Full Judgment Text
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PETITIONER:
NATIONAL UNION OF ALL INDIA RADIOAND ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ANOTHER ETC.
DATE OF JUDGMENT05/04/1990
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
SAWANT, P.B.
RAMASWAMY, K.
CITATION:
1990 AIR 1720 1990 SCR (2) 340
1990 SCC (3) 596 JT 1990 (2) 49
1990 SCALE (1)670
ACT:
Constitution of India--Article 32--A. 1. R. --Staff
Artists--Continuation of contractual employment--Justifica-
tion for.
HEADNOTE:
Staff Artists of All India Radio/Doordarshan, after
complying with the initial requirements, used to be appoint-
ed to various positions like Announcer, News Readers, Con-
ductor, Music Compere, Instrumentalists, Producer and Script
Writer etc., on contract basis upto the age of 55 years. In
May 1982, Union of India bifurcated the Staff Artists into
two categories like (i) Staff Artists to be treated as
artists and (ii) Staff Artists to be treated as Government
Servants. These two sets of writ petitions have been filed
by the Staff artists challenging the said Government deci-
sion conveyed through circular dated 3.5.1982 and calling
upon the staff to exercise option by the end of December,
1983 for final allocation to the two categories aforesaid.
In the first writ petition direction is sought to the re-
spondents to treat the Staff Artists at par with regular
government servants and to restrain the respondents from
enforcing their direction in regard to their exercise of
option and in the other writ petition, the petitioners have
asked for a direction to treat the staff artists as govern-
ment servants entitled to pensionary benefits.
The Court by its order dated 25.4.1988, on perusal of
the letter together with the scheme, Sent by the Director
General of All India Radio and following its earlier deci-
sion in Civil Appeal No 384 of 1977 Union of India v.M.A.
Chowdhary, A.I.R. 1987 S.C. 1526 declared that all the staff
artists of All India Radio are holding civil posts under the
Government, and they are governed by Article 311(2) of the
Constitution and accordingly inter alia directed the Govern-
ment of India to review the entire situation and to prepare
a fresh scheme in accordance with law having regard to the
nature of duties performed by each category of staff artists
and further directed the case to come up for directions on
5.9.1988. Thereafter the Government of India formulated a
scheme in compliance with the courts order and submitted it
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to the Court.
340
Disposing of the writ petitions with directions, this Court,
HELD: While dealing with the Artists as a class it is
necessary that their special status be borne in mind. It is
a class of people who are indeed specially privileged either
by natural gift or by their own culturing of the art. This
category of people cannot be equated with ordinary Govern-
ment servants for every purpose. [348F]
The All India Radio and the Doordarshan in their normal
functioning would to a considerable extent depend upon
qualitative and efficient artists in order to make their
programmes reach the desired level. [348G]
The age-old practice of the job of the staff artists
being contractual (whether short or long) is being given up
and contractual employment is being substituted by status
based Government service. If there are really efficient
Artists of different classifications who do not want to be
branded as Government servants, there is no immediate justi-
fication for discontinuing and disturbing them in toto.
[348H; 349A]
Administrative scrutiny instead of judicial determina-
tion would be more helpful. The Court therefore directed
that in the appropriate Ministry a High Power Committee be
set up for examination of the objections with reference to
the terms of the scheme and the final decision be taken by
the Government within six months. The views expressed in the
present decision be taken into account while dealing with
the objections for purpose of finalising the scheme. [349E;
F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 13636/83 &
11760-66/84.
(Under Article 32 of the Constitution of India).
G. Ramaswamy, A.K. Ganguli, M.K. Ramamurthy, Kapil
Sibal, R.K. Garg, S. Srinivasan, D.K. Garg, Ms. A. Subha-
shini, B. Parthasarthi, C.V. Subba Rao, M.A. Krishnamurthy,
V. Shekhar, H.S. Mann, Ms. Chandan Krishnamurthy and Ms.
Kamini Jaiswal for the appearing parties.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These are applications under Article
32 of the Constitution. Petitioner No. 1 in the first Writ
Petition is the
341
National Union of All India Radio Staff Artists; petitioner
No. 2 is an Announcer of the All India Radio and happens to
be the General Secretary of the Union; petitioners No. 3 to
8 are an instrumentalist, a few news readers, announcers and
the like. The petitioners in the other writ petitions are
seven in number consisting of six announcers and a tanpura
player connected with the All India Radio. According to the
petitioners, the prevailing practice in All India Radio used
to be to offer appointments to various people as Staff
Artists at the first instance ordinarily for an initial term
of three months and on completion of appropriate formalities
appointments used to be offered for a term of three years on
contract basis at a minimum monthly fee. After the expiry of
the initial period of two years out of the three years
period of working which was considered as a period of proba-
tion contractual engagement up to the age of 55 years was
being made available. On selection, as alleged by the peti-
tioners Staff Artists used to be appointed to various posi-
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tions like Announcer, News Readers, Conductor, Music Com-
pere, Instrumentalists, Producer and Script Writer in the
All India Radio or Producer, Production Assistant, Script
Writer, Translator and General Assistant in Doordarshan.
In May, 1982 the respondent Union of India bifurcated
the Staff Artists into two categories like:
(1) Staff Artists to be treated as artists; and
(2) Staff Artists to be treated as Government Servants.
This decision was conveyed in a letter dated 3.5.82 and
opportunity to exercise option to everyone by the end of
December, 1983 for final allocation to the two categories
was provided. The letter stipulated that those of the Staff
Artists who did not opt were to continue under the existing
terms and conditions. The first writ petition was filed on
12th December, 1983, challenging the Government’s order of
3.5.82 (Annexure 3) and for a direction to the respondents
to treat the Staff Artists at par with regular Government
servants and to restrain the respondents from enforcing
their direction for exercise of option.
The other group of writ petitions was filed on 19th of
March, 1984, the challenge therein was also to the same
Government letter, and petitioners asked for a direction to
the respondents to treat the Staff Artists as Government
servants entitled to pensionary benefits.
A return was made to the rule in the first writ petition by
filing an
342
affidavit by the Under Secretary, Ministry of Information
and Broadcasting. The respondents maintained that the Staff
Artists did not form one homogeneous group and job require-
ments of the Staff Artists were different from post to post.
It was suggested that the Staff Artists could be convenient-
ly divided into two groups, namely, those who are appearing
or performing before the micro-phone and the others who are
managing production and connected jobs. It was also pointed
out that all Staff Artists did not have the same terms as to
remuneration. It was suggested that the terms and conditions
governing the Staff Artists after their transformation into
Government servants became different. In the interests of
quality of broadcasting services, it was claimed, periodical
assessments became indispensable and inevitable. The affida-
vit further stated that the scheme which was enclosed to the
letter marked Annexure 3 contained a scheme which had been
evolved after due deliberations and there was no prejudice
to the Artists if the scheme was allowed to become opera-
tive.
On the 25th of April, 1988, with special reference to
the first writ petition and a connected civil appeal which
is not before us at this stage, the Director-General of All
India Radio sent the following communication to the respond-
ent’s lawyer with a request that the same may be placed
before the Court. The letter stated:
"Under the directions of Hon’ble Court, the Government have
further examined the aspects of the scheme for artist cate-
gory to safeguard the rights of the Staff Artists from any
arbitrary factors in respect of discharge of duties under
their contract of service renewable after satisfactory
performance of their services. After careful examination,
the Government have now set-up three types of committees to
protect the rights of the staff artist from any arbitrary
factors which are as under:
A. Since the renewal of contract is automatic if the records
are satisfactory, it would be best to leave it to the Sta-
tion Director or the Head of the Office concerned to review
the contract after verification of the records.
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B. In case, the records are not satisfactory, the question
of renewal of contract may be considered by a Review Commit-
tee/Representation Committee as under:
B(i) Review Committee (Both for AIR/Doordarshan)
343
(i) Station Director--Chairman
(ii) Two outside Assessors--Members who have expertise in
the field to which the Artists belong.
B(ii) Representation Committee
(Both for AIR/Doordarshan)
(i) Director General--Chairman
Addl. Director
General (Programme)
(ii) Deputy Director--Member General (Administration)
(iii) Representatives of--Member the Ministry of Information
and Broadcasting.
I am to request that a Government Counsel may please be
briefed accordingly to place the facts before the Honourable
Court in the hearing today, i.e., dated 25th April, 88 at 2
P.M."
On the basis of what transpired in Court after referring to
the said letter, this Court on that date made the following
order:
"In Civil Appeal No. 384 of 1977 Union of India v.M.A.
Chowdhary, AIR 1987 Supreme Court 1526 we have declared that
all the Staff Artists of All India Radio are holding civil
posts under the Government and they are governed by Article
311(2) of the Constitution of India.
In view of the above decision it is no longer
necessary to make any further declaration in these petitions
that the Staff Artists are Government servants. The Circular
dated 3rd May 1982 beating No. 45011/26/80/B(A) issued by
the Ministry of Information and Broadcasting, Government of
India proceeded on the assumption that the Staff Artists who
had entered the service of the All India Radio/Doordarshan
under the contracts were not Government servants and that
only those Staff Artists specifically mentioned in that
Circular could become and be treated as Government
344
Servants provided they satisfied the conditions mentioned
therein. In view of the decision referred to above it has
now become necessary for the Government to review the entire
question covered by the Circular dated 3rd May, 1982. We,
therefore, direct the Government of India to review the
entire situation and to prepare a fresh scheme in accordance
with law having regard to the nature of duties performed by
each category of Staff Artists. While preparing such a
scheme the Government may also keep in view the cases of
Staff Artists who have already exercised their option as
provided by the circular dated 3rd May, 1982. Such scheme
shall be prepared on or before 31.7.1988. After the scheme
is prepared a copy of it shall be made available to all the
parties to this case. The parties aggrieved may file objec-
tions before this Court within August 15, 1988.
This case shall come up for directions on 5th
September, 1988."
In terms of the direction given on the 25th of April, 1988,
a draft scheme framed by the Government has been produced
before the Court along with an accompanying affidavit.
Paragraph 2 of the said scheme states:
"In pursuance of the above mentioned orders, those Staff
Artists who opted for becoming ’Government Servants’ and
were found fit by duly constituted Screening Committee were
treated as Government Servants with effect from 6.3. 1982.
Such Staff Artists were made entitled to the same pensionary
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benefits as are applicable to Government Servants. They
were, however, not entitled to any special benefits avail-
able to them as Staff Artists. Likewise, Staff Artists in
the ’Artists’ category. who opted for being treated as
’Artists’ and come over to the new terms and conditions were
treated as ’Artists’ with effect from 6.3.1982."
Paragraph 3 provides:
"The following categories of Staff Artists/Artists in All
India Radio/Doordarshan are, however, still to be treated as
Government Servants:
345
(i) Staff Artists who opted for ’being declared as
’Government Servants’ but were not found fit by the Screen-
ing Committee;
(ii) Staff Artists who opted for being treated as
’Artists’ category and were declared as ’Artists’ after
screening by the Screening Committee’;
(iii) Staff Artists who opted for being treated as
’Artists’ but were not found fit by the Screening Committee
for being treated as ’Artists’ and
(iv) Staff Artists who did not opt for being treat-
ed as ’Government Servants’ or for being treated as ’Art-
ists’.
The scheme further indicates:
"4. The Government has reconsidered the entire Scheme in the
light of the judgment of the Hon’ble Supreme Court delivered
on 25.4.1988 in Writ Petitions Nos. 13636 of 1983 and
11760-66 of 1984 in National Union of All India Radio and
Others .v. Union of India. In partial modification of this
Ministry’s letter No. 45001/26/80-B(A) dated 3.5.1982 and
No. 45011/26/80-B(A) dated 26.8.1983, it has been decided as
under:--
(i) All Staff Artists/Artists working in All India
Radio and Doordarshan (except foreign nationals) will be
deemed as Government Servants holding civil posts on pre-
scribed Central Government scales of pay.
(ii) All such Staff Artists/Artists working in All
India Radio and Doordarshan will be entitled to pensionary
and other benefits on the same terms and conditions as are
applicable to other Government Servants holding civil posts.
They will be governed by all rules and regulations and
general instructions issued by Government from time to time
like FR and SR, GFR, CCS (CCA) Rules, CCS (Conduct) Rules
and Pension Rules etc. etc. All facilities/ benefits avail-
able to regular Central Government employees will be auto-
matically applicable to them also on the same terms and
conditions as are applicable to regular Central Government
servants. However, any special bene-
346
fit/concession available to such Staff Artists/Artists of
AIR and Doordarshan, in so far these are not in accordance
with rules and regulations and general instructions applica-
ble to Central Government servants, will be withdrawn from
the date of issue of these orders.
(iii) The date of retirement on superannuation in
respect of such Staff Artists/Artists of All India Radio and
Doordarshan deemed as Government Servants will be the same
as applicable to holders of civil posts in Central Govern-
ment.
(iv) The contribution of such Staff Artists/Art-
ists working in AIR and Doordarshan made to Contributory
Provident Fund (CPF) along with interest thereon will be
transferred to their General Provident Fund (GPF)."
"5. The Staff Artists/Artists working in AIR and Doordarshan
deemed as Government Servants will continue to be in their
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existing categories and grades with regular pay scales. The
future recruitment to each grade will be made according to
the Recruitment Rules as per procedures prescribed for
recruitment to different posts."
"6. The posts held by the Staff Artists/Artists working in
All India Radio and Doordarshan will stand converted into
civil posts from the date of issue of these orders."
The order made by this Court on 25th of April, 1988, was not
a final judgment and this Court had directed the Union of
India to review the entire situation and to prepare a fresh
scheme in accordance with law having regard to the nature of
duties performed by each of the categories of Staff Artists.
Obviously, the intention of the Court while making the order
dated 25th April, 1988, was to have the scheme placed before
the Court for consideration. Though the scheme has been
styled as a draft scheme, its contents indicate that it has
been implemented. The main objection of the petitioners
against the present scheme is the stipulation therein that
the Staff Artists will be taken as Government servants from
the date of the order. According to them, the Allahabad High
Court had in its decision dated 12th of July, 1974, given a
declaration that all the Staff Artists were Government
servants and the said decision was affirmed by this Court in
a judgment dated May 7, 1987, reported in 1987 3 SCR 424
Union of
347
India v. M.A. Chowdhary. It is the contention of the peti-
tioners that the benefit of conversion or declaration should
be effective from 12.7.1974 and those who were in employment
then as Staff Artists should be considered as Government
from this date and others who joined after 12.7.74 should be
conferred the status of Government servants from the date of
joining. There is also a claim by the petitioners to pension
for those who have retired after 12.7.1974 and prior to the
present scheme. It is the further contention of the peti-
tioners that while formulating the present scheme the
Court’s direction of 25th of April, 1988, has not been
strictly kept in view. Reliance has been placed on this
Court’s order dated 3rd April, 1984, where it was indicated
that failure of Staff Artists to exercise the option should
not prejudice their right in any manner and either a fresh
opportunity to exercise the option should be given or even
in the absence of option the same benefits should be given.
Some of the objections which have been raised and are no-
ticed above seem to be germane and require consideration.
This Court’s order of 25th April, 1988, requiring a fresh
scheme to be formulated obviously meant that the exercise of
option in terms of the order dated 3rd May, 1982, was not
taken to be the final date for exercise of option. Opportu-
nity to exercise fresh option should have been given or
perhaps the new scheme could have accepted the position that
unless one wanted to be not absorbed he should have been
deemed to be accepting absorption. As in the changed setting
the class of Staff Artists was really intended to be done
away with in due course, such a deeming base should have
been accepted for convenient implementation.
One class of Staff Artists engaged under contracts wants
such status to continue. Otherwise stated, they do not want
the contractual base to be changed into employment.
While dealing with the Artists as a class it is neces-
sary that their special status be borne in mind. It is a
class of people who are indeed specially privileged either
by natural gift or by their own culturing of the art. This
category of people cannot be equated with ordinary Govern-
ment servants for every purpose. The All India Radio and the
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Doordarshan in their normal functioning would to a consider-
able extent depend upon qualitative and efficient artists in
order to make their programmes reach the desired level. The
scheme necessarily contemplates a transitional period. The
age-old practice of the job of the Staff Artists being
contractual (whether short or long) is being given up and
contractual employment is being substituted by status-based
Government service. If there are really efficient Artists of
different
348
classifications who do not want to be branded as Government
servants, there is no immediate justification for discontin-
uing and disturbing them in toto. The transitional period
could be elongated to accommodate the appropriate category
of Artists not willing to be absorbed as Government serv-
ants.
Of late, Government themselves are having a re-look at
the matter. It is their stipulation that All India Radio and
Doordarshan should be made into autonomous corporations and
for that purpose legislation is in the process. What is in
contemplation is contrary to what is in the scheme. This
means that the matter is still in a fluid stage. It is,
therefore, appropriate that either a deeming position should
have been accepted in the scheme as indicated above or a
fresh opportunity for exercise of option should have been
provided. Again, the demand of the above group of artists
should have also been considered.
The question of deeming the employees as Government
servants from the date of the Allahabad High Court’s judg-
ment is another issue which requires examination. Connected
with it would be the question of entitlement to pension. We
are of the view that these are aspects which should first be
initially examined by a Committee to be set up by the Gov-
ernment and after a definite view is taken it would be open
to the petitioners to approach the appropriate Court to
redress the remaining grievances, if any. The matter is such
that administrative scrutiny instead of judicial determina-
tion would be more helpful. We, therefore, refrain from
expressing any final view. We reiterate that the order dated
25th of April, 1988, intended a draft scheme to be drawn up
for consideration of the Court. The scheme as produced in
the Court along with the accompanying affidavit has also
been described as a draft scheme. The objections raised by
the petitioners to the said scheme are available on the
record. We direct that in the appropriate Ministry a High
Power Committee be set up for examination of the objections
with reference to the terms of the scheme and the final
decision be taken by the Government within six months. The
views expressed in the present decision be taken into ac-
count while dealing with the objections for purposes of
finalising the scheme. Liberty is given to the aggrieved
parties when final decision is taken by Government to move
the Court.
These writ petitions are disposed of with these directions.
No costs.
Y. Lal Petition disposed of.
349