1. Contractual employees declared government servants retrospectively — dispute over eligibility for service benefits and promotions under the Indian Broadcasting (Programme) Service Rules 1990. (Para 1 , 2 , 3 , 4 )
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2018 Supreme(SC) 939
SUPREME COURT OF INDIA
DIPAK MISRA, CJI., Dhananjaya Y. Chandrachud, INDIRA BANERJEE, JJ.
UNION OF INDIA & ORS. – Appellants
Versus
E KRISHNA RAO & ORS ETC. ETC. – Respondents
CIVIL APPEAL NOS. 11948-11950 OF 2016
Decided On : 26-09-2018
Important Points
Employees declared as government servants retrospectively, holding regular sanctioned posts within stipulated pay scales, qualify as 'departmental candidates' under the IBPS Rules 1990 and are entitled to corresponding service benefits and promotions.
Subject
Service Law - Promotions and Service Benefits
Act Referred
INDIAN BROADCASTING PROGRAMME SERVICE RULE: R.6, R.2(c)
Headnote
Indian Broadcasting (Programme) Service Rules 1990 – Rules 2(c), 6, 9 and Note 3 of Schedule I – Posts sanctioned after 1 January 1985 in All India Radio and Doordarshan deemed to have been included in the service and added to the strength shown therein – After giving option respondents becoming government servants – Deemed to be included in the service – held entitled to all benefits of the service – Directions given. (Para 9, 10)
Facts of the case:
The First Respondent was engaged as a TV News Correspondent on contract for a period of five years on 6 August 1988. The second Respondent was engaged as a TV Assistant News Correspondent on contract on 12 August 1988. The Rules came into effect on 5 November 1990. They did not have a specific provision for the posts of TV News Correspondent and TV Assistant News Correspondent.
On 29 November 2011, the Union Ministry of Information and Broadcasting sought options from the Respondents on whether they desired to be treated as government servants or whether they wished to continue as contractual employees. The First Respondent opted to be treated as a government servant. He was declared as a government servant with effect from 31 March 1992.
The Respondents were not given any promotion for twelve years. Aggrieved by this, they filed OA 916 of 1999 and OA 1010 of 1999 before the CAT, claiming that they had not received any promotion, as they were not treated as members of the Indian Broadcasting Programme Service by the appellants. The Tribunal allowed the applications of the Respondents and directed the government to grant them all benefits under the Rules and consider their cases for promotion.
The High Court upheld the Tribunal’s decision that acceptance by the Respondents of benefits under the Annual Career Progression scheme did not disentitle them to get equivalent pay scales.
Finding of the Court:
CAT and High Court rightly decided the matter.
Result: Appeal disposed of.
Legal Category Hierarchy
Table of Contents
2. Appellants contended that since specific posts were not explicitly listed in the Rules, the employees could not be considered for promotion to higher grades. (Para 5 )
3. The court found that regular sanctioned posts created after 1985 are deemed included in the service, making employees holding such posts departmental candidates eligible for benefits. (Para 6 , 8 , 9 )
4. Employees in regular sanctioned posts created after the specified date are deemed included in the service if they meet the definition of departmental candidates under the Rules. (Para 6 , 9 )
5. Appeals dismissed; respondents entitled to service benefits and promotion consideration, with specific directions on seniority, notional pay for retirees, and vacancy-based promotions. (Para 10 , 11 )
6. Who qualifies as a departmental candidate under the Indian Broadcasting (Programme) Service Rules 1990?
Departmental candidates include officers appointed on a regular basis in consultation with the commission or on the recommendations of the Departmental Promotion Committee who hold posts on a regular basis or hold a lien in the Group 'A' programme cadre. (Para 2 )
7. How are posts sanctioned after January 1, 1985, treated under the IBPS Rules?
Under Note 3 of Schedule I, posts sanctioned for various schemes after January 1, 1985, in All India Radio and Doordarshan are deemed to have been included in the service and added to the cadre strength. (Para 2 , 6 , 9 )
8. Does the retrospective declaration of a contractual employee as a government servant entitle them to be treated as a departmental candidate?
Yes, if the employee holds a regular sanctioned post and is declared a government servant, they fit the definition of a departmental candidate and are deemed appointed to corresponding posts and grades in the service. (Para 6 , 9 )
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, J
1. The appeals arise from a judgment of the High Court of Andhra Pradesh dated 20 March 2014. The High Court rejected a challenge to an order of the Central Administrative Tribunal [The “Tribunal” ] directing the appellants to provide to the Respondents all benefits of service and to consider their cases for promotions in accordance with the Indian Broadcasting (Programme) Service Rules 1990 [The Indian Broadcasting (Programme) Service Rules 1990 are referred to in this judgment as the Rules.].
2. The First Respondent was engaged as a TV News Correspondent on contract for a period of five years on 6 August 1988. The second Respondent was engaged as a TV Assistant News Correspondent on contract on 12 August 1988. The Rules came into effect on 5 November 1990. They did not have a specific provision for the posts of TV News Correspondent and TV Assistant News Correspondent. The Rules define the expression ‘departmental candidates’ thus:
“(c) “Departmental Candidates” means-
“(i) Officers appointed on regular basis in consultation with the commission or on the recommendations of the Departmental Promotion committee, and who hold posts on regular basis or hold, lien in Group 'A' programme cadre of All India Radio and Doordarshan on the date of commencement of these rules and
(ii)All officers appointed on regular basis to the post of video executive in Doordarshan in the pay scale of Rs.3000-4500;”
Rule 6 , which provides for the initial constitution of the service, reads thus:
“6. Initial Constitution of the Service:-
(1) Subject to the provisions of sub-rules (2), (3) and () all departmental candidates holding posts or regular basis in the scales of pay of Rs. 5900-6700, Rs.3700-5000, Rs.3000-4500 and Rs. 2200-4000 shall from the date of commencement of these rules, be deemed to have been appointed to the corresponding posts and grades in the Service.
Provided that nothing in this sub-rule shall apply, to those Department Candidates who have been granted Selection Grade in the scale of Rs. 2200-4000.
(2) (a) The Departmental Candidates referred to in sub-clause (i) of clause (c) of rule 2 shall be required to convey their options in writing for inclusion in any one of the four Cadres of the Service.
(b) In the event of options not being received within the stipulated time, the Departmental Candidates shall be deemed to have opted in the respective cadre of the All India Radio or Doordarshan, as the case may be, where they are working.
Provided that the Departmental Candidates referred to in sub-clause (ii) of clause (c) of rule 2 shall merge with the Programme Production Cadre of Doordarshan and will maintain their separate identity as indicated in Schedule VII.
(3) (a) The commission shall constitute a Selection Committee with the Chairman or a Member of the Commission, as President and not more than three representatives of the appropriate status to be nominated by the Controlling Authority to consider all the options from the departmental Candidates referred to in sub-rule (2) and recommend the cadre and the Medium to which such Departmental Candidates may be appointed, and submit lists of officers considered suitable for such appointment to the Commission, which shall forward to the Controlling Authority its recommendations thereon.
(b) The decision of the Controlling Authority in respect of appointments based on the recommendations of the Commission shall be final and such appointments shall be deemed to have been made with effect from the date of constitution of the Service.
(c) After such departmental candidates have been so allocated to a particular Medium or a cadre thereof they will continue to serve in the cadre of that medium to which they have been so assigned:
Provided that the commission may, while making such recommendations, in respect of Departmental candidates, referred to in sub-rule (2), include a recommendation that officers considered suitable for appointment to a g
