WP(C)No.4240-2007 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C)No.4240/20007 Date of Pronouncement 2nd April, 2009 # News Line and Others .... Petitioners Through : Mr. Aseem Mehrotra, Advocate for petitioner Versus Union of India and Others .... Respondents Through : Mr.Amarendra Sharan, ASG with Mr.Rajeev Sharma, Advocate for Prasar Bharti. Mr. P.P. Malhotra, ASG, Mr. Rajeev Mehra, Advocate for respondent/UOI. CORAM: HON'BLE MR. JUSTICE G.S. SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes G.S. SISTANI, J. 1. The petitioners were admittedly successful in getting empanelled as producers for commissioning of programmes to be telecast on DD-Kashir Channel. The process of empanelment was effected by way of selection on the basis of certain guidelines formulated by Prasar Bharati in consultation with the Union Ministry of Information and Broadcasting, the respondents herein. Admittedly, the decided course of action pursuant to the empanelment was to enforce the inter se rights and obligations of the petitioners and Prasar Bharati through a contract. However, even before the contract in question could get executed, certain discrepancies were alleged in the process of empanelment thereby leading to its WP(C)No.4240-2007 Page 2 of 27 cancellation. Aggrieved, the petitioners have filed the present petition under article 226 of the Constitution of India, seeking quashing of the order cancelling the empanelment of the petitioners. Inter alia, the petitioners have also sought a writ mandamus seeking specific performance of contract decided to be executed into between the parties. 2. Factual matrix, as culled out from the pleadings of the parties, is outlined as under: 2.1 The respondents conceived the launching of DD Kashir Channel in Jammu and Kashmir. The commissioning of programmes and serials to be telecast on the DD Kashir Channel for the year 2006 is stated to have been funded by the Government of India vide a special package worth Rs. 100 crore announced by the PMO to salvage the situation in the militancy hit Jammu and Kashmir valley which lost its audience to Pakistan T.V. 2.2 With a view to achieve the said purpose, applications were invited from prospective producers with the last date 22.7.2005. About 1100 persons applied in response to the said advertisement. Simultaneously, the Prasar Bharati, in consultation with the Ministry of Information and Broadcasting, suggested guidelines for empanelment of producers for Doordarshan and the same were discussed with the producers in Srinagar and Delhi. A few amendments to these guidelines were suggested by the producers and the suggestions were accepted by the authorities and incorporated in the final guidelines that were issued. The guidelines provided for talent hunt throughout the country, especially J. & K. on WP(C)No.4240-2007 Page 3 of 27 competition basis. Thus, in order to pave way for audience friendly programmes, alongside the process of empanelment, a theme contest, open for J. and K. people only, was conducted by Doordarshan. The people were asked to send their entries, scripts, ideas for the programmes to be telecast on Doordarshan. Several entries were received by Doordarshan under this contest. 2.3 The process of empanelment was completed in October 2005. Producers including the petitioners were issued Letters of Intent in different categories. 2.4 Complaints regarding various irregularities were received by the respondents, and on the basis thereof, a preliminary enquiry was also registered by the CBI bearing no. PE-DAI-2006-A-001. The respondent no. 1 also constituted a Fact Finding Committee through Mr. Rajat Bhargava, Additioal Director General (Finance), All India Radio. 2.5 The Fact Finding Authority found various irregularities in selection, and in view thereof, the Prasar Bharati was advised by the Ministry of Information and Broadcasting to quash the empanelment and frame de novo guidelines for selection. 2.6 The petitioners, in the meanwhile, approached the High Court, which vide order dated 28.3.2007, directed the Prasar Bharti to take a final decision in the matter within a period of eight weeks. 2.7 The respondents vide order dated 22.5.2007 came to the conclusion that the possibility of bias could not be ruled out, and therefore, scrapped the earlier selection process and directed for inviting fresh proposals in terms of the new policy WP(C)No.4240-2007 Page 4 of 27 inasmuch the earlier policy was found to be flawed. 2.8 The panel of the petitioners expired on 7.4.2008. 2.9 Aggrieved, the petitioners have filed the present petition, seeking, inter alia, quashing of the cancellation order dated 22.5.2007 and specific performance of the contract that was to be concluded between the parties. 3. Mr. Aseem Mehrotra, learned counsel for the petitioners, has stoutly argued that the impugned cancellation order is in violation of the principles of natural justice inasmuch as the petitioners have not been supplied the alleged adverse material, that is, the Report of Dr. Rajat Bharagava along with the documents which is the sole basis of the arguments under challenge. It is submitted that judicial dicta in State Bank of India v. D.C. Aggarwal1, M.J. Sivani & Others v. State of Karnataka and Others2, M.A. Jackson v. Collector of Customs3, Benny & Others v. Registrar of Co-operative Societies4, and Inderpreet Singh Kahlon & Others v. State of Punjab and Others5 is settled if the adverse material is not supplied to the affected party, the entire proceedings and the order passed thereto would be non est and void. In the same breadth, learned counsel for the petitioners, whilst relying upon the decisions in K.I. Shephard 1 (1993) Suppl. 1 SCC 13 2 (1995) 6 SCC 289 3 (1998) 1 SCC 198 4 (1998)5 SCC 269 5 (2006) 11 SCC 356 WP(C)No.4240-2007 Page 5 of 27 and Others v. Union of India and Others6 and Neelima Mishra v. Harinder Kaur Pintal & Others7, has submitted that even if the impugned order is considered as an administrative order, then also the principles of natural justice have to be followed. 4. It is submitted by learned counsel for the petitioners that the impugned order of cancellation lies in the teeth of the order of this Court dated 28.3.2007 whereby the respondents were categorically directed to allow the petitioners to make representations before the Fact Finding Authority. Qua the post-decisional hearing afforded to the petitioners, learned counsel has relied upon K.I. Shephard and Others v. Union of India and Others8 and Shekhar Ghosh v. Union of India and Others9 to bring home the point that post- decisional hearing is no hearing in the eye of law as Prasar Bharati was acting under the instruction of the Ministry of Information and Broadcasting and the result of the hearing is a foregone conclusion which vitiates the order under challenge. 5. It is further contended that the impugned cancellation order has been passed at the instance of the Ministry of Information and Broadcasting as is apparent from the letter dated 23.10.2006, and thus, there has been no application of mind by the Prasar Bharati. 6 (1987) 4 SCC 431 7 (1990) 2 SCC 746 8 supra n. 6 9 (2007) 1 SCC 331 WP(C)No.4240-2007 Page 6 of 27 6. Relying on the decisions in Onkar Lal Bajaj v. Union of India10 and Inderpreet Singh Kahlon & Others v. State of Punjab and Others11, it is contended by learned counsel that the action of Prasar Bharati in canceling the selection process without adverting to the facts of any individual case is a case of non-application of mind and arbitrariness which is not permissible in law and can be corrected by a writ of certiorari and mandamus. 7. It is contended by learned counsel for the petitioners that the finding of bias/likelihood of bias, as recorded in the impugned cancellation order, is without any factual basis inasmuch as there is no material for coming to such a conclusion. The only assertion is that Dr. S.S. Toshkhani was a writer for a producer who was in Category “C” and he was an expert for category “B” on 3.2.2006. It is established from facts that Dr. S.S. Toshkhani has no remote connection with any of the selected producers. On this point, reliance has been placed on the decisions in Jaswant Singh Nerwal v. State of Punjab & Others12 and Tata Cellular v. Union of India & Others13. 8. Learned counsel for the petitioners, whilst seeking the relief of specific performance of contract, has relied upon the decisions in Gujarat State Financial Corporation v. Lotus Hotels Pvt. Limited14 10 (2003) 2 SCC 673 11 supra n. 5. 12 (1991) Suppl. 1 SCC 13 13 (1994) 6 SCC 651 14 (1983) 3 SCC 379 WP(C)No.4240-2007 Page 7 of 27 9. Per contra, Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of the respondents no. 2 to 4, has resisted with vehemence the submissions made by the petitioners. It is contended that the earlier selection process, which was quashed, because of being vitiated due to irregularities including bias, was under a policy which has been changed and replaced by a new policy. Under this new policy, the parameters, method, entitlement are different from the earlier policy, therefore, at this stage, no direction can be issued to give effect to a policy which is non-existent. This argument, it is submitted by the learned ASG, is contextualized by the trite proposition that it is well within the competence of public authorities to change or formulate a new policy. It is further submitted that the doctrine of legitimate expectation and equitable estoppel also do not help the petitioner inasmuch as the petitioners have not been denied the opportunity to participate in the selection procedure under the new policy and have also been exempted from payment of processing fees and have also been allowed to re-submit the previous proposal or to submit new proposal. 10. It is next contended by learned ASG that the contract between the parties was, indisputedly, never concluded and thus, in the given circumstance, it is submitted by Mr. A. Sharan that mere selection of the petitioners would not clothe them with any right for grant of contract or execution of agreement, and more so, when no formal agreement was entered into between the parties and certain formalities which WP(C)No.4240-2007 Page 8 of 27 were required to be carried out were also not performed by the parties. On this line of argument, reliance has been placed on the decisions in Shankarsan Das v. Union of India15, Mrs. Asha Kaul and Another v. State of Jammu and Kashmir and Others16, All India S.C. and S.T. Employees Association and Another, etc., v. A. Arthur Jeen and Others, etc.17, and Food Corporation of India and Others v. Bhanu Lodh and Others18. 11. Taking his point further, Mr. Sharan has further submitted that the petitioners, under the guise of the writ of mandamus, cannot seek the relief of specific performance of contract. Reliance, in respect of this submission, has been placed on the decisions of the Apex Court in Binny Limited and Another v. V. Sadasivan and Others19, Noble Resources Ltd. v. State of Orissa and Another20 and Ramchandra Murarilal Bhattad and Others v. State of Maharashtra and Others21. 12. It is further adduced that the original empanelment was for a period of two years w.e.f. 7.4.2006 to 7.4.2008. It is thus submitted that no mandamus can be invoked in respect of an empanelment process, the term period whereof has expired. Mr. Sharan has relied upon State of U.P. and Others v. 15 (1991) 3 SCC 47 16 (1993) 2 SCC 573 17 (2001) 6 SCC 380 18 (2005) 3 SCC 618 19 (2005) 6 SCC 657 20 (2006) 10 SCC 236 21(2007) 2 SCC 588 WP(C)No.4240-2007 Page 9 of 27 Harish Chandra and Others22, Syndicate Bank and Others v. Shankar Paul and Others23, and M.P. Electricity Board, through the Chief Engineer, MPEB v. Virendra Kumar Sharma24 to canvass the trite proposition that no mandamus can be issued for making selection from an expired panel or for awarding work to a person on a panel which has expired. 13. Drawing the attention of this Court to the findings of the Fact Finding Authority, Mr. Sharan has further submitted that there was reasonable likelihood of bias in the original process of empanelment inasmuch certain applicants were members of creative teams in certain projects and were interested in empanelment of those parties. Relying on the case of A.K. Kraipak and Others v. Union of India and Others25, it is submitted that quashing of an entire selection process cannot be faulted with when such selection process is vitiated with bias. 14. It has been strongly urged before this Court that the relief for specific performance sought in the present petition has already been declined in the previous petition filed in this Court. This relief, it is stated, was not granted to the petitioner despite the prayer and arguments to that effect on behalf of the petitioners. 22(1996) 9 SCC 309 23(1997) 6 SCC 584 24(2002) 2 SCC 650 25(1969) 2 SCC 262 WP(C)No.4240-2007 Page 10 of 27 15. It is also adduced by Mr. Sharan, that the impugned cancellation order was premised on the Report of the Fact Finding Authority, which, inter alia, found various irregularities in the selection, viz. (i) Uniform Procedure not followed by the Evaluation Committee; (ii) The selection was vitiated by bias as certain experts of the the Evaluation Committee for some proposals were themselves members of creative team in other proposals (iii) Persons who were not having requisite eligibility were considered and selected; (iv) Some persons were given extra time to submit details, etc. 16. Refuting all allegations of the petitioners not having been afforded with an opportunity of hearing, it is argued by Mr. A. Sharan that the petitioners were duly heard before passing of the impugned order, and therefore, there was substantial compliance with the principles of natural justice as laid down in the leading authority in Union of India and Another v. Tulsiram Patel and Others26. Mr. Sharan has further relied upon the cases pertaining to mass cheating, viz. The Bihar School Examination Board v. Subhas Chandra Sinha and Others27 and Hira Nath Mishra and Others v. The Principal, Rajendra Medical College, Ranchi and Another28, wherein no individual right of hearing was granted. 26 (1985) 3 SCC 398 27 (1970) 1 SCC 648 28 (1973) 1 SCC 805 WP(C)No.4240-2007 Page 11 of 27 17. Relying on the decisions in State Bank of India and Another v. Somvir Singh29 and All India ITDC Workers Union and Others v. ITDC and Others30, it is contended by Mr. Sharan that the jurisdiction of this Court, whilst exercising its powers under Article 226 of the Constitution of India, is limited to examining the process of decision-making and does not extend to examining the merit of the decision. It is submitted that once it is found by the Court that there was no illegality or impropriety in the decision-making process, the Court cannot sit in appeal over the decision of the administrative authority. 18. It is further contended by Mr. Sharan that the reliance of the petitioners on the case of Omkar Lal Bajaj v. Union of India31 is misconceived and the ratio in the said judgment cannot be applied in the present case inasmuch as in the said case there were several committees spread all over the country which made selection for allotment of petrol pumps, gas agencies, etc., whereas in the present case, there was only one Selection Committee comprising the persons interested in the subject-matter itself. It is contended that the present case is covered more in fact and ratio by the case in A.K. Kriapak v. Union of India32, and therefore, quashing of the entire selection cannot be faulted with. Moreover, in 29 (2007) 4 SCC 778 30 (2006) 10 SCC 66 31 (2003) 2 SCC 673 32 AIR 1970 SC 150 WP(C)No.4240-2007 Page 12 of 27 Omkar Lal Bajaj v. Union of India33, there was no change in policy whereas in the present case, there is a change in the policy, and thus, the petitioners cannot claim that they should be adjudged in accordance with the policy which is non- existent. Furthermore, in the aforementioned case, the validity of a panel did not expire whereas in the present case, the panel has expired on 7.4.2008, and therefore, no mandamus can be issued to select petitioners from expired panel. 19. Learned counsel for the petitioners has countered the submissions of respondents no. 2 to 4 by filing a rejoinder. It is submitted that despite the fact that letters of sanction were awarded, the execution of the agreement was kept in abeyance by the Prasar Bharati at the instance of the Ministry of Information and Broadcasting, which fact emerged from the information provided by the Prasar Bharati to the producers under the Right to Information Act, 2005. It is the case of the petitioners that though the impugned cancellation order is premised on the Fact Finding Report, the respondents in their counter-affidavit have admitted that the petitioners were never associated in the enquiry conducted by Dr. Rajat Bharagava since the same was an internal administrative fact finding enquiry. It is thus the case of the petitioners that the decision reached by the Prasar Bharati is in violation of the principles of natural justice inasmuch as the decision that has been taken is based on an enquiry report in which the petitioners were admittedly never associated and a copy of 33 (2003) 2 SCC 673 WP(C)No.4240-2007 Page 13 of 27 the report was also never supplied to the petitioners till the filing of the counter-affidavit. Learned counsel, whilst drawing the attention of this Court to the preface of the enquiry report, has submitted that though the preface shows that Dr. Rajat Bhargava associated the complainants, that is, representative of Independent Television Producers Welfare Movement and Kashmir Producers Association and officials of the Prasar Bharati during the course of whereas the producers were not associated with the enquiry. It is argued that once the alleged complainants and officials of Prasar Bharati were given opportunity of hearing before the enquiry officer then the successful producers ought to also have been given an opportunity of hearing. It is submitted that the entire enquiry is vitiated by violation of the principles of natural justice and the report ought to be rejected on this ground alone 20. It is further submitted that the Fact Finding Report was never supplied to the petitioners and was initially withheld on the ground that it would impede the process of investigation and thereaafter, the copy of the enquiry report dated June 2006 was placed on record in the month of August, 2007. It is thus the case of the petitioners that the Report in question was never supplied to the petitioners for more than one year though the Report is taken to be the factor for canceling the selection process. It is also submitted that the report submitted with the counter-affidavit is incomplete inasmuch as all annexures to the report are missing. It is submitted that a request was made to the Ministry of Information and WP(C)No.4240-2007 Page 14 of 27 Broadcasting, Prasar Bharati and Doordarshan under the Right to Information Act, 2005 for supply of Annexures to the report of Dr. Rajat Bhargava, however, the authorities are shifting the onus on each other. 21. It is further submitted that the impugned cancellation order does not accord with the findings of the Report inasmuch as: (i) In the entire Report, there is no finding that any of the petitioners had committed any irregularity much less illegality. (ii) The Report does not discuss as to which guidelines were violated. (iii) There is no whisper in the entire report as to which Official of the Prasar Bharati or an expert had committed the alleged irregularity and what action has been taken in that respect. (iv) The enquiry was ordered only with an objective to favour the producers who were not issued letters of sanction. (v) The Report of Dr. Rajat Bhargava is ex facie illegal inasmuch as the selection process was executed by the officials of Prasar Bharati and the selection of the petitioners was purely on merit as is evident from the information provided under the Right to Information Act, 2005. WP(C)No.4240-2007 Page 15 of 27 (vi) There was no occasion to constitute a fact finding authority inasmuch as the selection of the petitioners was done purely on merit. (vii) The conclusions in the Report of Dr. Rajat Bhragava are based on conjectures and surmises and there is no material to come to a conclusion for cancellation of the entire selection process. 22. It is further argued by learned counsel for the petitioners that mere violation of the guidelines would ipso facto not justify cancellation of the empanelment when such guidelines were formulated by the Prasar Bharati in consultation with the I&B Ministry. 23. It is the case of the petitioners that once the letters of sanction have been issued in favour of the petitioners, a right exists in their favour for execution of final agreements which admittedly was stalled at the instance of the Ministry. 24. As regards the adversarial findings in the Fact Finding Report, it is submitted that these findings do not relate to the petitioner and the same is clear from the information provided under the Right to Information Act, 2005. 25. Qua the letter dated 23.10.2006, it is submitted that the said letter of the I & B Ministry, it is submitted that the said letter is only an internal D.O. and not the decision of the Ministry, and further, that in the reply filed by the Ministry there is no reference to the letter dated 23.10.2006. 26. I have heard the parties at length and given my thoughtful consideration to the matter. WP(C)No.4240-2007 Page 16 of 27 27. The petitioners appear to have staked their claim to restoration of the empanelment on the pre-supposition that there was a valid and subsisting contract between the parties. This, in my considered view, is a rather circular argument inasmuch as no inchoate or subsisting contarct was ever in existence between the parties. Mere selection of the petitioners in the panel of producers did not vest the petitioners with any substantive right to seek enforcement of contract, more so when no such contract ever took place between the parties. The petitioners‟ plea for a writ of mandamus is, thus, without merit and deserves to be rejected outrightly. 28. It is, however, the second leg of the petitioners‟ case challenging the manner in which the empanelment came to be scrapped that merits attention of this Court. The primary assault herein is launched against the impugned order dated 22.5.2007, reproduced as under: PRASAR BHARATI (BROADCSTING CORPORATION OF INDIA) DIRECTORATE GENERAL: DOORDARSHAN DOORDARSAN BHAVAN, COPERNICUS MARG NEW DELHI – 110001 F. No. 11/11/2007- KC Date: 22/05/2007 ORDER In compliance of the Order dated 28/7/2007 passed by the Hon‟ble High Court of Delhi in WP(C) No. 32/2007, WP(C) 24/2007, 25/2007, 26/2007, WP(C)No.4240-2007 Page 17 of 27 30/2007, 31/2007, 32/2007, 33/2007, 34/2007, 36/2007, 37/2007, 39/2007, 40/2007, 41/2007, 42/2007 and 43/2007, the matter regarding the commissioning of programmes has been considered by the Competent Authority. Pursuant to the said Order, representations have received from 28 persons which have been also duly considered. After going through the records and relevant facts of the Competent Authority finds the applications were invited from the eligible Companies and Firms for forming a panel of Producers for production of television programme for the Kashir Channel. About 1300 applications were received and a selection process in terms of guidelines issued n June, 2005, was initiated and assignment letters were issued to 36 short-listed producers. However, before further steps could be taken in the matter, complainants regarding serious irregularities in the selection process were received by the Ministry of Information and Broadcasting, Government of India. In the light of the complaints, the Government of India ordered an inquiry