W.P.(C) No.7030/2008 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 1st November,2010 Judgment Delivered On:9th November, 2010 + WP(C) 7030/2008 UOI & ORS. …Petitioners Through: Mr.Sanjay Agnihotri, Advocate with Mr.Z.A.Siddiqui, Advocate Versus A.K.CHOPRA & ORS. …Respondents Through: Mr.A.K.Behera, Mr.Sridhar Nayak and Ms.Jaismin Ahmad, Advocates for R-1 Mr.Varun Goswami, Advocate with Mr.Abhishek Bhardwaj, Advocate for R-4 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. The Directorate General of Civil Aviation is an attached office of Ministry of Civil Aviation. The Directorate of Civil Aviation coordinates all regulatory functions with International Civil Aviation Organization and is the main regulatory organization in the country responsible for regulation of air transport services to/from/within India and for enforcement of civil air regulations, air safety and airworthiness. 2. The directorate is headed by a Director General who is assisted by Joint Directors General, Deputy Directors General, W.P.(C) No.7030/2008 Page 2 of 22 Directors and other officials. There is one post of Director General of Civil Aviation (hereinafter referred to as “DGCA”) in the pay scale of `22400-525-24500/- and three posts of Joint Director General of Civil Aviation (hereinafter referred to as “Joint DGCA”) in the pay scale of `18400-22400/-. The job of DGCA involves looking after the entire work of Directorate General of Civil Aviation, supervising functions relating to the safety of air travel as well as for the responsible functioning of the aviation industry, airworthiness control, licensing of pilots, safety of civil air operations, bilateral air services agreements and research and development. 3. In exercise of the power conferred by Article 309 of Constitution of India, the President promulgated Civil Aviation Department (Director General of Civil Aviation) Recruitment Rules, 2005 (hereinafter referred to as “Recruitment Rules”) regarding the recruitment of DGCA, the relevant portion whereof reads as under:- “2. Number of posts, classification and scale of pay – The number of the said post, its classification and the scale of pay attached thereto shall be specified in Columns (2) to (4) of the Schedule annexed to these rules. …. 5. Power to relax – Where the Central Government is of the opinion that it is necessary or expedient to do so, it may, by order and for reasons to be recorded in writing, and in consultation with Union Public Service Commission relax any of the provisions of these rules with respect to any class or category of persons. …. SCHEDULE …. W.P.(C) No.7030/2008 Page 3 of 22 Method of recruitment: Whether by direct recruitment or by promotion or by deputation/absorp tion and percentage of the posts to be filled by various methods In case of recruitment by promotion/deputation/absor ption from which promotion/deputation/absor ption to be made II 12 Promotion, failing which by deputation. Promotion: From amongst Joint Director Generals with three years regular service in the grade, failing which Joint Director Generals with five years combined regular service in the grade of Joint Director General and Deputy Director General/Deputy Director General (Research and Development) of which two years shall be in the grade of Joint Director General. …. Deputation: 1. From amongst officers under Central Government including All India Services:- (a)(i) holding analogous posts on regular basis in the parent cadre/department; or (ii) with three years‟ service in the grade rendered after the appointment thereto on regular basis in the scale of pay of `18,400-22,400 or equivalent in the parent cadre/department (b) having experience as under: W.P.(C) No.7030/2008 Page 4 of 22 Twelve years‟ of experience in the Aviation/Flying/Aircraft Engineering/Airworthiness, out of which, a minimum of five years‟ experience should be in administration and Finance Disciplines at the Senior Management Level. ….” 4. Mr.K.Gohain who was holding the post of DGCA at the relevant time was to retire from service on 30.06.2007. In view of the impending superannuation of Mr.K.Gohain and the fact that none of the officers who were holding the post of Joint DGCA possessed the service experience required for being promoted to the post of DGCA, Ministry of Civil Aviation decided to fill up the post of DGCA by way of deputation and thus issued a vacancy circular dated 09.01.2007 in relation to the appointment to the post of DGCA on deputation basis as also placed an advertisement in the Employment News in said regard. However, no suitable candidate applied to the Ministry in response to the afore-noted circular dated 09.01.2007 and the advertisement published in said regard. 5. Considering the fact that no suitable candidate had applied to the Ministry for appointment to the post of DGCA on deputation basis and Mr.Gohain was about to retire, the Ministry of Civil Aviation decided to appoint Mr.Gohain to the post of DGCA on re-employment basis with effect from 01.07.2007 for a period of six months. The Ministry further decided to amend the Recruitment Rules and forwarded the said proposal of amendment of Recruitment Rules to Department of Personnel and Training (hereinafter referred to W.P.(C) No.7030/2008 Page 5 of 22 as “DOPT”) and Union Public Service Commission (hereinafter referred to as “UPSC”) for approval. The amendment sought by the Ministry was the reduction of experience in aviation prescribed in the Recruitment Rules for deputationists from 12 years to 5 years. Be it noted here that DOPT approved the aforesaid proposal mooted by the Ministry for amendment of Recruitment Rules. 6. On 31.07.2007 the Ministry issued another vacancy circular in relation to the appointment to the post of DGCA on deputation basis as also placed an advertisement in the Employment News in said regard. 7. In the meantime, respondent No.1 made a representation to the Ministry inter-alia stating that he will be completing two years of service on the post of Joint DGCA in November 2008 and that the Ministry should grant him an one-time relaxation in minimum qualifying service of 2 years prescribed in the Recruitment Rules for being promoted to the post of DGCA in terms of Rule 5 of Recruitment Rules thereby promoting him to the post of DGCA. 8. Since no suitable candidate was found for being appointed to the post of DGCA till 20th December 2007 and the term of re-employment of Mr.Gohain was nearing expiration, the Ministry decided to extend the term of re-employment of Mr.Gohain by a period of six months. 9. The proposal mooted by the Ministry of amending the Recruitment Rules did not find favor with UPSC. Letter dated 11.01.2008 written by UPSC to the Ministry in said regard reads as under:- W.P.(C) No.7030/2008 Page 6 of 22 “Subject” Amendment to Recruitment Rules for the post of Director General of Civil Aviation. Sir, ….. (i) MR requested for relaxation of technical experience for deputationists, as proposed by the Ministry. It was explained that as already intimated vide our letter of even number dated 10th December, 2007, the Commission have after due consideration not agreed to the Ministry‟s proposal for relaxing the professional competence experience required to be possessed by the incumbent officer to the post of DGCA. As discussed in the meeting, one suggested solution is for the Ministry of Civil Aviation may explore the possibility of filling up the post by promotion by relaxing the provision as available in Col. 12 of the existing RRs for the post by exercising the power available in Clause 5 of the covering notification of the RRs for the post. For this purpose, the Ministry may send a proposal to DOP&T for their initial approval and approach the Commission with a self-contained proposal enclosing necessary documents and information, as required. (ii) The Ministry may also consider the amendment to the Recruitment Rules for the post for prescribing a relaxed mandatory regular service to be possessed by the immediate below feeder grade officer of Joint DGCA from the existing two years to one year. If this is agreeable, an amendment proposal may be forwarded to DOP&T initially and to UPSC after offering the approval of DOP&T. 2. As discussed, it was felt that considering the urgency of the requirement, solution at (i) above could be explored to fill up the post……” (Emphasis Supplied) 10. Pursuant to the vacancy circular dated 31.07.2007 and the advertisement issued in said regard, the Ministry received applications from four officers namely, Dr.Naseem Zaidi (IAS), Mr.V.S.Madan (IAS), Air Marshal Yeshwant Rao Rane (IAF) and Air Marshal Jyoti Narayan Burma (IAF). W.P.(C) No.7030/2008 Page 7 of 22 11. On 31.03.2008 Joint Secretary, Ministry of Civil Aviation prepared a note regarding the appointment to the post of DGCA for the consideration of Minister of Civil Aviation, relevant portion whereof reads as under:- “Note pre-page may be seen. Four applications have been received in response to the advertisement for filling up the post of DGCA which is going to fall vacant on the expiry of the extension period of Shri K.Gohain on 30-6-2008. The applications were scrutinized and it was found that none of the applicants meet all the eligibility criteria. It may be recalled that during one last year three advertisements for filling up the post of DGCA has been made by the Ministry i.e. 10th February, 2007, 3rd July, 2007 & 22nd December, 2007. In all the occasion, we have not received appropriate response from eligible candidates. Based on this experience it can safely be assured that any further exercise of notifying the vacancy inviting applications would probably be futile. 2. A proposal was also made to DoPT and UPSC for amendment of RRs to bring down the Civil Aviation experience criteria from 12 years t 5 years in order to attract more applications. Although DoPT concurred with the proposal, USPC did not agree to the proposal. 3. At this stage we have two options, both entailing a one-time waiver of existing provisions of RRs. The first option is to consider waiver of two years Jt.DGCA experience in case of Shri A.K. Chopra, the seniormost Jt.DGCA, who will complete two years in November 2008. The functioning of Shri A.K. Chopra as Jt.DGCA has been assessed in the Ministry. Feedback about him has also been received from the industry. It is felt that Shri Chopra does not possess the capability to head DGCA and handle the various complex issues and problems essential for implementing the various regulations as well as nurturing the growth of this industry. Thus exercising the option of waiver of provisions of RR for promotion of Shri A.K. Chopra would not be in the best interest of the Government. W.P.(C) No.7030/2008 Page 8 of 22 4. The other route for filling the post is through deputation based on the applications received. The objective is to identify the most suitable candidate amongst the four applicants and then request the appropriate authorities to allow a one time waiver of qualification in order to meet this exceptional situation. Accordingly the cases of the four candidates are examined below. (a) Dr.Naseem Zaidi, IAS (1976) – Dr.Zaidi possesses all the qualifications except an aviation experience of 12 years. Dr.Zaidi has about 7 years aviation experience. He also belong to the IAS and has been empanelled as Additional Secretary to Govt. of India. He has requisite experience of administrative and financial nature in handling various responsibilities. Dr.Zaidi has also worked in the Ministry as Joint Secretary which has equipped him with insight into functioning of the Ministry and the policy making processes etc. Dr.Zaidi is presently working as Representative of India (ROI) in ICAO and is very much involved in various regulatory functions of ICAO, which has a direct bearing on the working of DGCA as ICAOs recommendation which are generally followed by DGCA. He has also been working closely with DGCA to bring the DGCA regulation at par or in consonance with the mandate/recommendations of ICAO. In performing his assigned function at ICAO he has acquired the knowledge of the various important and cutting edge issues faced in Aviation Safety and security at present. (b) Shri V.S. Madan – (IAS-1981)…… (c) Air Marshal Yashwant Rao Rane (IAF).…… (d) Air Marshal Jyoti Narayan Burma (IAF)….. 5. Since Air Marshal Rane can not be considered due to his age, the choice boils down to only three officers. Air Marshal Burma fulfils the age and seniority condition but fails on account of aviation experience which is essential for this position……From the service records it is seen that Air Marshal Burma has no experience in dealing with the aforesaid functions of DGCA. Hence his candidature may not be considered. W.P.(C) No.7030/2008 Page 9 of 22 7. The following points emerge while comparing the qualification of Shri V.S. Madan and Dr.Naseem Zaidi both IAS Officer of 1981 and 1976 batch respectively. …. 8. In view of the above, it is suggested that the name of Dr.Naseem Zaidi for the post of DGCA may be proposed to the UPSC for consideration. UPSC may also be required to accord one time waiver of the provision of RR relating to 12 years aviation experience in case of Dr.Zaidi in view o the unusual circumstances faced by the Government in finalizing the appointment of DGCA.” (Emphasis Supplied) 12. The aforesaid note received the approval of Minister of Civil Aviation pursuant to which a proposal prepared in terms of aforesaid note was sent to UPSC for approval; however UPSC did not approve the said proposal. The relevant portion of the letter dated 25.04.2008 issued by UPSC to the Ministry in said regard reads as under:- “I have received the DO letter No.A.60011/004/2006- VE(V.II) dated 03.04.2008 from Shri Arun Mishra, Joint Secretary, Ministry of Civil Aviation sending a proposal for filling up the post of Director General Civil Aviation, which will fall vacant on 01.07.2008 after the extended period of reemployment of the present incumbent. …. 3. Upon examination of the proposal, it is seen that the Ministry have not sent copies of the circulars/advertisements made for filling up the post, though the letter states that advertisements were issued on 10.02.2007, 03.07.2007 and 22.12.2007 and also that the vacancy was circulated to all Ministries. However, the letter states that it was decided to fill the post on deputation basis as per the Recruitment Rules and the Recruitment Rules specify that the requirement of experience is 12 years in Aviation/Flying/Aircraft/Engineering/Airworthiness out of which a minimum of 5 years experience W.P.(C) No.7030/2008 Page 10 of 22 should be in Administration and financial disciplines at the senior manager level. Therefore it is presumed that the advertisement specified that the experience requirement as per the RRs. The Ministry also stated that they have not received appropriate response in terms of the advertisement etc from eligible candidates, but have four applications, none of whom meet the eligibility conditions. Of these four applicants, two, according to the Ministry, cannot be considered and therefore, there are only 2 officers, having aviation experience of 7 years and 8 years respectively. 4. The Ministry have also stated that they had obtained the approval of DOP&T to the amendment of RRs for relaxation of the condition of Civil Aviation experience from 12 to 5 years. In this context, two points needs to be stressed. The first is that the Ministry had obtained the approval of DOP&T to amend the RRs in October 2007. However, since the advertisements/circulars for the post must have been in terms of the notified RRs they must have provided for experience requirements as in the notified RRs. The second point is that inviting applications with an essential qualification of 12 years experience and thereafter to shortlist candidates falling short of this essential qualification would deprive all other possible candidates who could have applied if they knew that the essential qualification would be reduced after the applications have been received. This will not only go against the principles of equity and transparency, but will, in all likelihood, result in prolonged litigation and the courts would certainly strike down the shortlisting criteria now proposed by the Ministry. 5. I trust that the position brought out above will make it clear why the Commission cannot proceed with present proposal of the Ministry. Since the Commission realizes that the post of DGCA is a very important and critical post, I am to suggest that the Ministry may: (i) First finalize the essential qualifications in terms of Aviation experience and management experience that they consider essential for a one- time filling up of the post of DGCA. Thereafter, the W.P.(C) No.7030/2008 Page 11 of 22 Ministry may seek the approval of DOP&T for relaxation of the experience requirement for this one-time filling up of the post. Since this relaxation will not be amending the RRs but a one-time relaxation, specific approval of DOP&T is required. (ii) Normally for relaxation of qualifications, after DOP&Ts approval, the approval of the Commission is required. In view of the critical nature of the post and the urgency involved, the Commission agree to post- facto relaxation of the experience after the approval of DOP&T, so as to save the processing time. (iii) After the approval of DOP&T is obtained for relaxation of the experience requirement for one time filling up of the post, the post be re- advertised/re-circulated. (iv) Thereafter, a self-contained proposal along with all requisite documents as per Government instructions may be referred to the Commission for making a selection. The Commission will accord priority to processing that proposal. …..” 13. Accordingly, in terms of the aforesaid suggestions given by UPSC, the Ministry formulated a proposal wherein following relaxation was envisaged in the Recruitment Rules:- “Existing Proposed Remarks (b) having experience as under: Twelve years of experience in Aviation/Flying/Aircraft Engineering/Airworthiness, out of which, a minimum of five years of experience should be in administration and finance disciplines at the Senior Management Level. (b) having 12 years experience in administration and supervision at the Senior Management Level of which a minimum of 5 years should be in Aviation/Aircraft Engineering/Airworthiness/Air Safety. The experience in administration and Finance has been increased from 5 to 12 years and the aviation experience has been reduced to 5 from 12 years.” W.P.(C) No.7030/2008 Page 12 of 22 14. DOPT approved the aforesaid proposal mooted by the Ministry regarding one-time relaxation in the Recruitment Rules. Thereafter the Ministry issued vacancy circular dated 05.05.2008 in relation to the appointment to the post of DGCA on deputation basis as also placed an advertisement in the Employment News in said regard. Be it noted here that the aforesaid circular and advertisement issued by the Ministry were in terms of one-time relaxation proposed in the Recruitment Rules by the Ministry and approved by DOPT. 15. Pursuant to the issuance of aforesaid circular and advertisement issued by the Ministry, the Ministry received applications from same four officers who had applied in response to the circular and advertisement issued by the Ministry on an earlier occasion, which applications were forwarded by the Ministry to UPSC for selection of the most suitable candidate for the post of DGCA. 16. Since UPSC was taking time to process the aforesaid four applications and recommend a candidate for the post of DGCA and the term of re-employment of Mr.Gohain was nearing expiration, the Ministry again extended the term of re- employment of Mr.Gohain by a period of six months. 17. In the meantime, respondent No.1 made two more representations to the Ministry regarding the non-relaxation of the service experience prescribed in the Recruitment Rules for being eligible to be promoted to the post of DGCA. In response thereto, the Ministry issued a reply dated 02.06.2008 to respondent No.1 rejecting the request of respondent No.1 for grant of necessary relaxation to him. W.P.(C) No.7030/2008 Page 13 of 22 18. After scrutinizing the aforesaid four applications received by the Ministry and interviewing the eligible candidates, UPSC recommended the appointment of Dr.Nasim Zaidi to the post of DGC on 26.06.2008. 19. However, before the Ministry could appoint Dr.Nasim Zaidi to the post of DGCA, respondent No.1 filed an application under Section 19, Administrative Tribunals Act, 1985 before Principal Bench, Central Administrative Tribunal, New Delhi inter-alia stating that the act(s) of the Ministry/Government of not granting relaxation of mere five months in the service experience prescribed in the Recruitment Rules for being eligible to be promoted to the post of DGCA thereby preventing him from being promoted to the post of DGCA despite the fact that he was the senior most official in the feeder grade for the post of DGCA and granting substantial relaxation of seven years in the experience in aviation prescribed in the Recruitment Rules for deputationists is arbitrary and smacks of mala fide. 20. Per contra, the stand taken by the Ministry/Government before the Tribunal was that power conferred upon the Ministry by virtue of Rule 5 of the Recruitment Rules to relax any of the provisions of Recruitment Rules in a given case is discretionary and that the Ministry/Government had exercised the said discretion judiciously while refusing to grant necessary relaxation to respondent No.1. It was also highlighted by the Ministry before the Tribunal that the action for making of an appointment after the superannuation of Mr.Gohain was initiated in the Ministry on 12th July 2006, at which time respondent No.1 was not even working in the feeder grade of joint DGCA inasmuch as he was appointed as W.P.(C) No.7030/2008 Page 14 of 22 Joint DGCA on 8.11.2006. It was pointed out by the Ministry that on 12th July 2006 there were three posts in the feeder grade of Joint DGCA, out of which two were vacant and remaining one was held by one Mr.P.K.Chattoadhyaya who was due to superannuate before the superannuation of Mr.Gohain. That since there was no eligible officer in the feeder grade of Joint DGCA, a decision was taken by the Ministry to fill the post of DGCA by way of deputation. 21. Vide impugned judgment dated 01.08.2008 the Tribunal allowed the aforesaid application filed by respondent No.1 thereby quashing the vacancy circular dated 05.05.2008 issued by the Ministry and all actions taken by the Ministry in pursuance to issuance of the said circular. The Tribunal further directed the Ministry to consider the case of respondent No.1 for relaxation in the service experience prescribed in the Recruitment Rules for being eligible to be promoted to the post of DGCA. In coming to the aforesaid conclusion, it was held by the Tribunal that since the first mode of recruitment to the post of DGCA is promotion it was incumbent upon the Ministry/Government to first consider the case of respondent No.1 for grant of relaxation of few months in service experience prescribed in the Recruitment Rules for being eligible to be promoted to the post of DGCA before proceeding to fill the post of DGCA by way of deputation; that the act(s) of the Ministry/Government of not granting relaxation of few months in the service experience prescribed in the Recruitment Rules for being eligible to be promoted to the post of DGCA in the case of respondent No.1 but at the same time granting a substantial relaxation of seven years in the experience in aviation prescribed in the Recruitment Rules for deputationists is discriminatory and thus violative of Article 14 W.P.(C) No.7030/2008 Page 15 of 22 of Constitution of India and that the fact that the Ministry/Government adopted a discriminatory attitude towards respondent No.1 is further evidenced from the circumstance that no cogent reasons have been supplied by the Ministry for not granting a minor relaxation in the Recruitment Rules in the case of respondent No.1 as also for granting substantial relaxation for deputationists. 22. Aggrieved by the impugned judgment dated 01.08.2008 passed by the Tribunal, the petitioner has filed the present petition under Articles 226 and 227 of Constitution of India. 23. During the pendency of the instant petition, vide order dated 26.09.2008 this Court permitted the petitioner to make an appointment to the post of DGCA, subject to