Central Administrative Tribunal - Delhi
Smt. Mala Ramakrishnan vs Union Of India Through Secretary on 12 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 234/2009
New Delhi, this the 12th day of January, 2010
HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN
HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)
Smt. Mala Ramakrishnan, IRS
Presently posted as Director General
Of Income Tax (Investigation),
Having her office at 305, Scindia House,
Ballard Estate, Mumbai-400038
And presently residing at
A-71, NCPA Apartment, Nariman Point,
Mumbai-400020 Applicant
(Through Shri G.D. Gupta, Senior Advocate with Shri Vishal Anand)
Versus
1. Union of India through Secretary,
Government of India,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi-110001
2. The Chairman,
Central Board of Direct Taxes,
North Block, New Delhi-110001
3. Shri S.S. Narayana Moorthy,
Member,
Central Board of Direct Taxes,
North Block, New Delhi-110001
4. Shri Sheikh Naimuddin,
Member,
Central Board of Direct Taxes,
North Block, New Delhi-110001
5. Shri Narinder Singh,
S/o Shri Hans Raj,
R/o 421, Sector-14,
Faridabad Respondents
(Through Shri R. Venkataramani, Senior Advocate with Shri A.K. Joseph and Shri H.K. Gangwani)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) Smt. Mala Ramakrishnan, the Applicant herein, is an officer of Indian Revenue Service (IRS), Income Tax of the 1972 batch. She is currently posted as Director General (Investigations) in the Income Tax Department at Mumbai. The grievance of the Applicant in this OA stems from the fact that she has been superseded in appointment to the post of Member, Central Board of Direct Taxes (CBDT) by Shri S.S. Narayna Moorthy and Shri Sheikh Naimuddin, both juniors to her by order dated 27.08.2008 of the first Respondent, i.e., the Department of Revenue in the Ministry of Finance.
2. The facts, in nuce, would show that the Applicant was promoted to the post of Chief Commissioner of Income Tax (CCIT), Mumbai by order dated 29.04.2005. The third Respondent, Shri S.S. Narayana Moorthy, was promoted as CCIT on 31.05.2006 and the fourth Respondent Shri Sheikh Naimuddin was promoted as CCIT on 31.01.2006. A notification dated 14.12.2007, issued by the first Respondent called for applications for the post of Member, CBDT. Two vacancies were notified for the post of Member, CBDT. The Applicant also sent her application on 14.01.2008 in the prescribed format. The selection for the post of Member, CBDT is considered by a Special Committee of Secretaries (SCOS) chaired by the Cabinet Secretary. The Selection Committee met in July 2008. The third and the fourth Respondents were selected as Member and the Applicant herein was overlooked.
3. The Applicant challenged her being superseded in the present OA on several grounds, which included challenge to the methodology adopted by the Selection Committee, not consulting the Union Public Service Commission (UPSC), making it optional to have the Chairman, CBDT as a member of the Selection Committee and consideration of ACRs of ten years instead of five years as per prescribed procedure etc. This OA was being heard along with OAs No.1687/2008, 1797/2008, 2808/2008 and 1731/2008. Shri Narindar Singh, Applicant in OA-1687/2008 submitted before the Tribunal, during the course of hearing, that he would not challenge the criteria for selection evolved by the Selection Committee but would challenge the application of the criteria in his case by that Committee. Shri Narindar Singhs challenge was mainly on the ground that the Respondents had not followed the principles evolved by the SCOS itself that the grading in an year would be weighted to the number of months covered in the report. He successfully demonstrated that the number of months considered in his case were either more or less for various years than the actual period for which he had worked in those years. The Tribunal upheld the contention of the Applicant in OA 1687/2008 and gave the following directions:
..We direct that a fresh selection be made by the SCOS for the aforesaid year by meticulously working out the period for which each person considered had worked in every year during the ten years for which ACRs were considered. If as a result, the Applicant is successful, he would be selected for the post of Member, CBDT and also consequently considered for the post of Chairman, CBDT.
4. The Applicant herein then filed an additional affidavit on 21.10.2009 before us in which it was, inter alia, stated as under:
It is submitted that the (sic) Mr. Narinder Singh had also challenged the selection of Shri S.S.N. Moorthy and Shri Sheikh Naimuddin by filing petition before the Honble Tribunal being O.A. No. 1687 of 2008 on the issues identical as that of the Petitioner. The Honble Tribunal by its order dated 9.10.2009 in O.A. No.1687/2008 titled as Narinder Singh Vs UOI has quashed the selection made for the post of Member, CBDT for FY 2008-09. The Honble Tribunal has categorically observed vide para 2 of the order that the case of Narinder Singh Vs UOI and other matter including that of the Petitioner have identical issues. The Honble Tribunal has further observed in the order that the selection committee has not uniformly followed the policy enunciated by itself and, therefore the selection to the post of the Member, CBDT for the year 2008-09 is vitiated. Since, the issues in the matter of the Petitioner and that of Shri Narinder Singh are identical the Petitioner is praying before the Honble Tribunal to grant the Petitioner order similar to that of Shri Narinder Singh. In the case of Narinder Singh (supra), the Tribunal had, inter alia, observed thus:
.The policy is anchored on the principle that only the period for which an officer has worked during an year should be taken into consideration for a fair comparison among various contenders for the posts in question. The number of months for which an officer has worked is, therefore, of crucial importance for this high level selection. This process is quite distinct from the procedure followed by the Departmental Promotion Committees (DPCs), in which the ACR recorded for a particular year, regardless of the period for which an officer has worked during that year, is taken to be the ACR for the whole year. For example, if the only ACR of an officer available is for a period of seven months, it would be considered as ACR for the whole year. Even if the Applicant has worked for a period of three months in an year, for example, and his ACR for the rest of the seven months is not available, then the grading for the three months would be taken to be the grading for the whole year. It was in order to eliminate any undue advantage or disadvantage to an officer that the system of assigning weightage on the basis of months for which a person has worked has been worked out. Needless, therefore, to say that consideration only of the number of months for which an officer has worked during an year is critical requirement in such selection. In other words, for a selection to these very senior posts, it would be expected that the SCOS would meticulously work out the period for which the Applicant has worked during an year. For working out such a crucial requirement, reliance only on the period recorded in the ACR dossier, in our considered opinion, is an abdication of their responsibility by the Respondents. The reason is that the system has been evolved in the year 2006 only. Earlier, as we have noted above, an ACR recorded for even a period of three months, if no other ACR was recorded during that year, would be considered to be the ACR for the entire year. An officer, recording his self assessment say in April, 1994, would not consider it to be very significant to mention the precise number of months for which he/she has worked. He would not know how crucial this aspect would become from 2006 onwards. We have been emphasizing that this selection is for a very senior level post of Member CBDT. There cannot be any doubt that it would entirely be the responsibility of the Respondents to work out the details of the period for which the concerned officers have worked during an year and furnish this information to the SCOS. The Respondent is the repository of all information about the Applicants career, including the leave he has taken, the period for which he was worked in a particular post under a particular reporting officer etc. The task is not particularly onerous as the number of officers under consideration is not very large
5. The Applicant, in her additional affidavit, has worked out her total score and the number of months for which she worked in ten years, for which her ACRs were considered as follows:
No. Year Grade No. of months Average Points Total 1 97-98 CIT 12 10 120 2 98-99 CIT 4 4 16 3 99-00 CIT 8 8 64 4 00-01 CIT 12 8 96 5 01-02 CIT 5 8 40 6 02-03 CIT 9 8 72 7 03-04 CIT 11 8 88 8 04-05 CIT 11 8 88 9 05-06 CCIT 3 8 24 10 06-07 CCIT 12 10 120 Total Months 87 Total Score 728 Average 728/87 = 8.3678
6. The calculations for the actual number of months, for which she states she has actually worked, have been explained as follows:
(i) Year 1998-99: The Applicant returned from deputation in May 1998. During the year, she was on Earned Leave for 30 days. She was on election duty for one-and-a-half months. Her reporting officer was transferred in September 1998 and a new reporting officer took over and wrote her ACR. The effective period for which the ACR was written would come only to four months.
(ii) Year 1999-2000: The period of ACR was only eight months because she was transferred to Hyderabad and took charge there at the end of May 1999. She was on various kinds of leave during this period in Hyderabad. Thus, her period would only come to eight months.
(iii) Year 2001-02: Because she was on leave for some period and because one of her reporting officers saw her work for less than three months, the period of ACR would come only to five months.
(iv) Year 2002-03: Since the Applicant worked as Commissioner Income Tax, Hyderabad for less than three months, her effective period for ACR would be only nine months.
(v) Year 2003-04: During the period 14.08.2003 to 3.09.2003, the Applicant had been transferred as Commissioner Income Tax at Baroda and was not holding charge at Mumbai. The period reported upon by reporting officer would be only eleven months.
(vi) Year 2004-05: The effective period of ACR would be only eleven months because the Applicant was on Earned Leave for 17 days.
(vii) Year 2005-06: On promotion, the Applicant took over as CCIT, Thane on 4.05.2005; Although the ACR was reported upon by Shri Sudhakar Mishra, Member, CBDT, it may be noted that Shri Shibaji Das, Member (IT) was the Applicants reporting officer till 30.11.2005 before he retired. Thereafter, Shri Sudhakar Mishra, has been the reporting officer. The Applicant has also availed 16 days half pay leave from 5.01.2006 to 20.01.2006. Thus, the effective ACR period is only 3 months.
7. We are not going into the veracity of the above claim of the Applicant because it would be a matter of record. This could be easily verified by the Respondents. However, the basic principle, which has been adopted by the SCOS, would have to be followed in the instant case also. To that extent, the Applicant would be eligible for the benefit of this Tribunals decision in Narinder Singhs case (supra).
8. The other contention raised by the Applicant in the OA as well as in the additional affidavit is that she had been promoted as CCIT on 4.05.2005, whereas the third Respondent, Shri S.S. Narayana Moorthy, was promoted as CCIT on 31.05.2006; the fourth Respondent, Shri Sheikh Naimuddin, was promoted as CCIT on 31.01.2006; and Shri Narinder Singh was promoted only on 31.01.2006. Moreover, the Applicant was promoted as Commissioner Income Tax in January 1994. However, Shri Narinder Singh was promoted as Commissioner, Income Tax only in June 1995. Shri S.S. Narayana Moorthy became Commissioner Income Tax in August 1996 and Shri Sheikh Naimuddin was promoted as Commissioner Income Tax in December 1996. It is contended that both as CIT and CCIT, there is a yawning chasm between the Applicant and other aforementioned officers. It is further contended that as per the office memorandum issued by the Department of Finance being F.No.A-28011/3/2007-HQ (Per) dated 17.01.2008, some ACRs of Shri Narinder Singh, Shri Sheikh Naimuddin and Shri S.S. Narayana Moorthy were not available at the time of consideration for the post of Member, CBDT. The said Office Memorandum specifically listed out the ACR for FY 2005-06 of Shri S.S. Narayana Moorthy, ACR for FY 2006-07 of Shri Sheikh Naimuddin and ACRs for FY 2004-05, 2005-06 and 2006-07 of Shri Narinder Singh were not available. The Applicants contention would be that apparently such ACRs were not considered by the SCOS and ACRs of prior period had been taken into account. The argument is that while in case of the Applicant, her eight ACRs were in the capacity of CIT and two were in the capacity of CCIT, the ACRs of other officers were in the capacity of Additional CIT or CIT only. The learned senior counsel for the Applicant has strenuously urged that by virtue of the Applicant being in higher post as compared to the third and fourth Respondent and Shri Narinder Singh, her ACR while being considered by the SCOS should be treated one level higher than the grading awarded to the aforesaid officers by virtue of the judgement of Full Bench of this Tribunal in OA No.306/1990 along with other OAs, Mr. S.S. Sambhus Vs. Union of India and others, which has been upheld by the Honourable Supreme Court in Shiv Kumar Sharma and another Vs. Union of India and others, (1997) 11 SCC 112.
9. During the course of hearing, Shri Narinder Singh sought impleadment in the present OA by MA No.2336/2009 dated 20.11.2009. On 2.12.2009, the following order was recorded by this Tribunal:
MA Nos.2340/09 in OA No. 1797/08 and 2336/09 in OA No.234/09 These two Misc. Applications will be taken up for hearing with the main cases. Narender Singh, who has filed the above M.As for impleadment, may, however, file his proposed reply to the OAs, which shall be considered only if the Misc. Applications are allowed. We have considered the grounds given in MA-2336/2009. For the reasons stated in the MA, we allow the impleadment of Shri Narinder Singh in the instant OA.
10. The issue before the learned Full Bench of this Tribunal in S.S. Sambhus (supra) has been lucidly stated in the judgement. The relevant part of the judgement is reproduced hereunder:
the main issue is the modality of making a comparative assessment of the performance of two groups of officers for promotion by selection to a higher grade. The applicants in these cases while holding substantively Class III posts of Surveyors Assistants Gr. I have been officiating in Class I posts of Assistant Surveyors (Works) for a number of years continuously with some technical breaks of one or two days. They were, however officiating as such on an adhoc basis and had been promoted not by selection but on the basis of seniority. They had been allowed to cross the efficiency bar also by the DPC in the Class-I posts. When the question of regular selection came up against the vacancies of ASW for 1985, 1986 and 1987 their performance as ASW also was taken into account for the years they have been working as ASW on an adhoc basis, while in case of their juniors impleaded as respondents who had never been promoted as ASW on an adhoc basis their performance as Surveyor Assistant Gr. 1 only in Class III grade was taken into account for the same period. By this process, the grading as good of the applicants as Class-1 ASWs was valued as lower than the grading as `very good/outstanding of the individual respondents as Class-III SAs and the applicants were superseded by their juniors for regular promotion as ASW. The grievance of the applicants is that there has been clear violation of Articles 14 and 16 of the Constitution by comparing their performance as Class-I ASWs with the performance of their juniors in the Class III grade of SA-I. The learned Full Bench has further observed thus:
The main contention of the applicants is that it was not proper for the DPC to compare their assessment in Class-I post, they were holding on adhoc basis, with the assessment of the others working in Class-III posts and that treating of `unequals as equal amounted to discrimination, and is violative of Art. 14 of the Constitution. Thus, the limited controversy which we are called upon to resolve is as to how an officer working on an adhoc basis in a higher post for a certain number of years relevant for the purpose of regular promotion should be assessed, especially when he is competed with those holding the lower substantive posts in the feeder cadre and having had no occasion to shoulder the responsibility of the higher post. The principle underlying Art. 14 of the Constitution requires that when several persons competent for a post or grade, their merit assessment should be by the same yardstick and of same character otherwise it may result in discrimination and the selection process may be violative of the principles of equality enshrined in Art. 14 of the Constitution.. The case of the applicants rests mainly on the erroneous method of comparative assessment of the merits of the applicants vis-`-vis their junior who are only working in Class III posts while the applicants were working in Class-I posts when their merits were judged on the basis of such performance.. .. Thus, the supersession of the applicants has taken place in respect of the vacancies for the year 1986. The question, therefore, to be considered by us is as to whether they were rightly superseded or did the DPC arbitrarily supersede the applicants as alleged by them. The sole ground for branding the selection as arbitrary is that they applicants and the respondents were not placed on equal footing that is the assessment of the applicants was made on their performance while they were working on the post of ASW while on the other hand the assessment of the respondents was made while they were working on the post of Surveyor Assistant Grade-I. (emphasis supplied) After considering all aspects, the Tribunal further observed in paragraph 8 thus:
8. We are fully convinced that comparing the quality of performance of a candidate at the class-III level of S.A. with the quality of performance or another at the class-I level of ASW on equal footing will be comparing the incomparables and will be not only illegal, irrational but also violative of article 14 of the Constitution. To this extent we agree entirely with the Madras Bench of the Tribunal. Since neither the Principal Bench nor the Bangalore Bench of the Tribunal has gone into basic infirmity of the assessment process, the judgments in those cases which are based on entirely different grounds are of no assistance to us. The Allahabad Bench of the Tribunal in C.A. No.336/1990 (V.N. Dutta v. Union of India & Ors.) however, took the view that comparative assessment of performance based solely on the C.R. entries, irrespective of the level on which the performance was discharged is in accordance, with law. One of us was a party to that judgement. However, the said judgment is under review and the operation of that judgment has been stayed by the Bench itself. In the instant cases the class-III post of S.A. is two levels below the Class I post of A.S.W. The enormity of hostile discrimination suffered by the applicants in these cases calls for serious consideration. One of the applicants in the Bombay cases stated that he, an adhoc SW, wrote the CR of one of his juniors who was working as SA under him, and now that junior would be working as ASW and he has been reverted as SA. Such a situation is an anathema to service jurisprudence and discipline. Just as the quantity of water will reach a higher level in a tumbler or narrow girth but a lower level in a tumbler of wider girth, and the lower level does not signify a lower quantity of water as compared to the water in the narrow tumbler, similarly `good performance in a Class I post as compared to Very Good performance in a Class III post does not signify lesser talent of the incumbent in the higher post. We feel that para 2-2 1 (d) of the Dept. of Personnels OM dated 10.03.89 cited earlier needs to be reviewed and modified to the extent it purports to equalize the yardstick of assessment of performance at two different levels. Having come to the above conclusion, the learned Full Bench gave the following directions:
The only reasonable and just suggestion that in our opinion can be made to meet the ends of justice in the circumstances of the case is that for the period during which the applicants shouldered the higher responsibilities of the higher Class-I posts of ASW/SW their gradation as SA should be treated as one level higher than the grading awarded to them as ASW as per the ACRs for that period. That is, if the ACR as ASW reflects `good, it should be taken as `very good, and if `Very good, then it should be taken as `outstanding. In this manner they are placed on equal footing for the purpose of assessment of comparative merits. With this modification in the grading, the comparative assessment of the merits of the candidates may be made by the selection committee and they may be accordingly considered for empanelment.
11. In Shiv Kumar Sharma and another (supra), both the officers belonged to the State Police Service and were being considered for selection for entry into the Indian Police Service. Shri Shiv Kumar Sharma was holding the dual charge during the years 1980-81, 1981-82 and 1982-83 as Joint Superintendent of Police as well as holding charge of part of establishment work at intelligence headquarters. The appellant before the Honourable Supreme Court had pleaded that UPSC should apply the formula evolved in S.S. Sambhus (supra) by the learned Full Bench of this Tribunal. The Honourable Supreme Court only observed that we see no difficulty in accepting the submission of the counsel that the UPSC should be directed to reconsider their cases in the light of the judgment of the Full Bench of the Central Administrative Tribunal approved by this Court so that a proper assessment can be made by the UPSC. The learned senior counsel for the Applicant would point to the table given in paragraph 12 of the additional affidavit to show that for six out of ten years the ACRs of the Applicant would be upgraded by one level vis-`-vis Shri Narinder Singh. The table is reproduced below:
Mrs.Mala Ramakrishnan Shri Narindar Singh Whether upgradation of comparative No. Year Post held for which ACR was considered by SCOS Year Post held for which ACR was considered by SCOS merit is required by applying ratio of Sambhus case 1 97-97 CIT 91-92 Addl CIT Yes 2 98-99 CIT 92-93 Addl CIT Yes 3 99-00 CIT 93-94 Addl CIT Yes 4 00-01 CIT 94-95 Addl CIT Yes 5 01-02 CIT 95-96 CIT --
6 02-03 CIT 97-98 CIT --
7 03-04 CIT 98-99 CIT --
8 04-05 CIT 99-00 CIT --
9 05-06 CCIT 00-01 CIT Yes 10 06-07 CCIT 03-04 CIT Yes
12. It is then argued that weighted point for the Applicant would be 9.5678 vis-`-vis Shri Narinder Singh. Similarly in paragraph 13 of the affidavit, it has been pointed that in view of the decision in Sambhus case (supra), the Applicants weighted points would be higher than the third and the fourth Respondents in the instant OA.
13. The learned counsel for the Applicant would also contend that the Honourable Delhi High Court had held in W.P. (C) No.900/2008, Smt. Mala Ramakrishnan Vs. Union of India and others decided on 4.03.2009 that the Sambhus case (supra) would apply in case of the Applicant also.
14. The argument on behalf of the Applicant has been vehemently challenged by the Respondents. The learned senior counsel appearing on behalf of Shri Narinder Singh, the impleaded Respondent, would contend that Sambhus case would not apply at all in the facts of the instant case. The facts in both cases are different. While in the Sambhus case, the Applicants before the Tribunal were working in the post of Assistant Surveyor (Works) to which promotions were to be made, in the instant case the Applicant is not working on the post of Member, CBDT. Moreover, the instant case is not a case of promotion but Member, CBDT is a post for which the method of selection is applied. It is not a cadre post of Indian Revenue Service. It is an ex cadre post. The selection is made on the basis of separate guidelines evolved by the SCOS. The learned senior counsel would rely on the order of this Tribunal in OA No.975/1996 decided on 19.03.1998, Mr. M.B. Sarangi Vs. UOI & Others, in which in a similar case the Tribunal held thus:
12. Then there is serious dispute between the parties about the very application of the judgment of SAMBHUS case to the fact of the present case. The learned counsel for the respondents invited our attention and submitted that this very question arose for consideration before the Principal Bench in a identical matter in a OA filed by the same MES Officers whose case was determined along with the applicant in the DPC held in 1986 and the seniority list published in 1987 (A.K. BAJAJ Vs. UNION OF INDIA & ORS., decided on 29.01.1993 in Tr. A. No. 1037/1985) raising the same question about the same 1988 proceedings pertaining to MES. The same argument that SAMBHUS case is applicable was pressed into service before the Principal Bench and the Division Bench of the Principal Bench rejected that argument in their judgment, the relevant portion for our present purpose is at para 30 which reads as follows:
30. Some of the applicants have argued that relative assessment was not on the basis of equality. While some have been adjudged on their performance in the post of Assistant Executive Engineer, some others like the applicants have been also adjusted in this higher post of Executive Engineer. In this context, they have relied upon the judgment of the Full Bench of this Tribunal dated 29.10.1991 in OA 306/1990 and connected matters - S.S. Sambus and others Vs. Union of India and others. In our opinion, the aforesaid decision of the Full Bench and other decisions cited before us are distinguishable. In our opinion, where promotions are to be made by selection method, as in the instance case, it is entirely left to the DPC to make its own classification of the officer being considered by them for promotion, irrespective of the grading that may be shown in the confidential reports. It is for the DPC to consider the confidential reports as a whole in this regard.
For good reasons the Principal Bench has observed that SAMBHUS case is not applicable in the peculiar facts and circumstances of that case, which applies to the facts of the present case also.
15. The learned senior counsel would vehemently contend that the contention on behalf of the Applicant that Honourable Delhi High Court has held that Sambhus case (supra) would cover the case of the Applicant also is specious. He would contend that such a plea was raised before the Honourable Delhi High Court by the Applicant, while her promotion as Member, CBDT for the year 2007 was under consideration. The Honourable Delhi High Court had observed thus in the aforesaid Writ Petition:
Linked with the aforesaid is the third point raised by the learned senior counsel for the petitioner that the petitioner is entitled to two extra points for each of the relevant years for which the gradings of the persons junior to the petitioner in the rank of CIT have been taken into account as she had earned the gradings as CCIT. If such a principle was to be applied, it is not disputed that it would equally apply to all the persons in that zone of consideration who had worked as CCITs. Once again for testing the case of the petitioner, we have assumed that such a benefit would be available to the petitioner and other persons who had similarly worked as CCITs. If all these benefits, as claimed by the petitioner, are granted to her, though not acceded to by the learned counsel for the respondents, the petitioner still does not make it in the shortlist. The reason is that the persons junior to the petitioner in terms of the points assigned have far more number of points than the petitioner and the persons who have similarly worked as CCITs and already have more points than the petitioner, would equally be entitled to the benefit of the additional points on account of having so worked as CCIT.
16. The learned senior counsel for the official Respondents would also contend that Sambhus case (supra) would not apply in the instant case. The Applicant had been adequately assessed in the higher post and there was no reason why there should be upgradation. The learned senior counsel would also state that Shri Sudhir Chandra, Member, CBDT is not a party in this case. We note this.
17. Having given our utmost consideration to the rival contentions, we are in agreement with the Respondents that in the instant case the formula worked out by the learned Full Bench of the Tribunal in Sambhus case (supra) would not apply in the instant case. Although as argued by the learned senior counsel for the Applicant, eventually the comparative merit has to be tested, yet it is not necessary to follow the same formula for working out the comparative merit in the instant case. Both the Applicant as well as the private Respondents have been working in very senior posts. In Sambhus case, the comparison was between the person holding Class-III post and another person holding a Class-I post. Here the Applicant as well as the private Respondents are all in Class-I posts. The methods of grading are also different. The SCOS has evolved a different method for working out the gradings on the basis of points and taking weighted average than the system of grading in Sambhus case (supra), which is simple `outstanding, `very good or `good etc. Yet another factor, which was involved in Sambhus case (supra) was that the Applicants had also been recording the ACR of the respondents who were in Class-III posts. It was in those facts and circumstances that the formula was evolved by the Tribunal. In Shiv Kumar Sharma (supra) also, the Honourable Supreme Court has not laid down any law and has merely directed the UPSC to apply the formula evolved in Sambhus case to the appellants before the Honourable Supreme Court. We are convinced that the comparative merit to be taken into account in the instant case would be the merit of the candidates being considered in whichever post they are working.
18. For the reasons recorded above, we reject the arguments on behalf of the Applicant that her ACR should be upgraded by one level vis-`-vis the Respondents for various periods when she was working on a post higher than the Respondents. The Sambhus case (supra) would have no application in so far as this OA is concerned.
19. In the result, we direct the Respondents to reconsider the case of the Applicant for selection to the post of Member, CBDT for the year 2008 by strictly considering the period in each year for which she has worked in a post for which the report has been recorded and calculate the points she would acquire on the basis of this calculation, which is based on the criteria adopted by the SCOS. Should she secure higher marks than the third and the fourth Respondents, she should be considered for posting as Member, CBDT. The aforesaid exercise should be undertaken within three months of the receipt of a certified copy of this order. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/