D. P. WADHWA ( 1 ) THE petitioner is a Commander In the Indian Airlines, the first respondent. He is aggrieved bythe action of the first respondent in not appointing him to thenext higher post of the Deputy Operations Manager and ratherappointing respondent 2 to 22 who are junior to him to thispost by order No. 34/90 dated 10-4-1990. The petitioner. therefore, seeks, quashing of this promotion order and furtherseeks a direction to the first respondent to appoint the petitionerto the post of Deputy Operations Manager retrospectively w. e. f. 1/02/1990. He also seeks certain other directions connected with this. ( 2 ) FIRST respondent is a body corporate constituted underthe Air Corporations Act, 1953 (for short the Act ) and itsaffairs are governed by the Board of Directors as mentioned insections 3 and 4 of the Act. Under section 44 of the Act,the Central Government has power to make rules to give effectto the provisions of the Act and under section 45 the firstrespondent has been given power to make regulations notinconsistent with the Act and rules made thereunder. Theseregulations are, however, to be made by notification in theofficial gazette. Under cluase (b) of sub-section (2) of section45, the first respondent is empowered to make regulations inconnection with the terms and conditions of service ofofficers and other employees of the first respondentother than the Managing Director, etc. and under sub-section (3)no such regulation shall be made except with the previousapproval of the Central Government. The first respondentmade regulations called (1) Indian Airlines Employees (otherthan Flying Crew and the Aircraft Engineering Department)Regulations, (2) Indian Airlines (Flying Crew) Service Regulations, and (3) Indian Airlines Employees (Aircraft Engineeringdepartment) Service Regulations. We are concerned with theservice regulations for Flying Crew. Under Regulation 14 anemployee of the first respondent is eligible for promotion to thehigher scale in accordance with the regulations made by theindian Airlines from time to time. The Flying Crew Regulationscontain Appendix I giving scales and designations of (Flying)Operations Department. Under Regulation 9 every personappointed to a service or post is to undergo a certain period ofprobation. From the Second Officer, as given in the Appendix I,the higher officers are First Officer, Flight Engineer, Captain,commander, Deputy Operations Manager, Operations Manager/deputy Director of Operations, Regional Director (Pilots),director of Operations, Deputy Managing Director and Managingdirector and their pay scales are prescribed. Under Regulation 9 every personappointed to a service or post is to undergo a certain period ofprobation. From the Second Officer, as given in the Appendix I,the higher officers are First Officer, Flight Engineer, Captain,commander, Deputy Operations Manager, Operations Manager/deputy Director of Operations, Regional Director (Pilots),director of Operations, Deputy Managing Director and Managingdirector and their pay scales are prescribed. We weretold under powers conferred by Regulations 4, 7 and8 of the Flying Crew Regulations, the first respondentframed Recruitment and Promotion Rules (R and Rules ). Some of the relevant provisions of these rules will have tobe referred to. In the Schedule to these rules, post of Commanderfalls in Grade XVIA under Cadre VI pertaining to Operationsdepartment. Under Cadre VI first post is that of the Secondofficer and is to be filled by direct recruitment. There are postsin ascending order of First Officer, Captain, Commander, Checkpilot, Flying Instructor. Chief Flying instructor and Chief Pilotwhich are all to be filled in by promotion. The next post is ofgrade XVIII under Cadre VI and is that of Operations Manager. This is to be filled in by direct recruitment or promotion. The lastpost in this_ Cadre is Grade XIX and is that of Director of Operations which is again to be filled in by direct recruitment orpromotion. Except for the post of Director of Operations, allother posts are technical posts. Contention of the petitioner isthat the post of Chief Pilot which is of Grade XVIB was redesignated as Deputy Operations Manager, According to him, thereforemethod of appointment to the post of Deputy Operations Manageris by promotion. The respondent, however, says that the post ofchief Pilot was abolished in the year 1971 and the post wasupgraded and designated as Deputy Operations Manager (seeappendix I to Crew Regulations) and mode of recruitment tothis post is either by promotion or direct recruitment. Theyfurther say that this post of Deputy Operations Manager is ingrade XVII while the Chief Pilot in Grade XV (. B. Then therespondent says that ever since the creation of the posts ofdeputy Operations Manager these have always been filled bythe process of selection which is akin to the process of directrecruitment, the only difference in this process being that thecandidates so selected are from within the organisation and thatthe pests as such are not advertised. It says this method hasbeen adopted since the year 1971. It is interesting however. It says this method hasbeen adopted since the year 1971. It is interesting however. to note that the R and P Rules, which have been brought on recordand even produced at the time of hearing, do not show the postof Deputy Operations Manager in the Schedule while that ofchief Pilot has been shown. From these rules, therefore, it cannotbe said that any such post of Deputy Operations Manager is tobe filled by direct recruitment or promotion. Our attention wasdrawn to the Minutes of the Board of Directors of the firstrespondent held on 30/07/1970. Item 5 of these minutes isrelevant for our purpose and is reproduced below :"5 Amendment to recruitment and promotion rules : 9. Chairman stated that the method of recruitment to allposts in Grade 15 in all the non-technical departments, except Account, and Audit Departments, wasspecified in the Recruitment and Promotion Rulesas direct Recruitment or Promotion . But the methodof appointment to posts in Grade 15 in the Accountsand Audit Departments had been laid down as direct Recruitment 50 per cent-Promotion 50 per10. The term direct Recruitment as used in the Airlinesmeans a process of selection on merit from withinwhile promotion implies appointment to the nexthigher grade only by seniority subject to there beingno adverse entry in the Annual Confidential Repoerts. CHAIRMAN stated that Grade 15 is a crucial grade. At this stage, the Management should pick up goodand efficient persons because thereafter these officershad to move to upper managerial cadre. It was. therefore, necessary that this anomaly in the case ofaccounts and Audit Departments should be removedand appointment to Grade 15 should be made onthe basis of merit only. 11. As regards the Operations Department, Chairmanstated that with the approval of the Board, the postof Chief Pilot in Grade 16b had been upgraded tograde 17 and designated as deputy Operationsmanager . The post of Deputy Operations Managerbelongs to upper managerial cadre and, therefore itwas essential that it should be filled up by directrecruitment or promotion at the discretion of themanagement. 12. After some discussion, the Board accorded its approvalto the changes in the Recruitment and Promotion Rulesas proposed in the Memorandum. ( 3 ) COMING back to the Randp Rules, Rules 9, 10 (c), 11,12 and 13 falling in Chapter IT relating to direct recruitment, areas under:- "9. All posts available for direct recruitment shall begiven the widest possible publicity and, in particular. ( 3 ) COMING back to the Randp Rules, Rules 9, 10 (c), 11,12 and 13 falling in Chapter IT relating to direct recruitment, areas under:- "9. All posts available for direct recruitment shall begiven the widest possible publicity and, in particular. following steps shall be taken :- (A) An advertisement incorporating the minimum qualifications and experience necessary for all posts. except those in Grade I and II, shall be insertedto such of the leading newspapers as may appearnecessary. 37 (B) Alt applications received at Headquarters andregions shall be registered in the Administrativeand Personnel Branch and a record of the samemaintained by a classification into occupationalgroups. (C) Local Employment Exchange may be approachedin case of recruitment to Grades I and II and maybe approached in other cases also with a view tosuggesting suitable candidates. (D) A public notice indicating the existence of vacancies shall be put upon the Notice Board at Localoffices of the IA and the Workshops. (E) Those already in the employment of the Corporation shall be entitled to apply for any of the postssubject to eligibility: PROVIDED that in emergent cases, the procedure outlines in1 (a) above may be dispensed with in respect of Regions withthe permission of the Regional Director and in other case withthat of the Chairman/general Manager: PROVIDED that in selecting the candidates, ail things beingequal, existing employees of the Corporation from the gradesor inter-linked grades immediately below shall be given the firstpreference and 'retrenched', ex-employees of the former constituent Airlines shall be given second preference provided theyare suitable in all respects. " "10. There shall be Recruitment Boards constituted asfollows:- (a ). . . . . . . . . . . . (b ). . . . . . . . . (e) (I) For vacancies in Grade X and upwards : Recruitment Board shall consist of :1. Head of the Department concerned at Headquarters. 2. Secretary. 3. An officer to be nominated by the General Manager. (II) Before the Promotion Committee meets at Headquarters, the Regional Director will be asked to makerecommendations in regard to eligibility for promotion. The eligible officer will, in the first instance bereported upon by the Regional Departmental Headsand then the Regional Director will forward therecommendations to the Headquarters Departmentalheads. NOTE : 1. For upper Managerial grade the appointing authorityb may constitute such adhoc Boards as are necessary for thepurpose. The eligible officer will, in the first instance bereported upon by the Regional Departmental Headsand then the Regional Director will forward therecommendations to the Headquarters Departmentalheads. NOTE : 1. For upper Managerial grade the appointing authorityb may constitute such adhoc Boards as are necessary for thepurpose. 2, In the case of Recruitment Board for Technical personnela Technical Officer will be co-opted to assist the Board. 3. Both the Reruitment and Promotion Board will maintainrecords of their proceedings including the answer papers fortests conducted and marks sheets etc. (d ). . . . . . . . PROVISO : Notwithstanding the provisions of Rule 10, the General Manager may in any particular case constitute a Recruitmentboard consisting of such officers as he considers necessary. "11. The Recruitment Boards shall after due scrutiny of theparticulars of the candidates considered eligible in accordancewith Rule 9. invite such of them for test (Practical, written ororal) and also interview as may appear necessary. NOTE : In all such cases above Grade II, a writen test may beheld. In the case of Engineering Department, test must be heldin the case of technical personnel. " "12. The Recruitment Boards shall report the results oftheir selections to the Competent Authority in thematter of appointments as defined in the Instrumentof Delegation of certain Powers and Functions ofindian Airlines when the authority competent tomake the appointments shall proceed to do so. " "13. The Boards shall proceed to arrange their selectionsin order of merit and shall also keep a suitablenumber of candidates on the waiting list. Such awaiting list may be used for filling vacancies (hatmay arise subsequently but it will lapse after a periodof one year, when the procedure as outlined abovemay be followed afresh, provided that. . . . . . ". Rules 17 to 20 are relevant where there is appointmentby promotion and these are :- "17. Promotion Committee will bf established at Headquarters and Regions whose composition will be thesame as that of the Direct Recruitment Committees. 18. The Promotion Committee will meet from time totime and will draw up a panel of names of employees considered suitable for promotion in vacancies which may arise and which are to be filled bypromotion. Such a list will be reviewed every threemonths and earlier, if considered necessary. 19. 18. The Promotion Committee will meet from time totime and will draw up a panel of names of employees considered suitable for promotion in vacancies which may arise and which are to be filled bypromotion. Such a list will be reviewed every threemonths and earlier, if considered necessary. 19. The recommendations of the Promotion Committeewill be passed on to the competent authority in thematter of appointments as defined in the "instrumentof Delegation of certain powers and functions ofi. A. ". 20. Promotion will be on the basis of seniority in ihegrade or inter-linked grades below the grade concerned, subject to the fitness of the employee beingcertified by the competent authority in the followingform in the same manner as is prescribed in the caseof Crossing the Efficiency Bar under Rule 15 :-"certified that Shri/smt.-Designation-Grade - in view of his/her ability andintegrity, is fit to be promoted to Grade -. "designation. "rules 21 and 22, which are also relevant for our purpose,are as under :- "21. No employee can claim promotion as a matter ofright. The advancement of an employee will dependas much as his suitablity as on his relative standingwith the others eligible for promotion. 22. Promotions to Selection Grade will be on the basisof rigorous selection on merit from amongst the employees in Grades or inter-linked grades below thegrade concerned and shall be limited to the numberof posts declared as such on the cadre according tothe sanctioned strength from time to time. " ( 4 ) THE petitioner contended that the first respondent hasnot only violated the R and P Rules but also the directions ofthe Central Government conveyed to it by their letter dated 9/01/1987. This letter is as under :-"confidential No. Av. 18014/2/87-AC dated : 9-1-87. The Managing Director,indian Airlines,airlines House, New Delhi. Sir, THIS is with reference to your letters No. HPDO1'/01/1201 dated 2cmo-86 and 21-10-86, regarding selection tothe posts of Operations Manager in I. A. 2. Considering the fact that the present system of selection for promutions, due to its heavy weightage orinterview, has an element of subjectivity that maymake the promotion process look unfair, I am toadvise that Indian Airlines should strick to theseniority list/panel as it existed and not supersedeany one until and unless the person superseding hissenior (s) has an exceptional and outstanding performance record. 3. 3. It is also suggested that a system which is likely tolook to totally/substantially subjective, should notbe followed in future by the' Indian Airlines. Yours faithfully,sd/- (Dev Swarup) Director. " ( 5 ) ABOUT this letter the first respondent states thatit is not a direction. It does not tantamount to any direcion asenvisaged by section 34- of the Act and it is only an advice innature and, therefore, not binding on the first respondent. Therefore, it further says that this communication was in respect ofweightage given to the APA (Annual Performance Appraisal) andinterview and that it was on the basis of this advice that theapa marks and the inarks allowed for interview were revised as50 : 50 in December 1988 while earlier the marks were in theratio of 30 : 70. The petitioner also contended that the Selection Committee which was same both for direct recruitment andpromotion was not validly constituted. The committee comprisedof (1) Shri S. C. Rastogi, Director Systems, HQrs. (2) Capt. V. P. Singh, Operations Manager, Northern Region, (3) Capt. R. N. Tandon, Deputy Director of Operations, Hqrs. and (4)Shri J. K. Deb Burman, Deputy Commercial Director, Hqrs. , andwas constituted as under :-I. A. HEADQUARTERSThe following selection board for Deputy Operationsmanagers may please be approved :--1. Shri S. C. Rastogi, Director Systems, Hqrs. 2. Capt V. P. Singh, Operations Manager, Northernregion. 3. Capt. R. N. Tandon, Deputy Director of Operations,hqrs. 4. Shri J. K. Deb Burman, Deputy Commercial Director,hqrs. (Krishan Dev)Director of Personnel17-10-1989 ( 6 ) THIS committee was certainly not what the R and P Rulesstipulated. Reliance was then placed by the first respondent onproviso to rule 10. It was also stated that Secretary who washaving the same grade as that of the Deputy Operations Managercould not sit in the recruitment board. There is nothing, however,in the record to support this submission. The record also doesnot show if there was any decision by the Board of Directorsof the first respondent that the post of Deputy Operationsmanager shall be filled in either by promotion or by direct recruitment. Petitioner says even if it was direct recruitment, properprocedure was not followed. He said appointment could onlybe by promotion. He has also referred to his qualifications andexperience and has questioned the allocation of marks to interview of 50 per cent. Petitioner says even if it was direct recruitment, properprocedure was not followed. He said appointment could onlybe by promotion. He has also referred to his qualifications andexperience and has questioned the allocation of marks to interview of 50 per cent. In the recruitment rules, however, there isnothing to show as to how the marks are to be allocated in thecase of selection by interview. The petitioner also questioned thebona fides of the first respondent in selecting candidates up to No. 85 in seniority list when he was No. 17 in the list. He 'referredto his brilliant academic record and his record in the serviceof the first respondent as a Commander. He said he had' all theattainment to be appointed to the post of Deputy Operations Manager and his supersession was illegal both in law andon facts. In the second affidavit filed by the first respondent jobrequirements of the post of Deputy Operations Manager has beengiven Petitioner said that the. never got any adverse report andhis work had been commended all through and selection boardhad acted in most arbitrary manner. ( 7 ) RESPONDENTS 2 to 23 have not come forward to defendthe petition. Respondent No. 23 Capt. R. N. Tandon, batbeen added as ^ party as he being a member of the Selectiorcommittee is stated to be related to Respondent No. 13, acandidate for the post of Deputy Operations Manager, a factwhich has been denied by Respondent No. 23. The allegationwas, however, not pressed by the petitioner. ( 8 ) REFERENCE to respondents, therefore, is to the first respondent only. This respondent says that rules 17 to 20 are notrelevant and rule 21 is the most important rule. It says promotior. to the post of Deputy Operations Manager is made through theprocess of selection and the suitability of a candidate is determined on the basis of the interview as well as APAs for the lastthree years, and those found suitable are ranked in order oftheir existing inter se seniority. No candidate who has an adverseentry in his record during the last three years is considered. No candidate who has an adverseentry in his record during the last three years is considered. Respondent further says that it had increased the weightage toapa in matters of selection promotion from 30 per cent to50 per cent and thereby reduced the marks to be assigned tointerview from 70 per cent to 50 per cent in December 1988and that selection of Deputy Operations Managers had been doneon the basis of revised weightage. Respondent further says thatcandidates had been called for selection according to zone ofconsideration, i. e. , if there are more than three vacancies candidates are to be called in the ratio of I : 3. For selection of 21candidates for the post of Deputy Operation Manager, 60 candidates were called for interview out of which only 31 appeared, but22 were selected to be appointed. In the seniority the petitionertopped them all except one. All persons Junior to him have beenselected. Respondent further says that the interview board wasduly constituted in accordance with rule 10 and that Managingdirector was competent to do so. ( 9 ) AS to how there was a decision to promote by directrecruitment, reference has been made to a note dated 23/11/1970, which may be reproduced as under :__ia : HEADQUARTERSPersonnel Department)No. HQ/ga-XII 23/11/1970appointments-Deputy Operations Managerreference D. O. 's note on preceding page. 2. There are six vacancies in the post of Deputy Operationsmanager in Grade-17. These include two consequential vacancies of Operations Manager, Grade-18. 3. The vacancies in the post of Deputy Operations Managergrade-17, being the upper managerial cadre, could be filledeither by promotion or by selection from amongst the Commanders, Grade-16a. To fall in line with the present policy, thesevacancies are to be filled by Selection. It is proposed that30 senior-most Commanders may be called for selection to6 posts of Deputy Operations Manager in Grade-17. 4. As per the Recruitment and Promotion Rules, the Selectionboard should comprise the following officers :-1. Director of Operations. 2. Secretary. 3. G. M. 's nominee. 5. G. M. may kindly be requested to indicate his nominee onthe Selection Board. sd/- (J R sharma) G/m. Ref. Para 4 above. In the recruitment the head ofpersonnel Deptt. or his nominee has to be on the Board bothat HQRS or Regions. Earlier the Secretary was the Head ofpersonnel and General Administration Deptt. Since Director ofpersonnel is now the Head for the Personnel Deptt. the Recruitment and Promotion Rules needs amendments. sd/- (J R sharma) G/m. Ref. Para 4 above. In the recruitment the head ofpersonnel Deptt. or his nominee has to be on the Board bothat HQRS or Regions. Earlier the Secretary was the Head ofpersonnel and General Administration Deptt. Since Director ofpersonnel is now the Head for the Personnel Deptt. the Recruitment and Promotion Rules needs amendments. The posts ofdy. Operations Manager is in Grade 17 and the Director ofpersonnel himself will be on the Board. G. M. may kindly be requested to indicate his nominee onthe Board. sd/- A. S. BHAT4-12-70sd/- S. N. Chakravertyfirm 5-12-70int/d. Pers. As my representative:shri B. Israni, AGM andcd Shri Lisely, insteadof Dir. Pers. sd/- K. T. Satarwalag. M. 21-12-70 ( 10 ) MR. Jaitley, learned counsel for the first respondent,submitted that though malafides have been attributed by thepetitioner in not selecting him but these were not pressed duringthe course of arguments and in fact given up by Mr. Hans andthe challenge remained confined to violation of the statutoryrules. Mr. Jaitley said that all through right from the creation ofthe post of Deputy Operations Manager it had to be filled Inby selection and that allocation of 50% marks for interviewwas not arbitrary, unreasonable or violative of Article 14 ofthe Constitution as contended by the petitioner. He said withreference to various decisions of the Supreme Court and thehigh Courts that allocation of marks for interview had to bejudged with reference to the service and no uniform rule couldbe laid for the purpose. According to the first respondent, thejob requirements of the post of Deputy Operations Managerwere such that allocation of 50% marks for interview was quitereasonable and said this has been held to be so. Mr. Jaitleyalso submitted that this Court could not go into the comparativeassessment of the candidates to the post in question and thereliefs sought could not be granted to the petitioner, and thenin any case if this court came to the conclusion that there wasany illegality in the process it could only set aside the selectionand then require the Corporation (Indian Airlines) to go all overagain toe whole process of appointment to the post by selection-or promotion as per rules. ( 11 ) WE have already noticed above that the post of Deputyoperations Manager though mentioned in Appendix I to Flyingcrew Regulations does not find mention in the Schedule tor and P Rules which we were told were framed in 1964. ( 11 ) WE have already noticed above that the post of Deputyoperations Manager though mentioned in Appendix I to Flyingcrew Regulations does not find mention in the Schedule tor and P Rules which we were told were framed in 1964. In theminutes of 96th meeting of the Board of the first respondent heldon 30/07/1970, extracts from which have been reproducedabove, though it is stated therein that the post of Chief Pilot ingrade XVI had been upgraded to Grade XVII and designateddeputy Operations Manager and further that the post of Deputyoperations Manager belongs to upper managerial cadre, thereis nothing, however, to show on the record as to when theapproval of the Board of the Indian Airlines was first accordedand how many posts of Deputy Operations Manager werecreated and what were the job requirements of this post. Itis, however, not clear if the post of Deputy Operations Managerwas created with the previous approval of the Central Government as required by sub-section (3) of section 45 of the Act. But since the post of Deputy Operations Manager finds mentionin Appendix I to the Flying Crew Regulations it cannot be saidthat prior approval of the Central Government was not obtained. Again in these minutes it is mentioned that since the postbelongs to upper managerial cadre it was essential that it shouldbe filled up by direct recruitment or promotion at the discretionof the Management. The word 'management' is a vague termand does not find mention in the Act. We were told, however,that this word means the Board of the Indian Airlines. If thispost of Deputy Operations Manager was created as far backin 1970, normally we would have expected it to be in theschedule to the Randp R. ules so that every one knew the creationof the post and as to how the post was to be filled up. Theresolution of creation of post of Deputy Operations Manager, itappears, only remained in the annals of the minutes bookofthe first respondent in the form of Resolution. Theresolution of creation of post of Deputy Operations Manager, itappears, only remained in the annals of the minutes bookofthe first respondent in the form of Resolution. We havealready noted that under section 45 of the Act, powers havebeen given to the first respondent to make regulations by notification in the official gazette in the administration of the affairsof the first respondent and for carrying out its functions andthese regulations may provide the terms and conditions of serviceof officers and other employees of the first respondent otherthan the Managing Director and Officers and any other categories referred to in section 44, but then any such regulationhas to be made only with the previous approval of the Centralgovernment. The return by the first respondent is silent as towhen in fact the post of Deputy Operations Manager was createdand when approval of the Central Government obtained both. as regards creation of the post and terms and conditions attachedto that post. ( 12 ) COUNTER-AFFIDAVIT and the additional affidavit filed by thefirst respondent have been verified by Mr. Daya Narain, Secretaryof the first respondent. Both these affidavits have been verifiedas true to the knowledge of the Secretary. These have not beenverified on the basis of the official records of the first respondent. These would, therefore, be hardly the affidavits worth consideration. For example, the Secretary has verified that the interviewtime taken for each candidate was twenty minutes and in somecases even beyond an hour. The Secretary was not a memberof the interview board. He could certainly have no personalknowledge about this. There is also nothing in the records ofthe first respondent to show that this was the time taken inthe interview. Proceedings of the Selection Committee also donot indicate any such thing. Reference may, however, be madeto an affidavit filed only in these proceedings by one of themembers of the interview board (Capt. R. N. Tandon) thatduration of the interview of each candidate varied from about20 minutes in some cases and even over an hour in certainother cases. This does not improve the matter for the firstrespondent as the verfication should show as to how the Secretaryhas verified all the statements made in the affidavit. A thirdaffidavit has also been filed on 2/05/1991 by the first respondent during the course of the hearing. This does not improve the matter for the firstrespondent as the verfication should show as to how the Secretaryhas verified all the statements made in the affidavit. A thirdaffidavit has also been filed on 2/05/1991 by the first respondent during the course of the hearing. Again this is of thesecretary Daya Narain and here it is only stated in the verification that "the contents are true and correct and that nothingstated herein is false and nothing material has been concealedtherefrom". This is the worst form of verification that wehave come across. Contents of the affidavit are neither to thepersonal knowledge nor based on records. Normally we shouldhave rejected all these affidavits. But be that as it may, in theadditional affidavit the functions of the Deputy Operations MANAGER have been given and these include "his duties to actas Head of all the pilots assigned to him, to ensure training ofthe Pilots as per procedure, to arrange check flights, to makerecommendations with regard to aviation manuals, to keeppersonal contact with various regional pilots, rostering of flyingcrew, movement control, technical aspects, licensing, administration, flight safety, etc. The functions of pilot-in-commandonly include the safe operation of the flight as assigned to himand are non-managerial in nature. The Commanders are inthe category of 'workmen'. For selection to the post of Dy. OPERATIONS Manager, only eligible Commanders who comewithin the zone of consideration, are called for interview. Eligibility includes a pilot-in-command endorsement on IA'sjet fleet, no adverse entry in last 3 years' APA, no punishment (except warning) during last 3 years and integrity and fitnesscertificate from the competent authority. Whereas a pilot generally gets familiarized with the functions of the Airlines, hismanagerial and professional knowledge is normally not put totest during the performance of his functions as pilot". It is alsostated in this affidavit that for the purpose of selection of Deputyoperations Managers it had been long felt that the candidatesso selected should be familiar with the operations of the airlinesand also competent to perform managerial functions. It is saidthat because of this specific job requirement that the first respondent passed the resolution dated 30/07/1970, aforementioned. Admittedly, no training is imparted to the pilots to performmanagerial functions and in the course of their duties theyare also not expected to perform any such functions. There isno basis for all what the first respondent has said. It is saidthat because of this specific job requirement that the first respondent passed the resolution dated 30/07/1970, aforementioned. Admittedly, no training is imparted to the pilots to performmanagerial functions and in the course of their duties theyare also not expected to perform any such functions. There isno basis for all what the first respondent has said. Our attentionwas drawn to certain guidelines for recruitment and promotionissued by the first respondent on 6/12/1988. These arein the form of a letter written by Director of Personnel toregional Directors and to the Director of Training, Hyderabad. These guidelines show that it had been decided for the purposeof selection/promotion that last 3 years' APAs would be considered as against the then existing instructions of 2 years andfurther that weightage to be given to APAs in the interviewwould be 50% against the then existing 30% and the remaining50% marks would be assigned to interview. Then it is stated thatapas in the new form used for Officers including Engineeringexecutives and Executive Pilots, Engineers and Pilot would berated as follows :- (i) Each year 'outstanding' APA - 16 marks (ii) Each year 'good' APA - 10 marks (iii) Each year 'below Average' APA - 0 marks"below Average" rating on any factor will be considered as adverse entry". ( 13 ) WE have not been shown under, what authority theseguidelines had been issued and whether they have any statutoryforce or otherwise. ( 14 ) ANOTHER look at this stage to the R and P Rules wouldbe relevant. All employees of the first respondent have beengrouped into 8 departments :- (i) Headquarters: (a) Headquarters Office (b) Central Revenue Accounts Branch (ii) Operations Department: (a) Flying Operations (b) Ground Operations (Associated with Flyingbranch) (iii) Aircraft Engineering Department (iv) Traffic Department ' (v) Accounts, Costing and Statistics Department (vi) Internal Audit Department ' (vii) Stores and Supplies Department (viii) General Administrative Department : (a) Administrative and Personnel Branch (b) Catering and Cabin Servicing Branch (c) Surface Transport Branch. ( 15 ) AS shown above, the Operations Department has twodepartments within it- (1) Flying Operations and (2) Groundoperations. All the posts in the Flying Operations except that offlight Steward and Air Hostess and Chief Cabin Attendant havebeen described as technical posts. These technical posts includeradio Officer, Communications Superintendent, Flight Engineer,flight Navitagor, Captain, Commander, Check Pilot, Flying Instructor, Chief Flying Instructor, Chief Pilot and Operationsmanager. All the posts in the Flying Operations except that offlight Steward and Air Hostess and Chief Cabin Attendant havebeen described as technical posts. These technical posts includeradio Officer, Communications Superintendent, Flight Engineer,flight Navitagor, Captain, Commander, Check Pilot, Flying Instructor, Chief Flying Instructor, Chief Pilot and Operationsmanager. The last post in the Flying Operations department isthat of Director of Operations which is not a technical post. Similarly, under the Ground Operations department, post oftechnical Instructor, Chief Technical Instructor, Navigatorinstructor, Flight Operations Officer and Planning Officer havebeen described as technical posts while those of Junior Operations Assistant, Chief Operations Assistant, Syn. Flight Traininginstructor and Senior Syn. Flight Training Instructor and eventhe Chief Navigator Instructor are not technical post. In the Engineering Department also there are technical posts. There are noother technical posts in other departments except that of Driveror Medical Officer. With all these departmentsfunctioning andso many posts being there, it does not appear us to be quitecorrect for the Secretary to say as to the functions of the Deputyoperations Managers. As noted above, we do not know fromwhich record of the first respondent the Secretary had to sayall this. ( 16 ) A serious question did arise for our consideration duringthe course of arguments if not the Central Government haveabdicated their functions by completely delegating to the Boardof Directors of the first respondent to make regulations prescribing the terms and conditions of service of the officers and otheremployees of the first respondent which could be framed withthe previous approval of the Central Government as requiredunder sub-section (3) of section 45 of the Act. However, we neednot dilate on this question as Mr. Hans, learned counsel for thepetitioner, submitted that he would not challenge the validity ofthe relevant service regulations but he would confine his attackonly to the breach of the rules committed by the first respondent. ( 17 ) WE have seen above, Chapter II of R and P Rules prescribes the procedure for direct recruitment. Here the direct recruitment does not mean the same thing as mentioned in the minutes of the meeting of the Board of Directors of the first respondentof 30/07/1970. Those minutes merely show as to what thefirst respondent means by direct recruitment but the interpretation so put is contrary to R and P Rules. It is not that in thisboard's meeting rules relating to direct recruitment were soughtto be modified. Those minutes merely show as to what thefirst respondent means by direct recruitment but the interpretation so put is contrary to R and P Rules. It is not that in thisboard's meeting rules relating to direct recruitment were soughtto be modified. In the present case before us there has not beenany advertisement anywhere and the procedure for receipt ofapplications has not been followed nor any other agencyapproached for filling up the posts. No public notice was alsodisplayed. It was also not mentioned anywhere as to how manyposts of Deputy Operations Manager were to be filled in andwhat were the job requirements of the post. It is true that if wefollow the R and P Rules and if the method to fill the post ofdeputy Operations Manager was promotion, then only the Commanders could have filled up that post. These rules do not saythat in case of direct recruitment only the Commanders wouldbe eligible. Perhaps what the resolution of the Board of Directorsof the first respondent in its meeting of 30/07/1970 meant wasthat the post of Deputy Operations Manager could be a selection50 post to be filled in from the lower grade of Commanders. Butthen this is not what the R and P Rules would say. No argumentis needed to show that the recruitment board was not validlyconsituted as per Rule 10 of these Rules. Reliance has beenplaced on the proviso staling that this proviso shows the lastintention of the rule making authority and the General Manager (now the Managing Director) could constitute a recruitmentboard on the strength of this proviso. We do not find any forcein such a submission. Proviso is an exception to the rule. It isonly that in any particular case the Managing Director couldconstitute a recruitment board consisting of such officers as hemay consider necessary. We are of the opinion that when themanaging Director acts under the proviso he has to indicate as towhy he feels it necessary to constitute a recruitment boarddifferent than what prescribed and the exigency of that situationand the reason must be discernible from the action of themanaging Director as to why the normal rule is being departedfrom, otherwise action of the Managing Director will have tobe struck down on the ground of being arbitrary. Again, butfor the affidavit of the Secretary, we have not been shown anyrecord of the first respondent as to why the Managing Directorthought it fit to constitute a recruitment board in the present casedifferent than that prescribed. This action of the Managingdirector to our mind is not legal and we must hold that therecruitment board was not validly constituted. ( 18 ) WE also find that under Note 3 to Rule 10 both therecruitment and promotion boards will maintain records of theirproceedings including the answer papers for tests conducted andmarks sheets, etc. This would also show that the recruitmentboard was to conduct written test in the case of direct recruitmentsand could not merely depend upon viva voce or interview. Asa matter of fact, from the whole process right from the timewhen intimation was sent to the Operation Managers of the OPERATIONS Manager should be filled up by direct recruitment orpromotion at the discretion of the Management, the Board hadto decide as to whether in any particular case the post had tobe filled in by direct recruitment or promotionand the reason therefor. There is nothing on therecord to show that the Board of Directors of the firstrespondent ever took any such decision. Reference was, however,made to a note dated 23/11/1970, starting from someassistant wherein it was said that as per the then policy thevacancies in the grade of Deputy Operations Manager had tobe filled "i by selection. This Assistant suggested that as perrecruitment and promotion rules the selection board shouldcomprise the Director of Operations, Secretary and G. M. 's nominee. The note was put up to the General Manager only for thepurpose of nominating his nominee which he did on 21/12/1970. In the absence of any decision of the Board of Directors to treat the post of Deputy Operations Manager eitherpromotional or direct recruitment post, the note staling thatas per policy the post has been treated as selection post is meaningless. In fact if that was so resolution of 30/07/1970 hadto be reversed. That not being so Board of Directors of the firstrespondent had to take a concious decision in the form of aresolution why all the posts had to be filled in by direct recruitment or if some by promotion and why. In fact if that was so resolution of 30/07/1970 hadto be reversed. That not being so Board of Directors of the firstrespondent had to take a concious decision in the form of aresolution why all the posts had to be filled in by direct recruitment or if some by promotion and why. R and P Rules in anyservice are a serious matter affecting the careers of hundred naythousands of the employees and these have to be framed andenforced as per law and cannot be left to the whims and. fanciesof an individual officer or even officers. The note of the Assistantcannot take the place of a statutory rule. We are, therefore, ofthe opinion that in the absence of any decision of the Board ofdirectors to fill in the post of Deputy Operations Manager bydirect recruitment, the present selection suffers from patentinfirmity and cannot stand. ( 19 ) WE have already noticed that R and P Rules do notprescribe if 50 marks out of 100 are to be assigned to last 3 yearsapas and 50 marks to the interview. Whether 50 marks forinterview are otherwise excessive or not we will examine laterbut from the record of proceedings of the Recruitment Board IT is further to be seen that these 50 marks have further beenbifurcated into 30 for managerial ability and 20 for professionaland job knowledge. This does not appear to have been doneby the Selection Board as the proceedings are silent. The assessment sheet of each individual candidate would show as if it hasbeen done by the office of the first respondent but under whatauthority we would not know. ( 20 ) COMING to the relevance of reserving 50% marks forinterview, we find that this action of the first respondent is againarbitrary. We have been referred to various judgments of thesupreme Court and of the High Courts including one of thiscourt on the question of fixing percentage of marks for viva vocetest vis-a-vis written test. In these judgments no distinctionappears to have been made in a viva voce and an interviewthough we think both are not always the si me thing. Viva voceis normally associated with written test when it is said that therewill be both written and viva voce examinations. An interviewis to find out the suitability of a candidate for a post consideringhis background, experience and the job requirement of thepost. Viva voceis normally associated with written test when it is said that therewill be both written and viva voce examinations. An interviewis to find out the suitability of a candidate for a post consideringhis background, experience and the job requirement of thepost. It will have different connotation when the candidate isa rank outsider and when he is to be selected for a higher gradepost. We have, however, been unable to understand as to whatis the sanctity of reserving 50% marks for interview when thepost can even be filled in by promotion in the present case. Also the post of Deputy Operations Manager in Air India. another Corporation under the Act, is a promotional post andhas to be filled in strictly by seniority. A Deputy Operationsmanager in Air India which operates international flights willcertainly have same responsibility If not more than that of inindian Airlines, domestic carriers. In Air India v. Nargeshmeerza and others, AIR 1981 S. C. 1829, (1) the Supremecourt observed that the two Corporations-Indian Airlines and AIR India, form one single unit to be controlled by the Centralgovernment under the Act. The court observed that it mightbe that the two Corporations might have different functions toperform. Air India operating international flights and the other (Indian Airlines) operating domestic flights within the country,but that fact alone, however, would not make the two Corporations absolutely separate entities and that the two Corporationswere part of the same organisation set up by the Act. Thatapart it has been the stand of the first respondent before thekhosla Tribunal that generally speaking the Management ofthe Indian Airlines was prepared to grant the same pay andconditions of service with minor modifications to its employeesas obtained in the Air India particularly with regard to thepilots, flight crew and the engineering staff. This was sorecorded by the Central Government Industrial Tribunal, Newdelhi, which was deciding a reference made to it under theindustrial Disputes Act, 1947, as to whether the demand ofthe Indian Flight Engineers' Association for having two scalesof pay for line Flight Engineers in Indian Airlines viz. (i) Rs. 1550-2480, (ii) Rs. 1720-2580, at par with Air Indiawas justified and if so, to what relief they were entitled andfom which date. The Trbunul answered this reference infavour of the workmen. (i) Rs. 1550-2480, (ii) Rs. 1720-2580, at par with Air Indiawas justified and if so, to what relief they were entitled andfom which date. The Trbunul answered this reference infavour of the workmen. No reason has been shown to us asto why the first respondent should depart from this stand partcularly when we have been the court has been further told thatthere is parity or near parity with the officers of the first respondent with those of the Air India. ( 21 ) THE hierarchy of the posts in the Flying Operations inthe Operations Department right from Cadre III, Grade XI (Radio Officer) to Grade XVIII (Operations Managers) are alltechnical posts. The first respondent has various departmentsto control its other activities and to administer the same. Noresolution of the Board of Directors or any other document hasbeen brought on record to show as to what are the job requirements of the post of Deputy Operations Manager, or for thatmatter even of the Operations Manager. To interview thecommanders to test their suitability and their competency toperform managerial, administrative and other functions andinterview lasting for 20 minutes period or may be little more orless, when all these years they have been flying planes, canhardly be justified. ' ". . . ( 22 ) WE cannot give any credence to the statement of thesecretary of the first respondent in the affidavit as to the functions of the Deputy Operations Manager without there beinganything on record to support as to what the Secretary had tosay. We find many Commanders do not find any charm in thepost of Deputy Operations Manager. This is apparent fromthe fact that out of 60 senior most eligible Commanders calledfor interview 29 did not appear for the interview. The job ofthe Commander is not less onerous. He is to fly the plane andon one error of judgment many lives depend. The petitioner iscommander since 1973 and his efficiency as a Commander isnot in doubt. APAs which contain exhaustive reporting onthe Commander as to his flying record, performance-flying andperformance-general, all being the performance factors, his personality factors and training and development needs show thatthe petitioner is a very good Commander, if not an outstandingone and out of 60 Commanders called for interview he has goihighest rating of 32 marks out of 50 for the last 3. years ofapas which rating is next only to respondent No. 18 who hasgot 38 marks out of 50. There are 7 more respondents whohave sot the same rating as that of the petitioner. Others havegot 30 and one even less than that. We have not been shownthe APAs of the petitioner or any of the other respondents butwith reference to a proforma filed with the rejoinder by thepetitioner he. has contended, which is not controverted that ithas been certified in his APAs that the petitioner was ready andcapable to take over higher responsibility and had the potentialfor progress for higher levels of responsibility. The Reportingofficer of the APA is the Operations Manager of the Regionb and the Reviewing Officer is the Director of Operations. Thereport is also signed by the Head of the Department. APAsalso show that the managerial ability and professional knowledgeare also duly tested and apprised through these APAs. In ourview a Deputy Operations Manager is to know more aboutflying the planes than anything else and also supervise the workof the officers of the lower grades on the technical side. Duringthe course of hearing we have been shown notices for invitingapplications from serving employees for filling the higher post. In this job requirement is clearly mentioned. In the presentcase before us the post is to be filled in by the Commandersbut they have not been asked to apply and have not been toldthe job requirements. They have been asked to come for interview just on the basis of a telex message. They were not madeaware as to what was the interview about and what questionsthey were expected to answer. The Commanders were alsonot told as to how many posts of Deputy Operations Managerswere to be filled in. In fact nobody knew as to how many-posts of Deputy Operations Managers existed. During thecourse of hearing we were told that these were 69. Intimationwas sent to 60 senior most Commanders for filling in 20 postsof the Deputy Operations Managers and when it came to recommendation 22 persons were recommended for 22 posts. Howthis was done we would not know. Then it is not that thecommanders are entering into the service for the first time. They are already there and are merely to be promoted from onetechnical post to another in the higher grade. Howthis was done we would not know. Then it is not that thecommanders are entering into the service for the first time. They are already there and are merely to be promoted from onetechnical post to another in the higher grade. These would bedifferent considerations and allocation of marks for a personentering into service than when he is to be promoted from onegrade to another in the same service. 20 minutes or so ofinterview is hardly sufficient to judge the ability of an officerthough it may be good enough to. judge his appearance, andallocation of 50 marks for such an interview in the present casecan hardly be justified. We find here the interview instead ofbeing supplement to the APAs for the last 3 years has in itselfbecome adecisive selection test on account of very high percentage-of marks which in our view is not legal and cannot besustained. ( 23 ) AS noted above, we have been referred to variousjudgments of the Supreme Court and the High Courts on equestion if the allocation of 50 marks for interview in thepresent case would be void or not. The Supreme Courtjudgments are (I) Ajay Hasia etc. v. Khalid Mujib Sehravardiand others, AIR 1981 S. C. 487 (2); (2) Lila Dhar v Stateof Rajasthan and others, AIR 1981 S. C. 1777 (3); (3) Ashokkumar Yadav and others v. State of Haryana and others, AIR1987 S. C. 454; and (4) Mehmood Alam Tariq and othersv. State of Rajasthan and others, AIR 1988 S. C. 1451 = (1988)3 S'. C. C. 241. In Mehmood Alam Tarip case the relevantrules of the Rajasthan Administrative Service Rules, Rajasthanpolice Service Rules and Rajasthan Forest Service Rules whichwere special to these services and were not applicable to otherservices provided that the candidates should secure aminimum of 33% of marks in the' viva voce lest (applicable to candidates of general category ). The courtb held that the' prescription of minimum qualifying marksof 33% out of the marks set apart, for the viva voce examinationdid not by itself incurred any constitutional infirmity and thatthere was nothing unreasonable or arbitrary about it. Theadministrative and Police Services constituted the cutting edgeof the adminsitrative machinery and the requirement of highertraits of personality was not an unreasonable expectation. Thecourt observed that there were features that distinguished, forinstance Accounts Service from the Police Service on the basisof personal qualities of the officer. Theadministrative and Police Services constituted the cutting edgeof the adminsitrative machinery and the requirement of highertraits of personality was not an unreasonable expectation. Thecourt observed that there were features that distinguished, forinstance Accounts Service from the Police Service on the basisof personal qualities of the officer. Degree of requirement ofpersonal traits varied according to the nature of service. Officersto be selected for higher services and who were, with the passageof time, expected to man increasingly responsible positions inthe core services should be men endowed with personality traitsconducive to the levels of performance expected in such services. In this case the maximum marks for the written examinationwere 1400 and for the viva voce and personality test 180 whichconstituted 11. 9% of the aggregatemarks. The rules requiredin relation to Administrative, Police and Forest Services thatcandidates should secure 33% as minimum qualifying marks inthe viva voce test, i. e. they should secure minimum of 60 marksout of 180 marks. The court in this case examined its earlierdecisions in Ajay Hasia, Lila Dhar and Ashok Kumar Yadavcases. The court referred to the following observation in Ashokkumar Yadav case :- "the spread of marks in the viva voce test beingenormously large compared to the spread of marks56 in the written examination, the viva voce test tendedto become a determining factor in the selectionprocess, because even if a candidate secured thehighest marks in the written examination, he couldbe easily knocked out of the race by awarding him;the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowestmarks in the written examination could be raisedto the topmost position in the merit list by aninordinately high marking in the viva voce test. Itis, therefore, obvious that the allocation of such ahigh percentage of marks as 33. 3 per cent opens thedoor wide for arbitrariness and in order to diminish,if not eliminate, the risk of arbitrariness, the percentage needs to be reduced". ( 24 ) THE court observed that these observations were madein the context that "the spread of marks in the viva voce wasso enormously. large compared to the spread of marks of thewritten examination, the viva voce test tended to become a,determining factor". The reference was to the possibility of acandidate unreasonably being allotted high marks at the interview. ( 24 ) THE court observed that these observations were madein the context that "the spread of marks in the viva voce wasso enormously. large compared to the spread of marks of thewritten examination, the viva voce test tended to become a,determining factor". The reference was to the possibility of acandidate unreasonably being allotted high marks at the interview. The court observed that that was a very different thing whethera candidate should acquire at least a certain minimum percentageof marks at the viva voce. The court upheld the rule that;candidates must secure a minimum of 33 per cent of marks inthe viva voce test. It must, however, been noticed that 1,80marks set apart there for viva voce and personality test constituted only 11. 9% of the aggregate marks. In Lila Dhar casethe court observed that there could not be any rule of thumbregarding the precise weight to be given for interview test and. that it must vary from service to service according to the. requirements of the service, the minimum qualifications prescribed, the age group from which the selection was to be made,the body to which the task of holding the interview test wasproposed to be entrusted and a host of other factors. In Liladhar case 25% of marks had been allotted to viva voce under. the rules of the Rajasthan Judicial Service Rules. The courtobserved that 25% marks for the interview test was not on thehigh side especially when the interview test was conducted bya body consisting of a Judge of the High Court, the Chairmanand a Member of the Public Service Commission and a specialinvitee expert. It further observed that there could surely be no,legitimate grievance or hint of arbitrariness against such bodyand yet another factor worthy of consideration was that thecandidates expected to offer themselves for selection were notraw graduates freshly out of college but were persons whohad already received a certair. amount of professonal training. AJAY Hasia was a case where admission to an educationalinstitution was under challenge and the court held that allocati'on of as high a percentage as 33. 3% of the total marks forthe oral interview should be regarded as affecting the admissionprocedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure should notbe sustained. 3% of the total marks forthe oral interview should be regarded as affecting the admissionprocedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure should notbe sustained. The court observed that allocation of more- that15% of the total marks for the oral interview would be arbitraryand unreasonable and would be liable to bestruck down asconstitutionally invalid. In Ashok Kumar Yadav case. thesupreme Court had occasion again to examine its earlier twodecisions in Ajay Hasia and Lila Dhar cases. In this case thequestion was whether the allocation of as high a percentage ofmarks as 33. 3% in the case of ex-service officers and 22. 2%in the case of other candidates for viva voce test rendered theselection test arbitrary. The services concerned was that ofharyana Civil Service (Executive) and a composite written testand viva voce was held by the Haryana Public Service Commission under the relevant rules. For our purposes we mayconsider the rules applicable to candidates of general category. They were required to appear in a written examination in eightsubjects carrying in the aggregate 700 marks and also to appearin viva voce test carrying 200 marks. Marks allocated forviva voce test came to 22. 2% of the total number of marks forthe competitive examination. The court held that figure of22. 2% was quite high and would consequently tend to becomea determining factor in the process of selection tilting the scalein favour of one candidate or the other according to the marksawarded to him in the viva voce test. The court noticed thatconsequent upon the Kothari Commission report, an expertcommittee constituted for the purpose of examining recruitmentpolicy and selection methods for the Indian Administrativeservice and other allied services, the percentage. of marks allocated for the viva voce test in the competitive examination forthe Indian Administrative Service and other allied services wasbrought down to 12. 2% of the total marks. The court heldthe allocation of 22. 2% of the total marks for the viva voce'test as infecting the selection process with the vice of arbitrariness. The court, however, did not disturb the selection but at the sametime issued directions to the Haryana Public Service Commissionthat in future selections were to be made on the basis that themarks allocated for the viva voce test would not exceed 12. 2%m case of candidates belonging to the general category. The court, however, did not disturb the selection but at the sametime issued directions to the Haryana Public Service Commissionthat in future selections were to be made on the basis that themarks allocated for the viva voce test would not exceed 12. 2%m case of candidates belonging to the general category. It willbe, thus, seen that highest marks that could be awarded for aservice like the Indian Administrative Service was 12. 2% andthat too at the time when a candidate was entering in service. Keeping these principles as laid by the Supreme Court in viewand considering the R and P Rules and circumstances of thepresent case we are of the view that allocation of 50% marksfor interview test suffers from vice of arbitrariness. We haveexamined the assessment sheets of the individual candidatesappearing for interview. Most of the candidates are eithermatric or Higher Secondary, very few graduates but no one isas highly qualified academically as the petitioner who holds apost-graduate degree (M. A.) in Sociology in the subjects Advancesociology, Contemporary Indian Society and Culture, Criminology and Penalogy, Industrial Sociology and viva voce on theabove-mentioned subjects. His record of service in unqucstionably good. His professional attainments like any other Commander have been amply reflected in the APAs. Capt. R. N. Tandon, who was one of the members of the Recruitment Board,in his affidavit does not say as to what was the nature of questions asked of the candidates at the interview. He said thecandidates appeared before the Board in order to determine thesuitability of each candidates keeping in view his APAs and hisprofessional and managerial capabilities as reflected m the interview. This is as vague as it could be. There is nothing tocontradict the averment of the petitioner that in the interviewwhich lasted 5 to 10 minutes questions asked were of generalnature relating to the flying experience, places of postings andwillingness to be transferred outside Delhi, if required. As notedabove, the petitioner has seriously questioned the validity of the50% marks allocated to interview being arbitrary and unconstitutional. Record of the proceedings of the Recruitment Boardshow merely the awarding of marks to various candidates andthat too only for managerial ability and professional knowledge. THE first respondent, it appears, had already indicated the marksearned by each candidate respecting past 3 years APAs. Theproceedings sheet show no more. Record of the proceedings of the Recruitment Boardshow merely the awarding of marks to various candidates andthat too only for managerial ability and professional knowledge. THE first respondent, it appears, had already indicated the marksearned by each candidate respecting past 3 years APAs. Theproceedings sheet show no more. In some cases we find thatthere have been overwritings on the marks awarded by eachmember of the Interview Board though by the member himself,but it will appear that was done to give a particular candidatequalifying marks of 60 when earlier he was getting less marksafter taking average of the marks given by each member of theinterview Board. We may have the examples of Capt. J. R. Singh (though senior to the petitioner and, thus, not made arespondent), Capt. R. K. Bhargava and Capt. A. A. Siddiqueas to how they have been given marks by the four members (A, B, C and D) of the Recruitment Board for the managerialability (30) and professional ability (20) of these candidates. The bracket portions show the marks over written to those givenin the first instance : A B C DI. Mr. J. R. Singhmanagerial 13 (18) 21 10 (12) 18professional 10 (12) 12 13 (18) 12d 2. Mr. A. A. Siddiquemanagerial 10 (14) 15 10 (14) 14professional 10 (16) 10 (15) 10 (16) 163. Mr. P. . K. Bhargavamanagerial 10 (15) 10 (20) 15 15professional 15 10 10 (15) 10 (15) ( 25 ) IT may also be noted that out of 50 marks assigned forapas each secured 30 marks. If the mraks remained as originallygiven for interview, none of them would have qualified securingless than 60 marks, the qualifying marks. ( 26 ) THESE three instances are enough to show how arbitrariness can creep in the selection process and can impair or pushup the career of a deserving and not so deserving officer. Andwe may also examine the extent of supersession which is quitestaggering because of high percentage of marks for the interview. In the seniority list of Commanders Capt. J. R. Singhranked 9, petitioner 17 and respondent No. 22 at 85. ( 27 ) AT this stage again reference may be made to certaindecisions of the High Courts cited at the Bar. In R. S. Adhikariv. Indian Airlines Corporation, (6) (C. W. Ps. In the seniority list of Commanders Capt. J. R. Singhranked 9, petitioner 17 and respondent No. 22 at 85. ( 27 ) AT this stage again reference may be made to certaindecisions of the High Courts cited at the Bar. In R. S. Adhikariv. Indian Airlines Corporation, (6) (C. W. Ps. 1238- and 1378of 1081, decided on 26/03/1984) the court was concernedwith the promotion to Grade VII/viii of the technical staffof the Engineering Department of the Indian Airlines. The'method of" appointment to this post was by direct recruitment25% and promotion 75%. In the case of direct recruitment70% of the marks were assigned to interview and 30% marksto the APAs for the last two years. The petitioner were ingrade III/vi and next promotional grade was VII/viii. Oneof the grievance raised was that allocation of high percentageof inarks for interview test introduced an irredeemable elementot arbitrariness so as to offend Articles 14 and 16 of the Constitution. The court noticed that the Indian Airlines had issuedenough guidelines superseding its earlier instructions and nowlaying down 50% marks for APAs and 50% marks for interview. The learned Single Judge of this Court observed thatthe object of promotion system was to secure the best possibleincumbents for the higher posts and the Corporation must havefelt that it was not being achieved by granting heavy weightageto APAs and that the proportion of weightage was then changedin the guidelines issued as a matter of policy in the interest ofrequirement of the service. The court was, therefore of theopinion that unless an exaggerated weight which might shockthe conscience of the court, is given, the decision has to beleft to the Corporation. The court, therefore, upheld theweightage of 70% marks given for interview. With respectwe are unable to agree with this view. We do not think whileinterpreting the provisions of the Constitution or judging theconstitutional validity of a provision we should import theequitable doctrine of "shock the conscience of the court". Theindian Airlines must satisfy as to why 50% of the marksallocated for interview was the requirement of the service. Thiswe find has not been done. In Capt. Nanik Karamchandaniand others v. Indian Airlines and others, 1988 (3) S. L. R. 365 (Bombay), (7) there was challenge to the supersession of thepetitioners who were Commanders and to the entire process ofselection to the posts of Deputy Operations Managers. Thiswe find has not been done. In Capt. Nanik Karamchandaniand others v. Indian Airlines and others, 1988 (3) S. L. R. 365 (Bombay), (7) there was challenge to the supersession of thepetitioners who were Commanders and to the entire process ofselection to the posts of Deputy Operations Managers. A learnedsingle Judge did find that the allocation of 70% marks forinterview was on the higher side but left it to the Indian Airlinesto decide what proportion should be fixed for interview test. IN Tracy Aranha v. Air India Corporation (C. W. P. No. 1674of 1990, date of decision 28-6-1990, Bombay) (8), there waschallenge to 40% marks assigned to viva voce test for selection/promotion to the post of Station Manager in the Air India. OBthe facts the case court negatived the complaint that high percentage of marks was reserved. It referred to five factors mentionedin the new promotion policy and different marks assigned toeach of the factors. That is not the case here before us andcorrectness of 40% marks for interview test should:be confined to the facts of that case. In S. V. Puranik v. Indian Airlines and others (C. W. P. No. 59 of 1988, date of decision 12-9-1990) a Divisionbench of the Bombay High Court (9) upheld the validity of70 per cent marks assigned for interview in the case of promotionto the post of Traffic Officer, a non-technical post. The Benchdid not agree with the view expressed by a learned Single Judgeof that court in Capt. Nanik Karamchandani case and also ofthe Calcutta High Court in Capt. Digvijay Singh Dube v. Indianairlines and others, 1990 lab I. C. 810 (10 ). The court in thiscase observed that there could not be any rule of familiarityregarding the precise weightage to be given and it must varyfrom service to service according to the requirements of thatservice. Since the court was concerned with a non-technical post,though also governed by R and P Rules and of which we do notknow the job requirement, we do not feel necessary to analysethat case. Our attention was also drawn to a bench decision ofthis Court in CWP No. 1048 of 1990 (C. P. Kalra v. Air India)dismissed in limine on 1/04/1991, where also this Courtupheld the validity of 40 per cent marks out of. 100 for interview for promotion to the post of Station Superintendent. Our attention was also drawn to a bench decision ofthis Court in CWP No. 1048 of 1990 (C. P. Kalra v. Air India)dismissed in limine on 1/04/1991, where also this Courtupheld the validity of 40 per cent marks out of. 100 for interview for promotion to the post of Station Superintendent. Thisjudgment cannot be a binding precedent for us as we do notknow the job requirements of the post of Station Superintendentand other facts of the case. A Single Judge of Calcuttahigh Court in Capt. Digvijay Singh Dube held that allocationof 70 per cent of marts to interview to the post of Operation?manager as per R and I* Rules of the Indian Airlines was illegalhe also questioned the bifurcation of 70 per cent marks to 40per cent and 30 per cent respectively for managerial ability andprofessional ability. The learned Judge examined in depthvarious decisions of the Supreme Court and. High Courts andobserved that the post of Operations Manager in the Flyingoperations of the Operation Department of Indian Airlines wasnot a selection post and further that the Selection Board wasnot validly constituted as per R and P Rules and that the viyavoce interview for 10/25 minutes duration was totally inappropriate to the assessment of either managerial ability or professional ability. The Judge also observed that in the case beforehim on an admitted position the interview board was nottrying together a total impression of the candidate's personalitybut they were only seeking to assess the managerial and professional ability of the candidate which was purely objective processconverted by APAs. The court directed. the promotion of thepetitioner to the post of Operations Manager. We were told thatan appeal against this judgment is pending before a Divisionbeach of the High Court. We, however, find ourselves in agreerneat with the observaticn of the learned Single Judge as thefacts of that case are some what quite similar to the facts beforeus except thatbe allocation of the marks for interview test isnow 50 per cent and not 70 per cent. The post of Operationsmanager also falls in the Flying Operations of the Operationdepartment of the Indian Airlines and is Grade XIII post andanointment could be made by direct recruitment or promotion. The post of Operationsmanager also falls in the Flying Operations of the Operationdepartment of the Indian Airlines and is Grade XIII post andanointment could be made by direct recruitment or promotion. On the tacts of this case we find that the process of interviewhas been thoroughly inappropriate for promotion to the postof Deputy Operations Manager and allocation of 50 per centmarks for interview test is arbitrary and violative of Articles 14and 16 of the Constitution. As to how we came to this conclusionwe may, correlate; the factors which have been enumeratedabove: 1. The petitioner is not entering into any service. Heis merely to be promoted to the next hitler gradein the same department. 2. Appointment to the post of Deputy Operations Manager can be by promotion as well. 3. There is parity with the Air India where the post ofdeputy Operations Manager is invariably to be filledin by promotion. 4. In Ashok Kumar Yadav case, where a candidate wasentering into IAS/ips the allocation of marks forviva voce test were 12. 2 per cent and the Supremecourt said that the precise percentage of marks forsuch a test in Haryana Civil Service (Executive)could not be more that, and in fact issued a directionthat the marks for viva voce test should not be morethan this percentage. 5. The Central Government also was of the view thatheavy weightage was being given to interview andadvised Indian Airlines to stick to seniority list andnot to supersede any one untill and unless theperson superseding his senior had an exceptional oroutstanding performance record. This advice of thecentral Government may not be in the form of adirection under the Act and at best was advice whichnormally Indian Airlines should have followed unlessit had any cogent reasons to depart from the same,any such reason has not been brought to oar noticeand we are not aware as to how this letter of thecentral Government was dealt by the Indian Airlines. The letter coming from the Administrativeministry to the Indian Airlines is not a valuelessdocument which is to be thrown into a waste paperbasket. 6. Number of posts were never indicated nor the jobrequirements thereof. It was also not made knownif any of the poste were also to be filled in by promotion. Also there were apparent violation of the R andp Rules even if the selection was to be made within. 7. 6. Number of posts were never indicated nor the jobrequirements thereof. It was also not made knownif any of the poste were also to be filled in by promotion. Also there were apparent violation of the R andp Rules even if the selection was to be made within. 7. Spread of marks for interview compared with the spreadof marks for APAs is so enormous that the interviewtends to become a determining factor. There is clearpossibility of a candidate undeservingly allottedhigher marks or lower marks at the interview evenunwittingly. In fact the danger of allocating suchhigh marks for interview have been amply demonstrated above and the element of arbitrariness is verymuch there. 8. There are no proper R and P Rules and these have alsonot been up dated to the prejudice of the candidatesappearing for interview. 9. The post of Deputy Operations Manager is a technicalpost. As to what is a technical post has not beendefined in the RAP Rules and we have also notbeen told as to what the Indian Airlines means indescribing such like post as technical post. In common parllance a technical post has to be differentiated from managerial post. A person holding atechnical post should have a special knowledge ofindustrial or scientific subjects. A Commander whois promoted as Deputy Operations Manager shouldknow more about the techniques of flying the planethan anything else. 10. APAs which are comprehensive innature give allthe relevant qualities of a candidate as a Commanderand his fitness to be promoted to the next higherpost of Deputy Operations Manager. Was the interview of 10 to 20 minutes meant only to judge theappearance or the personality of the candidate oranything more ? The attainments or accomplishmentsof the candidates were already before the Recruitment Board in the form of APAs. The time forinterview was hardly enough for any other purpose. ( 28 ) INTERVIEW Board/selection Board/recruitment Board isthe same thing in this judgment. ( 29 ) WE, therefore, hold that the order No. HPDO1/0-1201dated 10/04/1990, of the first respondent promoting respondents 2 to 22 is not legal and has to be set aside. Consequently,selection of respondents 2 to 22 to the post of Deputy Operationmanager is quashed. There shall be fresh selection by the fustrespondent as per rules keeping in. view the principles set outin the judgment. Consequently,selection of respondents 2 to 22 to the post of Deputy Operationmanager is quashed. There shall be fresh selection by the fustrespondent as per rules keeping in. view the principles set outin the judgment. ( 30 ) WE are aware that our holding the selection of respondents 2 to 22 as illegal will upset the working in the Indianairlines. We have been told during the course of hearing thatsome more selections on same very rules have further been madeto the posts of Deputy Operations Managers. But then if wedo not interfere it will be perpetrating injustice as far as thepetitioner is concerned. However, we find that there is an alternative and it is like this. The Supreme Court has held that12. 2 per cent marks allocated for interview is valid for enteringinto various all India services. We may apply that principle herefor promotion to the post of Deputy Operations Manager. Ifthat be so, then 87. 8 marks would stand allocated for APAs forthe last 3 years and 12. 2 for the interview. On the basis of theratio of marks already granted to the petitioner when the alto-cation was 50 for APAs and 50 for interview, the petitionerwould get marks over 60 which is the qualifying marks for promotion to the post of Deputy Operations Manager. We would. therefore, direct, though. in the alternative, that petitioner willbe promoted to the post of Deputy Operations Manager w. e. f. the date respondents 2 to 22 were promoted and he shall alsobe entitled to all consequential benefits from that date. That musthowever, be done within one month from today and petitionerinformed otherwise our direction quashing the selection of therespondents 2 to 22 TO the post of Deputy Operation Managershall come into operation at once after the expiry of one monthfrom today. ( 31 ) WE are further of the opinion, in view of the statementof law as declared by the Supreme Court particularly in Ashokkumar Yadav and Mehmood Alam Tariq cases, that not morethan 15. 2 (and perhaps even less) marks should have been allocated for the interview. The Indian Airlines is plagued with litigation because of the faulty rules and even not adhering to theexisting ruiss. In the circumstances of the case, we will issue amandamus directing the Indian Airlines to frame within threemonths from today proper recruitment and promotion ruls asper law even updating the existing rules. The Indian Airlines is plagued with litigation because of the faulty rules and even not adhering to theexisting ruiss. In the circumstances of the case, we will issue amandamus directing the Indian Airlines to frame within threemonths from today proper recruitment and promotion ruls asper law even updating the existing rules. ( 32 ) WE record our appreciation of conduct of the petitionerin not pressing malafides against any member of the Interviewboard. We must also not be understood to have aurihured -inywrong motive to the members of the Interview Board or otherofficers. Our criticism was based solely in showing how allocationof such high percentage of marks for interview would suffer fromthe vice of arbitrariness and thus unconstitutional. ( 33 ) PETITIONER will be entitled to costs. Rule is made absolute.