OP (CAT).No.2152 OF 2013(Z) (Director General, Prasar Bharati v. T.H. Subramanyam and Union of India)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **OP (CAT).No.2152 OF 2013(Z)** **AGAINST THE ORDER IN OA NO.929/2011 DATED 05-09-2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS:** **1 THE DIRECTOR GENERAL PRASAR BHARATI, NEW DELHI-110 001. 2 THE DEPUTY DIRECTOR OF ADMINISTRATION PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) AKASAVANI BHAVAN, ALL INDIA RADIO PARLIAMENT STREET, NEW DELHI-110 001. 3 STATION ENGINEER PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) ALL INDIA RADIO, THRISSUR.** **BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** ## **RESPONDENTS:** **1 T.H.SUBRAMANYAM STAFF ARTIST (VIOLIN), INSTRUMENTALIST “A” GRADE, ALL INDIA RADIO, RAMAVARMAPURAM P.O., THRISSUR, KERALA-680 110.** **2 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI 110 001.** **R1 BY ADV. SRI.MILLU DANDAPANI R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SMT.SUMATHI DANDAPANI(SR.)** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (CAT).No.2152 OF 2013(Z) 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The claim of the applicant before the Tribunal was for Assured Career Progression [ACP] benefit. On brief facts we have to notice that the applicant joined as an Instrumentalist Grade-III [B Higher Grade] on 25.05.1991 in the pay scale Rs.1,640-2,900/-. He was categorsied as A Grade [Grade-II] w.e.f. 17.05.1993 in the scale of Rs.2,000-6,500/-, which was revised to Rs.6,50010,500/- under the 5[th] Central Pay Commission. The applicant's claim was that he should be given the ACP as on May, 2005 on completion of 12 years of service from 17.05.1993. The ACP on completion of 12 years admittedly is for stagnation in the first appointment itself. The applicant also projected the case of one Anuroop, who joined as A Grade on 04.10.1993 and was afforded the first financial upgradation on completion of 12 years of service. It** OP (CAT).No.2152 OF 2013(Z) 3 **is admitted that Anuroop was appointed initially itself as Grade-A Artist. Immediately we have to notice that if at all the petitioner has a claim for first up-gradation it has to be from the date of his initial appointment in Grade-B High.** **2. The Tribunal found that Grade B, Grade B High and Grade A are not in a regular hierarchy of posts in the line of promotion, in the Prasar Bharati. It was also found that the lower grades cannot be considered as a feeder category to the higher grades. Hence the Tribunal directed the petitioner's case to be considered for ACP, since it was found that there was no promotion as such in his being graded as an Artist Grade-A.** **3. The learned Counsel appearing for the petitioner would rely on Ext:s P-4 & P-5 produced along with the original petition to argue that the Artists in the petitioner Corporation cannot be equated to regular civil servants under the Central Government. The learned Counsel submits that there was a financial up-gradation, as is clear from the** OP (CAT).No.2152 OF 2013(Z) 4 **documents produced in the original petition when the respondent was made Grade-A from Grade-B High and it is in the nature of a promotion. It is also contended that the Tribunal failed to correctly understand the grading given by the Prasar Bharathi, on the recommendation of the Musical Audition Board [MAB], which classifies the artists on the basis of their performance.** **4. The learned Senior Counsel appearing for the respondent/applicant argues to sustain the order of the Tribunal. It is first argued that** _**Syed Abdul Kader Bagakyh v. Secretary, GCDA [2013 (3) KLJ 338]**_ **clearly found the proceedings under Order XLI Rule 27 of the Code of Civil Procedure [CPC] applicable to appeals under Section 5 of the High Court Act and any documents additionally produced has to be accompanied by an application for acceptance of the same in the Appeal, supported by an affidavit showing the reasons as to why it is not produced before the Tribunal.** **5. We are not in an appeal under the High** OP (CAT).No.2152 OF 2013(Z) 5 **Court Act, but are concerned with writ proceedings under Article 226 & 227 of the Constitution of India. Be that as it may, we accept the principle that the CPC always supplies eminent guidelines even to proceedings under Article 226 of the Constitution of India and the Tribunal being the Court of original jurisdiction any document, not produced before the Tribunal, if produced in the writ proceedings ought to be produced along with an application for acceptance of the same, supported by an affidavit explaining the reasons for the nonproduction before the Tribunal. Here that has not been done, but the writ petition was filed in the year 2013, contemporaneous to the cited decision and there has been no objection filed to the original petition. The requirement again is only for filing an application with an affidavit disclosing the reasons; for the purpose of acceptance of the documents to the files. This the petitioner would have done if an objection was raised at the proper time. We do not think that** OP (CAT).No.2152 OF 2013(Z) 6 **after all these years, the petitioner should be asked to file a fresh petition for acceptance of the documents, especially when the matter comes up for hearing and was available in the list for the past many weeks.** **6. We also find that the documents have to be looked into to better understand the engagement of Artists in the Prasar Bharathi, which took over from the Broadcasting Corporation of India. We also notice that the financial up-gradation is very clear from the records produced, based on which the Tribunal itself in its order has found that Grade B High and Grade A are at different scales of pay, the latter having the higher scale.** **7. The learned Senior Counsel then relies on** _**Union of India v. Pushpa Rani and Others [(2008) 9 SCC 242]**_ **to further contend that there was no selection conducted for putting the petitioner at Grade A and in the absence of such a procedure, the movement from Grade-B High to Grade-A cannot be considered as a promotion.** OP (CAT).No.2152 OF 2013(Z) 7 **8.** _**Pushpa Rani**_ **was a case in which** **reservation was applied to a cadre restructuring exercise. It was also argued, as against application of reservation, that a similar cadre restructuring ordered on 25.06.1995 did not provide for or apply the principle of reservation. The Hon'ble Supreme Court found the subject restructuring exercise, by a policy decision of 09.10.2003, was substantially dissimilar to the earlier exercise. The earlier exercise was found to be mere up-gradation of substantial number of posts in the different cadres, which were filled by senior hands after a mere scrutiny of service records and without any selection carried out to assess the** _**inter-se**_ **merit of the candidates. The subject restructuring on the contrary, resulted in creation of additional posts in different cadres with duties and responsibilities of greater importance; the filling up of which was to be carried out from persons having eligibility, subject to their satisfying the criteria for** OP (CAT).No.2152 OF 2013(Z) 8 **suitability and/or merit. We do not think that the facts bare any similarity, for the principle to be applied here; where there is a clear distinction drawn from regular civil services. The declaration therein was primarily to distinguish the earlier exercise from the latter.** **9. We accept the contention that that the normal promotion pattern in a service can have no application in the case of Artists engaged by the Prasar Bharathi. The grading admittedly is done by a Music Audition Board (MAB) and is based on the skill and performance of the artist. There is hence a selection on assessment of the individual capabilities. As we noticed earlier, the order of the Tribunal itself indicates that Grade-B High and Grade-A are in different pay scales, the latter in a higher pay scale than that of the former. The upgradation was also on the basis of the audition conducted by the MAB. The categorization, as has been argued by the learned Counsel for the petitioner, is on the basis of the individual** OP (CAT).No.2152 OF 2013(Z) 9 **performance of the Artists and here, an Artist, who joined as Grade B, was upgraded to Grade A on the basis of his performance, which also has the consequence of a financial up-gradation, which disentitles him from the ACP Scheme.** **10. Exts.P4 & P5 further clarifies the issue. Ext.P4 is an order dated 27.09.2004 of the Prasar Bharati, which speaks about the clarification issued by the Department of Personnel & Training [DOP&T] that financial up-gradation under ACP Scheme would be extended to Instrumentalist by treating up-gradation of their pay scales under the different categories of B, B High, A etc., which would be treated as promotions. It was also clarified by DOP&T that in the other Central Government services, promotions are vacancy based, which often results in stagnation. The very same principle does not apply in the case of Instrumentalists, whose up-gradation is not linked to availability of vacancies. However, it was also stated in the said Office Memorandum that those who** OP (CAT).No.2152 OF 2013(Z) 10 **are unable to upgrade, by proven skill before the MAB, would not be eligible for grant of ACP benefit. This was also in the nature of the specific engagement of Artists, who are expected to constantly upgrade their skills and improve their performance, so as to be placed in the higher category. The blanket condition of no ACP being applicable for persons, who do not upgrade their skills through MAB, was set aside by the later Office Memorandum at Ext.P5 dated 04.05.2011. Relevant is also the fact that the Artists were not upgraded based on vacancies, but were conferred such up-gradation only on the basis of their skills as assessed by the MAB, which gives it also the colour of a selection procedure. The up-gradation on the basis of assessment of skill was also in the nature of a promotion; which remained unchanged as specifically indicated in the the later O.M, Ext. P-5.** **11. On the above reasoning, it is held that the up-gradation of the applicant from B High Grade** OP (CAT).No.2152 OF 2013(Z) 11 **to A Grade is a promotion/upgradation after the initial entry into service, which dis-entitles the applicant from the first financial up-gradation after completion of 12 years for reason of he having not suffered any stagnation in the initial entry post.** **We hence find it difficult to sustain the order of the Tribunal and set aside the same allowing the Original Petition. Parties are left to suffer their respective costs.** ## **Sd/-** ## **K. VINOD CHANDRAN, JUDGE.** **Sd/-** ## **V.G. ARUN, JUDGE.** **sp/04/11/19** **//True Copy//** **P.A. To Judge** OP (CAT).No.2152 OF 2013(Z) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE OM DATED 09/08/1999 INTRODUCING THE ACP.** **ANNEXURE A2** **TRUE COPY OF THE SENIORITY LIST OF INSTRUMENTALIST GRADE-II AS ON 01/01/2010 IN KERALA ZONE.** **ANNEXURE A3 TRUE COPY OF THE ORDER DATED 25/03/2010. ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED** **TRUE COPY OF THE REPRESENTATION DATED 22/04/2010.** **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 22/04/2010.** **ANNEXURE A6 TRUE COPY OF THE ORDER IN OA NO.516/2010. ANNEXURE A7 TRUE COPY OF THE ORDER DATED 20/07/2010. ANNEXURE A8 TRUE COPY OF THE ORDER DATED 08/02/2010. ANNEXURE A9 TRUE COPY OF THE ORDER DATED 09/02/2011. ANNEXURE A10 TRUE COPY OF THE ORDER PASSED IN CP(C) NO.98/2010 IN OA NO.516/ DATED 04/03/2011. ANNEXURE A11 TRUE COPY OF THE ORDER DATED 02/08/2011. ANNEXURE A12 TRUE COPY OF THE ORDER DATED 22/08/2011. ANNEXURE A13 TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST OF THE APPLICANT.** **ANNEXURE A14 TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST OF SHRI C.S. ANUROOP. EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 5.9.2012 IN OA NO.929/2011.** **EXHIBIT P4 TRUE COPY OF THE CLARIFICATION OM NO.8.22004-S-VIII DATED 27/09/2004.** OP (CAT).No.2152 OF 2013(Z) 13 **EXHIBIT P5** **TRUE COPY OF THE CLARIFICATION OM NO.8/4/2009-S-VIII(PT)/313 DATED 4/5/2011.**