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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