| SooperKanoon Citation | sooperkanoon.com/952996 |
| Court | Karnataka High Court |
| Decided On | Sep-03-2012 |
| Case Number | Writ Appeal No.4535 of 2011 (S-RES) |
| Judge | K.L. MANJUNATH & V. SURI APPA RAO |
| Appellant | K. Shivaramu, I.A.S. |
| Respondent | The Chief Secretary to Govt and Another |
1. Legality and correctness of the order passed by the learned single Judge in WP No.11732/2004 dated 26.4.2011 is called in question in this appeal. Appellant was the petitioner before the learned single Judge.
2. Writ petition was filed by the appellant to quash Annexure-E dated 8.3.2004 circular issued by the State of Karnataka withdrawing permission granted to the Government servants to participate in motion pictures and Television Serials etc., Earlier the Government had granted permission to act in motion pictures and Television Serials to a Government servant subject to prior permission, which has now been withdrawn by the Government under the circular in question prohibiting the Government employee from acting in motion pictures and Television serials. Withdrawal the permission was questioned by the appellant before the learned single Judge. Learned single Judge has dismissed the writ petition. Challenging the same, present appeal is filed.
3. Heard Sri.Subba Rao, learned senior counsel and the Govt. Advocate for the respondents.
4. Appellant is serving in State of Karnataka as Senior I.A.S. Officer. He has worked in different posts at different places. According to petition averments, as a Deputy Commissioner working in Davanagere District has implemented many socio-economic programs in a time bound span by taking the District Administration to the door steps of the people. According to him, within a span of 2 and half years as Deputy Commissioner of Davenagere District, he visited more than 550 villages and all the problems in those villages were solved by him by taking decision at the spot and that no other IAS Officer has implemented such programs and the Government of Karnataka has termed the programmes innovated by the appellant as a unique one. According to him, right from his younger days, it is his habit to participate in dramas and cultural activities. In a span of 11 years as IAS Officer he has acted in six films. According to him, acting in motion pictures is purely a honorary and solely for the purpose of advancement of art culture and also to keep his talent and hobby alive. According to him, he has acted in films after securing permission from the State of Karnataka vide order dated 17.4.1990 which has been withdrawn by the Government on 10.11.1995 as per Annexure-B. Again he gave one more representation to grant permission for him to act in films and again as per the order of the Government dated 29.3.1997 he was permitted to act in films. But all of a sudden as per Annexure-E all the Government Servants in the State are prohibited from acting in motion pictures and Television Serials contending that there are no allegations whatsoever in nature against him in regard to mis-use of the permission granted to him earlier or lapse on his part in discharging his official duties or utilizing the leave beyond the prescribed limit. Even though he has acted honorarily in motion pictures Annexure-E has come in his way to continue to act in films and Television Serials taking away the right guaranteed to him under Art.19(1)(a) of the Constitution of India, writ petition was filed.
Writ petition was contested by the Government on the ground that the appellant is a whole time Government Servant. Considering the nature of his job, he has to be in head-quarters for all the 24 hours in a day and 7 days in a week. The right guaranteed to him under Art.19(1)(a) of the Constitution of India is in no way infringed by issuing a circular as per Annexure-E since the State Government has imposed only a reasonable restriction and such reasonable restrictions cannot be questioned by the appellant as unreasonable restriction. According to the respondent, when the appellant is a whole time government servant heading different units of the State from time to time cannot be permitted to act in films or Television serials which would take away the work of the appellant which results in paralysing the administration of the State. Therefore, Government in its wisdom has made a policy decision not to grant permission to any of the government servant to act either in motion pictures or in Television serials and restrictions imposed by the Government cannot be questioned by the appellant as there is no unfettered right for the appellant or any other government servant to seek permission to act either in Television serials or in the motion pictures. Therefore, the respondents requested the learned single Judge to dismiss the writ petition.
Learned single Judge after hearing the parties came to the conclusion that no case is made out to quash Annexure-E, accordingly, petition came to be dismissed. Challenging the legality and correctness of the order, present appeal is filed.
5. Mr.Subba Rao, learned senior counsel appearing for the appellant taking us through Art.19(1)(a) and 19(2) of the Constitution of India and also Rule-13 of the All India Service (Conduct) Rules 1968 contends that there is no prohibition either under the Constitution or under the Rules referred to above to seek permission of the Government by a member of the All India Services to undertake occasional work of literary or artistic or scientific character, as per Rule-13(2)(b) of the Rules. Therefore, he contends that the learned single Judge without considering the back-ground of Art.19(1)(a) and 19(2) and Rue-13(2) of the Rules and also without considering the law laid down by the Apex Court in K.A. Abbas Vs. The UNION OF INDIA AND ANOTHER [A.I.R. 1971 S.C.-481] has erroneously dismissed the writ petition, therefore he requests the court to allow the appeal.
6. Per contra, Mr.Keshava Reddy, Govt. Advocate relying upon the judgment of the Hon’ble Supreme Court in SUKUMAR MUKHERJEE Vs. STATE OF WEST BENGAL AND ANOTHER reported in A.I.R. 1993 S.C.-2335 prohibition imposed by the Government in the present case cannot be interfered by this court as it is a State policy prohibiting its employees not to act in Television serials or in motion pictures. He further contends that the facts involved in the case of K.A. Abbas are no way concerned to the facts of this case as the question that had arisen for the consideration of the Apex Court in the aforesaid case was whether the U-Certificate granted to the film produced by K.A.Abbas by the Censor Board was proper or not.
According to him, in the present case, the question that arises is whether the restriction imposed on the Government Servants in prohibiting them from acting in motion pictures and Television Serials amounts to reasonable restriction or not. He further contends that while considering the restriction imposed by the State, Court has to examine whether such restriction is reasonable or unreasonable in the back-drop of each and every case. If the State Government in the best interest of the public administration has denied permission to the Government Servant prohibiting them from acting in motion pictures or in Television Serials cannot be termed as un-reasonable restriction and that it would take away the right of a Government Servant guaranteed under Art.19(1)(a) of the Constitution of India. He further submits that even Rule-13(2) of the Rules is also not violated because the Government has not prevented Government Servants or members of the All India Services is undertaking occasional work of literary, artistic or scientific character. According to him, there is no prohibition for a member of All India Services to continue their literary activities like painting, crafting etc. and even to play in dramas except to act in Television serials and film production and he further submits that under Rule-13(1)(f) there is a prohibition for the member of All India Services either to participate or associate himself in any manner in making of – a sponsored media (including, ratio, televisions) programme or a privately produced radio or televisions or other media programme including a video magazine. Relying upon this provision of law he contends that it is for the Government to consider whether such permission has to be granted or not. Considering the back-ground of members of All India Services as they are full time officers for all the 24 hours and 7 days in a week, if the Government has refused to grant permission to act in films or Television serials, the appellant cannot contend that it would violate the right guaranteed to him under Art.19 of the Constitution of India. Therefore, he requests the court to dismiss the appeal.
7. Having heard the counsel for the parties, we have to consider whether any error is committed by the learned single Judge in dismissing the writ petition.
8. Admitted facts are that the appellant is a Member of All India Services. As on today he has put in service of more than 25 years and he has acted in six films with the prior permission of the Government and he is willing to continue to act in motion pictures considering it as a hobby and not for any monitory benefit. It is also not in dispute that he being a member of the All India Services who has put in service of more than 25 years, is in the cadre of Principal Secretary to the Government. Animal Husbandry and Veterinary Sciences. Therefore, considering his length of service and post held by him, his services are required by the State in the interest of public administration is full time and considering the back-ground of his post if the Government has denied permission for him to act either in motion pictures or in Television Serials, whether this court can hold such restriction as unreasonable restriction and it would take away the rights guarantee to him under Art.19(1)(a) of the Constitution and Rule-13(2) of All India Services (Conduct) Rules, 1968.
9. Art.19(1)(a) and 19(2) of the Constitution of India reads as hereunder:
“19 – Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right –
(a) to freedom of speech and expression;
19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of [the sovereignty and integrity of India], the security of the State, friendly relations with foreign in relation to contempt of court, defamation or incitement to an offence.”
Similarly, it would be useful for us to refer to Rule-13 of the All India Services (Conduct) Rules, 1968:
“13. Private trade or employment.-(1) Subject to the provisions of sub-rule (2), no member of the service shall except, with the previous sanction of the Government,-
(a) engage directly or indirect in any trade or business, or
(b) negotiate for, or undertake, any other employment, or
(c) hold an elective office, or canvass for a candidate or candidates for an elective office, in any body, whether incorporated or not, or
(d) canvass in support of any business of insurance agency, commission agency, etc., owned or managed by any member of his family, or
(e) take part, except in the discharge of his official duties, in the registration, promotion or a management of any bank or other company registered or required to be registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force or of any co-operative society for commercial purposes [or]
(f) participate in, or associate himself any manner, in the making of-
(i) a sponsored media (including radio, television) programme; or
(ii) a media programme commissioned by Government media but produced by an outside agency; or
(iii) a privately produced radio or televisions or other media programme including a video magazine:
Provided that no previous permission shall be necessary in case a member of the service participates in a programme produced by the Doordarshan on a subject dealt with by him in his official capacity.]
(g) Involve or engage himself in the registration, promotion management of other kinds of activities of any non-Governmental organization if the same is aided by the Central Government, State Government or an International organization or agency.]
(2) A member of the service may, without the previous sanction of the Government,-
(a) undertake honorary work of a social or charitable nature, or
(b) undertake occasional work of literary, artistic or scientific character, or
(c) participate in sports activities as amateur, or
(d) take part in the registration, promotion or management (not involving the holding of an elective office) of a literary, scientific or charitable society, or of a club, or similar organization, the aims or objectives of which relate to promotion of sports, cultural or recreation activities, registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force, or
(e) take part in the registration, promotional or management (not involving the holding of elective office) of a co-operative society substantially for the benefit of the members of the service or Government Servants, registered under the Co-operative Societies Act, 1912 or any other law for the time being in force in any State:
provided that-
(i) he shall discontinue taking part in such activities if so directed by the Government’ and
(ii) in a case falling under clause (d), or clause (e) of this sub-rule, his official duties shall not suffer thereby and he shall, within a period of one month of his taking part in such activity, report to the Government giving details of the nature of his participation.”
From the aforesaid provisions, it is clear that under Art.19(1) (a) of the Constitution of India, appellant has a right to freedom of speech and expression. But the word used to the right guaranteed to him under Art.19 has to be exercised by him subject to certain conditions of his employment. Rule-13 says that no member of the service without the previous sanction of the Government shall participate in or associate himself in any manner in making of a sponsored media programme or privately produced radio, television or other media programme including video magazine. But Rule.13(2) of the Rules says if he had undertaken occasional work of literary, artistic or scientific character, no such permission is required. Therefore, what is to be distinguished in the present case is whether Rule-13(1) or 3(2) of the Rues would applicable to the back-ground of this case and whether restriction imposed under Annexure-E is a reasonable restriction or unreasonable restriction. In a period of 11 years, he has acted a has hero in six films with the prior permission of the Government. While obtaining permission he has relief upon Rule-13(1) and not Rule-13(2) of the Rules. Therefore, it is clear that when he has obtained permission relying upon Rule-13(1), now he cannot turn round and say that in view Rule-13(2) he is entitled to undertake occasional work of artistic. In other words, to act in films he intends to bring the same within the definition of artistic work. It is no doubt true that acting is an art. But acting in a film or television falls under Rule-13(1) (f) and not under Rule-13(2). When the act of the appellant falls within Rule-13(1)(f), he cannot contend now that the prohibition imposed under Annexure-E is bad in law as long as Rule-13(1)(f) is held as ultra vires and unconstitutional. Appellant has not challenged Rule-13(1)(f) of the Rules. Therefore, even without considering the judgments cited by Mr.Subba Rao in K.A. Abbas’s case, appeal has to be dismissed on the facts and circumstances of this case. Be that as it may, facts and circum stances of this case. Be that as it may, facts in K.A. Abbas’s case are altogether different. Facts involved in the aforesaid decision was in regard to granting of U-Certificate to a film produced by him.
It would be appropriate for us to refer to a judgment relied upon by Mr.Subbra Rao in VIDADALA HARINADHABABU Vs. N.T. RAMARAO, CHIEF MINISTER, STATE OF ANDHRA PRADESH, HYDERABAD AND OTHERS a decision rendered by Full Bench of Andhra Pradesh High Court reported in A.I.R. 1990 A.P.-2 wherein a question arose whether N.T. Ramarao as a Chief Minister of State of Andhra Pradesh can act in motion pictures. While considering the case, Full Bench has held that there is difference between a Government Servant and a public servant. The office of Minister is held to be a political office and while taking oath of office obligates to discharge duties of minister faithfully and consciously. Oath of office however does not say that he shall devote all his time to his official duties. It is a matter left to a good sense and conscience. Holders of high constitutional offices like Ministers must act with conscience and it is clear with due regard to understand the democratic norms of constitutional variance, even in the matter of personal conduct. The fact that court may not assess their personal conduct is beside the point. It is further held that a Minister cannot be equated to a public servant. The concept of master and servant has no application or relevance to the office of a Minister. The Rules of Conduct applicable to a civil servants or fundamental Rules requiring civil servants to place all their time at the disposal of the Government are not applicable to the Ministers. From the above passage it is clear that as a civil servant appellant is required to place all his time at the disposal of the Government. Therefore he cannot contend that there is a discrimination. But in the instant case, a prohibition or a reasonable restriction imposed on a member of All India Services to act in motion pictures or television serials. Considering the nature of work assigned to the appellant and if the Government Policy is to prevent all the Government servants prohibiting them from acting in television or motion pictures, same cannot be said to be unreasonable restriction as the public interest would suffer if the Government Servants are allowed to act/participate in films and television serials.
10. As rightly pointed out by the Government Advocate what is reasonable or unreasonable has to be adjudicated based on the facts of each case. Therefore, we are of the view that the circular as per Annexure-E cannot be held to be contrary to Art.19(1)(a) of the Constitution and the same cannot be quashed by this court. In the circumstances, if the learned single Judge has dismissed the writ petition, we do not see any reasons to interfere with the orders of the learned single Judge.
11. Accordingly, the appeal is dismissed.