Newsline & Ors. vs Union Of India & Ors.
2009 Latest Caselaw 2262 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 LPA No. 260/2009 & CM Nos. 7894-95/2009


        NEWSLINE & ORS.                               ..... Appellants
                     Through:         Mr. Aseem Mehrotra, Advocate.

                       versus

        UNION OF INDIA & ORS.                        ..... Respondents
                       Through:       Mr. Dalip Mehra and Mr. Rajiv
                                      Ranjan Mishra, Advocates for
                                      Respondent No. 1.
                                      Mr. Rajeev Sharma, Advocate for
                                      Respondent No. 2.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
                       ORDER

% 26.05.2009

1. Present appeal arises out of the judgment of the learned single

Judge dated 2nd April, 2009.

2. The appellants (original petitioners in the writ petition) were

successful in getting empanelled as producers for commissioning of

programmes to be telecast on DD-Kashir Channel. The process of

empanelment was affected by way of selection on the basis of certain

guidelines formulated by Prasar Bharati in consultation with the

Ministry of Information and Broadcasting. However, before the

contract in question could get executed, certain discrepancies were

alleged in the process of empanelment thereby leading to its

cancellation. Aggrieved by this cancellation, the appellants filed the

petition under Article 226 of the Constitution of India, seeking

quashing of the order cancelling the empanelment of the appellants.

The appellants also sought a writ of mandamus seeking specific

performance of the contract which was to be executed between the

parties.

3. Since the complaints regarding the various irregularities were

received by the respondents (the original respondents in the writ

petition), a preliminary enquiry was also registered by the CBI. Also

the respondent constituted a Fact Finding Committee through Mr.

Rajat Bhargava, Additional Director General (Finance), All India

Radio. 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 new guidelines for selection. The respondents vide order

dated 22nd May, 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. It is also relevant to mention here that the panel of

the appellants expired on 7th April, 2008. The learned single Judge

took note of the fact that there had been significant change of events

pursuant to the filing of the petition. Firstly, the guidelines on the

basis whereof the empanelment had been done were replaced by new

guidelines and secondly, the duration for which the panel was

constituted had expired. There had been a change of policy. Since

the process of empanelment was found to be extensively rigged with

procedural irregularities and the irregularities were further found to

be attributable to the flawed guidelines, the same were replaced by

new guidelines. The learned single Judge thus held that the decision

to scrap the empanelment was more in the nature of a policy decision

which was effected by Prasar Bharati in order to give way to the new

guidelines. The learned single Judge took note of the fact that

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 guidelines with the new

guidelines had ex post facto vindicated the cancellation of the

empanelment. The learned single Judge also observed that there was

nothing to suggest any mala fides or arbitrariness in the formulation

of the new policy. The learned single Judge correctly came to a

finding that there was nothing put forth by the appellants to suggest

that the cancellation of empanelment was done in utter disregard of

the principles of natural justice and the lone plea taken by the

appellants was that no individual hearing was afforded to the

appellants during the inquiry. The learned single Judge rightly held

that there could be no straight jacket formula as far as principles of

natural justice were concerned and there had been substantive

compliance with the principles of natural justice, given the nature

and purpose for which the Fact Finding Enquiry was initiated. There

was allegation of unfair means being adopted on an extensive scale

and after a proper inquiry, the authorities had acted promptly in

cancelling the selection and conducting and initiating the selection

afresh.

4. The learned single Judge also rightly concluded that there was

no valid and subsisting contract between the parties and mere

selection of the appellants in the panel did not vest in the appellants

any substantive right to seek enforcement of the contract. The

empanelment had not been scrapped by the Prasar Bharati without

due compliance with the principles of natural justice. The fact finding

report was clearly worded and was a reasoned order reflecting a

plausible view. As per the report, three reasons that actuated

cancellation were, 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. The

learned single Judge rightly held that the scope of judicial review is

restricted and in such matters, the courts would essentially look at

the decision making process and not at the decision itself. Prasar

Bharati in its wisdom and for reasons, for which no ground of bias

has been raised, made a fresh policy decision of framing new

guidelines to overcome procedural irregularities and such other

lacunae identified by the Fact Finding Authority. Further, as per the

learned single Judge, since panel of which the appellants were a part

stood expired and the old guidelines had been replaced by the new

guidelines, the writ petition filed by the appellants had practically

become infructuous. Further, the learned single Judge took note of

the fact that the order dated 22nd May, 2007 clearly stated 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.

Further such persons would also have the option of either relying

upon their earlier proposals or submitting a fresh proposal. This

would ensure that no undue hardship or prejudice is caused to the

appellants.

5. The appellants have no vested legal right to claim that the

panel could not have been scrapped and a policy decision could not

have been taken to frame fresh guidelines and undertake the process

of selection afresh. The decision to scrap the panel and frame new

guidelines was a policy decision and it is not for the court in exercise

of its power of judicial review to substitute its view with that of the

competent body dealing with the matter. If after looking into all facts

and circumstances, the competent body comes to the conclusion that

panel needs to be scrapped and fresh guidelines need to be issued in

order to initiate the selection process afresh, it is very well within its

right to do so. Moreover, in the present case, there was a justifiable

reason for the respondents to undertake this exercise.

6. It is relevant to refer to a decision of the Supreme Court in the

Case of Government of Orissa vs. Haraprasd Das, (1998) 1 SCC

487, where the Supreme Court observed that mere empanelment or

inclusion of one's name in the selection list does not give him a right

to be appointed. So also if the Government decides not to make

further appointments for a valid reason, it cannot be said that it has

acted arbitrarily by not appointing those whose names are included

in the selection list. The Supreme Court further held in the said

decision that to fill up or not to fill up a post is a policy decision and

unless it is shown to be arbitrary, it is not open to the Administrative

Tribunal to interfere with such decision of the Government and direct

it to make further appointments. Though the said judgment relates to

appointment to posts in the Government, the principle as laid down

by the Supreme Court underlying the said decision is that mere

empanelment does not give a right to be appointed.

7. In Jai Singh Dalal vs. State of Haryana, 1993 Supp (2)

SCC 600, while dealing with the appointment to posts in the

Government, the Supreme Court observed that even candidates

selected for appointment have no right to appointment and it is open

to the State Government at a subsequent date not to fill up the posts

or to resort to fresh selection according to revised criteria.

8. Recently, the Supreme Court in the case of United India

Insurance Co. Ltd. vs. Manubhai Dharmasinhbhai Gajera, (2008)

10 SCC 404, observed that the writ court would ordinarily not grant

specific performance of a contract even if it is found that there exists

a renewal clause or there has been a breach of contract on the part of

the party. A writ of mandamus shall ordinarily not be issued in case

of a breach of contract.

9. In M.P. Mathur vs. DTC, (2006) 13 SCC 706, the Supreme

Court observed that if there is a supervening public equity, the

Government would be allowed to change its stand and has the power

to withdraw from representation made by it which induced persons to

take certain steps which may have gone adverse to the interest of

such persons on account of such withdrawal. Public interest is

accepted as the superior equity which can override individual equity.

10. In the present case, since the Prasar Bharti discovered a

number of infirmities in the empanelment, fresh guidelines were

framed and selection process initiated. It was open to the

Government to do the same in the facts and circumstances of the

case. Moreover, the impugned order clearly states that earlier

applicants/selectees would have the option of either relying upon

their earlier proposals/pilots or submitting a fresh proposal. This in

any case would ensure that no undue hardship or prejudice is

caused to persons similarly placed as the appellants.

11. It is also pertinent to mention here that even vide letter dated

7th April, 2006 (page 212 of the paper book) written by Prasar Bharti

to the appellant, it was clearly stated that even after the contract was

signed, DD would periodically undertake review of the programme

after commencement of its telecast and DD would be at liberty to

terminate the programme at four weeks notice if the programme was

found to be wanting in its production quality and overall impact.

Thus the contention of the appellants that they are entitled to be

awarded 260 episodes is rather misplaced and unfounded. The said

contention is without any merit or basis whatsoever.

12. In the present case, though the appellants were empanelled,

however, there was no concluded, valid and subsisting contract

between the parties and there was no substantive right vested in the

appellants to seek enforcement of a contract. Further if for valid

reasons, a panel is scrapped and new guidelines are framed for

initiating the selection process afresh it is not for the Court to sit in

judgment over the same as an Appellate Body while exercising its

extraordinary jurisdiction under Article 226 of the Constitution of

India. In the present case, it was well within the power of the

respondents to resort to fresh selection process according to revised

criteria. There were justifiable grounds for the same and the

appellants have no vested legal right to oppose the said process.

11. For the reasons stated hereinabove, we find no merit in the

appeal to warrant any interference with the findings of the learned

single Judge. The appeal is accordingly dismissed. All pending

applications stand disposed of as well.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J.

MAY 26, 2009 sb