Central Administrative Tribunal - Delhi
Beena Sharma vs M/O Information And Broadcasting on 17 July, 2019
Central Administrative Tribunal
Principal Bench
OA No. 1818/2017
Order reserved on: 27.05.2019
Order pronounced on : 17.07.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
Smt. Beena Sharma,
Age 48 yrs., Designation Casual Announcer, Group C,
w/o Sh. Jai Bhagwan,
R/o R-86, Vani Vihar (Sai Kuteer)
Uttam Nagar,
Delhi-59.
... Applicant
(By Advocate: Sh. Dheeraj Kumar)
Versus
1. Union of India & Ors. through
The Secretary,
Ministry of Information & Broadcasting,
Shastri Bhawan, New Delhi.
2. Chief Executive Officer,
Prasar Bharti, Akashwani Bhawan,
Parliament Street, New Delhi-110001.
3. Director General,
All India Radio
Parliament Street,
Akashwani Bhawan, New Delhi-110001.
4. Station Director,
Commercial Broadcasting Services,
All India Radio
Parliament Street,
Akashwani Bhawan, New Delhi-110001.
5. Program Executive (P.Es.) Coordination
Shri Sanjay Kumar
All India Radio
Parliament Street,
Akashwani Bhawan, New Delhi-110001.
2 OA No.1818/2017
6. Senior Announcer,
Rakesh Bhasin,
All India Radio
Parliament Street,
Akashwani Bhawan, New Delhi-110001.
... Respondents
(By Advocate: Sh. S.M.Arif)
ORDER
The applicant herein had appeared in an audition test held on 29.10.1987 by All India Radio and on being found successful was empanelled as a Casual Announcer since November 1987. This empanelment letter reads as under:
"With reference to your application dated Nil, you are requested to come for an audition test on 6th November 87 at 11 AN.
It may be noted that only graduates in the age group between 18 and 35 years are eligible for the above test. Please bring Matriculation & Graduation Certificates in original."
2. Casual Announcers are empanelled at various All India Stations and they are called upon to perform their duties for a maximum of six days in a month and a maximum of 72 days in a year as per the job requirement. This job requirement keeps on changing as per the needs of the type of programmes to be aired. For every engagement, a specific letter is issued and one such letter issued to the applicant on 18.05.2015 reads as under:
3 OA No.1818/2017
"We invite you to take part in the capacity of actor/performer/producer in the production to be broadcast as detailed below upon the conditions given. We shall be obliged if you will kindly sign and return the attached confirmation sheet, duly completed by return post.
शीषषक: प्रसारण सम्बन्धी सुपुदष कायष के अनुसार कायषक्रम प्रस्तुत करना Title:
ररकोर्डिंग तततथ: 2 तथा 3.4.15 समय :
Date of Recording: Time : प्रसारण तततथ: Date of Broadcast: प्रसारण का समय : आवश्यकतानुसार Time of Broadcast: कायषक्रम की अवतध: 02 ददन Duration: प्रसारण स्थान: सी. बी. एन., न. दद. Place of broadcast
प्रसारण शुल्क रु. रु. 2600/- (रु. दो हज़ार, छ: सौ मात्र) Fee for broadcast:
रिप्पणी ( रु. 1300/- प्रततददन) Remarks पुनः प्रसारण शुल्क
स्िैप शुल्क सरकार द्वारा वहन दकया जायेगा The stamp Duty will be borne by the Government.
भवदीय Yours faithfully, कृ त तनदेशक For Director भारत के राष्ट्रपतत के तिए और उनकी और से For and on behalf of the President of India 4 OA No.1818/2017 पीछे पत्र में तनर्ददष्ट शतें Conditions referred to in the preceeding letter
1. In the event of a signed acceptance not being revived by the date stated, All India Radio reserves the right to withdraw the offer.
2. The Artist agrees to attend such rehearsals as are in the opinion of All India Radio necessary for the production of this programme.
3. The artist agrees to follow the instructions of the producer and/ or any other Officer-in-charge of this programme to be appointed by All India Radio.
4. The Artist shall warrant that at the time of signing this agreement he is not under any engagement (Otherwise barred by any contract) precluding him from fulfilling this agreement and that he has not concealed any change of professional name or description.
5. All India Radio reserves the right to record the whole or any part of the programme for re-broadcast without payment or additional.
6. In the event of Artist being a Government, the broadcast of his programme and the payment to him of the fee shall be subject to his obtaining the sanction of the Head of his Office or Department to this effect and this sanction should be forwarded to the Station Director before the date of the broadcast.
7. In this contract broadcast means the radiation of the item from one or more transmitters of any broadcasting organisation.
8. In the vent of Artist alleging incapacity to perform by reason of illness or physical incapacity the certificates of a qualified medical practitioner, proving the fact of such incapacity, shall forthwith be sent to All India Radio by the Artist stating the medical practitioner, proving the fact of such incapacity, shall forthwith be sent to All India Radio by the Artist stating the nature of illness and that inconsequence thereof the Artist is unable to perform. All India Radio shall in such event not be liable to pay fee or remuneration to the Artist except for performance actually given by him hereunder.
9. Should the Artist for any reason (except illness or physical certified as here in before provided or such other unavoidable as may be proved to the satisfaction of the Station Director) fail to appear and perform as stipulated in this agreement he shall pay to All India Radio as and for liquidated damages a sum equal to the sum which the Artist would have received for such 5 OA No.1818/2017 appearance and performance in addition to the cost to All India Radio of providing a deputy and any other costs, damages and expenses by All India Radio by reason of default of the Artist.
10. All India Radio reserves the right without assigning any reason whatsoever to determine the contract. In such event the Artist shall not have or make any claim against All India Radio except for the fee (which shall be determined by All India Radio) proportionate to work actually done by him under the contract.
11. All India Radio shall have the right to release or allow any of its agency to release this programme or part thereof through discs/tapes and cassettes manufactured commercially."
3. The applicant, along with three others similarly placed Casual Announcers, filed OA No.1430/2000 (Mrs. Sharanjit Kaur and others vs. Union of India and others) seeking regularisation of their casual employment. This OA was decided by the Tribunal on 12.01.2001 with the following directions:
"5. In the background of the above discussion, I find that while the applicants in this OA are most likely to benefit, if at all, from whatever decision ultimately emerges in the Contempt cases filed in relation to the various orders of this Tribunal earlier referred to, without any specific order to the same effect being passed in this OA, it would be for more beneficial for the applicants and in their own interest if they are rendered eligible for recruitment as Announcers on regular basis by grant of relaxation in age. The learned counsels on either side are in agreement with this approach. In the circumstances, I feel inclined to dispose of this OA with a direction to the respondents to consider the question of relaxation in age in respect of the applicants so as to enable them to apply as and when regular vacancies arise, for recruitment as Announcers on regular basis. I direct accordingly. They should consider the aforesaid question as expeditiously as possible and decide the matter, in any event, within a period of three months from the date of receipt of a copy of this order. It is clarified that the applicants will be at liberty to approach this Tribunal again in the event of this decision of the respondents being adverse to them. It is further clarified that the applicants 6 OA No.1818/2017 will continue to be offered employment on causal basis as hitherto without imposition of any extraneous disability."
3.1 All Casual Announcers are trained by All India Radio with a view to improve the quality of performance of programme being aired and accordingly, the applicant was also given "Vani" training and a certificate was issued on 07.08.2007 which reads as under:
"VANI CERTIFICATE This is to certify that Bina Sharma attended Vani Certificate Course at All India Radio CBS.AIR, Delhi from 18th December, 2016 to 22nd December, 2006."
4. The applicant continued to be empanelled as Casual Announcer. She pleads that since May 2015 onwards, she has not been called to perform any such duties even while other empanelled artists have been called for such work. Applicant has pleaded that this is discriminatory. She made a representation on 06.07.2015. There was no response to it and she sent a legal notice on 29.10.2015. Thereafter she filed an OA No.688/2016 seeking regularisation. This OA was dismissed as withdrawn vide order dated 19.02.2016. This order reads as under:
"Learned counsel for the applicant seeks leave & permission to withdraw the present O.A., with liberty to file a fresh one as and when six months after is representation/legal notice are over. The O.A. is, therefore, dismissed as withdrawn, with liberty as aforesaid."7 OA No.1818/2017
5. Thereafter, applicant filed another OA No.1632/2016 which was decided on 10.05.2016 with directions to the respondents to consider the case and pass speaking orders. This order reads as under:
"3. In the circumstances, the OA is disposed of without going into the merits of the case by directing the respondents to consider the aforesaid representation of the applicant, keeping in view the averments in the OA and pass an appropriate speaking and reasoned order thereon within four weeks from the date of receipt of a copy of this order, in accordance with law."
6. In compliance thereof, respondents have passed a speaking order on 29.12.2016 which was delivered to the applicant on 06.01.2017 by Speed Post. This order reads as under:
"I am directed to refer to your representation dated 06.07.2015 in the matter of O.A. No. 1632/2016 filed by you before Hon‟ble CAT, Principal Bench, New Delhi (and your subsequent representation dated 13.08.2016) and to state as under:-
I. Whereas you filed OA No. 1632/2016, before the Hon‟ble CAT, Principal Bench, New Delhi praying Hon‟ble Tribunal to direct the respondents to restore the position of the applicant by regularizing her service at All India Radio as Regular Announcer at the earliest, to fix the wages/salary of the applicant as per the prevailing rates in accordance with law.
II. Whereas the Hon‟ble CAT, Principal Bench, New Delhi while disposing of the O.A. No. 1632/2016 vide its order dated 10.05.2016 directed the respondents to consider the representation of the applicant, keeping in view the averments in the OA and pass an appropriate speaking order and reasoned order.
III. Whereas, in compliance of Hon‟ble CAT, Principal Bench, New Delhi‟s order dated 10.05.2016, the representation dated 06.07.2015 submitted by you has been consider by the Competent Authority in this 8 OA No.1818/2017 Commercial Broadcasting Services, All India Radio, New Delhi.
2. The Competent Authority has taken into account all the grounds and all other aspects of your representation dated 06.07.2015 with regard to your request for regularization as announcer it is to point out that there is not any scheme framed by All India Radio for regularization of announcers who are assigned only specific duties. This organisation keeps fresh and talented voice regularly for broadcast for continuation of business and to maintain audience population intact and interested. For this purpose it maintains a pool of causal announcers/comperes all over the country at various stations and regularly conducts voice test/audition/review audition test to discard those who have lost sheen in their voice and to introduce fresh talents. Keeping this in view our review audition test was conducted wherein you failed to present yourself and was therefore not given an opportunity for engagement.
However, this exercise is undertaken on regular basis and you will be given ample opportunity to present your talent in further review audition test.
In view of above, the Competent Authority has come to the conclusion that it is not possible to accede to your request, which is hereby communicated to you."
7. The applicant‟s request for empanelment and continuing her engagement as Casual Announcer has thus, been rejected. Feeling aggrieved, applicant had filed the instant OA, seeking following reliefs:
"i) To direct the respondents to restore the position of the applicant by regularising her services at All India Radio as Regular Announcer at the earliest within a definite time line.
(ii) To fix the wage/salary of the applicant as per the prevailing rates in accordance with law.
(iii) To allow the OA with costs."
8. The applicant pleads that DOP&T OM dated 11.12.2006 has been violated. The applicant has also relied upon the judgment of Hon‟ble Apex Court in Secretary, State of 9 OA No.1818/2017 Karnataka and ors. Vs. Uma Devi and ors., (2006) 4 SCC 1, wherein the Government were given directions to give one time relaxation and to frame scheme for regularisation. It is pleaded that this decision has also not been implemented by the respondents. The relevant part of this judgment is extracted as under:
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
9. The applicant has also relied upon the judgment by Hon‟ble Apex Court in State of Karnataka vs. M.L.Kesari and ors., (2010) 9 SCC 247 wherein following was upheld: 10 OA No.1818/2017
"Held, a temporary, contractual, casual or a daily-wage employee did not have a legal right to be made permanent unless he had been appointed in terms of relevant Rules."
10. The applicant has also relied upon the judgment by Hon‟ble Apex Court in Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another, AIR 1986 SC 1571 wherein following has been upheld:
"On interpretation of the relevant Service Rule the Supreme Court held that the Rule empowering the Government Corporation to terminate services of its permanent employees by giving notice or pay in lieu of notice period is opposed to public policy and violative of Art. 14 and directive principles contained in Arts. 39(a) and 41."
11. The applicant has also relied upon the judgment by the Principal Bench in OA No.4379/2013 decided on 23.05.2015. The applicant has also relied upon a judgment by Hon‟ble Apex Court in Surendra Kumar & ors. vs. Greater Noida Development Authority & Ors.., SLP (Civil) No.662/2014 decided on 02.07.2015.
12. It has been pleaded that respondents are required to frame a scheme of regularisation and undertake as a one time exercise, regularisation of all Casual Announcers.
13. The respondents have opposed the OA. It is pleaded that the applicant was empanelled as a Casual Announcer in the year 1987 for engagement as and when a relevant 11 OA No.1818/2017 programme was to be aired. This empanelment was not against a regular post. It was also pleaded that such empanelment is a continuous process which goes on at all stations of All India Radio.
In the course of such empanelment, the applicant herein had performed her duties last in April 2015.
It is pleaded that the applicant was empanelled and offered engagement as and when required as per the requirement of programmes at stations and for this job, certain prescribed fee is also paid to the applicants. Such engagement is for a maximum of 6 days in a month or a maximum of 72 days in a year. With a view to maintain quality, review auditions are also held from time to time and successful candidates are continued on empanelment list.
In the case of the instant applicant certain directions had also been issued by the adjudicating authorities as brought out by applicant and a review audition was held on 30.04.2015 which was mandatory for such continued empanelment. The candidates were also advised to bring certain documents, which includes the degree of graduation. All candidates, including the applicant, were advised to appear in the said audition test. The notices were also put on the Notice Board and they were also advised on their mobile 12 OA No.1818/2017 phones and messages were also sent on whatsapp. A total of 16 candidates appeared and on being found successful were empanelled also. The applicant, however, opted not to appear in this review audition. In this regard, the respondents made following averment in their counter reply:
"It is feared that she does not possess the minimum qualification of Graduation, that is why she always avoids such Audition for fear of being caught and disqualified."
14. The respondents further pleaded that there is no regularisation scheme for Casual Announcers on All India Radio as the engagement is casual in nature and it depends upon the job requirement and types of programmes to be aired. Out of the three applicants in OA No.1430/2000 (para 3 supra), two applicants appeared in the audition of 30.04.2015 and they were empanelled also. In this connection, the following was pleaded in the counter reply:
"15. ...... However, on the other hand, the applicant herein chooses not to appear in the Review Audition despite having full knowledge/intimation about the Review Audition. She was also aware that for continuation in the Panel, the review audition is mandatory for continued engagement/assignment. It is vehemently denied that the respondents are adopted pick and choose method.
Xxx xxx xxx Further, no regularization has been done by the respondents of any Casual Announcers.13 OA No.1818/2017
It is relevant to note here that the respondents are not having any scheme for regularization of Casual Announcer and the applicant was also not engaged/empanelled against the regular vacancy."
15. The respondents also pleaded that review auditions are necessary and they also undertake training of the Casual Announcers. Specific averment in this regard reads as under:
"35. That whenever, an agency engages a talent for a particular assignment, it has every right to test and screen the talent being engaged from time to time to judge the present performance, whether it is as per the desire and requirements of the agency or not. ....... it also trains them to equip them with the latest upgradation in technologies so that the results may be in accordance with the aspirations."
16. It was also pleaded that DOP&T OM dated 11.12.2006 is not applicable in respect of Casual Announcers. Further, the judgment by Hon‟ble Apex Court in Uma Devi (para 8 supra), is also not applicable. In this regard, following was pleaded in the counter reply:
"31. That Para 44 of Uma Devi‟s Case is not at all applicable in the case of the applicant and her case does not come under exception to general principles. As already submitted above, the Panel prepared by the respondents for engagement as Casual Announcers is not against any Sanctioned Posts. It is pertinent to mention here that at every broadcasting station a large number of Casual Announcers are kept on the Panel.
32. That the other judgments mentioned by the applicant in the OA have no relevance to 14 OA No.1818/2017 the facts and circumstances of the present case."
17. The respondents relied upon a judgment passed by the Tribunal in OA No.96/2018 on 10.04.2019 on the same issue. The relevant parts of this judgment which contain the observations about the issue at hand and the order passed is reproduced below:
"3. The applicants in this case are impugning the order dated 21.2.2017 vide which the respondents have allowed all AIR stations to conduct auditions for selection of presenters/Comperes/Announcers/RJs etc. booked on assignment basis and also impugning the subsequent order dated 18.4.2017 slightly modifying the aforesaid order dated 21.2.2017 page-5, Para-2 under the heading Rescreening of Assignee, the existing panel of assignees will pass through the same 3-tier process, i.e., Written Test followed by Audition, 4 further followed by interview as is warranted for a panel of fresh assignees except, of course, the relaxation of age, which should not be more than 50 years as the maximum possible entry level age and exemption from the requirement of paying the audition fee for those in the existing panel and also direction to the respondents to extend the benefit of the scheme in pursuance of which employees of Doordarshan were regularized or frame a scheme for regularization of the casual announcer/compare/programme assistants of All India Radio.
4. The applicants in this case, who were appointed as casual Announcers in All India Radio, are further seeking direction to the respondents to extend the regularization scheme as adopted by second respondent for the employees of Doordarshan or to form other similar scheme for them and also contended that the impugned orders have been passed by the respondents in violation of interim order passed in SLP (Civil) CC No.13876- 13877/2016/ Civil Appeal Nos.8859- 8860/2016 (titled as Director General, All India Radio vs. Purushottaman C. & others etc dated 5.9.2016 in which the Hon‟ble Apex Court had granted status quo, obtaining as of today shall be maintained.
Xxx xxx xxx
15. In view of the above facts and circumstances of this case, and the fact that the respondents have constituted a 15 OA No.1818/2017 Committee, in pursuance of the aforesaid directions of the Ernakulam Bench of this Tribunal and High Court of Kerala, which comprises of ADG (A&P), DDG (SW) and Director A-II of the respondents‟ organization and the same Committee after exhaustive deliberation on the issues gave recommendations to the effect that any attempt for regularization of the services of the applicants is fraught with complications and would jeopardize the interests of the broadcasting organization and further observed that the said Idea is neither administratively feasible nor economically viable and against the principles of natural justice and against the larger public interest and the fact that the said recommendations were accepted by the competent authority.
16. Hence, we do not find any merit in the present OA as the issue of creation of posts has been squarely dealt with by the Hon'ble Supreme Court in the case of P.U. Joshi (supra), relevant portion of the same has already been quoted above, 35 and the manner of regularization has also been dealt with by the Apex Court in Uma Devi (supra) and also the fact that the aforesaid decision of the Hon‟ble Delhi High Court still holds sway, this OA is disposed of in terms of the detailed order passed by the Hon‟ble Delhi High Court in Batch of cases (C.W.P No.319/2001 and others) vide judgment dated 13.2.2002, which has already been affirmed by the Hon‟ble Apex Court in SLP No.11855/2002 vide Order dated 11.7.2002.
17. In the result, for the foregoing reasons, the present OA being devoid of merit is dismissed. There shall be no order as to costs."
18. It was pleaded that in view of the foregoing, the empanelment of Casual Announcers is undertaken at all stations of All India Radio. The Announcers empanelled are imparted training to improve quality of the programme and they are to be called for a maximum of 6 days in a month and certain fee is paid to the artists in lieu of such engagements. Review audition is a necessity to ensure quality and in the instant case, the applicant had chosen not to appear in the review audition held in 30.04.2015. There is no scheme for 16 OA No.1818/2017 regularisation of Casual Announcers. Moreover, the work requirement is also not of a regular nature needing full time engagement. Accordingly, OA is without merit and is required to be dismissed.
19. Matter has been heard at length. Sh. Dheeraj Kumar, learned counsel represented the applicant and Sh. S.M.Arif, learned counsel represented the respondents.
20. It is noted that the empanelment of the Casual Announcers is to fulfil a specific need of sporadic nature of work for broadcasting of the programme as per needs of All India Radio. Appropriate quality of such Announcers is required to be maintained for which holding of audition test is prescribed and it is held from time to time.
21. It is very clear from the initial engagement letter issued to the applicant in the year 1987 that the minimum qualification is also prescribed and it is graduation (para 1 supra).
22. In the instant case, applicant was called to appear in the audition test held on 30.04.2015 along with other candidates and a total of 16 candidates were empanelled. Applicant had, however, chosen not to appear in the said test on the plea that she was not issued a proper letter and only a communication was sent through whatsapp which is not a 17 OA No.1818/2017 prescribed mode of communication as per the Ministry of Communication and Information Technology notification dated 18.01.2015. The applicant‟s contention in this regard for non-communication of holding the audition is not acceptable as same mode was adopted for all other candidates and they had actually appeared and they were empanelled. Since applicant had been approaching judicial fora for her empanelment, it was required that she remains on the look out for such opportunity and see the Notice Board where audition test notification was put up. The applicant, admittedly, received a communication on phone/whatsapp. Therefore, her plea of improper communication is not acceptable and is rejected.
23. The ratio of the judgments relied upon by the applicant are in a different context. The Uma Devi judgment (supra) is in respect of those casual labourers who had been working continuously for a period of 10 years or more without regularisation. The empanelment for Casual Announcers in All India Radio is for a maximum period of 6 days in a month. The empanelled artists are free to take up any assignment at places other than All India Radio. Accordingly, the case of artists on empanelled list of All India Radio, will not fall in the category of casual labourers, who are otherwise on full time engagement for the period notified for such casual 18 OA No.1818/2017 engagement. The ratio of other judgments quoted by the applicant is also not considered relevant in the instant case.
24. In view of the foregoing, it is held that the ratio of the judgment in OA No.96/2018 is fully attracted in the instant case (para 17 supra). The pleadings by the applicant are not finding acceptability. Accordingly, OA is dismissed being devoid of merit. No order as to costs.
25. This, however, does not preclude the respondents from allowing the applicant to appear in future audition tests as and when conducted and empanel her, if she is otherwise found suitable as per the criteria and qualifications as specified. No order as to costs.
( Pradeep Kumar ) Member (A) „sd‟