SCA/21662/2005 1/57 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21662 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= HASMUKH BARADI & 4 - Petitioner(s) Versus PRASAR BHARTI(BROADCASTING CORPORATION OF INDIA)THR' & 6 - Respondent(s) ================================================= Appearance : GIRISH PATEL ASSOC for Petitioner(s) : 1 - 5. MR YN RAVANI for Respondent(s) : 1, NANAVATI & NANAVATI for Respondent(s) : 1 - 3. RULE SERVED for Respondent(s) : 3, 5, SCA/21662/2005 2/57 JUDGMENT RULE NOT RECD BACK for Respondent(s) : 4, MR VIREN G DAVE for Respondent(s) : 5, MR PR NANAVATI for Respondent(s) : 6, MR KH BAXI for Respondent(s) : 7, MR ROHIT S VERMA for Respondent(s) : 7, ================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/04/2006 ORAL JUDGMENT 1.By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order and/or directions declaring the decision of the respondent authorities i.e. Prasar Bharti (Broad Cast and Corporation of India) to allot the work to the private respondents for a Commissioned Programme for producing Telefilms on Indian Classics in Gujarati to the respondent Nos.5, 6 and 7. 2.It is also further prayed to direct the SCA/21662/2005 3/57 JUDGMENT respondent authorities to consider the cases of all the eligible persons on the basis of the relevant criteria and materials and objectives of the Act and take final decision for the allotment of the work. In the alternate, it is also prayed that if the work is already allotted and the contracts have been executed, to cancel the contract and restrain the authorities from taking further steps in terms of the contract. 3.It is the case on behalf of the petitioners that all the petitioners, five in number are the Directors / Producers of TV Programme and Telefilms who have won National / International Awards / Recognitions. It is the case on behalf of the petitioners that Prasar Bharti issued guidelines for Commissioned Programme for Telecast on Doordarshan Channel and by announcement by the Doordarshan Channel, bio- SCA/21662/2005 4/57 JUDGMENT data were invited from persons for producing telefilms on Gujarati Literary Classics on or around July, 2004. It is the case on behalf of the petitioners that all the petitioners sent their bio-data to the respondent authorities in time. All those applications were sent by Ahmedabad Doordarshan to Delhi Doordarshan and thereafter all these applications were sent by the Director General, Doordarshan to Ahmedabad Kendra for shortlisting those applications of persons who have worn National / International Awards. The Committee consisting of thee officers of the Doordarshan Kendra, Ahmedabad viz. Mr.Satish Saksena (DTO), Mr.Vinod Desai (ASD), Ms.Anila Shah (PEX Commissioned Programme) was appointed to shortlist the applications. The said Committee shortlisted 40 applications in Gujarati and 15 applications in Sindhi and were sent to Directorate, Delhi. It appears that a High Power Committee headed of SCA/21662/2005 5/57 JUDGMENT CEO, Prasar Bharti including Director General, Doordarshan, All India Radio and three members of the Board viz. Shri Bhupen Hazarika, Ms.Chitra Mudgal and Shri R.N. Bisaria made selection out of the shortlisted names and the short listed names were placed before the Prasar Bharti Board on 18/3/2005 and the selection was approved. It is the case on behalf of the petitioners that the petitioners did not hear anything about their applications for long and therefore, they sent telegram on 28/9/2005 and thereafter they have also sent the representation dtd.5/10/2005. Then they again sent letter dtd.17/10/2005 asking for information under the Right to Information Act and only thereafter, Ahmedabad Doordarshan sent reply dtd.18/10/2005 to the petitioners informing about the final selection. Thus, the petitioners were informed about the final decision only after 7 months from the approval SCA/21662/2005 6/57 JUDGMENT by the Board on 18/3/2005. Being aggrieved by and dissatisfied with the same, the petitioners have preferred the present petition for the aforesaid reliefs. 4.The impugned decision is challenged by the petitioners mainly on the following grounds; (i) The decision making process (selection process) is arbitrary, irrational, unfair, unjustified and non-transparent. (ii)Unjustified departure from and violation of the guidelines of the Prasar Bharti itself for commissioned programmes. (iii)Defects in the composition of the Select or Expert Committee. (iv)The final selection is based only on the SCA/21662/2005 7/57 JUDGMENT bio-data of the persons and no other materials vital for selection were called for. Thus, the decision is a result of non- application of mind resulting into ignoring the relevant considerations. (v)Non-transparent criteria in absence of any criteria for final selection from amongst the persons who were eligible. (vi)The Evaluation Committee did not follow the guidelines regarding marketing or benchmark and did not adopt rational criteria for final selection. (vii)No reasons were given or communicated for not accepting the proposal. (viii)The petitioner Nos.1, 3 and 5 were not considered at all only on the ground that SCA/21662/2005 8/57 JUDGMENT they were given small programmes for producing telefilms on short stories in classics in 2003. (ix)The petitioner No.2 was not considered on the ground that he is a defaulter, without complying with the guidelines and without giving any opportunity to him. 5.Shri Girish Patel, learned senior advocate appearing on behalf of the petitioners has submitted that the petitioners have challenged the decision making process itself and not the result. It is also submitted by him that the petitioners are not challenging the credentiality of the of the private respondents Nos.5 to 7 in whose favour the assignments are awarded nor alleging any malafide on the part of the respondent Corporation. It is submitted by him that the SCA/21662/2005 9/57 JUDGMENT petition does not pertain to commercial contracts and the petition is in the field of airwaves which are declared by the Hon'ble Supreme Court of India as community resources of which the State is a public trustee and which must be used by the State only in the public interest and in a Constitutional matter. It is also further submitted that the petition also falls within the area of freedom of speech and expression under Article 19(1)(g) of the Constitution of India which includes both, freedom to communicate through any media and freedom of the petitioners to know. It is submitted that the petitioners are not claiming that they have a fundamental right to get the right of programme but what they are claiming is fair and equal treatment to all by following fair, just and reasonable procedure. 6.It is submitted that the petition falls in the SCA/21662/2005 10/57 JUDGMENT area of media and literature and compliance has to be struck between two principles viz. (i)principle of respect for evaluation by experts, and (ii) principle of preventing abuse of subjective judgment. It is further submitted that decision making process is in violation of the guidelines issued by the Prasar Bharti for commissioned programme. It is also further submitted by Mr.Patel that guidelines issued by Prasar Bharti cover both Producers / Directors who have generally made video / telefilms production programme, their career, particular with specialized training for this purpose in institutions like the FTII, SRFI and similar specialized institutions in the country and also those Producers / Directors who have won National / International awards in the area of video film production. According to him, on announcement on the Doordarshan by Prasar Bharti, proposals were invited from Producers / SCA/21662/2005 11/57 JUDGMENT Directors for producing telefilms on Gujarati Classics, along with the bio-data. According to him the announcement itself amount to invitation from Producers / Directors to send their bio-data for producing telefilms on Gujarati classics and it was not merely by way of information. Mr.Patel has submitted that the respondent also described the proposal as application and thus, it is incorrect to say that no applications were invited. It is submitted by him that thus, the announcement cannot be fitted in the claimed power of the Doordarshan to assign programmes under Clause 12 of the guidelines. It is submitted that by the aforesaid announcement, Doordarshan invited applications from the persons for the purpose of selection. Thus, the award of programme is not by assignment by selection amongst applicants. It is submitted that the announcement was for proposals from Producers / SCA/21662/2005 12/57 JUDGMENT Directors with bio-datas only and no other materials were called for at any stage to make final selection. 7.He has also further submitted that shortlisting of the applications was directed by the Director General to be made at Ahmedabad Center and local committee consisting of Mr.Satish Saxena, Mr.Vinod desai and Ms.Anila Shah shortlisted 40 Gujarati and 15 Sindhi proposals out of 112 Gujarati and 17 Sindhi proposal and all the aforesaid 3 members of the committee are the officers of the Doordarshan Center, Ahmedabad and no outside expert was included in the committee as in the past. It is also further submitted that the process of shortlisting done by the local committee was not as per the guidelines. It is also further submitted that the shortlisting is not purely a mechanical exercise but essentially an SCA/21662/2005 13/57 JUDGMENT evaluative process which really requires the participation of independent outside experts. It is submitted that in the past shortlisting committee did include outside expert. It is also further submitted that on what basis the short listing was made is not disclosed or declared. 8.It is submitted that the Evaluation Committee at the Center chaired by the CEO included the Director General, Doordarshan, Director General, AIR and 3 members members of the Board viz. Shri Bhupen Hazarika, Ms.Chitra Mudgal, Shri R.M. Bisariya. This Evaluation Committee consists only of the members of the Prasar Bharti Board as under the Act and even the 3 experts are part time members of the Board itself. It is also submitted that as per clause 21(i) of the guidelines, the Evaluation Committee must include (1) Additional Director SCA/21662/2005 14/57 JUDGMENT General / Dy.Director General, (2) Dy.Director General (Sales and Marketing) (3) Additional Director General / Dy.Director General of other channels, (4) Director of Programme (5) director of Programme of concerned channel and (6) 3 outside experts of repute from the fields of production performing arts, broadcasting, journalism and literature. For selecting these outside experts, a panel of 15 persons is to be nominated by the committee consisting of CEO, Member (Finance) and Director General, Doordarshan. This Evaluation committee consisted only of the members of the Board of the Prasar Bharti as per Clause 5 of sec.3 of the Act. The 3 members named are part-time members of the Board and thus, part of the Board itself. According to him, this is not as per the guidelines which requires outside experts as mentioned above and thus, the evaluation committee in question was really SCA/21662/2005 15/57 JUDGMENT inferior to the committee envisaged by the guidelines which provides for an independent evaluation by outside experts. It is also further submitted that though in the reply it is stated that the final selection was made on the basis of competitive merits of various procedures and for assessing merits guidelines were not followed and how the competitive merits were evaluated is not disclosed or declared or shown. It is also submitted that as the selection was made on the basis of competitive merits of various procedures, which clearly shows that awarding of the programme was not by assignment as claimed by the Doordarshan under Clause 12, but was by way of selection on competitive merits of various producers. It is submitted that when all the applicants and shortlisted persons have won National / International Awards / recognition and/or all were equal and therefore, from SCA/21662/2005 16/57 JUDGMENT amongst these persons how the selection was made, is not declared or disclosed. According to Mr.Patel, the eligibility criteria itself cannot be the test for final selection. It is submitted that when all the shortlisted applicants belong to the same cadre, there must be some criteria for selection from amongst the persons belonging to same class. The contention on behalf of the petitioners is that out of 40 shortlisted eminent Producers / Directors how and on what basis final selection was made? It is submitted that the final selection is based only on the basis of bio-data and not on any other materials. It is submitted that no final decision can be made on this consideration alone because bio-data will always reflect personal assessment of the applicants and to select persons it is necessary to call for other records or materials in order to find out the perspective, approach, focus or angles of SCA/21662/2005 17/57 JUDGMENT the particular proposals in dealing with the classic which is already selected. It is submitted by him that for selecting the best person, mere bio-data would not be sufficient or adequate because a classic can be dealt with or handled by different Producers / Directors in different ways. 9.It is also further submitted that even though required by the guidelines, no reasons are communicated to the persons for not accepting or selecting him. If the reasons are required to be noted, it must be strictly complied with. Clause 34 of the guidelines provides for re- consideration of the proposal once rejected and unless and until the decision is communicated and the reasons are communicated, it is extremely difficult for a person to avail of the remedy. Thus, according to Mr.Patel, in the present case, by not communicating final SCA/21662/2005 18/57 JUDGMENT decision for long and by not disclosing the reasons, the remedy available to the petitioners under clause 34 is set at naught. 10.It is also submitted by Mr.Patel that so far as the petitioner Nos.1, 3 and 5 are concerned, they are completely eliminated and excluded even from the zone of consideration only on the ground that they had produced programme under Indian Classics earlier and this consideration was never mentioned in the announcement. It is further submitted that this was never disclosed at any time. It is submitted that earlier award of work cannot be put forward as an excuse for excluding these people for a different bigger programme. Thus, the exclusion of the aforesaid three persons on this ground is totally arbitrary and irrational, as no such criteria was declared earlier in the announcement or disclosed at any time and it is not known by SCA/21662/2005 19/57 JUDGMENT whom and at which level this criteria was adopted. If the earlier performance is bad, a person can be excluded but simply because a person was given programmes earlier, he cannot be excluded and the same cannot be rational criterion for excluding from future programmes. It is submitted that they were given programmes because they were good and no selection process can be rational if it exclude persons who awarded such programme on the ground of their standing. Therefore, it is submitted that exclusion of the said 3 persons from consideration whatsoever at the outset defeats the very purpose of selecting best person for such classics. 11.So far as the petitioner No.2 is concerned, it is submitted that he was excluded on the ground that he was a defaulter in the past. It is submitted that the said ground is absolutely SCA/21662/2005 20/57 JUDGMENT illegal and impermissible because the guidelines clearly provides for an opportunity to such defaulter to clear its dues or get the repayment plan approved before final assignment of work. It is submitted that in the present case, the petitioner no.2 was never given any such opportunity and is totally excluded from the zone of consideration. He has relied upon Clause 8(iii) of the guidelines. It is submitted that no such opportunity is given to the petitioner no.2 nor was informed about his exclusion on this ground, except in the affidavit in reply. It is, therefore, submitted that this departure from the guidelines and fair consideration without any justifiable and rational reasons, vitiates the entire selection process. It is, therefore, submitted that the decision making process in selecting Producers / Directors for the Commissioned programme is vitiated in all respects. viz.; SCA/21662/2005 21/57 JUDGMENT (i) The petitioners Nos.1, 2, 3 and 5 who were eligible were completely excluded from the consideration at the outset on the totally irrational and arbitrary grounds not permissible under Article 14 of the Constitution of India. (ii) The Evaluation Committee was wrongly constituted in valuation of the guidelines. (iii) The decision is based only on the bio-data and on no other material and thus, it resulted into non-consideration of many relevant considerations other than the bio- data only. (iv)The criteria for shortlisting as well as for final selection were never made known or SCA/21662/2005 22/57 JUDGMENT declared. The criterion pointed by the Doordarshan authorities in their affidavit in reply states that the criterion is eminent Producer / Director who has won National / International Awards but this is the eligibility criterion and all 40 persons shortlisted were eligible on this basis and therefore, some other criteria are required to be applied for selecting from amongst these persons. (v)No marking or benchmark procedure was adopted with the result that it is not known how the various proposals were evaluated. 12.To meet with the stand taken by the respondent in the Affidavit-in-reply that they have invoked clause 12 of the guidelines, it is submitted that it is nothing but an afterthought and by way of rationalization of decision otherwise vitiated. It is submitted SCA/21662/2005 23/57 JUDGMENT that the guidelines do not make any distinction between the assignment of project on the basis of clause 12. It is submitted that the announcement by the Doordarshan inviting proposals was in fact and in law an invitation for application for commissioned project for producing telefilms on Indian Classics in Gujarati. It is submitted that to invoke clause 12 is only an excuse for covering up its illegalities. It is also submitted that the procedure followed by the Doordarshan in the present case viz. Inviting proposals and shortlisting, valuation etc. is not consistent with the super power of Doordarshan to select eminent person for certain production. It is submitted that inviting proposal for a programme and to assess the programme are two different things and both cannot go together. It is submitted that once proposals have come from the eminent producers / directors who have SCA/21662/2005 24/57 JUDGMENT won national / international award, in the present case, a rational selection has to be made on the basis of just, fair and reasonable consideration. It is submitted that clause 12 cannot confer any unfaterred discretionary powers upon the Corporation nor does it give any power to adopt pick and choose policy to select any person. Consequently, it is requested to allow the present petition and grant the reliefs as prayed for. 13.Per contra, while opposing the present petition, Mr.Nanavati,learned advocate appearing on behalf of the respondent Prasar Bharti has submitted that the selection of procedure is strictly followed in accordance with Commissioned Programme Guidelines and these guidelines are unilaterally and constantly followed by them. It is the submission on behalf of the respondents that SCA/21662/2005 25/57 JUDGMENT they have invoked Clause 12 of the Guidelines which reserves the right of Doordarshan to commission programme by assignment to eminent procedures and directors in the country who have national and international recognition / award. It is further submitted that during 2005-2006 Doordarshan will be producing nearly 800 half an hour episodes in 15 languages on Indian Classics. It is also further submitted that the work of eminent authors under “Indian Classics Series” have been selected by the Core Committee under the Chairmanship of Ms.Chitra Mudgal, Member Prasar Bharti Board. It is submitted that the Core Committee met at different places along with language experts and short listed the Classic work from 22 languages and the Core Committee also took into consideration Sahitya Academy winning books and Gnanpith award winning authors besides other eminent classics. It is further submitted that SCA/21662/2005 26/57 JUDGMENT the selection of this particular case was for the commissioning production of serial on Indian Classics in Gujarati Language and having regard to the very nature of the subject i.e. Indian Classics, it was decided that the same should be handled by the eminent producers and directors who have won the national and international recognitions / awards. It is the contention of the respondents that the Commissioning on Indian Classics cannot be treated at par with the commissioning of other ordinary programmes / materials. Therefore, in terms of Clause 12 of the “Commissioned Programmes” Guidelines, it was decided that the programme would only be assigned to eminent producers and directors in the country and who have won national and international recognition / awards. It is further submitted that bio- datas were invited from the producers who have won national and international recognitions / SCA/21662/2005 27/57 JUDGMENT awards and in response to the invitation total 129 bio-datas were received including 112 bio- data in Gujarati and 17 bio-datas in Sindhi by Ahmedabad Doordarshan Kendra. Thereafter, a committee consisted of (i) Satish Saxena (DTD), (ii) Mr.Vinod Desai (ASD.Comm.Prog), and (iii) Mrs.Anila Shah (PEX Com.Programme) short listed the bio-datas of 40 Gujarati and 15 Sindhi eminent and award winning producers and directors, and list was prepared and sent to the Director, Prasar Bharti, New Delhi and the names of petitioner Nos.1, 3, 4 and 5 were included in the said list at Sr.Nos.2, 25, 33 and 34 and the name of the petitioner NO.2 was not included as he was a defaulter. It is further submitted that the Prasar Bharti Board in its 65th meeting held on 18th March, 2005 had approved the list of producers for commissioning of programmes in Indian Classics in various languages and the Board had also SCA/21662/2005 28/57 JUDGMENT constituted an Empowered Committee consisting of CEO, DG, Doordarshan. Smt.Chitra Mudgal, Shri R.N. Bisaria, Mr.Bhupen Hazarika, Members Prasar Bharti Board to assign subjects to the shortlisted producers and the Empowered Committee met on 19th April, 2005 and considered the subjects selected by an earlier committee under the Chairmanship of Smt Chitra Mudgal as well as the list of producers approved by the Prasar Bharti Board in its 65th Meeting and after detailed discussions, the committee decided to assign the subjects language-wise. It is further submitted that the eminent award winning producers assigned programmes under the scheme are Mr.Shyam Bengal, Mr.Girish Karnad, Mr.Amol Palekar, Mr.Jaspal Bhatti, Ms.Kamini Kaushal, Ms.Suhasini Mulayah, Ms.Preeti Sapru, Ms.Kalpana Lazmi etc. It is further submitted that the Doordarshan is also producing 126 episodes of In-house programmes on Indian SCA/21662/2005 29/57 JUDGMENT Classics from 23 Regional Kendras. 14.It is further submitted by Mr.Nanavati that at the time of initial selection and the final selection, the criteria applied was that the concerned person should be an eminent producer / director having won national or international recognition / awards and capable of giving best expression of Indian Classics. It is further submitted that the criteria adopted is reasonable, uniform and rational and the persons who have been selected meet the required criteria. It is further submitted that due to limited availability of the funds, as a matter of policy, it was decided to select three producers in each language except Jammu & Kashmir and North East, for production of programmes under the Indian Classics and this criteria has been followed in all languages throughout the country. It is further submitted SCA/21662/2005 30/57 JUDGMENT that the Central Government has sanctioned grant for the programmes under Indian Classics for the current financial year which is ending on 31st March, 2006 and the grant is likely to get lapsed and even it would be difficult for the