Delhi High Court: A petition was filed seeking to issue a writ of mandamus or any other appropriate writ, order or direction to direct Air India Limited (Respondent 1) to grant the petitioners w.e.f. 01-07-2012 the same basic pay as calculated for the Service Engineers (Grade T7/E3) employed in the Ground Service Department pursuant to the Revised Basic Pay implemented pursuant to the Justice Dharmadhikari Committee Report with all consequential reliefs and interest at commercial rate. Chandra Dhari Singh, J., held that no writ or order or direction can be issued in the instant petition against Air India Limited for an alleged breach of a legal right except the writ of habeas corpus in exceptional circumstances as Air India is no longer “State” under Article 12 of the Constitution of India and a writ petition under Article 226 can only be instituted against a public authority. The Court has further granted liberty to the petitioners to take recourse to remedies available before a Competent Forum.
The petitioners were working as Executives of the General Category under respondent 1 and were offered appointment as an Assistant Manager (Plant Engineering) at Mumbai. The petitioners 2 and 3 joined respondent 1 on 24-08-2007, as Assistant Manager (Plant Engineering) at Mumbai. Upon the merger of Indian Airlines Ltd. & Air India Ltd., the services of the petitioner 1 were transferred to the newly formed National Aviation Company of India Ltd. (NACIL), (later renamed as “Air India Ltd.”), with continuity of the service and on the same terms and conditions of service. Being aggrieved by the delayed promotions and the anomaly in Revised Basic Pay, wrote several representations to the various authorities that led to announcements regarding the rectification of various anomalies, but much to the dismay of the petitioners, as it did not, in any way, deal with the issue regarding their promotion.
Counsel for the petitioner submitted that the petitioners were promoted to the post of Manager in the year 2014 and were later, promoted to the post of Senior Manager in the year 2016. The petitioners thereafter were promoted to the post of Assistant General Manager (AGM) vide letter dated 14-01-2020 after a long delay, but also, they did not come into effect till the due date, as per the applicable rules/criteria. The petitioners have endlessly and ceaselessly pleaded with the respondent’s management, the Anomalies Committees, and even the Ministry for years, simultaneously, for redressal of their grievances and injustices suffered by them, but to no avail, thus the present petition.
Counsel for the respondent submitted that respondent 1 is now a Private Limited Company, the grievances of the petitioner can be redressed before the Competent Forum and not by this Court under Article 226 since Air India Limited has ceased to be a government company and is privatized, and does not fall within the domain of “State” as per Article 12 of the Constitution of India, hence the writ petition is not maintainable under Article 226 of the Constitution of India.
The issue under consideration is whether a writ is maintainable under Article 226 against a Government entity in this case “Air India Limited” which has subsequently become a private entity and the entire shareholdings are disinvested from the hands of the Government of India, and vest with a private company?
The Court noted that it is a settled principle that a writ petition is not maintainable against a private limited company or even a public limited company in which the State does not exercise pervasive control and is not performing a public function. The Government entity which has been privatized is not amenable to writ jurisdiction under Article 226 of the Constitution of India and does not fall within the ambit of Article 12 of the Constitution of India. The guiding factor, therefore, is the nature of duty imposed on such a body namely, the public duty to make any authority amenable to writ jurisdiction.
The Court further noted that the phrase under Article 226 “for any other purpose” must be given a narrower meaning to exclude private entities performing their private and commercial duties from the ambit of writ jurisdiction. Furthermore, a private entity does not fall within the ambit of Article 226 as there is an alternate remedy available against such a private entity. Thus, a writ petition under Article 226 is not maintainable since Air India Limited has been privatized and the employees of Air India Limited are no longer falling within the domain of “public employment”. The employees of Air India Limited were earlier discharging public function, however, presently, they do not fall within the domain of “public employment” and their disputes cannot be redressed by this Court under its extraordinary writ jurisdiction.
The Court concluded that Air India is no longer discharging any “public duty” and performing its own commercial activities. Hence, it does not fall within the ambit of “State” under Article 12. Air India Limited is now a private entity, the dispute regarding seniority and revised basic pay can be redressed only before the Competent Forum and not before this Court. On the aspect of relief to be granted, usually, the rights of the parties as on the date of the filing of the petition are considered while delivering the judgment. The right to relief should be decided by reference to the position of law or circumstances as on the date on which the petitioner filed the petition. However, it is not a thumb rule that a writ petition has to be decided on the facts as were presented on the date of its institution. A subsequent event during the pendency of a writ petition which can result in the petitioner becoming disentitled to relief would render the writ petition non- maintainable on the date of the judgment and the impact of the subsequent developments must be considered.
The Court held that the petitioners are disentitled to relief on the date of the judgment due to privatization of Air India Limited which was earlier a public authority, rendering the writ petition non- maintainable. The petition, though maintainable on the date it was instituted, has ceased to be maintainable which takes it beyond this Court’s jurisdiction to issue a writ or order or direction to it under Article 226 of the Constitution of India.
[Saiyam Mishra v Air India Limited, 2023 SCC OnLine Del 4904, decided on 21-07-2023]
Advocates who appeared in this case :
Mr. Akshat Bajpai and Ms. Ishanee Sharma, Advocates for the Petitioner;
Mr.Attin Shanker Rastogi, Advocate for R-1 and 2, Ms. Manish Agrawal Narain, CGSC for the R-3/UOI.
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Writ Petition which was maintainable at the time of institution of the Writ Petition would entitle the petitioner relief sought. after the date of privatisation of AIR INDIA, no writ would perhaps lie