J.C. Jain, Director (Publicity), ... vs The Secretary, Ministry Of ...
2003 Latest Caselaw 1368 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an order dated 25th September, 2002 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short the Tribunal) dismissing an Original Application filed by him being OA No. 2347/2001.

2. The Petitioner had prayed for a direction to the Respondents to consider his case for induction into the Indian Information Service (for short the IIS). The claim of the Petitioner was based on the recommendations of the 5th Central Pay Commission (for short the 5th FCPC) read with a Resolution dated 30th September, 1997 passed by the Ministry of Finance.

3. The Petitioner was directly recruited through the Union Public Service Commission as Director (Publicity) in the junior administrative grade in the Ministry of Small Scale Industries on 25th January, 1985. He has been working in that post ever since, that is, for the last about 17 years. Admittedly, the post of Director (Publicity) is a Group A post.

4. According to the Petitioner, the post of Director (Publicity) is an isolated post that requires to be encadred in the IIS.

5. Initially, the Department of Personnel and Training issued an Office Memorandum dated 23th May, 1990 laying down certain guidelines relating to isolated posts in Group A in various Ministries/Departments of the Government of India. After laying down the guidelines, all Ministries/ Departments were requested to conduct a review of isolated posts existing in the Ministries or Departments as well as attached and subordinate offices under their control and to take necessary action. For some reason, which is not apparent from the record, nothing seems to have been done in respect of the post of Director (Publicity).

6. The 5th FCPC, recommended in paragraph 55.233 and 55.234 of its Report, that Group A posts of publicity staff (wherever they exist) be encadred in the IIS. In Annexure 55.7 to the Report, which refers to paragraph 55.233 thereof, the post of Director (Publicity) in the Ministry of Small Scale Industries was recommended for encadrement in IIS.

7. While dealing specifically with isolated posts, the 5th CPC stated in paragraph 22.41 of its Report as follows:-

''22.41 Promotion opportunities to those holding isolated posts are almost non-existent. Since such isolated posts are filled by direct recruitment, incumbents of these posts generally retire in the same post to which they were recruited. Representations have been received by the Commission that in many cases, isolated posts are created even when the nature of duties assigned to the post are similar to those of a cadre post. We, therefore, feel that as a matter of policy, no isolated post should be created/sanctioned in future in Government. Posts sanctioned by Ministries/Departments should always be a part of some organized cadre. If creation of a single post is indispensable, and it cannot be part of an organized cadre in the Ministry, efforts should be made to encadre such a post in an organized cadre existing in some other Department/Ministry. Such an attempt needs to be made even now and Ministries/ Departments should review the isolated posts with a view to encadre them in an organized cadre n the Ministry/Department or outside it. In case creation of an isolated post becomes indispensable, the two higher scales to be given in a time bound manner under the Assured Career Progression scheme should be indicated in the orders for creation of the post itself.''

8. When the Report of the 5th CPC came up for acceptance, the Ministry of Finance passed a Resolution dated 30th September, 1997 wherein the Report was generally accepted. However, in paragraph 8 of the Resolution, it was stated that:-

''8. Department specific recommendations which are not included in this Resolution shall be processed by the concerned Department/Ministry and approvals of the Government obtained in consultation with the Ministry of Finance and/or Department of Personnel and Training.''

9. The aforesaid narration of events clearly indicates that the post of Director (Publicity) held by the Petitioner is an isolated post. Admittedly, there is no further channel of promotion. The Respondents deny that the post is an isolated one and aver that it is a part of a well defined hierarchy having a feeder post of Deputy Director (Publicity). The Tribunal has noticed this contention but has not given any finding whether, notwithstanding this, the post of Director (Publicity) is an isolated post or not. However, in view of the categorical expression of opinion by an expert body like the 5th CPC, we would assume that the conclusion arrived at in its Report is correct, namely, that the post of Director (Publicity) is an isolated post. Therefore the only question that requires examination is the necessity of its encadrement.

10. Pursuant to the recommendations of the 5th CPC and the Resolution dated 30th September 1997, the Petitioner represented to the Ministry of Information and Broadcasting for including the post of Director (Publicity) in the IIS. The Petitioner was, how ever, informed that his Ministry should forward the necessary proposal. By a letter dated 12th June 1998 the concerned Ministry proposed to the Ministry of Information and Broadcasting that the post of Director (Publicity) may be included in the IIS sine the Petitioner had opted for its inclusion. The Ministry also stated in its aforesaid letter that the officer holding the post of Deputy Director (Publicity) did not opt for inclusion of his post of Deputy Director (Publicity) in the IIS and therefore that post (of Deputy Director) need not be encadred.

11. The proposal for encadrement of the post of Director (Publicity) was considered by the Ministry of Information and Broadcasting and by a letter dated 31st August 1999, the Petitioner was informed that the post of Director (Publicity) could not be encadred in the IIS along with the incumbent because it would have serious repercussions in the management of the service. However, it was stated that the post could be considered for induction in the IIS when it falls vacant. In other words, the Petitioner could not be inducted in the IIS, but his successor could be so inducted.

12. On a further representation, the matter was reconsidered by the Ministry of Information and Broadcasting and the request of the Petitioner for induction of the post of Director (Publicity) in the IIS, along with the incumbent, was rejected by a letter dated 4th August 2000 citing three reasons. These reasons are as follows: -

''(i)The Fifth Central Pay Commission (FCPC) has recommended for induction of the posts of Director (Publicity) and Deputy Director (Publicity), in the Department of Small Scale Industries, into IIS. Since the incumbent of the post of Deputy Director (Publicity) has not opted for the induction of his post in IIS, the induction of the post of Director alone into IIS is expected to defeat the very purpose of the recommendation.

(ii) The induction of the post along with the incumbent at sufficiently higher level is bound to provoke litigation especially among the officers who will have to be pushed down to accommodate the incumbent of the post, thereby adversely affecting the carrier prospects of serving IIS officers. The incumbent of the post may have to be given promotion from back date, with reference to his juniors, even though he has no experience in the cadre. The problem of managing the cadre on induction of rank outsider in the service has been aptly summarized by the CIS Board which has stated that ''those posts which are proposed to be inducted in IIS along-with incumbents shall not be inducted as granting them inter se seniority may lead to complexity and problems in cadre management''.

(iii) The Recruitment Rules of IIS Group 'A' do not permit induction in Group 'A' of the service. Induction provision exist only in IIS Group 'B', that too on the recommendation of Cadre Review Committee.''

13. A perusal of the above clearly suggests that the post of Director (Publicity) is an isolated post; otherwise the entire exercise of deciding whether the post could, or could not, be included in the IIS is meaningless. To this extent, therefore, the Petitioner must succeed and it must be held that the post of Director (Publicity) is an isolated post. In any case, the correspondence placed before us by learned counsel for both the parties does not suggest anything to the contrary.

14. The induction of the post of Director (Publicity) in the cadre of IIS was not acceptable to the Ministry of Information and Broadcasting because the incumbent of the lower post of Deputy Director (Publicity) did not opt for induction of his post in the IIS. It has rightly been submitted by learned counsel for the Petitioner that this can hardly be a ground for declining to induct the post of Director (Publicity) in the IIS. The question sought to be raised by the Petitioner in his departmental representations was about induction of the post of Director (Publicity) in the IIS and the answer to this question could not be dependent upon whether the incumbent of another post wanted to be inducted in the IIS or not. The induction of the post of Director (Publicity) into the IIS was required to be independently decided by the Respondents but this was overlooked.

15. The Tribunal has noticed in the impugned order one of the other reasons put forth by the Respondents for not including the post of Director (Publicity) in the IIS namely that it might lead to some problems in cadre management. However, what has not been taken note of is that the Respondents have no objection to the encadrement of the said post after it falls vacant, that is, without the present incumbent being there. It is not at all clear how the problems of cadre management would vanish with the departure of the Petitioner; the problems would still remain regardless of who holds the post of Director (Publicity). The impression given by the Respondents is that they have no objection to the encadrement of the post of Director (Publicity) in the II so long as the Petitioner does not stake a claim for his induction in the IIS. There is no reason why the Petitioner cannot be inducted in the IIS, except problems of cadre management, which we feel would surface even if the Petitioner's successor were inducted in the IIS along with the post of Director (Publicity). We are afraid that the reason given by the Respondents for not including the Petitioner in the IIS is untenable and appears to have been made up only to deny the Petitioner encadrement in the IIS. It is true, as observed by the Tribunal, that the Petitioner has no right to be inducted in the IIS; but, at the same time, the Petitioner cannot be excluded from consideration for encadrement in the IIS without any reason, other than the decision of the Respondents to deny him the benefits of encadrement.

16. We are, therefore, of the opinion that the decision of the Tribunal requires to be set aside, keeping in view of the stand of the Respondents that they have no objection to the induction of the post of Director (Publicity) in the IIS after the post falls vacant. We are of the opinion that if the post can be encadred in the IIS after it falls vacant, then it can be encadred even with the present incumbent holding the post, unless there is some valid reason. The reasons appearing on record do not appeal to us as being valid reasons.

17. Accordingly, we set aside the impugned order dated 25th September, 2002 and direct the Respondents to take necessary steps to encadre the post of Director (Publicity) in the Indian Information Service, along with the present incumbent, that is, the Petitioner. The exercise should be completed by the Respondents within three months from today, and in any case, before 31st March, 2004. The writ petition is disposed of in light of the above. There will be no order as to costs.