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M.V. Venkateswaran v. The Chairman - W.P.No.4833 of 1995  RD-TN 469 (15 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE Mr. JUSTICE K.P.SIVASUBRAMANIAM
W.P.No.4833 of 1995
1. M.V. Venkateswaran
2. G. Maniammal
3. D. Balraj .... Petitioners Vs.
National Airports Authority,
Rajiv Gandhi Thavan,
New Delhi – 110 003. .... Respondent Writ petition filed under Article 226 of the Constitution of India praying for the issue of writ of mandamus as stated therein. For Petitioners : Mr. K. Thennan
For Respondent : Mr. C. Godwin
:O R D E R
The petitioner prays for a writ of mandamus to direct the respondent to place the petitioners name above their juniors in Sl.No.533 (S. Vasantha) Sl.No.536 (Shivlingawa.R. Garwad, and Sl.No.538 (Amerjit Singh) vide Panel dated 29.02.1988 issued by the respondent for promotion to the post of Assistant Communication Officer from the basic cadre and promote the petitioners as Assistant Communication Officer with effect from 23.05.1990 i.e., from the date of when the said juniors were promoted as Assistant Communication Officers and for the consequential benefits.
2. According to the petitioners, they are qualified as B.Sc., Degree holders with physics as one of the subjects. All of them were initially appointed as Communication Assistants in the Civil Aviation Department in the year 1984. On 01.06.1986 the Government of India created new corporate body called National Airports Authority and deputed a part of the employees of the Civil Aviation Department to the said National Airports Authority. On 02.10.1989, the employees including the three petitioners were absorbed in the service of National Airports Authority.
3. In terms of rules of Ministry of Civil Aviation dated 22.10.198 2, the following qualification was prescribed for the post of Communication Assistant:
i) Degree in Science with Physics as one of the subjects with 45 marks in aggregate from recognised University or equivalent. OR
ii) Diploma in Radio/Electronics/ Tele-communication/Electrical Communication Engineering from a recognised Institution or equivalent.
In terms of the said rule, both graduates and diploma holders were being appointed to the said post of Communication Assistant. On the basis of the marks obtained for the written examination and oral interview, selected persons will be placed in the All India Seniority Panel. In terms of the said panel dated 29.02.1988, the petitioners herein were placed in Sl.Nos.444, 509 and 543 respectively. In the same panel S. Vasantha, Shivlingawa R. Garwad and Amerjit Singh were placed in Sl.Nos.533, 536 and 538 respectively below the petitioners. One of the requirements for promotion is that the incumbents should pass the eligibility course,for which they would be sent periodically on the basis of seniority. However, the said juniors, all of them being Diploma holders, were sought to be promoted to the post of Assistant Communication Officer on 23.05.1990 without even passing the eligibility course of "Special Communication Assistant". According to the petitioners, the said promotion was given to the said three juniors only on the basis of old rules. The further grievance of the petitioners is that even though the petitioners are seniors in the panel and even after completing five years of service, they were not deputed to undergo the eligibility course to make themselves qualified for promotion. It is further alleged that during the year 1989, for the eligibility Course conducted by the Department, not a single SC/ST candidate was nominated for the said course to make themselves qualified for promotion. From the year 1983, the recruitment qualification was upgraded requiring a Degree. But unfortunately, the promotional policy for subsequent period, the change in the recruitment qualification was not taken into consideration. With the result, for the year 1990, the said policy having continued till the said year, it had resulted in superceding candidates among the SC/ST category. Those who were possessed with Diploma or equivalent were promoted over and above the seniors in the SC/ST quota on the ground they had completed five years of service and that they need not undergo eligibility course. Subsequently due to representations from the employees, the Department made the eligibility criteria as a must for everyone. It is further stated that the Management inspite of knowing the aforesaid facts fully well and the plight of the SC/ST candidates, the Management did not take any steps to allow the senior persons like the petitioners to appear for the eligibility course even after the completion of the required period. Inspite of several representations by the petitioners to the Department to promote the petitioners, the same was not complied with and hence the writ petition.
4. In the counter filed by the respondent, it is stated that the recruitment rules for the post of Assistant Technical Officer, Assistant Communication Officer were published in the Gazette on 22.08.1970 and in terms of the said rules, the criteria for promotion to the said post from Technical Assistant and Communication Assistant are as follows: i) with 3 years service in the grades in the case of those possessing a Degree in Electrical Engineering or Radio Engineering or Telecommunication Engineering of a recognised University or equivalent. ii) with 5 years service in the grade in the case of those possessing a Diploma in Electrical Engineering or Radio Engineering or Telecommunication Engineering of a recognised University or equivalent. iii) with 5 years service in the grade in the case of those who do not possess either a Degree or a Diploma in Electrical Engineering or Radio Engineering or Telecommunication Engineering but have passed the qualifying examination held by the Director General of Civil Aviation. iv) Persons holding the post of Technical Assistant or Communication Assistant on the date of promulgation of these Rules and fulfilling the following conditions shall be eligible for consideration for promotion, without having to pass any qualifying examinion:- a) Should be atleast Matriculate or should possess equivalent qualification,
b) Should be either permanent or quasi-permanent in the grade. c) should have atleast 5 years service as Technical Assistant or Communication Assistant. In case, Technical Assistant or Communication Assistant with requisite length of service as indicated at (i), (ii) & (iii) equal to the number of posts above, are not available for consideration for promotion, Technical Assistants or Communication Assistant with a combined service of 10 years in the grades of Technical Assistants or Communication Assistants and Radio Technicians or Radio Operators respectively would be considered for promotion.
5. The respondents further submit that promotion was accorded to M/s.S. Vasantha, Garward and Amerjit Singh according to the Service Rules. They are Diploma holders and in terms of the Service Regulations, they were eligible for promotion to the post of Assistant Technical Officer on completion of 5 years of Service. The petitioners were promoted as Assistant Communication Officers after their completion of their eligibility course as per the Service Rules. The petitioners could not be promoted until they could successfully complete the eligibility course. In terms of the Service Rules, a pass in the eligibility course is a must and cannot be dispensed with. The representations of the petitioners were duly considered and they were replied stating that the petitioners could not be considered for promotion till they successfully completed their eligibility course. The Departmental Promotion Committee meeting was held in the year 1991 for filling up 17 posts of Assistant Technical Officers. Even by extending the zone of consideration by five times, the number of vacancies for consideration for SC/ST candidates, the petitioners could not figure even in the extended zone of consideration. Consequently, the first petitioner could not also be promoted against the vacancies pertaining to the year 1991. Further they could not be promoted as they have not completed the eligibility course as per the Service Rules. Admittedly, the petitioners have not passed the eligibility course till 29.2.1 988 and hence they were not promoted along with the other Diploma holders.
6. Learned counsel for the petitioner after reiterating the submissions in the affidavit filed in support of the petition, contended that the requirement for passing the eligibility certificate was mandatory and that the petitioners do not dispute the same. The petitioners are mainly aggrieved by the fact that the petitioners were deliberately not sent for the eligibility course, inspite of the fact that they had completed five years and were seniors to the named individuals. In the counter, the respondents have not given any reason for such a discrimination and as to why they were not sent for training. The respondents have deliberately practiced discrimination and there was absolutely no justifiable reason for not sending them for the eligibility course.
7. Though the learned counsel for the respondent took me through the regulations relating to the qualifications for the promotions to the post of Technical Assistants, he has not been able to provide any explanation as to why the petitioners were not sent for the eligibility course as and when their claims based on their seniority became due. Apart from the fact that the counter affidavit is totally silent on this contention of the petitioner, the learned counsel for the respondent is also unable to provide any explanation for the said default. The only answer which he could give is that employees were sent for eligibility course only on the basis of area wise selection and deputation. The said contention cannot be sustained at all. The eligibility course is made compulsory for the purpose of promotion and candidates should have been sent in accordance with seniority and not on the basis of area where they work which is purely incidental or accidental. The action of the respondent amounts picking and choosing, irrational and highly arbitrary. Such action is not only irrational, but also discriminatory, which has resulted in completely shutting out the opportunities of the petitioners to be promoted and they also belong to SC/ST community. The only reason, which was projected before me, namely that the Communication Assistants were being sent to Eligibility test only on the basis of area wise distribution. The said reason does not stand the test of reasonableness or fairness by any stretch of imagination. If promotion is to be restricted only to persons working in a particular area and denied to persons because they are working in another area and admittedly they belong to a common cadre and seniority list, it only reflects an intentional and unreasonable discrimination. The respondents should have strictly followed the Seniority in sending the candidates for the eligibility course to acquire the said qualification so as to be eligible to be promoted to the higher post. Apart from the fact, that the petitioners belong to SC/ST community, they are also graduates and therefore better qualified when compared to the three other named juniors, who are only Diploma holders. There is absolutely no justification for such a glaringly perverted and arbitrary exercise of power by the respondents.
8. Learned counsel for the respondent raised a further objection that the three juniors who have been named in the affidavit have not been impleaded as parties. I do not think the said objection should stand in the way for this Court to grant relief to the parties when the promotion policy pursued by the Government is totally arbitrary, discriminatory and illegal. The issue relates to the legality of the promotion policy adopted by the employer and there is no intersedispute between the petitioners and the other individuals. There is no controversy over the petitioners being their seniors. They do not seek to disturb the promotion of those individuals. Their demand is to be placed above their juniors and for consequential benefits for which they are positively entitled to.
9. With the result, the petitioners are entitled to succeed and the writ petition is ordered as prayed for.
National Airports Authority,
Rajiv Gandhi Thavan,
New Delhi – 110 003
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