Central Administrative Tribunal - Delhi
Mrs. Parminder vs Union Of India on 8 March, 2011
Central Administrative Tribunal Principal Bench O.A.No.2833/2009 New Delhi, this the 8th day of March, 2011 Honble Shri Justice V.K.Bali, Chairman Honble Shri Shailendra Pandey, Member (A) Mrs. Parminder w/o Shri Anil Kumar A-11, Second Floor Income Tax Colony Peddar Road Mumbai 400 026. Applicant (By Advocate: Shri R.R.Shetty) Versus Union of India Through the Secretary Department of Revenue Ministry of Finance North Block New Delhi 110 001. Central Board of Direct Taxes Through its Chairman Ministry of Finance North Block New Delhi 110 001. Union Public Service Commission Through its Secretary Dholpur House Shahjahan Road New Delhi. Respondents (By Advocate: Shri R.N.Singh for Respondents No.1 and 2 and Ms. Alka Sharma, for Respondent No.3 (UPSC)) O R D E R By Shailendra Pandey, Member (A):
The applicant is an IRS (Income Tax) Officer of the 1988 batch and is posted as Additional Commissioner of Income Tax. She is aggrieved by the non-inclusion of her name in the panel of 69 officers approved by the Appointment Committee of the Cabinet (ACC) for promotion to the post of Commissioner of Income Tax (CIT).
2. The brief facts of the case as set out in the OA reveal that a meeting of the duly constituted DPC for considering promotion of eligible officers to the grade of Commissioner of Income Tax in the pay scale of Rs.18400-22400 (pre-revised) against 71 vacancies for the vacancy year 2008-09 was held on 23.1.2009 in the UPSC. The DPC examined the ACRs of the preceding five years (2002-03, 2003-04, 2004-05, 2005-06 and 2006-07) of all the eligible officers in the feeder grade (Additional Commissioner of Income Tax) including the applicant, and keeping in view the instructions contained in DOP&T OM No.22011/5/86-Estt.(D) dated 10.04.1989, and the bench mark of `Very Good prescribed in DoPT OM dated 18.02.2008 assessed the applicant as Fit and included her name in the panel of 71 officers recommended for promotion to the grade of Commissioner of Income Tax. However, the Appointments Committee of the Cabinet (ACC) did not approve the recommendation of the aforesaid DPC in so far as the applicant is concerned. This has led to filing of the present OA for the following reliefs:-
(a) quash and set aside order dated 11.7.2009 promoting the juniors of the Applicant and ignoring the Applicant for promotion to the grade of Commissioner of Income Tax.
(b) quash and set aside the action of Respondent No.1 in sitting in judgment over the recommendations of the DPC which met on 23.1.2009 to prepare a panel of CITs for the year 2008-09 and removed the name of the Applicant from the panel prepared by UPSC, which included the name of the Applicant.
(c) direct Respondent No.1 to accept the recommendations made by the DPC in regard to the empanelment of the Applicant to the grade of Commissioner of Income Tax and to promote her as Commissioner of Income Tax with all consequential benefits such as seniority and pay and allowances.
3. It is the case of the applicant that the DPC which had been held under the Chairmanship of the Chairman, Union Public Service Commission (UPSC) had assessed her as `Fit for promotion on the basis of her ACRs for the relevant years (2002-03, 2003-04, 2004-05, 2005-06 and 2006-07) and had thus graded her as Very Good, which was the benchmark prescribed for all the 5 years in question and had accordingly included her name in the panel of 71 officers recommended for promotion to the post of CIT. However, the ACC without proper application of mind and without assigning any reasons has erred in deleting her name from the said panel. She has assailed the action of the ACC, inter alia, on the following grounds:-
i) That under the extant instructions of the DOP&T, DPCs have full discretion to devise their own methods and procedures for making an objective assessment of the suitability of the eligible candidates for promotion to a post.
ii) That for the year 2006-2007 the DPC had rightly assessed her as `Very Good based on the individual entries of the ACR as given by the Reporting Officer for the year (though he had omitted to fill the overall grading column) and that down grading of this ACR by the Reviewing Officer without assigning any reasons was not in order.
iii) that the assessment made by an expert body such as the DPC headed by Chairman, UPSC cannot be changed arbitrarily by the respondents without assigning valid reasons.
iv) That her claim for promotion to the post of CIT cannot be over looked in the absence of communication of any remarks to her with regard to any of the CRs below the bench mark.
4. She has also in her OA submitted that the respondents have erred in following the DPC norms prescribed by the DOPT vide its OM dated 18.02.2008 as had DPC for the vacancy/panel year 2008-09 been convened in time then the panel for promotion to the vacancies of Income Tax for the year 2008-2009 would have been prepared and finalized in October-November 2007 in which case the norms as introduced on 18.02.2008 (in terms of which the benchmark for Very Good for all the 5 years were prescribed) would not be applicable in her case. However, this point was not pressed during arguments and we have, therefore, not discussed it.
5. The Respondents have raised a preliminary objection that the OA is not maintainable as the applicant has not exhausted the alternative remedy of first approaching the respondents in the matter. They have also opposed the aforementioned submissions of the applicant and have stated that as per the Recruitment Rules, the ACC is the competent authority for making appointment to the post of CIT and that as the applicant did not meet the benchmark of Very Good for promotion to this post in terms of the instructions of DOP&T OM dated 18.02.2008 her case was not approved for appointment as CIT. It is submitted in this connection that the UPSC/DPC only makes recommendations and it is for the administering Ministry/ACC to take a final decision regarding appointments and that no judicial interference in the matter is warranted. The respondents have placed reliance in this regard on the Apex Court judgments in Union of India, etc. v. N.P.Dhamania, etc., 1995 (1) AISLJ SC 193 and Union of India and Another v. Samar Singh and Others, (1996) 10 SCC 555.
6. We have considered the rival submissions of both the parties and been through the pleadings on record. The preliminary objection raised by the respondents is rejected as the applicant had represented to them in the matter vide her representation dated 13.07.2009 (Annexure A9).
7. It would be useful at the outset to refer to the instructions of the DoPT with regard to holding of DPCs and in particular for promotion to the post of Commissioner of Income Tax. These are contained in DoPT OMs dated 10.04.1989 and 18.02.2008 relevant portions of which are extracted below:
DoPT OM dated 10.04.1989:
6.1.2. The DPC 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.
6.1.3. While merit has to be recognized and rewarded, advancement in an officers 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 ACRs and based on strict and rigorous selection process.
6.2.1(b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for preceding five years, which became available during the year immediately preceding the vacancy/panel year.
6.2.1(e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of entries in the CRs because it has been noticed that some times the overall grading in a CR may be inconsistent with the grading under various parameters or attributes.
6.2.1(f) If the Reviewing authority or the Accepting authority as the case may be has overruled the Reporting Officer or the Reviewing Authority as the case may be, the remarks of the latter authority should be taken as the final remarks for the purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment conclusively after due application of mind. If the remarks of the Reporting Officer, Reviewing authority and Accepting authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the DPC.
DoPT OM dated 18.02.2008:
The observations of the ACC have been examined in consultation with the UPSC in order to ensure greater selectivity at higher level of administration, the DPC may ensure that for the promotion to the scale of Rs.18,400-22,400 and above, the prescribed benchmark of `Very Good is invariably met in all ACRs of five years under consideration. The DPC, in terms of guidelines of this Department, is required to evolve its own assessment on the basis of entries in the CRs and not be guided merely by the overall grading. In cases where the assessment by DPCs are apparently not in tune with the grades in the ACRs, the DPC should approximately substantiate its assessment by giving reasons so that the appointing authority could factor these while taking a view on the suitability of offer for promotion. (Emphasis supplied)
8. The OM dated 10.04.1989 makes it abundantly clear (Para 6.2.1(e) that the DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of officers, and that the DPCs should not be guided by the original grading recorded but should make their own assessment on the basis of individual entries recorded in the ACRs.
The said OM also provides (para 6.2.1(f)) that if the Reviewing Authority has overruled the Reporting Officer, then the remarks of the higher authority should be taken as the final remarks for the purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment conclusively after due application of mind.
9. The OM dated 18.02.2008 prescribes that an officer for promotion to the post of CIT must have over all Very Good grading in all the 5 years in the ACRs under consideration.
It also reiterates that the DPC, in terms of the guidelines, is required to evolve its own assessment on the basis of the entries in the ACRs and not merely be guided by the overall grading and, further provides, that in cases where the assessment by the DPCs are apparently not in tune with the grades in the ACRs, the DPC should approximately substantiate its assessment by giving reasons so that the appointing authority could factor these while taking a view on the suitability of offer for promotion.
9.1 In the backdrop of the aforementioned instructions, we now examine the case of the applicant in this OA. The issue for consideration in this OA is whether the applicant met the benchmark prescribed viz. `Very Good in the each of years from 2002-03 to 2006-07.
It is noticed that the ACRs of the applicant for these 5 years had been graded by the Reviewing Officer as follows:
2002-03 `Very Good 2003-04 `Very Good 2004-05 `Very Good 2005-06 `Very Good 2006-07 `Good 2007-08 `Very Good 9.2 The whole case of the applicant is, therefore, dependant on the assessment by the DPC of her ACR for the year 2006-07.
9.3 It would be useful, therefore, to extract the relevant portions of the ACR for the year 2006-07 of the applicant. These are as under:
CONFIDENTIAL REPORT FOR INDIAN REVENUE SERVICE OFFICERS OF THE LEVEL OF JOINT COMMISSIONER/ADDITIONAL COMMISSIONER OF INCOME TAX PART-1-To be filled in by the Administrative Section of CCIT(CCA) Name of the officer in full (Capital letters) Smt. Parminder .. . . . . . . . . .. . . . . . . . . . . ..
Post held Reporting Officer Reviewing Officer
w.e.f. w.e.f.
(i) Addl. CIT (HQ), Sh. H. Tubyan
Systems, Mumbai Chief CIT, Mumbai
01.04.06 to 30.06.06
(ii) Addl CIT, Range 13 (1), Sh. V.K. Mishra Sh. R. Venkataramani
Mumbai CIT-13, Mumbai. Chief CIT, Mumbai.
30.06.06 to
31.03.07
.. . . . . . .. . . . . ..
9. Penalties, if any, imposed
during the year Nil
Part-II to be filled in by the officer reported upon
10. Academic & Professional achievements during the year,
books/articles published, training courses attended etc.
-----------------
One day Training Course on Preventive Vigilance at R.T.I. Mumbai.
11. Targets Achievements Clarifications, if any
Budget 50 G 51 G Executed
Collection 6.93 G 1.34 G Reduction of Rs.8.55 Cr.
Out of
demand
Collection out of 3.62 G 3.93 G Differentiate ..Rs.4.72 G
Current demand exclusively
Widening of tax 45 1005 Exceeded
Base
Accepting of 357 302 6% income over
Tax base previous year
12. Brief resume of any special/outstanding work done
Under the esteem and focused guidance of highly respected, knowledge and informative C.I.T., the budget was achieved. To maximum collection, 11 surveys and 2 recovery surveys were conducted resulting in collection of 3.79 Cr. And Rs.51.25 lacs, 60 notices u/s 210 were issued. 287 letters were issued to stop files. 637 returns were prescribed (+12%), 440 scrutiny orders were passed (+24%) collection out of even demand was Rs.134.95 lacs (+ 12.4%) and current demand is Rs. 393.5 lacs (+288%) and budget collection was Rs.5 lacs (+ 24%) as against previous year.
Nature and number of orders passed and number of appeals filed during .
the year against his order Orders passed Appeals filed (i) Assessment orders Summary (b) Scrutiny (ii) Concealment Penality Orders (iii)Other orders Please state whether the annual return on Immovable property of the preceding Calendar year was filed within the Yes Prescribed dated i.e. 31st January of the year Following the calendar year or not, the date of filing the return should be given. Part-III: To be filled by the Reporting Officer
NOTE: The Assessment against columns 15 to 17 below should be made in one of the four categories Outstanding, Very Good, Good and Inadequate- to be indicated by writing the appropriate category. If any inspection has been carried out during the year, comments may be based on that.
15. Comments of the Reporting Officer on item 10.
NIL
16. Comments on Columns 11 and 12 The officer while effectively supervising the work of the Range should have contributed much more to assist work. There is not a single direction visualising 144 A. Even the assigned cases have not been completed before 31.3.2007, however target of budget below has been achieved. A good number of quality ..orders have been passed to range.
17. Technical ability:
If the Reporting Officer has carried out inspection of The work of the officer during the year, on the basis of Result of inspection he should comment on ..
(a) Knowledge of Accounts Very Good (b) Knowledge of Procedure Very Good 18. Relations with:- (a) Superiors Outstanding (b) Colleagues Very Good (c) Subordinates Outstanding (d) Public Very Good 19. Other qualities:- (i) Decision making (a) Speed Very Good (b) Soundness Very Good (ii) Control of officers and staff Very Good (iii) Guidance of officers and staff Very Good (iv) Training and Development of Officers and staff N.A. (v) Leadership Very Good (vi) Capacity to handle pressure of work Very Good (vii) Investigating capability N.A. (viii) Capacity to present argue cases before Appellate Authorities (for Departmental Representative only) N.A. 20. Integrity No complaints 21. Nature of placement for which the officer is suited 1. Inside the department (e.g. work relating to investigation, judicial audit, administration, representation before Tribunal or any other) Please specify any placement II. Outside the department (post on the Secretariat, Deputation to public Sector Undertaking etc.) --------- 22. General observations:- (Here mention any special ability, traits or performance relevant to the officers current/ future assignments) Intelligent, prompt in disposal, having good team spirit.
10. It is noticed that in Part-III of the ACR, which contains entries to be made by the reporting officer, the Reporting Officer had assessed the various attributes (Column 17, 18 and 19 relating to technical ability, relations and qualities such as decision making, control of officers and staff, guidance, leadership, etc.) - which are relevant to an assessment of over all performance and grading of the officer - as being either `Outstanding or `Very Good. In the general observations column though, the Reviewing Officer had omitted (presumably, inadvertently) to give any specific over all grading, he has stated that the officer is intelligent, prompt in disposal and having good team spirit. On the basis of the above entries any person of reasonable prudence would arrive at an overall assessment of the performance/grading as, at least `Very Good. It was evidently for this reason that the DPC assessed her as meeting the benchmark (of Very Good) and declared her as `FIT.
11. In his `General Assessment the Reviewing Officer had graded the officer as `Good. Part V of her ACR as filled by him is extracted below:
PART V-To be filled in by Reviewing Officer
1. Length of service under the Reviewing Officer during the year 1.4.06 31.3.07
2. Does the Reviewing Officer agree with the remarks of the Reporting Officer? If not, the reasons for disagreeing and the extent of disagreement may be mentioned in brief. Yes
3. General Assessment Rated as Good Two points are noteworthy in Part-V above as filled by the Reviewing Officer. The first is that in Column 3 the Reviewing Officer has rated the officer as `Good and the second is that he has categorically stated without any qualification that he agrees with the remarks of the Reporting Officer (which as mentioned in para 10 above were either `Outstanding or `Very Good in respect of various attributes relevant to assessing performance and would lead to an over all grading of at least `Very Good). The grading recorded by the Reviewing Officer in Column 3 as Good suffers from serious infirmity and is inconsistent. His grading of `Good in fact is inconsistent with -nay, in clear contradiction of - his statement in Column-2 that he agrees with the remarks of the Reporting Officer. In this connection, it is also pertinent to notice that it is specifically provided in the ACR form itself (See Column 2 of Part-V) that Does the Reviewing Officer agree with the remarks of the Reporting Officer? If not, the reasons for disagreeing and the extent of disagreement may be mentioned in brief. It is evident that the Reviewing Officer has recorded his remarks in a very casual manner and without application of mind, and that the grading of the officer by him as `Good is arbitrary and unacceptable. In the instructions (Para 6.2.1(f) of OM of 10.04.1989) also it is provided in clear terms that If the Reviewing authority or the Accepting authority as the case may be has overruled the Reporting Officer or the Reviewing Authority as the case may be, the remarks of the latter authority should be taken as the final remarks for the purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment conclusively after due application of mind. It is evident that for this reason also (i.e., the entry of the Reviewing Officer not showing due application of mind for differing with the Reporting Officer) that the DPC has not accepted the remarks of the Reviewing Officer.
12. To sum up, the DPC while reviewing the service record of the applicant as contained in her ACRs, for promotion to the post of CIT, had recommended her as FIT (Sl No. 78 of Annexure-I of the DPC Minutes). As the benchmark for the post was `Very Good, this by implication would show that the DPC had, in keeping with DoPT instructions on the subject, made its own independent assessment of the performance/suitability of the officer on the basis of the individual entries given by the Reporting Officer in the Part-III of the ACR for the year 2006-07, and had assessed the officer as `Very Good for this year and, therefore, FIT for promotion. It is clear that the DPC, as required, made its own independent assessment on the basis of entries in the ACRs of the officers in terms of DoPT instructions (Refer Para 6.2.1(e) of OM dated 10.04.1989 ibid).
In this connection it is pertinent also to notice that the DPC in question consisted of the following:
1. Chairman, UPSC - Chairman
2. Secretary, Department of Revenue Member (not present)
3. Chairman, CBDT, Dept. of Revenue - Member
4. Member, CBDT, Dept. of Revenue - Member The assessment by such a high powered and broad-based expert body cannot normally be rejected unless there are cogent reasons for not accepting such recommendations.
13. As already mentioned earlier, the ACC did not approve the recommendations of the DPC in so far as the applicant was concerned. We have made an attempt to ascertain why the ACC came to such a decision, by calling for the records of the case, and find that this was so because of the `Note submitted to the ACC which was deficient.
14. A perusal of Paras-15 and 19 of the Note dated 06.04.2009 (Page 10 of the Note Sheet of File No.18/13/2009/EO(SM.II) submitted to the ACC reveals that the full factual position of the case of the applicant had not been brought to the notice of the ACC as would be evident from the following extract:-
Para 15:
15. Abstracts of ACR gradings of the proposed officers are placed at pp.50-62/c. The benchmark in the present case is Very Good. Again this, all the officers have bery good or above gradings in their ACRs for the last five years, except the following:
Officer at Sl. Nos.47 Shri (Mrs.) Parminder Singh. For the year 2006-07, he was graded Very Good by Reporting officer. The Reviewing Officer downgraded him as Good.
Officer at Sl. No.50, Shri Sugar Lal Meena. For the year 2003-04, he was graded Outstanding by Reporting Officer. The Reviewing Officer downgraded him as `Good.
As per instructions dated 18.2.2008 of the Establishment Division of the DOP&T, for the panel year 2008-09 onwards, an officer must have overall Very Good grading in all the five years ACRs under consideration. While the DPC has held that the downgrading of Shri S.L.Meena from Outstanding to Good was without application of mind and thus upgraded him as Very Good, no such upgradation has been made in respect of Shri (Mrs.) Parminder Singh. Hence, Shri (Mrs.) Parminder Singh cannot be empanelled. Para 19:
Point for consideration of the ACC:
In the light of the aforesaid background, the ACC may consider for appropriate orders, the proposal for empanelment of officers, as listed in para 6 of this note (except Shri M. Bhupal Reddy, Sl. No.1 in the panel and Shri Parminder Singh Sl. No.47 in the panel) for promotion to the grade of Commissioner of Income Tax in the pay scale of Rs.18400-22400/- (pre-revised), in the Central Board of Direct Taxes w.e.f. the date of assumption of the charge of the post and until further orders. It was on the basis of this Note that the ACC had not approved the case of the applicant for promotion.
15. It is our considered view that the Note reproduced above which was put up before the ACC was deficient, inasmuch as, it failed to specifically point out to the ACC that the DPC has full powers and is required to make its own independent assessment of the ACRs of various officers on the basis of individual entries, and that the DPC had assessed the officer as fit for promotion, which could have been possible only if the DPC had, in its independent evaluation, assessed the ACR for the year 2006-07 as meeting the benchmark, which was very good. The DPC had treated the grading of the reviewing officer as very good. What we have observed above would need demonstration. Before we may do so, it may be mentioned that the DPC consisted of Chairman, UPSC as its chairman; and Secretary, Department of Revenue; Chairman, CBDT; and Member, CBDT, as members. The assessment by such a high powered committee and broad-based expert body cannot normally be rejected unless there are cogent reasons for not accepting such recommendations. As already mentioned, the ACC did not approve the recommendations of the DPC insofar as the applicant is concerned. In our endeavour to find out as to why despite the DPC recommending the applicant fit for promotion, the ACC would not accept the same, we, as mentioned above, called for records, which the respondents have produced. There is a note dated 6.4.2009 prepared by Secretary, ACC, which came to be submitted before the ACC. While giving the abstracts of the ACR gradings of the officers so found fit by the DPC, the note mentions that officer at sl. No.47 Shri Parminder Singh (it should be Mrs. Parminder), for the year 2006-07 was graded very good by the reporting officer, but the reviewing officer downgraded her to good. As regards the officer at sl. No.50, Shri Sugar Lal Meena, it is mentioned that for the year 2003-04 he was graded outstanding by the reporting officer, but the reviewing officer downgraded him as good. It is then mentioned that as per instructions dated 18.2.2008 of the Establishment Division, DOP&T, for the panel year 2008-09 onwards, an officer must have overall very good grading in all the five years ACRs under consideration, and that while the DPC had held that the downgrading of Shri Sugar Lal Meena from outstanding to good was without application of mind and thus upgraded him to very good, no such upgradation had been done in respect of the applicant, and, therefore, the applicant could not be empanelled. In the operative part of the Note, it has been mentioned as follows:
In the light of the aforesaid background, the ACC may consider, for appropriate orders, the proposal for empanelment of officers, as listed in para 6 of this note (except Shri M. Bhupal Reddy, Sl.No.1 in the panel and Shri Parminder Singh, Sl.No.47 in the panel) for promotion to the grade of Commissioner of Income Tax in the pay scale of Rs.18400-22400/- (pre-revised), in the Central Board of Direct Taxes w.e.f. the date of assumption of the charge of the post and until further orders. The final suggestion made, as extracted above, appears to have been approved by the ACC. The DPC had found both the applicant as also Shri Sugar Lal Meena fit for promotion. In the case of Shri Meena, in whose case it appears that the reviewing officer had downgraded his concerned ACR from outstanding to good, the Note records that the DPC had held that the downgrading of Shri Meena from outstanding to good was without application of mind and thus upgraded him as very good. The DPC in a clear case of downgrading of ACR of Shri Meena from outstanding to good, where no reasons were recorded for downgrading him, considered the relevant report of the said officer as very good. Had the DPC considered the case of the applicant as regards her report for 2006-07 to be a case of downgrading, surely and definitely, the same parameters would have followed as in the case of Shri Meena. Surely, different yardsticks as regards two equally situate officers could not have been applied. The DPC, in our considered view, did not consider the case of the applicant as if her grading as given by the reviewing officer was good, and it may have been considered to be a case of downgrading. We have given the reasons in that regard already, but we reiterate that all attributes of the ACR of the applicant for the year 2006-07 have been assessed as outstanding or very good by the reporting officer, to which the reviewing officer has agreed. If the reviewing officer was in agreement with the grading done by the reporting officer, his overall grading could not possibly be simply good; if it was not to be outstanding, it was to be at least very good. It was a case of apparent mistake made by the reviewing officer, and, therefore, the DPC, in view of the powers vested in it under para 6.2.1(e) of OM dated 10.4.1989, reproduced in the earlier part of the judgment, could make its own assessment, and considering the ACRs of the applicant for 2006-07 as very good could find her fit for promotion. If that was not to be so, there was no question for the DPC to have found the applicant fit for promotion. We may again mention that if the DPC would have considered the case of the applicant as if the reviewing officer had downgraded her ACR from very good to good, it would have still treated the said report to be very good, as admittedly, no reasons have been given by the reviewing officer for giving an overall grading of good. Incidentally, in the very DPC in which the applicant was considered for promotion, Shri Sugar Lal Meena was also considered, in whose case, as mentioned above, it was a clear case of downgrading by the reviewing officer, which was sans any reasons, and, therefore, the grading done by the reviewing officer was ignored by the DPC. We reiterate, the same parameters would have followed had the DPC considered that the concerned ACR of the applicant had been downgraded by the reviewing officer. The DPC in terms of guidelines issued by DOP&T was required to evolve its own assessment on the basis of entries in the ACRs and not to be guided merely by the overall grading. It is only in cases where the assessment by the DPC is apparently not in tune with the grades in the ACRs, that the DPC should approximately substantiate its assessment by giving reasons so that the appointing authority could factor these while taking a view on the suitability of an officer for promotion. Present was not an apparent case where the view of the DPC was not in tune with the grading of ACR, which was indeed so in the case of Shri Meena. The part of instructions as regards approximately substantiating its assessment by the DPC was not applicable in the present case. We reiterate that it is not an apparent case where the view of the DPC may be different than the one from the grades mentioned in the concerned ACR of the applicant. It is only the part of the instructions that the DPC is required to make its own assessment on the basis of entries in the ACRs and not be guided merely by the overall grading, that was applicable. As mentioned above, incidentally, present case has an illustration of the case of Shri Sugar Lal Meena, in whose case the view of the DPC was apparently not in tune with the grading of the ACR. Before we may part with this aspect of the case, we may only mention that we are reminded of ACR of an officer who was very hard working, and the columns of the ACR so reflected, but by inadvertent mistake or, may be, because of lack of knowledge of proper English, the reporting officer mentioned that the officer hardly works. The mistake made by the reviewing officer was absolutely apparent as if he was to agree with the grading done by the reporting officer, as he did, there was no question of his giving overall grading as only good.
16. The learned counsel for the respondents 1 and 2, in support of his contention that the recommendations of the UPSC are advisory in nature and not binding on the appointing authority (the ACC) has relied on the Judgement of the Honble Apex Court in Union of India, etc. v. N.P.Dhamania, etc., 1995(1) AISLJ SC 193. He has also relied on the Judgement of the Honble Apex Court in Union of India and Another v. Samar Singh and Others, (1996) 10 SCC 555 to contend that mere absence of reasons in the minutes of the Committee for non-selection of an officer cannot by itself vitiate the selection nor can it be inferred that non-inclusion in the panel of an officer whose performance had been rated as upto the benchmark cannot by itself lead to an inference that there was no proper consideration of the merit and suitability of the officer. The judicial precedents relied upon by the learned counsel would not be applicable in the facts and circumstances of the instant case, as surely and admittedly, there is reason given in the Note that was ultimately put up before the ACC, and approved, as to why the applicant should not be promoted, which, in our view, was a defective Note without properly appreciating the facts of the case.
17. For the reasons as mentioned above, we have no hesitation in holding that it is because of a defective, factually incorrect note, may be, made out of inadvertence, that the applicant could not be promoted along with others, some of whom were her juniors. The note as regards the applicant needs to be set aside. We order accordingly. In consequence of setting aside the note aforesaid, we direct the respondents to put correct note in tune with the observations made in this judgment before the ACC, which would then consider the case of the applicant for promotion on the post of Commissioner of Income Tax. The applicant, in our considered view, has been wrongly overlooked in the matter of promotion by her juniors. Obviously, she would be feeling let down and totally demoralized. In the totality of the facts and circumstances of the case, we direct the respondents to prepare a correct note as expeditiously as possible and definitely within a period of three weeks from receipt of this order, and put it up before the ACC for taking a decision in the matter. We are conscious that the ACC is a high powered committee, but in the facts and circumstances of the case, we would only observe that when the note is put up before the ACC, it would consider the case of the applicant for promotion as per its convenience, but as early as possible.
18. This Original Application stands disposed of in the manner fully indicated above. In the peculiar facts and circumstances of the case, however, the costs of the litigation are made easy.
(Shailendra Pandey) (V.K.Bali) Member (A) Chairman cc/nsnrsp