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2003 DIGILAW 508 (GAU)

Gyati Hangu v. Union of India (UOI)

2003-11-14

I.A.ANSARI

body2003
JUDGMENT I.A. Ansari, J. 1. By making this application, the petitioners, who have been working as Transmission Executives in different Tribal Dialects with the All India Radio at Itanagar, have approached this Court seeking issuance of appropriate writ/writs commanding the respondents, inter alia, to regularize their services as such Transmission Executives (Dialect). 2. The essential facts giving rise to this writ petition are not in dispute and may be, briefly, stated thus : The petitioners, who all are members of the Arunachal Pradesh Scheduled Tribes, were appointed on different dates on casual basis by the Station Director, All India Radio, Dibrugarh, as Transmission Executives in different Tribal Dialects. In course of time, when the Tribal Dialects Programme was shifted from All India Radio, Dibrugarh, to All India Radio, Itanagar, the petitioners were brought in the same capacity as earlier to Itanagar and were accordingly appointed, the dates of appointment of the petitioner Nos. 1 to 8 being 16.2.1996, 18.10.1994, 1.5.1996, 13.9.1994, 17.2.1991, 6.6.1989, 27.8.1996 and 8.10.1996 respectively on casual and contract basis. By letter, dated 21.9.1998, the respondent No. 5, namely, Station Director, All India Radio, Itanagar, requested the respondent No. 3, namely, Director General, All India Radio, New Delhi, to regularize the casual services of the petitioners. The respondent No. 5 also informed vide his letter, dated 14.7.1999, the respondent No. 3 that the Staff Selection Committee, Guwahati, had rendered their no objection certificate to the recruitment of Transmission Executives locally against the existing vacant posts of Transmission Executive in Arunachal Dialects Programme. By this letter, dated 14.7.1999, the respondent No. 5 also requested the respondent No. 3 to regularize the services of the petitioners. By his letter, dated 6.9.2000, the respondent No. 5 also sent to the respondent No. 3 applications submitted by the present petitioners seeking regularization of their services indicating therein that vacancies to accommodate the petitioners existed with the All India Radio, Itanagar. Despite repeated representations made by the petitioners, the respondents have not regularized the services of the petitioners, though the petitioners were assured that their services would be regularized. There exists Recruitment Rules framed under Article 309 of the Constitution of India known as the All India Radio and Doordarshan (Transmission Executive) Recruitment (Amendment) Rules, 1994 (hereinafter referred to as "the Recruitment Rules of 1994"). These Rules have come into force with effect from 25.2.1894. There exists Recruitment Rules framed under Article 309 of the Constitution of India known as the All India Radio and Doordarshan (Transmission Executive) Recruitment (Amendment) Rules, 1994 (hereinafter referred to as "the Recruitment Rules of 1994"). These Rules have come into force with effect from 25.2.1894. Some of the petitioners fulfil the qualification required under the Recruitment Rules of 1994. As the petitioners have been working for the last 8/9 years as Transmission Executives in Tribal Dialects, they have acquired vast experience and knowledge in this field and in the interest of justice, their services ought to have been regularized by the respondents, particularly, because in the meanwhile some of the petitioners might have become over-aged to receive regular appointment. Under the All India Radio Manual, if a person is engagad in the All India Radio Services for more than 240 days continuously, his service has to be regularized. 3. The respondents have contested the case by filing their affidavit-in-opposition, their case being, briefly, stated thus : No assurance was ever given to the petitioners that their casual engagement would be regularized. The petitioners were initially engaged on casual basis and later on, they were engaged on contract basis. According to the relevant Recruitment Rules of 1994, the minimum qualification required is Graduate whereas 3 of the writ petitioners are not graduates and engagement of 1 out of the said 3 petitioners was after 31.12.1991 which is the cut-off date stipulated under the Scheme for regularization adopted by the Prashar Bharati in accordance with the judgment and order, dated 18.9.1992 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in Original Application No. 822 of 1991 (Sri Suresh Sharma and Ors. v. Government of India and Ors). Though vacancies exist, the petitioners are not covered by the said Scheme and hence their services cannot be regularized. The respondents, therefore, submit that the petitioners have no case and the writ petition may be dismissed. 4. I have heard Mr. Tagia Michi, learned counsel appearing for the petitioners, and Mr. M. Pertin, learned Addl. Central Government Standing Counsel, appearing for the respondents. 5. Upon hearing the learned counsel for the parties and on perusal of the material on records, what is transparent is that for appointment of Transmission Executive (Dialects), there does exist the Recruitment Rules of 1994, which came into force, as indicated hereinbefore, on and from 25.2.1994. M. Pertin, learned Addl. Central Government Standing Counsel, appearing for the respondents. 5. Upon hearing the learned counsel for the parties and on perusal of the material on records, what is transparent is that for appointment of Transmission Executive (Dialects), there does exist the Recruitment Rules of 1994, which came into force, as indicated hereinbefore, on and from 25.2.1994. Under these Rules, the essential qualification required for appointment of Transmission Executive (Dialect) is Bachelor's degree with Hindi & English as main subjects or either of the two as medium of examination and the other as main subject and also proficiency in the language/dialect relevant to the vacancy. Admittedly, though the petitioner Nos. 1, 2, 3, 7 and 8 hold Bachelor's degree, none of them had Hindi either as main subject or as medium of examination. Thus, apart from the fact that the petitioner Nos. 1, 2, 3, 7 and 8 are not qualified under the relevant Recruitment Rules for recruitment, the remaining petitioners, namely, petitioner Nos. 4, 5 and 6 are, admittedly, not even graduates; hence, the petitioner Nos. 4, 5 and 6 are also not qualified under the relevant Recruitment Rules. 6. The question, therefore, which falls for consideration is thus : When in the face of the admitted position that the petitioners are not qualified for recruitment to the posts of Transmission Executive (Dialect) in terms of the relevant Recruitment Rules of 1994, and whether their services can be regularized as Transmission Executive (Dialect)? The answer to this question has been set at rest by a Division Bench of this Court in the case of Ananda Ram Borah v. State of Assam, repotted in 2003 (2) GLT 78, wherein this Court observed and held as follows : "..The question, which call for determination by this Court is, whether the power to relax the Rule would go to the extent of relaxing conditions of recruitment also or it can be only to the extent of relaxing the conditions of service ? Can a direct recruit for recruitment to the post of LDA avoid competitive examination? Can a direct recruit for recruitment to the post of LDA avoid competitive examination? Can the Government exercise power of relaxation of Rule of recruitment requiring a direct recruit to appear in the competitive examination and such relaxation of the recruitment Rules is permissible in Keshab Chandra Joshi v. Union of India, reported in the Apex Court has emphasized the need of strict compliance of the recruitment rules for both direct recruits and promotees. It is held that there cannot be any relaxation of the basic or fundamental Rules of recruitment. That was a case where the Rule permitting relaxation of conditions of service came for consideration and it was held by a three Judges Bench that the Rule did not permit relaxation of the recruitment Rules. In Syed Khalid Rizui v. Union of India the Apex Court observed". The condition precedent, therefore, is that there should be an appointment to the service in accordance with Rules and by operation of the Rule, undue hardship has been caused,.... it is already held that the condition of recruitment and conditions of service are district and the latter is preceded by an appointment according to Rules. The former cannot be relaxed." Thus, according to the Apex Court there is distinction between the conditions of recruitment and conditions of service. Appointment has to be made in accordance with the recruitment Rules and, thereafter, there may be a relaxation in the service condition. Similarly, in State of Orissa v. Sukanti Mohapatra it was held that though the power of relaxation stated in the Rule was in regard to "any of the provisions of the Rules," this did not permit relaxation of the Rule of direct recruitment without consulting the Commission and the entire ad-hoc service of a direct recruit could not be treated as regular service. In Dr. M.A. Haque v. Union of India and in Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan it has been emphatically laid down that the Rule relating to recruitment could not be relaxed. The judgment in the matter of Suraj Prakash Gupta (supra) has also reiterated the principle laid down by the Apex Court that there cannot be any relaxation of the conditions of recruitment. The conditions of recruitment and conditions of service are distinct. Narinder Mohan it has been emphatically laid down that the Rule relating to recruitment could not be relaxed. The judgment in the matter of Suraj Prakash Gupta (supra) has also reiterated the principle laid down by the Apex Court that there cannot be any relaxation of the conditions of recruitment. The conditions of recruitment and conditions of service are distinct. The Government has the power to relax conditions of service, whereas the conditions of recruitment cannot be relaxed even though the Rule intends to do so." (Emphasis is supplied) 7. Thus, notwithstanding the fact that Rule 4 of the Recruitment Rules of 1994 makes provisions for relaxation, these provisions can be applied only to the conditions of service and cannot be resorted to for relaxing the conditions of recruitment; hence, even if the respondents intended to relax the conditions of recruitment under the Recruitment Rules of 1994, they could not have legally done so. Thus, when the petitioners are not qualified to receive appointment as Transmission Executives (Dialect), no direction for regularization of their services under the relevant Recruitment Rules of 1994 can be issued by this Court. 8. Before parting with the case, it may be pointed out that though the respondents have relied on the Scheme framed by them for appointment of casual employees, a copy of the Scheme, which has been produced before this Court by the learned Additional Central Government Standing Counsel, shows that this is the Scheme for regularization of the services of casual Production Assistants and General Assistants in the All India Radio and this Scheme was framed in compliance with the directions given by the learned Central Administrative Tribunal, New Delhi, on 18.9.1992, in Original Application No. 822 of 1991 (Sri Suresh Sharma and Ors. v. Government of India and Ors.). A bare reading of this Scheme clearly reveals that the said Scheme cannot be applied for regularizing the services of Transmission Executive (Dialect) and this Scheme is not applicable to the case of the present petitioners. 9. Thus, neither the Scheme covers the case of the present petitioners nor are they entitled to regularization of their services under the relevant Recruitment Rules. This apart, the appointments of the petitioners have been on contractual basis. It shows that the petitioners knew that their appointments were not permanent in nature and could be rescinded if regular appointments were required to be made. 10. This apart, the appointments of the petitioners have been on contractual basis. It shows that the petitioners knew that their appointments were not permanent in nature and could be rescinded if regular appointments were required to be made. 10. However, in view of the fact that the petitioners have already put in more than 10 years of service as Transmission Executives in various dialects of Arunachal Pradesh and in the process they may not have remained eligible for consideration for such appointments, which they would have, otherwise, been eligible for, it is desirable that the respondents, particularly, respondent Nos. 1 and 2 would consider the cases of the petitioners sympathetically and prepare a Scheme for giving some financial consistency and assurance to the petitioners and accommodate them in some posts suitable to their qualification and experience, which the petitioners have, in the meanwhile, gained. 11. With the above observations and directions, this writ petition shall stand disposed of. 12. Considering, however, the entire facts and circumstances of the case, I leave the parties to bear their respective costs.