Legal Notice

Amiy Shukla

Advocate

c/o Human Rights Law Network             

576, Masjid Road, Jungpura

New Delhi

Tel: 24379857 email: amiy2906@gmail.com

11.09.2013

To,

1.     Prof. D.P.Agrawal,

Chairman ,

Union Public Service Commission,

Dholpur House,

Shahjahan Road,

New Delhi.

2.     Dr. Syamal Kumar Sarkar,

Secretary ,

Department of Personnel & Training,

North Block,

New Delhi.

3.     Shri Bimal Julka,

Secretary ,

Ministry of Information & Broadcasting

Shastri Bhavan

New Delhi.

Sub:     In the Supreme Court of India,  Civil Appeal 4387 of 2007 in the matter of Association of UPSC  Recruited Programme Officers of AIR and DD Vs Union of India & Others.

Sirs,

I write this letter in response to the letters written by Secretary, Ministry of  Information &  Broadcasting  to you and other persons seeking to pressurise UPSC and DOP&;T to revise the stand taken by UPSC and DOP&T as found in Secretary UPSC Shri  A. Bhattacharya’s  affidavits dated 22^nd March 2012 , the DOP&T advisory to the UPSC dated 6^th March 2012 and the  subsequent communication of  UPSC  to the Ministry of I&B dated  20^th March 2013  filed before the  Principal Bench of CAT,  New Delhi in C.P. No. 217/2005 in O.A.No.399/2001.

In this regard my colleague Adv Svetlana Correya had addressed a letter to you dated 06.05.2013 bringing to your attention that the application filed in the Supreme Court by the All India Radio and Doordarshan Programme Professional Association on behalf of the staff artists, seeking to challenge the stand of the UPSC and DOPT as stated in the abovementioned affidavits, was dismissed by the Supreme Court as recent as 18.04.13. The legal notice dated 6.05.13 together with the order of the Supreme Court dated 18.04.13 is annexed with this letter for your convenience.

Though fully aware that the staff artists had failed to convince the Supreme Court  that the stand of the UPSC and DOP&T as stated in the above mentioned affidavits/communications was wrong , the Secretary I&B is now  seeking  to pressurise UPSC and DOP&T to revise their stand in accordance with the above mentioned application made by the erstwhile contractual staff artists in the Supreme Court , which was dismissed. The Secretary I &B is attempting to interfere with the Court proceedings even though he knows that the matter is fixed for final hearing in the Supreme Court and is showing on the cause list. There is thus deliberate and willful interference with the course of justice.

In fact, in a companion matter being Union of India Vs Satish Chandra Mathur (Civil Appeal No. 12801 of 1996 dated 1.5.2001), the Supreme Court has already decided a matter similar to the present civil appeal No.4387/2007. Copy of the decision of the Apex Court is annexed with this letter , wherein the Supreme Court has upheld the principle of Screening by UPSC  for appointment/induction in the grade of Programme Executive , as provided in the statutory rules (Rule 4A of the All India Radio Group B Posts Recruitment(Amendment) Rules of 23.10.1984). You will notice that the stand taken in the affidavits of UPSC and DOPT above mentioned are in consonance with this Supreme Court decision. The Secretary, I&B would have you act contrary to this Supreme Court Judgment.

The pressurising attempts of the Secretary I&B and his persistence in acting contrary to law will be brought to the notice of the Supreme Court when the matter is finally argued shortly. The Chairperson , UPSC and the Secretary,  DOPT are requested not to succumb to his pressure and to act in accordance with their  above mentioned affidavits filed before the Hon’ble CAT Delhi, against which applications were filed in the Supreme Court supported by I&B’s stance in the matter  and this application has been dismissed. There is therefore no impediment to UPSC and DOP& T acting strictly in accordance with the affidavits dated 19.1.2012, Secretary UPSC’s affidavit dated 22.3.2012 with the DOP&T advisory to UPSC dated 6.3.2012 and UPSC Communication dated 20.3.2013  above mentioned. Secretary UPSC’s affidavit dated 22.3.2012 incorporating the DOP&T advisory to UPSC dated 6.3.2012 and UPSC Communication dated 20.3.2013    are annexed hereto.

Sincerely

Amiy Shukla

Encl: A/a

Prayers of staff artists dismissed as devoid of merit by Supreme Court and related Supreme Court Order

The  Specific Prayers  of the Staff artists  in their I.A's 5 & 10  (interim applications) in   Civil Appeal 4387/2007 (AUPO Case)which were collectively  dismissed as devoid of merit by the Supreme Court on 18.4.2013  are  reproduced  below:-



PRAYER in first  I.A. No.5 (dated 27th March 2012) filed by the Staff Artists



a) Pass an order/direction directing Respondent No.4 UPSC not to act or convene a DPC based on its affidavit dated 19.1.2012 filed before CAT , New Delhi in C.P.No.217 of 2005   in O.A.No. 399/2001 and on the basis of letter dated 06.03.2012 sent by DOP&T to UPSC in so far as it may involve reopening the regularization and relevant seniority  of staff artists and such promotions which have been duly affected by the judgment of  the Hon'ble Supreme Court.

b) Pass such order or further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.



PRAYER in  second I.A. No.10  (dated 10th April 2013) filed by the Staff Artists



a) Pass an order/direction directing Respondent No.4 UPSC not to act or convene a DPC based on its letter dated 20.03.2013 sent to the Ministry of I&B in so far as it may involve reopening the date of regularisation and relevant seniority of staff artists and such promotions which are in tune and in terms of the judgment of the Hon'ble Supreme Court.

b) Pass such order or further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.





SUPREME COURT ORDER DISMISSING  BOTH APPEALS  MADE  BY STAFF ARTISTS  IN I.A. No. 5 and I.A. No 10    IS  REPRODUCED BELOW:-

ITEM NO.49               COURT NO.8             SECTION XIV

S U P R E M E   C O U R T   O F   I N D I A

RECORD OF PROCEEDINGS

IAS 5 & 10/2013 in CIVIL APPEAL NO. 4387 OF 2007

ASSN.OF UPSC RECRUITED PROG. OFFICER ETC          Appellant (s)

VERSUS

UNION OF INDIA & ORS.                             Respondent(s)

(With appln(s) for directions and office report )

Date: 18/04/2013  This Appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE T.S. THAKUR

HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA

For Appellant(s) Mr. Colin Gonsalves, Sr. Adv.

Ms. Sevtlana C. Adv.

Mr. Juno Rahman, Adv.

Ms.Jyoti Mendiratta,Adv.

For Respondent(s) 
      
  Ms. Sunita Sharma, Adv.

Ms. Varuna Bhandari, Adv.

Mr. S. Wasim A. Qadri, Adv.

Mr. D.S. Mahra ,Adv

Mr. R. Venkataramani, Sr. Adv.

Ms. Charudatta Mahindrakar, Adv.

Mr. Shodhan Babu, Adv.

Ms. Neelam Singh, Adv.

Ms. Supriya Garg, Adv.

Mr. Aniruddha P. Mayee,Adv.

Mr. Bharat Sangal ,Adv

Mr. Ashwani Bhardwaj ,Adv

UPON hearing counsel the Court made the following

O R D E R

Delay condoned.

Heard.

This application has no merit and  is  dismissed  with  the

observation that any order passed by the UPSC shall remain, subject

to the ultimate outcome of this appeal, pending in this Court.

|   (GEETA AHUJA)                   |(VEENA KHERA)                |

|  Sr. P.A.                         |      Court Master           |

Explanatory Note:

1. Note that the  Staff artists Prayer  to  prevent   UPSC from acting on its  letter of 20.3.2013  has been dismissed as without merit. (This means that the UPSC can act on its letter of 20.3.2013) .  Please see scanned copy of  UPSC  letter  on the blog.

2. The Supreme Court order dismissing the staff artists  prayer also reaffirms that "any order passed by UPSC shall remain"....

Thus the Supreme Court has declared that   not only the UPSC letter dated 20.3.2013  which the staff artists had prayed to quash  (posted on the blog) is upheld , but any  previous clarifications/order  made by UPSC,  such as UPSC Secretary's affidavit  with DOPT advisory etc also remains (i.e is upheld/ to be followed ). 

3.  subject to the  ultimate outcome of this appeal ...

 This means that the Supreme Court has  directed that the  UPSC may go along with the action proposed in its letter dated 20.3.2013 regarding conduct of review DPC for the period 1990  onwards  by

a) refusing contract service

b)  strictly going by date of screening into the grade of PEX by UPSC

c)  removing those not screened from eligibility list etc ....

The above action  would be ultimately subject to any decisons/additional directions/observations  etc that the supreme court may make during the course of the Ashraf Lone Review DPC for the  previous period  i.e 1982- 1989 (before IBPS) .

PSA LIES EXPOSED !

1. Staff Artists attempt with PSA support  to  stay  UPSC findings dismissed and  declared devoid of merit by Supreme Court.

2. "PSA  manipulation of facts  and lies  completely ignored  and   controverted  point by point  by  UPSC in communication to Ministry " .

3. Supreme Court has directed  UPSC  go ahead with the review DPC to JTS Production of the IBPS.   (See PSA  misrepresentation and lies in the below given  letter  and The UPSC"s rebuttal)

SUPREME COURT STUNS STAFF ARTISTS -DISMISSES PLEA TO STAY REVIEW DPC BY UPSC .. ALLOWS UPSC TO PROCEED WITH JTS PRODUCTION REVIEW DPC PENDING BEFORE CAT

In a major blow to the Staff artists and the PSA  ,  the Supreme Court  on Thursday April 18th   dismissed an IA filed  by  erstwhile contractual Staff Artists to prevent the UPSC from    conducting  review DPC as per rules  (from 1990 onwards)  stating that their  plea had no merit. The Supreme Court also directed that the  UPSC  may  go ahead with the review DPC of JTS of the IBPS (on the lines planned by the UPSC) .

On behalf of the Staff Artists , Senior Counsel Venkatramani pleaded that  the UPSC was unnecessarily trying to reopen old issues  relating to seniority and eligibility which was no longer  warranted. The Supreme Court refused the  staff artists plea to prevent the UPSC from conducting the review DPC , and instead  directed the UPSC to   go ahead with  the Review DPC .  The review will be subject to the outcome of AUPO's  Ashraf Lone review DPC case pending before the Supreme Court for the earlier period (1982-1989) . Senior Counsel , Colin Gonsalves, appeared for AUPO. The SLP had been filed as an I.A in AUPO's Ashraf Lone review DPC Case. 

Implications of the Supreme Court Order

1. Since the  Supreme Court while dismissing the SLP of the staff artists  states that the argument has no merits, the   Supreme Court order has  effectively negated all   arguments  raised by staff artists in  the SLP  . These are  the same arguments  put forth by  the Ministry of I&B ,  DG:AIR, The  PSA    to repeatedly block the   JTS review DPC case    granting   production posts of IBPS to the Pexs. 


   2.   Those  who have received illegal benefits  and promotions in IBPS Production cadre will have to  be reverted and their places given to  eligible UPSC recruited PEXS  -------( .The UPSC,   after  verification/scrutiny  of  its records has  been repeatedly pointing  out to the Ministry of  I&B and DG:AIR that  many non eligible contractual  persons  have been  wrongly promoted  to the IBPS   at the cost of  eligible UPSC recruited Programme Executives)

3. Undue seniority  given to  the contractual staff artists so far   by treating contractual service as regular service would also have to be rectified ------------. UPSC had  repeatedly pointed out  that    staff artists were being given undue benefits/seniority by wrongly preparing  eligibility lists  showing contractual service of staff artists as  regular service in the grade of Programme Executive  in violation of rules and the Ashraf Lone J&K High Court judgment upheld by the Supreme Court ------.

4. Removal of illegal entrants  from  the programme executive cadre  who do not figure in upsc  screening records----------------. Only those who had been screened and found suitable  by UPSC  can  figure in the eligibility lists as per rules and as per specific  directions of the Supreme Court in the Satish Chandra Mathur judgment.    UPSC has desired that all those who were not screened by UPSC will have to be removed from the eligibility lists .  
. 
4. The  Supreme Court direction  ensures that the Ministry/Department cannot hold up the  JTS  of IBPS review DPC ordered by  CAT nine years ago on 26.3.2004 - any longer. 

AUPO LEGAL FUND

AUPO bank details for contributions.
Association of UPSC
Recruited Programme Officers of AIR and Doordarshan, SB Account No.
601610100045188. IFSC Code- BKID 0006016
MICR Code 110013024. Do not use
abbreviation aupo. Use full name of
Association for crossed cheque. Our bank
is Bank of India, Parliament Street, New Delhi – 110 001.

To strengthen AUPO legal fund,"ALL AUPO MEMBERS INCLUDING RETIRED PERSONS MUST IMMEDIATELY RUSH CONTRIBUTIONS FOR THE ASHRAF LONE SUPREME COURT CASE.

Ad-hoc Appointment / Promotion — Review – Regarding

Thursday, April 4, 2013
Ad-hoc Appointment / Promotion — Review  – Regarding

No.28036/1/2012-Estt(D)
GOVERNMENT OF INDIA
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS
DEPARTMENT OF PERSONNEL & TRAINIING

North Block, New Delhi,
Dated the 3rd April, 2013

OFFICE MEMORANDUM


Subject: Ad-hoc Appointment / Promotion — Review of – Regarding.

The undersigned is directed to say that as per the extant policy of the Government, all posts are to be filled in accordance with provisions of the applicable Recruitment Rules/Service Rules. As explained in this Department’s O.M. No.28036/8/87-Estt.(D) dated 30.03.1988 read with O.M. No.28036/1/2001-Estt.(D) dated 23.07.2001, promotions/ appointments on ad- hoc basis are to be resorted to only in exceptional circumstances mentioned therein, to a post which cannot be kept vacant in consideration of its functional/operational requirement. In spite of these express provisions, it has come to the notice of this Department that the Ministries/Departments are resorting to ad-hoc arrangements in total disregard to the statutory provisions/instructions on the subject as well as proper manpower management and career advancement of the employees.

 2. This Department has been impressing upon all the Ministries/ Departments from time to time to take adequate steps in advance so as to achieve the desired objective of timely convening of the Departmental Promotion Committee (DPC) meetings and preparing the approved select panels for regular appointments/promotions within the prescribed time limits. However, at many a time, due to non-adherence to the prescribed norms and procedures by the Ministries/Departments, the approved select panel is not ready in time and ad-hoc arrangements are resorted to. Some Ministries/Departments have taken non-acceptance of their incomplete proposals for DPCs, by the UPSC, as the reason for resorting to ad-hoc appointments. In this regard, as already emphasized in this Department’s

O.M. No.22011/3/2011-Estt.(D) dated 24.03.2011, it is reiterated that the responsibility of sending the DPC proposals, complete in all respect, to the UPSC, lies entirely on the administrative Ministries/ Departments concerned.

 3. Other reasons for resorting to ad-hoc arrangements are absence/revision of Recruitment Rules, disputed Seniority Lists etc. With regard to tackling the problem of absence of RRs, it may be pointed out that the OM No. AB 14017/79/2006-Estt. (RR) dated 6th September, 2007 provides that where no Recruitment Rules exist or where the existing Recruitment Rules are repealed as per the prescribed procedure, the option of approaching the UPSC for one time method would be available. These instructions further provide that it will not be feasible or advisable for the UPSC to suggest one time method of recruitment in cases where Recruitment Rules exist even if they are perceived as unworkable. In such situations, the administrative Ministries/Departments will have to process necessary amendments required in the Recruitment Rules and, thereafter, initiate the recruitment process.

4. Ad-hoc appointments/promotions should be made only in rare cases and for exigencies of work, where the post cannot be kept vacant until regular candidate becomes available. Persons appointed on ad-hoc basis to a grade are to be replaced by persons approved for regular appointment by direct recruitment, promotion or deputation, as the case may be, at the earliest opportunity. As already provided in this Department’s O.M. No.28036/1/2001- Estt.(D) dated 23.07.2001, no appointment shall be made on ad-hoc basis by direct recruitment from open market. Where the vacant post cannot be kept vacant for functional considerations, efforts are required to be made to entrust the additional charge of the post to a serving officer under provisions of FR-49, failing which only appointment by ad-hoc promotion/ad-hoc deputation is to be considered in terms of provisions of this Department’s O.M. No.28036/8/87-Estt.(D) dated 30.03.1988.

 5. As already provided in this Department’s O.M. No.22011/3/75-Estt.(D) dated 29th October, 1975, and reiterated in O.M. No.28036/8/87-Estt.(D) dated 30.03.1988 and O.M. No.28036/1/2001-Estt.(D) dated 23.07.2001, an ad-hoc appointment does not bestow on the person a claim for regular appointment and the service rendered on ad-hoc basis in the grade concerned also does not count for the purpose of seniority in that grade and for eligibility for promotion to the next higher grade. As per existing provisions, these facts are to be clearly spelt out in the orders of the ad-hoc promotions/ ad-hoc appointments. Therefore, such ad-hoc arrangements are neither in the interest of the individuals nor the organizations concerned. It is, thus, not appropriate to resort to ad-hoc arrangements in a routine manner.

 6. As per existing instructions vide O.M. No.28036/8/87-Estt.(D) dated 30.03.1988 and O.M. No.28036/1/2001-Estt.(D) dated 23.07.2001, the total period for which the appointment/ promotion may be made, on an ad-hoc basis, keeping in view the exceptionalities anticipated in these OMs, by the respective Ministries/ Departments, is limited to one year only. These instructions further provide that in case of compulsions for extending any ad- hoc appointment/promotion beyond one year, the approval of the Department of Personnel and Training is to be sought at least two months in advance before the expiry of the one year period. Also, if the approval of the Department of Personnel & Training to the continuance of the ad-hoc arrangement beyond one year is not received before the expiry of the one year period, the ad-hoc appointment/promotion shall automatically cease on the expiry of the one year term. Notwithstanding these provisions, instances have come to notice of this Department where Ministries/ Departments have continued ad-hoc arrangements beyond one year without express approval of this Department, and later on, approached this Department to seek ex-post facto approval for continuation of such arrangements. It is reiterated that continuation of any ad-hoc arrangement beyond one year and release of pay and allowances for the same, without express approval of this Department is not in order.

 7. This Department vide O.M. No.39036/02/2007- Estt.(B) dated 14.11.2008, has requested all the Ministries/ Departments to comply with the regulation-4 of the UPSC (Exemption from Consultation) Regulations, 1958, which provide that if a temporary or officiating arrangement made by ad-hoc appointment to a post falling within the purview of UPSC is likely to continue for a period of more than one year from the date of appointment, the Commission shall immediately be consulted in regard to filling up of the post. For this purpose, the Ministries/Departments are required to furnish monthly and six-monthly returns to the Commission showing all such Group ‘A’ and S’

Gazetted appointments and promotions made without reference to the Commission, as emphasized in this Department’s OM No. 39021/1/94-Estt.(B) dated 22.07.1994. These instructions are again reiterated and all the Ministries/Departments are requested to ensure that requisite returns are furnished to the Union Public Service Commission as per the time schedule prescribed so as to effectively monitor the ad-hoc appointments being resorted to by various Ministries/Departments without consulting the UPSC.

8. All the administrative Ministries/Departments are requested to review the ad-hoc appointments/promotions made by them, from time to time, and at least once a year, on the basis of the guidelines and instructions in force, so as to bring down the instances of such ad-hoc manpower arrangements to the barest minimum, in respect of both Secretariat as well as non-Secretariat offices under them.

 sd/-

(Pushpender Kumar)
Under Secretary to the Government of India