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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: A.R. SHINDE & ANR.

DATE OF JUDGMENT19/02/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) THAKKAR, M.P. (J)

CITATION:  1987 AIR 1004            1987 SCR  (2) 339  1987 SCC  (2)   1        JT 1987 (1)   487  1987 SCALE  (1)397

ACT:     Central  Administrative  Tribunal  Act,  1985:  Director General  AIR--Appointment of--By Government by  transfer  of deputation-Whether  valid--’18  years’ of  experience  in  a ’supervisory  capacity’--What  is--Order  of  Tribunal   set aside.     Civil Services: All India Radio (Recruitment of Director General  A.I.R.)  Rules  1963 Schedule Columns  7(ii)  10  & 11---Director General A.I.R.--Recruitment of--’18 years’  in ’supervisory  capacity’--What  is--Mere fact  that  original appointment  to  the post was for period of six  months  and extended--Whether valid.     Words and Phrases: ’18 years’ of experience in a ’super- visory capacity ’--What is.

HEADNOTE:     The  All India Radio (Recruitment of  Director  General, All  India  Radio)  Rules, 1963 provided that  the  post  of Director  General,  All India Radio be filled up  either  by promotion or by re-employment or by transfer on  deputation, or  by direct recruitment, and (i) 50% of the  vacancies  be filled up by promotion failing which by transfer on  deputa- tion,  and failing both by direct recruitment, and (ii)  50% by reemployment or transfer on deputation or direct recruit- ment,  the  exact  method of recruitment to  be  decided  in consultation  with  the Union Public Service  Commission  on each  occasion. The Additional Director General in  the  All India Radio who had served as such for three years was  also eligible under the Rules for promotion to the post of Direc- tor General.     The post of the Director General fell vacant on February 14, 1985. The authorities took recourse to make  appointment to  the post by transfer on deputation as there was no  body eligible for promotion, including the first respondent  from the  grade  of Additional Director General. The  second  re- spondent,  who was an officer of the rank of the  Additional Secretary  to  the  Government of India,  was  appointed  by transfer on deputation initially for a period of six months, and before the expiry of 340 this  period, his continuation for a further period  of  two

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years  was recommended as nobody was eligible for  promotion even  at that time and after approval of the  competent  au- thority the second respondent’s continuation was notified on December 10, 1985.     The aforesaid order of continuation was assailed  before the Central Administrative Tribunal by the first respondent, who  was working as the Additional Director General, on  the ground that though he fulfilled all the requisite qualifica- tions provided in the Rules for being considered for  promo- tion  to the post of the Director General, his case was  not considered and the impugned order continuing the appointment of the second respondent upto March 3, 1987 was made.     The  Central Administrative Tribunal held that  the  ap- pointment  of the second respondent was not made in  accord- ance with the Rules, that he had not the requisite  qualifi- cation for being appointed to the post and though the  first respondent fulfilled the eligibility qualification, was  not considered at all, and quashed the appointment of the second respondent.  It also directed that the post be filled up  in accordance  with the rules and that the first respondent  be considered for the post     In  the appeal to this Court, the findings  recorded  by the Central Administrative Tribunal that the appointment  of the second respondent was bad on the ground that it was  not in  accordance with the rules and that he was not  qualified to be appointed to the post, were challenged. Allowing the appeal, this Court,     HELD: 1.1 There were only three modes of making recruit- ment viz. (1) by promotion, failing which (2) by deputation; and failing which (3) by direct recruitment. [346B-C]     1.2  Since the appointment by promotion was not  at  all possible, and such an important and sensitive post could not be kept vacant, the appointment of the second respondent was made  by transfer on deputation which was the next  mode  of appointment  in the order of preference. Thus,  the  initial appointment  of  the second respondent  is  unexceptionable. [346D-G]     1.3 The appointment to such a sensitive post by the very nature of things has to be considered in advance and if when the proceedings were initiated, the first respondent had not yet qualified for being appointed 341 to the post, his name could not have been considered.  Fail- ure to consider his name in anticipation that he would  have qualified by the date on which the initial appointment  came to an end, does not constitute any illegality which vitiates the appointment. [347B-C]     1.4  The mere fact that the original appointment of  the second  respondent,  which was rightly made  initially,  was extended  for  a further period by reason of the  fact  that when  the proposal was mooted for consideration nobody  else was eligible for promotion cannot vitiate the appointment of the  second respondent by transfer on deputation  which  was the approved mode for appointment as per the relevant rules. [347C-D]     1.5 The very fact that the extension was made only  till March  3, 1987 shows that there was anxiety to fill  up  the vacancy ultimately by promotion which was the first  prefer- ential  mode of appointment, if possible. If it  was  other- wise,  the initial appointment itself could have  been  made without restricting the appointment by a time limit.  [347D- E]     1.6 Merely by reason of the fact that it was not brought to the notice of the Appointments Committee that the  second respondent would qualify for being considered for  promotion

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shortly  would  not justify characterising or  quashing  the appointment as illegal under the Rules. [347F]     2.1  The criteria for appointment has been projected  in Column  7  of the Schedule of Rules. The  second  respondent fulfils the first part of the criteria as he is holding  the post  of  Additional Secretary to the Government  of  India. [347G-H]     2.2  It would not be legal or proper to bodily lift  and transplant  clause  (ii) literally and word by word  as  the requisite  criteria for appointment by transfer  on  deputa- tion. [348A-B]     2.3  Due importance must be attached to  the  expression "possessing experience of the type mentioned in clause  (ii) of column 7". The emphasis in substance, is on possession of experience  of the general nature mentioned in clause  (ii). It would, therefore, not be right to inject into the  eligi- bility criteria the requirement of "18 years’ experience  in a  supervisory capacity in educational, cultural,  publicity or  professional institution/organisation" as the  requisite criteria  for appointment on transfer by deputation. If  the rule-making authority was so minded, it could have expressly transplanted all the requirements of 342 clause  (ii)  of column 7. If such were the  intention,  the rule-making authority would not have referred to  experience of the ’type’ mentioned in clause (ii) of column 7. [348B-D]      2.4  On  a  true, fair and reasonable  reading  of  the eligibility  criteria,  it cannot be said that  it  requires either experience of ’18 years’ or experience in a ’supervi- sory  capacity’  in  any of the  institutions  mentioned  in clause (ii) of column 7. All that is required is  experience of  that type viz., experience in the sphere  of  education, culture, publicity etc. along with adequate general adminis- trative  experience  with  capacity  for  organisation.  The criteria  is  being  specified in the  context  of  officers belonging  to  the All India Services  of  Central  Services Group A. By the very nature of things, therefore, they could not have 18 years experience in professional or  supervisory capacity in any educational institution. [348D-F]     2.5  The  second respondent was  duly  qualified  having regard  to  the fact that he had to his credit 29  years  of administrative  experience  and had  held  senior  positions including  the  post of Joint Secretary in the  Ministry  of Information  and Broadcasting and was holding. the  post  of Additional  Secretary  with effect from October,  1983.  The very  fact  that  he had worked as Joint  Secretary  in  the Ministry  of  Information and Broadcasting  itself,  coupled with his other experience, would satisfy the requirement  of the eligibility criteria for being appointed to the post  of Director General, All India Radio. [349H; 350A-B]     3.  The Tribunal was, therefore, in error in taking  the view  that the extension of the term of appointment  of  the second  respondent which is due to expire on March  3,  1987 was invalid and that he was not qualified for being appoint- ed  by  transfer on deputation to the said post as  per  the Rules. [350C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2732  of 1986.     From  the  Judgment  and Order dated 7.8.  1986  of  the Central Administrative Tribunal. New Delhi in O.A. No. 27 of 1986.

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   A.K. Ganguli, P. Parmeshwaran and A. Mariaputham for the Appellant.     S.C.  Gupta,  M.N. Shroff and K.M.M. Khan, for  the  Re- spondents. 343 The Judgment of the Court was delivered by     B.C.RAY, J. This appeal by special leave is against  the order made on 7.8.1986 by the Central Administrative  Tribu- nal,  Principal  Bench, Delhi holding that the  order  dated 10.12.  1986 extending the appointment of respondent No.  2, Shri  Suresh  Mathur as the Director General  of  All  India Radio is invalid.                 ’     The  post  of Director General, All India Radio  is  the highest  post in the organisation carrying with it  adminis- trative responsibilities and also requiring from the  incum- bent holding the post, leadership qualities of a high order. Rules  were flamed for recruitment to the said post as  well as to the equivalent post of Director General of Doordarshan under  proviso to Article 309 of the Constitution  of  India and these rules are known as All India Radio (Recruitment of Director  General, All india Radio) Rules 1963. These  rules provide  that the post of Director General, All India  Radio may be filled up either by promotion or by re-employment  on transfer on deputation or by direct recruitment. These rules also  provide  that 50 per cent of the vacancies are  to  be filled up by promotion failing which by transfer on  deputa- tion and failing both by direct recruitment and 50 per  cent by reemployment or transfer on deputation or direct recruit- ment.  It  was also provided that in respect of  the  second category  the exact method of recruitment is to  be  decided upon  in consultation with the Union Public Service  Commis- sion  on  each occasion. The post of Director  General,  All India  Radio fell vacant on 14th February, 1985. In  accord- ance  with  the aforesaid recruitment rules  the  Additional Director General in the All India Radio who had also  served for  three years in the post of Additional Director  General will  be  considered for promotion to the post  of  Director General.  The  respondent No. 1, Shri A.R.  Shinde  who  was appointed  as Additional Director General on 24.8. 1982  did not acquire the requisite qualification for being considered for  promotion  to the post of Director General,  All  India Radio as he had not rendered three years service in the said grade  of Additional Director General on the said date.  The authorities concerned took recourse to make the  appointment to the post by transfer on deputation. Accordingly on  March 4, 1985 the respondent No. 2, Shri Suresh Mathur who was  an officer  of the rank of Additional Secretary to the  Govern- ment  of India and was the Secretary, U.P.S.C. at that  time was  appointed  by transfer on deputation  initially  for  a period  of six months. Before the expiry of the said  period of  six months. i.e. in July-August, 1985,  the  authorities concerned considered the proposals for continued appointment of Shri Suresh Mathur for a further period 344 of  two years. After approval by the Appointments  Committee of the Cabinet the further continuation of respondent No.  2 as  Director General, All India Radio till 3rd  March,  1987 was  notified on th December, 1985 on the basis of the  said proposal. This order of continuation of respondent No. 2  as Director General, All India Radio was assailed by respondent No.  1, Shri A.R. Shinde, the Additional  Director  General, before the Central Administrative Tribunal, Principal Bench, Delhi on the ground inter alia that though he fulfilled  all the  requisite qualifications as provided in the said  rules for  being considered for promotion to the post of  Director

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General,  All India Radio, his case was not  considered  and the  said order was made continuing the appointment  of  re- spondent  No. 2 as Director General of All India Radio  upto March 3, 1987.     The  Central Administrative Tribunal after  hearing  the parties  quashed  the appointment of respondent  No.  2  and directed  for filling up the post of Director  General,  All India Radio in accordance with the rules and to consider the case  of  the  ’applicant holding that  the  appointment  of respondent  No. 2 was not made in accordance with  the  said rules and respondent No. 1 though fulfilled the  eligibility qualification  was  not at all considered and that  the  re- spondent  No. 2 also had not the requisite qualification  as specified in the said rules for being appointed to the  said post.     The learned counsel for the appellant has challenged the validity of the findings recorded by the Central Administra- tive Tribunal (Tribunal) on both the points, viz:-    (1)  As regards the finding that the appointment  of  re- spondent  no.  2 was bad on the ground that it  was  not  in accordance with the rules; and (2) that respondent No. 2 was not qualified to be  appointed to the post.     Having  given our anxious consideration to  the  submis- sions urged on behalf of both the sides and having  accorded due weightage to the views expressed by the Tribunal, we are of the opinion that the findings recorded by the Tribunal on both the points are not sustainable.     In so far as the validity of the appointment of respond- ent  No.  2 is concerned, the Tribunal  has  overlooked  the crucial circumstance that what was being done was  extension of the original appointment to the 345 post  and  not a regular appointment under  the  Rules.  The relevant provisions in the background of which the  question calls  for  consideration  may be set out for  the  sake  of convenience.  Column 10 of the Schedule of Rules as  amended in  1985  which provides for the method of  recruitment  and percentage of the vacancies to be filled by various  methods in respect of the two posts specified in Column 2, reads  as under:-               "(i) 50% by promotion failing which by  trans-               fer  on deputation and failing both by  direct               recruitment.               (ii)  50%  by  re-employment  or  transfer  on               deputation  or direct recruitment,  the  exact               method of recruitment to be decided in consul-               tation  with the Union Public Service  Commis-               sion on each occasion." Column  11  pertaining to the eligibility  condition  is  as under:-               "PROMOTION--Additional  Director General,  All               India  Radio/Doordarshan with 3 years  regular               service in the grade." With  regard  to transfer on deputation it  is  provided  as under:-               "Officers  of  All India Services  or  Central               Services Group ’A" working in or eligible  for               appointment  to the post of Additional  Secre-               tary to the Government of India and possessing               experience  of  the type mentioned  in  clause               (ii) of Column 7."               Clause (ii) of Column 7 reads as follows:-               "18 years experience in a supervisory capacity               in educational, cultural, publicity or profes-

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             sional   institution/organisation,   including               adequate  general  administrative   experience               with ability and capacity for organisation." Thus,  in  order to satisfy the requirement as  regards  50% recruitment  by  promotion, one of the two posts has  to  be filled  by  promotion.  The post of  Director  General  fell vacant  on  February 14. 1985 and admittedly  on  that  date Respondent No. 1 was not yet eligible for appointment to the said  post. So also no other Additional Director General  in the  organisation having three years’ service was  qualified for promo- 346 tion. Under the circumstances, appointment by promotion  was not  feasible. That is the reason why Respondent No. 2  Shri Suresh Mathur who was of the rank of Additional Secretary to the  Government  of India and was  Secretary,  Union  Public Service  Commission at the material time, was  appointed  by transfer on deputation for six months.     There  were  only three modes of making  recruitment  in order of preference viz:- (1) By promotion; failing which (2) by deputation; and failing which (3) by direct recruitment Since  the appointment by promotion was not at all  possible and  such an important and sensitive post could not be  kept vacant,  the  appointment of respondent No. 2  was  made  by transfer  on deputation which was the next mode of  appoint- ment  in  the  order of preference. Even  the  Tribunal  has accepted  this  position, as is evident from  the  following passage:-               "Although  the  applicant has  contended  that               even  this appointment by transfer on  deputa-               tion was illegal, we are unable to accept this               contention.  Neither the applicant nor  anyone               else was qualified to be promoted as  Director               General,  All India Radio in  accordance  with               the rules on that day. The method of promotion               to the post of Director General, AIR had  thus               failed when the vacancy occurred in  February,               1985. No exception can, therefore be taken  to               the  appointment  by  transfer  on  deputation               instead or by promotion." Thus  the appointment of respondent No. 2 made in  February, 1985 is unexceptionable. Exception, however, has been  taken to  the further extension of the appointment for the  period expiring  on March 3, 1987. The question of filling  up  the vacancy  was  taken up for consideration in advance  as  the initial appointment was due to expire on September 3,  1985. But  even at that time no one was qualified  for  promotion. Under the circumstances the appointment of respondent No.  2 was extended upto March 3, 1987. The Tribunal has taken  the view  that "even if the proposal was initiated  earlier  the entire  position  as on 3.9.1985 when the post  fell  vacant ought to have been clearly 347 presented  to  the Appointments Committee  and  considered." Both the respondents would have then qualified to have  been considered  for the post by the Departmental Promotion  Com- mittee,  The  Tribunal adds. In our opinion,  this  line  of reasoning  cannot  be sustained. The appointment to  such  a sensitive  post by the very nature of things had to be  con- sidered in advance and if when the proceedings were initiat- ed respondent No. 2 had not yet qualified for being appoint- ed to the post, his name could not have been considered.  In any  case failure to consider his name in anticipation  that

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he  would  have qualified by the date on which  the  initial appointment came to an end does not constitute any illegali- ty which vitiates the appointment. The Tribunal does not say that  there were mala fides. And we think the  Tribunal  was right in not drawing such a sinister inference for there was nothing  on record to suggest that the appointing  authority had any animus against respondent No. 2. The mere fact  that the  original  appointment  of respondent No.  2  which  was rightly made initially, even according to the Tribunal,  was extended  for  a further period by reason of the  fact  that when  the proposal was mooted for consideration nobody  else was  eligible for promotion, cannot vitiate the  appointment of respondent No. 2 by transfer on deputation which was  the approved mode for appointment as per the relevant rules. The very  fact that extension was made only till March  3,  1987 shows  that there was anxiety to fill up the  vacancy  ulti- mately by promotion which was the first preferential mode of appointment,  if possible. If it was otherwise, the  initial appointment itself could have been made without  restricting the  appointment by a time-limit. It therefore appears  that there  was anxiety to make the appointment by way of a  stop gap arrangement in order that the regular appointment  could possibly be made by promotion which was the first  preferen- tial  mode of appointment to the post. We do not think  that merely by reason of the fact that it was not brought to  the notice  of the Appointments Committee that respondent No.  2 would  qualify  for being considered for  promotion  shortly would not justify characterising or quashing the appointment as  illegal  under the rules. We are, therefore,  unable  to uphold the finding recorded by the Tribunal on this point.     So far as the second point is concerned, the view  taken by  the Tribunal is that respondent No. 2 was not  qualified under the rules for being appointed for transfer on  deputa- tion. The criteria for appointment as projected in Column  7 has already been extracted. Now, admittedly respondent No. 2 fulfils  the first part of the criteria in as much as he  is holding  the post of Additional Secretary to the  Government of  India.  Whether or not the second part of  the  criteria which 348 requires  "possessing  experience of the type  mentioned  in clause (ii) of column 7" may be examined presently.     Now, it would not be legal or proper to bodily lift  and transplant  clause  (ii) literally and word by word  as  the requisite criteria for appointment by transfer on deputation as  is  being contended on behalf of respondent No.  1.  Due importance  must be attached to the  expression  "possessing experience  of the type mentioned in clause (ii)  of  Column 7".  The emphasis in substance, is on possession of  experi- ence  of  the general nature mentioned in  clause  (ii).  It would  therefore  not be fight to inject or  read  into  the eligibility  criteria the requirement of "18 years’  experi- ence  in  a supervisory capacity in  educational,  cultural, publicity  or professional institution/organisation" as  the requisite  criteria for appointment on transfer  by  deputa- tion.  If the rule-making authority was so minded, it  could have  expressly transplanted all the requirements of  clause (ii) of Column 7. If such were the intention the rule-making authority  would  not  have referred to  experience  of  the ’type’ mentioned in clause (ii) of Column 7. On a true, fair and  reasonable  reading  of the  eligibility  criteria,  it cannot  be  said that it requires either experience  of  ’18 years’  or experience in a ’supervisory capacity’ in any  of such institutions as are mentioned in clause (ii) of  Column 7.  All  that is required is experience of  that  type  viz.

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experience  in the sphere of education,  culture,  publicity etc.  along with adequate general administrative  experience with  capacity  for organisation. Be it  realized  that  the criteria  is  being  specified in the  context  of  officers belonging  to  the All India Services  or  Central  Services Group  A. By the very nature of things therefore they  could not have 18 years’ experience in professional or supervisory capacity in any educational institution. The service history of  respondent No. 2 may now be briefly stated with the  end in view to examine whether he fulfilled the criteria in  the aforesaid  sense. Shri Mathur had to his credit 29 years  of administrative experience (as on 1985) as an Officer belong- ing  to the Indian Administrative Service, of which  he  had been  in the rank of Joint Secretary to Government of  India or  above for 13 years. His service included terms as  Joint Secretary  in  the Planning Commission in  charge  of  State Plans and Multi-level Planning, Additional Chief  Secretary, and as Chief Secretary, Government of Manipur, Joint  Secre- tary  in  the Ministry of Information and  Broadcasting,  as Secretary, UPSC etc., the details of which are:- 1956            --  Joined IAS (Madhya Pradesh Cadre) 1967            --  Managing Director, Tribal Co-operative                     Development Corporation, where his                     duties 349                       included Development of small-scale                       industries by organising infrastru                       cure, raw material and marketing,                       promotion of the development of hand                       looms and handicrafts industry and                        establishment of co-operative                        movement in the tribal area. 1969          --   Deputy Secretary in Cabinet Secretariat.                    Later, Director in-charge of Man-power                    & Employment. August 1972 to      --  Secretary to Chief Minister, Govern- ment January, 1973            of West Bengal. January, 1973     --  Chief of Division and later as Joint                       Secretary to the Government of India                     in-charge of State Plan and Multi-level                       Planning Division in the Planning                       Commission. May, 1977        --  Hill Commissioner, Secretary, Planning,                      Finance, PWD, Power, Food and Civil                      Supplies in the Government of Manipur.                      Later, Additional Chief Secretary and                      Chief Secretary to the Government of                      Manipur. July, 1980        --  Joint Secretary in the Ministry of                       Information & Broadcasting when he                       dealt not only the Broadcasting Media,                       namely, AIR and Doordarshan but also                       the Information Media, viz. Film                       Documentaries, Press, Advertising and                       Visual Publicity. October, 1983     --  Appointed as Additional Secretary to                       the Government of India and posted as                       Secretary, UPSC.     In the present case respondent No. 2 was duly  qualified having regard to the fact that he had to his credit 29 years of administrative experience and had held such senior  posi- tions as Joint Secretary in- 350 charge  of  State-level  Plan in  the  Planning  Commission, Additional  Chief Secretary and Chief Secretary in the  Gov-

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ernment  of  Manipur,  Joint Secretary in  the  Ministry  of Information and Broadcasting. With effect from October, 1983 he  was  holding  the post of Additional  Secretary  to  the Government  of  India. The very fact that he had  worked  as Joint  Secretary in the Ministry of Information  and  Broad- casting  itself  coupled  with his  other  experience  would satisfy  the  requirement of the  eligibility  criteria  for being  appointed to the post of Director General, All  India Radio.  We are, therefore, of the opinion that the  Tribunal was in error in reaching the conclusion that respondent  No. 2  was not qualified or eligible under the rules  for  being appointed to the post.     The Tribunal was accordingly in error in taking the view (1)  that  the extension of the term of appointment  of  re- spondent  No. 2 which is due to expire on March 3, 1987  was invalid, and (2) that the respondent No. 2 was not qualified for  being appointed by transfer on deputation to  the  said post as per the rules.     The  question  regarding the filling up of  the  vacancy upon the term of respondent No. 2 coming to an end on  March 3,  1987,  will shortly arise. Respondent No. 1 has  by  now become eligible for being promoted if he is otherwise  found suitable.  The  competent authority will of course,  be  re- quired  to consider the question as regards the  suitability of respondent No. 1 for being promoted to the post of Direc- tor  General in the context of filling up of the  post  upon the expiry of the term of respondent No. 2 on March 3, 1987. We have no doubt that the question will be considered objec- tively,  in the larger interest of the organisation  and  in larger  public  interest,  and an  appropriate  decision  on merits will be taken in accordance with law.     We  accordingly  allow  this appeal and  set  aside  the judgment  and order of the Central Administrative  Tribunal. There will be no order as to costs. N.P.V.                                                Appeal allowed. 351