IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 6415 of 2008(L) ------------------------- PETITIONER(S): --------------- K.G.BIJU, SR.ASSISTANT (ENGG.ELECT), AIRPORTS AUTHORITY OF INDIA (INTERNATIONAL AIRPORTS DIVISION), TRIVANDRUM INTERNATIONAL AIR PORT, TRIVANDRUM - 695 008. BY ADVS SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: --------------------- 1. AIRPORTS AUTHORITY OF INDIA, (REPRESENTED BY ITS CHAIRMAN), RAJIV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI - 110 003. 2. THE GENERAL MANAGER (ADMN. & PGO), AIRPORTS AUTHORITY OF INDIA, RAJIV GANDHI BHAWAN, SAFDARJUNG AIRPORT, NEW DELHI - 110 003. 3. THE EXECUTIVE DIRECTOR (P & A), AIRPORTS AUTHORITY OF INDIA, NEW ADMN BUILDING, SAFDARJUNG AIRPORT, NEW DELHI - 110 003. 4. THE JOINT GENERAL MANAGER (PERSONNEL) AIRPORTS AUTHORITY OF INDIA, TRIVANDRUM INTERNATIONAL AIRPORT, TRIVANDRUM. BY ADV. SRI.K.L.NARASIMHAN, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.5.2011, THE COURT ON 27/05/2011 DELIVERED THE FOLLOWING: WP(C).No. 6415 of 2008(L) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE CIRCULAR DTD 02.07.01 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, INVITING APPLICATIONS FROM DEPARTMENTAL CANDIDATES TO FILL UP THE POSTS OF JUNIOR ENGINEER (ELECT) EXT.P2. COPY OF THE PROCEEDINGS DTD 14.01.02 WHEREBY WRITTEN TEST TO THE ABOVE POST (RE-DESIGNATED AS SR. SUPDT (ENGG - ELECT) WAS NOTIFIED TO BE HELD ON 02.02.02, INSTRUCTING THE PETITIONER TO APPEAR FOR THE SAME. EXT.P3. COPY OF THE OFFICE ORDER DTD 17.0702 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, APPOINTING THE PETITIONER AS SR. ASST. (ENGG. - ELECT). EXT.P4. COPY OF THE OFFICE ORDER DTD 01.08.02 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, AS TO THE JOINING DUTY BY THE PETITIONER. EXT.P5. COPY OF THE OFFICE ORDER DTD 13.08.01 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, AS TO THE WAGE REVISION AND THE FITMENT FORMULA. EXT.P6. COPY OF THE OFFICE ORDER DTD 26.04.05 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, GIVING APPOINTMENT TO SOME OTHERS AS SR. SUPDT (ENGG - ELECT/ CIVIL.) W.E.F. 22.12.02 AT AMRITSAR AIRPORT. EXT.P7. COPY OF THE REPRESENTATION DTD 26.10.05 PREFERRED BY THE PETITIONER BEFORE THE HIGHER AUTHORITYIES THROUGH PROPER CHANNEL, REQUESTING FOR GRANTING THE DESIGNATION AND PAY SCALE OF SR. SUPDT. (ENGG. ELECT.). EXT.P7(A) DO. DTD. 26.07.06. EXT.P7(B) DO. DTD. 06.12.06. EXT.P7(C). DO. DTD. 11.04.07. EXT.P7 (D) DO. DTD 0. 01.10.07. EXT.P8. COPY OF THE OFFICE NOTE DTD 12.03.07 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, TURNING DOWN THE REQUEST OF THE PETITIONER WP(C).No. 6415 of 2008(L) ------------------------------------ EXT.P9. COPY OF THE OFFICE NOTE DTD 26.03.07 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, REGARDING THE INFORMAITION REQUIRED UNDER THE RTI ACT 2005. EXT.P10. COPY OF THE OFFICE NOTE DID 11.06.03 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, SANCTIONING HARD DUTY ALLOWANCE TO THE PETITIONER. EXT.P11. COPY OF THE OFFICE ORDER DTD. 22.12.04 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, RECTIFYING SIMILAR ANOMALLY IN THE CASE OF ASST. (FS) - JR. ASST. (FS). EXT.P12. TCOPY OF THE NOTIFICAITION ISSUED BY THE AIRPORTS AUTHOIRTY OF INIDA, INVITING APPLICATIONS FOR THE POST OF JR. ENGINEER - ELECT. (RE-DESIGNATED AS SR. SUPDT. (ENGG. ELECT.) SHOWING THE MINIMUM QUALIFICATIONS AS DEGREE IN THE CONCERNED SUBJECT. RESPONDENT'S EXHIBITS : NIL ---------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 6415 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th day of May, 2011. J U D G M E N T The petitioner is an employee of the 1st respondent- Airport Authority of India. Originally, the petitioner entered service as a Fire Assistant. While working so, the 1st respondent issued Ext. P1 circular inviting applications from departmental employees, who have completed 3 years of service as on 31.5.2001 possessing the qualifications prescribed therein, for selection and appointment to the post of Junior Engineer (Elect). The post was later re-designated as Senior Superintendent (Engg.-Elect). The petitioner was served with Ext. P2 memo directing him to appear for a written test for selection to the post of Sr. Supdt. (Engg.-Elect) on 2.2.2002 along with others. The petitioner came out successful in the selection process. But, by Ext. P3, the petitioner was appointed to the post of Senior Assistant (Engg.-Elect), which is in a lower scale of pay than that of the post of Senior Superintendent (Engg.-Elect). The scale of pay of Sr. Supdt. (Engg.-Elect) is Rs. 8000-16340 and that of Sr. Assistant is Rs. 6300-12060. The petitioner joined duty in that post as per the appointment order. Later on, the petitioner came to understand that in other Airports, similarly situated persons were directly appointed as Sr. Superintendent itself. Therefore, the petitioner filed representations for appointment as Sr. Supdt. (Engg-Elect). Those representations were ultimately rejected by Ext. P8 order intimating the petitioner that employees possessing 3 years' Diploma in Engineering are inducted only at the level of Sr. Assistant (Engg.-Civil/Elect). W.P(C) No. 6415 of 2008 -: 2 :- Since in Ext. P5 Wage Revision Order, at paragraph 31.5, NE.6, it has been stipulated that all induction where 3 years diploma in any branch of Engineering, Nursing or Graduate in Commerce, Law, Management with Computer proficiency is the minimum qualification, will be in the scale of pay of Rs. 6300-12060. The petitioner is challenging Ext. P8 order. 2. According to the petitioner, there are no recruitment rules stipulating that persons holding diploma qualifications only would be inducted to the post of Senior Assistant and not Senior Superintendent. The petitioner points out that the entire selection process was for the post of Sr. Superintendent (Engg.-Elect). At no point of time, the petitioner has been intimated that the selection is confined to the post of Sr. Assistant. The petitioner submits that it is settled law that after initiating the process of selection, the rules cannot be changed in the midst of the selection process and therefore having selected the petitioner for the post of Sr. Assistant (Engg.- Elect) pursuant to Ext. P1 circular, the respondents cannot appoint the petitioner to a lower post on the basis of some proceedings issued subsequent to Ext. P1 circular. The petitioner also points out that the contention that no initial appointment is made to the post of Sr. Superintendent is wrong as is clear from the documents supplied by the respondents themselves. The petitioner submits that as is evident from Ext. P9, even after Ext. P5 Pay Revision Order, several persons have been appointed as Sr. Superintendents in the Amritsar Airport project of the Airport Authority of India. It is further pointed out W.P(C) No. 6415 of 2008 -: 3 :- that in Ext. P1, both Degree and Diploma holders are equally entitled to be considered to the post of Sr. Supdt. (Engg-Elect). It is submitted that by Ext. P12, for the same post, applications were invited for direct recruitment in which the minimum qualification is Degree and persons in service of the Airport Authority of India is given relaxation in qualification insofar as employees holding Diploma with 3 years' experience are also qualified to be considered for the post. According to the petitioner, since the petitioner has the qualification of Diploma and more than 3 years experience and in Ext. P1 Diploma is the minimum qualification prescribed for departmental employees, the respondents cannot blow hot and cold in the matter of appointment to the post of Sr. Assistant, by taking the stand that diploma holders can be inducted only to a lower level. The petitioner therefore seeks the following reliefs: “i) Issue a writ of certiorari or such other appropriate writ or order quashing Ext. P8. ii) Declare that the petitioner, who responded to Ext.P1 notification for filling up the 'Departmental vacancies' of Senior Supdt. (Engg.-Elect) and came out successful in the written test for the said post as borne by Ext. P2 is liable to be designated as Sr. Supdt. (Engg.- Elect) with the prescribed scale of pay of Rs. 8000-16840 and for all consequential benefits. iii) Declare that 'Clause 31.5' of Ext. P5 Wage Revision Scheme is not applicable to the post of Senior Supdt. (Engg.-Elect) notified vide Ext. P1 and for which written test was conducted vide Ext. P2, as the minimum qualification prescribed for the said post is a 'Degree' in the concerned subject and not a Diploma. iv) Issue a writ of mandamus or such other W.P(C) No. 6415 of 2008 -: 4 :- appropriate writ or order, directing the respondent to re-designate the petitioner as Senior Supdt. (Engg.-Elect); to effect the pay fixation in the concerned scale of pay of Rs. 8000-16840/- and to disburse all the consequential benefits with interest w.e.f. date of joining as Sr. Asstt. (Engg.-Elect).” 3. The respondents have filed a counter affidavit stating that after coming into force of Ext. P5 Pay Revision Order in paragraph 31.5 of which it has been specifically stated that wherever the minimum qualification for a post is Diploma, then the first appointment shall only be in the scale of pay of Rs. 6300-12060. The respondents would therefore contend that since the appointment of the petitioner was after coming into force of Ext. P5, the petitioner could not have been given the scale of pay of Rs. 8000-16340 applicable to Senior Superintendent and therefore the respondents did the next best thing of appointing the petitioner to the post of Sr. Assistant holding the scale of pay of Rs. 6300-12060 in accordance with paragraph 31.5 of Ext. P5. They would further contend that the cases referred to in Ext. P9 cannot be compared with the case of the petitioner because it was a case of direct recruitment and not a recruitment from departmental employees. They would also contend that the petitioner was appointed by Ext. P3 as early as on 17.7.2002 and the petitioner has raised this contention only in 2005 and therefore the petitioner is guilty of delay and laches. 4. The petitioner has filed a reply affidavit taking the contention that insofar as the rules applicable to Airports Authority of India do not contemplate W.P(C) No. 6415 of 2008 -: 5 :- recruitment through Employment Exchange and regularisation of persons appointed through Employment Exchange, the contention of the respondents regarding subsequent appointments made cannot hold water. In the reply, the petitioner also specifically controverts the contention that the petitioner was informed about the change of procedure and that he will be selected and appointed only as Sr. Assistant (Engg.-Elect). 5. I have considered the rival contentions in detail. 6. At the outset, I am, to say the least, surprised that a Central Government undertaking has been functioning without a set of recruitment rules. Of course, the learned counsel assures me that from 2008 onwards, appropriate recruitment rules have already been framed. 7. Admittedly, at the relevant time, no specific recruitment rules were in force for the selection in question. The selection has been made solely based on Ext. P1 circular. As per Ext. P1 circular, applications were invited from departmental employees for appointment to the post of Junior Engineer (Elect), which, admittedly, is the corresponding re-designated post of Sr. Superintendent (Engg.-Elect). That being so, the recruitment could have been confined only in accordance with Ext. P1. In Ext. P1, the selection was to the post of Junior Engineer (Elect) and qualifications prescribed were either Degree or Diploma in Electrical or Mechanical Engineering. After having initiated a selection process on the basis of Ext. P1, I do not think that the respondents could have changed their rules for selection in the midst of the selection process. In fact, it is not in the midst of W.P(C) No. 6415 of 2008 -: 6 :- the selection; it was only at the time of appointment. Admittedly, Ext. P2 communication was issued to the petitioner for a written test and selection to the post of Sr. Superintendent (Engg.-Elect). Ext. P2 is dated 14.1.2002. Ext. P5, which the respondents heavily rely upon, is dated 13.8.2001, 5 months prior to Ext. P2. Even after Ext. P 5, the respondents continued the selection for the post of Sr. Supdt. (Engg-Elect). Although, in the counter affidavit, the respondents took the contention that the petitioner has been intimated about the change of conditions regarding selection, they have not chosen to produce before me any material whatsoever in support of the same. Therefore, I cannot countenance that contention, especially when, in the reply affidavit, the petitioner has categorically denied having received any such communication. I am particularly impressed by the fact that in Ext. P12 notification inviting applications for the same post, while prescribing Degree as the minimum qualification, the respondents themselves granted relaxation in respect of departmental candidates possessing only Diploma. That would go to show that all along, the respondents were recruiting departmental candidates holding Diploma to the post of Junior Engineer (Elect.) re-designated as Sr. Superintendent (Engg.-Elect) and not as Senior Assistant as contended by them now on the basis of Ext. P5. Ext. P5 is not statutory in character. That being so, having initiated selection process on the basis of Ext. P1, the respondents could not have changed the condition for such recruitment on the basis of Ext. P5 issued subsequently. In any event, Ext. P5 is not W.P(C) No. 6415 of 2008 -: 7 :- recruitment rules. That is a Pay Revision Order. Recruitment rules cannot be governed by Pay Revision Order as such. If on account of Ext. P5, they had to appoint diploma holders only as Sr. Assistants, what the respondents should have done is to cancel Ext. P1 and to start the selection process afresh by issuing fresh notification. Having continued the selection process for the post of Sr. Superintendent (Engg-Elect) despite Ext. P5, the respondents are estopped from contending that although the selection was for the post of Sr. Superintendent (Engg-Elect) in view of Ext. P5, they would appoint the petitioner only as Sr. Assistant. 8. Regarding the contention of the respondents of delay in raising the issue, the petitioner points out that he knew about the legal situation only when he came to know that subsequently others were appointed directly as Sr. Superintendent (Engg.-Elect). Learned counsel also points out that the respondents themselves did not reject the claim of the petitioner on the ground of delay in Ext. P8. Having rejected the claim of the petitioner on merits relying on Ext. P5, the respondents cannot now raise a contention of delay, is the contention raised by the learned counsel for the petitioner. It is also pointed out that no such contention has been raised in the counter affidavit also. I am in agreement with those contentions and therefore I am not inclined to countenance the contention of delay raised by the learned counsel for the respondents during arguments. The result of the above discussion is that the action of the respondents in appointing the petitioner as Sr. W.P(C) No. 6415 of 2008 -: 8 :- Assistant (Engg.-Elect) after having selected him to the post of Senior Superintendent (Engg.-Elect) is clearly unjust, unreasonable and unsustainable. Accordingly, Ext. P8 order is quashed. It is declared that the petitioner is entitled to be appointed as Senior Superintendent (Engg.- Elect) pursuant to Ext. P1 circular. Therefore, it would be deemed that the appointment of the petitioner by Ext. P3 dated 17.7.2002 is to the post of Sr. Assistant (Engg.- Elect). Petitioner's salary will be fixed in the post of Senior Assistant (Engg.-Elect) with effect from the date he joined pursuant to Ext. P 3 notionally. But, he will not be entitled to any arrears of monetary benefits for such fixation. Orders in this regard shall be issued as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Needless to say, the petitioner would be eligible for the benefit of subsequent revisions of pay to the post of Senior Superintendent (Engg.-Elect) and also such service benefits in respect thereof, including promotion, if any, which has become due to the petitioner if the petitioner had been appointed as Senior Superintendent (Engg.- Elect) pursuant to Ext. P3 order. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ The words “Senior Assistant (Engg. Elect.)” occurring in the 8th, 9th and 10th lines of page 8 of the judgment dated 27.5.2011 in W.P(C) No. 6415 of 2008 -: 9 :- WP(C) No. 6415/2008 are corrected and substituted as “Senior Superintendent (Engg.-Elect.)” as per order dated 20.6.2011 in I.A.9226/2011 in WP(C) 6415/2008. Sd/- Registrar (Judicial)