1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.163 OF 2009 Capt.A.Almeida .. Petitioner Versus National Aviation Company of India Ltd. & Ors. .. Respondents Mr.K.P.Anilkumar for petitioner Mr.S.U.Kamdar, Senior Advocate with D.G.Dhanure Mayuresh Shetty i/b. M.V.Kini & Co. for respondents CORAM : SWATANTER KUMAR, C.J. & S.C.DHARMADHIKARI, J. Judgement Reserved on : 15th April 2009 Judgement Pronounced on : 10th June 2009. ORAL JUDGEMENT (Per Dharmadhikari, J):- . Heard learned Counsel for parties. Rule. 2 Rule is made returnable forthwith by consent. 2. By this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of a Writ of Mandamus or any other appropriate order or direction directing respondents and more particularly respondent Nos. 1 and 2 to promote him as General Manager (Operations). Certain further and consequential reliefs are also sought, which are not necessary to be reproduced or referred to. 3. It is common ground that the petitioner was employed with Air India. He is presently posted as Additional General Manager (Flight Operations). It is further common ground that the first respondent is newly formed Corporation/ Company by Government of India upon merger of two erstwhile separate independent Corporations viz., Air India Ltd. and Indian Airlines. 3 4. It is the case of the petitioner that he was initially appointed as Pilot in the erstwhile Air India Ltd. As per the promotional policy applicable to the officers of Air India, next post for promotion from that of Additional General Manager (Flight Operations) is General Manager (Flight Operations). This promotion is made on the basis of the prevalent policy and, according to the petitioner, a Promotional Panel consisting of Senior Officials of Air India is constituted, as per the approval granted by the second respondent, Chairman. He states that as on 20th November 2007, four vacancies in the post of General Manager were notified. A Promotional Panel was constituted and promotional exercise was conducted. The petitioner was one of the candidates who participated in the said process. According to the petitioner, a report was submitted by the Promotional Panel on 8th February 2008. The Panel found four candidates as suitable for promotion to the existing vacant 4 post of General Manager (Operations). The petitioner was placed at Serial No.1 on the Wait List which was valid for a period of one year. According to petitioner, if any vacancy arose in the future, i.e. within a period of one year from 8th February 2008, he will have to be promoted and appointed to that vacant post of General Manager. After filling up the four existing vacancies on the basis of the aforementioned report when a fresh vacancy arose in the post of General Manager (Operations), in August 2008, the petitioner being entitled to be promoted to the vacant post expected that he would be promoted and appointed as such. However, he alleges in para 9 of the petition that despite favourable recommendation being made, the petitioner was not promoted and appointed as such. There is no promotion order issued nor any steps taken to appoint and promote the petitioner. 5 5. It is in these circumstances, the petitioner made a representation, details of which are set out in para 13 of the petition. 6. Petitioner contends that by an Internal Memo dated 18th November 2008, respondent No.3 sought to clarify that matter. Respondent No.3 pointed out that consequent upon amalgamation of Air India and Indian Airlines and pending a final decision to be taken on integration of seniority and filling up of post at the level of Executive Directors and General Managers, all appointments to these posts are kept in abeyance. A final decision would be taken and, thereafter, vacancy would be filled up. Petitioner challenges this stand and contends that he made another representation dated 24th November 2008. He pointed out that the petitioner being in the Zone of Consideration and duly considered so also wait listed, until and unless the wait list is in existence, the petitioner has a right to be 6 considered for promotion and appointment. However, any subsequent change in the policy would not affect the wait list prepared earlier. That wait list is prepared in accordance with the prevalent rules and regulations and must be allowed to operate until it is in force. Once that has not been done, then, there is a violation of mandate of Articles 14 and 16 of the Constitution of India. 7. At the same time, petitioner placed on record a copy of the Notification No.8 of 2008 dated 27th October 2008 whereunder the new policy was announced in respect of selection to the post of General Manager (Operations). Our attention has been invited to clause 10 of the New Policy. Annexure F is a copy of the said notification. The petitioner has contended that the stand taken by the respondents that the earlier exercise was restricted to the existing and did not cover the future vacancies is contrary to the respondents 7 own decision. The said stand is not legal and proper. The new policy cannot be applied to the case of petitioner as that would amount to giving it retrospective effect. If for the purposes of effecting promotions to the post of Executive Directors the very same policy is made applicable, then, there is no reason why for the vacancies after 8th February 2008 and within the span of one year of the select list, petitioner’s case was not considered for promotion. If the select list was in force and its validity being not affected by the new policy, then, not appointing or promoting the petitioner to the post of General Manager (Operations) is contrary to the Mandate of Articles 14, 16 and 21 of the Constitution of India. 8. It is in these circumstances that the relief has been claimed. Mr.Anilkumar, learned Counsel appearing for petitioner contended that the action of respondents in denying permission 8 to the petitioner is violative of the mandate of equality enshrined in the Constitution. He submits that in Public Employment, there should not be any arbitrariness and discrimination. In public employment, the employer has to act fairly, justly and reasonably. He cannot act contrary to the Constitutional mandate and make appointment or grant promotions as per the whims and fancies of the employer/ respondents. The merger of Air India with Indian Airlines has no effect on any vacancies that were existing in Air India prior to merger and any decision taken to fill up these vacancies is unaffected and not covered by the new policy. Secondly, the decision to merge the two Airlines and frame new policy for promotion and seniority has nothing to do with the decision taken on 8th February 2008. That decision coupled with the recommendation of Capt.Rakesh Anand is binding upon the respondents and they could not have deviated from the same. Their departure and deviation from the said 9 decision is illegal and arbitrary and, therefore, it must be quashed and set aside so also the petitioner be granted reliefs as prayed in this petition. 9. In response to this petition, an affidavit has been filed on behalf of the first respondent. The deponent is one Mr.A.P.Sanga, Assistant General Manager in I.R. He has pointed out that when the order dated 8th February 2008 was passed, it was only to enable filling up of existing vacancy. The Chairman and Managing Director had granted approval only in respect of filling up of four existing vacancies in the post of General Manager (Operations). Therefore, there is no vested right created in favour of the petitioner merely because he was wait listed at Sr.No.1. If the decision was to fill up only existing posts, then, even the wait list must be seen in that background and it cannot operate thereafter. In any event, it cannot operate 10 indefinitely. Further, the new policy had to be evolved after merger of two distinct Corporations. Until and unless the unification process is undertaken, posts identified and seniority fixed, the promotions could not have been effected. The promotional exercise could have been undertaken only after a comprehensive policy was framed, covering above aspects. The two notifications viz., Nos. 5 and 6 of 2008 evolves such a policy and, therefore, there is no question of the earlier decision or select list holding the field. Consequently, the petitioner cannot claim any right in being promoted. There is no question of the Waitlist operating insofar as vacancies arising after the merger and reliance upon the decision of 8th February 2008, is, therefore, misplaced. 10. Reiterating this stand, it is contended by Mr.Kamdar, learned Senior Counsel appearing for respondents that the Arguments of the 11 petitioner overlook the fact that as on 8th February 2008, there were four vacancies. Therefore, only four appointments were made. Before the merger, the erstwhile companies were having different criteria for promotions. Therefore, revised policy has been framed which applies common selection Criteria. A common platform at the level of General Manager of both erstwhile companies has been sought to be created. Therefore, the earlier report/ decision dated 8th February 2008 cannot be applied. Further, if that report is applied, it would work injustice to three other candidates who were senior to the petitioner but were not found suitable in promotional exercise. Mr.Kamdar has invited our attention to the fact that there are three candidates senior to the petitioner and they are not made parties to this petition, although they are adversely affected. In these circumstances, he urges that no relief can be granted in this petition and it must be 12 dismissed. He has also invited our attention to the fact that vacancies in the same post have arisen even in Indian Airlines and if the stand of the petitioner is accepted that would disturb the situation in that company also. Hence, a decision was taken and rightly to keep everything in abeyance. The petitioner cannot complain as he has only limited right. The right is to be considered and not promoted. Therefore, the Mandamus as prayed for cannot be granted. 11. With the assistance of the learned Counsel appearing for both sides, we have perused the petition and the affidavits filed on record. We have also perused their annexures. We have carefully considered the rival contentions. 12. Upon a plain reading of the order dated 8th February 2008, a copy of which is at Annexure A, it is apparent to us that a promotional Panel was constituted on 20th November 2007 to assess 13 the suitability of Additional General Managers (Operations), who fall within the Zone of Consideration for promotion to the four posts of General Manager (Operations) in the Operation Department of Air India. Having regard to the performance of the candidates in the personal interviews and remarks obtained from the Annual Performance Reports so also service records, four Additional General Manager (Operations) were found suitable for the post of General Manager (Operations). The order states that three candidates were superseded as they were not found suitable. The Panel waitlisted four Additional General Managers who were found suitable to be considered against future vacancies. When this recommendation was placed before the Chairman and Managing Director (Respondent No.2), it was stated in the note that the CMD may kindly approve the report/ recommendation but it could be operated without prejudice to the seniority of others in the first respondent and promotions 14 more particularly that may be effected in the New Company (NACIL). The said remarks on the note dated 8th February 2008 reads thus:- "4. This was discussed further, in view of the existing vacancy and conditions on seniority, we may issue orders effective 01.04.08" "2. CMD - "May kindly be approved. This will be operated without prejudice to seniority of others in NACIL (I) and NACIL (A) and promotions will accordingly be effected when promotions will be released for others. They may in the meantime be allowed to officiate." "3. Approved." 13. The erstwhile Air India Ltd. and Indian Airlines have been amalgamated in the first 15 respondent with effect from 27th August 2007. It has been explained that the entire scenario in these entities was different prior to their amalgamation. After the amalgamation, a decision had to be taken on integration of seniority and filling up of posts at the level of Executive Directors and General Managers. Until that decision was taken all appointments in these posts were kept in abeyance. However, it was brought to the notice of the authorities that out of three Executive Directors in erstwhile Indian Airlines two were retiring in short time along with both Executive Directors in Air India. Few Posts of General Managers in Indian Airlines were lying vacant. Similarly, there was no General Manager in erstwhile Air India. It was decided to make a special dispensation and that is how the exercise of promotion was undertaken to fill up the existing vacancies. That aspect has been amply clarified by the respondents in paras 2 and 4(c) of the Affidavit in reply. 16 14. In such circumstances, we are of the considered view that mere wait listing of the petitioner would not mean that he has a right to be promoted in future vacancies in the post of General Manager (Operations). The petitioner does not dispute the legal position that mere inclusion in the select list or waitlist does not give any right of appointment to the candidate. The legal position has been reiterated on number of occasions by the Supreme Court. There is no vested right merely because a person is empanelled in the select list or his name appears in the wait list. The right guaranteed by Article 16 of the Constitution is a right to be considered for promotion and not for being promoted. It is not as if a vested right is created by the petitioner’s name being included in the wait list. In A.I.R. 1997 S.C. 1803 (K.Ramulu Vs. S.Suryaprakash Rao) this position in law is reiterated (See paras 9 to 11). It is 17 this legal position which is set out in the letter dated 28th August 2008 addressed to the Executive Director (Operations -II) by the Director Personnel of Air India. The executive Director (Operations) (Capt.Anand) is the same officer who had recommended the petitioner for being appointed to the post of General Manager (Operations) rendered vacant by his promotion. However, the Director (Personnel) has clarified that the promotional panel record was approved for existing vacancies only and accordingly appointments were made. Fresh selection for appointments to the post of General Manager will be made shortly, where consideration against vacancy which have accrued subsequent to the earlier appointments will be taken in hand. Further, the Director (Personnel) has clarified the matter to the petitioner by Annexure F to the affidavit in reply. That is a reply to the petitioner’s representation dated 7th November 2008. Petitioner’s representation has been duly 18 replied and all aspects have been clarified. Petitioner has not annexed copy of this reply but the same is part of the Annexures to the affidavit in reply of the respondents. 15. Upon perusal of this entire material and considering the limited right that the petitioner had at the relevant time, we are of the view that no relief can be granted to the petitioner. Merely because post merger, some steps were taken to fill up existing posts in one of the erstwhile Airlines does not mean that the petitioner had vested right in being promoted to the post of General Manager (Operations). It is a common ground that two entities have now merged and amalgamated in respondent No.1. The entire policy with regard to selection and appointments in the post of Executive Directors and General Managers has been formulated and the relevant notification has been referred to by both sides. Merely because the promotions were effected 19 despite a decision taken to keep the appointments to the post of Executive Directors and General Managers in abeyance, does not mean that we can direct that the petitioner be promoted. If a decision is taken to formulate a comprehensie Promotional Policy post merger and Notifications being issued in that behalf, we cannot term the actions of the respondents as Irrational or Arbitrary warranting interference in Writ Jurisdiction. It is not permissible to interfere in such policy matters and decisions. 16. This is not an issue of the New policy being applied retrospectively. The petitioner does not dispute that when he was wait listed, there was no vacancy and all vacancies, then existing had been filled up by the promotion of four persons mentioned in the order dated 8th February 2008. The petitioner does not lay any claim on the existing vacancies, but the future, and that too in Air India, a merged entity. For 20 future vacancies, he bases his claim on the wait list. Assuming that the wait list was to remain operative but the fact remains that by then, the amalgamation of two entities was complete and even the Notification with regard to the new Policy of promotion was issued. In such circumstances, the petitioner cannot on the basis of being a wait listed candidate claim promotion to future vacancy. It is not that for the first time this aspect has been clarified by the Respondents. They have amply clarified the same to the petitioner in reply to his representation. They have also clarified this in answer to the query made by Capt Anand. Capt.Anand was promoted as Executive director and consequent upon his promotion, vacancy arose in his post of General Manager (Flight Operations). Even he was informed that the promotional panel’s report was approved only for existing vacancies and once they have been filled up a fresh selection process will be undertaken in respect of future 21 vacancies. In such circumstances, the petitioner being a wait listed candidate has no vested right of being promoted or appointed. We are, therefore, of the view that this is not a fit case for our interference in writ jurisdiction. Bearing in mind the legal principles and considering the materials on record, we cannot grant the relief prayed for in this petition. Consequently, the petition fails and it is accordingly dismissed. Rule is discharged. No costs. (CHIEF JUSTICE) (S.C.Dharmadhikari, J)