Rajendra Yadav vs Union Of India & Anr.
1999 Latest Caselaw 1233 Del

ORDER

A.K. Sikri, J.

1. Petitioner is a noted Hindi writer who was one of the 8 persons ap- pointed as Part-time member on the Prasar Bharati Board ('Board' for short) by the President of India vide order No. 15/11/97-PBC dated 23.11.97. This order which was passed in the name of the President in exercise of powers conferred by sub-section (1) read with sub Section 4 of Section 4 of Prasar Bharti (Broadcasting Corporation of India) Act, 1990 (hereinafter to be called as "the Act") stipulated that these members shall hold office for a period of six years w.e.f. the dates they assume charge. The petitioner is, however, served with communication dated November 22, 1999 informing him that as per sub-Section 3 of Section 6, 1/3rd of the Members have to retire every second year and since two years period was expiring on 22.11.99, petitioner's term concludes on 22.11.99. In fact a similar communication was addressed to another Member Prof. Romila Thapar. Accordingly, petition- er and Prof. Romila Thapar stood retired on 22.11.99. In this writ petition petitioner has challenged this order retiring him w.e.f. 22.11.99.

2. Mr. D.K. Thakur, counsel appearing for the petitioner has assailed the impugned order on various grounds. His first and foremost submission was that the impugned order was in violation of his terms of appointment con- tained in the order dated 23.11.97 as per which he was to hold office for a period of six years and, therefore, this period could not have been cur- tailed by the impugned order. This argument looks attractive in the first blush. However, when examined in little detail in the light of statutory provisions contained in the Act, 1990, the hollowness of the argument stands exposed. The appointment of the petitioner as part-time member was made under Section 4 of the Act. Section 6 of the Act makes provision for term of office conditions of service etc. of Chairman and other members and sub-Section 3 thereof stipulates that the term of office of part-time member shall be six years but 1/3rd of the such members shall retire on the expiration of every second year. Sub-section 5 of Section 6 thereafter empowers the President to make such provisions as it thinks fit for cur- tailing the term of office of some part-time members than appointed in order to that 1/3rd of the members holding office as such part-time members shall retire in every second year thereafter. At this stage, it would be appropriate to reproduce the language of sub-Section-3 and sub-Section 5 of Section 6 which read as under :

Section 6:

6. (1) xxxxxxxx

(2) xxxxxxx

(3) The term of office of part time Members shall be six years, but one-third of such members shall retire on the expiration of every second year :

Provided that every Part-time Member holding office as such, immediately before the commencement of the Prasar Bharati (Broad- casting Corporation of India) Amendment Ordinance, 1998, shall, notwithstanding anything contained in this sub-section as amended by the Prasar Bharati (Broadcasting Corporation of India) Amend- ment Second Ordinance, 1997, retire in accordance with the provisions of sub-section (5):

Provided further that no such Part-time member shall be entitled to any compensation for curtailment of the term of his office under sub-section (5).

(4) xxxxx

(5) As soon as may be after the establishment of the Corpora- tion, the President of India may, by order, make such provision as he thinks fit for curtailing the term of office of some of the Part-time Members then appointed in order that one-third of the Members holding office as such Part-time Members shall retire in every second year thereafter.

3. It is not necessary to mention various Ordinances which were promul- gated in order to amend the Act, 1990 as these ordinances lapsed. The purpose would be served by referring to Gazette Notification No. S.O. 210(E) dated 1.4.99 which was issued in exercise of powers under sub-Sec- tion 5 read with sub-Section 3 of Section 6 of the Act as well as Order No. S. O. 1160 (E) dated 22.11.99. In fact only these two documents were re- ferred to by the counsel while making submissions although writ Petition traces out the history of all Ordinances issued after the Act of 1990 was enacted. In para 2 of Notification dated 1.4.99 it is mentioned that term of office of 1/3rd of the part-time members of the Prasar Bharti Board shall expire on 22.11.2003, the second category of 1/3rd of the part-time member on 22.11.2001 and third category of 1/3rd of the part-time member on 22.11.99 respectively. In para-3, it is stipulated that for purpose of paragraph-2 names of part-time member shall be chosen by draw of lots in public. Thereafter S.O. No. 1160(E) dated 22.11.99 was issued as per which, in the opinion of the President, the curtailment of term of office of part- time member under sub-Section 5 of Section- 6 of the Act should be based on experience, expertise and background of the members and the contribution to be effective and harmonious working of the Board. This order is issued in supersession of earlier S.O. 210(E) dated 1.4.99 and the relevant portion thereof reads as under :

"Now, therefore, in exercise of the powers conferred by sub- section (3), read with sub-section (5) of Section 6 of the said Act and in supersession of the said order, the President after taking into consideration, -

(a) the experience, expertise and background of the members;

(b) their contribution to the effective and harmonious working of the Board.

(c) relative indispensability of Part-time Members at the present stage and the necessity of taking the benefit of their services by their retention for a further period of time; and

(d) all other relevant circumstances.

Here by makes the following order for curtailing the term of office of the above part-time members then appointed in order that one-third of the members holding office as such part-time members shall retire in every second year thereafter in the manner specified in the Table below :-

Sl. Name of the Part-time Dates on which the Part-time No. Members Members specified in column shall retire (1) (2) (3) 1. Shri B.G. Verghese 22.11.2003 2. Prof. U.R. Rao 22.11.2001 3. Dr. Abid Hussain 22.11.2001 4. Prof. Romila Thapar 22.11.1999 5. Shri Rajendra Yadav 22.11.1999

4. From the sequence of events stated above. It is clear that although the petitioner was appointed for a period of six years vide order dated 23.11.97, the term of the petitioner as part-time member was to be regulat- ed by the provisions of Section- 6 of the Act, 1990. It is very categorical- ly provided in sub-Section 3 and sub-Section- 6 that although the term of part-time member shall be six years but 1/3rd of the such members have to retire on expiration of every second year. Therefore, 1/3rd of the members are to retire in accordance with this provision on the expiration of second year and another 1/3rd have to retire on the expiration of four years and remaining 1/3rd on the expiration of six years term. In view thereof, the petitioner cannot say that he has right to continue as part-time member for full term of six years. In fact if this argument of the petitioner is accepted then all the members who are appointed as part-time members vide order dated 23.11.97 can claim that they have a right to hold office for a period of six years and if this is allowed, sub-Section 3 of Section 6 can never be operated as the members appointed vide order dated 23.11.97 would held office for a period of six years and all will retire on same date after they complete the tenure of six years and the consequence of that would be that again new members would be appointed for another term of six years who would again retire on the expiry of six years and this process would go on for ever. This would make sub-Section 3 of Section 6 nugatory to the extent it stipulates that 1/3rd of members shall retire on the expiration of every second year. This fact may also be not lose sight of that this is the situation where the petitioner is made to retire after expiration of two years, is going to be only when the Board is constituted for the first time. Two of the members who were appointed on 23.11.97 would have tenure of two years and other two members will have tenure of four years whose names are also mentioned in S.O. dated 22.11.99. The vacancies which are going to be supplied on the retirement of these members by new appointees, such new appointees would hold office for a period of six years and in this way mechanism of appointment of part-time members for a period of six years would become fully workable. On the other hand, if the conten- tion of the petitioner is accepted, the mechanism provided under sub-Sec- tion 3 of Section 5 would completely fail. The appointment of the petition- er as part-time has to be regulated as per the provision of Section- 6 of the Act which is a statutory provision and the order dated 23.11.97 has to be read in consonance with Section- 6. Reading thus, the only interpretation which is possible is the one given above. In fact there is no other choice or alternative. The fact that there is no other choice available, lends support to my aforesaid conclusion arrived at. Therefore, this contention of the petitioner stands rejected.

5. The next submission made by the counsel for the petitioner is that in para-3 of S.O. dated 1.4.99 the method of retiring the persons was by draw of lots in public which was better method as it removed any arbitrariness in choosing the persons who are to retire. Substitution of this method by S.O. dated 22.11.99, element of bias and arbitrariness is introduced. This contention also is to be noted to be rejected. It was argued by Mr. Soli J Sorabji, learned Attorney General of India that the system which is now introduced vied S.O. dated 22.11.99 is much better inasmuch as it is based on the relevant considerations. Argument of learned Attorney General has force.

6. Instead of leaving the matter to fate by deciding on the basis of draw of lots, the notification dated 22.11.99 now introduces objective, criteria by taking into consideration experience, expertise and background of the members and the contribution to the effective and harmonious working of the Board subjective satisfaction of the Government is based on objectivity. There are certain parameters laid down now which would guide the exercise of power. All these are relevant considerations for the purpose of deciding as to in which order members should retire. Moreover, counsel for the petitioner did not argue anything challenging the validity of S.O. dated 22.11.99 which is even otherwise valid. This S.O. is issued by the Presi- dent in exercise of powers conferred by sub-Section 3 read with sub-Section 5 of Section 6 of the Act. The exercise undertaken as per sub-Section 3 and sub-Section 5 of Section 6 on the basis of the factors mentioned in this order cannot be faulted with. The order further stipulates that this exercise has in fact been carried out on the basis of which dates on which different part-time members are to retire are mentioned in the said order.

7. There is yet another aspect of the matter which cannot be lost sight of. Sub-Section 5 of Section- 6 authorizes President of India to make such provision as it thinks fit for curtailing the term of office of some part- time members then appointed in order that 1/3rd of the members holding office as such part-time members shall retire in every second year thereafter. Therefore, it is to be left to the wisdom of the competent authority to make such provision and it would be a policy decision of the Government. This Court would not interfere with such decisions of the Government and substitute its own wisdom for that of the executive unless the executive transgress their constitutional limits or statutory powers and functions. It cannot be said that the criteria laid down in S.O. dated 22.11.99 either suffers from any arbitrariness or is discriminatory in nature. [Ref. Union of India and Others Vs. S.L. Dutta and Another, , State of Andhra Pradesh and Another Vs. V. Sadanandam and Others etc. etc. , G.B. Mahajan and Others Vs. The Jalgaon Municipal Council and Others, . All India Ex-Emergency Commissioned Officers and Short Commissioned Officers Welfare Association and Another Vs. Union of India and Another, 1995 Supp (1) SCC 78).

8. The invariable conclusion which follows is that no fault can be found in the Government's action in undertaking the exercise in terms of S.O. dated 22.11.99 to determine the respective dates on which the part-time members had to retire.

9. At this stage, Mr. Thakur tried to aid of the principle known is service jurisprudence. He tried to emphasise that by introducing the crite- ria of experience, expertise etc. and evaluating the cases of the persons appointed as part-time member appointed vide order dated 23.11.97 and retiring petitioner in the first instance amounted to his 'removal' which was stigmatic in nature as the effect of such retirement of the petitioner was to give an impression that petitioner was not competent to hold the office of part-time member for more than two years and was out stated because of his incompetency. I do not agree with this submission of the petitioner. When 8 members are appointed vide order dated 23.9.97 and 1/3rd thereof have to retire every two years, exercise undertaken, and it was inevitable exercise, to choose two members who have to retire after the expiry of initial period of two years and other two who would be retiring on the expiration of next two years i.e. after four years. All the members appointed on 23.9.97 are well-known in their fields. The petitioner is also a noted Hindi Writer and his retirement after two years does not attract any stigma and blemish. As the exercise in terms of sub-section 3 read with sub-section 5 of Section 6 of the Act was to be necessarily carried out, if the person who is retained for longer tenure in preference to the petition- er on the basis of assessment by the Government thinking other members to be a person who can be better utilised in the Board to achieve its objectives does not mean that it attaches any stigma to the petitioner. The assessment had to be left to the wisdom of the government and if such an argument is to be accepted then any part-time member retired in this manner would come and assail the order on the ground that it is stigmatic and the Government would not be in a position to retire any person in accordance with sub-Section-3 and sub-Section 6 . It was also clarified by Attorney General at the bar that neither the order was stigmatic nor there was any intention, while sending impugned communication dated 22.11.99 to the petitioner, to question his competency. The counsel for the petitioner failed to point out and did not even argue that there was any legal infirmity in the exercise done by the Government while passing order dated 22.11.1997.

10. At this stage, half hearted attempt was made by the counsel for the petitioner in questioning the very system of appointment and retirement of part-time members. It was contended by Mr. Thakur that air waives or frequencies are public property as held by the Apex Court in the cases of Secretary, Ministry of Information and Broadcasting Vs. Cricket Association of Bengal, . Freedom of speech and expression guaranteed to the citizens of the country includes the right to propagate one's views through print media or through any other communication channel, e.g. the radio and the television as held in Life Insurance Corporation Vs. Prof. Manubhai D. Shah, and Odyssey Communications (P) Ltd. Vs. Lokvidayan Sangathana . Therefore, it was the submission of the learned counsel, that the matters of appointment and removal of the members of the Board should not be left to the Government and there should be an independent body for such purposes.

11. I may state that such an issue cannot be decided in the present case in which validity of the communication dated 22.11.99 whereby petitioner is removed from the Board is questioned. Again it would be a policy decision of the Government as to what should be the organisational structure or legal frame-work of the Board and what methodology is to be adopted for appointment and removal and retirement of such members. However, I may hasten to add that the petitioner should not forget that so far as he is concerned he got his appointment also from the Government under this very system.

12. No other point was canvassed. The writ petition is, accordingly, dismissed. There shall be, however, no orders as to costs.