SHYAM J MALKANI Vs. AIR INDIA
LAWS(DLH)-2007-7-211
HIGH COURT OF DELHI
Decided on July 09,2007

SHYAM J.MALKANI,RAGHUVANSH NAG S/O LATE R.K.DASS NAG Appellant
VERSUS
AIR INDIA Respondents

JUDGEMENT

KAILASH GAMBHIR, J. - (1.) By way of this comm/2005 and 11058-74/2005 are being disposed of. Petitioners who have been working as Assistant Managers with the respondents feeling aggrieved with the impugned order dated 08.11.2004 issued by the respondents have moved the present writ petition seeking quashing of the Promotion Policy of the respondents dated 15.06.1988 and the order dated 06.07.2004 vide which the percentage promotability from the grade of Assistant Managers to Deputy Managers was brought down from 90% to 30% and for quashing of all the promotions of the persons junior to the petitioners with further directions to promote the petitioners to the grade of Deputy Managers with all consequential benefits.
(2.) The facts necessary for the disposal of the present writ petition in brief are that the petitioners have been working on the post of Assistant Managers for the last more than 25 years. The petitioners have claimed that they are entitled to be promoted to the grade of Deputy Managers in terms of the Promotion Policy formulated by the respondents but the lawful claim of the promotion to the post of Deputy Manager has been ignored by the respondents by promoting the persons junior to the petitioners. The petitioners have also seriously challenged the allocation of 40% marks in the hands of the Interview Board under the Promotion Policy of the respondents dated 15.06.1988 on the ground that such high percentage of discretionary marks in the hands of the Interview Panel gives them ample power to manipulate in a manner where candidates scoring high percentage in their annual performance appraisal reports can be denied the promotion by awarding them lower marks in the interview and at the same time, persons scoring lower percentage in the annual performance of the appraisal reports can be made successful by awarding them higher percentage in the interview marks. The allocation of 40% discretionary marks as per the petitioners is, thus, arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The petitioners have also contended that in order to keep the petitioner out of the criteria, the respondents have tampered with the appraisal reports of the petitioners more particularly in the case of petitioner No.2 " Mr. Ashok Tyagi in W.P.(C) No.4998-07/2005. The respondents have lowered the percentage promotability of eligible officers from the post of Assistant Manager to the grade of Deputy Manager, initially, from 90% to 50% and thereafter by further reducing the same from 50% to 30% without getting any approval from the Competent Authority and without circulating the same in advance amongst the eligible persons. The petitioners have claimed that all of them were to be taken into consideration for promotion to the grade of Deputy Manager as they duly fulfilled the eligibility and requisite criteria in terms of the Promotion Policy. The petitioners have also challenged the action of the respondents in downgrading the appraisal report of Mr. Ashok Tyagi - petitioner No.2 in W.P.(C) No.4998-07/2005 from Grade 'A' to Grade 'B+' for the period 01.01.2003 to 31.12.2003 and 01.01.2004 to 30.06.2004 in order to deny him the promotion in violation of law and principles of natural justice. The communication dated 25.08.2004 made in this regard by the respondents through their Commercial Director, namely, Mr. V.K. Verma has been termed as malafide and arbitrary on the part of the respondents. The petitioners have also seriously challenged the allocation of marks in interview quite contrary to the marks given in the appraisal reports although five attributes which form part of the personal interview are more or less the same for allocating marks against appraisal report. The promotion vide impugned order dated 08.11.2004, has thus been challenged by the petitioners as the persons junior to the petitioners have been promoted under the said wrong policy and manipulative exercise of the respondents. The petitioners have also contended that all the petitioners had scored much more than the successful persons in their annual appraisal reports and by giving more marks in the interview the respondents have favoured their own persons although they scored much less in the rating against the annual appraisal reports. The petitioners, thus, claimed the following reliefs in this writ petition:- "(a) to summon the original record, including original appraisal report and the interview board proceedings, conducted by the respondents for promotion from Assistant Managers to Deputy Managers, held in the month of August, 2004, in the interest of justice; (b) to quash the promotion policy of the respondents, which gives 40% discretionary marks in the hands of the interview panel, which are arbitrary, unreasonable, manipulated and are violative of Article 14 of the Constitution of India. (c) to quash the Order dated 6.7.2004 vide which the percentage promotability from the grade of Assistant Manager to Deputy Mangers has been brought down from 90% to 30%, as is envisaged in the Promotion Policy, in the interest of justice. (d) to quash all the promotions of the persons junior to the petitioners made by the respondents, pursuant to the Promotion Policy dated 23rd Feb, 1996 and 28th July, 2000, held in August, 2004, in the interest of justice. (e) to quash the impugned Order dated 8th November, 2004, in the interest of justice. (f) to direct the respondents to promote the petitioners to the grade of Deputy managers from the date their juniors have been promoted and with all consequential benefits arising out of the same, in the interest of justice, along with the costs; and (g) any other order/direction, which this Hon'ble Court may deem fit and appropriate, may kindly be passed in favour of the petitioners and against the respondents, in the interest of justice."
(3.) The respondents in their counter affidavit have seriously disputed the contentions raised by the petitioners. The respondents have contended that the respondent company, i.e., Air India had proposed to carry out one time time- bound promotion exercise to the next higher grade of incumbents in the grade of Assistant Manager to Deputy Manager and Deputy Manager to Manager and from Manager to Senior Manager and this exercise of granting one-time promotion in the year 2004 was undertaken strictly in accordance with the laid down promotion procedures and guidelines. The respondents have also stated that the main criteria for selection was outlined in the circular issued by the Director, Human Resource Department of the respondents vide Circular dated 06.07.2004, salient points of which have been set out by the respondents in their counter affidavit are as under:- "(a) The promotion exercise for General Cadre Officers will be carried out with the cut-off date of July 1, 2004, and will be applicable for promotion to the grade of Dy. Manager, manager and Senior Manager. (b) All the incumbents who have completed 6 years in their present grade as on the cut-off date will be eligible. (c) The percentage promotability on the number of eligible incumbents will be as given in the table. Fractions will be rounded off, subject to a minimum of one promotion viz. 1.6 will be rounded to 2, 1.4 will be rounded to 1 and 0.4 will be rounded to 1. Table Promotion from Promotion to Percentage promotability Assistant Manager Deputy Manager 30% Deputy Manager Manager 20% Manager Senior Manager 10% (d) The Appraisal Reports to be considered for the purpose of this Promotion exercise will be of the years 2002, 2003 and the interim appraisal report up to June, 2004 (e) The promotions will be subject in the percentage promotability specified for the grade and the suitability of the eligible incumbents as per the existing framework of promotion policy and procedure....";


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