Dismissed

B. Rajendra Kumar v. the Airport Authority of India

Kerala HC7 Jan 2019WP(C)/27283/2016

Case brief

AI extract

What is this about?

In this writ petition challenging a rejected promotion plea, the court examined the职业发展 channels for Non-executive employees of Airport Authority of India post 2001. The court held that specific benefits for Accounts cadre under R6(a) do not extend to the applicant in HR cadre, and rejected the claim for retroactive promotion.

What did the court decide?

The declaration that the petitioner is entitled to promotion under old guidelines was rejected; the writ petition was dismissed.

B. Rajendra Kumar Vs the Airport Authority of… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY ,THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940

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WP(C).No. 27283 of 2016

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PETITIONER/S:

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B. RAJENDRA KUMAR AGED 46 YEARS S/O. LATE G.BALAKRISHNA NAIR, SENIOR SUPERINTENDENT(HR), AIRPORT AUTHORITY OF INDIA, THIRUVANANTHAPURAM, RESIDING AT SREEGANESH, TC 77/440, CHACKAI, PETTAH P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT/S:

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1 THE AIRPORT AUTHORITY OF INDIA AA-1 CORPORATE HEAD QUARTERS, RAJEEV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI-110 003, REPRESENTED BY ITS CHAIRMAN.

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2 THE MEMBER (HUMAN RESOURCES), THE AIRPORT AUTHORITY OF INDIA, AA-I CORPORATE HEAD QUARTERS, RAJEEV GANDHI BHAVAN,SAFDARJUNG AIRPORT, NEW DELHI-110 003.

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3 THE EXECUTIVE DIRECTOR (HR) THE AIRPORT AUTHORITY OF INDIA, AA-1 CORPORATE

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HEAD QUARTERS, RAJEEV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI-110 003.

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4 THE REGIONAL EXECUTIVE DIRECTOR THE AIRPORT AUTHORITY OF INDIA, SOUTHERN REGION, AIRPORT, CHENNAI-27.

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5 THE GENERAL MANAGER (HR) THE AIRPORT AUTHORITY OF INDIA, REGIONAL HEAD QUARTERS, CHENNAI-27.

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6 THE AIRPORT DIRECTOR THE AIRPORT AUTHORITY OF INDIA, THIRUVANANTHAPURAM-695 008.

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BY ADV. SRI.V.SANTHARAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 7.1.2019, DELIVERED THE FOLLOWING:

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W.P.(C) No.27283 of 2016

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V.G.ARUN, J.

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---------------------------------- W.P.(C) No.27283 of 2016

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Dated this the 7^th day of January, 2019

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JUDGMENT

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The petitioner had joined service in the erstwhile

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International Airport Authority of India, on 6.7.1992, as Assistant Grade-III. The International Airport Authority and the National Airport Authority were merged on enactment of the Airport Authority of India Act, 1994 which came into force on 1.4.1995. With the advent of the Airport Authority of India Act, the International Airport Authority and the National Airport Authority ceased to exist. The scales of pay, fitment formula and dearness allowance (DA) of the Non-executives in the Airport Authority of India was revised as per Ext. P1 Office Order. Under Ext P1, new Non-executives grades were introduced, to be operative from 1.8.2001. Accordingly, the grade of Assistant was made equivalent to NE-5 level, that of Senior Assistant to NE-6, Supervisor to NE-7, Superintendent to NE-8 and Senior

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Superintendent to NE-9.

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The petitioner was promoted to the post of Senior Assistant (office) (NE-6) on 1.3.2005, thereafter as Supervisor (office) (NE-7) on 1.3.2007, Superintendent (office) (NE-8) on 1.7.2012 and placed in the Grade of Senior Superintendent (HR) (NE-9) on 1.7.2014. The Airport Authority of India had formulated Ext.P2 guidelines governing the recruitment and promotion of its employees. As per Clause 22 (iv) of Ext P2 guidelines, employees in position as on 31.7.2001 having line of promotion from NE-6 to NE-8 or NE-6 to NE-9 shall be granted promotion, against supernumerary posts in NE-8 or NE-9 as the case may be, on completion of 8 years regular service in NE-6. It is made clear in Ext.P2 that, such promotion would be granted as a one time measure, subject to the promoted employees giving irrevocable written undertaking that they will follow this channel of promotion. As per Clause 22(iv)(iii) of Ext.P2 Guidelines, it is specified that the new incumbents appointed in NE scale on or after 1.8.2001 will follow the normal promotion channel, i.e, from NE-6 to NE-7 and onwards. It is not in dispute that the petitioner

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was promoted to the NE-6 Grade only on 01.03.2005 and therefore, he was not entitled for promotion to NE-8 or NE-9, in accordance with Clause 22(iv) of Ext P2.

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The grievance of the petitioner is that, persons who are identically situated and holding identical posts of Senior Assistant (Accounts) (NE-6), in the Finance Division were granted the benefit of promotion from NE-6 to NE-9, in the manner provided under Clause 22 (iv) of Ext.P2 guidelines, in spite of those persons having failed to satisfy the requirements specified in the clause. It is submitted that the petitioner had filed Ext.P4 representation pointing out specific instances of such promotion being granted to persons who were not in position as on 31.7.2001, as envisaged in Clause 22 (iv), and had demanded that the competent authority may take necessary action to promote him also as per the old Recruitment and Promotion (R&P) Rules, which was the basis for granting promotion to the persons mentioned in his representation. The petitioner's request was rejected as per Ext.P7, stating that the grant of benefit of promotion from Senior Assistants (Accounts) to Superintendent

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(Accounts) was done as per the old R&P guidelines, with reference to CHQ Order dated 7.2.2012 and that the orders were specifically issued for Accounts Cadre from CHQ. In Ext P7 it was further stated that since the petitioner belongs to HR Division, his request for promotion to the post of Superintendent (office) on completion of 3 years, i.e; at par with Superintendent (Accounts), cannot be considered. Aggrieved by the rejection of his request, the writ petition was filed seeking to quash Ext.P7 and for a direction to the 5^th respondent to pass orders promoting the petitioner from the post of Senior Assistant (office) (NE-6) to Senior Superintendent (NE-9) on completion of 3 years with effect from 1.3.2008, at par with Superintendent (Accounts) (NE8) under the respondents, as granted to the new incumbents as per Exts.P5 to P7 orders. In the Writ Petition and during the course of hearing, it was contended that having promoted identically situated persons, the respondents could not have rejected the petitioner's request for similar treatment and that such rejection amounts to discrimination and arbitrary exercise of power.

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On behalf of the respondents, a counter affidavit and an additional counter affidavit is filed, justifying the rejection of petitioner's request for promotion vide Ext. P7. The respondents rely on Ext. R6(a) letter dated 9.6.2001 issued by the CHQ, with specific reference to the stipulations therein that the Accounts Assistants in NAD appointed in the pay scale of Rs.2950-5070, on completion of 3 years service on or after 1.4.1996, may be placed in the scale of pay of Rs.3300-5820 and designated as Superintendent (Accounts). It is submitted that based on such stipulation in Ext. R6(a), all Senior Assistants(Accounts) attached to the Southern Region, appointed during 2001 i.e, on or after 1.8.2001, were placed in NE-8 scale and designated as Superintendent (Accounts) during 2004 and that on completion of 2 years they were placed as Senior Superintendent (Accounts) during the year 2006. It is pointed out that Ext.P2 Guidelines was given effect to as per Ext.P3 Regulations only w.e.f. 8.6.2006, wherein it is provided that “for the employees in position on 31.7.2001, the channel of promotion is from NE-6 to NE-8/NE-9 and that the new incumbents appointed in NE scale on or after

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1.8.2001 will follow the normal channel of promotion i.e, NE-6 to NE-7 onwards”. It is further stated in the counter affidavit that 28 Accounts Assistants, who were directly selected and issued with appointment orders on 26.7.2001, i.e; before 31.7.2001 and had joined on various dates in August, 2001, were promoted as Superintendent (Accounts) as per the old R&P guidelines, since the new R&P guidelines was introduced only during 2006. That the competent authority had approved the promotion thus granted to the Accounts Assistants appointed on or after 1.8.2001.

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In order to resolve the issue raised by the petitioner, the circumstances under which Senior Assistants (Accounts) were promoted as Superintendent (Accounts) has to be considered with reference to the relevant orders/regulations. Ext.R6(a) dated 9.6.2001 was issued by the Airports Authorities of India for rectification of anomalies in connection with adoption of unified pay scales and designations for non-executives in AAI. A reading of Ext.R6(a) would show that the rectification order was issued after consideration of individual grievances and representation

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from the employees Union, by an anomaly committee. Clause 3. (viii) of Ext.R6(a) reads as follows:

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“The Accounts Assistants in NAD appointed in the scale of Rs.2950-5070 on completion of three years of service on or after 1.4.1996 may be placed in the scale of pay of Rs.3300-5820 and designated as Superintendent (Accounts).”

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Ext.P1 is the office order dated 13.8.2001 revising the scales of

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pay, fitments formula and dearness allowance (DA) to Nonexecutives in the Airports Authorities of India. Clause 31.1 of Ext.P1 deals with new grades and future induction of Nonexecutive Grades to be operative from 1.8.2001. Anneuxre A1 to Ext.P1 is the table showing the pay scale of Non-executives w.e.f. 1.1.1997. As would be evident from Annexure A1, the new level NE-6 is equivalent to the post of Senior Assistants with scale of pay of Rs.2950 -5070. The post of Superintendent is equivalent to level NE-8 with scale of pay of Rs.3300-5820. Therefore, the respondents were justified in promoting the Senior Assistants (Accounts) to the post of Superintendent (Accounts) based on Clause 3.viii of Ext.R6 (a).

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The guidelines for Recruitment and Promotion in the

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Airports Authorities of India was formulated and published as per Ext.P2. Clause 22 of Ext.P2 deals with promotions in Nonexecutive Grades (Group B, C and D posts). Clause 22.iv specifically deals with promotion from the post of Senior Assistants (NE-6) to Supervisor (NE-7). It would be apposite in this context to extract Clause 22.iv of Ext.P2 Guidelines, which reads as under:

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“ iv) SENIOR ASSISTANT (NE-6) [PRE-REVISED- **6300-12060] [REVISED-** 14500-33500] TO SUPERVISOR (NE-7) [PRE-REVISED- **6500-12860] [REVISED-** 15000-35500]-CLUSTER POSTS

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Sr. Assistant (NE-6) with 2 years regular service in the grade will be placed as Supervisor in the pay scale (NE-7) without pay fixation benefit within the total number of posts sanctioned for NE-6 and NE-7 subject to the condition that no disciplinary case is pending and the performance is satisfactory.

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The posts in the cluster can be operated at the higher level within the total number of sanctioned posts in NE-6 and NE-7. Employees in position as on 31.07.2001 having line of promotion from NE-6 to NE-9 or NE-6-to-NE-9 shall-be granted promotion, accordingly, as one time measure against supernumerary posts in NE-8 or NE-9 as the case may be on completion of 8 years regular service in NE-6. On such promotion, the employees will be entitled for pay fixation benefit. However, such promotions will be granted to them subject to their giving irrevocable written undertaking that they will follow this channel of promotion. In such cases while the promotion will be retrospective from the date of eligibility, the actual financial benefit will be allowed only from 01.02.2010.

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On promotion to NE-8/NE-9, as the case may be, the resultant vacancies in NE-6 will be filled up on the basis of the then prescribed ratio i.e., 40:30:30. Likewise, the

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number of supernumerary posts being utilized at NE-8/NE-9 shall cease to exist in the event of the incumbent vacating that position on account of promotion / transfer/retirement/ resignation/ death etc.

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The supernumerary posts so created at NE-8 or NE-9 level shall be adjusted against future vacancies as when they occur.

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(i) If officials who were in NE-6 as on 31.7.2001 and had opted for movement from NE-6 to NE-9 have, despite their option moved under cluster from NE-6 to NE-7 and NE8, they may also submit their request for promotion as per their original option in case they are willing to move from NE-6 to NE-8 or NE-9 directly in place of cluster promotions already availed by them. However, dual benefit is not permitted.

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(ii) In such cases, the benefit of pay fixation in NE-7 and NE-8, if any, will be adjusted.

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(iii) A vacancy register will be maintained to keep a record of such promotions being made against future vacancies and to ensure that all such promotions are, in fact, adjusted against future vacancies, as and when they arise, in terms of CHQ Order No.A.32015/02/2010-EH 834 dated 09.04 2010.

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Refer Order No. Pers/MPP /1126/2006 dated 01.02.2010, 14/ 05/2010 & 06.02 2012.

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The new incumbents appointed in NE-6 scale on or after 01.08.2001 will follow the normal promotion channel ie, from NE-6 to NE-7 and onwards.”

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It is clear from a reading of the above clause that even though as

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per Ext.P2 Guidelines, the normal promotion route is from the

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post of Senior Assistants (NE-6) to that of Supervisor (NE-7), an exemption has been culled out for employees in position as on 31.7.2001, for being promoted from NE-6 to NE-8 or NE-9 as a

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one time measure. It is further provided that officials who had opted for movement from NE-6 to NE-9, but were moved under

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cluster from NE-6 to NE-7 and NE-8, despite their option, could submit their request for promotion as per their original option. Therefore, if the petitioner had any grievance that, despite his option for promotion from NE-6 to NE-9, he was moved under cluster from NE-6 to NE-7 and NE-8, it was open for the petitioner to have requested for promotion in accordance with his option. Either in the writ petition or during the course of argument, the petitioner has not advanced a case that pursuant to the introduction of Ext.P2 Guidelines, he had opted for promotion from NE-6 to NE-8 or NE-9 as per the old R&P Guidelines and that such option was not considered.

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Ext.P3 Regulations was introduced with effect from 8.3.2006. Clause 22 (iv) of Ext.P3 Regulations also stipulate that incumbents in NE-6 appointed on or before 31.7.2001 will have option for the promotion to NE-8/NE-9. Clause 33 of Ext.P3, falling under the saving and repeal Section contains a protective clause which reads as under:

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“In accordance with the protective clause in the memorandum of understanding, Non-executives in the service in a particular grade as on 31.7.2001 will

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follow the process of selection for moving to the next higher promotable grade under the then existing regulations as a one time measure.”

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In the light of the above mentioned clauses, the respondents were well within their rights to have promoted the Senior Assistants (Accounts) (NE-6), who were in position as on 31.7.2001, as Superintendent (Accounts) (NE-8), prior to the introduction of Ext.P3 regulations. In this context, it may also be relevant to take note of Exts.P5 and P6 documents. Ext.P5 is a communication dated 3.1.2011 issued by the General Manager (Personnel) of AAI stating that the competent authority had decided to cancel the placement to Grade NE-8 granted to 82 Senior Assistants (Accounts) (NE-6), appointed on or after 1.8.2001, and that those employees were to follow the cluster movement for placement/promotion as provided in the R&P Regulations of 2005. The direction in Ext.P5 was immediately revoked, as evident from Ext.P6 letter dated 7.2.2012, where under it was intimated that the issue was re-considered and a decision taken by the competent authority to revoke the order dated 3.1.2011 (Ext.P5), withdrawing promotions and effecting

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recoveries. In this regard, it may be pertinent to note that there is no challenge against Ext.P6 in the writ petition and more importantly none of the Senior Assistants (Accounts), who were granted promotion in accordance with Ext.R6(a) are made parties to the writ petition.

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As has been rightly contended by the learned counsel for the respondents, under Ext.R6(a), a benefit was granted to Senior Assistants in the Finance Division, which cannot either be assailed or parity claimed, by the petitioner who belongs to the HR Division. Further, the petitioner had made a representation requesting for promotion as per the old R&P Guidelines for the first time only in the year 2015, by which time he had already been placed in the Grade of Senior Superintendent (HR) at level NE-9. In such circumstances, the rejection of the petitioner's request as per Ext.P7 cannot be faulted. Consequently, the challenge against Ext.P7 fails. For the reasons mentioned above, the declaration sought by the petitioner that he is entitled to get promotion from the post of Senior Assistant (Office) (NE-6) to Senior Superintendent (NE-9) on completion of three years with

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effect from 1.3.2008 at par with Superintendent Accounts (NE-8), cannot also be granted. Therefore, the petitioner is not entitled

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for any of the reliefs claimed in the writ petition and accordingly,

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the writ petition is dismissed.

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Sd/V.G.ARUN JUDGE

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cms/scl/07.01

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	COPY OF THE ORDER NO.A.60011/40/2001-IR DATED 13.8.2001 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2	COPY OF THE ORDER FOR RECRUITMENT AND PROMOTION GUIDELINES ISSUED BY THE RESPONDENTS.
EXHIBIT P3	COPY OF THE ORDER NO.PERS/MPP/1126/1/89U)/337 DATED 8.6.2006 ISSUED BY THE RESPONDENTS.
EXHIBIT P4	COPY OF THE APPLICATION DATED 29.7.2015 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P5	COPY OF THE ORDER NO.A.32016/1/2010-EF DATED 3.1.2011 ISSUED BY THE RESPONDENTS.
EXHIBIT P6	COPY OF THE ORDER NO.A-32016/1/2010-EF DATED 7.2.2012 ISSUED BY THE RESPONDENTS.
EXHIBIT P7	COPY OF THE ORDER NO.AAI/SR/M/2- 7(2)/EH/801 DATED 8.6.2016 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.
EXHIBIT P8	COPY OF THE APPLICATION DATED 15.6.2016 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P9	COPY OF THE JUDGMENT DATED 27.5.2011 IN WPC NO.6415/2008 OF THIS HON'BLE COURT.

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RESPONDENT'S EXHIBITS:

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R6(A): TRUE COPY OF THE COMMUNICATION NO.MPA/5/MISC/2001 DATED 9.6.2001.

B. Rajendra Kumar v. the Airport Authority of India

Case brief

What is this about?

What did the court decide?

B. Rajendra Kumar v. the Airport Authority of India

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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