Central Administrative Tribunal - Delhi
Shri Prem Matiyani vs Union Of India Through on 14 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1819 of 2008 New Delhi, this the 14th day of December, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) 1. Shri Prem Matiyani C-II/63, Shahjahan Road, New Delhi-110011. Applicant (By Advocate: Ms. Nitya Ramakrishna with Shri Padma Kumar S.) Versus 1. Union of India through Its Secretary, Ministry of Information & Broadcasting, Govt. of India, A Wing, Shastri Bhawan, New Delhi-110001. 2. Secretary, DOP&T, North Block, New Delhi-110001. 3. Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. Respondents (By Advocate: Sh. A.K.Bhardwaj) ORDER
Mr. L.K. Joshi, Vice Chairman (A) The grievance of the Applicant is that the recommendation of the High Powered Committee (HPC) for upgradation of the scale of pay of the Director, Song and Drama Division (S&DD) to Rs.18,400-22,400/- from Rs.14,300-18,300/-, which was approved by the Minister of Information and Broadcasting (I&B), has been rejected by that Ministry by order dated 11.04.2008, which was passed following the directions dated 4.08.2007 of this Tribunal in OA number 823/2006. The following relief has been sought:
(b) Direct the Respondent to grant the upgraded pay scale of Rs.18,400-22,400/- to the Applicant on completion of the qualifying period of 3 years to the Applicant with all consequential benefits, including arrears.
2. The facts, in a nutshell, are that the Applicant is working as Director of S&DD since 6.05.1991, on being selected for the post by the Union Public Service Commission (UPSC). The S&DD is a media unit under the Ministry of I&B, the first Respondent. The organization is responsible for socially meaningful communication regarding communal harmony, National integration, secularism etc. through the medium of performing arts. It is not in dispute that S&DD is a humongous organization. The Applicant, as head of the organization, is responsible for entire functional, administrative, personnel and financial management of the organisation and to guide, supervise and advise on the functional performance of the S&DD.
3. The Government constituted an HPC on 16.04.1993 under the chairmanship of Sh. U.C.Aggarwal, retired Secretary of the Ministry of Personnel to study the aspects relating to the services and cadres of all the media units and organizations of the Ministry and suggest remedial measures. The Committee was constituted for streamlining the Indian Broadcasting (Engineering) Service, the Indian Broadcasting (Programme) Service and cadres under the control of the Ministry of I&B including different functional groups and isolated posts in all the media units and organizations under the Ministry. The Committee submitted its report on 16.11.1993. The recommendation of the HPC was accepted by the Ministry of I&B. The order issued in this regard, with the approval of the Minister of I&B is quoted below:
Ministry of Information and Broadcasting Sub:- Report of the High Level Committee Implementation of Recommendations made therein Recommendation No.20.
A High level Committee under the Chairmanship of Shri U.C.Agarwal (Retd. Secy., Deptt. of Personnel) was constituted by the Government vide Resolution No.15/15/93-Admn.IV dated 16th April, 1993. This Committee was inter-alia required to study the present state and structure of the services, cadres, different functional groups and isolated posts in the media units and suggest measures for restructuring them in a manner conducive to better cadre management. The committee has submitted its report to the Government on 16.11.1993. One of the recommendations made in the Report is as follows:
The present functional heads of Song and Drama Division and Photo division who are in the scale of Rs.4500-5700 and 3500-5000 respectively should be suitably upgraded after their present incumbents render requisite number of years of service.
2. This has been examined by a Special Cell set up in this Ministry. It has been noted that the Director, Photo Division is in the pay scale of Rs.3700-5000 and not in the scale of Rs.3000-5000 as mentioned by the High Level Committee. It has been observed that the High Level Committee has not given any clear indication about the number of years of service the incumbents are required to render for upgradation of their posts. The recommendation has therefore been taken as an enabling provision and it has been decided by the Competent Authority to accept it for the present.
3. Policy Wing may take note of the above decision and take appropriate action for upgradation of the posts of Director, Song and Drama Division and director, Photo Division after the existing incumbents render the requisite qualifying service for promotion to the next higher grade in accordance with the guidelines issued by the Deptt. of Personnel and Training from time to time.
4. This issues with the approval of MIB.
Signature sd.
( M.R. Tapliyal ) Under Secretary (Admn.) The above mentioned order was never complied with. The Ministry of I&B, eventually rejected the proposal by order dated 26.12.2003. This was challenged by the Applicant in OA number 823/2006, decided on 4.08.2007. The following directions were issued:
19. Resultantly, OA stands partly allowed. Matter is remitted back to respondents to appropriately re-examine and re-consider the decision contained in their note dated 19.04.1994 in respect of applicant and in such an event he shall be entitled to all consequential benefits. No costs. Following the directions contained in the aforementioned OA, the first Respondent, Ministry of I&B, again declined to consider upgradation of the post of Director, S&DD to the scale of Rs.18400-22400. The Office Memorandum dated 11.04.2008 is reproduced below:
Subject:- OA No. 823/2006 Shri Prem Mathiyani Vs. U.O.I. & Ors. regarding.
In compliance of the judgment dated 4.8.07, passed by the Honble Central Administrative Tribunal on OA No. 823/2006, the matter regarding upgradation of post of Director, Song & Drama Division in the pay scale of Rs.14300-18300/- to that of Joint Secretary level in the pay scale of Rs.18400-22400/- w.e.f. 01.01.96 as personal to Sh. Prem Mathiyani, applicant in the O.A., has been re-examined and re-considered in consultation with the Ministry of Finance. However, the claim of applicant for upgradation of post is rejected on functional considerations in view of the following facts:-
(i) The upgradation of post cannot be considered solely for the purpose of providing promotional avenues to the incumbents. The same has to be justified on account of functional considerations. There has been no change in the functional duties of the officer. Nor has there been any enhancement in the role performed by the officer. Mere completion of minimum qualifying service in a grade does not bestow any right for promotion of an officer. Promotion has to be linked to availability of vacancy in the higher grade, which in turn depends upon functional requirements/consideration. In the present case no such functional requirement is established.
(ii) The Fifth Pay Commission had specifically examined the pay scale to be allowed to the post of Director in Song and Drama Division and recommended that the post may continue in the present pay scale of Rs.4500-5700/- (pre-revised).
(iii) The Sixth Pay Commission has reiterated that the recommendation of the ERC for closure of Song & Drama Division should be implemented.
(iv) Expenditure Reforms Commission (ERC) had recommended the abolition of the Song and Drama Division and in view of this it was felt that there was no functional justification for upgradation of the post.
4. The arguments on behalf of the Applicant have been submitted succinctly and lucidly by the learned senior counsel:
(i) The Government has already approved the recommendation of the HPC and the Respondents cannot now perform volte face and reject it.
(ii) While other media heads have been given the benefit of upgradation ranks of Special Secretary to Joint Secretary, it would be discriminatory to deny it only to the Director of Song and Drama Division. The post of Director, Song and Drama Division has been ignored for the upgradation solely because it does not belong to Indian Information Service, to which other heads of media, who have been upgraded belong.
(iii) The grounds for rejection of the higher scale of pay given in the impugned Office memorandum of 11.04.2008 have already been dealt with and rejected in OA number 823/2006, decided on 4.08.2007. The Respondents could not have taken these grounds for rejection of the aforesaid decision.
5. The learned counsel for the Respondents has produced before us a letter number 1/6(17)/08-FS dated 18.11.2009 from the Respondent Ministry of I&B, addressed to the learned counsel, informing him that the Applicant was considered on 16.11.2009 for grant of first upgradation under the Assured Career Progression (ACP) Scheme from Grade Pay of Rs.8700/- to Rs.8900/-. Since the Applicant has not been cleared by the Vigilance Wing, the recommendation of the Screening Committee has been placed in the sealed cover. It is also stated thus in the order:
3. It is also informed that apart from a disciplinary case for major penalty in which the matter has been referred to UPSC for finalizing the penalty, one more charge-sheet for making irregular appointments has been served upon Shri Prem Matiyani i.e., the applicant in the aforementioned O.A. A copy of the said charge-sheet is enclosed for information. The learned counsel would further contend that the Fifth Central Pay Commission had recommended that the post of Director, Song and Drama Division should remain the same scale of pay, in which it was placed earlier and only replacement scale be given. Moreover, the post has been recommended for abolition by the Expenditure Reforms Commission (ERC) and in view of that there would be no functional justification for upgradation of the post.
6. We are very clear in our mind that the information conveyed by the learned counsel for the Respondent regarding consideration of the Applicant for upgradation under the ACP Scheme is totally irrelevant to the issue under consideration. This has been sought to be justified on the basis of the judgement of the Honourable Supreme Court in State of Tripura and others V. K.K.Ray, (2004) 9 SCC 65, which again is distinguishable on facts and not applicable to the instant case. In the aforementioned case the respondent, K.K.Ray, was working as Law Officer-cum-Draftsman in a department under the appellant. This was an isolated post. He made several representations either for upgrading the post or in the alternative for providing two avenues for promotion. The High Court, on being approached through a writ petition, accepted the respondents contention and directed to provide the graded scale with pay scale equivalent to Grade I and Grade II of Tripura Judicial Service. The Honourable Supreme Court was informed that other States in the Union had introduced the scheme of ACP. The Honourable Court observed that the appellate State should also have introduced the same scheme. It is in this context, the following observations were made:
7. We are, thus, of the opinion that the respondent herein is at least entitled to grant of two higher grades, one upon expiry of the period of 12 years from the date of his joining of the service and the other upon expiry of 24 years thereof.
8. The learned counsel appearing for the appellant, is, however, correct in his submission that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India could not have issued a writ of or in the nature of mandamus directing the appellant herein to grant a scale of pay which would be equivalent to Grade II or Grade I of the judicial service of the State. In the instant OA, the facts are distinctly different. The upgradation was recommended by the HPC. It was approved by the Government in the Ministry of I&B, way back in 1994. The Song and Drama Division had sent a note on 1.04.1998, on a reference from the Respondent Ministry of I&B on 18.03.1998, the proposals for matching savings in the upgradation of the post. (Annex A-7). Other media heads, belonging to IIS have been given the benefit of upgradation. The Applicant has been discriminated against. There cannot thus be any doubt that the judgement cited by the learned counsel has no relevance for this case in its facts and circumstances.
7. As to the reasons regarding rejecting of the Applicants claim for upgradation by the Respondents, we may profitably advert to the decision in OA number 823/2006, already referred to. The learned Coordinate Bench of this Tribunal has noted the fact of creation of HPC, its recommendations and approached the recommendation for upgradation of Director, Song and Drama Division by the Minister of I&B. The Tribunal then has noted in paragraph 8 of the order that qualifying period for upgradation to the scale of Rs.18,400-22,400/- is three years under the Recruitment Rules. It has also noted the information given under the Right to Information (RTI) Act, 2005, which has also been annexed to the instant OA. The information is reproduced below:
Number of posts created/upgraded with pay scale of Rs.18,400-22,400 in the Ministry, including those in Indian Information Service and Indian Broadcasting Service with effect from 01.09.1994 till date Vide Ministrys letter dated 22nd May, 1995, 15 posts of JAG of IIS, Group A were upgraded to SAG (Rs.18,400-22,400) of the service on adhoc basis as a short-term measure, by keeping in abeyance a equal number of posts in JAG. The order also stipulates that the upgradation of these posts will be regularized by a formal cadre Review of IIS Group A The arguments on behalf of the Applicant has been noted in paragraphs 9, 11 and 12 as reproduced below:
9. In the above backdrop, learned counsel of applicant would contend that as there has been a recommendation by the HPC, which is accepted, applies not only to IIS but also to other Media Units, leaving consideration of the claim of applicant prior to V Central Pay Commissions recommendations and grant of same benefits to the IIS officers when applicant was equally placed and similarly circumstanced would amount to invidious discrimination violative of Articles 14 and 16 of the Constitution of India.
10.
11. Learned counsel would also contend that as per paragraph 73.92 of the V Central Pay Commission recommendation where the pay scale for the post of Director has been recommended to be continued in the same pay scale, the respondents have withheld from the V Central Pay Commission the information of upgradation of Directors and accordingly there was no occasion for the V Central Pay Commission to have examined this aspect of the matter and as the recommendations have been made by the V Central Pay Commission in oblivion of the action of respondents would not be an impediment to applicant for grant of the same.
12. Learned counsel would contend that the recommendations of the HPC when approved by the Minister, non-implementation thereof without any reasons, what to talk to justification, is an arbitrary act on the part of the respondents. Learned counsel would further invoke the principle of legitimate expectation to buttress his plea. The arguments of the Respondents regarding the Fifth Pay Commission not recommending any change in the pay scale of the Director, Song and Drama Division has been noted and so also the argument regarding the ERC recommending winding up of the Song and Drama Division. The direction given in the OA and the rationale for the direction is given in paragraph 15 to 19 of the order, which are reproduced below:
15. Equality even in service law is governed by the principle enunciated under Article 14 of the Constitution of India. No two equals can be treated unequally. In the matter of implementation on administrative side a decision accepted and approved by the concerned authority when it is not applied to similarly circumstanced, has to be rationale and the distinction would have to be logical. If no reasons are assigned arbitrariness is writ large on the face, as ruled by the Apex Court in a Constitution Bench decision in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145 that in order to have reasonable classification twin tests laid down have to be satisfied, i.e., differentia should be intelligible and should have a reasonable nexus with the object sought to be achieved. Applying the aforesaid to the present fact situation, what we find that a HPC was constituted to enquire into the functional groups and isolated posts and their status not only in the organized cadre of IIS but also in all Media Units under the Song and Drama Division. Accordingly, the recommendations of the HPC were very clear without any reference to its applicability only to IIS that the scale of Rs.4500-5700 is available to the functional heads of Song and Drama Division, i.e., Directors should be suitably upgraded after the present incumbents have rendered the requisite number of years of service. Accordingly, rules prescribe three years service in the grade of Rs.4500-5700. This proposal has been examined and on requisite qualifying service upgradation has been allowed to the Director, which has the approval of the concerned Minister. As this has also been approved by the Department of Expenditure, as transpired from the information received under Right to Information Act, 15 posts of JAG were upgraded to the pay scale of Rs.18,400-22,400, which included Director and Heads under IIS, but the claim of applicant, who was holding the position of Head of the Media Unit, has not been considered. When applicant had raised this grievance on the ground that there has been a temporary ban on the creation of plan posts, the matter was deferred and in 2000 a self contained note on financial implications with matching saving was moved, which ultimately was rejected by the respondents on 26.12.2003. In our considered view applicant, who had a right to be considered for upgradation when left for such consideration, which is his fundamental right guaranteed under the Constitution of India and declared as such by the Apex Court in Dwarka Prasad v. Union of India, 2004 (1) ATJ SC 591. Moreover, recently the Apex Court in S.B. Bhattacharjee v. S.D. Mazumdar, 2007 (7) SCALE 190 that in the matter of promotion consideration should be effective and meaningful as per the Rules.
16. We do not find any reasons by the respondents for no intimation in this regard having been furnished to the V Central Pay Commission, as a result thereof recommendation in paragraph 73.92 prescribed continuance of the old pay scale. This recommendation of the V Central Pay Commission, which is not necessarily binding on the Government, would in all probability have been taken without having complete background regarding upgradation already taken effect in the post of Director as per the HPC recommendations. The only reason is that now the proposal when gone to the Finance has not been accepted, however, this would not obliterate fundamental right of applicant to be considered on equal basis for upgradation prior to the recommendations of the V Central Pay Commission, as there has been a clear decision of the Ministry of Information and Broadcasting (Government) to upgrade the post of Director in Media Units as well. A policy decision of the Government is its prerogative and is not amenable to the jurisdiction of the Tribunal, yet if there has been malafide and violation of Articles 14 and 16 of the Constitution of India, the policy decision is not only amenable to judicial review, but also liable to be declared as not apt in law. As per the decision of the Apex Court in Sanjay Singh v. U.P. Public Service Commission, 2007 SCC (L&S) 870 where interference in a policy decision has been allowed when the decision of the Government is irrational and arbitrary.
17. We do not find any consideration of applicants claim for upgradation despite a well conscious decision of the Government agreed to in respect of 15 post of IIS in the past by the Ministry of Finance. Now by rejecting the request of applicant, his legitimate claim has been denied without any reasons assigned in the order passed by the respondents, which cannot be countenanced in law.
18. We are conscious that now after V Central Pay Commission VI Central Pay Commission has been constituted, yet any right accrued to applicant in the past in which he has not acquiesced, being a fundamental right has to be probed into and the clock should be put back to restore the fundamental right of consideration to applicant in a fair and reasonable manner at par with his counterparts. Though right to be promoted is not a fundamental right but right of consideration necessarily is a right, which admittedly has been denied to applicant, without any basis in the present case.
19. Resultantly, OA stands partly allowed. Matter is remitted back to respondents to appropriately re-examine and re-consider the decision contained in their note dated 19.04.1994 in respect of applicant and in such an event he shall be entitled to all consequential benefits. No costs.
8. The ERC gave its recommendation, inter alia, to wind up the Song and Drama Division, in the year 2001. Eight years have since elapsed and the aforesaid decision has still not been implemented. The claim pertains to the year 1994. Moreover in paragraph 8 of the Brief facts of the case, the Respondents have clearly stated in their counter affidavit that:
. the recommendation of ERC to close down the S&DD will not be implemented. The above reply has also been highlighted in the rejoinder by the Applicant in paragraph 3 (ii). In another case pertaining to filling up of vacancies in the Song and Drama Division, this Tribunal had observed thus in OA number 1074/2006 decided on 20.11.2006:
4. However, to fill up even a promotional post, it is the prerogative of the Government but this discretion has to be exercised judiciously on a reasonable and justifiable ground. As we find that the only ground not to fill up the regular post is a proposal to wind up Song and Drama Division and the Ministry of finance advice, as these eventualities have not taken place, there is no impediment for consideration of the claim of the applicants for regular promotion in accordance with the rules and instructions as per their eligibility of the applicants respectively.
9. The argument about there being no functional justification for the upgradation is absolutely specious. The HPCs rationale for grant of the upgraded scale was based on the functional consideration. The observations of HPC, as extracted in paragraph 4.9 (2) of the OA are reproduced below:
The Song and Drama Division utilizes live programmes of folk and traditional entertainment forms to create an awareness amongst the masses regarding various programmes of socio-economic significance. It utilizes the wide range of traditional stage forms such as Drma, Puppets, Folk recitals etc. besides this, the Division also caters to the entertainment needs of the armed forces in the forward areas. At present the Division with its Headquarters at Delhi has eight Regional Centres, 9 Sub Centres and 2 Sound and Light Units and 1 Tribal Centre. Apart from the regular sanctioned strength of approximately 800 departmental Staff Artists, the Divisions programmes are also carried out through more than 5,000 private artists belonging to private registered troupes on payment basis in different areas. The total staff strength is about 1000. Lack of essential facilities like transport, inadequate budget provision, shortage of regular artists and inadequate promotional prospects in all categories of staff are the major bottlenecks coming in the way of effective functioning of this media unit.
Amongst the non-electronic media units, Song and Drama Division has its unique role in conveying most effectively the message on different themes for its attractiveness for the considerable rural areas. However, it requires greater official support for its effective functioning.
Of course in due course the functional heads of Song & Drama and photo Division (after their present incumbents render requisite lengths of service) should also be suitably upgraded. These professionals do not belong to Information Service. They have understandable grievance that their specialized services are under valued and given less weight by keeping them in lower grades in comparison to officers of the IIS heading other media units. It is a humongous organization and the Department of Expenditure, the third Respondent, cannot just reject the claim by merely taking the plea of lack of justification for the same on functional grounds.
10. On the basis of the above discussion, we have no hesitation in quashing and setting aside the impugned order placed at Annex A-1. We direct the first Respondent, Ministry of I&B, to place this matter before the Cabinet, the highest decision making body of the Government. The note for the Cabinet will be comprehensive and all the details as have been mentioned in this OA, including the observations of this Tribunal would be mentioned in the note. A copy of this order shall also be annexed to the note for the Cabinet. Decision of the Cabinet should be obtained positively by 30.05.2010 and all procedures, including consultation with concerned Ministries should be synchronized accordingly. The second and the third Respondents, DOP&T and the Department of Expenditure, would keep the above timeline in view, should the need arise to consult them. No costs.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman sd