Delhi High Court
Manoj Tibrewal Aakash vs Harikesh Bahadur Singh Gautam And ... on 15 January, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 15, 2013
+ W.P.(C) 6859/2010
PRASAR BHARTI ..... Petitioner
Represented by: Mr.Sachin Chopra, Mr.Anuj Tyagi,
Mr.Sarvpreet S.Chawla, Advs.
versus
HARIKESH BS GAUTAM AND ORS ..... Respondents
Represented by: Mr.Sanjai Kr.Pathak, Adv. for R-1.
None for R-2.
Mr.Harish Garg, Adv. for R-3.
Mr.V.K.Tandon & Ms.Aakanksha
Munjhal, Advs. for R-4 to R-25 & R-27
to R-29.
Mr.Prem Kumar with Mr.Ashish Kumar
Sharma & Mr.Rakesh Kumar, Advs. for
R-26.
AND
+ W.P.(C) 7813/2010
YASHVI TIRATH ..... Petitioner
Represented by: Mr.Prem Kumar with Mr.Ashish Kumar
Sharma & Mr.Rakesh Kumar, Advs.
versus
UOI AND ORS ..... Respondents
Represented by: R.V.Sinha with Mr.A.S.Singh &
Ms.Sangita Rai, Advs. for R-1.
Mr.Sachin Chopra, Mr.Anuj Tyagi,
Mr.Sarvpreet S.Chawla, Advs. for R-2
& R-3.
Mr.Harish Garg, Adv. for R-4.
W.P.(C) Nos.6859/2010, 7813/2010, 1481/2011 & 1588/2011 Page 1 of 8
Mr.Sanjai Kr.Pathak, Adv. for R-5.
AND
+ W.P.(C) 1481/2011
JAYA SINHA AND ORS ..... Petitioners
Represented by: Mr.V.K.Tandon, Adv.
versus
HARIKESH BAHADUR SINGH GAUTAM AND ORS
..... Respondents
Represented by: Mr.Sanjai Kr.Pathak, Adv. for R-1.
R.V.Sinha with Mr.A.S.Singh &
Ms.Sangita Rai, Advs. for R-2.
Mr.Sachin Chopra, Mr.Anuj Tyagi,
Mr.Sarvpreet S.Chawla, Advs. for R-3
& R-4.
Mr.Harish Garg, Adv. for R-5.
Ms.Aakanksha Munjhal, Adv. for R-6
to R-14, R-16 & R-17.
Mr.Prem Kumar with Mr.Ashish Kumar
Sharma & Mr.Rakesh Kumar, Advs. for
R-15.
AND
+ W.P.(C) 1588/2011
MANOJ TIBREWAL AAKASH ..... Petitioner
Represented by: Ms.Aakanksha Munjhal, Adv.
versus
HARIKESH BAHADUR SINGH GAUTAM AND ORS
..... Respondents
Represented by: Mr.Sanjai Kr.Pathak, Adv. for R-1.
Mr.Atul Batra with Mr.Sumit Jidani,
Advs. for R-2.
Mr.Sachin Chopra, Mr.Anuj Tyagi,
Mr.Sarvpreet S.Chawla, Advs. for R-3
W.P.(C) Nos.6859/2010, 7813/2010, 1481/2011 & 1588/2011 Page 2 of 8
& R-4.
Mr.Harish Garg, Adv. for R-5.
Mr.V.K.Tandon & Ms.Aakanksha
Munjhal, Advs. for R-6 to R-27 & R-29.
Mr.Prem Kumar with Mr.Ashish Kumar
Sharma & Mr.Rakesh Kumar, Advs. for
R-28.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. Acting on behalf of Prasar Bharti, Broadcasting Engineering
Consultants Pvt. Ltd., a Government of India Enterprises issued an
advertisement inviting the applications from persons desirous of contractual
engagement employment as 'Anchor-cum-Correspondent' for DD News.
2. The advertisement published in the newspaper clearly indicated that
the engagement would be on contractual basis and that Senior Anchor-cum-
Correspondent Grade-I would be paid `65,000/- p.m.; Anchor-cum-
Correspondent Grade-II would be paid `45,000/- p.m.; and Junior Anchor-
cum-Correspondent Grade-III would be paid `25,000/- p.m. The
advertisement displayed on the website of Broadcasting Engineering
Consultants Pvt. Ltd. further clarified that the monthly sums would be paid
as 'Fee'. We highlight that the word used is 'Fee' and not 'Salary'.
3. The selection process was a 3 stage process. Firstly, a written
examination. Secondly an audition and reporting skill test. Thirdly an
interview. Aggregate marks obtained resulted in a merit list being drawn up.
4. The selection process completed. A grievance was raised by 2
applicants named Atul Keshav Pateriya and Harikesh Bahadur Singh
Gautam. Both of them filed an original application each before the Central
Administrative Tribunal numbered as O.A.No.1473/2009 and
O.A.No.1674/2009. They challenged the final selection made as per order
dated January 17, 2009.
5. Various issues on merits pertaining to the selection were raised. They
also raised issues of the selection process being tinkered mid-stream with
reference to weightage to be accorded to the various phases of the selection
process. Particular emphasis was laid on the fact that weightage pertaining
to the interview was so re-formulated that an unguided discretion was rested
in the members affecting the selection and that using the same, undue
weightage was given to a chosen few candidates.
6. The original applications were opposed by Prasar Bharti, DD News
and Broadcasting Engineering Consultants Pvt. Ltd. and it appears to be a
case where the selected candidates impleaded as respondents only in 1
Applicaton, though a notice was issued to them by the Tribunal were not
served resulting in no representation being made by the selected candidates.
7. Vide order dated September 13, 2010, the Principal Bench of the
Central Administrative Tribunal found serious arbitrariness and irregularities
committed while effecting the selection to the 3 posts and as a consequence
the order dated January 17, 2009 was quashed as also appointments made
pursuant thereto was quashed.
8. A perusal of the order passed by the Tribunal, in the context of the use
of the words 'appointments' and 'posts' would reveal that the Tribunal
proceeded on the basis that pursuant to the selections some kind of regular
or ad-hoc appointments were being effected to posts.
9. Some of the selected candidates filed review applications inter alia
raising a plea, which was not urged by Prasar Bharti, DD News or
Broadcasting Engineering Consultants Pvt. Ltd. that the appointments were
made on contractual basis; not being made to posts as conventionally
understood in a cadre and there being no Recruitment Rules in question, the
dispute could not be adjudicated upon by the Central Administrative
Tribunal. We note that only in one O.A. were the selected candidates
impleaded as respondents in the other they were not. Even in the O.A. in
which selected candidates were impleaded as respondents service on them
was not effected.
10. Thus, apart from raising a plea of jurisdiction of the Tribunal a plea
was raised that without affecting service upon the affecting candidates the
Tribunal could not have rendered an opinion which would prejudice the
right which these persons had earned by being selected on contract basis for
the 3 posts advertised.
11. Vide order dated November 11, 2011, the Tribunal dismissed the
review applications filed being R.A.No.278/2010 and R.A.No.280/2010.
12. On the subject of the review applicants not being served with the
original applications and not being heard, the Tribunal referred to certain
decisions pronounced by the Supreme Court where the view taken was that a
wholesome violation of the Recruitment Rules and especially when the
matter pertained to an interpretation of the Rules, would justify a decision
being taken without impleading those who were likely to be affected by the
decision; the principle being extended to a case where said persons, though
impleaded as respondents, were not served.
13. On the subject of the jurisdiction of the Tribunal i.e. the subject matter
jurisdiction, the Tribunal noted and dealt with the submission by observing
that the Central Administrative Tribunal has jurisdiction over service matters
pertaining to Prasar Bharti where the posts were 'civil posts'.
14. Now, appointments were being effected on contract basis.
15. The Tribunal ought to have posed the question, with reference to it
having jurisdiction by taking cognizance of the fact that contractual
appointments were being made, whether the appointment could be said to be
pertaining to a civil post. The Tribunal had to note that a monthly fixed fee
for services rendered was to be paid.
16. So posing the question as it arose from the advertisements and the
pleadings, the issue of jurisdiction had to be decided.
17. Suffice would it be to state that civil law recognizes 3 kinds of
jurisdiction. The first is a subject matter jurisdiction. The second is a
pecuniary jurisdiction and the third is territorial jurisdiction. Of the 3 kinds
of jurisdiction, subject matter jurisdiction is most important and non-curable.
If a judicial fora lacks subject matter jurisdiction any opinion pronounced by
the fora would be treated as non-est and void in law. This is the reason why
if a subject matter jurisdiction issue is raised before a judicial fora, the same
has to be clearly dealt with for the reason a Tribunal cannot assume
jurisdiction by default on a subject matter.
18. Noting as aforesaid we are constrained to set aside both impugned
orders and remand the matter to the Tribunal for fresh adjudication of
O.A.No.1473/2009 and O.A.No.1674/2009.
19. But we need to pen a few more words.
20. The advertisements would reveal to us that the contractual
appointments were being made without indicating the duration of the
contract. We are informed that the letters of contractual engagement
indicated to the candidates selected that term of engagement was 3 years,
which period is over by today.
21. Mr.Sachin Chopra, learned counsel who appears for Prasar Bharti
states that the contract period is being extended from time to time.
22. Now, Prasar Bharti as also DD News as also Broadcasting
Engineering Consultants Pvt. Ltd. are instrumentalities of the State and
would be bound by the law declared by the Supreme Court in the decision
reported as (1979) 3 SCC 489 Ramana Dayaram Shetty vs. International
Airport Authority of India & Ors. Notwithstanding our direction which
would be to restore the 2 original applications for adjudication fresh by the
Tribunal and before merits are gone into once again after deciding the issue
of subject matter jurisdiction, we would like to observe that a contract
appointment for a fixed term should ordinarily not result in the contract
being extended indefinitely for the reason it may foul the right of other
eligible candidates to submit their applications for contractual engagements.
The situation would be akin to a Government agency inviting applications to
manage a canteen for a period of 3 years but continue with the contract
thereafter and that too indefinitely.
23. If Prasar Bharti were to take a decision in the next month or so, to
frame a proper policy as per which contract engagement would be resorted
to; in which the term of contractual engagement would be frozen, said fact
may be informed to the Tribunal for the reason only academic issues would
then survive for adjudication. Fresh selection would be made.
24. It would be expected from the instrumentality of the State to act not
only fairly but even transparently and so arrange its working that
unnecessary litigation is avoided.
25. With the pious hope as aforenoted, the writ petitions stand disposed of
quashing order dated September 13, 2010 and February 11, 2011.
O.A.No.1473/2009 and O.A.No.1674/2009 are revived for fresh
adjudication before the Tribunal with a direction that in the context of
contract engagements being effected the Tribunal would adjudicate upon its
jurisdiction to entertain the original applications.
26. Since the litigating parties are before us we direct that
O.A.No.1473/2009 and O.A.No.1674/2009 shall be listed for directions
before the Registrar of the Tribunal on February 25, 2013. Learned counsel
for the parties have noted the date and undertake to appear before the
Registrar. Thereupon, the learned Registrar would list the original
applications before an appropriate Bench for fresh adjudication.
27. Copy of this order be supplied dasti to learned counsel for the parties
and be sent through Special Messenger to be delivered to the Registrar of the
Central Administrative Tribunal latest by February 15, 2013 so that the
learned Registrar can have the two original applications shown in the cause
list of its court for February 25, 2013.
28. No costs.
CM Nos.13553/2010 & 612/2012 in W.P.(C) 6859/2010
CM No.20227/2010 in W.P.(C) 7813/2010
CM Nos.3139/2011, 6078/2011 & 609/2012 in W.P.(C) 1481/2011
CM Nos.3359/2011 & 611/2012 in W.P.(C) 1588/2011
Since the writ petitions stand disposed of the aforesaid applications
are disposed of as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(VEENA BIRBAL)
JUDGE
JANUARY 15, 2013
kks
