Central Administrative Tribunal - Delhi
Rakesh Mohan vs M/O Finance on 4 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA No.4635/2015
RESERVED ON: 12.02.2016
PRONOUNCED ON : 04.03.2016
HON'BLE MR. A.K. BHARDWAJ, MEMBER (J)
HON'BLE DR. B.K. SINHA, MEMBER (A)
Rakesh Mohan
Commissioner of Income-Tax, Mumbai
Flat No.3, IInd Floor, Belvedere Building,
Bhulabhai Desai Road,
Breach Candy-Mumbai-400026. ...Applicant
(By Advocate: Shri Mukul Gupta, Sr. Advocate with Mr. Tushar
Gupta, Ms. Suvarna Kashyap and Ms. Saumya Sharma).
VERSUS
1. Union of India
Through Secretary,
Ministry of Finance,
North Block,
New Delhi.
2. Secretary,
Department of Personnel and Training,
North Block,
New Delhi.
3. Chairman,
Central Board of Direct Taxes,
North Block,
New Delhi.
4. Union Public Service Commission
Through Secretary,
Dholpur House,
Shahjahan Road,
New Delhi. ...Respondents
(By Advocate: Shri R.K. Jain for Respondents 1 to 3.
S/Shri R.N. Singh and R.V. Sinha and Amit Sinha
for Respondent 4)
ORDER
Mr. A.K. Bhardwaj, Member (J) Facts of the case set up by the applicant in the Original Application are that he is an Indian Revenue Service (IRS) 2 OA No.4635/2015 Officer of 1981 batch and got due promotions after joining the Income Tax Department from time to time including the promotion as Commissioner of Income Tax in the year 2001. On 17.04.2008, he submitted his Self Appraisal Report (SAR) for the year 2007-08 to the Chief Commissioner of Income Tax-2, Mumbai. The Reporting Officer graded the applicant as "Very Good" while the Reviewing Officer lowered the grading as "Good". In view of the law laid down by the Hon'ble Supreme Court in Dev Dutt Vs. Union of India and Others 2008 (8) SCC 725 on the basis of which Office Memoranda dated 14.05.2009 and 13.04.2010 were issued, the ACR was communicated to the applicant who made his representation against the same. In acceptance of the representation, the representational order dated 03.05.2013 upgrading the ACR of the applicant from "Good" to "Very Good" was issued. Thereafter, the applicant was considered for his promotion to the post of Chief Commissioner of Income Tax (CCIT) by the DPC met on 17.09.2013 and was assessed unfit. When the recommendation of DPC went to ACC, it questioned the view of the DPC qua the applicant herein as it had committed an error in not accepting the order of upgradation of the aforementioned ACR of the applicant from "Good" to "Very Good". In the meantime, CBDT issued order dated 16.12.2013 promoting the CIT found fit for promotion as CCIT with effect from the date of assumption of the charge of the post. Since the ACC had raised its observation regarding recommendation of the DPC, the Director, DOP&T vide Note dated 27.12.2013 brought to fore the 3 OA No.4635/2015 issue raised by the PMO in its ID Note No.905/5/12/2013-POL dated 22.11.2013 and the CBDT sent a letter dated 28.01.2014 to the Secretary, UPSC espousing reconsideration of the applicant's case at the earliest so that the ACC might be informed. In the meantime, the CBDT issued further order dated 20.02.2014 promoting remaining officers including in the extended panel to the grade of CCIT (pay scale of Rs.67000- 79000) with effect from the date of assumption of the charge of the post. On 08.04.2014, the applicant represented to Chairman, CBDT requesting for review DPC for promotion to the post of Chief Commissioner of Income Tax. On 24.04.2014, DOP&T issued an Office Memorandum directing that the case of the applicant be referred to the DPC for reconsideration and the mere fact that accepting authority had not made out elaborate justification for the upgradation of the grading in ACR, would not be sufficient ground to accept the upgraded grading, would be arbitrary and unfair to the applicant and would lead to unavoidable litigation. On 28.04.2014, applicant sent a letter to the Chairman, CBDT as well as to the Member (P), CBDT pointing out that a further DPC for promotion to the post of Principal Commissioner was being held on 01.05.2014. On 29.04.2014, he made a representation to the Secretary (Revenue), Ministry of Finance, New Delhi again espousing his claim for review of DPC dated 17.09.2013. On 26.06.2014, the case of the applicant was taken up for reconsideration by DPC but decision was deferred for holding consultation with DOP&T regarding upgradation of his ACR for the period 2007-08. Ergo 4 OA No.4635/2015 CBDT referred the matter to the DOP&T, thus the applicant made a representation on 27.06.2014 to the Hon'ble Prime Minister of India complaining harassment and injustice done to him. In its note dated 16.07.2014, the DOP&T made it clear that there was no lacuna in the manner in which the ACR of the applicant was upgraded.
2. Further, in its note dated 13.08.2014, the DOP&T espoused that the review DPC should decide the applicant's case in accordance with the DOP&T OM dated 09.05.2014 which provide that the DPC should substantiate its assessment by giving justifiable and sustainable reasons after taking into account the grounds raised by the applicant before the competent authority vide note dated 24.08.2014. The CBDT considered the opinion of DOP&T and the proposal for forwarding the opinion to the UPSC for necessary action and the file of the applicant was linked with old matters for the reason that the DOP&T had adopted different stand in different cases. In the wake, the applicant submitted a note dated 08.09.2014 to the Chairman, CBDT. The Board again considered the matter and declined to send the proposal for review DPC to the DOP&T. Thereafter, the DOP&T vide its Note No.A-32011/1/2011-Ad.VI dated 14.10.2014 confirmed that there was no difference of opinion in the case of Shri J.M. Sahay and Smt. Rekha Vishnoi, but still the case of the applicant was not sent for review DPC. On 04.12.2014, the CBDT sent a letter to DGIT asking for fresh vigilance clearance regarding promotion of the applicant. On 24.12.2014, applicant made a representation to Chairman, CBDT 5 OA No.4635/2015 against its order dated 05.11.2014 and questioned the decision of the Board of not granting him non-functional grade.
3. He further espoused his claim for promotion by sending grievance petition to CBDT. On 30.01.2015, ACC approved the proposal for empanelment of officers for promotion from the grade of CIT to the grade of Principal CIT against the panel year 2013-14. On the basis of the recommendation of the ACC, CBDT promoted 264 officers to the rank of Commissioner of Income Tax to the newly created rank of Principal Commissioner of Income Tax in the HAG scale (Rs.67000-79000). When despite prolixed correspondence between the agencies associated with the promotion of the applicant and the repeated representations made by him, the review DPC could not be held, the applicant filed the present OA praying therein:-
"(i) Set aside the order dated 17.09.2013 passed by the DPC in applicant's own case.
(ii) Direct immediate and time bound review of the DPC as held on 17.09.2013 and reconsider the case of the applicant for promotion to the post of Chief Commissioner of Income Tax.
(iii) Without prejudice and in the alternative as desired by Government, promote applicant to the post of Principal Commissioner of Income Tax in the review of the DPC as held on 17.09.2013 and, further, on the date of eligibility to become Chief Commissioner, on fulfillment of one year from the date of deemed joining as Principal Commissioner of Income Tax (which date falls on 16.12.2014 the officer one below in seniority having joined as Chief Commissioner on 16.12.2013) do another DPC for promotion of applicant to Chief Commissioner of Income Tax in order to give parity to applicant with his juniors functioning as Chief Commissioner of Income Tax since 16.12.2013.6 OA No.4635/2015
(iv) Direct that post promotion of applicant as Chief Commissioner of Income Tax envisaged in (ii) and/or (iii) above, a DPC for promotion of applicant to the post of Principal Chief Commissioner be convened for if applicant had been promoted as envisaged in (ii) and/or (iii) above, he would be eligible to be promoted as Principal Chief Commissioner of Income Tax as on today with vacancies lying vacant unfilled.
(v) Ensure justice to applicant by way of restoration of its position and rank as due to him".
4. Mr. Mukul Gupta, Sr. Advocate for the applicant espoused:
(i) When, during the report period 01.04.2007 to 31.03.2008 the applicant had worked in three capacities, viz. (i) CIT (A) V, Mumbai 01.04.2007 to 10.07.2007, (ii) CIT (A) I, Mumbai 10.07.2007 to 03.09.2007 and (iii) CIT (A) III, Mumbai 03.09.2007 to 31.03.20008, the Reviewing Officer could comment only on the period during which he worked as CIT(A) III, Mumbai and not on the other periods when he worked as CIT(A) I and CIT (A) V while lowering the grading given by the Reporting Officer from "Very Good" to "Good".
(ii) It is not so that reasons were not recorded for upgrading the ACR of the applicant from "Good" to "Very Good" as the reasons were recorded by the Chairman, CBDT in note dated 30.04.2013.
(iii) The DPC could not have downgraded the grading of the applicant in the ACR of the applicant for the year 2007-08 given by the representational authority.
(iv) The assessment qua the applicant made by the DPC met on 17.09.2013 is defective and is liable to be reviewed. 7 OA No.4635/2015
5. Be that as it may, learned counsel for respondents No.1 to 3 submitted that the query of the UPSC regarding consideration of the applicant for promotion by review DPC could be answered on 20.01.2016 and it is for the UPSC to hold the DPC. Mr. R.V. Sinha, learned counsel for UPSC submitted that review DPC could not be held in view of the interim order passed by Hon'ble Delhi High Court in W.P. ( C) 8235/2015. Para 12 of the short reply filed by UPSC reads thus:
"12. That in view of the above, the Department submitted that a review DPC proposal dated 20.01.2015 to review the proceedings of the meeting held on 17.09.2013 for promotion of the officers from the post of Commissioner of Income Tax (SAG) to the post of Principal Commissioner of Income Tax (HAG) in accordance with the above observations by the ACC. However, due to stay by the Hon'ble Tribunal, PB and further interim order by the Hon'ble High Court of Delhi in WP ( C) 8235/2015 that "Status quo as on the filing of the WP shall continue to be maintained....", the Review DPC could not be processed. The matter is still sub judice".
6. We have heard the counsel for the parties and perused the record.
7. Admittedly, in terms of order dated 3.5.2013, the grading in the ACR of the applicant for the year 2007-08 was improved from "Good" to "Very Good". The said order reads thus:
"6. After careful consideration of the request of the officer in his representation against the grading in his ACR for the period 2007-08 vis-a-vis the remarks of the Reporting Officer and the Reviewing Officer in the ACR and the instructions of the DOP&T in this regard, the Competent Authority held that the grading in the ACR of Shri Rakesh Mohan (81033) for the year 2007-08 deserve to be upgraded from "Good" to "Very Good". Accordingly, representation dated 07.01.2013 of Shri 8 OA No.4635/2015 Rakesh Mohan (81033), CIT,. Mumbai is disposed of".
8. We find merit in the submission put by Mr. Mukul Gupta, Sr. Advocate that the upgradation of the ACR by the representational authority was not baseless and reasons had been espoused in the note dated 30.04.2013 which read thus:
"A.28018/722012-DT/Per Shri Rakesh Mohan (81033) has made a representation dated 7.1.2013 against the final grading of 'Good' in his ACR for the period 2007-08.
2. Shri Rakesh Mohan was posted as CIT(A) in three different Charges at Mumbai during the period. He was rated as an 'intelligent officer' by the Reporting Officer, Shri Taranand, then CCIT-II, Mumbai. The Reviewing Officer, Shri N.B. Singh, then Member, CBDT downgraded his performance to 'Good'.
3. In his representation Shri Rakesh Mohan has stated that review of his ACR has been done without reference to his self appraisal which is not even a part of his ACR record. He has submitted that the Reviewing Officer has not pointed out any procedural flaws or mistakes in the appellate orders passed by him. Further, he has stated that the Reviewing Officer has downgraded his performance to 'Good' without giving reasons for the same and hence is not based on any objective evaluation. Comments of the Reporting Officer and Reviewing Officer were not obtained as both have since retired from service.
4. I have considered the facts of this case. It is seen from columns 2 to 6 of the ACR of the Officer relating to Attitude to work, Ability for decision making, Initiative, Leadership skills, Communication skills and Interpersonal skills and Group dynamics, that the Officer has been rated as 'Very Good' by the Reporting Officer. In Column 8 of the 9 OA No.4635/2015 ACR relating to Skills and planning and control and coordination he has been given a grade of 'Good". The Reviewing Officer has observed that "his performance cannot be rated very good. As a CIT (A)-III, Mumbai he has performed nothing beyond good. So, overall, his performance is rated as good only".
5. In his representation dated 7.1.2013, the Officer has given details of the work done by him during the period.
The Reporting Officer has given him 'Very Good' in most of the columns of the ACR, based on his evaluation of the Officer's strengths and weaknesses. However, I find that the Reviewing Officer has downgraded the grading to 'Good' without any basis. After careful consideration of the request of the Officer in his representation against the grading in his ACR for the period 2007-08 vis-à-vis the remarks of the Reporting and the Reviewing Officers in the ACR and the instructions of the DOP&T in this regard, I hold that the grading in the ACR of Shri Rakesh Mohan for the year 2007-08 deserves to be upgraded from 'Good' to 'Very Good'.
Sd/-
30.04.2013 (Dr. Pooman Kishore Saxena) Chairperson, CBDT".
9. In Union of India and Others Vs. E.G. Nambudari AIR 1991 SC 1216, the Hon'ble Supreme Court ruled that the reasons for representation need to be contained in the note and may not be contained in the order. Para 9 of the judgment reads thus:
"9. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a Government 10 OA No.4635/2015 servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 "that nothing adverse has come to notice regarding your integrity" is not adverse to the respondent's work and conduct. These remarks are neutral in nature, and they do not adversely comment upon the respondent's work, conduct or character, though they are not commendatory in nature. As regards the remarks at Serial No. 6, they are self- explanatory, which show that in spite of oral and written warnings the respondent did not improve. If the superior authority was not satisfied with the explanation of the respondent as contained in his representation, what reasons could be stated, except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion."
10. Even otherwise also, as has been provided in the note dated 24.04.2014, once in acceptance of his representation, the grading of the applicant in his ACR is upgraded, if order of upgradation is non-speaking, no fault can be found with the concerned officer and it was unfair on the part of the DPC to downgrade the ACR merely on the ground that the accepting 11 OA No.4635/2015 authority had not made any elaborate justification for the upgradation. The OM reads thus:
"F.No.18/45/2013-EO (SM.II) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training Office of the Establishment Officer North Block, New Delhi April 24, 2014 OFFICE MEMORANDUM Sub: Review DPC for promotion to the grade of Chief Commissioner of Income Tax (CCIT) against the vacancies for the year 2013-14 (Regular DPC) and 2012-13 (Supplementary DPC) in the CBDT, D/o Revenue, M/o Finance - Case of Shri Rakesh Mohan - reg.
The undersigned is directed to refer to Department of Revenue's OM No.A-
32011/02/2012-AD.VI dated 07.04.2014 on the subject mentioned above and to convey that the ACC had directed the case of Shri Rakesh Mohan to be referred to the DPC for reconsideration since it is not the fault of the officer concerned that the Competent Authority had conveyed its acceptance of his representation though a non speaking order and being under the impression that the upgradation requested by him has been accepted and that he now meets the benchmark for promotion/empanelment, he would not seek any further relief. As such, any downgradation by a subsequent DPC without looking into the facts and merely on the ground that the accepting authority has not made out an elaborate justification for the upgradation would be arbitrary and unfair to the officer and could also lead to avoidable litigation".
11. In note dated 16.07.2014 (Annexure A-23), DOP&T espoused that there was no lacuna in the manner in which the ACR of the applicant was upgraded. The note reads thus: 12 OA No.4635/2015
"F.No.21011/1/2014.Estt.(A) Department of Personnel and Training (Estt.A Desk.II) Reference Ministry of Finance Department of Revenue notes at pag.1- 5/ante (F.No.A-28018/72/2012-DT/Per) regarding promotion of Shri Rakesh Mohan, IRS.
2. It has been stated that in compliance of directions of the Secretariat to ACC on Review DPC meeting to assess Shri Rakesh Mohan, IRS (81033) was held on 26.6.2014 after considering the facts of the case of Shri Rakesh Mohan, the DPC has decided to defer the meeting and hold further consultation with DOP&T regarding upgradation of ACR of Shri Rakesh Mohan for F.Y 2007-08.
3. In this connection, it has been stated that the representation dated 7.1.2013 preferred by Shri Rakesh Mohan in terms of this Department's OM dated 13.04.2010 against downgrading of his overall grading by the Reviewing Officer from "Very Good" to "Good" has been considered. The competent authority considers the representation and decided to upgrade the ACR grading as "Very Good" vide order dated 03.05.2013. Comments of the Reporting and Reviewing Officer could not be obtained as both of them had retired. Subsequently, DPC was held on 17.09.2013, which however assessed the officer as "Good" in the year 2007-08.
4. Opinion has been sought in the matter as to whether the decision of the Competent Authority with reference to the upgradation of the ACR (fact available in the ACR and the representation) of the officer is in order. Refer UPSC letter dated 26.6.2014.
5. It may be seen from the order of the Competent Authority dated 3.5.2013 that the competent authority has considered details regarding his different charges concerns raised by Shri Rakesh Mohan and the facts of this case. It has also been stated in the order of the 13 OA No.4635/2015 Competent Authority that the Reviewing Officer has downgraded the grading to "Good" without basis and accordingly, upgradation has been decided and order has been issued for upgradation of the ACR from Good to Very Good. Therefore, there does not seem to be any lacuna in the manner the upgradation has been done and order has been issued along with reasons for upgradation of ACR from "Good" to "Very Good".
6. As regard assessment/findings of DPC and directions of ACC on Review DPC, Estt.D may kindly".
12. In the note placed on record as Annexure A-24 of the paper book, the DOP&T espoused that it is open to DPC to make its own assessment if it differs with the grading in APAR. The note reads thus:
"Department of Personal & Training Establishment (D) Dy. No. 1012475/14/CR [F.No.28018/72/2012-DT/Per of Department of Revenue M/o Finance] Reference preceding notes.
2. The UPSC letter dated 26.6.2014 addressed to the Secretary, Department of Revenue Indicates that the Department (Secretary, DOR) has desired to hold further consultations with DoPT regarding upgradation of ACR of the officer. The commission therefore declined to defer its meeting. The DOR in its referring note at p.5/N has indicated that the said matter is referred to DoPT in compliance to the directions of the DPC. In this context it is pointed out that UPSC reference to DoPT in compliance to the directions of the DPC in this context it is pointed out that UPSC reference to DoPT is not placed/available in the file. The reference of CBDT in this regard is also not specific. As regards decision of the competent authority with regard to the fact available in the ACR and representation of the officer is in order the notes of Estt.A.II at p.6/N may be seen.14 OA No.4635/2015
3. As far as recommendations of DPC dated 17.9.2013 for considering promotion of Shri Rakesh Mohan to the post of Chief Commissioner of Income Tax consequent upon upgradation of his ACRs 2007-08 is concerned, the Departments instructions contained in DPC guidelines issued vide OM dated 10/4/89 (Para5, 6.2 and 6.2.1(e)) prescribes that each Departmental Promotion Committee should decide its own method and procedure for objective assessment of the suitability of the candidates. Annual Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of ACRs should be fair just and non-discriminatory. Further, The DPC should not be guided merely by the overall grading if any, that may be recorded in the CRs because it has been noticed that sometimes the overall grading in a ACR may be inconsistent with the grading under various parameters or attributes.
4. It has been brought to the notice of this Department that in certain cases the DPC while assessing suitability of officers have given recommendations as unfit on grounds including non-fulfillment of procedural requirements of disposal of representations preferred on entries/grading in APARs. In this regard this Department OM dated 9th May, 2014 provides as follows:-
"that in discharge of its statutory functions the respective DPCs are required to determine the merits of those being considered for promotion with reference to the prescribed bench-mark by making its own assessment, on the basis of the entries and gradings contained in the APARs and other relevant material facts placed before it, and accordingly grade the officers as 'fit' or 'unfit'. Relevant material would inter alia include the orders of the competent Authority on the representation of the Government servant on the entries/grading in APAR. In the event of DPC deciding not to take cognizance of such an order on the ground that the same is not a speaking order, the DPC shall make its assessment based on the entries in APAR and other material including the representation of the 15 OA No.4635/2015 Government servant. The DPCs should substantiate its assessment by giving justifiable and sustainable reasons including the cases where the assessment of the DPC is different from the grading in APAR (original or amended after representation by the Government servant).
5. The Review DPC dated 26.6.2014 being held on the basis of observations of ACC in this case and which has deferred its meeting for further consultation with DoPT may consider the case of Shri Rakesh Mohan for promotion to the post of Chief Commissioner of Income Tax keeping in view the above mentioned guidelines for DPC."
Having taken note of the view of the DOP&T, the CBDT initiated note dated 24.08.2014 for sending the proposal to UPSC for taking further action. The note reads thus:
"FTS:222909 F.No.A-32011/02/2012-Ad.VI Reference note on page 56/ante.
2. In compliance of directions of the Review DPC held on 26.6.2014 to assess fitness of Shri Rakesh Mohan, IRS (IT) (Civil Code No.81033) for his promotion to the grade of CCIT for the vacancy year 2013-14, the matter was referred to DOP&T for holding further consultations regarding upgradation of ACR of the officer for the F.Y 2007-08.
3. Shri Rakesh Mohan made representation against downgrading of his overall grading by the Reviewing Officer from "Very Good" to "Good". He submitted his representation dated 07.01.2013 giving details of his achievements during the FY 2007-08. Comments of Reporting and Reviewing Officer could not be obtained as both of them have retired on superannuation. Considering the fact enunciated in representation of the officer reported upon and that those are in the ACR, the Competent Authority vide its order dated 30.04.2013 decided to upgrade his overall grading from "Good" to "Very Good". An order 16 OA No.4635/2015 conveying decision of the Competent Authority was issued on 3.5.2013.
4. The DOP&T has rendered its opinion and has, inter alia, mentioned as under:-
"It may be seen from the order of the Competent Authority dated 3.5.2013 that the competent authority has considered details regarding his different charges, concerns raised by Shri Rakesh Mohan and the facts of this case. It has also been stated in the order of the competent authority that the reviewing officer has downgraded the grading to "good" without basis and accordingly upgradation has been decided and order has been issued for upgradation of the ACR from "Good" to "Very Good". Therefore, there does not seem to be any lacuna in the manner the upgradation of the ACR from "Good"
to "Very Good". Further, Establishment- D Section of DOP&T has also of the view that relevant instructions of the Department may be followed by the authorities".
5. If approved, the opinion of the DOP&T may be forwarded to UPSC for taking further action towards placing opinion of the DOP&T before the DPC.
6. Submitted please".
13. When the CBDT raised an issue with the DOP&T and pointed out that different view had been taken in different cases, the Department of Personnel and Training, Establishment (D) made it clear that in the two cases referred to in the minutes of the CBDT dated 14.10.2014, no different view has been taken. The note of the DOP&T reads thus:
Department of Personnel and Training Establishment (D) Dy. No.1028299/14/CR (F.No.A-32011/1/2011-Ad.VI (para V) of Department of Revenue).
Reference preceding Notes.17 OA No.4635/2015
2. The file has been referred by Department of Revenue seeking views of this Department on difference of opinion of Estt.(A) and Estt.(D) Divisions in similar matter in respect of cases of Smt. Rekha Vishnoi and Shri J.M. Sahay. Concerned files are linked below.
3. It is seen that in the case of Rekha Vishno, it has been opined vide Estt.(A) note dated 3.5.2013 (p.19/n) L/F No.A-
28018/04/2012-DT/Per that there is no provision in DOP&T OM dated 14.5.2009 and 13.04.2010 for reviewing the orders by the Competent Authority in the matter of below benchmark grade once they have been considered by the DPC.
4. In the case of Shri J.M. Sahai also a similar opinion has been given by Estt.(D). Kindly see 'A' of p.9/n of L/F No.A-
32011/05/2009-Ad.VI(Part-I). However, it is seen from p.9/n of said file that Hon'ble CAT (PB) in its orders dated 16.12.2011 directed the Chairman, CBDT, DoR to take a final decision on the recommendations dated 06.09.2010 of CCIT Ahmedabad.
5. In the above context, attention is invited to para 3 and 4 of notes at p.9/n of L/F No.A-32011/05/2009-Ad/ VI.(Part-I).
"Para 3: now that the upgraded ACRS have already been taken into account by the DPC in its meeting dated 21.4.2012 for promotion to the grade of CCIT for the panel year 2012-13, it would not be feasible to reconsider the issue of upgradation of ACRs for the period 2006-07. However, adequate steps require to be taken by the referring department is advised to investigate the matter and take an appropriate remedial measure, including fixing of responsibility in the instant matter, so that such lapses are not repeated.
Para 4: The ACR for the period 2006- 07 was initially considered by the DPC in its meeting held on 29.12.2000 for considering promotion of Shri J.M. Sahai to the grade of CCIT for the 18 OA No.4635/2015 panel year 2010-11. Since the DPC meeting belongs to the period post - 13.4.2010, and one of the reckonable ACR now stands upgraded after convening of the DPC, thereby causing a material change of facts considered by the DPC held on 29.12.2010, a review DPC would be justifiable. Such a review DPC is agreeable with an understanding that the instant case is a one-off case and the referring department takes adequate steps as advised in previous paragraph to avoid lapses".
6. In view of the above, it may be seen that there is no difference of opinion in the two cases i.e., Smt. Rekha Vishnoi and Shri J.M. Sahai in the matter of revising orders of competent authority in r/o below benchmark grading once they have been considered by the DPC. Hence the present reference seems irrelevant".
14. As far as the position of rules and instructions on the subject is concerned, there is no such law which provide for ignorance of upgradation of the grading in the ACR by the representational authority at the end of the DPC. In the present case, the view taken by the DPC in para 8.5 of the minutes dated 17.09.2013 is without any authority of rules, law or instructions. Para 8.5 reads thus:
"8.5. The ACR for the year 2007-08 in respect of Shri Rakesh Mohan (SlNo.41) contain below benchmark grading, i.e. 'Good' which was communicated to the officer in pursuance of DOP&T OM dated 13.04.2010. The competent authority after considering his representation has upgraded the overall grading in the said ACR to 'Very Good'. On examination of ACR, the Committee noted that the Reporting Officer graded the officer as "Very Good". However, the Reviewing Authority downgraded the same to "Good"
with justifications for his remarks. The Committee finds that no specific reasons have been given in the order dated 3.5.2013 upgrading the officer's grading to 'Very 19 OA No.4635/2015 Good'. The Committee, therefore, assessed Shri Rakesh Mohan as 'Good' in the year 2007-08".
15. It is not open to DPC to sit in appeal over the decision taken in the representation made by the applicant against the grading in his ACRs. Even the OM dated 19.05.2011 does not provide so. The said OM reads thus:
"No. 21011/1/2005-Estt.(A(Pt.II) Government of lndia Ministry of Personnel, Public Grievances & Pensions (Department of Personnel &.Training) ***** North Block, New Delhi Dated the 19th May 2011 OFFICE MEMORANDUM Subject: Maintenance and preparation of Annual Performance Appraisal Reports- communication of all entries for fairness and transparency in public administration ***** The undersigned is directed to draw attention of the Ministries/Departments to this Department's OM No.21011/1/2005-Estt.(A) (Pt.II) dated 14.5.2009 by which the system of communicating the entries in the A P A R from the reporting period 2008-09 onwards for representation if any was introduced. The Competent Authority to consider the representation shall decide the matter objectively based on the material placed before him within a period of 30 days from the date of the receipt of the representation. The Competent Authority after due consideration may reject the representation or may accept or modify the APAR accordingly. In this Department's OM of dated 13.4.2010, it was further decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next 20 OA No.4635/2015 promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. This OM dated 13.4.2010 specifically provided that in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the Competent Authority. Since the provisions of the above OM dated 13.4.2010 are applicable only for future DPCs where the recommendations will be implemented prospectively from the date of assuming charge of the higher appointment, the provisions will not be applicable to retired officers.
2. The UPSC has brought to the notice of this Department that in the DPCs being-held under the aegis of the Commission, orders of the Competent Authority do not contain specific reasons for such upgradation in a number of cases. Such orders cannot be termed as disposed off in a quasi-judicial manner as laid down in the aforesaid OM dated 13.4.2010. Grading an officer below the bench mark by the DPC in such cases on the ground of upgradation being without giving sufficient reasons is prone to avoidable representations.
3. In order that the DPC proceedings are held on schedule and without any necessity to over look the decisions given by the Competent Authority while upgrading the grading in the APAR without specific reasons and justifications , all Ministries/Departments are requested to kindly bring to the notice of the Competent Authority while forwarding the representation against remarks in the APAR that the authority may decide on the representation in an objective manner within 30 days of receipt of the representation and give specific reasons in case of upgradation of the final grading given in the APAR as per provisions contained in this Department's aforesaid OM dated 13.4.2010".21 OA No.4635/2015
Even the expression quasi-judicial used in the aforesaid OM is referred to in a casual manner. The expression "quasi-judicial"
used quite often in a casual manner need to be analyzed and commented upon, but since in the present case the same is not of much relevance, we avoid to do so. As has been noted in the note of the DOP&T, when it is open to DPC to make it own assessment/grading, it is not open for it to ignore the grading given by the authority authorized to write the ACR or disposal of representation far less change or downgrade the same. The excerpt of G.I., Department of Personnel and Training, OM No.22011/5/86-Estt(D), dated the 10th April, 1989 as amended by OM No.22011/5/91-Estt.(D), dated the 27th March, 1997, relevant to the issue in this regard read thus:
"6.1.2 At present, DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them. In order to ensure greater selectivity in matters of promotions and for having uniform procedures for assessment by DPCs, fresh guidelines are being prescribed. The matter has been examined and the following broad guidelines are laid down to regulate the assessment of suitability of candidates by DPCs.
6.1.3 While merit has to be recognized and rewarded, advancement in an officer's career should not be regarded as a matter of course, but should be earned by dint of hard work, good conduct and result- oriented performance as reflected in the annual confidential reports and based on strict and rigorous selection process.
6.1.4 Government also desires to clear the misconception about "Average"
performance. While "Average" may not be taken as adverse remark in respect of an officer, at the same time, it cannot be 22 OA No.4635/2015 regarded as complimentary to the officer, as "Average" performance should be regarded as routine and undistinguished. It is only performance that is above average and performance that is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion".
16. As far as the plea of the UPSC regarding interim order passed by the Delhi High Court is concerned, the same is misplaced.
17. The issue involved in OA No.478/2015 - Shri Arbind Modi Vs. U.O.I & Others and OA No.1-87/2015 - P.R. Ravikumar Vs. Ministry of Finance and Others decided by the Tribunal on 12.08.2015 was "whether the Commissioner, Income Tax could be directly promoted as Chief Commissioner of Income Tax or first they were to be promoted as Principal Chief Commissioner of Income Tax and only then as Chief Commissioner of Income Tax". Accepting the plea of the Government that the Commissioner of Income Tax could be considered for promotion as Principal Commissioner of Income Tax and not direct as Chief Commissioner of Income Tax, the Tribunal had dismissed the OAs. It was only such view of the Tribunal which was under challenge in W.P. ( C) 8235/2015 wherein High Court passed the order dated 28.08.2015. The said order reads thus:
"Challenge in this writ petition is to the order passed by the Central Administrative Tribunal (CAT) dated 12.08.2015. The Petitioners are members of the Indian Revenue Service of 1981 batch, presently posted as Chief Commissioner(s) of Income Tax or in the equivalent grade of Director General of 23 OA No.4635/2015 Income Tax. The petitioners were promoted to the post of Chief Commissioner(s) or in the equivalent grade in the DPC held on 17.09.2013. The petitioners were forced to approach the CAT based on the orders dated 28.08.2014 and 20.01.2015 for holding a review DPC. As per the respondents, the reasons for passing the two orders were on account of restructuring of the cadre which took place on 23.05.2013, but could not be brought to the notice of the DPC as also the ACC.
Mr. Salve, learned Senior Counsel for the petitioners submits that the effect of the review DPC would be that the petitioners would be demoted to the post of PCIT, which has been created on account of the cadre restructuring. Mr. Salve submits that the stand of the respondents that the restructuring could not be brought to the notice of the DPC and ACC cannot be accepted as the Revenue Secretary had participated in the DPC and thus, it cannot be said that the respondents were not aware of the restructuring which was to be carried out. It is also brought to the notice of the Court that the petitioners were eligible for the post of Chief Commissioners as on 01.01.2013 when right accrued in their favour which was prior to the restructuring and prior to the framing of the Rules. Additionally, it is contended that the Rules were framed after the DPC was conducted, i.e., on 29.04.2015.
Mr. Jain, learned ASG submits that the DPC was held without taking into account the restructuring of the cadre thus, no right would, in fact, flow in favour of the petitioners. Additionally, he submits that in case the orders are stayed, 88 vacancies which are required to be filled up would be delayed. Mr. Salve, to the contrary, submits that the status quo order was passed by the Tribunal and the status quo order should be continued till the matter can be heard.
Issue notice to the respondent to show cause as to why Rule nisi be not issued. Notice in the stay application as 24 OA No.4635/2015 well. Mr. Jain, ASG, on instructions from Mr. Rajive R.Raj, Advocate, accepts notice on behalf of respondents No.1 and 2 and Mr. Naresh Kaushik, Advocate, accepts notice on behalf of respondent no.4. Notice be issued to respondent no.3 for the date fixed.
We have heard learned counsel for the parties and also considered their rival submissions.
Having regard to the submissions, we pass the following interim orders:
(i) Status quo as on the filing of the writ petition shall continue to be maintained till the next date of hearing;
(ii) It is agreed by the petitioners that the respondents may conduct the DPC to fill up the 88 vacancies. Of course, the same shall be subject to final outcome of the writ petition or the stay application. The petitioners are willing to give an undertaking that, should they not succeed in the writ petition, no special equity shall flow in their favour and they would then serve as per the restructured posts of PCIT. This arrangement is subject to the final orders and without prejudice to the rights and contentions of the parties.
The undertaking in the form of affidavit be filed by the petitioners within two weeks.
Counter affidavit be filed within six weeks. Rejoinder, if any, be filed within four weeks.
Parties shall file short synopsis together with copies of judgments to which they wish to rely upon to enable the Court to hear the matter.
List on 05.11.2015.
Dasti".
25OA No.4635/2015
18. The ramification of the order is that the petitioners who were promoted as Chief Commissioner of Income Tax were not to be reverted as Principal Chief Commissioner of Income Tax and the DPC made recommendation for promotion to the post of CCIT could not have been reviewed. The order would not be relevant to the case of the applicant whose claim is only for convening of review DPC to the limited extent that he was found unfit for next promotion erroneously. Rather the aforementioned order of the High Court would be in favour of the applicant herein for the simple reason that once juniors are considered for promotion to CCIT and were so promoted, the applicant should also be given the same benefit. In para 18.1 of the aforementioned general instructions it has been clearly provided that where some procedural irregularity was committed by the DPC, it may be necessary to convene review DPC to rectify the same. Para 18.1 reads thus:
"18.1 The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g. -
(a) where eligible persons were omitted to be considered; or
(b) where ineligible persons were considered by mistake; or (c ) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or
(d) where some procedural irregularity was committed by a DPC; or 26 OA No.4635/2015
(e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer".
19. In view of the aforementioned, the OA stands allowed. UPSC is directed to convene the meeting of the DPC to review its recommendation dated 17.09.2013 made for promotion to CCIT within 4 weeks qua applicant by treating the ACR of the applicant for the period 2007-08 as "Very Good" and if found fit for such promotion, the applicant would be entitled to all such consequential benefits as granted to his immediate junior. It goes without saying that the benefit would remain subject to outcome of the aforementioned W.P. ( C) 8235/2015 pending before Hon'ble High Court. No costs.
(Dr. B.K. Sinha) (A.K. Bhardwaj)
Member (A) Member (J)
Rakesh