JUDGMENT [ENTITY], J.
1. [SECTION] is invoked to challenge the petitioners supersession and the entire process leading to the selection of respondents 2 to 18 to the post of Deputy Operations Managers (DOMs).
2. Respondent No. 1 hereinafter referred to as the 'Airlines' or the 'Corporation' is a Corporation established under [SECTION] of the [ACT]. [SECTION] of the Act permits the Airlines to frame regulations not inconsistent with the Act or the Rules framed thereunder vide [SECTION], on The terms and conditions of service of officers and other employees of the Corporation etc. etc,".
3. A limitation placed on this power is that such regulations have the prior approval of the Central Government. Framed under [SECTION] and with the required previous approval are the Service Regulations for Flying Crew (SRs). These confer a wide latitude upon the Corporation. [SECTION] leaves it to the Airlines to determine "from time to time" the number and designation of posts in various categories. As if this were not enough, [SECTION] leaves it to the Corporation to Jay down such conditions as it may determine from time to time in the matter of appointments to various posts. Such appointments may be made by 'promotion' or 'direct recruitment' or 'deputation'. The cake is taken by [SECTION] which reserves to the Airlines the right To modify, cancel or amend any or all regulations or orders issued to give effect thereto from any dale which they may deem fit.
4. Acting under the regulations, the Airlines have framed Recruitment & Promotion Rules in 1964 which for the sake of brevity will hereinafter be referred to as the "1964 Rules". The combined effect of [SECTION] of these rules is that: Promotion is based on the criteria of seniority-cum-suit-ability, except in Selection Grade posts, where the basis is, "rigorous selection on merit". The heirarchy in the flying crew once had a post designated as "Chief Pilot". Appointment to this post was by way of promotion. Later on this post was abolished and instead came that of DOMs, In a meeting of the Corporation's Board held on July 30, 1970, it was resolved that the DOM being in the upper managerial cadre, appointment thereto be by "promotion or direct recruitment at the discretion of the management". "Direct recruitment" was explained as a process of selection on merits from within and "promotion" as appointment to the next higher grade by seniority, subject to there being no adverse remarks in the annual confidential reports of the incumbent. The Corporation is divided into five regions with bases at Delhi, Bombay, Calcutta, Madras and Hyderabad. DOMs are under the Operations Manager of the region and act as his deputy when required. Their duties and responsibilities may be generalised, as seeing to it that the pilots under them are in tip-top shape, that they are properly and frequently checked and that their direct superiors are regularly and fully briefed about the personnel and flight problems of the region.
5. Selections to the post of DOMs have been made on four occasions, the last two being in the years 1980 and 1983. Broadly, all pilots with a certain qualifying service have to be certified as fit for promotion to be eligible. After this, they appear before an Interview Board. This board examines the candidates the total marks being 100, 30% of marks are made up from a scrutiny of the Annual Performance Appraisals (APAs) of two preceding years and the balance of 70% gathered from the candidate's performance at the viva-voce designed to assess his managerial ability and professional ability the marks reserved being, 40% and 30% respectively. Candidates securing 60%, and above are deemed meritorious and placed on a panel in order of seniority. These broad heads and manner of marking are specified in guidelines. Petitioners were called for the 1980 and 1983 interviews. They were passed over on both the occasions and there is no denying that they were senior to respondents 2 to 18 in the zone of consideration. The list drawn up in 1983 contained 19 names inclusive of respondents 2 to 18 and they were all appointed as DOMs between August 1983 to June 1984.
6. Petitioners came to Court impugning the whole 1983 process in the last week of August 1984. They contend that the sole basis for making appointments to the post of DOM was by promotion, which meant seniority subject to suitability. The DOM was the old post of Chief Pilot under a new label. The Airlines acted illegally in treating it as a selection post and evolving the interview method to select persons therefor. The changes allegedly made in 1970 were not 'regulations', and, in any case did not have the prior approval of the Central Government. This apart, the interview method as also the subjects and allocation of marks therein was riddled by ambiguity and this gave rise to favouritism and arbitrariness. They had secured the preliminary certificate of fitness for promotion and that together with their APAs, was enough to secure them a place in the panel. Instead, their juniors not even full-fledged Commanders, had superseded them. Countering the pleas of delay, laches and suppression of vital facts levelled in the return of the Airlines, petitioners denied the same. Though juniors to them had been selected in the 1980 test, they were all Commanders. Petitioners had not then attained that distinction and therefore believed that to be a deficiency responsible for their being passed over. After becoming cognizant of their failure to secure qualifying marks in the 1983 test, petitioners had protested with their immediate superiors. The latter had promised to take up the problem with the higher-ups at Delhi. No blame could be ascribed to them for having waited a reasonable time before lodging the petition. Petitioners sought writs to quash the promotion of respondents 2 to 18 and to the Airlines to promote them as from September 1983.
7. The Corporation and some of the remaining respondents take exception to the petition on various grounds. As a preliminary, they point out that petitioners have with full awareness participated in the 1980 and 1983 tests. Having taken their chance, they cannot now cavil at the method formulated for selecting persons fit to be DOMs. The petition makes no reference to the petitioners' participation in the 1980 test. This suppression is in bad faith entailing the penalty of an in limine dismissal of the petition. The delay in the filing of the petition had not been properly explained. It could not be overlooked, for to do otherwise would be to prejudice blameless people. On merits the 1964 rules were 'conditions' as contemplated by regulation No. 8. They could and had been changed in 1970 and also later. The guidelines impugned were reasonable and fully legal as framed in exercise of the power conferred by regulation Nos. 7 and 8. DOMs was a position of importance and public interest required that the best possible material man it. APAs could not suffice for this purpose. Nor could the certificate of eligibility. That certificate enabled consideration of the candidate's potential. The subjects chosen for the viva-voce test and the marks allotted therefor were appropriate to the purpose viz. selection of the best talent appraised on a judicious admixture of experience and knowledge. Petitioners had been duly appraised and found wanting. The petition had been launched with the object of disrupting the smooth functioning of the Corporation.
8. [ENTITY] J. after the petition's admission declined interim relief, but made further promotions subject to the result of the petition. Dissatisfied, the petitioners went to a Division Bench by [CASE NUMBER]. On February 3. 1986, the petition again came up before [ENTITY] J. The learned Judge on a first-sight view, opined that the post of DOM was a promotional post and that steps taken to make it selectional, were not in conformity with the Act. Counsel representing the Airlines before him sought and got an adjournment to enable it to deliberate over the matter. No further change has been made in the regulations or the 1964 and other rules framed thereunder.
9. The first issue requiring resolution depends on a proper categorisation of the 1964 Rules and the changes made in service conditions, subsequent thereto. To revert to the SRs, a quick glance suffices to show that the Corporation like King [ENTITY], does not really believe in binding itself to any course of conduct. SRs 4, 7, and 8 confer a wide power upon the Corporation to do what it wants. Petitioners are in the unenviable position of wanting to appropriate the 1964 Rules, but not the later changes therein, though both flow from SR Nos. 4, 7 and 8. There is nothing in the 1964 Rules to indicate that they are regulations brought into force after securing the prior approval of the Central Government. The changes introduced in 1970 and later, are challenged as not published and shrouded in secrecy. Publication is not a condition precedent to the efficacy of the power reposed in the Corporation. Nor is the legality of the "conditions" and "orders" dependant en openness in the process of their formulation. The result is that no exception can be taken to the changes effected in 1970 in the 1964 Rules. The changes were made in exercise of the power given by SR Nos. 7 and 8 and 'conditions' of appointments to various posts could be 'determined from time to time'. These changes did not require the prior approval of the Central Government as they were not "regulations". Ms. [ENTITY] sought sustenance from the observations of [ENTITY] J. in his order dated February 3. 1986. As the learned Judge has made clear in the order itself, his opinion was a prima facie view. Neither that nor the concession (if it can be so termed) by counsel then representing the Airlines, is of any help to arrive at a considered decision. The stark reality is that SRs which have the prior approval of the Central Government were the source of the 1964 Rules and also the amendments carried out therein. Neither had nor required, the prior approval of the said Government.
In view of the foregoing discussion, the Corporation cannot be faulted for declaring the DOM a selectional post and laying down such conditions as it did for making appointments to that post. The change of nomenclature as also the mode of filling up vacancies in the post cannot be said to be unreasonable. For the present 1 am not on the validity of the interviews and the allocation of marks therein. That will be considered separately. Having regard to the duties and responsibilities attached to DOMs, no possible objection can be raised against its being looked upon as a selection post, and, selection thereto being left to the discretion of the Corporation, in that it may fill up the post by 'direct recruitment' or 'promotion'. True, the two expressions imply different things. Ms. [ENTITY] relies on the Memorandum of Settlement dated February 21, 1974 and an explanatory letter of the same day addressed by the Airlines to the Pilots Union. The letter makes it clear (hat promotion of pilots from one grade to another would be on the basis of suitability-cum-seniority and that the emphasis was on seniority being passed over, only where the aspirant was found unsuitable. Now a DOM before the 1974 settlement was a post in the upper managerial cadre, and, a selection post. It was not a grade in the normal ascent of pilots. Therefore this settlement could not govern appointments to the post of DOMs. Petitioners take exception to the zone of consideration lumping all pilots whatever be their competance vide air-crafts flown or the position occupied therein. It was submitted that the heirarchy ensured expertise and those with a larger measure thereof, could not be passed over to benefit the less equipped. What knowledge and experience furnish the best background for selecting personnel for a higher post, is a realm best left to the knowledgeable. Not that the Courts are precluded from going into this sphere. But the territory is foreign and unless it be shown that the choice made by the employer is demonstrably erroneous, Courts will not go into the correctness of the matter. Competence in the cockpit and the handling of the gadgetry there, is not wholly ignored. That the heirarchy is not to be followed in the choice of DOMs Is a decision of the Airlines, which should be deemed to know its business. It is not there-lore possible to accept the thesis that a senior Commander is per se superior to the lesser breed amongst the pilots and that ability to fly Airbuses is an automatic advantage over those not so able.
10. This brings me to the guidelines for preparing the panel of DOMs. Once an aspirant secures the fitness certificate, he is subjected to a 3 fold test the total marks being fixed at 100. 30 marks are awarded after a scrutiny of the preceding 2 years APAs. A sample of the A PA is at Exh. F to the petition. It is anything but a jumble of repetitions and inanities so dear to civil services the world over. The columns to be filled in include total hours flown and break-up of capacity in which flying was done, punishments and warnings awarded, mishaps with nature thereof and findings of DGCA, performance en checks, record for regularity, qualities inclusive of professional knowledge, power of expression, performance while on training and potential. According to petitioners this appraisal is so thorough that it is unnecessary to subject the candidates to the farce of an interview aimed at probing their "'professional" and "managerial" ability. That interview carries 70% and the minimum to make the panel, is 60%. Let it be borne in mind that the APAs taken into the reckoning, cover a 2 years period preceding the selection. The Airlines explains the distribution of marks thus: APAs reflect the candidate's past and present performance and cannot gauge his aptitude and attitude for higher assignments. APAs are written and reviewed by different people based all over the country. The very diversity makes for an uneven assessment. For a post in the upper managerial cadre it is necessary that the eligibles go through a uniform appraisal by a body of experts. Managerial and professional abilities are distinct and different concepts and these have to be assessed separately and not on the basis of the APAs. Parties rely on almost the same precedents to bolster their differing submissions. Before I turn to these, let it be reiterated that the best is to select a panel for DOMs. That is a managerial cadre which forms a vital link between the flying crew and the upper echelons in the field of operations. The material placed on record indicates that the DOM performs a valuable role. An experienced pilot, he has to have an intimate knowledge of the pilots, the routes, the fleet available in the region and the lay of the runways at landing points. A written test to ascertain the potential of rivals competing for this post is out of question, for a bookworm may in such a case score over the mature but uncommunicative personality. At the sametime, the job requirement and the subjects to be tested in being what they are, is the spread of marks such as to create arbitrariness?
11. In [PRECEDENT] [ENTITY] J. upon a review of material opined that an interview test was valuable to assess a candidate's overall intellectual and personal qualities. What weight be given to an interview test in the overall rating could not be determined by any rule of thumb. It would vary from service to service, depending on the requirements thereof, the minimum qualifications, the age group of the candidates, the composition of the body holding the interviews and a host of other factors. Courts were ill-equipped to re-determine the appropriate method of selection and the relative weight to be attached to the various tests. This however could not preclude judicial review in cases of proven or obvious oblique motive. The view summarized above was reappraised in [PRECEDENT] by a larger Bench and which concluded that there could be posts and appointments where the only proper method of selection could be by a viva voce test. It would follow that there is no inflexible theory governing the subject. That undue weightage being given to the interview test where it is ranged along with other tests, can lead to arbitrariness and worse, is undeniable. But there are certain intellectual and personality traits which can be brought out only by an interview test. The nature of post would be determinative of what the method or methods of testing should be and what weight be given to each such method. Primarily a problem for the employer aided by experts to solve, Courts will intervene, but only, where the weightage given to the viva voce test has occasioned patent arbitrariness or been utilised to promote favourites.
12. A closer look at Exh. H detailing the duties and responsibilities of DOMs is called for. Firstly, he acts as the Head for all pilots within the region. Secondly, he ensures that pilots in his region are trained and qualified according to established procedures. For this purpose he has to implement training procedures as directed by the Director of Operations. Then, he has to arrange check flights for pilots operating in his region. An important part of his responsibilities is to keep the Regional Operations Manager briefed regarding the competence of pilots within his region. Check pilots, train and verify competence of trainees. Their selection is based on recommendations of DOMs. The crew members are to be conversant with emergency equipment and procedure. This awareness has to be ascertained by spot checks to be performed by the DOMs. He has to maintain personal contact with pilots in the region so as to bring about an improvement of flight operations.
13. In the light of the above requirements for the post of a DOM, would it be proper or even excusable to allocate 70% to the viva voce test? The object thereof is to ascertain the examinee's professional and managerial ability. As said earlier the APA is fairly thorough. To counter it, the Airlines points an infirmity, to wit, that it is a regionwise appraisal and therefore uneven. Lest local scrutiny bring about distortions, the aspirants have to be subjected to a uniform test and this is done by the allocation of 70% to the viva lest. The duties of a DOM indicate that he is a pilot with certain additional qualities which entitle him to be their superior. But this superiority is reckoned by experience which comes by length of service. Length of service would certainly by more accurate a denominator for knowing the pilots in the region, their competence, the lay of the routes, the training and procedures to be followed. The duties are such as to require greater weightage being given to performance in the field as appraised by the APAs, rather than the viva-voce test. APAs, it is said, relate to a pilot's performance as a pilot, while a DOM is a higher post. But the area of consideration is limited to pilots. Therefore the professional and managerial ability to be tested will be that of pilotsof course, for a post requiring higher responsibilities. But this is no esoteric niche that can be reached only by the path of an interview. AH said and done, it is the potential of the candidates that has to be seen. By all means an interview is necessary. But to allocate 70% to the performance at this test as against 30% to the APAs, is to enthrone the gift of the gab and ability to field questions, at the cost of maturity as depicted in a two years record of flying work. The Corporation relies on the judgment of the Delhi High Court in [CASE NUMBER]. There, the posts to be filled up were Sr. Landing Hand/Charge Hand. In that case also the marks proportion between APA/Interview, was 30/70 as here. This ratio was sustained as a decision to be left to the Corporation and "not shocking the conscience of the Court". One does not know the duties and responsibilities attached to the posts which had to be filled in. Neither does one know the contents of the APAs. Here, the two aforementioned factors are known. That the APAs suffer from slight distortions is hardly a reason for reducing it to less than one-third in the total evaluation. It is a two year record of persons in fairly close contact with the candidate. As against that, the viva test is of a much shorter duration. The employer has considerable latitude in the formulation of guidelines for appointments to a higher post. But where undue weight is given to a phase in the examination/screening/test, there enters arbitrariness affecting the rights of equality and equal opportunity. The Delhi High Court decision may not be apposite, and, if it be otherwise, I must respectfully disagree.
14. The Airlines attack the petition on the grounds of delay and suppression of vital facts. Taking up the latter ground, it is contended that the petition as originally laid made no reference to the participation of the petitioners in the 1980 screening. This is a fact and it cannot be glossed over by the excuse that the said participation was not relevant or that the true position was not then fully known to the petitioners. Even so, it is not as if the fact concealed was vital. Acquiescence fatal to the petitioners cannot be inferred, for the rights violated are fundamental in character. It will not be possible to grant the same indulgence so far as delay is concerned. The data is too compelling to be overlooked. The interviews were held in April 1983. 19 were selected and these persons including respondents 1 to 18, were appointed between August 1983 to June 1984. Petitioners limped to Court in the last week of August 1984. The excuses trotted out to cover up this delay are patently untrue. It is unthinkable that petitioners who were being passed over for the second time and who knew of the elevation of their juniors, were unsure of what was happening or depended on the good faith of this or that superior of theirs. From February 3, 1986, the Corporation is under a restraint from making promotions. Promotions made between August 31, 1984 and February 3, 1986 were subject to the outcome of the petition. Should those promoted between these dates be disturbed? They cannot be treated on par. While dealing with the duties of DOMs, I have shown that the post requires a mature person and that this maturity comes by experience. Therefore if there be amongst the appointees between the two dates aforementioned persons senior or equal in rank to the petitioners, their appointments will not be disturbed. In so far as the appointees include juniors to petitioners, they will have to be reverted and re-apprised. The re-appraisal will be on a fresh allocation of marks to the viva test vis-a-vis the APAs. It will be for the Airlines to decide what the proportion should be, though it cannot be as high as 70%. In all other respects the process shall be as before and petitioners will be re-appraised according to the new rating. If successful, they will be absorbed in the vacancies created by the reversion of their erstwhile juniors from amongst those selected between the aforementioned dates.
15. Rule made partly absolute in the above terms, with parties being left to bear their own costs.