(' IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 17478/2004 Reserved on: September 30, 2011 Decision on: October 24, 2011 S K SACHDEV A & ORS. . .... Petitioners versus Through: Mr. Sunil Kumar, Senior Advocate with Mr. C. S. Yadav and Mr. Prem Ranjan Kumar, Advocates. UNION OF INDIA & ORS. . .... Respondents Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Mukesh Kumar and Ms. Meenakshi Sood, Advocates for Air India. Mr. Ashwani Bhardwaj, Advocate for UOI. With W.P. (C) 11247-50/2006 & CM APPL No. 8567/2006 NARESH KUMAR & ORS. . .... Petitioners versus Through: Mr. Sunil Kumar, Senior Advocate with Mr. C. S. Yadav and Mr. Awanish Sinha, Advocates. AIR INDIA & ORS. . .... Respondents Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Mukesh Kumar and Ms. Meenakshi Sood, Advocates for Air India. Mr. Vinay Navare with Mr. Manu Beri, Advocates for 24, 37, 42, 45, 51 and 53. Mr. Nitin S. Tambwekar with Mr. B.S. Sai, Advocates for R-27, 32, 35, 41 and 54. Ms. Kiran Bhardwaj, Advocate for R-4, 6, 9, 10, 11, 16, 17, 18, 19, 20, 21,22,23,25,29,30,33,34,36,38, 40, 43, 44, 49 and 50. Mr. D.K. Thakur with Mr. Alok Rai, Advocates for impleader. And ~P. (C) 733/2007 ANAND PANDE & ORS. . .... Petitioners Through: Mr. Sunil Kumar, Senior Advocate W. P. {C) 17478 of 2004 & connected petitions Page 1 o/24 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified with Mr. C.S. Yadav and Mr. A wanish Sinha, Advocates. versus AIR INDIA & ORS. . .... Respondents Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Mukesh Kumar with Ms. Meenakshi Sood, Advocates for Air India. Mr. Nitin S. Tambwekar with Mr. B. S. Rai, Advocates for R-27, 32, 35, 41 and 54. Mr. Vinay Navare with Mr. Manu Beri, Advocates for 24, 37, 42, 45, 51 and 53. Ms. Kiran Bhardwaj, Advocate for R-4, 6, 9, 10, 11, 16, 17, 19, 21, 22, 23, 25, 29, 30, 31, 33, 34, 40, 43, 44 and 50. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? JUDGMENT 24.10.2011 1. These three writ petitions challenge. the appointments made by Respondent No. 1, Air India Limited ('AIL'), to the post of Assistant Manager (Security) from amongst its serving permanent employees of the Security Department pursuant to a StaffNotice dated 2nd May 2003. Factual background 2. On 26th July 2002, the AIL invited applications from the permanent employees of Security Department for filling up vacancies in, as well as maintain a wait list for, the post of Assistant Manager (Security). The eligibility criteria was that the applicant had to be a graduate in the category of Officer-Security/ Assistant Officer-Security with a minimum of ten years of experience in the Security Department of AIL or possess a post-graduate qualification with a minimum of five years of experience in the Security Department of AIL. The procedure for selection was that all eligible candidates were to be called for a written test. Those qualifying in the written test would be required to W. P. (C) 17478 of 2004 & connected petitions Page2of24 appear in a group discussion/ interview. Based on the performance in the written test and group discussion/personal interview, a selection list of suitable candidates would be prepared for appointment to the post of Assistant Manager (Security). 3. Although there were roll numbers issued for the written examination to some of those who applied pursuant to the Staff Notice dated 26th July 2002, it is not clear . whether any written examination was in fact held pursuant thereto. Nevertheless, another Staff Notice dated 2nd May 2003 was issued by AIL again inviting applications for the post of Assistant Manager (Security). Those who had applied pursuant to the earlier notice dated 26th July 2002 were required to apply afresh. Both Staff Notices dated 26th July 2002 and 2nd May 2003 stated that reservations as per the Presidential Directive would be applicable in respect of SC/ST/OBC in the percentage ofSC -15%, ST-7Yz% and OBC-27%. 4. The eligible serving employees, including the Petitioners, who applied pursuant to the aforementioned Staff Notices, were issued roll numbers for the written examination together with an 'Information Handout'. In terms of the Information Handout, the written test was to comprise of three papers: I. Profe~sional Knowledge II. English language III. Reasoning & Numerical Ability 75 marks Only qualifying marks 50 marks ,~ 5. The candidates were to be given a composite time of two hours to answer all the three papers. The Information Handout stated that for Papers I and III minimum pass marks were required to be obtained, and for Paper II (English) only qualifying marks were required. No minimum qualifying marks for Papers I and III were indicated. On 6th May 2003 the maximum marks for Paper III was changed to 25 marks for 25 questions. Subsequently, unknown to the Petitioners, and after they had taken the written test, an overall qualifying mark and a weightage system was prescribed by AIL. As will be discussed hereafter, this fact emerged much later when the Petitioners sought information under the Right to Information Act, 2005 ('RTI Act'). 6. The Petitioners state that although the written test was held on 29th June 2003, the results were not declared thereafter. On gth July 2003, a representation was made by W. P. {C) 17478 of 2004 & connected petitions Page3of24 some of the Petitioners to the AIL pointing out that in terms of the Office Memos ('OM') dated 8th September and 22nd October 1993 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training ('DOPT'), Government of India ('GOI'), reservations for OBC category would be applicable only in the case of direct recruitment and not in promotion. Further, the candidates in the OBC category had to establish that they did not belong to the creamy layer as envisaged in the judgment of the Supreme Court in Indra Sawhney v. Union of India AIR 1993 SC 477. A further representation to the same effect was made on 9th September 2003. By its reply dated 19th September 2003, the AIL stated that the selection to the grade of Assistant Manager (Security) was a special exercise and not a promotion exercise. It was further stated that if a candidate did not have the OBC certificate in the proper format, she/he would be treated as a General category candidate. 7. The Petitioners state that a StaffNotice dated 8th December 2003 was issued by the AIL again inviting applications from the permanent staff "to prepare a wait list for the post of Assistant Manager" stating that the exercise was being undertaken "as per para 8 of promotion policy" issued on 8th May 1996. Further, the letters written to the successful candidates stated that the candidates had been promoted as Assistant Managers in the Security Department. One such sample letter dated 19th September 2003 has been placed on record. /"'"'"'· 8. W. P. (C) No. 17478 of2004 filed in this Court on 3rd November 2004 by Mr. S.K. Sachdeva and another is on the limited issue of 27% reservation being provided for OBCs in the promotional post of Assistant Manager (Security). The petition prays for a writ of mandamus to the AIL to consider the Petitioners on par with three candidates who were promoted purportedly under the OBC quota. On 8 1h November 2004 while directing notice to issue in W.P. (C) No. 17478 of 2004, this Court directed that the promotions/appointments made would be subject to the decision in the writ petition. 9. W. P. (C) No. 11247-50 of 2006 by Naresh Kumar and three others and W. P. (C) No. 733 of 2007 by Anand Pande and eleven others raise more or less common grounds of challenge to the procedure for selection of Respondent Nos. 4 to 54 in both petitions for promotion as Assistant Manager (Security). W. P. (C) No. 11247-50 of W. P. (C) 17478 of 2004 & connected petitions Poge4of24 2006 seeks the quashing of the impugned seniority list of the newly promoted Assistant Managers (Security) released by AIL on 25th July 2005 which showed the names of Respondents 4 to 54. They were stated to have been promoted as such with effect from 1st October 2004. The prayer in W.P. (C) No. 733 of 2007 is the same but is by certain other employees who obtained further relevant information under the RTI Act. The grounds of challenge are that the procedure disclosed at the time of issuance of the StaffNotice and Information Handout was not followed by AIL. Moreover, the excessive weightage of 70% given to group discussion and interview rendered the procedure arbitrary and irrational. 10. Counter affidavits have been filed by AIL as well as the private Respondents. Additional affidavits have been filed by the Petitioners placing on record information obtained by them through the RTI Act. Pursuant to the deliberations in Court, AIL has placed charts which will be discussed hereafter. The parties also filed their respective written submissions after the conclusion of arguments. Submission of counsel 11. Mr. Sunil Kumar, learned Senior counsel with Mr. C.S. Yadav and Mr. Awanish Sinha, learned counsel appearing for the Petitioners submitted as under: (a) There ought to have been no reservation, much less 27%, for the OBC category since the post of Assistant Manager (Security) was a promotional post. In any event the creamy layer of the OBC had to be excluded from the benefit of such reservation. AIL's subsequent clarification that no benefit of reservation was extended to any OBC candidate contradicted the StaffNotices and the orders granting promotion issued pursuant thereto. (b) The Information Handout clearly stated that only those candidates who qualified in the written test would be called for the group discussion and interview. However, after the conclusion of the written test, the AIL did not declare the result and called all the candidates who appeared in the written test for the group discussion and the interview. Consequently even those who failed in Paper II (English), failed in Paper III (Reasoning and Numerical Ability) or those who failed to secure the overall qualifying marks in the written test were called for group discussion and interview. W. P. (C) 17478 of 2004 & connected petitions Page5of24 (c) The Information Handout stated that only qualifying marks in English were required thereby implying that those marks would not be taken into account while compiling the results of the written test. Yet, the marks obtained in the English test were also included in the overall marks in the written test; (d) No weightage of marks for the written test, group discussion· and interview was indicated in the Information Handout. Yet, subsequently, a weightage of 20% for the group discussion and 50% for the interview and only 30% for the written test was introduced for the first time after the conclusion of the written test. This was impermissible in law and rendered the exercise illegal. Reliance was placed on several decisions of the Supreme Court in Munindra Kumar v. Rajiv Govil (1991) 3 SCC 368, Vikram Singh v. Subordinate Services Selection Board, Haryana (1991) 1 SCC 686, K. Manjushree v. State of Andhra Pradesh 2008 (3) SCC 512, Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, Mohinder Sain Garg v. State of Punjab (1991) 1 SCC 662, and Madhukar Bakru Pinga v. Rajendra D. Gaikwad (1995) 6 SCC 42. (e) Notwithstanding the above, the excessive weightage to the interview and group discussion gave an unfettered discretion to the interview panel constituted by the AIL and was a prescription for arbitrariness. There was no rational basis for the skewed weightage for the interview and grcmp discussion which was twice the weightage for the written test. This resulted in candidates who had scored low marks in the written test being selected and promoted as Assistant Manager (Security) on the basis of their purported better performance in the group discussion and interview. This completely defeated the object of not only having a written test but making it a qualifying test for the group discussion and interview. (e) Respondents 4 to 54 who had been promoted by means of an arbitrary and illegal procedure could not plead equities particularly since their promotions were subject to the result of these petitions. 12. Mr. Sandeep Sethi, learned Senior counsel appearing for the AIL first submitted W. P. (C) 17478 of 2004 & connected petitions Page6of24 that the writ petitions were barred by laches .. W.P. (C) No. 11247-50 of2006 was filed on 15th July 2006 and W.P. (C) No. 733 of 2007 was filed on 24th January 2007 whereas the written test pursuant to the Staff Notice dated 2nd May 2003 was held on 29th June 2003 and the seniority list was published on 25th July 2005. Secondly, the filling up the posts of Assistant Manager (Security) was not a purely promotional exercise but a "promotion by selection." The mention of reservation in the Staff Notices was by inadvertence and no benefit of such reservation was in fact given to a selected OBC candidate. Thirdly, it was submitted that since in the first place no qualifying mark for the written test was indicated in the StaffNotices dated 26th July 2002 and 2nd May 2003, it was decided by the management to call all the candidates who appeared in the written test for the group discussion and interview. There was nothing illegal in introducing a qualifying mark subsequently; since the vacancies were limited some method of filtering had to be introduced. Fourthly, the Petitioners had no vested right to promotion but only a right to be considered for promotion if they qualified in the selection. The Petitioners having participated in the written test, group discussion and interview, were estopped from challenging the legality of the procedure subsequently. It was denied that the allocation of 70% marks for group discussion and interview was arbitrary, unreasonable or violative of Article 14 of the Constitution. 13. Mr. Vinay Navare, learned counsel appearing for Respondent Nos. 24, 37, 42, 45, 51 and 53, Mr. Nitin S. Tambwekar, learned counsel appearing for Respondent Nos . . ,__ 27, 32, 35, 41 and 54 and Ms. Kiran Bhardwaj, learned counsel appearing for the remaining Respondents also submitted that the writ petitions were barred by laches. They contended that not all of them were promoted as a result of the selection exercise undertaken by the AIL pursuant to the Staff Notices dated 26th July 2002 and 2nd May 2003. Many of them were in fact selected and promoted as a result of the StaffNotice dated gth December 2003 through a different channel of 'Corporate Examination' since they did not possess the qualification of MBA. Their promotion was as such not challenged by the Petitioners. A few of them had even been further promoted as Deputy Managers (Security), which was again not challenged by the Petitioners. It was pointed out by these private Respondents that the Petitioners were on the one hand contending that the written test should be the qualifying test and on the other questioning the weightage of 70% for the group discussion and interview. If indeed W. P. {C) 17478 of 2004 & connected petitions Page 7of24 the written test was a qualifying test then it would have 100% weightage and since thereafter the group test and interview would have 100% weightage. Some of the Petitioners herein had joined in the filing of an earlier writ petition in the Bombay High Court seeking declaration of the results and could not be permitted to file repeated writ petitions in different courts. Reliance was placed on the decisions of the Supreme Court m Lila Dhar v. State of Rajasthan (1981) 4 SCC 159, P.S. Sadasivaswamy v. State of Tamil Nadu (1975) 1 SCC 152, Indian Airlines Corporation v. Capt. K.C. Shukla (1993) 1 SCC 17, and Ghulam Rasool Lone v. State of Jammu & Kashmir (2009) 15 SCC 321. Laches 14. The first issue to be considered is whether the writ petitions are barred by laches. W.P. (C) No. 17478 of 2004 was filed at a stage when the results had not been declared. AIL replied to the Petitioners' representations dated 8th July 2003 and 9th September 2003 only on 19th September 2003. W.P. (C) No. 17478 of 2004 was filed on 3rd November 2003. It cannot, therefore, be said that the said writ petition was barred by laches. 15. As regards W.P. (C) No. 11247-50 of2006, to begin with the results ofthe written test were not declared by AIL. This prompted some of the candidates to approach the Bombay High Court. Even after the selection process was completed the results were not announced. The seniority list dated 25th July 2005 does not appear to have been circulated. The Petitioners' letters dated 6th January 2006 and 28th February 2006 elicited a reply by AIL dated 3rd April 2006 disclosing the marks obtained by the candidates in the written test, group discussion and interview. However, the information sought at items 5 and 6 of the letters dated 6th January and28th February 2006 was not provided. This necessitated a further reminder dated 18th April 2006 to which the AIL replied on 4th May 2006. It was only through these replies that the Petitioners learnt of the impugned seniority list dated 25th July 2005 promoting Respondents 4 to 54 as Assistant Manager (Security). The Petitioners filed the writ petition on ih July 2006 not long after the reply dated 4th May 2006. Therefore, W.P. (C) No. 11247-50 of2006 cannot also be stated to be barred by laches. 16. As far as W. P. (C) No. 733 of 2007 Is concerned, the crucial information W. P. {C) 17478 of 2004 & connected petitions PogeBo/24 concerning the procedure adopted by the AIL was supplied by it to Mr. Anand Pande only on 14th July 2006 pursuant to his application under the RTI Act. This became the basis for questioning the entire selection process adopted by the AIL. Prior to this the Petitioners were not informed of the procedure that was actually followed. The writ petition was filed on 22nd January 2007. This Court is in the circumstances not persuaded to hold that this writ petition was barred by laches. The facts in P.S. Sadasivaswamy and Ghulam Rasool Lone are distinguishable and those decisions can have no application to the present cases. 17. The objection raised by counsel for the private Respondents that the affidavit in support ofW.P. (C) No. 733 of2007 by Mr. Anand Pande gave the same particulars as regards the father's name and address as the first Petitioner in W.P. (C) No. 11247.-50 of 2006 has been clarified by the subsequent affidavit of Mr. Anand Pande filed on 1st August 2011 stating it to be as a result of an error in typing the affidavit and on account of inadvertence. Reservation for OBCs 18. The Petitioners are right in their contention that there can be no reservation in promotion for OBCs after the judgment of the Supreme Court in the Indira Sawhney case. AIL has in its reply dated 4th May 2006 to the Petitioners' representation stated that the 200 point roster was followed and that a total 51 candidates were appointed, out of which 6 were SC, 2 ST and 4 OBC. It has been however been clarified by AIL subsequently that it extended the benefit of reservation in the promotions to only SC/ST candidates and "no such benefits have been extended to OBC candidates". It further stated that OBC reservation which was indicated in the Staff Notice dated 8 111 December 2003 was "an inadvertent error" and that "while promoting the candidates for the post of Assistant Manager, no reservation benefits were extended to the OBC candidates". Further, in the written submissions by AIL it is categorically stated as under: "It is reiterated that the exercise undertaken pursuant to the staff notice dated 02.05.2003 was a selection exercise and accordingly in compliance of the Presidential Directives the benefit of reservation was accorded to the candidates belonging to OBC category. However, after receipt of clarifications from Department of Personnel & W. P. (C) 17478 of 2004 & connected petitions Page9of24 Training (DOPT) Appointment Letters were issued to candidates who were selected based on the availability of vacancies without any OBC Reservations." 19. The above explanation merits acceptance in the absence of anything contrary being shown by the Petitioners. Consequently, the challenge to the promotions on the solitary ground urged in W.P. (C) No. 17478 of2004 should fail. Non-disclosure of the criteria for selection 20. The main ground of challenge in these writ petitions is to the procedure followed in making the selection for promotion to the post of Assistant manager (Security). Neither the Staff Notice dated 26th July 2002 nor the Staff Notice dated 2nd May 2003 indicated what weightage was going to be given for the marks obtained in the written tests, the group discussion and the interview. In fact, AIL on 11th November 2002 wrote a letter to each of the candidates who applied pursuant to the notice dated 26th July 2002 asking them to appear in the written test. With the said letter AIL enclosed an Information Handout describing "the kinds tests of which will be given to you in the written test". It was therein indicated as under: "Objective tests Test No. of Marks Time question I. Professional knowledge 50 75 Composite 2 hours (120 II. English language 50 * minutes) III. Reasoning & Numerical 25 50 Ability *Only quahfymg. All these three tests will be given in a composite booklet. You will be given a composite time of two hours to answer all the three tests. You may attempt the question/tests in any order you like. However, in your own interest you are advised not to spend too much time on any one test as minimum passing in each is required." 21. In para 3 of the said letter it was stated: "In case, you qualify in the written test, you will have to appear for Group Discussion/Personal Interview. The date, time and venue of the same will be informed to you at the appropriate time." By a further letter dated 14th November 2002 the AIL enclosed another Information Ha_11dout W. P. (C) 17478 of 2004 & connected petitions Page 10of24 incorporating model questions on numerical ability. For those who applied pursuant to the StaffNotice dated 2nd May 2003, a similar Information Handout was sent with the call letters for the written examination. What emerges is that the written test was to be a qualifying test for the group discussion and interview which were to follow. Secondly, the candidate had to only qualify in the English written test (Paper II). There was no minimum qualifying mark indicated for either Paper I or Paper III. There was no overall qualifying mark indicated either. Nothing was said about the weightage to be given to the written test, group discussion or the interview. 22. Through information obtained under the RTI Act it transpired that in a letter dated 6th May 2003 written by the Director (HRD) to the Director (Security) it was stated that the Institute of Banking Personnel Selection ('IBPS') would be conducting the written test for the post of Assistant Manager (Security) and the test structure would be as under: "Sl. No. 1. 2. 3. Test No. of Weightage Total items marks Professional Knowledge 50 1.5 75 Security English 50 Only - qualifying Reasoning & Numerical 25 1 25 Ability 3. The method of selection would comprise of the written test/group discussion/personal interview. The merit ranking of the suitable candidates would be made separately for each grade, i.e., Officer