Kerala High Court
Union Of India vs P.U.Jose on 13 October, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938
WP(C).No. 25199 of 2007 (Z)
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AGAINST THE ORDER IN OA 628/2003 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 13-10-2006
PETITIONER(S):
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF INFORMATION & BROADCASTING, NEW DELHI.
2. THE DIRECTOR GENERAL,
ALL INDIA RADIO, PRASAR BHARATHI, BROADCASTING CORPORATION
OF INDIA, NEW DELHI.
3. THE STATION DIRECTOR,
ALL INDIA RADIO, THIRUVANANTHAPURAM.
4. THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI.
BY ADVS.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
SRI.P.J.PHILIP, C.G.C
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.M.RAJENDRA KUMAR, CGC
RESPONDENT(S):
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P.U.JOSE, S/O P.K. ULAHANNAN,
FIELD REPORTER, ALL INDIA RADIO, TRIVANDRUM,
PRESENT ADDRESS: PARAVARA HOUSE,PATTANCHERRY ROAD, PETTAH,
ERNAKULAM DISTRICT.
R,R1 BY ADV. SRI.T.C.GOVINDA SWAMY
R,R1 BY ADV. SMT.D.HEERA
R,R1 BY ADV. SRI.G.SHYAM RAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-
06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) NO. 25199 OF 2007
APPENDIX
PETITIONER'S EXHIBITS :
EXT. P1 : TRUE COPY OF THE ORIGINAL APPLICATION NO. 628 OF
2003
EXT. P2 : TRUE COPY OF THE REPLY STATEMENT
EXT. P3 : TRUE COPY OF THE REJOINDER
EXT. P4 : TRUE COPY OF THE ADDITIONAL REPLY STATEMENT
EXT. P5 : TRUE COPY OF THE ADDITIONAL REJOINDER
EXT. P6 : TRUE COPY OF THE 2ND ADDITIOANL REPLY STATEMENT
EXT. P7 : TRUE COPY OF THE ORDER OF O.A. NO. 628 OF 20013
DATED 13.10.2006 OF CAT, ERNAKULAM.
RESPONDENTS' EXHIBITS :
/TRUE COPY/
P.A TO JUDGE
P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.
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W.P.(C) No. 25199 of 2007
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Dated, this the 29th day of June, 2016
JUDGMENT
Anil K. Narendran, J.
The petitioners are the respondents in O.A.No.628 of 2003 on the file of the Central Administrative Tribunal, Ernakulam Bench. The said original application was filed by the respondent herein seeking a declaration that the action of the petitioners herein in utilising the Programme Executives, who were promoted from the feeder cadre of Transmission Executives, against the post of Extension Officers under the 3rd petitioner is arbitrary, discriminatory and unconstitutional. The respondent has also sought for a declaration that he is entitled to be considered for promotion to the post of Extension Officer lying vacant under the 3rd petitioner and to direct the petitioners to consider and promote him accordingly and also to direct the petitioners to grant him consequential benefits of promotion as Extension Officer from the date on which he became eligible to be considered for promotion against that post.
2. The reliefs sought for in the original application was W.P.(C) No. 25199 of 2007 : 2 : opposed by the petitioners herein by filing Ext.P2 reply statement, Ext.P4 additional reply statement and Ext.P6 2nd additional reply statement. The applicant filed Ext.P3 rejoinder and Ext.P5 additional rejoinder.
3. After considering the rival contentions, the Tribunal by Ext.P7 order allowed the original application, declaring that the post of Extension Officer shall, till the Recruitment Rules are suitably amended, be tenable by eligible Filed Reporters and the case of the applicant along with other eligible Field Reporters shall be considered against the vacancies of Extension Officers. However, such promotion shall be from a prospective date. The petitioners were directed to complete the process in this regard within a period of three months from the date of communication of the order.
4. Feeling aggrieved by Ext.P7 order of the Tribunal, the petitioners are before this Court in this original petition.
5. We heard the arguments of the learned Assistant Solicitor General of India for the petitioners and also the learned counsel for the respondent/applicant.
6. The pleadings and materials on record would show that the W.P.(C) No. 25199 of 2007 : 3 : applicant was appointed as Field Reporter (F.W.) in the All India Radio vide order dated 30.09.1989, in terms of Annexure A1 Recruitment Rules, and was confirmed against the said post with effect from 16.10.1991, as per Annexure A10 order dated 06.11.1991. According to the applicant, as per Annexure A2 Recruitment Rules, Field Reporters with 5 years approved service are entitled to be considered for promotion against 50% vacancies in the cadre of Extension Officers, and he became eligible to be considered for promotion to that post with effect from 16.10.1994. As on that date two posts of Extension Officers were lying vacant in the Kerala Zone, one at AIR Trivandrum and the other at AIR Calicut. According to the applicant, he was the senior most eligible to be considered for promotion against one of those vacancies. When the applicant preferred a claim in this regard, he was informed vide Annexure A3 that, the post of Field Reporter has already been inducted into the post of Transmission Executives and the persons working in the grade of Transmission Executives will be considered for promotion to the next higher grade of Programme Executives in accordance with the relevant Rules. The applicant was also informed that his representation is being forwarded W.P.(C) No. 25199 of 2007 : 4 : to the Directorate for its consideration.
7. According to the applicant, there is no order of the Director General, AIR by which the post of Field Reporter has been inducted into the post of Transmission Executives. Even if such an order is there, the same would be ultra vires the provisions of the Recruitment Rules, which is having statutory force. No merger or abolition of the cadre had taken place by any process known to law. Further, the nature of duties and responsibilities of Field Reporter is entirely different from that of Transmission Executives. Similarly, the nature of duties and responsibilities of Programme Executive is different and distinct from that of Extension Officer. The nature of duties and functions of the aforesaid posts are mentioned in Annexure A4.
8. Though, as stated in Annexure A3, the representation submitted by the applicant was forwarded to the Directorate for its consideration, there was no response. In the said circumstances, the applicant submitted Annexure A5 representation. Relying on Annexure A6 statement regarding the number of sanctioned posts and the progress of action to fill up the vacant posts in Group A, B, C, D and Staff Artists as on 31.3.2001, the applicant contended that the posts W.P.(C) No. 25199 of 2007 : 5 : of Extension Officer are still being maintained separately. Relying on Annexure A7 Recruitment Rules, the applicant contended further that, the utilisation of Programme Executive against the post of Extension Officer is also ultra vires the statutory rules. Pointing out the above aspects, the applicant submitted Annexure A8 representation. Since there was no response to Annexure A8, the applicant approached the Tribunal in O.A.No.628 of 2003, seeking various reliefs.
9. Before the Tribunal, the petitioners herein contended, inter alia, that, though, at the time of appointment of the applicant as Field Reporter on 16.10.1989, there were separate posts of Transmission Executive, Production Assistant, Farm Radio Reporter, Field Reporter, Sub Editor and allied cadres, the scale of pay was same and some of the posts were isolated cadres. Therefore, taking into account the promotional prospects to all cadres, these posts were amalgamated in the post of Transmission Executive with effect from 29.5.1992 vide Annexure R1. The petitioners contended further that, the post of Field Reporter, etc. have been amalgamated with the post of Transmission Executive and the post of Extension Officer has been amalgamated with the Post of Transmission Executive and the practice of W.P.(C) No. 25199 of 2007 : 6 : maintaining separate cadre of Field Reporter, Extension Officer, etc. has been stopped, since the amalgamation of the post vide Annexures R2 and R3.
10. The Tribunal by Ext.P7 order allowed the original application, declaring that the post of Extension Officer shall, till the Recruitment Rules are suitably amended, be tenable by eligible Filed Reporters and the case of the applicant along with other eligible Field Reporters shall be considered against the vacancies of Extension Officers. The reasoning of the Tribunal, as contained in paragraphs 18 to 20 of Ext. P7 order reads as follows;
"18. Attempt should, therefore, be made to ascertain as to whether by practice the two posts have been amalgamated with their respective counterparts. For this purpose, all that is requires is to find out -
(a) Whether there has been a lateral movement (on more than one occasion, as the same only would mean practice and not an isolated posting) from the post of Field Reporter to the post of Transmission Executive in the post?
(b) Like wise, whether there has been a lateral movement from the post of Programme Executive and Extension Officer? and
(d) Whether any of the Field Reporter had been W.P.(C) No. 25199 of 2007 : 7 : promoted and posted as Programme Executive or any of the Transmission Executive had been promoted and posted as Extension Officer?
19. If answer to the above is in negative, then it has to held that there has been not amalgamation at all. There has been a specific averment in para 4 (e) of the O.A. "In this connection it is also begged to submit that even as on this date the posts/cadres of Field Reporters and that of the G.O. (Sic EO!) are maintained independently". To this specific averment, there has been no denial. Thus, it can be held that in so far as Extension Officer is concerned, the Recruitment Rules as per Annexure A-2 are still current and since the feeder post of Field Reporter (FW) remains the same and the Recruitment Rules do not include Transmission Executive as one of the feeder posts, promotion to the post of Extension Officer shall have to be only as per the Recruitment Rules."
11. A reading of Ext.P7 order would show that, the Tribunal proceeded with the matter as if the relevant Recruitment Rules are yet to be amended and as such, the Recruitment Rules as per Annexure R2 will govern the field. If that be so, since the feeder post of Field Reporter remains the same and the Recruitment Rules do not include Transmission Executive as one of the feeder posts, promotion to the post of Extension Officer will have to be done only as per the Recruitment Rules.
W.P.(C) No. 25199 of 2007 : 8 :
12. Since the copy of the Amended Recruitment Rules produced as Annexures R1 to R3 does not contain the GSR number of the respective notifications and since the learned counsel for the respondent/applicant pointed out that the Schedule of the revised Recruitment Rules, which forms part of the paper book at pages 72 to 74 of the Writ Petition was never produced before the Tribunal along with Ext.P2 reply statement, we have called for the records in O.A.No.628 of 2003 from the Tribunal, by our order dated 10.6.2016. Pursuant to the said order, the available records in O.A.No.628 of 2003 were forwarded to this Court along with a covering letter dated 17.6.2016 of the Registrar of the Tribunal, addressed to the Registrar (Judicial) of this Court. Since the O.A. was disposed of on 13.10.2006, except the final order and other judicial proceedings, the remaining records had been destroyed as per Central Administrative Tribunal (Destruction of Records) Rules, 1990.
13. On a perusal of the proceedings sheet in O.A.No.628 of 2003, it is seen that, on 26.4.2006, the Tribunal has directed either party to produce the full text of the Recruitment Rules, since the Recruitment Rules already on record was incomplete. Later, by order W.P.(C) No. 25199 of 2007 : 9 : dated 29.6.2006, the petitioners herein were directed to produce the Recruitment Rules in full on the next date of hearing. From the proceedings sheet it is seen that the full text of the Recruitment Rules was never produced before the Tribunal.
14. The sole issue that arises for consideration in this Writ Petition is as to whether the relevant Recruitment Rules had undergone any change as contended by the petitioners herein.
15. During the course of arguments, the learned Assistant Solicitor General of India was directed to produce the relevant Recruitment Rules and pursuant to the said direction, a copy of All India Radio and Dooradarshan (Transmission Executive) Recruitment Rules, 1992 and All India Radio (Group D Posts) Recruitment (Amendment) Rules, 1993 published in the official Gazette were produced along with a memo dated 21.6.2016. As per the amended Recruitment Rules, the post of Production Assistant, Farm Radio Operator, Field Reporter, etc. were amalgamated with the post of Transmission Executive. Similarly, the post of Extension Officer has been amalgamated with the post of Programme Executive.
16. The Amended Recruitment Rules produced along with the W.P.(C) No. 25199 of 2007 : 10 : memo filed by the learned Assistant Solicitor General of India cuts the very root of the case put forward by the applicant that the relevant Recruitment Rules had not undergone any amendment and as such, he is entitled for the reliefs sought for in the original application.
17. We also notice that the specific stand taken by the petitioners herein in Ext.P4 additional reply statement filed before the Tribunal is that, after the new Recruitment Rules came into force, the applicant submitted Annexure R6 representation dated 12.3.1993 for induction of Field Reporter for the seniority list of Transmission Executives. In the said representation, the applicant has mentioned that the post of Filed Reporter has been amalgamated with that of Transmission Executive. The applicant has also stated that before amalgamation, Field Reporters were being promoted as Extension Officers, but now the post of Extension Officer has been declared as dying cadre. Therefore, the applicant requested the Department to take necessary steps for induction of Field Reporter into the list of Transmission Executive, keeping the date of appointment as the basis. Based on the said representation, the applicant was informed vide Annexure R7 letter that the post of Field Reporter has been inducted W.P.(C) No. 25199 of 2007 : 11 : into the post of Transmission Executive and that persons working in the grade of Transmission Executives will be considered for promotion to the next higher post of Programme Executive in accordance with the Recruitment Rules and that the case of the applicant along with others will be considered as and when he is eligible for such promotion. As per the endorsement made on Annexure R7, a copy of the same was forwarded to the applicant on 5.5.1993. Annexure R8 is the All India Seniority List/Eligibility List of Transmission Executives, Transmission Executive (G & P), Field Reporter and Farm Radio Reporter as on 1.1.2002 for consideration of their promotion to the post of Programme Executive. As evident from Annexure R8, the appellant is Sl.No.2 in List B relating to Transmission Executive (G & P), Field Reporter and Farm Radio Reporter. Annexure R8 also contains the acknowledgment made by the applicant and others.
18. Therefore, the materials on record make it explicitly clear that as far as the post of Extension Officer is concerned, Annexure A2 Recruitment Rules had already undergone amendment and as such any promotion can be made after the said amendment only in terms of the amended Recruitment Rules. If that be so, the applicant is not W.P.(C) No. 25199 of 2007 : 12 : entitled for the reliefs sought for in the Original Application and as such Ext.P7 order of the Tribunal cannot be sustained.
19. In the result, this Writ Petition is allowed, setting aside Ext.P7 order passed by the Tribunal. Accordingly, O.A.No.628 of 2003 will stand dismissed. No order as to costs.
The Registry shall return the case records in O.A.No.628 of 2003 to the Tribunal.
Sd/-
P. R. RAMACHANDRA MENON, JUDGE Sd/-
ANIL K. NARENDRAN, JUDGE kmd