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Judgment
The applicant claims that he was engaged as a Casual Labourer from 1996 onwards in the Departmental Canteen of All India Radio, Trivandrum. Thereafter, he was continuously engaged against a Group D post as Casual Labourer on monthly payment basis. Even when he was engaged through sponsorship through outside agency, he continued to discharge same duty as that of a Group D employee. He made repeated representations for regularisation on the ground that he is being continuously engaged from 1999 onwards. But his application for regularisation was not considered. When his Annexure A-11 representation was not considered, he moved this Tribunal with O.A 180/592/2015. That Original Application was disposed of by Annexure A-12 order dated 28.9.2018 directing the 2nd respondent – Director General of All India Radio to consider and dispose of his representation at Annexure A-11, after affording an opportunity of being heard, within three months from the date of receipt of a copy of the order.
The first grievance of the applicant is that even though specific directions were issued by this Tribunal in Annexure A-12 to the 2nd respondent to consider and dispose of his representation, Annexure A-14 order has been passed by the 5th respondent, the Station Director of All India Radio, who is not the competent authority.
Thereafter, Annexure A-15 Scheme has come into force which was framed on the lines of the directions issued by the Hon'ble Supreme Court in Secretary, State of Karnataka and Others v. Umadevi and Others, [(2006) 4 SCC 1]. Accordingly, applicant gave Annexure A-16 representation, but that was not even forwarded to the 2nd respondent. Referring to Annexure A-15, learned counsel for the applicant submits that there is positive direction in the circular dated 5.9.2019 that all the Heads of Office of the respective offices/Stations/Kendras and other offices of All India Radio and Doordarshan, CCW and News Directorates, including RNUs shall compile all applications so received and forward the same alongwith copies of the relevant records, duly certified by the Heads of Office, to the Directorate General of AIR/Directorate General of Doordarshan/DG(NSD)/DG:DD (News) or CE, CCW, as the case may be by 4.12.2019. But by Annexure A-17 order, such representation was not forwarded by the 6th respondent on the premise that they found it not possible to forward the same as per the guidelines issued under Annexure A-15.
Aggrieved by the same, the applicant has moved the Tribunal with this Original Application for quashing Annexures A-14 and A-17 orders and to direct the 2nd respondent to consider regularisation of the applicant in the vacant post of Group D, against which the applicant has been working under the 1st respondent from 1999 onwards.
The respondents have disputed the contentions of the applicant. According to them, Annexure A-13 representation was considered by the 2nd respondent himself and thereafter, the 5th respondent was authorised to issue orders and that was how Annexure A-14 order was passed by the 5th respondent with the approval of the 2nd respondent. Regarding the time line in Annexure A15, it is submitted that, due to the extra ordinary situation caused due to Covid-19 pandemic, fresh time line for receipt of applications will be fixed, that it has been decided to make the entire process of implementation of the scheme online. According to the respondents, that the applicant has already been intimated about the extension of the time line, if the applicant wishes to apply again, that would be considered by the competent authority.
In this regard, in the rejoinder the applicant submitted that, Annexure A-18 further communication has been issued enlarging the time line already fixed
I heard the learned counsel for the applicant Shri.Vishnu S Chempazhanthiyil and Shri.N.Anilkumar, the learned Senior Panel Counsel.
The learned counsel for the applicant has submitted that there are materials to say that the applicant is being engaged from 1999 onwards on regular basis; even today, he is continuing as such. There are pieces of evidence to say that he was working against a substantive post of Group D. According to him, though this Tribunal had specifically directed the 2nd respondent to consider and dispose of Annexure A-11 representation, that should have been done by the 2nd respondent himself and such a power should not have been delegated to the 5th respondent. To this contention, learned Standing Counsel for the respondents has highlighted Annexure R-2, whereunder, it is clear that the 5th respondent has been authorised to issue the speaking order enclosed therewith. Referring to Annexure A-14, the learned Standing Counsel submitted that the order has been issued with the approval of the 2nd respondent.
But as rightly pointed out by the learned counsel for the applicant, for two reasons, the course adopted by the respondents cannot be accepted. Firstly, there is positive direction by this Tribunal in Annexure A-12 to the 2nd respondent to consider and dispose of Annexure A-11 representation within a time frame. That has not been done. Secondly, even though Annexure R-2 indicates that a speaking order was passed and enclosed along with communication, that document is not forthcoming. If such a speaking order was passed by the 2nd respondent, the competent authority, there is no impediment to produce the same before the Tribunal. Annexure R-10 leaves no doubt that the representation was not considered by the 2nd respondent. It is also evident from the averments in the reply statement that after some inter-office communications, the 2nd respondent 'requested the Head of Office, All India Radio, Thiruvananthapuram to examine the representation and submit a reasoned speaking order duly attested by Head of Office.....' . That means, the representation was not considered by the 2nd respondent, which cannot stand for judicial scrutiny.
Moreover, when this Tribunal directed to consider the representation by a competent authority, he himself should do the task and is not expected to make a further delegation. The maxim delegatus non potest delegare is quite appropriate. Since the Annexure A14 was passed by an incompetent officer, without following the direction of the Tribunal, it cannot stand judicial scrutiny.
Turning to Annexure A-17, the communication indicates that Annexure A-16 representation given by the applicant pursuant to Annexure A-15 circular was considered at the level of the 6th respondent who took the decision that it need not be forwarded to the Directorate. As rightly pointed out by the learned counsel, that also has not been dealt with in terms of Annexure A-15 circular. As submitted by the learned counsel for the applicant, the Annexure A-15 circular clearly mandates that the Head of Office at the local level can only compile and forward the representation along with the documents. But contrary to this, the 6th respondent has rejected the application at the threshold for which he has no competency. The eligibility or otherwise of the applicant should have been vetted by the competent authority i.e, the 2nd respondent. Here, since the representation was axed at the level of the 6th respondent itself, the 2nd respondent has not got the opportunity to consider and take a decision thereon, which is against the very scheme and procedure laid down in Annexure A-15. Therefore, Annexure A17 also cannot stand.
In the result, both Annexures A-14 and A-17 are quashed and the 2nd respondent is directed to consider the claim of the applicant afresh and take decision on regularisation of the applicant within a period of 90 days from the date of receipt of a copy of this order.
The Original Application is allowed of as above. No costs.
List of Annexures
Annexure A1- True copy of the Experience Certificate No.TVM/Per/2005 dated 25.4.2005 issued from All India Radio, Thiruvananthapuram
Annexure A2- True copy of the Experience Certificate dated 27.4.2005 issued by the Regional Training Institute, All India Radio, Thiruvananthapuram
Annexure A3- True copy of the communication No.RTI.TVM.ADMN/09 dated 24.11.2009 issued by the Regional Training Institute, All India Radio, Thiruvananthapuram
Annexure A4- True copy of the communication No.7/30/2009-SVI/233 dated 23.4.2010 issued by the Directorate General, All India Radio
Annexure A5- True copy of the communication No.10/12/2012-S.VI/472 dated 25.6.2012 of the Directorate General, All India Radio
Annexure A6- True copy of the communication No.RTI/TVM ADMN/12-13/200 dated 01.08.2012 issued by the Regional Training Institute, All India Radio, Thiruvananthapuram
Annexure A7- True copy of the communication No.5/6/2013-SVI dated 25th April, 2013 issued by the Directorate General, All India Radio
Annexure A8- True copy of the communication No.RTI.TVM 19(3) 2013-14/90 dated 30.04.2013 issued by the Regional Training Institute, All India Radio, Thiruvananthapuram
Annexure A9- True copy of the communication No.TVM-14(2)/2014-RTI-2678 dated 26.8.2014 issued by the All India Radio, Thiruvananthapuram
Annexure A10- True copy of the communication No.RTI/TVM. Admn/10 dated 14.01.2011 issued by the Regional Training Institute, All India Radio, Thiruvananthapuram
Annexure A11- True copy of the representation dated 10.7.2015 addressed to the Director General, All India Radio
Annexure A12- True copy of order dated 28.9.2018 in O.A No.180/00592/2015 of the Hon'ble Tribunal
Annexure A13- True copy of request dated 23.10.2018 to the 2nd respondent
Annexure A14- True copy of order No.TVM-19(2)/2015-S(Court)/592/15/1179 dated 29.4.2019 issued by the 5th respondent
Annexure A15- True copy of circular vide No.03/04/2019-LC dated 5.9.2019 issued by the Prasar Bharathi Secretariat
Annexure A16- True copy of the representation dated 14.10.2019 submitted by the applicant
Annexure A17- True copy of the communication No.TVM-1(3)/2019-S/Irregular Apptt./672 dated 9.12.2019 issued by the 6th respondent
Annexure R1- True copy of OM No.24/10/2015-S-VI/62 dated 11.3.2019
Annexure R2- True copy of OM No.24/10/2015-S-VI/62 dated 13.4.2019
Annexure R3- True copy of OM No.13/46/2001-P-III dated 3.1.2019
Annexure R4- True copy of Judgment dated 10.01.2006 by Supreme Court of India
Annexure R5- True copy of OM No.51016/2/90-Estt © dated 10.9.1993
Annexure R6- True copy of letter No.10/30/2-12-S-VI/729 dated 3.10.2012
Annexure R7- True copy of letter dated 1.1.2019
Annexure R8- True copy of OM No.24/10/2015-S-VI/33 dated 4.2.2019
Annexure R9- True copy of letter dated 8.12.2019
Annexure R10 True copy OM dated 11.3.2019
Annexure R11- True copy OM dated 13.4.2019 ///