OF DELHI AT NEW DELHI + WP(C)No.4240/20007 Date of Pronouncement 2nd April & Ors. v. Union of India .... : Mr.Amarendra Sharan, ASG with Mr.Rajeev Sharma, Advocate & Ors.

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 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 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 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 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 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 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 programmes 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 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 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 into the selection process. The enquiry was conducted by Dr. Rajat Bhargava, Additional Director General (Finance) of All Inia Radio. The enquiry revealed a number of procedural and other irregularities in the selection process and systematic shortcomings. The enquiry revealed that a uniform procedure was not followed by the Evaluation Committee and through a biased procedure certain producers/directors were WP(C)No.4240-2007 permitted to make changes in their creative teams at the time of interview by the Committee. Other producers were not aware that such permission had been given in a few cases and, therefore, could not take advantage of this facility to make changes. The enquiry also revealed that certain non-officials who were members of the Evaluation Committee for some proposals, were themselves members of the creative teams in respect of other proposals, a fact sufficient by itself to create a situation of conflict of interest and resultant bias. It was also found that extra time for submission of documents was granted t certain category of applicants that too after interviews had been held. Re-tabulation was done in respect of such applicants. It was also reported that time and log sheets were not maintained. Certain other findings regarding irregularities were also recorded. In view of the findings recorded during the enquiry and the systematic shortcomings, which were noticed, the earlier guidelines have been proposed to be substituted by a fresh guideline, with the approval of the Prasar Bharati Board. The Competent Authority has considered the conspectus of facts and is of the view that some of the irregularities found during the enquiry are such which go to the very root of the matter, for instance, the circumstance, of certain members of the Evaluation Committee themselves being interested in certain proposals. The fact that such persons did not actually evaluate proposals in which they were interested is not a mitigating circumstance. The very fact that members of the Evaluation Committee were themselves interested WP(C)No.4240-2007 in certain proposals can justify the inference that they could as well have given adverse ratings to proposals, which potentially provide competition to the proposals in which they were interested. The possibility of reasonable likelihood of bias cannot be ruled out. In view of such like circumstances and the fact that the guidelines in question have also been found to be flawed and are being replaced it is felt that that the proper course of action would be to scrap the earlier selection process in whole and to invite fresh proposals in terms of the new guidelines. However, it will be fair and just that while inviting fresh proposals, the earlier applicants/selectees are not burdened with fresh processing fee and their proposals be considered on the basis of the processing fee already paid by them. Such persons should also have the option of either relying upon their earlier proposals/pilot or submitting a fresh pilot. The Competent Authority considered the assertions made the 28 representation received selected producers. He finds that there is nothing in the said representations, which would suggest that the course of action outlined above is not appropriate or uncalled for. In view of the facts and circumstances stated above the Competent Authority after careful consideration orders that: i. the earlier selection process is scrapped. WP(C)No.4240-2007 ii. The petitioners/ applicants who had applied earlier would have the right to submit their proposals in accordance with guidelines issued. All such applicants would also have the option of relying upon their earlier proposal or submitting their fresh proposal with pilot in terms of new guidelines. However, they shall not be required to pay fresh processing fee. The Competent Authority further directs that a copy of this order be sent to each of the 36 producers to whom assignment letters were issued. sd/- (Ananya Banerjee) Sr. Director of Programmes For Director General

29. As is apparent from the aforesaid impugned order dated

22.5.2007, the findings and recommendations of the Fact Finding Authority were the principle ground for the Prasar Bharati to cancel the empanelment. Given that the findings and recommendations of the Fact Finding Authority were not binding in nature, the decision of the Prasar Bharati to scrap the empanelment was clearly a manifestation of exercise of administrative discretion. It is precisely this exercise of administrative discretion by the Prasar Bharati which this Court has to examine within the circumscribed limits of its power of judicial review under Article 226 of the Constitution of India.

30. It is noteworthy that there has been a significant change of events pursuant to the filing of the present petition. In such WP(C)No.4240-2007 a case, any relief which this Court dispenses today must necessarily accord with the circumstances that have unfolded pursuant to the filing of the present petition. For one, the guidelines on the basis whereof the empanelment was instituted have been replaced by new guidelines. Secondly, the duration for which the panel was constituted has expired. The expiry of the panel during the pendency of the case, though a fait accompli, has rendered all claims of the petitioners virtually dead. The change in the policy has proved to be the „ultimate climax‟ that has buried to death all claims of the petitioners. It is noteworthy that although the petitioners have not disputed the change in policy, they have argued that the change of policy is impervious to the impugned decision of cancellation. What the petitioners have sought to argue is that this Court must decide the challenge made to the cancellation notwithstanding the change in cancellation.

31. Turning the clock back, the facts of this case indubitably show that though the petitioners were successfully, the process of empanelment was found to be extensively rigged with procedural irregularities, which irregularities were further found to be attributable to the flawed guidelines which now stand replaced by new guidelines. Thus, the decision to scrap the empanelment was more in the nature of a policy imperative which was effected by Prasar Bharati in order to give way to the new guidelines. While the scrapping of the guidelines was largely actuated and sufficiently backed by the WP(C)No.4240-2007 findings of the Fact Finding Authority, it would not be incorrect to state that the supercession of the new guidelines has ex post facto vindicated the cancellation of the empanelment. Moreover, there is nothing to suggest mala fides or arbitrariness in the formulation of the new policy.

32. There is also nothing put forth by the petitioners to suggest that the cancellation of the empanelment was brought about by the respondents in utter disregard of the principles of natural justice. The lone plea taken by the petitioners is that that no individual hearing was afforded to the petitioners during the inquiry thereby inviting the wrath of the principle of audi alteram partem.

33. The plea taken by the petitioners qua non-compliance with the principles of natural justice, I am afraid, carries no weight. It is true that the audi alteram partem principle is a very ancient one, deriving strength from a Biblical passage. and the application of this rule to judicial proceedings is beyond doubt. Where however it is extended to non-judicial orders or to administrative orders the application of this principle is subject to some limitations. These are set out in great detail in S.A. de Smith’s Judicial Review of Administrative Actions, pp. 167 to 179. I need only to refer two of those exceptions : Firstly, where the obligation to give notice and the opportunity of being heard would obstruct the taking of prompt action especially action of a preventive or remedial nature and secondly where the power exercised is disciplinary. WP(C)No.4240-2007

34. It is to be borne in mind that where the primary objective of any selection process is to fulfil the duty of conducting the selection fairly and the harassment to which the affected party may be put, namely, the necessity of sitting again for a fresh selection, is incidental to the fulfilment of the aforesaid primary purpose it will be unreasonable to stretch the principle of audi alteram partem. Where allegations of the practice of the unfair means on an extensive scale in a particular selection are brought alleged and after proper inquiry into the truth of those allegations is satisfied, it is expected of the selecting authorities to act very promptly in cancelling the selection and conducting the selection afresh. A long drawn out process of holding an inquiry after giving notice to every producer who was empanelled in the present case likely to be affected by the order of cancellation and an opportunity of being heard would not only cause inordinate delay but would obstruct the fulfilment of the statutory duty of the authority concerned. In this regard, the following passages from S. A. de Smith, at p. 175, may be reproduced : "That urgency may warrant disregard of the principle of audi alteram partem rule in other situations is generally conceded. There will be disagreement however about the circumstances in which a deviation ought to be permissible. In a recent Canadian case the need to protect the public against securities was held to justify summary action." fraudulent dealings

35. I also take my cue, inter alia, from the judgment in the Bihar School Examination Board v. Subhash Chandra Singh (1970) 1 SCC 648, wherein it the Apex Court categorically observed that WP(C)No.4240-2007 the rule of audi alteram partem was being stretched too far and that some restriction should be made on the application of the principle. The Bihar School Examination Board, which was entrusted with the duty of conducting Secondary School Examination, conducted the said examination, in March, 1969, at various centres including Hanswadih centre in Sahabad District. The results for other centres were published some time in July, 1969, but the results from that centre were withheld and subsequently it was announced that the examinations of all subjects held there were cancelled because of the unfair means practised on a large scale at that centre. The examinees were therefore given the option of appearing at the Secondary School Board Examination to be held in September, 1969. This order was challenged in an application under Article 226 of the Constitution before the Patna High Court, on the main ground that before cancelling the examinations the Board should have given the persons affected by such cancellations an opportunity of being heard. The High Court while observing that the very high percentage of marks obtained by the candidates who appeared at the centre gave rise to a suspicion that unfair means were practised, nevertheless struck down the order of cancellation on the sole ground that the examinees were not given an opportunity to show cause and thereby the well-known principle of natural justice viz.— audi alteram partem—was not observed. In coming to this conclusion, the High Court relied on a previous judgment of the Supreme Court in Board of High WP(C)No.4240-2007 School and Intermediate Examination, U.P., Allahabad v. Ganshyam Das Gupta2 and also on a decision of the Patna High Court in Ajit Singh v. Ranchi University3 The Supreme Court had no hesitation in reversing the order of the High Court. The Court was satisfied from a scrutiny of the marks obtained by the candidates at that centre, that unfair means were practised on a very extensive scale. Their Lordships observed that this was not a case of charging a particular candidate with having adopted unfair means but that it was a simple question as to whether where unfair means appear to have been practised on an extensive scale in a centre the Board would be justified in ordering the holding of a fresh examination, without giving to every candidate affected by the order an opportunity of being heard. To quote Their Lordships: "If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go."

36. Having regard to the facts of the present case, there was no valid and subsisting contract between the parties, mere selection of the petitioners in the panel did not vests in the petitioners any substantive right to seek enforcement of WP(C)No.4240-2007 contract. Having carefully perused the pleadings and documents filed on record, I find no merit that the empanelment has been scrapped by the Prasar Bharati without due compliance with the principles of natural justice. The impugned order dated 22.5.2007 is a clearly-worded and well-reasoned order which, inter alia, states the following three reasons that actuated cancellation, namely, (a) a uniform procedure was not followed by the Evaluation Committee, (b) bias in the selection procedure, (c) the guidelines were inept and fraught with shortcomings. In suchlike matters, it has been held that the Courts should not interfere with the decision but only the decision-making process. Taking into consideration that there were large number of applicants for the process of empanelment, there was no requirement of personal service of notice or hearing to the petitioners. The Prasar Bharati in its wisdom and for the reasons for which no ground of bias has been raised, a fresh policy has been raised giving new guidelines to overcome procedural irregularities and such other lacunae identified by the Fact Finding Authority. Moreover, in the peculiar facts and circumstances that have transpired pursuant to the filing of the present, when the panel stands expired and the old guidelines have been replaced by the new, I am afraid that there is nothing which this Court can do to allay the case of the petitioners. It must also be noted that the impugned order dated 22.5.2007 clearly states that while inviting fresh proposals, the earlier applicants/selectees would not be WP(C)No.4240-2007 burdened with fresh processing fee and their proposals would be considered on the basis of the processing fee already paid by them. It is further stated that such persons would also have the option of either relying upon their earlier proposals/pilot or submitting a fresh pilot. This, in my view, would ensure that no undue hardship or prejudice is caused to the petitioners.

37. In view of the foregoing discussion and findings, the petition is bereft of merits, and is accordingly rejected. All interlocutory applications, having been rendered infructuous, are disposed off. April 02, 2009 „lssn‟ G.S. SISTANI, J. WP(C)No.4240-2007