JUDGMENT
K.S. Gupta, J.
(1) SMT.YASHODARA Srinivasan, petitioner, has filed this writ petition under Article 226 of the Constitution, inter alia, on the allegations that after undergoing a successful audition in the All India Radio in 1977 she was placed in B Grade in Karnataka Music. Thereafter in 1982 she was placed in the next higher Grade B High and was given opportunity to stage performance in the All India Radio Broadcasting through various stations such as Hyderabad,Trivandrum, Coimbatore and Delhi etc. Grade higher to ‘B High’ is ‘A’ followed by ‘Top Artist’. Under Rule 12 of the Rules for the Music Audition Board (for short ‘MAB’) (annexure C), all ‘B’ and ‘B High’ artists can be upgraded only if they appear for a fresh audition and are considered fit for the higher grade. It is alleged that the petitioner, confidant of her improved ability, participated of her own volition in an audition test for upgradation from ‘B High’ to grade ‘A’ in 1989 and vide communication dated January 1, 1991 from the Programme Executive, respondent No.2, (annexure D) she was informed that she has been weeded out by MAB. Thereafter she sent letter dated April 2, 1991 (copy annexure E) to the Director General, respondent No.1, to reconsider her case. Vide letter dated May 10, 1991 (annexure F), Director of Programmes informed her that all the Mab tapes are listened to by a panel of well known musicians and musicologists and that it was not possible to reconsider her case. Not being satisfied with that decision, the petitioner made a representation dated April 4, 1992 (copy annexure G) to the Minister for Information and Broadcasting. Vide letter dated May 4, 1992 received from the Director of Programmes (Music) (annexure G1) she was intimated that it has been decided to reassess the performance of the petitioner by Mab and she may have the recording done at All India Radio, Delhi. It is alleged that the petitioner gave her recording on November 18, 1992 and her performance was to her entire satisfaction. Vide letter dated March 6, 1993 (annexure O) she was informed by respondent No.2 that the directorate has not approved for grade and hence, she is weeded out. Petitioner has challenged both the orders dated January 16, 1991 (annexure D) and March 6, 1993 (annexure O) on the ground that the Mab has no power to weed out any artist of ‘B High’ grade or above under Rules 10B and 11 of 1988 Rules (annexure C). It is stated that even if the Directorate decided to weed her out, set procedure as contained in Rule 11 was not followed before the impugned orders were passed. In this background prayer has been made to quash and set aside the impugned orders dated January 16, 1991 and March 6, 1993 and to order the restoration of the status of the petitioner to ‘B High’ grade artist.
(2) In response to show cause notice the respondents filed a joint reply on the affidavit of Noreen Naqvi, Station Director, All India Radio, Sansad Marg, New Delhi. It is stated that the Mab is a high powered committee comprising of experts drawn from different disciplines of music and the Board is competent to recommend upgradation, down gradation or retention in the existing grade depending on the performance quality of an artist. In petitioner’s case Members of the Board felt that she is not only unfit in the existing grade but it also recommended her total weeding out from the list of music artists on two occasions and that the decision of the Board is final. It is further stated that as per Directorate letter No.4/10/89- P2 dated April 10, 1990, Music Audition Rules 1988 have been amended and the Mab is empowered under the amended Rules to weed out a ‘B High’ grade artist.
(3) In the rejoinder filed to the reply of the respondents, it is, inter alia, alleged that the amended Rules are not applicable to the present case.
(4) In regard to one of the impugned orders (dated January 16, 1991), submission advanced by the learned counsel for the petitioner was that under Rules 10B and 11(II) of 1988 Rules, the Mab did not have the power to weed out an artist of the grade ‘B High’ and, therefore, that order is bad. According to the learned counsel, amendments made to the said Rules of 1988 conveyed through Directorate’s letter No.4(10)/89-PII dated April 10, 1990 have no application to this case. Strong reliance was placed on a decision in Civil Writ No.1614/91, V. Krishna Murthy Vs Union of India & Others, decided by this Court on November 19, 1991 (copy annexure P). On the other hand, contention advanced by learned counsel for the respondents was that the amended Rules are applicable to the petitioner and under those Rules Mab was empowered even to weed out a ‘B High’ grade artist.
(5) In order to appreciate the respective contentions advanced on behalf of the parties, it is necessary to examine the relevant rules having bearing on the issue involved.
(6) Rule 10B of Audition Rules 1988 (annexure C) reads: “10(B).INthe case of an existing classical/light classical music artist appearing for a re-audition on his own for improving his grade, the programme head of the station, while forwarding his recording should clearly indicate that it is a case of upgrading, and also state the existing grading of the artist. The tape should be sent with a roll number without disclosing the identity of the artist. The tape should be placed before the panel of judges to enable it to make a comparative assessment of the artist’s performance. The panel will, after listening to the recording, place the artist in a higher grade if he is considered fit for upgrading. If the artist is not considered fit for a higher grade, it will simply give the remarks ‘not fit for upgrading’. Where the Music Audition Board opines that the artist is not only unfit for upgrading but also unfit to be retained in the existing grade, the remarks will then be brought to the notice of the station director who will reduce the bookings of the artist, keep a careful watch on the performance quality of the artist and if need be, weed him out according to the procedure laid down. In the case of ‘B’ grade artists applying for upgrading, the Music Audition Board will have the right to weed out the artist from the current approved list and the decision of the Music Audition Board will be final.”
RULE11(II) which too is relevant reads thus: “11…. … … … … I) .. … … … … … II) B (HIGH) and ‘TOP RANKING’ Artists In the case of deterioration in the quality of the performance of artists in the above mentioned grades, the matter should be referred to the Directorate alongwith their latest off broadcast recordings and listening reports. No letter should be written to the artist but pending final decision by the Directorate the bookings of such artists should be reduced to 50%.” “ON a combined reading of said Rules 10B and 11(II) it is evident that Mab has no power to weed out an artist of ‘B High’ grade or above. In a case where it is of the view that an artist of the said category is unfit to be retained in the existing grade in that eventuality the remark of the Mab is to be brought to the notice of the Station Director. It is the Station Director who is supposed to proceed in the matter as per the procedure laid down in Rule 11(II).”
(7) Relevant portion of the amended Rules, conveyed through the letter No.4/10/89-PII dated April 10, 1990 issued under the signature of S.C.Gupta, Director of Programme (M) (annexure X), reads as under: “IT has been decided to substitute Chapter I, 10(B), page 16 as follows:- (B) In the case of an existing classical/light classical music artist appearing for a re-audition of his own for improving his grade, the programme head of the Station, while forwarding his recording, should clearly indicate that it is a case of upgradation and also state the existing grading of the artist. The tape should be sent with a roll number without disclosing the identity of the artist. The tape should be placed before the panel of judges for assessment of artist’s performance. The panel will after listening to the recording, place the artist in a higher grade if he/she is considered fit for upgrading. If the artist is not considered fit for a higher grade, it will simply give the remarks ‘not fit for upgrading’. Where the Music Audition Board opines that the artist is not only unfit for upgrading but also unfit to be retained in the existing grade, the candidate shall be deemed to be weeded out. Hence, in all cases of ‘B’ and ‘B High’ grade artists applying for upgrading, the Music Audition Board will have the right to weed out the artists from the current approved list and the decision of the Music Audition Board will be final.”
(8) Obviously in terms of said amended Rule 10(B), Mab has a right to weed out an artist of ‘B High’ grade from the current approved list and its decision in the matter has been made final.
(9) This brings us to the controversy if the present case is to be governed either by the amended or unamended Rules of 1988. In the decision of V.Krishna Murthy (supra) the petitioner applied for upgradation from ‘B High’ grade in 1989. Test for re-audition submitted by him came to be audited in August 1990. While dealing with the identical point it was observed, thus: “IN our opinion the 1990 amended Rule 10(B) would not apply to this case. The Music Audition Board was bound by the 1988 Rules. A substantive right to be governed by the said Rules had accrued to the petitioner. This vested right, we feel, could not be taken away firstly by delaying the decision in his case for a period of more than a year and secondly, applying the amended Rules to his detriment without any notice to him in this behalf.”
(10) We are in full agreement with the said view taken by the Division Bench in V. Krishna Murthy’s case (supra). As Rule 10(B) of 1988 Rules did not provide for the weeding out of an artist of ‘B High’ grade by the Mab, order dated January 16, 1991 weeding out the petitioner being arbitrary cannot be sustained and is liable to be quashed and set aside.
(11) Coming to the second order dated March 6, 1993, submission advanced by the learned counsel for the petitioner was that Audition Rules 1988 which were amended in 1990, were further amended by respondent No.1 vide office memorandum No.4/4/91/P-II(Pt.) dated June 1, 1992 and as per that amendment if the Mab felt that an artist had deteriorated that fact was to be brought to the notice of the artist and he/she was to be given one more chance to record his/her performance for re-audition before weeding out. No such chance for re-audition was given to the petitioner before weeding her out vide order dated March 6, 1993. As such the order too was arbitrary. Copy of the said office memorandum is placed at page 120 of the paper book and the relevant portion thereof reads: “FOR the last few years Music Audition Rules prescribed that although it is a case for re-audition for upgrading, the Music Audition Board was authorised to down-grade him/her from the existing grade if it is found that the performance of the artist has deteriorated. This has been the cause for lot of indignation among the artists. The matter has been considered and the Music Audition Board Rules have been revised to the effect that Music Audition Board would not straightway down-grade any artist coming before it for audition for upgrading. However, if the Music Audition Board feels that the artist has deteriorated the remarks of Music Audition Board should be brought to the notice of the artist and he would be given one more chance to record his performance for re-audition within three months from the date of communication of the remarks. In case the artist fails to record for Music Audition Board, his future booking shall be regulated by the assessment given by the Music Audition Board earlier.”
(12) PETITIONER’S case is fully covered by the said office memorandum dated June 1, 1992. It is not the case of the respondents that the petitioner was given one more chance to record her performance for re-audition as per the above office memorandum before letter dated March 6, 1993 was issued. That being so, the impugned order dated March 6, 1993 weeding her out, without affording one more opportunity for re-audition too suffers from the vice of arbitrariness besides being contrary to the above office memorandum dated June 1, 1992.
(13) From the aforementioned discussion it follows that the action of the respondents in weeding out the petitioner from ‘B High’ grade, in terms of the orders dated January 16, 1991 and March 6, 1993, is arbitrary and deserves to be quashed.
(14) Consequently, the writ petition is allowed with costs. The orders dated January 16, 1991 and March 6, 1993 are quashed and set aside. The respondents are directed to restore the status of ‘B High’ grade artist to the petitioner within two months from today.