Friday, November 2, 2012

OA no 469 / 2009 on ???????????-2011



TODAY, THIS THE           DAY OF ................. , 2011


K.T. Krishna Kanth,
S/o K.N. Thimmaiah,
Aged about  57 years,
News Reader-cum-Translator,
All India Radio,
Bangalore-560 204.                                     ...                                 Applicant

(By Advocate Shri S. Sugumaran)


1. Union of India,
   by its Secretary to Information
   And Broadcasting Ministry,
   Shastri Bhavan, AGCR Building
   New Delhi – 110 001.

2. Prasar Bharati (Broadcasting
   Corporation of India),
   by its Director General,
   All India Radio,
   Parliament Street,
   New Delhi – 110 001.

3. Chief Executive Officer,
   Prasar Bharati,
   PTI Building,
   Parliament Street,
   New Delhi – 110 001.

4. Station Director,
   All India Radio,
   Raj Bhavan Road,
   Bangalore – 560 204.                               ...                         Respondents

(By Advocate Shri S. Prakash Shetty,
Additional Central Govt. Standing Counsel)

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Hon'ble Smt. Leena Mehendale, Member (A) :

            This OA is filed on 22-10-2009 under Section 19 of the Administrative Tribunals Act, 1985,  for claiming the benefit of ACP Scheme, where the stand of the department is that the same is not available in view of the voluntary action of the employee.

2.         The brief facts are that the applicant joined the Information and Broad-casting Ministry on 08-12-1976 as an Announcer and then as News Reader-cum-Translator (NRCT) in 1983 and then again as NRCT Gr.III with effect from 04-08-1984 through limited selection from among the staff Artists.  All the above categories were together called staff artists and are contractual posts and are governed by the terms and conditions of the contract. 

3.         Under Annexure-A/1, the Department has introduced a new scheme in the year 1983 which allowed option to remain as staff Artists under the existing contractual terms or to be treated as "Artists" under the new scheme. The applicant refers to the appointment order dated 16-10-1985 which has a retrospective effect from 04-08-1984  (Annexures-A/2 and A/3) as the beginning of the new contract as "Artist" as per his option.

4.         The scheme was further clarified by letter dated 29.11.1991 (Annexure-A/4) by which the scheme of classification of Staff Artists of AIR and Doordarshan as Government servants and Artists as contractual has been recommended and the revised decision introduced, calling for option once again  either to come over to new scheme as deemed Government
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servants or to continue in their existing contractual terms and conditions as Artist.  The applicant again opted to remain as Artist. 

5.         In the meantime, the Government has been adopting a policy of giving some benefits of regular service to the contractual employees also and the benefits such as keeping same Recruitment Rules (Annexure-A/5) and drawing common seniority list, (Annexure-A/6), and giving same pay as would be obtained from a pay-scale and annual increments. All these benefits are applicable to these Artists even when they have not chosen to get absorbed as a Government servant in the department.  It is pertinent to note that these benefits are available as a part of the contractual agreement.

6.         That being the case, the applicant claims that since he is treated on par with the Government employees working as Government employees in the Akashvani/Doordarshan and is getting all the above stated benefits, the benefit of ACP scheme must become available to him and denying the same is virtually creating an artificial discrimination.  He claims that the ACP benefits have become available to many of his juniors who have opted for the 1991 scheme.  But, the same has been denied to the applicant even after 25 years of service in the same post, viz., NRCT-Gr.III.

7.         The learned counsel for the applicant submits that this is a very short point that the safety net of the ACP scheme cannot be denied to him solely on the ground that he is not a regular employee but only a contractual employee.  In support of his claim, he argued that he is drawing time-bound pay scale under various Pay Commissions.  Further he is entitled to perks like D.A., H.R.A., C.C.A., Bonus, LTC, Medical facility,  and that there is a
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common seniority list governing the applicant as well as the Govt. employees based on which the promotions are accorded to both the "Artists" and the government employees.  As such, his juniors in the Gr.III who are Government employees have been given ACP benefit and his discrimination is arbitrary (Refer Annexure-A/16).

8.         When he raised this issue with the Respondent department, the said department issued Memo No. Ban.19(6)/2009-S, dated 29.7.2009 as at Annexure-A/11, which is the impugned order. The main prayer is to quash the said impugned order and to direct the respondents to grant the 1st and 2nd ACP benefits to the applicant counting his service from 4-8-1984 and pay the arrears of pay and allowance and all other benefits from the date of accrual of the same.

9.         The learned counsel for the respondents has argued through the reply statement as well as through oral arguments that it was a practice in the Department of Information & Broadcasting that various employees such as Staff Artists, News Readers, Translators, etc. were taken on a 5 year contractual basis and the contract can be extended upto thte age of superannuation.  However, in 1991, the Government took a conscious decision and vide DG, AIR, New Delhi, letter No.18/1/91SVIII, dated 13.12.1991 together with MIB's letter No.45011/ 29/91-B(A), dated 29.11.1991 formulated a scheme.  This was done after the Hon'ble Supreme Court order dated 25-04-1988 directing the Govt. to review the earlier scheme of 1983 and allow fresh options to be exercised  Thereafter, the new scheme referred to above dated 13-12-1991 was prepared.  Since the
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applicant has opted out of it by his own choice and has not elected to get absorbed in the department as a Government servant, and has taken the option to remain a free lance artist, he will continue to get some benefits on par with the regular employees, but, cannot claim all the benefits.  Hence, the request for giving him the benefit of the ACP scheme is not maintainable.

10.       We have heard both the learned counsels and considered their written and oral arguments. 

11.       We agree with the learned counsel for the Respondents that having opted to remain as a free lance artist, the applicant cannot claim that all the benefits available to those who opted for getting absorbed as a Government employee would be available in toto to the applicant.  We agree with the learned counsel for the respondents that there has to be some trade-off when the applicant has consciously and deliberately made a choice of remaining a free-lancer and cannot therefore, claim to be eligible for each and every benefit available to those who opted to become Government servants.

12.       Accordingly, the OA is dismissed.  No order as to costs.

                 (V. AJAY KUMAR)                                     (LEENA MEHENDALE)
                     MEMBER (J)                                                    MEMBER (A)


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