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Judgment
Sudershan Kumar Misra, J.
C.M. Nos. 3204/2008 and 4017/2008
These two applications have been filed by the petitioners. By these, the petitioners are seeking an ad interim stay restraining the respondents from implementing the draft Recruitment and Promotion Regulations, 2005 announced on 25.5.2006. In application CM No. 3204/2008, they have sought the following reliefs:
(a) grant an ad-interim ex-parte stay whereby restraining the respondents from implementing the Draft of Recruitment and Promotion Regulations 2005;
(b) set aside all promotions that have taken place in pursuance of the Draft Recruitment and Promotion Regulations 2005, by the respondents;
(c) direct the respondents to produce the complete records including Rules and Regulations adopted for both the Divisions on 31.3.2007 in pursuance to Section 18(7) of AAI Act, 1994, and other records pertaining to the issue involved in the present matter, before this Hon''ble Court;
(d) pass such other or further orders as this Hon''ble Court may deem fit and proper in the circumstances of the present case.
C.M. No. 4017/2008 came to be filed because after filing of this writ on 27.2.2008, the respondent issued a circular dated 29.2.2008. In the application, the following reliefs are sought:
(a) grant an ad-interim ex-parte stay of the circular bearing No. F. No. 32013/26/2008-DPC dated 29th February, 2008 for the selection interview for the post of Airport Director at the Joint General Manager level to be held on 15th March, 2008.
(d) pass such other or further orders as this Hon''ble Court may deem fit and proper in the circumstances of the present case.
As regards C.M. No. 4017/2008, it was ordered on 18th March, 2008 that since the appointments in question have already been processed, any appointments made shall be subject to the outcome of this writ petition and if any appointment is made, the same could not in any manner create any equity in favour of the new appointee in view of the pendency of the present writ petition, and that the said appointee would abide by the result of this petition.
Thereafter, further arguments were heard on the scope of the interim orders that are required on these applications. Petitioner No. 1 claims to be the Airports Authority Officers Association which is suing through its President. Petitioners Nos. 2 to 7 are other employees of the Civil Aviation Department, Government of India, working under the Director General of Civil Aviation.
The petitioner''s services, along with all other employees of the Civil Aviation Department working under the DGCA were to be on mandatory deputation with the National Airports Authority on the same terms and conditions of service until they are duly absorbed by the National Airports Authority or repatriated to their parent cadre. Petitioners claim to have been absorbed in the regular service of the National Airports Authority with effect from 2nd October, 1989. They claim that the National Airports Authority had assured its employees that it would formulate the terms and conditions of the services at the earliest possible date. Petitioners claim that however the regulations governing conditions of their services that were required to be framed u/s 38 of the National Airports Authority Act, 1985 were not framed and the National Airports Authority continued to follow the rules existing in the erstwhile Civil Aviation Department.
According to the petitioners, in terms of Section 38(4) of the National Airports Authority Act, 1985, no regulation made by the Authority under that Section shall have effect, until it has been approved by the Central Government and published in the official Gazette.
In 1994, the Airports Authority of India Act was enacted bringing both, the National Airports Authority, as well as the International Airports Authority, under one unified authority called, the Airports Authority of India. There, two separate divisions were created. The terms and conditions of service of the employees in these two divisions remained the same as they were before the creation of the Airports Authority of India.
Section 18 of the Airports Authority of India Act provides that all employees of the erstwhile International Airports Authority and also of the National Airports Authority, shall become employees of the International Airports Division and the National Airports Division respectively, of the newly constituted Authority. It is also provided that all such officers shall hold office on the same terms and conditions, including remuneration etc., as held under the previous entities. It was provided that they shall continue to hold office on their previous terms until the expiry of one year from the appointed day and that the period so fixed may be extended by the authority upto a maximum of one year. Sub-section (7) of Section 18 also provides that after the expiry of a period of one year or the extended period, all employees transferred or appointed to the Authority, other than those opting not to remain with the Authority within the prescribed period, shall be governed by the rules and regulations made by the Authority in respect of the service conditions of the officers and other employees of the said Authority.
In addition, the newly constituted authority is empowered u/s 42, to make regulations not inconsistent with the Airports Authority of India Act. There, in Sub-section 4, it is also provided that no regulation made by the Authority under this section shall have effect until it has been approved by the Central Government and published in the official Gazette; while Sub-section (6) postulates that the first regulations made under Sub-section (5) by the Central Government shall remain in force until such time the Authority makes regulations and publishes them in the official Gazette.
It is the petitioners'' case that on 31st March 1997, the Board of the Airports Authority of India passed a resolution stating that every employee will hold office in the same terms and conditions existing in the respective divisions. After taking legal opinion of the Ministry of Law and Justice on this, the Civil Aviation Department Recruitment and Promotion Rules (R and P Rules) became applicable to the employees of the National Airports Division as regulations.
The petitioners claim that the respondents have been illegally replacing the existing designations in the Civil Aviation Department (R and P) Rules, applicable to the National Airports Division, with the designations existing in the R and P guidelines, that are being followed in the International Airports Division. They claim that designations existing in the recruitment rules,"applicable to the National Airports Division in pursuance to Section 18(7) of the AAI Act, 1994 were unlawfully amended by the respondent No. 2 without the approval of Central Government in the name of adopting unified designations and pay scales." The petitioners'' case is that "designations inconsistent with the recruitment and promotion rules adopted as regulations in pursuance of Section 18(7) ... cannot be adopted unless amended designations are notified in official Gazette." The petitioner claims that this action violates Section 42(6) of the Airports Authority of India Act, 1994 and also goes against the ratio of the judgment of this Court in the case of S.C. Duggal and Ors. v. National Airports Authority 1993 [1] D L 220.
At the same time, the petitioners contend that the Study Committee constituted on 8.11.2002 to explore the possibility of retrospective promotions to executives under the Flexible Complimenting Scheme and/or the Career Progression Scheme, rendered a report that was untenable for a number of reasons. They contend that despite this, the said report was accepted by the second respondent on 20.12.2003.
The petitioners are also aggrieved of the introduction of a formula whereby, according to the petitioners, Assistant Managers having 5-8 years of service on the operational side and juniors with 3 years of service in the technical side were promoted. The petitioners claim that the respondent No. 2 is functioning contrary to the terms of appointment as defined u/s 18(2) of the Airports Authority of India Act read with resolution dated 31.3.1997 in pursuance to Section 18(7) of the said Act. Similarly, the petitioners are aggrieved of the action of respondent No. 2 granting eligibility to Assistant Manager (P and A) with two years'' service for appointment as Manager (P and A) in December, 2002. The petitioners are similarly aggrieved of promotions granted under the Flexible Complimenting Scheme. They also claim that the respondents are not granting career progression to the petitioners although they are eligible for the same in terms of the letter of respondent No. 2 dated 08.08.2002.
The petitioners are also aggrieved of the implementation of the draft Recruitment and Promotion Regulations announced on 26.5.2006 by respondent No. 2 because, according to the petitioners, the Regulations are first to be accepted by the Central Government and notified in the official Gazette and, since the same has not been done, they cannot be implemented. It appears that the petitioners had also protested against these Regulations on 19.6.2006 itself.
The stand of respondent No. 2 is that as a matter of fact, several members of the petitioner itself have already been benefited by the new rules and that there has been no disclosure of this fact by the petitioner. It is therefore not clear whether the petition represents all the constituent members of petitioner No. 1. In any case, it cannot be denied that on this issue, the interests of at least some of the constituents of petitioner No. 1 are bound to be at variance with the rest. It was therefore incumbent upon petitioner No. 1 to fully disclose the relevant facts on this aspect of the matter right at the outset. It is also contended that since the resolution dated 31.3.1997 came about more than 11 years ago, it is impossible to believe that the petitioners'' Association was unable to approach this Court in a timely fashion. They also point to the resolution passed by the first petitioner on 10.8.2006 to oppose the implementation of the impugned draft R and P Regulations, 2005 to show that even thereafter the petitioners have waited for more than 11/2 years to approach this Court.
It is also pointed out that the guidelines were forwarded to all establishments of the Authority by a letter dated 29.12.2006 and therefore, it is obvious that the petitioners had full knowledge of the same at least from that day onwards. In the same context, it is pointed out that approximately 4500 promotions/ recruitments have already been made on that basis. Furthermore, the respondents contend that while finalising these guidelines, the views of five other officers'' Associations as also their comments and suggestions were duly considered.
The main grievance of the petitioners appears to be that the draft regulations have not been published in the official Gazette. In response, the stand of the respondents is that the decision not to publish the same in the official Gazette is based on the opinion received from the Ministry of Law and Justice in this behalf which also stated, inter alia, that it was not necessary for the said regulations to be accepted by the Government of India, i.e. respondent No. 1 herein.
Furthermore, the learned Additional Solicitor General of India contends that the proposition being canvassed by the petitioners in effect means that if relevant rules and regulations are not framed by an employer within a timeframe envisaged either under some regulation or Statute, that employer/authority loses the power to frame any regulations in future; and that such a proposition cannot be countenanced in law. He states that such a proposition is alien to the very fundamentals of administrative law.
It is obvious that the draft Recruitment and Promotion Regulations, 2005, that were announced nearly 21/2 years ago, have been in operation for a considerable length of time. Promotions as well as additional recruitments have been made in terms of these Regulations. The petitioner association was also fully aware of these Regulations and the on-going promotions and appointments in terms of the same. Whilst finalising these guidelines, the views of the employees'' association were also taken. According to the respondents, the views of five other officers'' associations along with their comments and suggestions were duly considered. The petitioner association is not the only body of employees who are affected by the impugned Regulations. They do not even constitute the majority of the employees. They have also not disclosed their membership or the fact that some members of their own association may well have benefited from these Regulations. The specific contention in this regard raised by respondent No. 2 by way of preliminary objections has not been traversed by the petitioners, except for the bald statement that the petition is not hit by delay and laches, and that the petitioners reserve their right to address the issue in regard to delay and laches at the time of hearing. The claims of respondent No. 2 that the said R and P Regulations, 2005 have been in existence since February, 2005 and till date, more than 4500 promotions and recruitments have already taken place, and that the petitioner has decided to challenge the said Regulations only now after nearly 31/2 years when more than 4500 employees out of 20,000 have been benefited in some way or the other, have also not been traversed, except for the statement that the entire contents of paragraphs 4 and 5 of the preliminary objections, "are denied in toto".
There is therefore no gainsaying the fact that the petitioner organisation has been fully aware of these regulations for nearly three years. It is also impossible to believe that the petitioners have remained unaware of all the recruitment and promotions that have been carried out pursuant to these regulations over the past three years or so. It was always open to the petitioners to challenge these regulations in a timely fashion. In addition, learned Addl. Solicitor General has contended that in the present competitive environment, where employers are competing to employ and retain able personnel, if this Court were to attach any rider to appointments made by the second respondent, its task would become even more onerous.
Under the circumstances, I do not think it appropriate to pass any interim orders in this matter at this stage restraining the respondents from further implementation of the aforesaid Recruitment and Promotion Regulations, 2005 or to set aside all promotions that have taken place in pursuance to the said Recruitment and Promotion Regulations, 2005 as prayed for in C.M. No. 3204/2008. To do so would cause immense disruption in the working and efficiency of the second respondent. However, all further actions taken by the second respondent under the said regulations shall be subject to the final outcome of this petition. Further, it would be open to the petitioners to apply for the production of any records of the respondents in support of their case, in case the same becomes necessary henceforth.
As regards C.M. No. 4017/2008, the interim orders dated 18th March, 2008 are made absolute till the disposal of the writ petition.
The applications are disposed of accordingly.