Central Administrative Tribunal - Bangalore
M R Harish Kumar And Anr vs Doordarshan on 1 June, 2023
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OA.No.441/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00441/2021
ORDER RESERVED ON:29.03.2023
DATE OF ORDER: 01.06.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
M.R. Harish Kumar,
S/o Late M.S. Ramachandra Rao,
Aged 53 years, working as
Cameraman Grade-II (Adhoc),
Doordarshan Kendra,
J.C.Nagar, Bengaluru-560 006,
Residing at No.65, Flat No.103,
Ksheerabdi Nilaya Apartment',
3rd Cross, Anjanadri Layout,
Konanakune, Bengaluru-560 062.
2. K.S.Ravindra,
S/o Late K.Siddappasetty,
Aged 55 years, working as
Cameraman Grade- (Adhoc),
Doordarshan Kendra,
J.C.Nagar, Bengaluru-560 006,
Residing at No.U-6,
U-Block, Gate # 7, Vijayanagar,
Bengaluru-560 040. ....Applicants
(By Advocate Shri A. R. Holla)
Vs.
1.Union of India
By Secretary,
Ministry of Information and Broadcasting,
Shastry Bhavan,
New Delhi - 110 001.
2. Chief Executive Officer,
Prasar Bharathi Broadcasting Corporation of India,
PTI Building,
Parliament Street,
New Delhi - 110 001.
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OA.No.441/2021/CAT/Bangalore Bench
3. Director General, Doordarshan,
Prasar Bharathi Broadcasting Corporation of India,
Doordarshan Bhavan,
Copernicus Marg,
New Delhi 110 001. ....Respondents
(By Shri Vishnu Bhat, Sr. Panel Counsel
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash order No.31/1/2019-SI (A)/217 dated 30.7.2021, issued by Respondent No.3 (Annexure A-9), to the extent that it considers the Cameraman Grade-II on deemed deputation to Prasaar Bharati, who were recruited before 05.10.2007 and those recruited/regularised thereafter i.e., the applicants herein, as separate cadres.
b) To direct the respondents to antedate the regularization of the applicants as Cameraman Grade-II from 31.12.2013 to 11.03.1993 and extend consequential benefits accordingly,
c) Grant such other relief deemed fit, having regard to the facts and circumstance of the case.
2. The facts of the case as pleaded by the applicants in their pleadings, are as follows:
a) The applicants were appointed as Cameraman Grade-II against the vacancies notified in the Employment News Paper in 1992. They were selected and appointed after following the due procedure prescribed for 3 OA.No.441/2021/CAT/Bangalore Bench regular recruitment for the post. A copy of the offer of appointment dated 16.02.1993 issued to the applicant No.1 is produced as Annexure-Al. The applicant No.2 was also offered appointment to the post on similar terms. In their appointment order, it was indicated that they have been appointed on adhoc basis. The applicants reported for duty on 11.03.1993.
b) After joining service on adhoc basis, the applicants tried to know the reasons for treating their appointment as adhoc. The competent authority approved the continuance of their appointment as Cameraman Grade-II vide orders dated 18.12.1996. The Cameraman Grade-II, working as adhoc, were not granted any financial up-
gradation. They requested the respondents to treat them as regular Cameraman Grade-II and grant all consequential benefits as available to similarly placed employees appointed as Cameraman Grade-II after 1995. The respondents regularized the services of 24 Cameraman Grade-II working on adhoc basis in terms of orders dated 31.12.2013.
c) The respondents have maintained that these 24 Cameraman Grade-II are a separate cadre designating them as Cameraman Grade-II (Ex- Cadre). In pursuance of their appointment as Cameraman Grade-II (Ex- Cadre), the number of posts in the regular cadre of Cameraman Grade- II has been reduced by 24. It was also decided to revert the posts to the cadre of Cameraman Grade-II as and when they are vacated by the incumbents holding the posts of Cameraman Grade-II (Ex-Cadre) on retirement/resignation or due to any other reason. The Cameraman 4 OA.No.441/2021/CAT/Bangalore Bench Grade-II (Ex-Cadre) is treated as an isolated cadre depriving them the chances of promotion/financial up-gradation under MACP etc. These conditions were given in order dated 22.1.2014 (Annexure A-5).
d) The applicant No.2 submitted a representation to the respondent No.3 on 24.01.2014 with a request to extend him the benefits of regularization retrospectively so as to avail ACP/MACP benefits. In the meantime, some of the Cameraman Grade-II approached the Jabalpur Bench of this Tribunal in O.A. No. 849 of 2001 and obtained an order for grant of benefits to them retrospectively. The said order has been confirmed by the High Court of Madhya Pradesh in W.P. No.8932/2005 & W.P. No.7048/2004 vide order dated 24.11.2007. In pursuance of the court orders, the respondent No.3 passed an order dated 04.11.2019 granting pay protection to those 8 Cameraman Grade-II (applicants in O.A. No.849 of 2001) by fixing their pay on the date of their regular appointment with reference to their initial adhoc appointment, as the case may be.
e) In the above background, 21 similarly placed employees, including the applicants approached the CAT, Principal Bench, New Delhi, in O.A. No.l1779 of 2016 with prayers, inter alia, to treat their service as Cameraman Grade-II since 1993 and extend consequential benefits. The CAT, Principal Bench, by an order dated 01.04.2021 disposed of O.A. No.1779 of 2016 and the connected MA No.1747/2016 & MA No.2205/2017, without going in to merits of the claim of the applicants therein, directing the respondents to take a final decision on the 5 OA.No.441/2021/CAT/Bangalore Bench proposal dated 7/8.11.2019 and to pass a reasoned and speaking order as expeditiously as possible
f) Thereafter, the respondent No.3, passed a "Speaking Order" dated 30.07.2021 wherein the following decisions were taken:
i. To include the Cameraman Grade-II (Ex-Cadre) in the regular cadre of Cameraman Grade-II, ii. The concomitant proposal to antedate regularization of Cameraman Grade-II (Ex-Cadre) from 2013 to 1999 after their inclusion in the regular cadre has not been agreed. iii. It has been held that the Cameraman Grade-II regularized in 2013, are considered as Prasar Bharati employees whereas those Cameraman Grade -II who were recruited on or before 05.10.2007 are considered as Government servants on deemed deputation. They are, therefore, treated as two categories of employees. As such, the Cameraman Grade-I (Ex-Cadre) cannot be placed in a common seniority list of Cameraman Grade-II. The Cameraman Grade-II appointed/regularized in 2013, will get promotion as per the Recruitment Regulations framed by Prasar Bharati only (Annexure-A9).
g) The applicants have been appointed on adhoc basis as Cameraman Grade-II for a period of one year as per the terms of their appointment in 1993. But they have been continued in service by extending their 6 OA.No.441/2021/CAT/Bangalore Bench tenure from time to time. The applicants have rendered service continuously and uninterruptedly for 20 years. Their service cannot be termed as on adhoc basis. Their service has been continued till their regularization with effect from 31.12.2013 continuously without any break. When the adhoc appointment is followed by regularization, the employees are eligible for seniority from the date of their initial appointment on adhoc basis as per the law laid down by the Hon'ble Supreme Court in the case of Direct Recruits Class-II Engineering Officers Association Vs. State of Maharashtra & others reported in (1990) 2 SCC 715.
h) The applicants were appointed against the vacancies notified in the newspaper and after following the due procedure prescribed in the rules. There is no justification to treat their service as on adhoc basis.
They have been extended same service benefits as given to the regular employees, except the financial up-gradations under MACP scheme/regular promotions. This has been now corrected by the decision taken as per the 'Speaking Order' dated 30.07.2021 (Annexure-A9). After recognizing that there is no justification to discriminate between the posts of Cameraman Grade-II and Cameraman Grade-II (Ex-Cadre), the respondents after regularisation, have erred in not extending the service benefits to the applicants on par with that of regular Cameraman Grade-II, from the date of their initial appointment in 1993.
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OA.No.441/2021/CAT/Bangalore Bench
i) There is absolutely no justification to discriminate the Cameraman Grade-II appointed prior to 05.10.2007 as Government servants and those recruited subsequently as Prasar Bharati employees, when the nature of duties performed by the Cameraman Grade-II is the same. The provisions of Prasar Bharati Act, 1990 as amended, do not envisage such discrimination. The apprehension of the respondents in para 6 of the 'Speaking Order' dated 30.07.2021 is baseless and imaginary. Such, discrimination violates the provisions of Article 14 of the Constitution of India, as equals are being treated as un-equals. As such, the contents of para 6 of the impugned order is totally unreasonable and unsustainable in law.
3. The respondents have filed their written statement wherein they have averred as follows:
a) As per the Recruitment Rules, the post of Cameraman Grade-II was to be filled 100% by direct recruitment through UPSC. Doordarshan was facing acute shortage of Cameraman Grade-II in the decade of 1990 since against thee sanctioned strength of 509, only 284 Cameraman Gr-
II were in position in 1992. Since recruitment through UPSC was a time consuming procedure, it was decided to resort to ad-hoc appointment of Cameraman. As such in 1993-94, 88 ad-hoc Cameraman Grade-II were appointed in the year1993 purely on temporary basis to meet the contingency as stop-gap arrangement. These ad-hoc appointments were made for a maximum period of one year or till the appointment was made through UPSC on regular basis, 8 OA.No.441/2021/CAT/Bangalore Bench whichever was earlier. Extension of these adhoc appointment was done till 31.12.1997 with the approval of Ministry of Information & Broadcasting and concurrence of DOPT.
b) On the requisition of Doordarshan, vacancies were published by UPSC for 225 Cameraman Gr-II in Employment News in its 28th October - 3rd November 1995 edition. The 88 Cameraman who were working in Doordarshan on adhoc basis had also applied in UPSC for the posts along with other candidates for these 225 posts. Out of these 88 Cameraman Grade II working on adhoc basis, 54 persons were declared qualified by UPSC. These persons had joined as regular Cameraman Gr-II along with other successful candidates later in the year 999.
c) Out of the 88 Cameraman Gr-II who applied in UPSC in 1995, 24 Cameraman Gr-II could not qualify for selection in UPSC. They, however, continued to serve on Adhoc basis, as still shortage of Cameraman Gr-II was being felt in Doordarshan. Later in 2013, Prasar Bharati regularized these 24 Cameraman Gr-II as regular Prasar Bharati Employees. Before regularisation, an undertaking had been taken from these 24 Cameraman, wherein they agreed with terms & conditions offered by Prasar Bharati.
d) These 24 Cameraman Gr-II who are regularized since 2013 as Prasar Bharati Employees, are demanding benefits since 1999. Generally, nowhere same benefit is extended to passed candidates and to failed candidates at par and hence, the demand is not reasonable/just. 9
OA.No.441/2021/CAT/Bangalore Bench
e) In the said offer of appointment, it was clearly mentioned that your ad-
hoc appointment will not entitle you for seniority, promotion, pension or claim for regular appointment to the post, etc. Having accepted the conditions of the offer issued by the Respondents, the applicants were allowed to report for duties.
f) The Respondents have carved out 24 posts of Cameraman Grade II from the existed sanctioned strength to accommodate 24 Ad-hoc Cameraman Grade. II. After forming a separate cadre Cameraman Gr. II (Ex Cadre) from the existed strength of Cameraman Gr. II, a total of 24 posts of Cameraman Gr. II (Ex Cadre) in the pay scale of Rs.9300- 34800 + Grade Pay of Rs.4600/- were regularized w.e.f. 26.12.2013 (FN) vide Directorate General, Doordarshan, Office Order No.25/2013-SI(A) dt. 31.12.2013, including the applicants.
g) The Respondents have issued a Speaking Order dated 30.7.2021 in pursuance of the directions of Hon'ble CAT, PB New Delhi dated 01.04.2021 in OA No.1779/2016, where in the applicants were also party to the OA. The applicants are receiving annual increments regularly and their pay was revised as and when the recommendations of the Central Pay Commission was accepted by Prasar Bharati. The applicants are entitled for MACP and allied benefits etc., as admissible to other similarly placed Prasar Bharati Employees.
h) Antedate regularisation of ad-hoc Cameramen Grade-II from 1999 to 2013 after their proposed inclusion in the regular cadre, thereby bringing them at par with UPSC selected Cameramen Grade II has not 10 OA.No.441/2021/CAT/Bangalore Bench been found reasonable/just in terms of relevant rules and law laid down by the Hon'ble Supreme Court of India, in Civil Appeal No.3595- 3612/1999 in the case of Secretary, State of Karnataka and Ors. Vs. Uma Devi & others and hence cannot be acceded to. The applicants have voluntarily accepted the conditions and continued in the post, though they were free to take a decision to continue in the post or not.
i) There is condition in the order (sub-para v) that, the cadre of Cameraman Gr-II (Ex-cadre) may be an isolated cadre and therefore, no promotional avenue will be available to these 24 Cameraman Gr-II (Ex-cadre). However, other benefits e.g. MACP and allied benefits etc. as per instructions will be admissible on regularization as are admissible to other similarly placed persons.
j) As the applicants have been regularized in 2013, they belong to the category of Prasar Bharati Employees and hence, on their inclusion in the regular cadre of Cameraman Grade II, they cannot be made part of the existing seniority list of Cameraman Grade II working on deemed deputation basis in Prasar Bharati.
k) The applicants were appointed on ad-hoc basis with certain conditions which was accepted by them. The Cameraman Gr. II is a Group B post and these posts are to be filled by UPSC only. Whereas, the applicants were selected by a committee, who appointed them on ad-hoc basis till availability of regular candidates from UPSC. Hence, these ad-hoc appointees cannot be equated at par with the Cameraman Gr. II appointed by UPSC, though they were regularized during 2013 under 11 OA.No.441/2021/CAT/Bangalore Bench the Prasar Bharati Act. These appointees (including the applicants) are employees of Prasar Bharati.
l) As per the Speaking Order, these Cameraman Gr. II, will duly be entitled to promotion to the next higher grade as per the provisions of Recruitment Regulations for, the relevant post framed by Prasar Bharati applicable to the Prasar Bharati employees.
m) The applicants were appointed during 1993 purely on ad-hoc (v) basis with certain conditions which were accepted by them. Now the Prasar Bharati is managing the affairs of the media. Under the provisions of Prasar Bharati Act, these ad-hoc appointees were regularized. These Prasar Bharati employees cannot be treated at par with those appointed by UPSC who are on deemed deputation.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. The applicants in the present case had initially been appointed on 16.2.1993 as Cameraman Grade II on adhoc basis. A perusal of their offer of appointment order dated 16.2.1993 clearly mentions the reasons for their appointment as a temporary arrangement on adhoc basis as follows:
"Your appointment wil1 be purely a temporary arrangement on ad-hoc basis for a maximum period of one year or till recruitment is made on regular basis through Union Public Service Commission, whichever is earlier, whereafter the appointment shall stand terminated without any notice. During this period, you may be required to undergo such 12 OA.No.441/2021/CAT/Bangalore Bench training and pass such tests as may be prescribed from time to time. Failure to pass such, tests will render you liable to be discharged from service."
6. Hence, the contention of the applicants that they were not aware of the reason why they were initially appointed in 1993 on ad-hoc basis, is incorrect, since this was clearly mentioned in their offer of appointment order itself.
7. The respondents have stated that in view of the shortage of Cameramen Grade-II in Doordarshan in the decade of 1990, these ad-hoc appointments were made till such time as appointments were made on a regular basis through UPSC as prescribed under the Recruitment Rules.
8. The post of Cameramen Grade-II are Group 'B' as per the Recruitment Rules and their appointment can only be made through UPSC. Subsequently, UPSC invited applications vide Employment News of 28 October - 3 November, 1995, for these posts of Cameramen Grade-II (225 posts). The 88 Cameramen appointed in the year 1993 on ad-hoc basis by DG, Doordarshan also applied along with other candidates for these posts. Out of these 88 persons, 54 were declared as qualified by UPSC. These qualified candidates joined as regular Cameramen Grade-II along with other successful candidates in the year 1999.
9. The services of these 24 Cameramen Grade-II, who could not qualify the selection by UPSC should have been discontinued, since their appointment clearly stated that their appointment on ad-hoc basis was only till such time till regular appointment is made on regular basis through the UPSC. 13
OA.No.441/2021/CAT/Bangalore Bench However, as per the respondents, keeping in view the shortage of Cameramen Grade-II being felt in Doordarshan at that time, their services were continued on ad-hoc basis.
10. Subsequently, The Prasar Bharati (Broadcasting Corporation of India) was setup through the Prasar Bharati Act, 1990. The Prasar Bharati was established w.e.f 23.11.1997 vide S.O. 792 €, dated 23rd November, 1997. As a consequence, the services of all the officers/employees of Akashavani and Doordarshan were transferred to the newly formed Prasar Bharati Corporation.
11. Section 11 of the Prasar Bharati Act, 1990, specifies the Status of officers and employees of Prasar Bharati as follows:
"11. Status of officers and employees- (1) All officers and employees recruited for the purposes of Akashavani or Doordarshan before the appointed day and in service in the Corporation as on the 1st day of April, 2000, shall be on deemed deputation to the Corporation with effect from the 1st day of April 2000, and shall so continue till their retirement.
(2) All officers and employees recruited during the period on or after the appointed day till the 5th day of October, 2007, shall be on deemed deputation to the Corporation with effect from the 1st day of April, 2000 or the date of their joining service in the Corporation, whichever is later and until their retirement.14
OA.No.441/2021/CAT/Bangalore Bench Explanation.--For the purposes of sub-sections (1) and (2), "officers and employees recruited" means officers and employees recruited either under the proviso to article 309 of the Constitution or in accordance with the regulations made under the Act, but shall not include persons engaged or appointed on daily wages, casual, ad hoc or work charged basis.
(3) The officers and employees referred to in sub-section (1) and sub- section (2) shall be entitled to the pay and all other benefits as admissible to an employee of the Central Government:
Provided that such officers and employees shall not be entitled to any deputation allowance.
(4) Notwithstanding anything contained in any other law for the time being in force, the Corporation shall have the disciplinary and supervisory powers and full control on the officers and employees referred to in sub-section (1) and sub-section (2), including the power to transfer them from one place, post or media to another, and to suspend, initiate disciplinary proceedings and impose major or minor penalties:
Provided that the power to impose major penalties of compulsory retirement, removal or dismissal from service shall be exercised by the Central Government.
(5) All officers and employees recruited after the 5th day of October, 2007 shall be officers and employees of the Corporation and shall be 15 OA.No.441/2021/CAT/Bangalore Bench governed by such conditions of service as may be specified in the regulations."
12. It is therefore apparent that the Prasar Bharati Act itself provides for two different classes of employees, in terms of their date of appointment. Those regularly appointed before 5th October 2007 are considered as Central Government Employees on deemed deputation to the Prasar Bharati till their retirement. The other regularly appointed employees after 5th October 2007 are considered as Prasar Bharati Employees and are governed by the rules and regulations of Prasar Bharati itself. It is also clearly specified that this shall not include persons engaged or appointed on daily wages, casual, adhoc, or work charged basis.
13. These 24 adhoc appointees, including the applicants, were initially appointed on ad-hoc basis by Doordarshan as Cameramen Grade-II, in the year 1993. They had participated in the selection process initiated by the UPSC in the year 1995, and had failed to qualify the same. Hence, now they cannot claim to be in the same class as those employees who had been selected on the basis of their qualifying the selection process initiated by the UPSC in 1995, as per the Recruitment Rules for these posts.
14. The applicants have been subsequently regularised as Cameramen Grade-II by the Prasar Bharati Corporation as Prasar Bharati employees in the year 2013. Even at the time of regularisation, an undertaking had been taken from these Cameramen wherein they agreed with the terms and conditions offered by the Prasar Bharati Corporation.
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15. The Prasar Bharati, vide its speaking order dated 30.7.2021 has already approved the proposal for inclusion of these Ex-cadre Cameraman Grade-II in their regular cadre of Cameraman Grade-II. As such, their demand to remove their Ex-cadre status has been accepted. However, since they were regularised by Prasar Bharati in the year 2013, hence they are rightly to be treated as Prasar Bharati employees and cannot be treated to be in the same class of Cameraman Grade-II, who had earlier been appointed by Government of India, after selection and recommendation by the UPSC, in the year 1999, as per the Recruitment Rules in force at that point of time.
16. Regularisation of these employees as Cameraman Grade-II has been done by Prasar Bharati and not by Government of India in the year 2013. Hence, their status will be that of a Prasar Bharati employee and not that of a Government employees on deputation to Prasar Bharati.
17. The applicant have relied on various Court judgments in support of their contentions. In the case of Direct Recruits Class-II Engineering Officers Association vs. State of Maharashtra & ors, reported in (1990)2 SCC 715, cited by the applicants, the Hon'ble Supreme Court has held as follows:
" (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
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OA.No.441/2021/CAT/Bangalore Bench (B) If the initial appointment is not made by following the procedure laid down by the rules, but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."
18. In the case of I.K. Sukhija & ors vs. Union of India, (1197) 6 SCC 406, it has been held that promotes are entitled for fixation of seniority from their ad-hoc promotion.
19. However, a perusal of these cases indicate that in all such cases, regularisation had been done on the post subsequent to ad-hoc appointments, in accordance with rules. As per the recruitment rules, appointment to the post of Cameraman Grade II had to be done through the UPSC only. In the present case, the applicants were initially appointed on ad-hoc basis in the year 1993, in violation of these rules. They failed to qualify despite participating in the subsequent selection process conducted by the UPSC in the year 1995. They have been subsequently regularised in the year 2013, not by their initial appointing authority i.e. the Government of India, but by the Prasar Bharati Corporation, which came into existence w.e.f. 23.11.1997. Hence, the facts of the present case being totally different from the facts in the cases quoted by the applicants, are not at all related to the present case and cannot be relied upon.
20. The prayer of the applicants to regularise their adhoc appointment w.e.f 1993 i.e. the date of their initial ad-hoc appoint in Doordarshan cannot be countenanced. The applicants had subsequently failed to qualify in the selection process conducted by the UPSC in 1995 and hence, cannot claim 18 OA.No.441/2021/CAT/Bangalore Bench to have any right for regularisation on these posts from the date of their initial adhoc appointment since their subsequent regularization has not been done in conformity with the recruitment rules for these posts which required selection through the UPSC.
21. These applicants have been regularized by the Prasar Bharati Corporation under its own rules and regulations in the year 2013. They shall be entitled to further promotions and benefits as per the provisions of the Recruitment Regulations framed by the Prasar Bharati for its employees as clarified in the impugned order dated 30.07.2021 (Annexure A9).
22. Keeping the above facts in view, the OA lacks merit and deserves to be dismissed.
23. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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