Supreme Court of India
UNION OF INDIA & ORS. versus KRISHNA RAO & ORS. ETC. ETC. on 26 September 2018
UNION OF INDIA & ORS.
v.
E KRISHNA RAO & ORS. ETC. ETC.
(Civil Appeal Nos.11948-11950 of 2016)
SEPTEMBER 26, 2018
[DIPAK MISRA, CJI, DR. D. Y. CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Indian Broadcasting (Programme) Service Rules, 1990 –r.6 r/w. r.2(c) and Note 3 of Schedule I – Respondents Nos. 1 & 2were employed on contractual basis by appellants – Thereafter,respondents were declared Government servants – Respondentsclaimed that they were not treated as members of the IndianBroadcasting Programme Service by the appellants and were notconsidered for promotion – Tribunal directed the Government togrant respondents all benefits under the Rules and consider theircases for promotion – High Court upheld the order of the Tribunal– On appeal, held: It was not in dispute before the High Court thatposts of respondents were regular sanctioned posts – Based on this,it was held that having due regard to r.6 r/w. r.2(c) and Note 3 ofSchedule I, the posts held by the respondents were deemed to beincluded in the service – This interpretation of the High Court borneout of the Rules was correct – As respondents were declared to begovernment servants, it was unfair and inequitable to deny to themall the benefits, including of pay scales and other conditions ofservice applicable to posts in the equivalent pay scale – Tribunaland the High Court were correct in their findings and conclusions– Clarification given while affirming the judgment of the Tribunal.
Respondent Nos. 1 & 2 were engaged as TV NewsCorrespondent and TV Assistant News Correspondentrespectively on contractual basis. Thereafter, the Union Ministrygave option to the respondents to be treated as Governmentservants, which was accepted by them. However, respondentswere not given promotion for twelve years. Aggrieved, they filedapplication before the Tribunal claiming that they were not treatedas members of the Indian Broadcasting Programme Service bythe appellants. Tribunal directed the Government to grant
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Arespondents all benefits under the Rules and consider their casesfor promotion. High Court upheld the order of the Tribunal.Hence, the present appeals.
Disposing of the appeals, the Court
HELD: 1. First Respondent was engaged on contract onB6[th] August, 1988 and Second Respondent on 12[th ]August, 1988respectively. Rule 6 of Indian Broadcasting (Programme) ServiceRules, 1990 which provides for the initial constitution of theservice stipulates that from the date of the commencement ofthe Rules, departmental candidates who held posts on a regularCbasis in the stipulated pay scales would be deemed to have beenappointed to corresponding posts and grades in the service. Rule2(c) provides for the definition of the expression “departmentalcandidates”. The effect of Note 3 to Schedule I is that postssanctioned after 1[st] January, 1985 in All India Radio andDoordarshan would be deemed to have been included in theDservice and will be added to the strength shown therein. TheHigh Court has observed that on the date of the commencementof the Rules, the pay scales of the applicants were Rs. 3000-4500and Rs. 2200-4000 respectively. As a result of the deemingprovision in Note 3, it was held that they would be appointed toEcorresponding posts and grades in service. This finding isunexceptionable. It was not in dispute before the High Courtthat the posts of TV News Correspondent and TV Assistant NewsCorrespondent were regular sanctioned posts. Based on this, itwas held that having due regard to Rule 6 read with Rule 2(c)and Note 3 of Schedule I, the posts held by the RespondentsFshall be deemed to have been included in the service. Thisinterpretation of the High Court is borne out by the Rules. Oncethey were declared to be government servants, it would be unfairand inequitable to deny to them all the benefits, including of payscales and other conditions of service applicable to posts in theGequivalent pay scale. [Para 9] [232-E-F; 233-E-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11948-11950 of 2016.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11948-11950 of 2016.
From the Judgment and Order dated 20.03.2014 of the HighCourt of Judicature of Andhra Pradesh at Hyderabad in Writ PetitionH(C) Nos. 5471, 5712 and 14673 of 2001.
K. K. Rai, Sr. Adv., Rajeev Sharma, Ms. Radhalakshmi R.,Ambhoj Kumar Sinha, S. K. Pandey, Anshul Rai, Chandra Shekhar A.Chakalabbi, S. N. Pandey, Arun Vohra, Chander Shekhar Ashri,Mrs. Anjani Aiyagari, Rajesh Srivastava, Asit Kumar Roy, SnehasishMukherjee, Advs. for the appearing parties.
The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J. 1.The appealsarise from a judgment of the High Court of Andhra Pradesh dated20 March 2014. The High Court rejected a challenge to an order of theCentral Administrative Tribunal[1] directing the appellants to provide tothe Respondents all benefits of service and to consider their cases forpromotions in accordance with the Indian Broadcasting (Programme)Service Rules 1990.[2]
2. The First Respondent was engaged as a TV NewsCorrespondent on contract for a period of five years on 6 August 1988.The second Respondent was engaged as a TV Assistant NewsCorrespondent on contract on 12 August 1988. The Rules came intoeffect on 5 November 1990. They did not have a specific provision forthe posts of TV News Correspondent and TV Assistant NewsCorrespondent. The Rules define the expression ‘departmentalcandidates’ thus:
“(c) “Departmental Candidates” means-
“(i) Officers appointed on regular basis in consultation withthe commission or on the recommendations of the DepartmentalPromotion committee, and who hold posts on regular basis or hold,lien in Group ‘A’ programme cadre of All India Radio andDoordarshan on the date of commencement of these rules and
(ii)All officers appointed on regular basis to the post of videoexecutive in Doordarshan in the pay scale of Rs.3000-4500;”
Rule 6, which provides for the initial constitution of the service,reads thus:
“6. Initial Constitution of the Service:-
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(1) Subject to the provisions of sub-rules (2), (3) and () alldepartmental candidates holding posts or regular basis in the scales 1 The”Tribunal”
2 The Indian Broadcasting (Programme) Service Rules 1990 are referred to in this judgment as the Rules.
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of pay of Rs. 5900-6700, Rs.3700-5000, Rs.3000-4500 andRs. 2200-4000 shall from the date of commencement of theserules, be deemed to have been appointed to the correspondingposts and grades in the Service.
Provided that nothing in this sub-rule shall apply, to thoseDepartment Candidates who have been granted Selection Gradein the scale of Rs. 2200-4000.
(2) (a) The Departmental Candidates referred to in sub-clause(i) of clause (c) of rule 2 shall be required to convey their optionsin writing for inclusion in any one of the four Cadres of the Service.
(b) In the event of options not being received within the stipulatedtime, the Departmental Candidates shall be deemed to have optedin the respective cadre of the All India Radio or Doordarshan, asthe case may be, where they are working.
Provided that the Departmental Candidates referred to insub-clause (ii) of clause (c) of rule 2 shall merge with theProgramme Production Cadre of Doordarshan and will maintaintheir separate identity as indicated in Schedule VII.
(3) (a) The commission shall constitute a Selection Committeewith the Chairman or a Member of the Commission, as Presidentand not more than three representatives of the appropriate statusto be nominated by the Controlling Authority to consider all theoptions from the departmental Candidates referred to in sub-rule(2) and recommend the cadre and the Medium to which suchDepartmental Candidates may be appointed, and submit lists ofofficers considered suitable for such appointment to theCommission, which shall forward to the Controlling Authority itsrecommendations thereon.
(b) The decision of the Controlling Authority in respect ofappointments based on the recommendations of the Commissionshall be final and such appointments shall be deemed to havebeen made with effect from the date of constitution of the Service.
(c) After such departmental candidates have been so allocated toa particular Medium or a cadre thereof they will continue to servein the cadre of that medium to which they have been so assigned:
Provided that the commission may, while making suchrecommendations, in respect of Departmental candidates, referredto in sub-rule (2), include a recommendation that officersconsidered suitable for appointment to a grade shall, if sufficientnumber of vacancies are not available in that grade, continue tohold the post held by them before the commencement of theserules and for this purpose such posts shall be deemed to havebeen excluded from the service so long as such offices continueto hold the said posts.
Explanation: The absence of a member other than the chairmanor a Member of the Commission shall not invalidate the proceedingsof the Selection Committee.
(4) (a) Notwithstanding anything contained in rule 7, officersreferred to in the proviso to sub-rule (3) shall be included in theService when vacancies in the said grade are available.
(b) Such persons who are included in the Service at a later datewill rank–en-bloc junior to the person inducted into the Service atthe initial constitution.
(5) Departmental Candidates who do not desire to be absorbedin the Service shall, within a period of three months from the dateof commencement of these rules, communicate their decision inwriting to the Controlling Authority and they shall thereafter andsubject to the other provision of these rules be deemed to continueto hold the posts held by them immediately before thecommencement of these rules, and for this purpose, such postsshall be deemed to have been excluded from the Service so longas they hold the said posts.
(6) (a) The regular continuous service of Departmental Candidatesprior to their appointment to the Service shall count for purposesof promotion and confirmation.
(b) To the extent the controlling Authority is not able to fill theauthorised strength of the various grades in the service inaccordance with the provisions of this rule, the same shall befilled in accordance with the provisions of rule 7.”
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ANote 3 of Schedule I of the IBPS Rules is as follows:
“Note 3, Schedule I of IBPS Rules
“3) The number of posts sanctioned for various schemes after1.1.1985 in All India Radio and Doordarshan will be deemed tohave been included in the service and such posts will be added toBthe strength shown therein.”
The posts which have been specified in Schedule I together withtheir scale of pay are reflected in the following table :
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Schedule II provides for the Programme Production Cadre.
3. On 29 November 2011, the Union Ministry of Information andBroadcasting sought options from the Respondents on whether theydesired to be treated as government servants or whether they wished to of 900-6700
4500-5700
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continue as contractual employees. The First Respondent opted to betreated as a government servant. On 21 March 1992, the Director ofDoordarshan Kendra, Hyderabad by a Memorandum bearing no. TVH/ 23 (6) 92-S) declared the First Respondent as a government servantwith effect from 31 March 1992. The Memorandum reads thus:
“MEMORANDUM
The option exercised by Shri E KRISHNA RAO in the categoryof T.V. NEWS CORRESPONDENThas been considered.Accordingly Shri E KRISHNA RAO, Doordarshan Kendra,Hyderabad, has been declared as Government Servant with effectfrom 6.8.88 Vide Director General letter No. 45011/29/91 Bd (R)dt. 29.11.91.
All the existing rules/regulations and benefits, includingpensionary benefits, the age for retirement etc. Which areapplicable to the regular Civil Government Servants will beapplicable to him/her. Consequently the contract entered into withhim/her will stand terminated with effect from 6.8.88.
The post of Staff Artists in the category of T.V. NEWSCORRESPONDENT which was hitherto held by Shri EKRISHNA RAOis here by converted into Civil post with effectfrom 6.8.88 without change of designation. The fee scales in whichShe/he is employed will from 6.8.88be considered as pay scalesof the corresponding post and the fee drawn by him/her will bethe pay drawn by him/her with effect from 6.8.88. This post wouldbe treated to have been created as temporary post with effectfrom 6.8.88 to be converted into permanent post in due course inaccordance with the prescribed procedure.
For Director.”
Administrative Officer”
The Memorandum states that all the rules/regulations and benefits,including pensionary benefits, age of retirement etc., which are applicableto regular government servants, would also apply to the First Respondentwith effect from 6 August 1988, thereby terminating the contract whichhe had entered into at the time of his recruitment. The Second Respondentwas similarly declared to be a government servant.
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A4. The Respondents were not given any promotion for twelveyears. Aggrieved by this, they filed OA 916 of 1999 and OA 1010 of1999 before the CAT, claiming that they had not received any promotion,as they were not treated as members of the Indian BroadcastingProgramme Service by the appellants. The Tribunal allowed theapplications of the Respondents and directed the government to grantBthem all benefits under the Rules and consider their cases for promotion.
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5. The appellants challenged the order of the Tribunal before theHigh Court of Andhra Pradesh. They submitted that since the posts ofTV News Correspondent and TV Assistant News Correspondent havenot been included in the Rules, the Respondents cannot be consideredCfor promotion to the post of Junior Administrative Grade (selection grade)and therefore, the Tribunal had no jurisdiction to issue such a direction.
6. The High Court upheld the Tribunal’s decision that acceptanceby the Respondents of benefits under the Annual Career Progressionscheme did not disentitle them to get equivalent pay scales. The HighDCourt examined the meaning of the expression ‘departmental candidate’in Rule 2 (c) alongwith Rule 6 and Note 3 of Schedule I. The High Courtheld:
“A bare perusal of above definition would clearly go to show thatthe person who holds posts on regular basis can also be treadedEas “department candidate”. It is not in dispute before this Courtthat by virtue of proceedings dated 31 March 1992 the applicantswere declared as Government Servants with retrospective effectfrom 6 August 1988 and 12 August 1988 respectively. Thereforethe applicants fit into the definition of “department candidate” asFdefined under Section 2 (c) of the IBPS Rules, 1990. Rule 6 ofthe IBPS Rules is that subject to the provisions of sub-rules (2),(3) and (4) all departmental candidates holding posts on regularbasis in the scales of pay of Rs. 5900-6700, Rs. 3700-5000, Rs.3000-4500 and Rs. 2200-4000 shall, from the dates ofcommencement of these Rules, be deemed to have been appointedGto the corresponding posts and grades in the Service.”
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Hence, the High Court held that the Respondents fulfill thedefinition of a departmental candidate under section 2(c) of the Rules.Rule 6 provides that subject to the provisions of sub- rules (2), (3) and(4), all departmental candidates holding posts on a regular basis in the H
scales of pay of Rs. 5900-6700, Rs. 3700-5000, Rs. 3000-4500 andRs. 2200-4000, shall, from the date of commencement of the Rules, bedeemed to have been appointed to the corresponding posts and gradesin the Service. The High Court has also relied on Note 3 of Schedule I tothe Rules, under which posts sanctioned for various schemes in All IndiaRadio and Doordarshan after 1 January 1985 are deemed to have beenincluded in the service and such posts shall be added to the strength ofthe cadre.
7. Intervention Applications have been filed. The intervenors statethat they fall in the same category as the First and Second Respondentsand hence the Rules should also apply to them. It was also submittedthat the Petitioner offered promotion to the First and Second Respondentsand to similar persons after a probation of 2 years, but even after itscompletion they were not promoted. The Intervenors have also submittedin their written submissions that two days after the final hearing on 9August 2018, the appellants published a Gazette notification onlineshowing truncated Recruitment Rules 2014 that exclude the Group Aposts of TV Assistant News Correspondents to prevent the affectedparties from benefitting.
8. On hearing the submissions made by the Petitioner and theRespondents, we are of the view that the Tribunal and the High courtare correct in their findings and conclusions.
9. Rule 6 which provides for the initial constitution of the servicestipulates that from the date of the commencement of the Rules,departmental candidates who held posts on a regular basis in the stipulatedpay scales would be deemed to have been appointed to correspondingposts and grades in the service. Rule 2(c) provides for the definition ofthe expression “departmental candidates”. The effect of Note 3 toSchedule I is that posts sanctioned after 1 January 1985 in All IndiaRadio and Doordarshan would be deemed to have been included in theservice and will be added to the strength shown therein. The High Courthas observed that on the date of the commencement of the Rules, thepay scales of the applicants were Rs. 3000-4500 and Rs. 2200-4000respectively. As a result of the deeming provision in Note 3, it was heldthat they would be appointed to corresponding posts and grades inservice. This finding is unexceptionable. It was not in dispute before theHigh Court that the posts of TV News Correspondent and TV AssistantNews Correspondent were regular sanctioned posts. Based on this, it AB
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Awas held that having due regard to Rule 6 read with Rule 2(c) and Note3 of Schedule I, the posts held by the Respondents shall be deemed tohave been included in the service. This interpretation of the High Courtis borne out by the Rules. Once they were declared to be governmentservants, it would be unfair and inequitable to deny to them all the benefits,including of pay scales and other conditions of service applicable to postsBin the equivalent pay scale.
10. While affirming the judgment of the Tribunal, we clarify that
(i) promotions which have already been effected and the existingseniority shall not be affected; C
(ii) in the case of employees who have retired, a notional pay fixationshall be carried out and retiral benefits, including pension, if any,shall be determined on that basis; and
(iii) individual cases for promotion would be considered againstvacancies available, keeping seniority in view.D
11. The appeals are accordingly disposed of in the above terms.Pending applications, if any, are disposed of. There shall be no order asto costs.
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Ankit Gyan
Appeals disposed of.
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