Central Administrative Tribunal Principal Bench OA No.2361/2007 With OA No.871/2008 New Delhi this the 21st day of October, 2008. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) OA No.2361/2007 1. Programme Staff Association of AIR &DD, through Sanjay Kumar (General Secretary), S/o late Shri L.C. Srivastava, R/o R. No.406, Akashvani Bhavan, Parliament Street, New Delhi-110001. 2. Shaharyar Khan (DG-I/C), R/o R.No.216, Doordarshan Bhavan, Mandi House, New Delhi. 3. Karuna Srivastava (DDG-I/C), D/o late Shri R.N. Sahay, W/o Sh. K.B. Srivastava, R/o E-102, Seema Apartments, Plot No.7, Sector-II Dwarka, New Delhi. 4. Smt. Grace Kuzur, D/o Patrick Kuzur, R/o C-106, Pragati Vihar Hostel, Lodhi Road, New Delhi. 5. H.K. Pani, S/o late R.K. Pani, Director, National Channel, All India Radio Todapur, New Delhi. 6. Smt. Karuna Srivastava, D/o late R.N. Sahay, R/o E-102, Seema Appt., Plot No.7, Sector-11, Dwarka, New Delhi. -Applicants (By Advocate Shri Ashwani Bhardwaj) -Versus- 1. Union of India through the Secretary, Ministry of Information And Broadcasting, Shastri Bhawan, New Delhi-110001. 2. Prasar Bharti Broadcasting Corporation, through Chief Executive Officer, Mandi House, Copernicus Marg, New Delhi-110001. -Respondents (By Advocate Shri V.K. Rao) OA No.871/2008 Bodhisri Shastri, D/o Prof. Dr. S.B. Shastri, Supervisor/ESD/AIR, R/o A-403, M.S. Apartments, K.G. Marg, New Delhi. -Applicant (By Advocate Shri B.S. Mainee with Ms. Minu Mainee) -Versus- 1. Union of India through the Secretary, Ministry of Information And Broadcasting, Shastri Bhawan, New Delhi-110001. 2. Chief Executive Officer, Prasar Bharti, PTI Building, Sansad Marg, New Delhi. 3. Director General, All India Radio, Sansad Marg, New Delhi. 4. Programme Staff Association of AIR & DD through Sanjay Srivastava, R.No.406, Akashvani Bhawan, New Delhi. -Respondents (By Advocates S/Shri D.S. Mahendru (R-1), V.K. Rao, (R 2-3) Ashwani Bhardwaj (R-4)) O R D E R
Mr. Shanker Raju, Honble Member (J):
A policy fixed in relation to conditions of service must not only be in consonance with the Constitution of India but also should not be arbitrary, unreasonable or otherwise objectionable as ruled by a three-Judge Bench of the Apex Court in Anil Kumar Vitthal v. State of Maharashtra, 2007 (1) SCC (L&S) 901.
2. As these two OAs are interlinked with an identical question of law, regarding validity of order dated 11.9.2007 and its implementation, are being disposed of by this common order.
3. OA-871/2008 seeks implementation of order passed by the Ministry of Information and Broadcasting on 11.9.2007, whereby Supervisors (Foreign Language) who had been declared Government servants under the Government Scheme dated 3.5.1982 it has been decided to encadre them on induction into Indian Broadcasting (Programme) Service, i.e., regular Programme Cadre Group A of AIR on fixation of pay scales and inter-se-seniority from the date they have been declared as Government servants on option as departmental candidates in the initial constitution with all consequential benefits of promotion and arrears. Simultaneously Programme Staff Association of All India Radio (AIR) and Doordarsan, the incumbents of which are the members of regular Programme cadre appointed after selection from Union Public Service Commission (UPSC), assail the above order.
4. A brief factual matrix transpires that under the Ministry of Information and Broadcasting there exist three wings, viz., Ministerial, Production and Central Information Service. A Scheme was circulated by the Government on 18.6.1982 by 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 UPSC, which at the time of regularizing the applicant in OA-878/2008 also made a recommendation for their absorption into regular civil cadre, Group A of AIR and fixation of inter-se-seniority. The aforesaid task has been left to the concerned Ministry. Whereas the 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.
5. An order passed on 21.11.1989, Ministry of Information and Broadcasting informed the applicants that Supervisors (Foreign Language) do not fit into Programme Management category and as such it has not been found feasible to agree to the proposal.
6. OA-2036/1990 R.L. Malhotra and others v. Union of India and others, filed before the Tribunal was allowed on 17.1.1992 with a direction to the respondents on 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 who have been included in the Indian Broadcasting (Programme) Service (IBPS, for short). A direction issued was to provide the applicants suitable avenues for 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.
7. On formulation of the career progression scheme CCP-14/93 filed by the applicants in OA-2036/90 was dismissed on 11.10.1993 on a satisfaction arrived at that a scheme since prepared it is open to the applicants to assail it in appropriate proceedings. When no final decision was taken, OA-1404/99 filed by the applicants in OA-2036/890 was disposed of on 5.9.2000 on the ground that a note by the Director General, AIR dated 6.1.1997 proposed inclusion of post of Supervisor (Foreign Language) in IBPS, a final decision was directed to be taken.
8. On 6.7.2001 Director General, AIR rejected the proposal of inclusion of Supervisor (Foreign Language) into IBPS on the ground of dissimilarity in functional requirements, which was assailed in OA-635/2002. However, an order passed on 11.9.2007 by the competent authority, approving encadrement of Supervisors (Foreign Language) into IBPS as departmental candidates on initial constitution with all benefits the above OA was withdrawn.
9. Shri B.S. Mainee, learned counsel of applicant in OA-871/2008 by placing reliance on order dated 11.9.2007 and the UPSC recommendation for encadrement of the applicant in Group A cadre contended that the Tribunal earlier in R.L. Malhotra and others (supra) having categorically observed that the functions and duties assigned to the post of Supervisor (Foreign Language) are far from being inferior and are identical to Programme Cadre, their non-inclusion by the Government despite a conscious decision taken on 11.9.1997 is not in consonance with law. Learned counsel would that contend that once they have been given options on screening by the UPSC for conversion into government servants, their non-cadrement in IBPS is violative of Articles 14 of the Constitution of India as the applicant has only one avenue to be inducted i.e. in the Programme cadre as in two other cadres applicant do not function either on ministerial side or information. Learned counsel has invoked the doctrine of fair play, waiver and estoppel to contend that the respondents having taken a decision, which was accepted at the appropriate level and applicant on exercising an irrevocable option for induction into the government service as regular Programme cadre the respondents are now estopped from taking a contrary decision. Learned counsel would also contend that a proposal as a fall out of government decision dated 11.9.2007 to create four supernumerary posts is not the correct view of the matter, as admittedly 16 posts are available in the Programme cadre for regular induction of the applicant.
10. On the other hand, applicants in OA2361/2007 represented by Shri Ashwani Bhardwaj, have vehemently opposed the decision of the Government and stated that once right from 1997 till 2001 when the Government has taken a decision not to encadre Supervisor (Foreign Language) into IBPS, yet a decision now taken when the duties and responsibilities are different to encadre post of Supervisor into Production is without any basis and reasons.
11. Learned counsel would contend that even before such a decision is taken representations preferred have not at all been deliberated and considered. The Ministry has not responded to the queries put-forth from the Prasar Bharti. Learned counsel states that there is no finding of similarity of functions of Supervisors (Foreign Language) with regular Production cadre in the decision of the Tribunal and the request of the applicant made for being encadred was not acceded to. It is stated that the only direction issued, was to create by way of career progression a promotional avenue, which when promulgated as per the Scheme, the order has attained finality.
12. Learned counsel would contend that by retrospective induction from the date of regularization and even accommodating the applicant in OA-871/2008 and similarly situated persons a Pandora Box would be open and the position of seniority shall be disturbed and rather shall be unsettled, which had already been settled long back. It is stated that the Government being a Welfare State, regular employees of the Production Cadre being the employees of the Ministry, their interest is also to be safeguarded, which when put to stake has caused grave prejudice to them.
13. Shri Ashwani Bhardwaj would contend that the Government having taken a conscious decision earlier cannot resile on change of stand later on to the detriment of the service conditions of the applicants and the decision arrived at despite the fact that the order has not been delivered in favour of Supervisors by the Tribunal is now sought to be conferred upon them malafidely on unreasonable basis under influence with favoritism to the Supervisors (Foreign Language).
14. Shri D.S. Mahendru, learned counsel appearing for respondent No.1 in OA-871/2008 filed an affidavit whereby after the proposal of 11.9.2007 certain communications have been made and just to avoid any heart-burning and litigation within the cadre a proposal for creation of supernumerary posts personal to the Supervisors at different levels is stated to be under consideration.
15. On the other hand, Shri V.K. Rao, learned counsel appearing for rest of the respondents in his reply contended that in pursuance of Ministrys letter dated 11.9.2007 certain clarifications have been sought regarding encadrement of Supervisors vide letter dated 31.10.2007 where one of the contentions put-forth by the Production Cadre incumbents regarding unsettling the settled position and an objection to treat the Supervisors as departmental candidates at initial constitution and also seeking mode of induction and fixation of their seniority the Ministry vide letter dated 17.7.2008 has requested the D.G., AIR, to intimate number of posts required to be created to accommodate the four Supervisors against supernumerary posts.
16. We have carefully considered the rival contentions of the parties and perused the material on record.
17. Fairness in action is expected of the Government. Governmental authorities are also bound by the principle of equality enshrined under Article 14 of the Constitution of India. All the cadres under the control of administrative Ministry and the service conditions of the incumbents therein an equal treatment with protection of their rights is the minimum requirement expected. No doubt, the erstwhile Staff Artists including Supervisors (Foreign Language) on promulgation of a policy by the Government in 1982 have been subjected to screening in the UPSC for their appointment on regular basis as government servants. Having done so, as per the pay scale and functional requirements being Group A post a recommendation made to the administrative ministry to encadre them as departmental candidates on initial constitution was also made. This was to be done in Group A cadre. As there were only three cadres the other two do not match with the functional requirements of duties attached to the post of Supervisor (Foreign Language) the only cadre left was regular Production cadre.
18. In the above backdrop the decision of the Tribunal in 1990 had acknowledged the fact on reiteration that the duties attached to the post of Supervisor are not inferior to the duties attached to the counterparts in Production Cadre. With the above background what has been directed is consideration for promotional avenue in the wake of actual progression. On examination the Government vide a conscious decision in the wake of the Aggarwal Committee clearly ruled on decision that there is no similarity between the functional requirements and duties attached to the post of Supervisor (Foreign Language) and Production Cadre. An order to this effect when passed was assailed in litigation before the Tribunal (supra) in 2002. However, a proposal to encadre Supervisor (Foreign Language) in IBPS the competent authority took a decision to treat on the basis of the earlier recommendation of UPSC to encadre these posts in IBPS with all consequences. However, this decision could not be implemented as the regular cadre of Production objected to unsettling their settled position in the matter of seniority and this has led to several clarifications sought from the Ministry. However, without responding to the queries put-forth by D.G. A.I.R. letter dated 31.10.2007 a communication in August 2008, a non-speaking one, resolved with further requisition of information as to the post by creation of supernumerary posts in Production Cadre to encadre Supervisor (Foreign Language) which was a dying cadre with four incumbents left. However, 16 posts of IBPS cadre are still existing, as such the decision to create supernumerary posts, which have been shown to have taken to avoid unrest amongst the cadre and to further avoid litigation is not a well conscious decision as despite creation of supernumerary posts by inducting Supervisors into Production Cadre retrospectively from the date of their being declared as Government servants the seniority shall be unsettled and other service conditions would likely to be affected.
19. Doctrine of estoppel and waiver certainly has application not only in substantive but also procedural law. Any decision of the Government may be reviewed and modified later on with its prerogative, yet there has to be a basis to alter a well conscious decision. Once the Government has decided in the backdrop of direction of the Tribunal where there is no categorical finding as to the similarity of duties between the two cadres not to induct the Supervisors (Foreign Language) into the Production Cadre, yet after six years when the situation has not changed and circumstances have not undergone any substantial change, a proposal to induct Supervisor (Foreign Language) by a decision at highest level shows that the Government has altered its earlier decision but reasons are wanting and are not reflected in the order. However, assuming the decision of the Government as policy decision, it has to be examined in the light of its being rational, logical and in consonance with the Constitution of India. By induction of four incumbents from retrospective date with all consequences they would march over regular Production cadre incumbents in the matter of seniority and subsequently for promotion as well. It is trite that having taken a stand unless strong reasons are reflected, Government is estopped from changing its policy, which is shown to be unreasonable and prejudicial to a particular class or category.
20. A note moved before the decision dated 11.9.2007 was taken shows that despite an earlier decision what necessitated a change of the decision is the act of the UPSC where recommendation has been made for encadrement of Supervisors in Group A cadres. This decision has left the choice to the prerogative of the administrative machinery and has not set out any methodology or finding as to similarity between the two cadres. It appears that the buck has been passed to the UPSC and on that basis an earlier conscious decision has been reversed and the policy is changed without any material, difference in the situation and circumstances, prevailing in 2001 when on dissimilarity of functional requirements encadrement of Supervisors in IBPS was ruled out. No doubt, creation of promotion avenue and non-marring chances of promotion and consideration thereof is a fundamental right guaranteed to a government servant, as ruled by the Apex Court in A.S. Satyanarayan v. Purushottam, 2008 (2) SCC (L&S) 279 it is also open for the Court to direct creation of promotional avenues as ruled in F.C.I. v. P.D. Bansal, 2008 (5) SCC 100. However, a policy decision earlier taken can be reviewed but only on reconsideration, as ruled by the Apex Court in State of U.P. v. Ch. R.V. Singh, 2008 (5) SCC 550. In the above backdrop of trite law, it is a situation where after the decision taken by respondents on 11.9.2007 there has been a delay in its implementation, which led to litigation in OA-871/2008, yet the decision when had not considered the objections put-forth by the likely affected parties, i.e., regular cadre of IBPS in OA-2361/2007 a proposal sent on 31.10.2007 by the D.G., AIR with valid objections to the Ministry has not at all been considered in its true perspective with all rival claims. Moreover, without even passing a speaking order, a decision to create supernumerary posts personal to the Supervisors at different level of IBPS has been taken. This has left consideration of the queries put-forth by the D.G., A.I.R.
21. Consideration in administrative jurisdiction is worth in law where a thinking has to be done on active application of mind to all the relevant factors and aspects of the matter, as ruled by the Apex Court in Bhiku Bhai Patel v. State of Gujarat, 2008 (4) SCALE 248. 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. We however do not express any opinion on rival merits of the parties.
22. In the above view of the matter, OAs are disposed of with a direction to the respondents, including respondent No.1, Government of India, Ministry of Information & 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 a copy of this order. We, however, make it clear that till such a decision is taken, any act, which prejudices the right of both sides, shall not be processed. No costs.
Let a copy of this order be kept in OA 871/2008 as well.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.