Central Administrative Tribunal - Delhi
Shri Vinay Kumar Jain vs Union Of India & Ors on 6 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 136/2010 MA 58/2010 NEW DELHI THIS THE 6th DAY OF MAY, 2011 HONBLE MR. JUSTICE P. SWAROOP REDDY, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Vinay Kumar Jain, S/o late Shri A.S. Jain, Supervisor, ESD, NBH, Room No. 417, Sansad Marg, New Delhi-1 R/o 37, Sansad Vihar, West Enclave Pitam Pura, Delhi-34. 2. Shri Vijay Kumar, S/o late Shri S.N. Fotedar, Supervisor, ESD, NBH, Room No. 417, Sansad Marg, New Delhi-1 R/o C-827, Sushant Lok-1, Gurgaon-122001. 3. Smt. Bodhisri Shastri, D/o Dr. S.B. Shastri, Supervisor, ESD, AIR, Room No. 416, NBH, Sansad Marg, New Delhi R/o A-403, M.S. Apartments, K.G. Marg, New Delhi. 4. Shri R.L. Malhotra, S/o Shri R.D. Malhotra, Ex. Supervisor, ESD, AIR, R/o A/A-242, Shalimar Bagh, New Delhi-88. Applicants. (Applicants in person) VERSUS Union of India & Ors Through: 1. Secretary, Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi. 2. Chief Executive Officer, Prasar Bharti, PTI Building, Parliament Street, Sansad Marg, New Delhi. 3. Director General of All India Radio Akashvani Bhawan Parliament Street Sansad Marg, New Delhi. 4. Programme Staff Association of AIR & DD Through Mr. Sanjay Srivastava (President), R/o R.N.406, Akashvani Bhavan, Parliament Street, New Delhi-110001. 5. Sh. F. Sheheryar, Director General, Doordarshan Directorate, Copernicus Marg, New Delhi. 6. Sh. H.K. Pani, Deputy Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi. 7. Ms. M. Dolkar, Deputy Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi. 8. Ms. Alka Pathak, Deputy Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi. Respondents. (By Advocates Shri D.S. Mahendru for Respondent No.1, Shri Vikrant Yadav for Respondent Nos. 2 and 3 and Dr. Ashwani Bhardwaj for Respondent Nos. 4 to 8) ORDER
Justice P. Swaroop Reddy, Member (J).
MA 58/2010For the reasons mentioned in the application, MA 58/2010 for joining the applicants together in one application is allowed.
O.A. 136/20102. The applicants have filed the O.A. claiming certain service benefits for which they have been fighting since long time. The case of the applicants in brief is as follows.
3. Under the Ministry of Information and Broadcasting, there are three wings i.e. Ministerial, Production and Central Information Service. A Scheme was circulated by the Government on 18.06.1982 seeking option from non-performing categories to be converted into Government servants on regularization as Group A by a duly constituted Screening Committee with involvement of the UPSC. The present applicants made applications for their absorption into regular civil cadre, Group `A of AIR and fixation of inter-se seniority. That was pending with the Ministry. Other regularized staff like Chief Producer, Deputy Chief Producer and Producer in the Indian/Foreign Language were duly inducted into the regular production cadre of AIR/Doordarshan.
4. An order dated 21.11.1989 by the Ministry of Information and Broadcasting was issued informing the applicants that Supervisors (Foreign Language) did not fit into Programme Management category and they cannot be given the benefit that was given to other cadres.
5. O.A. 2036/1990 filed by one of the present applicants was allowed on 17.01.1992 with an observation that the duties and responsibilities attached to the post of Supervisor (Foreign Language) are in no way inferior to those shouldered by the encadred Programme Officers of the equivalent rank that are included in the Indian Broadcasting (Programme) Service (IBPS), and a direction was issued to provide the applicants suitable avenues of promotion, keeping in view the opportunity of career progression, which has been allowed to the Staff Artists, converted as Government servants and included in IBPS.
6. The applicants filed several O.As, in some of them all of them were parties and in some others it was not so. One such case was O.A. 635/2002 and that was disposed of, on 28.09.2007, as the applicants informed that the reliefs prayed for by them were granted and the O.A. may be dismissed as withdrawn. The order that was passed by the Ministry of Information and Broadcasting (BA-P Section), on 11.09.2007, on passing of which the O.A.635/2002 was withdrawn, is as follows:
Subject: Encadrement of Supervisors (ESD) into regular Programme Cadre (Group A) of AIR and subsequently into IB (P) S. Reference Prasar Bhartis Note No. A-10/76/07-PPC dated 25.05.2007 on the above mentioned subject.
2. The proposal of Prasar Bharti for encadrement of the Supervisors (Foreign Language) in ESD of AIR, who have been declared Govt. servant in pursuance to the Govt. of Indias scheme circulated vide letter No. 45011/26/80-B (A) dated 3.5.1982, into regular Programme Cadre (Group A) of AIR and their subsequent induction into Indian Broadcasting (Programme) Service has been examined and the competent authority has approved the following:
The present four Supervisors viz. S/Shri Bodhisri Shastri, R.L. Malhotra, Vijay Kumar and V.K. Jain may be encadred into the regular Programme cadre (Group A) of AIR.
Their pay scale fixed as per rules.
Their inter-se seniority may be fixed in accordance with Min. of I&B office order No. 11/88-B(A) dated 9/9/1988 and office order No. 22/88-B(A) dated 6/12/1988 i.e. from the date they became regular Government Servants.
Accordingly, they may be inducted into IB (P) S as `Departmental candidates-initial constituent. Their options as per rule 6(2) of IB (P) S Rules 1990 may be obtained.
All consequential benefits including promotion and arrears may be considered as per rules.
3. Prasar Bharti is requested to take the necessary early follow up action.
7. O.A. 2361/2007 was filed by Programme Staff Association of AIR & Doordarshan through Mr. Sanjay Kumar, General Secretary and some others questioning the validity of the above order dated 11.09.2007 under which the applicants were given certain benefits. Another O.A. 871/2008 was filed for implementation of the above order passed by the Ministry dated 11.09.2007 and both the O.As were disposed of, on 21.10.2008 by a common order, with a direction to the respondents i.e. Government of India, Ministry of Information and Broadcasting, to meticulously examine the rival claims of Supervisors (Foreign Language) as well as regular Production Cadre and after balancing their rights and interests, a well conscious decision be taken within a period of three months from the date of receipt of copy of the order. In this order, there is no specific finding that the proceedings dated 11.09.2007 referred above are set aside. But the matter did not end there.
8. One of the present applicants (Shri R.L. Malhotra) filed O.A. 2032/2009 seeking implementation of the above order dated 11.09.2007. It would be pertinent to mention here that after the orders were passed in O.A.2361/2007 and O.A.871/2008, order dated 08/12.10.2009 was passed by the Government stating to be in pursuance of the directions of the Tribunal in the above two O.As. O.A. 2032/2009 was closed by the Tribunal vide order dated 11.12.2009 and in the end of this order, it was observed that the order dated 11.09.2007 has been superseded by the order dated 08.10.2009, and that too, on the directions of the Tribunal and that, that was no longer in force.
9. In the present O.A., the applicants are seeking the following reliefs:
8.1 That this Honble Tribunal may be graciously pleased to allow this application and quash the impugned order which itself is in violation of the directions given by this Honble Trbunal vide O.A. No.2361/2007 and 871/2008.
8.2 That this Honble Tribunal may be further pleased to direct the respondents to implement the order of the respondents dated 11.09.2007 which was passed after detailed examination of the case and was to rectify the error on account of which the benefit was denied earlier.
8.3 That without prejudice to the aforesaid relief, the respondents may be directed to consider creation of at last supernumerary posts absorbing the applicants in IB (P) S while giving them attendant and consequential benefits.
8.4 That this Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper in view of the facts and circumstances of the case.
8.5 That the cost of these proceedings may kindly be granted in favour of Applicant and against the Respondents.
10. Several contentions are raised by both sides. The applicants appeared in person. Their main grievance is that they are not being treated on par with other members of the service in AIR. They have been badly discriminated that after long years of fighting through various representations to the Government and O.As before the Tribunal, etc., order dated 11.09.2007 was passed but that was again nullified by order dated 08.10.2009. It is also their contention that the order dated 08.10.2009 is not in consonance with the directions issued by the Tribunal in O.A. 2361/2007 and O.A. 871/2008 where this Tribunal directed the concerned Ministry to meticulously examine the rival claims of Supervisors (Foreign Language) as well as regular Production Cadre and after balancing their rights and interests a well conscious decision be taken within a period of three months from the date of receipt of a copy of this order. Now, the question that arises for consideration is whether the order dated 08.10.2009 is in accordance with the directions of the Tribunal in O.A. 2361/2007 and O.A.871/2008.
11. The order dated 11.09.2007 is already extracted above and the order dated 8.10.2009, which was passed in pursuance of the directions in O.A.2361/2007 and O.A. 871/2008, reads as follows:
The Honble CAT, PB New Delhi while disposing of the OA No.871/2008 and OA No.2361/2008 by Order dated 21/10/08 had directed that the Respondents including Respondent No.1, i.e. Union of India, represented by Secretary, M/o Information & Broadcasting to meticulously examine the rival claims of Supervisors (FL) as well as regular production cadre and take a well conscious decision be taken after balancing their rights and interests to address the grievances of both the parties.
In pursuance of the directions of Honble CAT the following scheme (which is proposed to be implemented as a purely one time measure) has been formulated by the M/o I&B in consultation with DOPT and M/o Law for career progression of Supervisors (FL) which adequately balances the rights and interests of both the parties.
Supervisor (FL) (Selection Grade): Out of the 15 Foreign Language Units, 4 posts will be in the Pay Band of Rs.15600-39100 + GP : 7600 in PB-3 (pre revised pay scale of Rs.12000-375-16500). Accordingly, four of the units will be headed by Supervisors (Selection Grade). The appointment to the post of Supervisor (FL) (SG) will be by the method of promotion on selection basis. For the purpose of promotion, a common eligibility list of the Supervisors (Foreign Language) in the Pay Band of Rs.15600-39100 + GP : 6600 in PB-3 (pre-revised pay scale of Rs.10000-325-15200) having five years regular service in the grade will be prepared in accordance with the date of appointment to the post of Supervisors (Foreign Language) in the Pay Band of Rs.15600-39100 + GP : 6600 in PB-3 (pre-revised pay scale of Rs.10000-325-15200) on regular basis. The officer approved for appointment to the selection grade posts in the Pay Band of Rs.15600-39100 + GP : 7600 in PB-3 (pre-revised pay scale of Rs.12000-375-16500) on promotion will continue to discharge the same duties as performed earlier as head of the concerned foreign language unit. However, the post of Supervisor (Foreign Language) in the concerned unit will stand upgraded to the Pay Band of Rs.15600-39100 + GP : 7600 in PB-3 (pre-revised pay scale of Rs.12000-375-16500). This post will revert back to the post in the Pay Band of Rs.15600-39100 + GP: 6600 in PB-3 (pre-revised pay scale of Rs.10000-325-15200) after the incumbent in the Pay Band of Rs.15600-39100 + GP : 7600 in PB-3 (pre-revised pay scale of Rs.12000-375-16500) vacates the posts by retirement on superannuation, or retirement of any kind or resignation etc. Director (FL): There will be a post of Director (FL) in the Pay Band of Rs.37400-67000 + GP : 8700 in PB-4 (pre-revised pay scale of Rs.14300-400-18300) to supervise the jobs performed by heads of foreign language units. Appointment to the post of Director (FL) will be by the method of promotion on selection basis. For purpose of promotion a common eligibility list of the Supervisors (FL)(SG) in the Pay Band of Rs.15600-39100 + GP : 7600 in PB-3 (pre-revised pay scale of Rs.12000-375-16500) having five years regular service in the grade failing which 10 years regular service in the grade of Supervisor (FL) and Supervisor (FL) (Selection Grade) put together with a minimum service of 3 years in the Supervisor (FL) (Selection Grade) will be prepared in accordance with the date of appointment to the post of Supervisor (FL) (SG) in the Pay Band of Rs.15600-39100 + GP: 7600 in PB-3 (pre-revised pay scale of Rs.12000-375-16500) on regular basis. The officer approved for appointment to the post of Director (FL) in the Pay Band of Rs.37400-67000 + GP : 8700 in PB-4 (pre-revised pay scale of Rs.14300-400-18300) on promotion will also continue to discharge the same duties as performed earlier as head of the concerned foreign language unit. However, the post of Supervisor (FL) (SG) in the concerned unit will stand upgraded to the Pay Band of Rs.37400-67000 + GP : 8600 in PB-4 (pre-revised pay scale of Rs.14300-400-18300). This post will revert back to the post in the Pay Band of Rs.15600-39100 + GP : 6600 in PB-3 (pre-revised pay scale of Rs.10000-325-15200) after the incumbent in the Pay Band of Rs.37400-67000 + GP : 8700 in PB-4 (pre-revised pay scale of Rs.14300-400-18300) vacates the posts by retirement on superannuation, on retirement of any kind or resignation etc. This issues with the approval of competent authority.
12. Thus, as per the order dated 11.09.2007, (a) the applicants were given the benefit of being encadred into regular programme cadre (Group A) of AIR; (b) Their pay scale was to be fixed as per rules; (c) Their inter-se seniority was to be fixed in accordance with the Ministry of I&B Office Order No.11/88-B(A) dated 9/9/1988 and Office Order No.22/88-B(A) dated 6/12/1988 i.e. from the date they became regular Government Servants; (d) they were to be inducted into IB (P) S as `Departmental candidates initial constituent. Their options as per rule 6(2) of IB (P) S Rules 1990 were to be obtained; and (d) they have to get all consequential benefits, including promotion and arrears as per rules.
13. O.A. 871/2008, which was disposed of by the Tribunal by order dated 21.10.2008 along with O.A. 2361/2007, was filed for implementation of the order dated 11.09.2007 and this O.A. was not dismissed but was disposed of with a direction to the respondents to meticulously examine the claims and pass orders, not affecting any other set of employees. Thus, the request for enforcement of the above order was not exactly refused nor that was set aside. O.A. 2032/2009 filed by the present fourth applicant, which was also filed for implementation of the order dated 11.09.2007, was also not dismissed but it was closed. The exact words used were We are of the considered view that once, the order dated 11.9.2007 has been superseded by the order dated 8.10.2009, and that too, on the directions of this Tribunal, this Application in its present form and with present relief needs to be closed. Thus, here also, the prayer for implementation of the order dated 11.09.2007 was not exactly refused though here a word has been used that the order dated 11.9.2007 has been superseded by the order dated 8.10.2009. This has to be taken to be only passing remark as in the order dated 08.10.2009, there is no reference about the order dated 11.09.2007 being superseded and at the cost of repetition, we have to state that in the order dated 21.10.2008 in O.A. 2361/2007 and O.A.871/2008 also there is no mention of striking down of the order dated 11.09.2007. Thus, when the order of the Tribunal in O.A. 2361/2007 and O.A. 871/2008 refers to thoroughly examine the issue and take appropriate decision without affecting the rights of any other set of employees, it cannot be taken that the order dated 11.09.2007 was overruled or was held to be not sustainable. The intention of the Tribunal was to take the overall situation into consideration and pass appropriate orders.
14. The order of the Tribunal in OA 1361/2007 and OA 871/2008, as already referred, was to examine the rival claims of Supervisors (Foreign Language) as well as regular production cadre and after balancing their rights and interests, a well conscious decision was to be taken. While arriving the above conclusion, the Tribunal observed that Though promotional avenues is a must for career progression as a service condition of a government employee, yet when such promotional avenues and creation thereof comes in conflict with any of the service conditions of another set of employees, there has to be a clash of interest between the two cadres. Government being custodian of the rights of its employees uniformity and equality in action with fairness is expected, which is in consonance with the rule of law. Whereas in the order dated 08.10.2009 which has been passed in pursuance of the directions of the Tribunal in OA 2361/2007 and OA 871/2008, there is no mentioning about the rival claims of Supervisors (Foreign Language) as well as regular production cadre being examined meticulously, as directed by the Tribunal. There is no reference about balancing the rights and interests of both sides. It is not mentioned in the above order as to how Supervisors (Foreign Language) cannot be encadred into regular programme cadre, why they cannot be inducted into IB (P) S as departmental candidates for which mainly the applicants have been fighting.
Closing this O.A. by giving directions to the respondents to pass fresh further orders by examining the case properly in the light of the judgment of the Tribunal in OA 2361/2007 and OA 871/2008 may not be of any substantial use, as the implementing authorities might be confused in view of nature of the case of these four applicants in which several orders were passed in several O.As from time to time. It may not put an end to the litigation of these four applicants. Besides, some of the applicants have already superannuated and others are quite close to it. Hence, prolonging the matter further would not be in the interest of equity and justice. On the other hand, passing of an order giving positive directions may give a full stop to this long pending litigation.
15. In the above circumstances, we are of the considered view that the applicants are entitled for reasonable relief in view of the fact that they have been regularized decades ago and the functions they would be discharging are not of any inferior quality than those being discharged by other similarly placed employees who got the benefit of encadrement. The only balancing factor that needs to be considered simultaneously is to avoid any conflict of interest with any of the service conditions of other set of employees. This was also expressly the direction of the Tribunal in its common order dated 21.10.2008 disposing the O.A. 2361/2007 and O.A.871/2008.
16. Resultantly, this O.A. is disposed with the following directions:
(i) The applicants shall be encadred into the regular programme cadre. They would be inducted into IB(P) S as `Departmental candidates initial constituent.
(ii) The applicants will be entitled for all the consequential benefits, as per rules, including seniority, promotion, arrears of pay and re-fixation of retrial dues wherever applicable. However, in case of arrears, there would not be any entitlement for interest thereon, including that on the retrial dues.
To the extent of applicants, wherever required, supernumerary posts shall be created so as not to affect the other set of employees.
(iv) In the matter of promotions, the same would be accorded to the applicants on notional basis only whether past or future.
17. We are conscious that these directions, to a great extent, are in accordance with the orders passed by the respondents, on 11.09.2007. But those orders were not found to be not in order by any authority and the direction of the Tribunal in its common order in O.A. 1361/2007 and O.A. 871/2008 was to consider the entire matter again and pass orders. Thus, at one stage, the official respondents found that the applicants were entitled to these benefits after examining the matter with regard to their date of joining, regularization, nature of duties, etc. The order of the Tribunal in O.A.1361/2007 and O.A. 871/2008 among other things wanted care to be taken with regard to the other set of employees to see that they are not affected.
18. The above directions shall be complied by the respondents within a period of three months from the date of receipt of a copy of this order. However, there shall be no order as to costs.
(Dr. Veena Chhotray) (P. Swaroop Reddy)
Member (A) Member (J)
`SRD