Merger with NFDC: Are the media units fighting a losing battle?

While the proposal to bring four media units of the Ministry of Information and Broadcasting under the umbrella of the NFDC is being debated in the media, among the stake-holders and the concerned public in general, we need to look at a decision of the High Court, dated 07 October 2021, in a Petition filed by the Films Division Staff Association against the Union of India. This decision underscores that any attempt to prevent the merger is not likely to succeed, unless the Union (Government) of India itself takes cognisance of the most likely adverse impact of such a move, and relents. Or else, stakeholders and worried individuals would be fighting a losing battle. That is not to say that the matter should not be debated threadbare by all concerned, at every forum, and the views communicated to the Government.

IN THE HIGH COURT OF DELHI AT NEW DELHI

                           +    W.P.(C) 11263/2021

FILMS DIVISION STAFF ASSOCIATION THROUGH: ITS SECRETARY

                                                                                 ..... Petitioner

                                                 Through: Ms. Fozia Rahman, Adv. with

                                                          Mr. Abdul Mabood Raza &

                                                          Mr. Sikander A. Siddiqui, Advs.

                                                   versus

                                 UNION OF INDIA & Others.                                                                                  ..... Respondents

Through: Mr. Gaurang Kanth, CGSC, with Ms. Biji Rajesh & Mr. Shreesh Chadha, Advocates.

                                 CORAM: HON'BLE MR. JUSTICE V. KAMESWAR RAO

                                         ORDER

07.10.2021 This matter is being heard through Video-Conferencing.

1. This petition has been filed by the Association with the following prayers:-

"In the view of the facts and circumstances as abovementioned, it is most respectfully prayed to this Hon'ble Court to grant the following reliefs to the petitioner.

1. To issue a writ of mandamus directing respondent no.1 to prepare an elaborate scheme/rule/act for transfer of employees from Films Unit to National Films Development Corporation after consultation with the Petitioner organisation and other employees' organisations.

Signed by: ANIL KUMAR YADAV Signing Date:08.10.2021

2. To issue a writ of mandamus, directing respondent no.1 to withhold all consequential actions for the merger of the four Film Media Units, as approved by the Cabinet, as per Order dated 05.01.2021, till an elaborate scheme/rule/act has been enacted with respect to the transfer of employees from the four media units to National Films Development Corporation.

3. To issue writ of mandamus, directing respondent no.1 to consider the employees of Films Unit as the officers or employees of Central Government, with same terms and conditions of their services as if they were the Central Government Employees, if they were transferred from Films Unit to National Films Development Corporation.

4. Pass any other orders (s) or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

2. The petitioner Association is aggrieved by the Cabinet decision taken on December 23, 2020, deciding to merge four film units, Children's Film Society (CFSI), Films Division (FD), National Film Archives of India (NFAI) and Directorate of Film Festivals (DFF) with National Films Development Corporation (NFDC), by expanding the Memorandum of Articles.

3. It is the grievance of the petitioner, that respondent No.2 or the expert committee headed Mr. Bimal Julka, appointed by respondent No.1, before taking a decision of merger of the Four Film Media units, neither consulted the Employees Association, nor senior Staff members of the Film Media Units. That apart, even after the decision referred to above, the respondent No.1 neither addressed the issue of transfer of employees from the four Film Units to NFDC nor circulated any Scheme / Rules / Act with respect to transfer of Employees. The employees are Central Government Employees, governed by CCS Rules and Old Pension scheme, as well as new pension scheme. Whereas the employees in the NFDC work on contractual basis, and their staff structure is not comparable to any of the four Film Media Units. This may create anomalies while transferring the employees from the four Film Media Units to NFDC.

4. The respondent No.1 should withhold or stay all consequential actions for the merger of the four Film Media Units. In support of her submission, she has also drawn my attention to the various documents filed by her along with the writ petition. That apart, she has also sent, through the Court Master, an Office Memorandum dated September 09, 2021, of the respondent No.1, which reads as under:-

"Date: 09.09.2021.

OFFICE MEMORANDUM

Subject: Re-deployment of staff of four Film Media Units into other Media Units in Ministry of Information and Broadcasting- Implementation of decision of the Cabinet on merger of four Film Media Units into NFDC -regarding.

The undersigned is directed to inform that the Cabinet, on 23.12.2020, has approved the proposal of this Ministry, for the merger of four Film Media Units, viz. Films Division, Directorate of Film Festivals (DFF), National Film Archive of India (NFAI) and Children's Film Society, India (CFSI) with National Film Development Corporation (NFDC) by expanding the Memorandum of Articles of Association (MoAA) of NFDC, which will then carry out all the activities hitherto performed by them, and to all consequential action/actions required to be taken, including closure of DFF/FD/NFAI/CFSI. A period of two years has been earmarked for implementation of the decision of the Cabinet.

2. In so far as the course of action in respect of employees of existing Film Media Units is concerned, the Cabinet has approved that employees aged above 55 years can be offered the golden handshake/severance package as per respective service conditions, and employees aged below 55 years can either be retrained and absorbed in the company, or re-deployed within the Government.

3. In this regard, it has been decided that the process of re- deployment/absorption of existing staff of aforesaid Film Media Units into other Media Units has to be initiated in this Ministry so that the course of action for re-deployment/absorption of employees can be finalised within the time frame earmarked for implementation of the decision of the Cabinet. In this regard, details of all the existing staff of Films Division (Attached Office), DFF (Attached Office), NFAI (Attached Office) and CFSI (Autonomous Body) are enclosed.

4. All the Media Units in this Ministry are requested to nominate a Nodal Officer in their respective organisations, who will be responsible for carrying out the work of re- deployment/absorption of staff in close co-ordination with Films Wing of the Ministry of Information and Broadcasting. The details of the Nodal Officer, viz. name, designation, email, mobile No. may be provided to this Ministry, positively, by 10.09.2021(F/N).

5. All the Media Units are requested to prepare the details of vacancy position in their respective organisations, keeping in view the re-deployment/absorption of the existing staff of Film Media Units, as mentioned above."

6. On a specific query from the Court, as to any action has been taken, which have caused/ effected their conditions of service, the answer is in the negative.

7. On the other hand, Mr. Gaurang Kanth, learned counsel appearing for the respondents, would submit that the present petition is premature and in fact, as per the Office Memorandum now sent by learned counsel for the petitioner, it is clear that the broad parameters of the action have been taken. That apart, a period of two years has been earmarked for implementation of the decision of the Cabinet. He states, that the present petition needs to be rejected on this ground itself.

8. I may at the outset state that, the petitioner is challenging the merger of the four units with NFDC. It is a settled position of law that merger is the prerogative of the employer, the respondents herein. The Supreme Court, in the case of Association for the Officers of the W.B. Audit and Accounts Service & Others. v. W.B. Audit and Accounts Service Association and Others., 1995 Supp (4) SCC 44, has held as under:-

"5”. This Court has repeatedly held that merger of more than one cadre or division of one cadre into two or more cadres is an executive act, and is entirely within the administrative sphere of the State Government. This Court, in Reserve Bank of India v. N.C. Paliwal [(1976) 4 SCC 838: 1977 SCC (L&S) 82: (1977) 1 SCR 377] held as under: (SCR Headnote, p. 379) "The integration of different cadres into one cadre cannot be said to involve any violation of the equality clause. It is entirely a matter for the State to decide whether to have several different cadres, or one integrated cadre in its services. That is a matter of policy, which does not attract the applicability of the equality clause. The integration of non-clerical with clerical service, sought to be effectuated by the Combined Seniority Scheme, cannot, in the circumstances, be assailed as violative of the principle of quality."

9. So, the challenge to the decision of the Cabinet is unmerited. Mr. Kanth is right in stating that the broad parameters have been laid down in Para 2 of the Memorandum dated September 9, 2021, on the future course of action. That apart, two years have been earmarked for implementation of the decision. In fact, no order has been shown to me, which has been issued in furtherance to the memorandum dated September 09, 2021. Mr. Kanth is right, in stating that the petition is premature, as merger cannot be the grievance of the petitioner, and no order has been issued contrary to law, which may cause any grievance to the petitioner.

10. The petition is dismissed. No costs.

V. KAMESWAR RAO, J, OCTOBER 07, 2021