Amit Kumar Srivastava S/O Late ... vs Union Of India Thru Secy. ...
2017 Latest Caselaw 2240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 1344 of 2009
 

 
Petitioner :- Amit Kumar Srivastava S/o Late Shyam Lal Srivastava
 
Respondent :- Union of India through Secretary Ministry of Information and Broadcasting and others
 
Counsel for Petitioner :- Y.S. Lohit
 
Counsel for Respondent :- A.S.G., Arpit Kumar, I.H. Farooqui, Neerav Chitravanshi
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Sri Y.S. Lohit, learned counsel for petitioner, Sri Neerav Chitravanshi, learned counsel for respondents and perused the record.

2. This writ petition under Article 226 of Constitution of India has come up to assail judgment and order dated 20.01.2009 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "O.A.") No. 160 of 2006 dismissing petitioner's application and declining to grant any relief with regard to petitioner's prayer that a direction be issued to respondents to appoint petitioner on regular post of Announcer/Compere under quota meant for physically handicapped persons in view of Memorandums dated 10.07.1981 and 21.08.1981, issued by respondents authorities.

3. Brief facts giving rise to present writ petition, as borne out from record, may be stated as under.

4. All India Radio (hereinafter referred to as "A.I.R.") functions under Ministry of Information and Broadcasting, New Delhi and used to follow policy of engaging persons, belong to different areas of work and society, by assigning them anchoring work on contractual basis so as to provide fresh voices to listeners of broadcasting body. These persons were engaged according to need and time allocated to them for broadcasting of their programme. They were called Casual Comperes. The assignment is allowed after audition of voice test. For each and every assignment, a prescribed fee is paid to such a person and maximum period for assignment is 6 days in a month and 72 days in a year. By very nature of assignment their engagement is for a few hours in a day.

5. Petitioner was selected for such assignment of casual Compere/Announcer vide letter dated 28.03.1992. After working for some time, petitioner alongwith two other persons filed O.A. No. 110 of 1988 before Tribunal claiming regularization/absorption. An interim order was passed by Tribunal on 05.06.1988 which reads as under:-

"Heard on M.P. 679 of 1998, which is an application for interim relief by the applicant to direct the respondent to allow the applicants to continue their respective post.

Learned counsel for the respondents Sri A. Chaudhary stated at the Bar that the applicants are in the panel of Casual Compere and may be engaged only up to Six days in a month to that extent the respondents may engage the applicants as per availability of work.

In view of the above statements, M.P. Is decided accordingly and respondents are directed to engage the applicant as Casual Compere to the extent provided subject to availability of work.

List before D.B. on 30.07.1998 for admission and further hearing."

6. Subsequently, O.A. No. 110 of 1988 was finally decided vide judgment dated 06.02.2002. Relevant paragraphs 4, 5 and 6 thereof are reproduced as under:-

"4. During the course of arguments, the learned counsel for the respondents submitted that the applicants were being engaged with exceptions for comparing as per requirements. The learned counsel submitted that to make the programme for comparing purpose more attractive, interesting and meaningful, talents from outside as per the requirement of the programme are also engage.

5. The submission of the learned counsel for the applicant is that as the applicants have been working, for considerably long time, they are entitled for regularization/absorption. During the course of arguments the learned counsel for the applicant admitted that the cases of regularization of the applicants services has not yet been considered by the respondents, as the applicants have not made any representation earlier. Initially, it is for the respondents to consider the applicants' claim and to redress the grievances if it is so permissible under the rules. After the respondents have taken the decision and in case of any grievance it would be open for the applicant(s) to approach the Tribunal as per rules.

6. In the circumstances, the O.A. is decided with a direction to the applicant(s) to make a detailed representation enclosing copy of the relevant documents to establish their claim. The said representation be sent to the appropriate authority within a period of one month from the date of communication of this order. The appropriate authority shall after receipt of the said representation, consider the same within a period of 4 months and take a decision thereon as per the extant rules and regulations on the subject. The decision so taken shall be communicated to each of the applicants. It is provided that till the representation is decided, the respondents shall engage the applicant as comperer as and when required and as per the job requirement in the light of the order dated 05.06.98. The O.A. stands decided accordingly. Costs easy."

7. Petitioner made a representation dated 04.03.2002 pursuant to Tribunal's judgment dated 06.02.2002 claiming that he should be regularized irrespective of cut-off date. The representation was rejected vide order dated 19.07.2002 observing that petitioner's appointment was on casual basis and under terms and conditions which were duly accepted by petitioner; there was no policy/scheme of regularization or absorption of such casual Comperes/Announcers hence question of regularization does not arise.

8. Petitioner then filed O.A. No. 62 of 2003 which was disposed of vide order dated 13.10.2004 and the same reads as under:-

"The applicant who has been working as casual Announcer-cum-Compere at the All India Radio, Lucknow on assignment basis has instituted the instant O.A. for quashing the order dated 191.7.2002 (Annexure-1) and to issue a direction to the respondents to regularize/absorb his services after taking into account that he has been performing the duty for several years, right from the year 1992 with fully devotion and sincerity. Consequential benefits have also been claimed. The learned counsel for applicant relied upon the order passed in O.A. No. 541/1997 Manoj Kumar Pathak and 13 others Vs. Union of India and others before the Patna Bench of the Central Administrative Tribunal. The Tribunal in the said O.A. issued a direction to the respondents to formulate a scheme under the pattern of Scheme formulated in respect of casual Artist working in Song and Drama Division. Thereafter, the Union of India preferred a Writ Petition in the Patna High Court. The Writ Petition come to be dismissed vide order dated 04.02.2003. A copy of the judgment has been annexed to M.P. No. 856/2003. Subsequently, the Patna Bench of the Tribunal in O.A. No. 01/1998 Sunil Kumar Sinha and 14 others Vs. Union of India and others directed the respondents to engage the applicants on casual basis as and when the work is available. The scheme as per direction given by the Patna Bench of the Central Administrative Tribunal does not appears to have been formulated as yet. We have no reason to doubt that as and when a Scheme formulated as per direction given by Central Administrative Tribunal, Patna Bench, the applicants would be considered for regularization according to this Scheme. However, having regard to order passed by the Patna of this Tribunal in O.A. No. 1/1998 Sunil Kumar Sinha and 14 others Vs. Union of India and others decided on 07.07.2003, it is provided that the respondents shall continue to engage the applicants on casual basis as and when the work is available till the applicants are considered for regularization as per Scheme formulated pursuant to the direction given by Patna Bench of this Tribunal as referred to above. It is also made clear that as and when work is available the applicant shall be given preference in comparison to new entrants.

2. The O.A. is disposed of as above. No order as to costs."

9. Respondents considered the matter of framing of scheme in the light of judgment and order of Tribunal, Patna Bench which was referred to in judgment and order dated 13.10.2004 passed by Tribunal at Lucknow Bench. Thereafter, respondents followed Delhi High Court's judgment dated 13.02.2002 passed in Writ Petition No. 319 of 2001 wherein it was held that Tribunals cannot direct Government to frame a scheme of regularization and similar order passed by Principal Bench of Tribunal was set aside. Hence, following judgment of Delhi High Court, respondents declined to grant benefit of regularization to beneficiaries of judgment of Tribunal (Patna Bench). Thereafter, petitioner filed third O.A. No. 160 of 2006 stating that he is a physically handicapped person and should be considered for regularization under quota meant for physically handicapped persons.

10. While admitting O.A., Tribunal passed an interim order on 10.04.2006 directing respondents to decide petitioner's representation with regard to claim of regularization. It has been considered and rejected vide order dated 15.09.2005 (Annexure No. CA-13) observing that vide memorandum dated 10.03.1981 there was a scheme of regularization of Casual Artists engaged in A.I.R. till 31.03.1980 on the basis of number of days of their engagement between 1974-75 and 1979-80 which was extended upto 30.12.1981. Thereafter, said scheme was dropped and no such scheme thereafter was enforced. It also referred to a judgment of this Court in Writ Petition No. 2341 of 2000 (Kausal Kumar Mishra Vs. Union of India and others); decided on 15.09.2005 wherein a similar request of regularization was turned down. A copy of judgment dated 15.09.2005 of this Court is at page 109 of counter affidavit and operative part thereof reads as under:-

"We have perused the scheme issued by the Ministry of Information and Broadcasting dated 29.11.1991 on the basis of the judgment and direction issued by the Apex Court. A perusal of clause II clearly states that staff artists/artist under the 1982 scheme working in All India Radio and Doordarshan who were in service on 6th March, 1982 will be considered according to the aforesaid scheme for regularization or to be treated as staff artists/artist includes the Announcer on contract basis cannot be accepted as the subject of the scheme dated 09.11.1991 clearly states "staff considering the contention raised on behalf of the petitioner has considered and recorded a finding that the engagement of the applicant was not for a specific time and purposes. A finding to this effect has also been recorded by the Tribunal that it relates to the Artists, who were employed casually on contract basis or otherwise on or before 05.03.1982 and an option was given to such artists of All India Radio and Doordarshan either to opt the scheme or to opt out of the scheme. Those who were given the option according to the scheme were deemed to be government servants. Admittedly, the petitioner was engaged for Announcer first time on the agreement on 01.09.1983 as such, he is not covered by the scheme. Regarding the regularization, the Tribunal has recorded a finding to this effect that the petitioner had nowhere mentioned any rule, which entitled the petitioner to be regularized as government servant on the basis of his contractual casual engagement. A person can claim regularization if he has been appointed either on daily wages, ad hoc or temporary and he can be considered for regularization only if there is a vacancy, there is a sanction post and there is a financial approval. The petitioner nowhere established that engagement of the petitioner was in above three categories. Whether a person who has been engaged on contract basis can claim the regularization. From the perusal of the record, and scheme it is clear that the said scheme is framed only to accommodate the artists not for the Announcers who were engaged on contract basis for short time. The petitioner is not covered under the aforesaid scheme, therefore, the Tribunal has rightly rejected the claim of the petitioner.

We do not find any merit in the writ petition. The writ petition is devoid of merit and is hereby dismissed.

There shall be no order as to costs." (emphasis added)

11. Respondents also relied on Delhi High Court's judgment dated 13.02.2002 in Writ Petition No. 319 of 2001 and other connected matters, copy whereof has been placed on record at page 89 of counter affidavit.

12. Then, there is a third judgment of Rajasthan High Court (Jodhpur Bench) in Union of India Vs. Nasir Ali Zaidi (Writ Petition No. 3355 of 2000); decided on 17.03.2005 and relevant extract of judgment reads as under:-

"Suffice it to say that the Tribunal has totally misconceived the facts stated in the original application by treating them to be workmen. As their names suggest, their services were sought on casual basis as Staff Artists Announcers and not in regular line of employment. There was never any stipulation that they will be regularly appointed employee for announcer of the All India Radio as its whole time employee. That being the position, it is clearly a case of engaging the Artists service on the casual contract basis in the aforesaid formation. They cannot claim any right to regularization on the post inasmuch as no post as such exist on which they can be regularized.

We are informed by the learned counsel for the petitioner that subsequent to the decision in the present case, the Tribunal itself in its order dated 25.10.2004 passed in O.A. No. 176 of 2002, Ahtesham Ul Haque Vs. Union of India and others has taken a contrary view and the claim to regularization has been rejected.

In view of the aforesaid discussion, we find the contention of the learned counsel for the petitioner that the Tribunal had committed grave error in regularizing the applicant-petitioners before it has substance and the petition deserves to be allowed.

Apart from the aforesaid, the Tribunal has clearly exceeded its jurisdiction in issuing a general direction to regularization all candidates who are not even before it. This power of issuing general directions has not been conferred on the Tribunal.

Accordingly, the writ petition is allowed. The impugned order of the Tribunal dated 16.03.2000 is set aside.

There shall be no order as to costs." (emphasis added)

13. By means of a second supplementary counter affidavit, respondents have also placed on record that a Committee was constituted to consider feasibility of regularization of casual Announcers, etc. and said Committee submitted a report observing that the very idea of regularization of casual Announcers/Staff Artists is administratively impractical, financially non-viable and legally untenable, therefore, is not recommended.

14. Sri Y.S. Lohit, learned counsel for petitioner contended that petitioner has been working with respondents for the last more than two decades and, therefore, after such a long time, denial of regular engagement and consequential benefits is per se arbitrary and discriminatory. He also pointed out that some persons similarly situated, pursuant to Kerala High Court's judgment, have been regularized and, therefore, petitioner is also entitled for similar treatment. He drew our attention to an order dated 10.02.2010, filed as Annexure RA-2 to Rejoinder Affidavit, passed by respondents in respect of one P. Ramendra Kumar, Production Assistant who was given appointment in regular pay-scale pursuant to an order dated 05.08.2009 passed by Kerala High Court at Ernakulam. It is said that petitioner is similarly circumstanced and, therefore, is entitled for similar treatment. It is said that P. Ramendra Kumar was issued Call Letter by A.I.R., Trivandrum on 03.07.1985 for casual engagement for compering and preparation of programme. He was sent for training held on 10-11.02.1987 and thereafter, engaged as a Casual Daily Paid Production Assistant. Similarly, voice test of petitioner was conducted on 25.02.1992 pursuant to Call Letter dated 05.02.1992 issued to him by Farm Radio Officer, A.I.R., Lucknow and thereafter he was called for training on 03.03.1992 vide letter dated 27.02.1992 and thereafter, he was engaged from time to time for compering/announcement work. Some of the letters issued by respondents requiring petitioner to attend broadcasting programmes on different dates have also been placed on record alongwith Rejoinder Affidavit showing that from 17.04.1993 and on-wards, he was engaged at Rs. 150/- per day. Learned counsel for petitioner also stated that petitioner has obtained a Post Graduate Diploma in Audio Programme Production in the examination held in December, 2005 from Indira Gandhi National Open University.

15. However, despite repeated query, learned counsel for petitioner could not dispute that presently there is no rules, regulations or scheme in force which may provide for regularization of a person like petitioner.

16. On the contrary, respondents placed before us Rules applicable to Announcer, Grade IV, i.e., initial grade on the post of Announcer stating that it is a direct recruitment cadre and regular appointment is to be made after advertisement of vacancies and selection by a Selection Committee consisting of Recruiting Authority, Head of Station, two outside Assessors or Recruiting Authority, three outside Assessors and one Departmental representative. We are also apprised of orders dated 08.05.2015 and 05.02.2016 issued by Deputy Director (Admin) on behalf of Director General that engagement is on programme basis and for rest of days when a person like petitioner is not engaged, he is free to pursue any other profession, trade, etc. and there is no existing rules for regularization of casual Announcers, therefore, petitioner's request for regularization cannot be accepted. Memorandum dated 10.07.1981 is also placed before us to show that scheme was extended upto 30.12.1981. Since thereafter admittedly there is no such scheme for regularization of casual Artists. It was also pointed out that said policy was applicable to only those persons who were engaged between Financial Years 1974-75 and 1979-80.

17. The Facts not disputed are; (i) regular recruitment on the post of Announcer is governed by statutory Rules. It is a 100% direct recruitment cadre wherein selection is to be made by Selection Committee, constitution whereof is provided in Rules. Further, petitioner was engaged as a casual Compere/Announcer from time to time on contractual basis and that arrangement has not continued for beyond a few dates in a month. Nothing has been placed on record to show that petitioner was continuously engaged and not for a few days in a month; (ii) presently no rules, regulations or schemes superseding recruitment rules permitting regularization of persons engaged on casual basis from time to time has been framed and operating. It is in this backdrop, we have to consider "whether Tribunal has rightly declined to grant any relief to petitioner for regularization or not".

18. Learned counsel for petitioner contended that engagement of petitioner was not illegal but irregular, therefore, in view of para 53 of judgment in Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1, petitioner having worked for more than 20 years is entitled to be considered for regularization.

19. From record and pleadings, it is evident that engagement of petitioner on contractual basis as casual Compere/Announcer for a few days in a month and year was not by way of any exploitative policy followed by respondents but it was consistent to nature of work available with respondents and policy viable for its sustenance followed for that purpose. This policy has never been challenged by petitioner and has not been found arbitrary or exploitative or illegal, after being tested at the anvil of Article 14 of Constitution of India. In such circumstances, in absence of any scheme or provision providing for regular appointment of such persons, such a direction cannot be given by this Court as it amounts to directing an employer to do something which is illegal or contrary to existing rules. If a direction is issued for framing of policy, it will amount to legislation which is impermissible.

20. In State of Maharashtra and another Vs. R.S. Bhonde and others (2005) 6 SCC 751, a similar direction issued for creation of post was held impermissible by court as it is a pure Executive function and in the realm of legislation. Court said that creation and abolition of post and regularization are purely Executive functions and it was not for Court to arrogate power of Executive or Legislature by directing creation of post and absorption of worker or continue them in service or pay salary of regular employees. This has been quoted and relied in Hari Nandan Prasad and another Vs. Employer I/R to Management of FCI and another (2014) 7 SCC 190.

21. Referring to judgment in Brij Mohan Lal Vs. Union of India and others (2012) 6 SCC 502, in V. Venkata Prasad and others Vs. High Court of A.P. and others AIR 2016 SC 3159, Court quoted following observations "absorption in service is not a right. Regularisation also is not a statutory or a legal right enforceable by persons appointed under different Rules to different posts. Regularisation shall depend upon the facts and circumstances of a given case as well as relevant Rules applicable to such class of persons."

22. After considering Constitution Bench judgment in Secretary, State of Karnataka Vs. Uma Devi (supra) and subsequent authorities, recently in State of Jammu and Kashmir and others Vs District Bar Association, Bandipora, 2016 (12) SCALE 534, Court has observed that formulation of scheme of regularization cannot be accorded a status of an enforceable right and it would have to be left to the State and its instrumentalities to be considered whether circumstances warrant such a scheme being formulated or not. However, in absence of such a scheme, regularization cannot be ordered since regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following due process envisaged by Articles 14 and 16 of Constitution of India.

23. For the purpose of present writ petition, suffice it to mention that since there is no scheme having force of law entitling petitioner to claim regularization, therefore, Tribunal has rightly negated the said claim and we do not find any manifest error in the impugned judgment passed by Tribunal warranting interference under Article 226 of Constitution of India.

24. Therefore, this writ petition lacks merit and is, accordingly, dismissed.

25. Interim order, if any, stands vacated.

Order Date :- 12.7.2017

Shubham