Delhi High Court
News Line And Others vs Union Of India And Others on 2 April, 2009
Author: G. S. Sistani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C)No.4240/20007
Date of Pronouncement 2nd April, 2009
# News Line and Others .... Petitioners
Through : Mr. Aseem Mehrotra, Advocate for petitioner
Versus
Union of India and Others .... Respondents
Through : Mr.Amarendra Sharan, ASG with Mr.Rajeev
Sharma, Advocate for Prasar Bharti.
Mr. P.P. Malhotra, ASG, Mr. Rajeev Mehra,
Advocate for respondent/UOI.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
1. Whether reporters of local papers may be allowed to see
the Judgment ? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported in the Digest? Yes
G.S. SISTANI, J.
1. The petitioners were admittedly successful in getting
empanelled as producers for commissioning of programmes to
be telecast on DD-Kashir Channel. The process of
empanelment was effected by way of selection on the basis of
certain guidelines formulated by Prasar Bharati in consultation
with the Union Ministry of Information and Broadcasting, the
respondents herein. Admittedly, the decided course of action
pursuant to the empanelment was to enforce the inter se
rights and obligations of the petitioners and Prasar Bharati
through a contract. However, even before the contract in
question could get executed, certain discrepancies were
alleged in the process of empanelment thereby leading to its
WP(C)No.4240-2007 Page 1 of 27
cancellation. Aggrieved, the petitioners have filed the present
petition under article 226 of the Constitution of India, seeking
quashing of the order cancelling the empanelment of the
petitioners. Inter alia, the petitioners have also sought a writ
mandamus seeking specific performance of contract decided
to be executed into between the parties.
2. Factual matrix, as culled out from the pleadings of the parties,
is outlined as under:
2.1 The respondents conceived the launching of DD
Kashir Channel in Jammu and Kashmir. The
commissioning of programmes and serials to be
telecast on the DD Kashir Channel for the year
2006 is stated to have been funded by the
Government of India vide a special package worth
Rs. 100 crore announced by the PMO to salvage
the situation in the militancy hit Jammu and
Kashmir valley which lost its audience to Pakistan
T.V.
2.2 With a view to achieve the said purpose,
applications were invited from prospective
producers with the last date 22.7.2005. About
1100 persons applied in response to the said
advertisement. Simultaneously, the Prasar Bharati,
in consultation with the Ministry of Information and
Broadcasting, suggested guidelines for
empanelment of producers for Doordarshan and
the same were discussed with the producers in
Srinagar and Delhi. A few amendments to these
guidelines were suggested by the producers and
the suggestions were accepted by the authorities
and incorporated in the final guidelines that were
issued. The guidelines provided for talent hunt
throughout the country, especially J. & K. on
WP(C)No.4240-2007 Page 2 of 27
competition basis. Thus, in order to pave way for
audience friendly programmes, alongside the
process of empanelment, a theme contest, open
for J. and K. people only, was conducted by
Doordarshan. The people were asked to send their
entries, scripts, ideas for the programmes to be
telecast on Doordarshan. Several entries were
received by Doordarshan under this contest.
2.3 The process of empanelment was completed in
October 2005. Producers including the petitioners
were issued Letters of Intent in different
categories.
2.4 Complaints regarding various irregularities were
received by the respondents, and on the basis
thereof, a preliminary enquiry was also registered
by the CBI bearing no. PE-DAI-2006-A-001. The
respondent no. 1 also constituted a Fact Finding
Committee through Mr. Rajat Bhargava, Additioal
Director General (Finance), All India Radio.
2.5 The Fact Finding Authority found various
irregularities in selection, and in view thereof, the
Prasar Bharati was advised by the Ministry of
Information and Broadcasting to quash the
empanelment and frame de novo guidelines for
selection.
2.6 The petitioners, in the meanwhile, approached the
High Court, which vide order dated 28.3.2007,
directed the Prasar Bharti to take a final decision
in the matter within a period of eight weeks.
2.7 The respondents vide order dated 22.5.2007 came
to the conclusion that the possibility of bias could
not be ruled out, and therefore, scrapped the
earlier selection process and directed for inviting
fresh proposals in terms of the new policy
WP(C)No.4240-2007 Page 3 of 27
inasmuch the earlier policy was found to be
flawed.
2.8 The panel of the petitioners expired on 7.4.2008.
2.9 Aggrieved, the petitioners have filed the present
petition, seeking, inter alia, quashing of the
cancellation order dated 22.5.2007 and specific
performance of the contract that was to be
concluded between the parties.
3. Mr. Aseem Mehrotra, learned counsel for the petitioners, has
stoutly argued that the impugned cancellation order is in
violation of the principles of natural justice inasmuch as the
petitioners have not been supplied the alleged adverse
material, that is, the Report of Dr. Rajat Bharagava along with
the documents which is the sole basis of the arguments under
challenge. It is submitted that judicial dicta in State Bank of
India v. D.C. Aggarwal1, M.J. Sivani & Others v. State of
Karnataka and Others2, M.A. Jackson v. Collector of
Customs3, Benny & Others v. Registrar of Co-operative
Societies4, and Inderpreet Singh Kahlon & Others v.
State of Punjab and Others5 is settled if the adverse
material is not supplied to the affected party, the entire
proceedings and the order passed thereto would be non est
and void. In the same breadth, learned counsel for the
petitioners, whilst relying upon the decisions in K.I. Shephard
1
(1993) Suppl. 1 SCC 13
2
(1995) 6 SCC 289
3
(1998) 1 SCC 198
4
(1998)5 SCC 269
5
(2006) 11 SCC 356
WP(C)No.4240-2007 Page 4 of 27
and Others v. Union of India and Others6 and Neelima
Mishra v. Harinder Kaur Pintal & Others7, has submitted
that even if the impugned order is considered as an
administrative order, then also the principles of natural justice
have to be followed.
4. It is submitted by learned counsel for the petitioners that the
impugned order of cancellation lies in the teeth of the order of
this Court dated 28.3.2007 whereby the respondents were
categorically directed to allow the petitioners to make
representations before the Fact Finding Authority. Qua the
post-decisional hearing afforded to the petitioners, learned
counsel has relied upon K.I. Shephard and Others v. Union
of India and Others8 and Shekhar Ghosh v. Union of
India and Others9 to bring home the point that post-
decisional hearing is no hearing in the eye of law as Prasar
Bharati was acting under the instruction of the Ministry of
Information and Broadcasting and the result of the hearing is a
foregone conclusion which vitiates the order under challenge.
5. It is further contended that the impugned cancellation order
has been passed at the instance of the Ministry of Information
and Broadcasting as is apparent from the letter dated
23.10.2006, and thus, there has been no application of mind
by the Prasar Bharati.
6
(1987) 4 SCC 431
7
(1990) 2 SCC 746
8
supra n. 6
9
(2007) 1 SCC 331
WP(C)No.4240-2007 Page 5 of 27
6. Relying on the decisions in Onkar Lal Bajaj v. Union of
India10 and Inderpreet Singh Kahlon & Others v. State of
Punjab and Others11, it is contended by learned counsel that
the action of Prasar Bharati in canceling the selection process
without adverting to the facts of any individual case is a case
of non-application of mind and arbitrariness which is not
permissible in law and can be corrected by a writ of certiorari
and mandamus.
7. It is contended by learned counsel for the petitioners that the
finding of bias/likelihood of bias, as recorded in the impugned
cancellation order, is without any factual basis inasmuch as
there is no material for coming to such a conclusion. The only
assertion is that Dr. S.S. Toshkhani was a writer for a producer
who was in Category "C" and he was an expert for category
"B" on 3.2.2006. It is established from facts that Dr. S.S.
Toshkhani has no remote connection with any of the selected
producers. On this point, reliance has been placed on the
decisions in Jaswant Singh Nerwal v. State of Punjab &
Others12 and Tata Cellular v. Union of India & Others13.
8. Learned counsel for the petitioners, whilst seeking the relief of
specific performance of contract, has relied upon the decisions
in Gujarat State Financial Corporation v. Lotus Hotels
Pvt. Limited14
10
(2003) 2 SCC 673
11
supra n. 5.
12
(1991) Suppl. 1 SCC 13
13
(1994) 6 SCC 651
14
(1983) 3 SCC 379
WP(C)No.4240-2007 Page 6 of 27
9. Per contra, Mr. A. Sharan, learned Additional Solicitor General
appearing on behalf of the respondents no. 2 to 4, has resisted
with vehemence the submissions made by the petitioners. It is
contended that the earlier selection process, which was
quashed, because of being vitiated due to irregularities
including bias, was under a policy which has been changed
and replaced by a new policy. Under this new policy, the
parameters, method, entitlement are different from the earlier
policy, therefore, at this stage, no direction can be issued to
give effect to a policy which is non-existent. This argument, it
is submitted by the learned ASG, is contextualized by the trite
proposition that it is well within the competence of public
authorities to change or formulate a new policy. It is further
submitted that the doctrine of legitimate expectation and
equitable estoppel also do not help the petitioner inasmuch as
the petitioners have not been denied the opportunity to
participate in the selection procedure under the new policy
and have also been exempted from payment of processing
fees and have also been allowed to re-submit the previous
proposal or to submit new proposal.
10. It is next contended by learned ASG that the contract
between the parties was, indisputedly, never concluded and
thus, in the given circumstance, it is submitted by Mr. A.
Sharan that mere selection of the petitioners would not clothe
them with any right for grant of contract or execution of
agreement, and more so, when no formal agreement was
entered into between the parties and certain formalities which
WP(C)No.4240-2007 Page 7 of 27
were required to be carried out were also not performed by
the parties. On this line of argument, reliance has been placed
on the decisions in Shankarsan Das v. Union of India15,
Mrs. Asha Kaul and Another v. State of Jammu and
Kashmir and Others16, All India S.C. and S.T. Employees
Association and Another, etc., v. A. Arthur Jeen and
Others, etc.17, and Food Corporation of India and Others
v. Bhanu Lodh and Others18.
11. Taking his point further, Mr. Sharan has further
submitted that the petitioners, under the guise of the writ of
mandamus, cannot seek the relief of specific performance of
contract. Reliance, in respect of this submission, has been
placed on the decisions of the Apex Court in Binny Limited
and Another v. V. Sadasivan and Others19, Noble
Resources Ltd. v. State of Orissa and Another20 and
Ramchandra Murarilal Bhattad and Others v. State of
Maharashtra and Others21.
12. It is further adduced that the original empanelment was
for a period of two years w.e.f. 7.4.2006 to 7.4.2008. It is thus
submitted that no mandamus can be invoked in respect of an
empanelment process, the term period whereof has expired.
Mr. Sharan has relied upon State of U.P. and Others v.
15
(1991) 3 SCC 47
16
(1993) 2 SCC 573
17
(2001) 6 SCC 380
18
(2005) 3 SCC 618
19
(2005) 6 SCC 657
20
(2006) 10 SCC 236
21
(2007) 2 SCC 588
WP(C)No.4240-2007 Page 8 of 27
Harish Chandra and Others22, Syndicate Bank and
Others v. Shankar Paul and Others23, and M.P. Electricity
Board, through the Chief Engineer, MPEB v. Virendra
Kumar Sharma24 to canvass the trite proposition that no
mandamus can be issued for making selection from an expired
panel or for awarding work to a person on a panel which has
expired.
13. Drawing the attention of this Court to the findings of the
Fact Finding Authority, Mr. Sharan has further submitted that
there was reasonable likelihood of bias in the original process
of empanelment inasmuch certain applicants were members
of creative teams in certain projects and were interested in
empanelment of those parties. Relying on the case of A.K.
Kraipak and Others v. Union of India and Others25, it is
submitted that quashing of an entire selection process cannot
be faulted with when such selection process is vitiated with
bias.
14. It has been strongly urged before this Court that the
relief for specific performance sought in the present petition
has already been declined in the previous petition filed in this
Court. This relief, it is stated, was not granted to the petitioner
despite the prayer and arguments to that effect on behalf of
the petitioners.
22
(1996) 9 SCC 309
23
(1997) 6 SCC 584
24
(2002) 2 SCC 650
25
(1969) 2 SCC 262
WP(C)No.4240-2007 Page 9 of 27
15. It is also adduced by Mr. Sharan, that the impugned
cancellation order was premised on the Report of the Fact
Finding Authority, which, inter alia, found various irregularities
in the selection, viz.
(i) Uniform Procedure not followed by the Evaluation
Committee;
(ii) The selection was vitiated by bias as certain experts of
the the Evaluation Committee for some proposals
were themselves members of creative team in other
proposals
(iii) Persons who were not having requisite eligibility were
considered and selected;
(iv) Some persons were given extra time to submit details,
etc.
16. Refuting all allegations of the petitioners not having
been afforded with an opportunity of hearing, it is argued by
Mr. A. Sharan that the petitioners were duly heard before
passing of the impugned order, and therefore, there was
substantial compliance with the principles of natural justice as
laid down in the leading authority in Union of India and
Another v. Tulsiram Patel and Others26. Mr. Sharan has
further relied upon the cases pertaining to mass cheating, viz.
The Bihar School Examination Board v. Subhas Chandra
Sinha and Others27 and Hira Nath Mishra and Others v.
The Principal, Rajendra Medical College, Ranchi and
Another28, wherein no individual right of hearing was granted.
26
(1985) 3 SCC 398
27
(1970) 1 SCC 648
28
(1973) 1 SCC 805
WP(C)No.4240-2007 Page 10 of 27
17. Relying on the decisions in State Bank of India and
Another v. Somvir Singh29 and All India ITDC Workers
Union and Others v. ITDC and Others30, it is contended by
Mr. Sharan that the jurisdiction of this Court, whilst exercising
its powers under Article 226 of the Constitution of India, is
limited to examining the process of decision-making and does
not extend to examining the merit of the decision. It is
submitted that once it is found by the Court that there was no
illegality or impropriety in the decision-making process, the
Court cannot sit in appeal over the decision of the
administrative authority.
18. It is further contended by Mr. Sharan that the reliance of
the petitioners on the case of Omkar Lal Bajaj v. Union of
India31 is misconceived and the ratio in the said judgment
cannot be applied in the present case inasmuch as in the said
case there were several committees spread all over the
country which made selection for allotment of petrol pumps,
gas agencies, etc., whereas in the present case, there was
only one Selection Committee comprising the persons
interested in the subject-matter itself. It is contended that the
present case is covered more in fact and ratio by the case in
A.K. Kriapak v. Union of India32, and therefore, quashing of
the entire selection cannot be faulted with. Moreover, in
29
(2007) 4 SCC 778
30
(2006) 10 SCC 66
31
(2003) 2 SCC 673
32
AIR 1970 SC 150
WP(C)No.4240-2007 Page 11 of 27
Omkar Lal Bajaj v. Union of India33, there was no change in
policy whereas in the present case, there is a change in the
policy, and thus, the petitioners cannot claim that they should
be adjudged in accordance with the policy which is non-
existent. Furthermore, in the aforementioned case, the validity
of a panel did not expire whereas in the present case, the
panel has expired on 7.4.2008, and therefore, no mandamus
can be issued to select petitioners from expired panel.
19. Learned counsel for the petitioners has countered the
submissions of respondents no. 2 to 4 by filing a rejoinder. It is
submitted that despite the fact that letters of sanction were
awarded, the execution of the agreement was kept in
abeyance by the Prasar Bharati at the instance of the Ministry
of Information and Broadcasting, which fact emerged from the
information provided by the Prasar Bharati to the producers
under the Right to Information Act, 2005. It is the case of the
petitioners that though the impugned cancellation order is
premised on the Fact Finding Report, the respondents in their
counter-affidavit have admitted that the petitioners were
never associated in the enquiry conducted by Dr. Rajat
Bharagava since the same was an internal administrative fact
finding enquiry. It is thus the case of the petitioners that the
decision reached by the Prasar Bharati is in violation of the
principles of natural justice inasmuch as the decision that has
been taken is based on an enquiry report in which the
petitioners were admittedly never associated and a copy of
33
(2003) 2 SCC 673
WP(C)No.4240-2007 Page 12 of 27
the report was also never supplied to the petitioners till the
filing of the counter-affidavit. Learned counsel, whilst drawing
the attention of this Court to the preface of the enquiry report,
has submitted that though the preface shows that Dr. Rajat
Bhargava associated the complainants, that is, representative
of Independent Television Producers Welfare Movement and
Kashmir Producers Association and officials of the Prasar
Bharati during the course of whereas the producers were not
associated with the enquiry. It is argued that once the alleged
complainants and officials of Prasar Bharati were given
opportunity of hearing before the enquiry officer then the
successful producers ought to also have been given an
opportunity of hearing. It is submitted that the entire enquiry
is vitiated by violation of the principles of natural justice and
the report ought to be rejected on this ground alone
20. It is further submitted that the Fact Finding Report was
never supplied to the petitioners and was initially withheld on
the ground that it would impede the process of investigation
and thereaafter, the copy of the enquiry report dated June
2006 was placed on record in the month of August, 2007. It is
thus the case of the petitioners that the Report in question
was never supplied to the petitioners for more than one year
though the Report is taken to be the factor for canceling the
selection process. It is also submitted that the report
submitted with the counter-affidavit is incomplete inasmuch as
all annexures to the report are missing. It is submitted that a
request was made to the Ministry of Information and
WP(C)No.4240-2007 Page 13 of 27
Broadcasting, Prasar Bharati and Doordarshan under the Right
to Information Act, 2005 for supply of Annexures to the report
of Dr. Rajat Bhargava, however, the authorities are shifting the
onus on each other.
21. It is further submitted that the impugned cancellation
order does not accord with the findings of the Report
inasmuch as:
(i) In the entire Report, there is no finding that any of the
petitioners had committed any irregularity much less
illegality.
(ii) The Report does not discuss as to which guidelines
were violated.
(iii) There is no whisper in the entire report as to which
Official of the Prasar Bharati or an expert had
committed the alleged irregularity and what action
has been taken in that respect.
(iv) The enquiry was ordered only with an objective to
favour the producers who were not issued letters of
sanction.
(v) The Report of Dr. Rajat Bhargava is ex facie illegal
inasmuch as the selection process was executed by
the officials of Prasar Bharati and the selection of the
petitioners was purely on merit as is evident from the
information provided under the Right to Information
Act, 2005.
WP(C)No.4240-2007 Page 14 of 27
(vi) There was no occasion to constitute a fact finding
authority inasmuch as the selection of the petitioners
was done purely on merit.
(vii) The conclusions in the Report of Dr. Rajat Bhragava
are based on conjectures and surmises and there is
no material to come to a conclusion for cancellation
of the entire selection process.
22. It is further argued by learned counsel for the petitioners
that mere violation of the guidelines would ipso facto not
justify cancellation of the empanelment when such guidelines
were formulated by the Prasar Bharati in consultation with the
I&B Ministry.
23. It is the case of the petitioners that once the letters of
sanction have been issued in favour of the petitioners, a right
exists in their favour for execution of final agreements which
admittedly was stalled at the instance of the Ministry.
24. As regards the adversarial findings in the Fact Finding
Report, it is submitted that these findings do not relate to the
petitioner and the same is clear from the information provided
under the Right to Information Act, 2005.
25. Qua the letter dated 23.10.2006, it is submitted that the
said letter of the I & B Ministry, it is submitted that the said
letter is only an internal D.O. and not the decision of the
Ministry, and further, that in the reply filed by the Ministry
there is no reference to the letter dated 23.10.2006.
26. I have heard the parties at length and given my
thoughtful consideration to the matter.
WP(C)No.4240-2007 Page 15 of 27
27. The petitioners appear to have staked their claim to
restoration of the empanelment on the pre-supposition that
there was a valid and subsisting contract between the parties.
This, in my considered view, is a rather circular argument
inasmuch as no inchoate or subsisting contarct was ever in
existence between the parties. Mere selection of the
petitioners in the panel of producers did not vest the
petitioners with any substantive right to seek enforcement of
contract, more so when no such contract ever took place
between the parties. The petitioners‟ plea for a writ of
mandamus is, thus, without merit and deserves to be rejected
outrightly.
28. It is, however, the second leg of the petitioners‟ case
challenging the manner in which the empanelment came to be
scrapped that merits attention of this Court. The primary
assault herein is launched against the impugned order dated
22.5.2007, reproduced as under:
PRASAR BHARATI
(BROADCSTING CORPORATION OF INDIA)
DIRECTORATE GENERAL: DOORDARSHAN
DOORDARSAN BHAVAN, COPERNICUS MARG
NEW DELHI - 110001
F. No. 11/11/2007- KC
Date: 22/05/2007
ORDER
In compliance of the Order dated 28/7/2007
passed by the Hon‟ble High Court of Delhi in WP(C)
No. 32/2007, WP(C) 24/2007, 25/2007, 26/2007,
30/2007, 31/2007, 32/2007, 33/2007, 34/2007,
36/2007, 37/2007, 39/2007, 40/2007, 41/2007,
42/2007 and 43/2007, the matter regarding the
commissioning of programmes has been
considered by the Competent Authority. Pursuant
to the said Order, representations have received
from 28 persons which have been also duly
considered.
After going through the records and relevant
facts of the Competent Authority finds the
applications were invited from the eligible
Companies and Firms for forming a panel of
Producers for production of television programme
for the Kashir Channel. About 1300 applications
were received and a selection process in terms of
guidelines issued n June, 2005, was initiated and
assignment letters were issued to 36 short-listed
producers.
However, before further steps could be
taken in the matter, complainants regarding
serious irregularities in the selection process were
received by the Ministry of Information and
Broadcasting, Government of India. In the light of
the complaints, the Government of India ordered
an inquiry into the selection process. The enquiry
was conducted by Dr. Rajat Bhargava, Additional
Director General (Finance) of All Inia Radio. The
enquiry revealed a number of procedural and
other irregularities in the selection process and
systematic shortcomings. The enquiry revealed
that a uniform procedure was not followed by the
Evaluation Committee and through a biased
procedure certain producers/directors were
permitted to make changes in their creative teams
at the time of interview by the Committee. Other
producers were not aware that such permission
had been given in a few cases and, therefore,
could not take advantage of this facility to make
changes. The enquiry also revealed that certain
non-officials who were members of the Evaluation
Committee for some proposals, were themselves
members of the creative teams in respect of other
proposals, a fact sufficient by itself to create a
situation of conflict of interest and resultant bias. It
was also found that extra time for submission of
documents was granted t certain category of
applicants that too after interviews had been held.
Re-tabulation was done in respect of such
applicants. It was also reported that time and log
sheets were not maintained. Certain other findings
regarding irregularities were also recorded. In view
of the findings recorded during the enquiry and the
systematic shortcomings, which were noticed, the
earlier guidelines have been proposed to be
substituted by a fresh guideline, with the approval
of the Prasar Bharati Board.
The Competent Authority has considered the
conspectus of facts and is of the view that some of
the irregularities found during the enquiry are such
which go to the very root of the matter, for
instance, the circumstance, of certain members of
the Evaluation Committee themselves being
interested in certain proposals. The fact that such
persons did not actually evaluate proposals in
which they were interested is not a mitigating
circumstance. The very fact that members of the
Evaluation Committee were themselves interested
in certain proposals can justify the inference that
they could as well have given adverse ratings to
proposals, which potentially cold provide
competition to the proposals in which they were
interested. The possibility of reasonable likelihood
of bias cannot be ruled out. In view of such like
circumstances and the fact that the guidelines in
question have also been found to be flawed and
are being replaced it is felt that that the proper
course of action would be to scrap the earlier
selection process in whole and to invite fresh
proposals in terms of the new guidelines. However,
it will be fair and just that while inviting fresh
proposals, the earlier applicants/selectees are not
burdened with fresh processing fee and their
proposals be considered on the basis of the
processing fee already paid by them. Such persons
should also have the option of either relying upon
their earlier proposals/pilot or submitting a fresh
pilot.
The Competent Authority has also
considered the assertions made in the 28
representation received from the selected
producers. He finds that there is nothing in the
said representations, which would suggest that the
course of action outlined above is not appropriate
or uncalled for.
In view of the facts and circumstances stated
above the Competent Authority after careful
consideration orders that:
i. the earlier selection process is scrapped.
ii. The petitioners/ applicants who had applied
earlier would have the right to submit their
proposals in accordance with the fresh
guidelines issued. All such applicants would
also have the option of relying upon their
earlier proposal or submitting their fresh
proposal with pilot in terms of new guidelines.
However, they shall not be required to pay
fresh processing fee.
The Competent Authority further directs that a
copy of this order be sent to each of the 36
producers to whom assignment letters were
issued.
sd/-
(Ananya Banerjee)
Sr. Director of Programmes
For Director General
29. As is apparent from the aforesaid impugned order dated
22.5.2007, the findings and recommendations of the Fact
Finding Authority were the principle ground for the Prasar
Bharati to cancel the empanelment. Given that the findings
and recommendations of the Fact Finding Authority were not
binding in nature, the decision of the Prasar Bharati to scrap
the empanelment was clearly a manifestation of exercise of
administrative discretion. It is precisely this exercise of
administrative discretion by the Prasar Bharati which this
Court has to examine within the circumscribed limits of its
power of judicial review under Article 226 of the Constitution of
India.
30. It is noteworthy that there has been a significant change
of events pursuant to the filing of the present petition. In such
a case, any relief which this Court dispenses today must
necessarily accord with the circumstances that have unfolded
pursuant to the filing of the present petition. For one, the
guidelines on the basis whereof the empanelment was
instituted have been replaced by new guidelines. Secondly,
the duration for which the panel was constituted has expired.
The expiry of the panel during the pendency of the case,
though a fait accompli, has rendered all claims of the
petitioners virtually dead. The change in the policy has proved
to be the „ultimate climax‟ that has buried to death all claims
of the petitioners. It is noteworthy that although the
petitioners have not disputed the change in policy, they have
argued that the change of policy is impervious to the
impugned decision of cancellation. What the petitioners have
sought to argue is that this Court must decide the challenge
made to the cancellation notwithstanding the change in
cancellation.
31. Turning the clock back, the facts of this case indubitably
show that though the petitioners were successfully, the
process of empanelment was found to be extensively rigged
with procedural irregularities, which irregularities were further
found to be attributable to the flawed guidelines which now
stand replaced by new guidelines. Thus, the decision to scrap
the empanelment was more in the nature of a policy
imperative which was effected by Prasar Bharati in order to
give way to the new guidelines. While the scrapping of the
guidelines was largely actuated and sufficiently backed by the
findings of the Fact Finding Authority, it would not be incorrect
to state that the supercession of the new guidelines has ex
post facto vindicated the cancellation of the empanelment.
Moreover, there is nothing to suggest mala fides or
arbitrariness in the formulation of the new policy.
32. There is also nothing put forth by the petitioners to
suggest that the cancellation of the empanelment was brought
about by the respondents in utter disregard of the principles of
natural justice. The lone plea taken by the petitioners is that
that no individual hearing was afforded to the petitioners
during the inquiry thereby inviting the wrath of the principle of
audi alteram partem.
33. The plea taken by the petitioners qua non-compliance
with the principles of natural justice, I am afraid, carries no
weight. It is true that the audi alteram partem principle is a
very ancient one, deriving strength from a Biblical passage.
and the application of this rule to judicial proceedings is
beyond doubt. Where however it is extended to non-judicial
orders or to administrative orders the application of this
principle is subject to some limitations. These are set out in
great detail in S.A. de Smith's Judicial Review of Administrative
Actions, pp. 167 to 179. I need only to refer two of those
exceptions : Firstly, where the obligation to give notice and the
opportunity of being heard would obstruct the taking of
prompt action especially action of a preventive or remedial
nature and secondly where the power exercised is disciplinary.
34. It is to be borne in mind that where the primary
objective of any selection process is to fulfil the duty of
conducting the selection fairly and the harassment to which
the affected party may be put, namely, the necessity of sitting
again for a fresh selection, is incidental to the fulfilment of the
aforesaid primary purpose it will be unreasonable to stretch
the principle of audi alteram partem. Where allegations of the
practice of the unfair means on an extensive scale in a
particular selection are brought alleged and after proper
inquiry into the truth of those allegations is satisfied, it is
expected of the selecting authorities to act very promptly in
cancelling the selection and conducting the selection afresh. A
long drawn out process of holding an inquiry after giving
notice to every producer who was empanelled in the present
case likely to be affected by the order of cancellation and an
opportunity of being heard would not only cause inordinate
delay but would obstruct the fulfilment of the statutory duty of
the authority concerned. In this regard, the following passages
from S. A. de Smith, at p. 175, may be reproduced :
"That urgency may warrant disregard of the principle of
audi alteram partem rule in other situations is generally
conceded. There will be disagreement however about
the circumstances in which a deviation ought to be
permissible. In a recent Canadian case the need to
protect the public against fraudulent dealings in
securities was held to justify summary action."
35. I also take my cue, inter alia, from the judgment in the Bihar
School Examination Board v. Subhash Chandra Singh (1970) 1
SCC 648, wherein it the Apex Court categorically observed that
the rule of audi alteram partem was being stretched too far
and that some restriction should be made on the application of
the principle. The Bihar School Examination Board, which was
entrusted with the duty of conducting Secondary School
Examination, conducted the said examination, in March, 1969,
at various centres including Hanswadih centre in Sahabad
District. The results for other centres were published some
time in July, 1969, but the results from that centre were
withheld and subsequently it was announced that the
examinations of all subjects held there were cancelled
because of the unfair means practised on a large scale at that
centre. The examinees were therefore given the option of
appearing at the Secondary School Board Examination to be
held in September, 1969. This order was challenged in an
application under Article 226 of the Constitution before the
Patna High Court, on the main ground that before cancelling
the examinations the Board should have given the persons
affected by such cancellations an opportunity of being heard.
The High Court while observing that the very high percentage
of marks obtained by the candidates who appeared at the
centre gave rise to a suspicion that unfair means were
practised, nevertheless struck down the order of cancellation
on the sole ground that the examinees were not given an
opportunity to show cause and thereby the well-known
principle of natural justice viz.-- audi alteram partem--was not
observed. In coming to this conclusion, the High Court relied
on a previous judgment of the Supreme Court in Board of High
School and Intermediate Examination, U.P., Allahabad v.
Ganshyam Das Gupta2 and also on a decision of the Patna
High Court in Ajit Singh v. Ranchi University3 The Supreme
Court had no hesitation in reversing the order of the High
Court. The Court was satisfied from a scrutiny of the marks
obtained by the candidates at that centre, that unfair means
were practised on a very extensive scale. Their Lordships
observed that this was not a case of charging a particular
candidate with having adopted unfair means but that it was a
simple question as to whether where unfair means appear to
have been practised on an extensive scale in a centre the
Board would be justified in ordering the holding of a fresh
examination, without giving to every candidate affected by the
order an opportunity of being heard. To quote Their Lordships:
"If it is not a question of charging any one individually
with unfair means but to condemn the examination as
ineffective for the purpose it was held, must the Board
give an opportunity to all the candidates to represent
their cases? We think not. It was not necessary for the
Board to give an opportunity to the candidates if the
examinations as a whole were being cancelled. The
Board had not charged any one with unfair means so
that he could claim to defend himself. The examination
was vitiated by adoption of unfair means on a mass
scale. In these circumstances it would be wrong to insist
that the Board must hold a detailed inquiry into the
matter and examine each individual case to satisfy itself
which of the candidates had not adopted unfair means.
The examination as a whole had to go."
36. Having regard to the facts of the present case, there was
no valid and subsisting contract between the parties, mere
selection of the petitioners in the panel did not vests in the
petitioners any substantive right to seek enforcement of
contract. Having carefully perused the pleadings and
documents filed on record, I find no merit that the
empanelment has been scrapped by the Prasar Bharati
without due compliance with the principles of natural justice.
The impugned order dated 22.5.2007 is a clearly-worded and
well-reasoned order which, inter alia, states the following
three reasons that actuated cancellation, namely, (a) a
uniform procedure was not followed by the Evaluation
Committee, (b) bias in the selection procedure, (c) the
guidelines were inept and fraught with shortcomings. In
suchlike matters, it has been held that the Courts should not
interfere with the decision but only the decision-making
process. Taking into consideration that there were large
number of applicants for the process of empanelment, there
was no requirement of personal service of notice or hearing to
the petitioners. The Prasar Bharati in its wisdom and for the
reasons for which no ground of bias has been raised, a fresh
policy has been raised giving new guidelines to overcome
procedural irregularities and such other lacunae identified by
the Fact Finding Authority. Moreover, in the peculiar facts and
circumstances that have transpired pursuant to the filing of
the present, when the panel stands expired and the old
guidelines have been replaced by the new, I am afraid that
there is nothing which this Court can do to allay the case of
the petitioners. It must also be noted that the impugned order
dated 22.5.2007 clearly states that while inviting fresh
proposals, the earlier applicants/selectees would not be
burdened with fresh processing fee and their proposals would
be considered on the basis of the processing fee already paid
by them. It is further stated that such persons would also have
the option of either relying upon their earlier proposals/pilot or
submitting a fresh pilot. This, in my view, would ensure that no
undue hardship or prejudice is caused to the petitioners.
37. In view of the foregoing discussion and findings, the
petition is bereft of merits, and is accordingly rejected. All
interlocutory applications, having been rendered infructuous,
are disposed off.
G.S. SISTANI, J.
April 02, 2009
„lssn‟
