Central Administrative Tribunal - Delhi
Y.K. Mehta And Ors. vs Union Of India (Uoi) And Ors. on 17 July, 1998
JUDGMENT
S.R. Adige, Vice-Chairman
1. As all these 3 OAs involve common questions of law and fact they are being disposed of by this common order.
OA-212/94
2. In this O.A. applicant Shri Y.K. Mehta, Video Executive, Doordarshan, New Delhi impugns respondents order dated 14,6.93 Annexure-C(colly.) and dated 17.8.93 Ann-C (Colly.) whereby R-6 to 38 have been promoted, and prays for promotion w.e.f. 26.6.78 with consequential benefits. OA-53/97
3. In this O.A. applicants who belong to All India Graphic Artists Association, Doordarshan seek a direction to declare the presence/posts of Programme Executives and Transmission Executives as illegal w.e.f. the date of implementation of the new staffing pattern and seek promotion as per the Inter-Departmental Review and Rationalisation Committee Report over the promotions of R-4 to 20 with retrospective effect with consequential benefits.
OA-125/97
4. In this O.A, applicants Shri R.K. Tayal & Others also seek a direction to declare the presence/posts of Programme Executives and Transmission Executives in Doordarshan are illegal w.e.f. the date of implementation of the new staffing pattern and seek promotion as per the Inter-Departmental Review and Rationalisation Committee Report over the promotions of R-5 to 21 along with consequential benefits and also seek reconstitution of Doordarshan Service so far as the Programme cadres are concerned, in the manner suggested by SIU and pray for quashing of Indian Broadcasting (Programme) Service Rules, 1990.
5. Applicant Shri Y.K. Mehta was initially engaged on contract basis as a Staff Artist in the category of Cameraman Gr. II on 21.11.70 and was subsequently promoted as Cameraman Gr. I on 26.6.78. Aggrieved by their non-inclusion in the Third Pay Commission's recommendations for revised pay scales on account of their not being Govt. servants but only contract employees, applicant Sh Y.K. Mehta and other staff artists of Doordarshan filed CWP No. 1239/79 and other connected cases in the Hon' ble Supreme Court who by their judgment dated 26.6.98 (reported in 1988 (2) SCALE 64) held that staff artists of Doordarshan including the petitioners were Govt. servants, and were entitled to the same scales of pay as their counterparts in the Films Division. On the question as to the date from which petitioners would be entitled to the pay scales prescribed for their counterparts in the Films Div., it was held that the ends of justice would be met sufficiently if such pay scales were given to the petitioners w.e.f. the first day of the year in which each writ petition was filed in the Hon'ble Supreme Court except that in case of CWP No. 1756/86 such pay scales would be given to the petitioners w.e.f. 1.12.83. The judgment concluded thus:
"In the circumstances, all these writ petitions are allowed. The Sound Recordists, who are the petitioners in WP(C) No. 974/78 shall be given the pay scale of the Recordist/Sound Recordist in the Film Div. i.e. Rs. 550-900 w.e.f. 1.1.78. The Cameraman Gr. II, who are the petitioners in WP(C) No. 1239/79, shall be given the pay scale of the Cameraman of the Film Div. i.e. Rs. 650-960 w.e.f. 1.8.79. The Lighting Assistants/Lightmen, who are the petitioners in WP(C) No. 1756/86 shall be given the scale of pay of Asst. Cameraman in the Film Div. i.e. Rs. 425-700 w.e.f. 1.12.83. The petitioners in all these WPs will also be entitled to the substituted scales of pay and consequential benefits. The respondents are directed to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months from today."
6. Meanwhile.applicant admits (vide his representation dated 30.8.93 copy at Ann. B) that respondents by their order dated 11.5.88 recognised Cameramen Gr. I including himself as Govt. servants w.e.f. 6.3.82 and acknowledges that consequent to the Hon'ble Supreme Court's judgment dated 26.8.88 (supra) respondents treated Cameramen as Govt. servants from thedate they joined Doordarshan as Staff Artists by giving them pay scales equal to their counterparts in Films Division. It is also not denied that applicant was promoted as Vide Executive w.e.f. 14.2.89.
7. On 15.11.90 the Indian Broadcasting (Programme) Service Rules, 1990 were promulgated (Ann. R-1) by which the Indian Broadcasting (Programme) Service was constituted. The post of Video Executive was encadred in the service and by Notification dated 2.2.93 (Ann. R-2) applicant was inducted into the service w.e.f. 5.11.90 with his channel of promotion in that service.
8. The main thrust of the arguments advanced by applicant Shri Y.K. Mehta in O.A. No. 212/94 and indeed on behalf of the other two 0. As before us is that the Ministry of I&B by its letter dated 5.3,76 (Ann. I to OA-53/97) had communicated its decision to separate Television from AIR as far back as 1.4.76 but this decision was never implemented properly or in full measure by respondents. It is argued that as per Para 5 of that letter, regular Govt.
servants, who had not specifically been recruited for the Television setup but were working there, and were on the common cadre of Sound Radio and TV, were required to exercise their option, to decide whether they chose to remain in TV or chose to return to the Sound Radio Network, and those who opted for the Sound Radio Network were to be repatriated. It is contended that instead of repatriating those functionaries to Sound Radio Network they were allowed to continue in the TV Setup, and in fact were allowed to enjoy the best of both worlds, namely when promotional vacancies arose in AIR they were considered for those promo tions, while continuing to enjoy all the promotional and other benefits in the TV setup also, and thus they deprived the applicants of the promotional posts which would otherwise have become available to them.
9. It has also been argued, that the Inter Departmental Review and Rationalisation Committee setup by the Govt. to look into anomalies in the pay scales of certain categories of staff artists of Doordarshan and to review the same, keeping in view the staffing pattern recommended by SIU and accepted by the Govt. had made its recommendations and had also prepared a chart indicating the set up of a TV centre as per SIU norms in respect of Programme and Support Services (excluding Engineering and Administrative Service), according to which Cameramen were placed directly in the line of promotion as Manager/Asst. Director; and similarly Graphic Artists were placed directly in the line of promotion as Graphic Supervisor and then Manager/Asst. Director, but instead of implementing the same, Programme Executives and Transmission Executives were transferred from AIR to Doordarshan and thereafter occupied positions as Manager/Asst. Director, arbitrarily and illegally thereby vitiating the promotional prospects of the applicants in the three OAs before us.
10. It is argued that consequent to the Hon' ble Supreme Court's judgment dated 26.8.88 (supra) official respondents were required to consider applicants on the promotional posts at each level resulting from the policy instructions dated 5.3.76, and the acceptance by the Govt. of the SIU's recommendations recorded by the Inter-Departmental Review & Rationalisation Committee in its Report, from the date(s) they became eligible for the same after treating them as Govt. servants from the date they joined the Doordarshan as Staff Artists.
11. Some of the pvt. respondents who claim to be senior to Shri Mehta as Cameraman assert that they would be entitled to consideration for such promotions from a date even prior to Shri Mehta.
12. Various judgments have been cited, in support of these contentions, including 1995 SC 179 Dhananjay Sharma v. State of Haryana, JT 1989 (3) SC 513; CSIR v. K.G. Bhatt, 1991 (17) ATC 204; Balkishna v. Delhi Admn., AIR 1968 SC 1413 and 1992(19) ATC 302.
13. We have heard both sides at considerable length and given the matter our careful consideration.
14. We have already noticed that the Indian Broadcasting (Programme) Service Rules, 1990 were notified in the official Gazette on 5.11.90.
15. These Rules were framed under Article 309 of the Constitution and are statutory in character. By these Rules the post of Video Executive was encadred in the service and by Notification dated 2.2.93 (Ann. R-2) ApplicantShri Y.K. Mehta was inducted into the service w.e.f. 5.11.90 (Ann. R-2) with his channel of promotion in that service. As a Video Executive in the pay scale of Rs. 3000-4500 applicant was in the Senior Time Scale of the Programme Production cadre of Indian Broadcasting (Programme) Service with his channel of promotion as Junior Administrative Grade/Chief Producer: JAG(SG)/Director (production) and so on.
16. It is well settled that the statutory Recruitment Rules framed under Article 309 of the Constitution over ride any executive instructions. Shri Mehta has not impugned the aforesaid Indian Broadcasting (Programme) Service Rules, 1990 in his O. A. No. 212/94, and till such time as these Rules are in force, respondents have to act strictly in accordance with their provisions. We are clear and categorical in our view that the Hon'ble Supreme Court's judgment dated 26.8.88 (supra) cannot be construed to mean that the official respondents are now required to go behind the rules and consider applicant Shri Mehta for promotion against posts on the basis of certain recommendations made by the SIU and/or the Inter-Departmental Review & Rationalisation Committee when even the sanctioning orders creating those posts against which applicant seeks promotion have not been produced by him.
17. We would like to reiterate that regardless of the extent to which official respondents implemented their instructions dated 5.3.76, and/or the recommendations of the SIU and the Inter-Departmental Review & Rationalisation Committee, once the Indian Broadcasting (Programme) Service Rules, 1990 were notified on 5.11.90, they being statutory rules framed under Article 309 of the Constitution they would have overriding authority, and as long as those rules are in force, the Hon'ble Supreme Court's judgment dated 26.8.88 (supra) cannot be construed in a manner to do them violence or to set them at nought.
18. Hence the O.A. No. 212/94 warrants no interference and is dismissed.
19. As regards O.A. No. 53/97 applicants as Staff Artists were admittedly employed initially on contract basis, and have since been made Govt. servants and occupy posts of Graphic Artists which is in Group 'C' category while Respondents No. 4 to 20 are I.B.(P)S officers which is an organised Group A Service notified under the I.B.(P)S Rules on 5.11.90. The reasoning adopted while dismissing O.A. No. 212/94 will apply mutatis mutandis in the present O.A. also, and as long as the I.B.(P)S Rules 1990 are in force - the Rules themselves have not been specifically challenged in the O.A. - the Hon'ble Supreme Court's judgment dated 26.8.88 cannot be construed to mean that the official respondents are required to go behind those rules, declare the presence of Respondents 4 to 20, who are occupying certain posts as Members of the I.B.(P) Service illegal and then consider applicants for promotion against these posts.
20. O.A. No. 53/97 under the circumstance also warrants no interference and is dismissed.
21. As regards O.A. No. 125/97, the reasoning adopted in dismissing OAs No. 212/94 and 53/97 will apply mutatis mutandis in the present O.A. also. It is no doubt true as urged by Mr. T.C. Aggarwal that till the Recruitment Rules were framed Administrative decisions would hold the field, but by the same token once the RRs are framed under Article 309 of the Constitution as was done in the case of L.B.(P)S Rules, 1990 which were notified on 5.11.90, they being statutory in nature, would override any executive instructions issued on the basis of administrative decisions or policy, and once those RRs are in force it cannot legitimately be argued that promotions should be made on the basis of some recommendations made, or decisions taken much before the framing of those statutory Recruitment Rules. The Hon'ble Supreme Court's judgment dated 26.8.88 (supra) also cannot be construed in a manner to permit this, and the IB(P) Service Rules themselves perse do not become illegal, arbitrary or mala fide even if they do depart from the recommendations of the SIU and/or the Inter-Departmental Rationalisation and Review Committee. Respondents 5 to 21 hold their posts by virtue of belonging to IB(P) Service Rules on 5.11.90 and were promoted as per. the relevant provisions of those Rules. Respondents have correctly pointed out that applicants cannot lay claim to an altogether other category of posts, which are different in status and in nature of duties which have different RRs.
22. The IB(P) Service Rules have been challenged on the ground that they relate only to Class I posts and has nothing to do with the progression of staff working below where the recommendations of SIU and the Inter Departmental Review and Rationalisation Committee's recommendations should have been implemented. Specific mention has been made of absence of provision for Cameramen Gr. II and other categories of staff artists including Sound Recordists, etc. Respondents in their reply have pointed out that the non-inclusion of Cameraman Gr. II in the feeder cadre of ITS of IB(P)S is the subject matter of O.A. No. 351/ 91 which is separately before CAT, and therefore we express no opinion on the merits of its inclusion or non-inclusion, but would like to make it clear that mere inclusion or non-inclusion of a particular post or group of posts, or indeed a service, in a set of RRs does not perse make those RRs illegal, arbitrary or mala fide. Applicants grievance is that .they have no promotional opportunities in their service career and have referred to-the Hon'ble Supreme Court's judgment in Raghunath Prasad Singh v. Secretary, Home (Police) Dept., Govt. of Bihar, AIR 1988 SC 1033 wherein the need for making available suitable promotional opportunities in the public service has been emphasised. No doubt, absence of promotional opportunities is a demotivating factor and it is in respondents best interests as model employees that consistent with the financial implications of such a decision, suitable promotional opportunities are made available to its employees to maintain their motivation and morale, but the absence of mention of applicants, who belong to Group C category, in the RRs framed from Group A posts, does not make those RRs illegal, arbitrary or mala fide. The argument that the recommendations of the SIU and/or the Inter-Departmental Review and Rationalisation Committee, in respect of which no final sanctioning orders actually creating posts were shown to us, become a service condition of applicants, which was altered to their disadvantage by the IB(P) Service Rules, or which respondents were under some legal obligation to implement has also to be rejected.
23. In the result this O.A. No. 125/97 also warrants no interference, and is dismissed.
24. In the result all three OAs are dismissed. No costs.