committee has gathered that the job responsibilities in the erstwhile NAA did not materially differ from the job responsibilities of the corresponding cadre of executives in the IAD. ## 42. RECRUITMENT AND PROMOTION METHODS The sources of recruitment and methods of promotion could be another factor for determining equivalences of posts. As already stated, while erstwhile IAAI had formulated its own staff regulations and laid-down specific policies for direct recruitment and promotion of non-executives and executives on the basis of **W.P.(C) No.30250/2003** **-7-** the recommendations of the Departmental Promotion Committees, in the erstwhile NAA on the other hand, where the bulk of the employees were formerly in the service of the Directorate General of Civil Aviation and had been transferred en bloc to erstwhile NAA as on 01.06.1986 and absorbed w.e.f. 02.10.1989 in the service of erstwhile NAA did not frame its own rules and regulations governing recruitment and promotions. In fact, the erstwhile NAA, did not make large scale recruitment in its cadres after 01.06.1986 as the ex-DGCA employees after their absorption w.e.f. 02.10.1989 continued to serve the erstwhile NAA. The Experts Committee, therefore, infers that the erstwhile NAA made no serious effort to formulate its own rules and regulations in respect of conditions of service of its employee and it continued to depend upon the Govt. rules and regulations till the erstwhile authority got merged in AAI on 01.04.1995.” 8. A reading of the said paragraphs would indicate that prior to the formation of Airports' Authority of India, the erstwhile NAA did not have any ## **W.P.(C) No.30250/2003** **-8-** regulations for its employees and were following the Government guidelines. As per the Government guidelines, applicable to the DGCA, the contention of the petitioner is that the seniority had to be protected and the petitioner should be placed above the 4[th] respondent. The further contention based on Ext.P15 is that in the case of two other officers, an admitted senior who had not completed the course was given adhoc promotion on the condition that he would complete the course within a period of three years and his seniority was retained in the promoted post. 9. The essential difference from Ext.P15 is that the petitioner was not granted an adhoc promotion, nor did the petitioner seek for the same. The petitioner's contention is that the completion of course was not a rule regulating the promotion, but was only an internal communication, on which alone the promotion of the 4[th] ## **W.P.(C) No.30250/2003** **-9-** respondent was made. It is to be noticed that by the writ petition of 2003, what the petitioner seeks to challenge is the promotions made in the year 1994 of the 4[th] respondent. The petitioner had been before this Court earlier also, as is indicated at Exts. P7 and P8, but that too in the year 2002. When the admitted junior of the petitioner was promoted in the year 1994, the petitioner did not choose to challenge the said order, nor did he seek an adhoc promotion. The admitted case of the petitioner is that twice when he was offered to be sent for the course he could not go for personal reasons. Eventually, he completed the course and was also promoted on 1.5.1996. The course completion was in the year 1995 and the delay in his promotion occurred only by reason of the organisational changes of the employer. The petitioner obviously slept over his rights. ## **W.P.(C) No.30250/2003** **-10-** 10. In this context, it is also to be noticed that the reservation of seniority can be only in the cadre in which both were continued and not in the promoted post. The 4[th] respondent having been promoted as Assistant Manger (Air Traffic Control) over the petitioner, the petitioner cannot seek for interference to the seniority, in the higher cadre after a considerable distance of time. The principles of siting back over a right would, in fact, work against such a claim having been considered by this Court, as has been held by the Hon'ble Supreme Court in **Shiba Shankar Mahopatra v. State of Orissa - 2010 (12) SCC 471** . 11. A reading of the seniority list produced in the post of Assistant Manger (Air Traffic Control) would also indicate that those above the petitioner were all promoted prior to the petitioner's promotion and interference caused at this stage would also involve the ## **W.P.(C) No.30250/2003** **-11-** revision of seniority of persons in item nos. 13 to 55 in Ext.P18. None of these persons have also been impleaded herein. Apposite would be the reference to paragraph 26 of **State of Bihar v. Kameshwar Prasad Singh - (2000) 9 SCC 94** , which is extracted herein: “26. It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioner nor did the Court feel it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the super session of 168 Inspectors and 407 Deputy SPs. The writ petition filed by Brij Bihari Prasad Singh being totally misconceived, devoid of any legal force and **-12-** ## **W.P.(C) No.30250/2003** prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment.” For all the above reasons, the writ petition is found to be without merit and the same stands dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 26/2/16