Central Administrative Tribunal - Delhi
Habib Ahmed vs M/O Information And Broadcasting on 18 August, 2023
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Item No.35/ C-4 OA No. 1025/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1025/2018
Reserved on 18.08.2023
Pronounced on 12.09.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Habib Ahmad
S/o Noor Mohd. Aged 35 Years
R/o D-149, Abul Fazal Enclave-1
Okhla Village, Jamia NagarDelhi-110 025
2. Neeraj Kumar
S/o Late Shri Sulekh Chand
R/o WS-61, Gali No.1 Sudama Puri
Babarpur, ShahdaraDelhi 110 032
3. Ramakanta Dash
S/o Rajakishora Dash
R/o H-13, Adchini3rd Floor, New Delhi 110 017
4. Moshahid Ammar
S/o Iftekharul Haque
R/o J-23, 2nd Floor, Gali No. 12
Near Abdula Masjid, Ramesh Park
Laxmi Nagar, New Delhi 110 092
5. Shamim Ara
D/o Naseeruddin
R/o D-33, Jauhari Farm,
Jamia Nagar, Okhla Delhi 110 025
6. Mirza Shamshulhaq Baig
S/o Mirza Subhan Baig
R/o D-319, Abul Fazal Enclave
Jamia Nagar, Okhla Delhi 110 025
7. Saltnat Zehra Naqvi
D/o Mohd. Ali Naqvi
R/o A-7 Jauhari Farm,
Jamia Nagar, Delhi 110 025
8. Karan Kumar
S/o Late Tulish Dass
R/o E-63, Ground Floor Behind Devi Mandir
Tagore Garden Extension New Delhi 110 027
9. Sheena Santosh
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Item No.35/ C-4 OA No. 1025/2018
W/o C G Santosh
R/o 150-B, DDA Flat
Shahpur Jat, New Delhi 110 049
10. Geeta Rawat
W/o S S Rawat
R/o A-40 Mandir Marg Staff QuartersNew Delhi 110 001
11. Lalit Kumar Thakur
S/o Lakheshwar Thakur
R/o 121-122 3rd Floor
Pocket -4, Sector 25,Rohini, Delhi 110 085
12. Dharmendra Kumar
S/o Late Nain Singh
R/o House No. 489 Nai Basti
Devli Village, New Delhi 110 062
13. Harish Kumar Singh
S/o Satya Narayan Singh
r/o House No. 848-A, Nyay Khand-III
Indirapuram, Ghaziabad
14. S. Venkataramana
S/o S Subramanayam Naidu
Flat No. 136, 2nd Floor
DDA Flat, Shahpur JatNew Delhi 110 049
15. Pradeep Chaudhary
S/o Krishan Kumar
R/o House No. 27, Peeli Kothi
Khanpur, M.B. Road, New Delhi 110 080
16. Mukesh
S/o Late Shri Veer Pal
R/o F-321, Dr. Ambedkar Nagar
Sector 5, New Delhi 110 062
17. Rajneesh Kumar
S/o Late Shri Bainiprasad
R/o H-1/12 Sector-16Rohini, Delhi 110 089
18. Syed Nazam Iqbal
S/o Gayasuddin
R/o E-35, Ground Floor,
Abul Fazal EnclaveJamia Nagar, OkhlaNew Delhi 110 025
19. Samreen Naaz
D/o Mohd. Ikram
R/o B-28/2, Mannat Apartments
Thokar No.7, Shaheen Bagh
Jamia OkhlaNew Delhi-11- 025
20. Rahul Bhakri
S/o Late Shri Ramesh Chander Bhakri
R/o Flat No. 10-B, Sector-56
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Item No.35/ C-4 OA No. 1025/2018
Gharaunda SocietyPlot No. 33
21. Mohd Mushfique Alam
S/o Abdur Rashid
R/o C-220-21
Raghubir Nagar, Near Police ChowkiNew Delhi-110 027
22. Mohd. Salim
S/O Mohd. Arif.
R/O D-44/11 Zakir Nagar WestNew Delhi 110 025
23. Mohd. Ataur Rahman
S/o Mohd Moinuiddin
R/o 270/3 Street No.3
3rd Floor, Main RoadZakir Nagar, Okhla
New Delhi 110 025
24. Anjali Sharma
D/o R.K. Sharma
House No. 17, Vrindavan Garden Exension
Near Aradhna Cinema, SahibabadGhaziabad
25. Vikas Kumar
s/o Sh Mahender Singh
r/o V.P.O Kultana Distt. Rohtak, Haryana- 124119
26. Shivraj
s/o Sh. Bhura Lal
r/o 344 Shahpurjat, New Delhi-110049
27. Vimal Kumar Shukla
s/o Late S.N Shukla
r/o 24/2c MZH Road, Naya KatraAllahabad-211002 (UP)
28. Victor Murmu
s/o Dominic Murmu
r/o24/2c MZH Road, Naya KatraAllahabad, 211002 (UP)
29. Dhirendra Singh Rawat
s/o Sate Singh Rawat
r/o A-19, 2nd Floor, Dayal Bagh Colony, Surajkund,
Faridabad-121009
30. Jyotsna Shukla
Mr. Jagdish Narayan Shukla
R/o 287-C, DDA FlatsGazipur, Delhi 110 096
31. Farhan Najam
s/o Najmul Haq
r/o 76/159, Street-1, Ghaffar Manzil,
Jamia Nagar OkhlaNew Delhi APPLICANTS
...Applicants
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Item No.35/ C-4 OA No. 1025/2018
(By Advocate : Mr. Sanjay Parikh, Sr. Advocate
with Ms. Bushra Parveen)
Versus
1. Union of India
Through Secretary,
Ministry of I&B, Govt. of India
756/21, Chabi Ganj,
Opposite Vardhan House,
Kashmere Gate
New Delhi-110006
2. Prasar Bharati
Through CEO,
Prasar Bharti Secretariat,
2nd Floor, PTI Building,
Sansad Marg, New Delhi-110001
3. Director General (DG-DD)
Doordarshan,
Doordarshan Bhawan, Copernicus Marg
New Delhi-110001 4
...Respondents
(By Advocate: Ms. Vertika Sharma)
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Item No.35/ C-4 OA No. 1025/2018
ORDER (ORAL)
By Hon'ble Dr. Chhabilendra Roul, Member (A):-
The instant OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act 1985, seeking the following reliefs:-
"a) Direct the Respondents to appoint/absorb/regularize the applicants who are working against the sanctioned posts in consonance with Article 14, 16, 21 & 23 of the Constitution of India;
b) Direct the respondents to pay the applicants the same salary and other benefits as been received by their counterparts (doing the same work) in compliance of the judgment of Hon'ble Supreme Court in State of Punjab vs Jagjit Singh (2017) 1 SCC 148;
c) Pass such other order (s) as this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the present case."
2. Learned counsel for the applicants contends that out of 45 applicants only 31 are there as of now in the present OA. He submits a copy of the amended memo of parties, which is taken on record. A copy of the same has already been supplied to learned counsel for the respondents, who does not oppose the same.
3. Learned counsel for the applicants draws a reference that there is an interim stay passed by this Tribunal by virtue of order dated 28.02.2018 which is continuing till 6 Item No.35/ C-4 OA No. 1025/2018 date and the applicants are still in service. He places on record the written notes of submission and copy of the same has already been supplied to the learned counsel for the respondents.
4. Learned counsel for applicants also contends that there is an MA No. 2891/2021 pending adjudication before this Tribunal. While addressing the arguments, he draws a reference to written submission made on behalf of the applicants. Paras 3 and 4 thereof read as under:-
"3. The Applicants were appointed against the vacant sanctioned post. As per the answer given in Lok Sabha on 12.02.2021 by the Ministry of 1&B, 10247 vacancies in DD and 12086 vacancies in Akashwani, consisting of Group A, B and C are vacant.
4. The Applicants main contention is that the judgment passed by the Hon'ble Supreme Court in Uma Devi 2006(4) SCC 1 has no application in present case as when the Applicants were appointed by Doordarshan it was a regular appointment and was not contrary to any statutory rules as no statutory rules, in fact, existed. Therefore, their appointment was neither illegal nor irregular In this regard the factual details from the beginning are required to be appreciated (A) Phase I:
(1) The Ministry of I&B had two wings Doordarshan and All India Radio. From year 1967, the appointments were made in these wings on assignment basis (see Memo dated 02.08.1967 and 13.05.1985 @ page 37). In UOI 7 Item No.35/ C-4 OA No. 1025/2018 us MA Chowdhary (1987) 4 SCC 112, it was admitted by Union of India, that Staff Artists of AIR are covered by Article 311 of the Constitution of India.
(ii) In O.A No.536/90 Anil Kumar Mathur vs UOI, the Tribunal directed regularization of casual artists against the sanction posts and the said regularization to be completed by 14.08.1992.
(iii) Pursuant to the said direction the first scheme of regularisation came on 19.06.1992 which was clarified on 17.03.1994. Those employees appointed before 31.12.1991 (cutoff date for regularization) considered eligible for regularisation (page 77-80) However, the process of regularization continued under the said scheme beyond the cut-off date 31.12.1991 (see High Court order in CEO vs Lakhanpal Singh @ Page 81-82). Extending the cut-off date in the case of one employee named Himanshu, who was appointed on 15.01.1994 under the said regularization scheme (@ page 183).
Therefore, in the beginning, the mode of appointment was through an assignment basis which was regularized by the Respondents. The appointment was found to be covered by Article 311 of the Constitution and the scheme of regularization continued till year 2017.
(B) Phase II:
(i) The second phase came when Prasar Bharati Broadcasting Corporation Act, 1997 was enacted.
Pursuant thereto "Prasar Bharati" came into existence in the year 1997. From 1997 to 2003 appointments were being made by Prasar Bharati.
(ii) on 22.10.2012 Prasar Bharati sought regularization of artists appointed on casual basis (@page 84 to 90]. (iii) Approval of regularisation of 226 casual artist was granted on 18.07.2013 @page 91). (iv) Again 233 casual artists were regularized on 06.08.2015 (@92-106) 8 Item No.35/ C-4 OA No. 1025/2018
(v) The Prasar Bharati regularized the casual artists by applying the scheme of regularization dated 19.06.1992/17.06.1994.
(vi) No recruitment rules were framed by Prasar Bharati and the appointment of employees continued in similar manner.
C. Third Phase:
(i) Prasar Bharati instead of appointing artists itself, engaged the services of Broadcast Engineering Consultants India Limited (BECIL) as the recruitment agency. BECIL continued the recruitment from 2003 to 2012 (@page 42).
(ii) From page 107 to 122 of the OA, documents exist by which it is shown that fixation of salary and qualifications were notified by Doordarshan.
Requisition for appointment of employees was forwarded by Doordarshan to BECIL and thereafter, appointment letters were issued by BECIL. These appointments were initially made for one year and thereafter extended from time to time.
(iii) These appointments were also on the sanctioned vacant posts. Any of the Applicants who fulfilled the qualifications prescribed by Doordarshan after undergoing the process of selection were appointed through BECIL. Even at this juncture no recruitment rules existed, upto 2012 and Prasar Bharati continued appointment of employees through BECIL.
D. Fourth Phase:
(i) With effect from 01.11.2012 the services of BECIL were discontinued by Doordarshan and policy to engage employees on contractual basis was commenced from the year 2012.
(ii) The Contractual Policy dated 5.10 2012 applied to the appointments against the sanctioned vacancies (@ pages 127-149). The Artists appointed under this policy were subjected to skill evaluations and their services was 9 Item No.35/ C-4 OA No. 1025/2018 extended from time to time (the relevant documents for this phase are at pages 123-178).
(iii) It is important to note that though certain Regulations were framed by Prasar Bharati in year 2013-2016 but no vacancies were advertised under the said regulations and the appointments continued under the Contractual Policy, 2012.
E. What comes out from the above facts is that from year 1967 onwards DD/AIR under the Ministry of I&B has been following its own method of appointing the artists. It was to begin with on assignment basis which is followed by regularization, thereafter through recruitment agency, casual basis and then on contractual basis.
F. One common thread which exists is that all these appointments were against the sanctioned vacancies and appointments were made on the basis of norms which were fixed by the DD/AIR. No recruitment rules existed, no efforts were made by Prasar Bharati or Doordarshan to make recruitment rules and appoint employees on sanctioned vacant posts directly."
5. To strengthen his arguments, learned counsel for applicants draws reference to the following case laws:-
(i) Secretary State of Karnataka & Ors. Vs. Uma Devi, 2006 (4) SCC 1. Para 53 thereof reads as under:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappall R.N. Nanjundappa2 and B.N. Nagarajan and referred to in para 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 the courts or 10 Item No.35/ C-4 OA No. 1025/2018 of tribunals. The question of regularisation 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 abovereferred 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 regularise 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 the 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 regularisation, if any already made. but not sub judice. need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
(ii) State of Karnaata and Others Vs. Kesari and Others, 2010 (9) SCC 247. Para 11 thereof reads as under:-
"11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the 11 Item No.35/ C-4 OA No. 1025/2018 direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)'] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure."
(iii) Nihal Singh and Others Vs. State of Punjab and Others, 2013 (14) SCC 65. Para 24 & 37 thereof read as under:-
"24. In our opinion, the initial appointment of the appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us.
37. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution Umadevi (3)5 judgment cannot become a licence for exploitation by the State and its instrumentalitics."
(iv) Yashwant Arjun More and Others Vs. State of Maharashtra and Others, 2014 (13)SCC 264. Para 11 thereof read as under:-
"11. We have heard the learned counsel for the parties and carefully perused the record. It is not 12 Item No.35/ C-4 OA No. 1025/2018 in dispute that as on 10-3-2005 all the appellants had completed more than 10 years' engagement. It is also not in dispute that due to non- constitution of the Staff Selection Board and non- holding of examination, the appellants could not apply for regular selection. As on date, the appellants have completed 19 to 24 years' service. Therefore, the ratio of the judgment in State of Karnataka v. Umadevi (3) cannot be invoked for denying them the benefit of policy contained in GR dated 10-3-2005."
(v) State of Jharkhand and Others Vs. Kamal Prasad and Others, 2014 (7) SCC 223. Paras 12 to 14, 41, 42 thereof read as under:-
"12. In the letters patent appeals, the Division Bench of the High Court on 13-9-2016 passed an interim order directing the appellants to maintain status quo and the respondent employees were allowed to work i.. the posts. The Division Bench accepted the factual and legal submissions urged on behalf of the employees that they were appointed as back as in the year 1981 in the posts of Junior Engineers which were not illegal or even irregular and they are qualified persons and eligible to hold the posts. They rendered their services satisfactorily and therefore, the State Government of Bihar has appointed them in the posts of Assistant Engineers by the Order of the Government dated 27-6-1987 and continued them in their services as such till the orders of termination were passed against them on 24-8- 2011, that too during the pendency of the letters patent appeals before the Division Bench of the High Court.
13. It is observed by the Division Bench that the respondent employees have been in service independent of any interim order passed by the Court. The State Government was in need of Junior Engineers, therefore, the State Government 13 Item No.35/ C-4 OA No. 1025/2018 of Bihar allowed the services of the respondent employees in the posts. Thereafter, the State Government of Bihar has decided to appoint them in the posts of Assistant Engineers and it was under the impression that their names will be recommended by BPSC After accepting the case of the respondent employees that since 1987 till 2011 when the orders of termination of service were passed, they continued in service and their salaries were paid with other service benefits including increments and they were duly transferred from the State of Bihar to the State of Jharkhand when it was formed and they were treated as regular appointees for which the Jharkhand State Government did not object to their continuance in their services. The order dated 22-3-20103 passed by the High Court in the writ petitions referred to supra seems to have been interpreted by the officers of the Jharkhand State Government as a direction to it to proceed with to terminate the services of the respondent employees.
14. The Division Bench of the High Court after referring to State of Karnataka v. Umadevi (3), has clearly held that if a person has served for 10 years or more, then it is the duty of the State Government to consider his case for regularisation in the post. The said conclusion came to be reached by relying on Articles 309, 14, 16 of the Constitution of India Relying upon Umadevi (3), the High Court has further referred to the judgment in State of Karnataka v M L Kesari which is considered by this Court and this Court has clearly held that Umadevi (3) casts a duty upon the State Government to take steps to regularise the services of those irregularly appointed appointees, who had served for more than 10 years without the benefit or protection of any interim order. Further in the said case, this Court has declared that it has been clearly ordered that one-time settlement/measure should be taken within six months ie from 10-4-2006, With reference to the aforesaid decision the learned Senior Counsel appearing on behalf of the 14 Item No.35/ C-4 OA No. 1025/2018 respondent employees placed reliance upon Article 142 of the Constitution in support of the submission that order of the Supreme Court be respected and implemented in its true meaning and spirit. Therefore, the Division Bench of the High Court accepted the same and came to the conclusion that the claims of the respondent employees for regularisation in their posts are fit cases and they became unfortunate only because of the creation of the State of Jharkhand over which the employees had no control and could not have prevented creation of the State of Jharkhand and because of that reason only, one State cannot take a different stand with respect to the employees appointed by the same process. The State Government cannot throw the employees jobless after 30 years of their continuous service in public employment guaranteed under Article 16 of the Constitution, which would result in great injustice since their source of income will be taken away and thereby the employees and their families will suffer due to the arbitrary action of the State Government of Jharkhand which deprived a person of life and liberty guaranteed under Articles 19 and 21 of the Constitution of India.
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41. The learned Senior Counsel on behalf of the appellants have failed to show as to how the interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in Amrit Lal Berry16, without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned Senior Counsel has failed to prove that the respondents have failed to render continuous 15 Item No.35/ C-4 OA No. 1025/2018 services to the appellants at least for ten years without the intervention of the orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law In view of the categorical finding of fact on the relevant contentious issue that the respondent employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Umadevi (3) case? at para 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent employees are entitled for the relief, the same cannot be interfered with by this Court.
42. In fact, the Division Bench of the High Court by regularising the respondent employees vide its impugned order! has upheld the constitutional Principle laid down by this Court in Olga Tellis."
(vi) Amarendra Kumar Mohapatra and Others Vs. State of Orissa and Others, 2014(4) SCC 583. Paras 35 & 50 thereof read as under:-
"35. A Constitution Bench of this Court in State of Karnataka v. Umadevi (3)16 ruled that regularisation of illegal or irregularly appointed persons could never be an alternative mode of recruitment to public service such recruitments were in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularisations that had already taken place, regardless of whether such regularisations related to illegal or irregular appointments. The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement of that decision.
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50. In the circumstances and taking a holistic view of the matter, it cannot be said that the appointment of Stipendiary Engineers on ad hoc basis and their subsequent regularisation care as a side wind or was inspired by any political or other consideration. The Government, it appears, was from the very beginning, keen to utilise the services of unemployed graduate Engineers selected on their merit by the Selection Committee and, therefore, remained steadfast in its efforts for achieving that purpose and in the process going even to the extent of getting them regularised by a legislative measure Suffice it to say that the question whether regularisation was justified cannot be viewed in isolation or divorced from the context in which the same arises."
(vii) Narendra Kumar Tiwari and Others Vs. State of Jharkhand and Others, 2018 (8) SCC 238. Paras 7 to 10 thereof read as under:-
"7. The purpose and intent of the decision in Umadevi (3)2 was therefore f twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3)2 is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly g appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3)2 and Kesari sought to avoid.17
Item No.35/ C-4 OA No. 1025/2018
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3)2, is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut- off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the b point of view of the interest of the State, financial or otherwise the interest of the employees is also required to be kept in mind What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc
11. The impugned judgment and order! passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants. The appeals are accordingly disposed of.
12. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular 18 Item No.35/ C-4 OA No. 1025/2018 appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments."
6. Per contra opposing the grant of reliefs, learned counsel for the respondents relied upon averments made in the counter affidavit. Particularly he draws attention to paras 1, 2, 3, 4, and 7 of the counter reply which are as follow:-
"1. That the present O.A. is a gross misuse of the process of law, hence the same is liable to be rejected on this ground alone.
2. That the answering respondents as per the contractual policy of 2012, engaged temporary employees i.e. contractual employees including young talent, retired persons and advisor/consultants, by way of contract, as on need basis for various categories. That the said contract ends at the end of the term of the contract if the need is not there or is extended depending upon need or exigency of the work. It is further pertinent to mention that the respondents have adopted a two tier system of evaluation/assessment, to assess/evaluate the performance of the contractual employees. The contracts are extended on need basis. subject to excelling in their performance. There is no night for an extension in the said contractual engagements.
The apex court has also opined in the case of Yogesh Mahajan va Prof. R. C. Deka, Director, All India Institute of Medical Sciences', that it is settled law that no contract employee has right to have his or her contract renewed from time to time. The court states as under-19
Item No.35/ C-4 OA No. 1025/2018 7 we are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this court In Uma Devi. There is nothing on record to indicate that the appointment of the petitioners on a contractual basis or on an Ad- hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioners for regularization of his services... .
3. That the said contract while being entered upon by contractual employees so engaged were categorically put to notice (amongst such other terms and conditions) that the engagement is purely on temporary basis and will end after expiry of one year or at a time extendable on yearly basis. That the said contractual employees were put to notice that they would not claim regular engagement/appointment. That the said contract itself amounts to undertaking by the contractual employees. In fact, it is pertinent to state, that each of these applicants have entered into agreements with the answering respondents whereby they categorically agreed and have undertaken, that they would have no claim or right whatsoever, for extension of the contract or for regular appointment, or to any seniority in Prasar Bharati under any circumstances. It is this agreement on which the applicants have appended their signatures and the same amounts to binding them, and would operate as estoppels, against them from claiming the present relief in the present O.A. It is relevant to point out that the very basis of accepting such an employment, the applicants are well aware of the nature of employment and the consequence flowing from it. A copy of the agreement is annexed hereto as Annexure_ Therefore the OA filed by the applicants is not maintainable in view of judgment passed by Hon'ble Apex Court in case of High Court of Punjab & Haryana vs 20 Item No.35/ C-4 OA No. 1025/2018 Jagdev Singh and is liable to be dismissed on this ground.
4. That the present OA filed by the applicants is frivoulous, false misconceived, having no merits and hence is liable to be dismissed. That it is clear that a contractual employee does not acquire any right either to continue in service beyond the term of contractual appointment or for regularization and the said fact has been reiterated time and again by Hon'ble Courts including the Hon'ble apex court.
7. The applicants while accepting their contractual engagements were fully knowing the nature of it and the consequences flowing from it. In fact while accepting the contractual appointments, the applicants are well aware of the fact that the said appointments are not appointments to the real post in actual terms. The very fact that the applicants may have been working for a particular period in contractual engagements, does not give rise to their claims of subverting the regular recruitment process, as subscribed under the rules and regulations. The engagements on contractual basis, have not been based on proper selection, as recognized by the relevant rules, or procedure. There is no mandate on the respondents as per law/rules to regularize the applicants, merely that they have been working on these posts for the period as stated by them. The process of regularization requires proper selection, by following rules and regulations, and by a proper method of recruitment, as per the Recruitment Rules of the particular posts."
7. Learned counsel for respondents further contends that as on date there is no policy of regularization in place.
She further draws attention to Policy for contractual 21 Item No.35/ C-4 OA No. 1025/2018 engagements No. A-10/159/09-PPC dated 27.09.2012.
Relevant para of which reads as under:-
"Such human resource was not engaged against any sanctioned post as posts were not sanctioned in keeping with the quantum of the work load of a 24X7 news channel. Also while approving the proposal for commencing a 24X7 DD News Channel, the Union Cabinet decided that the increased quantum of work would be managed by engaging personnel on contract basis as creation of posts was not found feasible. Human resource was accordingly engaged to meet the day to day functioning of the DD News channel which needs to be continued further Therefore, those currently engaged may be retained based on a performance appraisal, an exercise to be done annually thereafter. Rest may be engaged from the open market afresh annually. The maximum remuneration in case of any category shall not exceed Rs. 50,000 including everything"
8. Learned counsel for respondents in his support draws reference to the judgment passed by Hon‟ble Apex Court in State of Karnataka Vs. Uma Devi, wherein it has categorically held:-
"The concept of equal pay for equal work is different from the concept of conferring permanency on those who have been appointed on ad-hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are no) rested on the concept of equality enshrined 22 Item No.35/ C-4 OA No. 1025/2018 in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the Court could direct that appointments made without following the due procedure established by law, be deemed permanent, or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as in necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Thus when a person enters, a temporary employment or gets engagement as a contractual or casual worker, and the engagement is not based on a proper selection as recognized by the relevant rules, or procedure, he is very well aware of the consequences of the appointment being temporary, casual or contractual in nature. In fact needless to state that there is no fundamental right in those who have been employed on daily wages, or on contractual basis, to claim that they have a right to be absorbed in service."
9. Learned counsel for respondents further averred that the contractual employees cannot claim regularization in absence of any scheme or any process which has categorically been stated by Hon'ble Apex Court in State of Punjab Vs Jagjit Singh. It is specifically averred by the Hon'ble Apex Court that „Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or 23 Item No.35/ C-4 OA No. 1025/2018 regularize persons appointed to such posts without following the regular recruitment process‟.
10. Learned counsel for applicants in rejoinder contends that in the contractual policy 2012 in fact is a policy for recruitment. He contends that only level change and the existing employees have been put forth to the channel of contractual employees. He draws a reference to Annexure A-15, particularly clause 4(i) of the contractual policy, which reads as under:-
"4(i) Contractual Engagements against Regular Sanctioned Posts:
For making contractual engagements in this category, a regular sanctioned post must exist and this contractual engagement shall continue till the post is filled up on regular basis. The incumbent should fulfill the eligibility conditions of the post, as indicated in the relevant Recruitment Regulations."
11. Learned counsel for applicants further submits that there was a proper selection and there being no such rules and regulation. However, a proper selection was followed in terms of said policy. He also illustrates the action of the respondents, as well as the intention of the Respondents to show that the contractual employees were in fact to be engaged on regular basis, drawing a reference to a draft offer letter at page 147 of the paper book. He further says 24 Item No.35/ C-4 OA No. 1025/2018 that the intention of the respondents is quite clear regarding applicability of the service rules governing the service condition of the applicants, which is clearly reflected in clause 7 of the offer of appointment, which reads as under;
"7. Applicability of Rules In all service matters such as Conduct, discipline etc; you will be governed by the rules and regulations as applicable in Prasar Bharati."
12. Learned counsel for the respondents vehemently opposes the contention of the applicants‟ counsel and draws a reference to an agreement between Prasar Bharti and one of the applicant at page 1424 of the paper book, whereby stipulating conditions read as under:-
"WHEREAS the Second Party has expressed his desire to provide the nature of services as stated above to the First Party under this Agreement. The Second Party has also declared in the prescribed proforma that he possesses the requisite qualification and professional capabilities to perform the above functions and such other functions as may be assigned to him under this agreement by the First Party from time to time.
WHEREAS on the aforesaid declaration made by the Second Party in the prescribed proforma to the First Party, the parties entered into an agreement to provide the agreed services on the terms and conditions appearing herein after for a fixed 25 Item No.35/ C-4 OA No. 1025/2018 period of one year with effect from 15.01 2016 to 14.01.2017 NOW, THEREFORE, THIS CONTRACT WITNESSETH AND IT IS AGREED BY AND BETWEEN THE PARTIES AS UNDER Nature and Description of Engagement for services
1. Tenure: The contract will be valid for a period of one year and will take effect from 15.01.2016. The contract would automatically come to an end on the expiry of one year period from 15.01.2016, unless specifically extended.
2. Remuneration: Rs.34,125(thirty four thousand one hundred twenty five only) l-per month consolidated Second Party will not be entitled to any other allowance in the event of any over payment due to any error the Second Party agrees for recovery of such over payment as determined by the First Party
3. Nature of duties: Second Party will be required to work as Broadcast Executive Gr-2 and any other assignment given from time to time. The nature of duties shall be as specified by respective ADG or any other officer authorised by him/her to supervise/monitor the work of the Second Party.
4. Working Hours: Full time engagees would be required to put in atleast 8% hours daily including half an hour lunch time. In case of engages on shift duty, the working hours shall be as decided by the Head of Office/Controlling Officer. The Second Party may be required to work for extra hours on certain occasions in case of exigencies, if required For work on closed holidays, Second Party would be granted a compensatory off day Supervision and Control: The Second Party will be required to report to ADG (DD Urdu), or any other officer so authorised by him, who will be the controlling officer with regard to performance of duties.26
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5. Entitlement to Leave: Total leave admissible of all kinds, shall not exceed 16 days in a year or pro-rata depending on the duration of the Contractual engagement.
6. Applicability of Rules: In all service matters such as conduct, discipline etc, the Second Party will be governed by the rules and regulations as applicable for contractual professionals engaged in Prasar Bharati
7. Termination of Contract: Any misconduct negligence /dereliction, or unsatisfactory duty on part of the second party during the contract period shall lead to the termination of the contract. The contract could also be terminated by either side by giving one month's notice or pay in lieu thereof without assigning any reason.
8. The Second Party will not have any claim or right whatsoever for extension of the contract or for regular appointment or to any seniority in Prasar Bharati under any circumstances.
9. Arbitration clause: In case of any dispute or difference arising between the parties, as to construction, meaning, effect, interpretation or application of this agreement or as to their rights, duties or liabilities hereafter, or as to any act, matter or thing arising out of, or consequent to, in connection with this agreement, the parties shall endeavour to resolve the same amicably through negotiations. In the event that the dispute or difference is not resolved by means of negotiations within a period of 30 days or such different period as may be agreed between the parties, such dispute or difference shall then be referred to and settled by an arbitrator appointed by CEO Prasar Bharati. The arbitrator can either be an officer of Prasar Bharati or any other independent individual. The arbitration proceedings shall be held in Delhi in accordance with the provision or the Arbitration and conciliation Act 1996. The decision of the Arbitrator will be final and binding on both the parties.27
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10. The Second Party will not work for any other organization in any capacity whatsoever"
13. In rejoinder to the arguments made by learned counsel for the respondents, learned counsel for the applicants draws attention to a reference of Committee of Empowerment of Women (2009-2010) (Fifteenth Lok Sabha) „Working Conditions of Women in Prasar Bharati‟.
Relevant paras of which read as under:
"8. The Committee had noted that since inception of Prasar Bharali in 1997, the status of its employees was in a state of Limbo. When Prasar Bharati was formed. the services of those employees who were working with AIR and Doordarshan were placed on deemed deputation to Prasar Bharati. Thereafter for over a decade, their status remained ambiguous. Recently, the Government has taken a final decision to grant them the status of Government employees on deemed deputation to the Corporation till the time of their retirement. Only those who were recruited on or after 6th October, 2007 would be Prasar Bharati employees. Though this decision seemed to have put an end to the long stalemate that had crippled the organization, the Committee could not absolve the Government of the delay in taking a final decision in the matter. The Committee also found that the kind of autonomy which ought to have been there was not there in Prasar Bharati. However, the Committee have hoped that the Government and Prasar Bharati would move ahead from this point and work in harmony to strengthen the institution. They had also recommended that the recruitment rules and service conditions of the own employees of Prasar Bharati should be finalized and the confusions, if any, pertaining to the Government employees on deemed 28 Item No.35/ C-4 OA No. 1025/2018 deputation to the Corporation should be sorted out within three months under intimation to the Committee, XXXX
13. The Committee had observed that about 44.8% of the sanctioned strength in Group 'A' and about 40% in Group 'B' in Doordarshan and 58.8% of Group 'A' posts in AIR were lying vacant, not only denying chance to a large number of creative young women and men to be a part of the public broadcasting service in the country but also crippling the Organisation. The Committee had also noted with dismay that no recruitment had ever been made in IB(P)S since its inception in 1990. Recruitment to the post of Programme Executives was last made in 1991 and so was the case with various other categories in AIR and Doordarshan. The Committee, therefore had desired that Prasar Bharati should start recruitment process at the earliest. However, it is seen from the reply that the process could not be initiated because of the absence of proper service/recruitment rules. The Committee are extremely unhappy with the callous approach of Prasar Bharati. After having a recruitment holiday of about 20 years, the Organization cannot afford to sink into further lethargy in finalising the recruitment rules. The Committee view the delay seriously and reiterate that the recruitment process should not be delayed any further. All the pre- requisites to initiate the process should be completed on a war footing.
XXX
17. The Committee had found that to cope up with the man power shortage, both All India Radio and Doordarshan had been resorting to the services of casual employees in large numbers. About 680 casual assignees are being engaged in Doordarshan and 2200 in AIR. A large number of them are women. The Committee were distressed to note that many of 29 Item No.35/ C-4 OA No. 1025/2018 them had been working in AIR & Doordarshan as Production assistants, anchors, news readers, news translators, news monitors, make-up artists etc. for over 10 to 15 years and had made many requests for regularization but to no avail. During the evidence, it had been submitted that such requests could not be considered in the absence of any regularization scheme. The Committee, however, were of the view that the organization was guilty of unfair labour practices as these employees were kept as casual workers against jobs which were of permanent nature. The Committee, therefore, had recommended that a policy on regularization of casual employees in Prasar Bharati, especially women employees be finalized and put into operation immediately. Since a large number of women were engaged as contractual and casual employees in various grades, especially in Group 'D', their regularization should be taken up on priority."
14. Learned counsel for applicants also draws attention to another Standing Committee on Labour (2015-2016) Sixteenth Lok Sabha, Ministry of Information and Broadcasting. Relevant paras of which read as under:-.
"6. The Committee appreciate the measures taken by the Ministry like not laying off casual workers at the local level without the permission of Prasar Bharati, framing of Recruitment Rules (RRs) for 11 categories of posts, etc. However, the Committee are deeply concerned over the conspicuous silence of the Ministry on the assurance given to the effect that the casual artists would be engaged on long-term contract till they attain the age of superannuation. It is no consolation that a provision has been made in the RRS to give age relaxation to the casual artists in direct recruitment. The Committee find it very 30 Item No.35/ C-4 OA No. 1025/2018 disconcerting that even after rendering decades of service, the casual artists who must be in their late forties/early fifties, are being compelled to appear in examinations, and that too competing with freshers. Expressing their displeasure over this insensitive approach on the part of the Ministry/Prasar Bharati, the Committee call for a firm commitment that the casual artists would be engaged on long-term contracts till they attain the age of superannuation and even the slightest of deviation in this regard should be allowed. B. Adoption of transparent procedure for regularizing the contract/ casual workers. 8 In their Action Taken Note, the Ministry of Information and Broadcasting have stated as follows "Prasar Bharati has informed that regularization of casual artists/casual workers have been done under two separate schemes in Doordarshan strictly as per provisions of the schemes. The details are as follows:
(i) Scheme for regularization of casual artists in Doordarshan under Doordarshan Scheme of 1992-94 Casual artists eligible for regularization under this scheme which was prepared under Court directions and was approved by the Hon'ble CAT had been done earlier A thorough check of all the pending cases has been undertaken Based on this scrutiny by two different Committees and with the approval of Prasar Bharati Board, orders for regularization of 233 casual artists who are found eligible for regularization under the scheme have since been issued.
(ii) DOPT scheme for regularization of labourer [grant of Temporary Status Workers (TSW) and regularization scheme 1993] 202 TSWs have been regularized based on the approval accorded by Prasar Bharat Board Case of 19 TSWS is sub-judice No further TSW is remaining for regularization.31
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9. The Committee are pleased to note that under the Doordarshan Scheme of 1992-94, orders for regularisation of 233 casual artists, who were found eligible for regularisation under the Scheme have been issued. They find it also equally heartening to observe that under the DOPT Scheme for regularisation of labourers, 202 Temporary Status Workers (TSWS) out of 221 such workers have been regularised. However, the case of 19 TSWS has been stated to be sub-
judice. While acknowledging the commendable efforts made by the Ministry/Prasar Bharati in regularising the casual artists/TSWS, the Committee would like to be apprised of the fate of the remaining 19 TSWS, as and when their case is decided. The Committee also desire the Ministry/Prasar Bharati to adopt a more compassionate approach towards the plight of these casual artists, especially the TSWs, so as to avoid litigations and Court cases in future.
15. The Prasar Bharati came into existance in the year 1997. The Committee find that Recruitment Rules (RRS) in respect of 122 categories of posts out of a total number of 198 posts were notified in 2001-02, but were kept in abeyance for nearly 10 years without taking a final call thereon. In 2010, the Group of Ministers (GOM) had directed the Prasar Bharati to frame and notify the new RRS. In 2012, after discussions/deliberations amongst the Ministry of Information and Broadcasting, DoPT and Department of Expenditure for two and half years, a decision had been taken to reduce the number of categories of posts to 125 Out of these 125 categories even after a lapse of three years, i.e. in 2015; the Prasar Bharati had only been able to notify RRS for 11 categories of posts while for 37 categories of posts the process of framing of the RR is yet to be initiated by the Prasar Bharati and RRS in respect of rest of the categories are still lying at different stages of finalisation. The Committee express their displeasure over the inordinate delay in framing the RRS for all categories of posts. The Committee, therefore, stress that RRS for the remaining 32 Item No.35/ C-4 OA No. 1025/2018 category of posts be finalised and put in place within a definite time-frame for the benefit of the aggrieved employees.
16. The Committee note that the process for constitution of the Prasar Bharati Recruitment and Services Board (PBRSB) was mooted in July, 2014. They further note that pursuant to the comments received from the PMO and the M/o Finance, the Prasar Bharati had revised the draft Cabinet Note and the Rules for the setting up of PBRB on 19.03.2015. According to the Ministry, the revised proposal of the Prasar Bharati carries substantial modifications in the draft Rules for PBRSB, prepared by the Ministry on the basis of the approved proposal of the Prasar Bharati Board. The Ministry have further submitted that since the new modifications suggested by the Prasar Bharati require fresh approvals from the PMO, DOE and DoPT, the Prasar Bharati has been requested to submit a concrete and definite proposal. The Committee are anguished to observe the state of affairs prevailing in the Ministry and Prasar Bharati in the matter of delaying the constitution of PBRSB. The Committee are of the considered opinion that it should not be at all an issue with the Ministry to seek fresh approvals from the PMO, DOE and DoPT on the revised proposal of the Prasar Bharati Board-who on their part should also expedite submitting the fresh proposal in the interest of the Organisation. The Committee, therefore, urge the Ministry and the Prasar Bharati to work in unison so that the PBRSB is constituted at an early date to enable the Prasar Bharati to frame their own recruitment rules and service conditions and the dependence on UPSC & SSC for recruitment in the Prasar Bharati is finally eliminated."
15. Learned counsel for applicants drawing the total strength of DD and AIR as on 31.03.2017 Annexure A-23 (page 259) and submits that subsequent to the initiative 33 Item No.35/ C-4 OA No. 1025/2018 and various reports cited above the RRs were notified and he relies upon clause 6 and 7 of the said notification which has been issued in a proper way through various notifications from time to time, however till date based on the aforesaid distinct no advertisement for any post has been done by the respondents.
16. The sum and substance of the arguments as averred in the counter affidavit is that no doubt that there was a policy for casual employees in the year 1992 and 1994 which is no longer in existence. The present applicants have been engaged as per the contractual policy 2012 and cannot lay equitable claim qua the scheme of 1992 and 1994 and till now their services were extended from time to time.
17. In the instant case, as it has been detailed by the learned counsel for the applicants in his written arguments that there were various phases of appointment of employees/artists in Prasar Bharati and AIR in different phases. At most of the time there were no regular post nor these appointments were made by any regular method of appointment by following advertisement and prescribing due procedure for selection. For the very reason, the 34 Item No.35/ C-4 OA No. 1025/2018 judgment of the Hon‟ble Apex Court in Uma Devi (supra) is not applicable in the instant case. Moreover the said judgment is for one time regularization of employees who have been appointed for continuously 10 years prior to 2006. In the instant case, the applicants have been appointed on contractual basis following the contractual policy of 2012. The subsequent judgments cited by learned counsel for the applicants is based on the judgment of Uma Devi (supra) and no where it has been held that contractual employees who have entered into an agreement for contractual employment with the government shall be regularized. The learned counsel for applicants has cited the recommendations of the report of the Committee of Empowerment of Women (2009-2010) titled "Working condition of women in Prasar Bharati" as well as the report of Standing Committee on Labour (2015-2016), Ministry of Information and Broadcasting, wherein there are mention of temporary/casual and contractual employees and the efforts are being made by the Ministry as well as Prasar Bharati to regularize them. None of these reports would support an irregular appointment or regularization of 35 Item No.35/ C-4 OA No. 1025/2018 contractual employees against the statutory provision particularly those of the contract Act.
18. Learned counsel for respondents have referred to the contractual agreement document which has already been reproduced in para 12 of this order, according to the said agreement entered by the applicants with the respondents that the Second Party will not have any claim or right whatsoever for extension of the contract or for regular appointment or to any seniority in Prasar Bharati under any circumstances. The fact that some of the applicants were appointed prior to the introduction of the contractual policy 2012 will not give an indefeasible right to the applicants to claim regularization.
19. In view of above, we find no merit in the present case, hence the same is dismissed. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/daya/