Central Administrative Tribunal - Delhi
Shri Laxman Das vs Union Of India Through on 2 September, 2011
Central Administrative Tribunal
Principal Bench
OA No.3823/2010, MA No.229/2011, MA No.1401/2011
with
OA No.4043/2010, MA No.3258/2010, MA No.1593/2011
New Delhi, this the 2nd day of September, 2011
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
I. OA No.3823/2010
Shri Laxman Das
Aged 58 years,
S/o Sh. Teck Chand
R/o D-1/45, Rabindra Nagar,
Near Khan Market,
New Delhi 110 003. Applicant.
(By Advocates : Shri S. K. Gupta with Sh. Vikram Rathi counsel
for Applicant).
Versus
Union of India through
1. The Secretary
Department of Revenue
Ministry of Finance
North Block,
New Delhi.
2. The Chairman
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue
North Block,
New Delhi.
3. Sh. A. K. Basu
4. Sh. M. C. Joshi
5. Ms. Hardeep Srivastava
6. Sh. V. K. Bhatia
7. Sh. Qaiser Shamim
8. Sh. Kamlesh Argal
9. Ms. M. Kacker
10. Ms. Dr. P. K. Saxena
11. Sh. Satyendra Singh Rana
12. Sh. S.K. Srivastava,
S/o Sh. B.S. Bhaskar,
R/o CRD II/9, Pandara Park,
New Delhi.
Private Respondents to be served through Respondent No.2 i.e. Chairman, Central Board of Direct Taxes, North Block, New Delhi 110 001.
. Respondents.
(By Advocates : S. R. Venkataramani, Sr. Advocate with Sh.
Aljo Joseph and Sh. Amit Anand counsel for Respondents in both the OAs.)
II. OA No.4043/2010
R. Bhardwaj
Aged about 58 years,
S/o (Late) Lt. Col. M. L. Bhardwaj
R/o Quarter No.D-I/90,
Bharti Nagar, Maharishi Raman Marg,
New Delhi 110 003. . Applicant.
(By Advocates : Mrs. Jyoti Singh, Sr. Advocate with Sh. Prabjit
Jauhar)
Versus
1. Union of India through
Secretary
Ministry of Finance
Department of Revenue,
North Block,
New Delhi.
2. The Chairman
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue
North Block,
New Delhi.
3. Shri R. K. Shrivastava
Chief Commissioner of Income Tax (Retd.)
C/o Chairman
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue
North Block,
New Delhi.
4. Shri A. K. Mohanty
Member, CBDT (Retired)
C/o Chairman
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue
North Block,
New Delhi.
5. Shri R. Prasad
Retired Member (CBDT)
Presently Member
Competition Commission of India
C/o Chairman
Competition Commission of India,
Hudco Vishala, Bhikaji Cama Palace,
New Delhi 110 066.
6. Sh. A. K. Basu,
CCIT
7. Sh. M. C. Joshi,
Member, CBDT
8. Ms. Hardeep Srivastava,
Member, CBDT
9. Sh. V. K. Bhatia
CCIT
10. Sh. Qaiser Shamim
CCIT
11. Sh. Kamlesh ARgal
CCIT
12. Ms. Manjari Kacker
CCIT
13. Ms. Dr. P. K. Saxena
CCIT
14. Sh. S. S. Rana
CCIT.
All private Respondents Nos.6 to 14 to be served through Respondent No.2 i.e. Chairman, Central Board of Direct Taxes, North Block, New Delhi 110 001.
. Respondents.
(By Advocates : Shri R. Venkataramani, Sr. Advocate with Sh.
Aljo Joseph and Shri Amit Anand)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
As the legal issues and facts are common to both OAs, with the consent of the parties, we are deciding both the OAs in the present order.
2. Both the Applicants have sought intervention of the Tribunal to quash the entire selection for the post of Member, Central Board of Direct Taxes (CBDT) for the year 2010-11. They have also prayed to quash the Select Panel prepared for the said post which they have alleged is in the total contravention of the Recruitment Rules dated 2.02.2006 (RR in short) and also the relevant Guidelines dated 8.06.2006 (Guidelines in short). For the purpose of brevity, we are extracting the relief sought for by the Applicant in OA No.3823/2010.
(i) to call for the records of the selection in question;
(ii) to quash and set aside the entire selection for the post of Member, CBDT for the year 2010-2011 which was prepared for the vacancies as arisen /arising from 31.05.2010 upto 31.03.2011 and resultantly also quash and set aside the Panel as prepared by the Committee of Secretaries (COS) as approved by the ACC for the year 2010-2011 and consequently, the appointment of Sh. M. C. Joshi, and Smt. Hardeep Srivastava as Member, CBDT (Anenxure A-1A), may be quashed and set aside;
(iii) to direct the Respondent No.1 to ignore the non reviewed ACRs of the applicant for the years 2001-02, 2002-03, 2003-04, 2004-05 and 2006-07 and also other ACRs as not reviewed (Annexure A-1) (Colly) based upon the law declared by this Honble Tribunal in cases of Sh. Balvinder Singh and Sh. Ashok Kumar Aneja and declare these ACRs as a nullity and in lieu thereof consider the earlier years reviewed and complete ACRs;
(iv) to direct the Respondent No.1 to review the minutes of meetings of the Committee of Secretaries for preparing the Panel for the posts of Members, CBDT for the year 2010-2011 and consider the ACRs of the applicant for the year 2009-2010 being the last recorded and available in terms of the Prime Ministers Guidelines dated 08.06.2006;
(v) to declare Sh. Milap Jain and Sh. A. K. Basu as not eligible in terms of the Schedule (2), Note 2 in Column (12), of the Recruitment Rules,
(vi) to quash and set aside the empanelment of Sh. V. K. Bhatia not meeting the essential qualifications of high professional merit and excellence and not having impeaccable reputation of integrity,
(vii) to direct making selection out of the correct consideration zone of 16;
(viii) to direct the Respondent No.1 that in case the applicant is found fit, to appoint the applicant from the date when his juniors have been appointed on the posts of Members, CBDT with all benefits like salary, seniority and other benefits.
(ix) to direct the Respondent No.1 to consider and fix the seniority of the applicant among the Members of the CBDT in the case of his getting selected in the order of his original inter se seniority in the parent IRS cadre and not as per the date of actual joining as Member CBDT.
3. We may give here brief facts of the cases as may be relevant for adjudicating the above issues raised by the Applicants. Shri Laxman Das, the Applicant in OA No.3823/2010 belongs to Indian Revenue Service of 1974 batch and has been working as Chief Commissioner of Income Tax, Delhi-II. Shri R. Bhardwaj, the Applicant in OA No.4043/2010, belongs to the Indian Revenue Service of 1974 batch and is working as Director General of Income Tax (BPR), A.R.A. Centre, Jhandewalan Extn., New Delhi. They are eligible to be considered for selection to the post of Member, CBDT as per the RR. As per the said RR, the post of Member is required to be filled up by way of selection by treating the post as ex-cadre post and as per the Column 12 in Schedule-2 no person with less than one year of residual service on the date of occurrence of vacancy for which the selection was made, would be eligible for consideration. It is the case of the Applicants that both of them were eligible as per the Recruitment Rules on the date of the occurrence of vacancy. It is averred that the Cabinet Secretariat issued the Guidelines dated 8.06.2006 approved by the Prime Minister for selection of the Chairman and Members of the CBDT. Both (i) the RR of 2006 and (ii) the Guidelines of 2006 hold the field to guide the competent authority for scrutiny and selection of a panel for filling up the vacancies of Member, CBDT which may be arising. It is alleged by the Applicants that the fact of eligibility of one year residual service of the officer(s) concerned as on the date of occurrence of vacancy has not been strictly followed as per the RR and the Guidelines by the Official Respondents while finalizing the Panel for the said posts. It is stated by the respondents that only those officers who passed the rigorous test of integrity were considered by the Cabinet Secretariat for preparing the Panel. The Committee of Secretaries examined 10 years recorded and available Annual Confidential Reports (ACRs ) of each candidate, prepared the gradings of the candidates and selected the requisite persons to fill up the said vacancies. It is the case of the Applicants that a representation was sent to the Respondents not to consider two officers (Shri A. K. Basu and Shri Milap Jain) who did not have 1 year of residual service on the date of occurrence of the vacancy i.e. 31.05.2010. Further, the applicant in OA No.3823/2010 submitted his representation dated 23.6.2010 complaining therein that the zone of consideration should have been only 16 but respondents considered 22 candidates. In his representation dated 23.7.2010, he requested to consider his ACR for the year 2009-10. One more representation dated 30.08.2010 was submitted requesting to ignore his ACRs for the years 2002-03 and 2006-07 being non reviewed ACRs for which reliance was placed on the judgment of this Tribunal in Shri Ashok Kumar Aneja versus Union of India (OA No.24/2007). He reiterated all his grievances in one more set of representations on 26/27.10.2010. As his grievances remained unattended, the applicant finding no other alternative has approached this Tribunal. The applicant in the other OA had submitted representations on similar grounds and as his grievances were not redressed he filed the instant OA.
4. In the OA No.3823/2010, during hearing on 22.12.2010, while considering the MA No.324/2010, this Tribunal ordered that any promotion made of the person last in the merit to the post of Member, CBDT shall be subject to the decision of the present OA (OA No.3823/2010). On the same day, MA No.3243/2010 was also considered and the following order was passed :-
Shri S.K. Srivastava has filed this Misc. Application to be impleaded as intervenor in the present OA. At this stage, counsel for applicant states that he has no objection on his intervention and to argue the matter. Misc. Application is disposed of accordingly. Shri S.K. Srivastava moved the Honble High Court of Delhi in WP(C) No.8766/2010 which was dismissed in following terms on 31.12.2010 :-
1. in an OA filed by Laxman Das raising grievances pertaining to his i.e. Laxman Dass ACRs considered for empanelment and promotion to the post of Member CBDT the petitioner has been allowed to intervene by raising issues wholly outside the scope of the Original Application filed by Laxman Das.
2. Be that as it may, for the purposes of the instant writ petition we may note that after allowing the petitioner to intervene in the OA filed by Laxman Das, interim relief prayed for by the petitioner that the Department be restrained from giving effect to the empanelment of Sh. V.K. Bhatia as a Member of the CBDT by issuing the necessary appointment order be stayed, has been declined but observing that any promotion made would be subject to the decision in the Original Application.
3. We are not impressed with the grievance of the petitioner, who we note was an intervener in the OA filed by Laxman Das, that pending hearing of the OA the empanelment of V.K. Bhatia be not given effect to in terms of the letter of appointment issued qua him. Needless to state, the post in question is a fairly important post and needs to be manned. Relevant would it be to note that the Tribunal has observed that the promotion would be subject to the orders which would be passed in the Original Application.
4. The writ petition is dismissed in limine. Further, during the hearing on 8.2.2011 on consideration of the MA No.403/2011 moved by the applicant, following orders were passed:-
Misc. Application has been filed by the Applicant for summoning of some records. We have heard the arguments. We direct the Respondents to bring the following records on the next date of hearing:
(i) Complete records of the COS for selection of Members, CBDT for the year 2010-2011.
(ii) Complete record of the Department of Revenue for selection of Members, CBDT for the year 2010-2011.
(iii) File of Shri V.K. Bhatia (Respondent No.6) by which, the Vigilance Clearance was issued by CBDT for the aforesaid empanelment.
We find that the rest of the records are irrelevant and need not be brought for the perusal of the Tribunal. On 6.4.2011 while considering the points raised in support of the application and the nature of controversy, the official respondents were directed to file an affidavit as to how many persons had obtained more marks than the applicant and were not yet empanelled or were not under consideration zone. The respondents complied with the above direction by filing the affidavit on 25.4.2011.
5. In respect of OA No.4043/2010 which was heard along with OA No.3823/2010, MA No.1593/2011 was moved by the applicant seeking interim order which was decided on 03.06.2011 in the following manner :-
MA 1593/2011This Misc. Application has been filed praying for an interim order restraining first and second respondents in the OA from holding any meeting of the Committee of Secretaries to consider appointment to the post of Member, CBDT for the panel year 2011-12 during the pendency of the present case or alternatively to direct the respondents to reserve one post of Member, CBDT for the applicant.
Challenge in the OA is to the selection for the post of Member, CBDT for the year 2010-11. By order dated 22.12.2010, this Tribunal had recorded the following order in Misc. Application no. 3242/2010:MA 3242/2010
This Misc. Application has been filed by the applicant praying that one post of Member, CBDT may be kept vacant. We are of the view that instead of dealing with the Misc. Application, it will be more appropriate to decide the case as expeditiously as possible. In that context, we give one positive date for filing reply, which may be filed two days before the next date fixed for hearing with an advance copy to the counsel opposite. Applicant may file rejoinder if he so chooses. The 2nd respondent shall ensure that unserved private respondents are served and they may also file their reply two days before the next date fixed for hearing with an advance copy to the counsel opposite.
Meanwhile any promotion made of the person last in merit to the post of Member, CBDT shall be subject to the decision of the present OA. Learned counsel for the applicant submitted that for the purpose of filling up the vacancies for the year 2011-12, the existing panel of officers as well as the new panel, which is to be formed would also be considered and final selection will be made on the basis of that. Since the previous panel was being carried forward, it was necessary to protect the applicant in the ensuing selection by granting his prayer in the MA.
However, since the challenge in the OA is only for the selection of the Member, CBDT for the year 2010-11 and since the applicant is adequately protected by order dated 22.12.2010, it may not be necessary to give any direction with regard to restraining the respondents from holding the meeting for the panel year 2011-12 or to reserve one vacancy for the applicant in that selection.
Misc. Application is dismissed.
6. Mrs. Jyoti Singh, learned Senior Advocate assisted by Shri Prabjit Jauhar, learned counsel appearing on behalf of the applicant in OA No.4043/2010 led the arguments in both cases, as she would submit that the issues were common with the applicant in OA No.3823/2010. Shri S.K. Gupta, assisted by Shri Vikram Rathi,learned counsel endorsed the contentions advanced by Mrs. Jyoti Singh.
7. The principal contention raised by Mrs. Jyoti Singh was that ineligible officers included in consideration zone prejudiced the applicants. She submitted that the Note 2 in Col. 12 of the Schedule to the Recruitment Rules dated 02.02.2006 were violated by the respondents when they considered and included Shri Milap Jain and Shri A. K. Basu (Respondent No.6) who had less than 1 year of residual service left for retirement on the date of vacancy. The date of two vacancies in CBDT Member post arose on 31.05.2010 for which one year period from the date of vacancy would end on 31.05.2011 but the date of superannuation of Shri Milap Jain and Shri A. K. Basu was 31.03.2011 and 30.04.2011 respectively. She would urge that the whole selection process having been vitiated, on this ground alone, the panel prepared for the CBDT members posts should be quashed. Her contention was that had these two persons not been included in the panel as they did not have one year residual service on the date of vacancy, both the Applicants would have been in the panel. Adjunct to the above contention, she submits that the zone of consideration was enlarged to 22 instead of 16 which was contrary to DOPT instructions No.22011/2/2002-Estt.(D) dated 06.01.2006. It is argued that number of vacancies for the year 2010-11 being six, as per the DOPT OM the size of the zone of consideration would be twice the number of vacancies+4 (6x2+4=16). The enlarged zone of consideration has not been explained by the respondents with any rationality. Hence the same should be treated as arbitrary.
8. Mrs. Jyoti Singhs second set of contention was on the ACRs. Her submission was that as per the PMO guidelines, it is mentioned inter alia that last ten recorded and available ACRs of each candidate would be considered for grading with 5 (five) points being assigned for Outstanding, 4 (four) for Very Good, 2.5 for Good and 0 (Zero) for Others with careful scrutiny of upgrading/downgrading if any. It is stated that the applicants ACR for the year 2009-10 was available on 15.09.2010 for consideration of the Committee of Secretaries (COS) which met for the first time on 1.10.2010. Had the said ACR been considered the applicant would have got higher marks and consequently higher rank in the panel. Non-consideration of the 2009-10 ACR, Mrs. Singh contends, is violative of Para 2 (g) of PMO Guidelines. It is further urged that un-reviewed ACR for the year 2004-05 considered by COS is contrary to law. Reliance was placed on the judgment of this Tribunal in the case of (i) Balvinder Singh versus Union of India [OA No.253/2009] and (ii) Ashok Kumar Aneja vs. Union of India [OA No.24/2007]. During the hearing, applicants ACRs for various years were referred to by the learned counsel. In case of ACR for the year 2001-02 though the majority of attributes in ACR, the applicant has been rated as Very Good but in final grading the Reporting Officer has rated him as Good. Arguing that the said ACR should be rated as Very Good, she placed her reliance on the Honble Apex Court Judgment in case of S. B. Bhattacharya vs. S. D. Majumdar & Ors [AIR 2007 SC 2102] as the Reviewing Officer has rated him as Very Good overruling the Good grading of Reporting Officer. The Applicant feels frustrated as his representation to upgrade the grading in the said ACR was turned down by the competent authority without proper analysis. It is contended that his ACR for the year 2004-05 having not been reviewed should be ignored. In respect of ACR for the year 2006-07, his detailed representation has been considered and rejected. The ACR was graded as Outstanding by the Reporting Officer but was downgraded by two notches to Good by the Reviewing Officer. Such downgrading has been termed as illegal and arbitrary. In view of her above contentions, Mrs. Jyoti Singh pleads that both OAs should be allowed.
9. On receipt of notice from the Tribunal, the 1st and 2nd respondents have submitted the reply affidavit. Shri R. Venkataramani learned Senior Counsel assisted by Shri Aljo K. Joseph and Shri Amit Anand, learned counsel led the arguments on behalf of the official respondents. Shri V. K. Bhatia, respondent No.9 in OA No.4043/2010 and respondent No.6 in OA No.3823/2010 has filed his reply affidavit in refuting the grounds raised against him by the applicant. Despite service of notice on the other private respondents in both OAs, neither the reply affidavits were filed by them nor they were represented by the counsels in the hearing.
10. Shri Venkataramani, learned counsel contends that the process of selection including various stages involved have been meticulously adopted after due application of mind to the provisions of the Rules, the requirements of service, and the guidelines issued after approval by Prime Minister. It is clarified that the said guidelines have filled up the gaps in the rules and inter alia provides the details and norms to be followed in the selection process. The requirement of Note 2 to the Column 12 of the RR has been duly regarded by bringing together various steps and procedures in the process of selection into a workable framework. No rights of any of employee have been infringed as all possible eligible candidates with one year service as Chief Commissioner of Income Tax have been provided with the opportunity of being considered for selection.
11. Shri Venkataramani referring to the submission of the applicants regarding the non consideration of the ACR for year 2009-10 submits that same has been rather misconceived. He clarifies that the Paras (f) and (g) of the guidelines taken either literally or by implication do not warrant such submission. The requirement of equality of opportunity is met with by consideration of equal number of ACRs. He explained the reasons for which the meeting of the selection committee was delayed which could not have been the basis for consideration of the ACR for the year 2009-10 only for the applicants. Uniformity has been adopted with reference to the financial year commencing from 1st April and the last date stipulated for receipt of applications being 31st December, 2009.
12. He further contends that the submissions in regard to review of alleged incomplete ACRs are also based on unsound logic. The appointment in question is by selection: all the fine dimensions of mere promotion by seniority, and where supercession on merit on the basis of ACR may be illegal are alien to the appointments in question and the selection procedure devised for that purpose. He reiterates that the procedure followed in the selection process is in conformity with the prescribed rules and guidelines. It is further submitted that all eligible officers including both the applicants have been duly considered and no further right is available to them. This Tribunal, therefore, should not interfere with the selection process. He, therefore, pleads for dismissal of both OAs.
13. Having heard the contentions of the rival parties, with the assistance of their counsels we perused the pleadings. The official respondents placed before us the Cabinet Secretariat File No.3/5/2010-CS(A) which has been gone through.
14. The main controversy is legal in nature. Issue is : whether the panel of 9 persons prepared for the appointment to the post of Member, CBDT conforms to the Recruitment Rules and Guidelines issued thereon. It is to note that by the Notification dated 02.02.2006, the Central Board of Direct Taxes (Chairman and Members) Recruitment Rules, 2006 came into force. These Rules, having been framed under the proviso to Article 309 of the Constitution of India, has the statutory force. The Rules envisage the post of Member, CBDT to be selection post. Rule 3 of the said RR prescribes the method of recruitment, age limit, qualifications and other matters relating to the said posts as specified in Columns (5) to (14) of the Schedule. Column 12 and 13 of the said Rules read as follows:-
In case of recruitment by promotion/deputation/absorption, grades from which promotion/deputation/absorption to be made.
(12) If Departmental Promotion Committee exists, what is its composition.(13)
Deputation/absorption :
(i) Officers of the Central Government appointed on a regular basis in the grade of Rs.22,400- 24,500/-.
AND possessing the following essential qualifications :-
(i) Having at least 15 years of experience in administering and running the direct tax administering and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Direct Taxes : (ii) Having high professional merit and experience ; and
(iii) Having impeccable reputation of integrity.
Note: 1. The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
2. No person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration.
Not applicable ;
However, a Selection Committee with the following composition shall recommend selection of eligible officers to be appointed to this post by the Central Government.
(i) Cabinet Secretary Chairman;
(ii) Principal Secretary to Prime Minister Member
(iii) Home Secretary Member
(iv) Secretary (Personnel) Department of Personnel and Training Member
(v) Secretary, Department of Revenue Member Note :
1. The Cabinet Secretary may co-opt Chairman, Central Board of Direct Taxes for Selection Committee meetings.
2. The Selection Committee may devise ways to assess candidates.
The Cabinet Secretariat in its Confidential Guidelines No.3-3/2006-CS(A) dated 08.06.2006 issued guidelines for selection of Chairman and Members of CBDT and CBEC which are relevant for the present OA. Paragraph 2 of the said Guidelines is reproduced below :-
2. The Prime Minister has approved that selection for appointment to the posts of Chairman and Members of the CBDT and CBEC shall henceforth be regulated by the following Guidelines:
circulation of the vacancies for the position in CBDT/CBEC shall be limited to the CBDT/CBEC and ITAT/CESTAT;
in order to save time, instead of circulating each vacancy separately, a panel valid for one year (calculated on the basis of number of anticipated vacancies x 1.5 rounded to the nearest whole number) will be prepared. After ACC has approved this panel, selection will be made strictly in the order given in the panel, with the approval of the Finance Minister. In case it is felt that a deviation to the ACC for approval with the occurrence of the Finance Minister;
If a panelist whose turn has come for Member has less than one year of residual service on the date of occurrence of vacancy, he will be passed over without any further procedure;
However, if the vigilance status has changed, the matter will be referred to the Selection Committee, which will give its recommendation to the Finance Minister of his approval;
Since there are a few vacancies already, the first panel may be made valid for all existing vacancies and those that are anticipated upto 31st March, 2007, Thereafter panels will be made for vacancies anticipated to arise in one financial year. The panels will be kept secret and ACC procedure shall be considered final, at any point of time only in respect of panelists above the last one appointed;
In order to have a rigorous time of integrity, a two tier screening system may be put in place. First screening of candidates would be on the basis of their suitability from the integrity point of view. The candidates shall be assessed keeping in view the requirement of impeccable reputation for integrity. The input for this screening by the Selection Committee would be vigilance status reports details of past/continuing panelty proceedings, complaints, whether the candidate is or has ever been on the Agreed List and the report of the CVC;
In order to ensure professional merit and complete transparency and predictability is maintained in selection, a points system as in the case of Railways may be introduced. Candidates short-listed for further consideration after the first screening would be graded on the basis of ACRs. Lst ten recorded and available ACRs of each candidate would be considered for grading with 5 (five) points being assigned for Outstanding, 4 (four)for Very Good, 2.5 for Good and 0 (Zero) for Others with careful scrutiny of upgrading/Downgrading if any;
the CBDT/CBEC (Transaction of Business) Rules, 1964 may be suitably amended to bring them in the line with the provisions of the Recruitment Rules notified on 2.2.2006.
the overlap in the provisions of the Recruitment Rules relating to the field of selection to the posts of Chairman in CBDT/CBEC may be removed;
there may not be any necessity for consideration with the UPSC once the procedure laid down under the Recruitment Rules is fully adopted. Consequent to the above guidelines, it is noticed that one specific guideline was issued by the Cabinet Secretariat dated 13.07.2006 which being relevant, is reproduced below:-
2. The Prime Minister has approved that the Guidelines on the subject, as conveyed vide the above communication, be amended to the effect that for empanelment for the posts of Members in the Central Board of Direct Taxes/Central Board of Excise and Customs, Officers of the Indian Revenue Service (Income Tax)/Indian Customs and Central Excise Service will require to have at least one years service in the posts of Chief Commissioners of Income Tax/ Chief Commissioners of Customs and Central Excise or equivalent in the cadre, as on 1st April of the year for which the panel is prepared.
15. It is noted that the Para 2 (b) of the Guidelines prescribes to prepare a Panel valid for one year calculating the anticipated vacancies arising in the year. Financial Year (1st April to 31st March) has been adopted for the purpose of drawing up the Panel. Para 2 (e) also provides that panels will be made for vacancies anticipated to arise in one financial year. In order to meet the exigencies, 1 = times of the vacancies rounded to the nearest number, the said panel for the year is to be prepared. Further, a combined reading of the Para 2 (b) and 2 (c) manifests that it is not necessary to prepare a panel for each vacancy but if a panelist whose turn has come for a Member and he has less than one year of residual service on the date of occurrence of the vacancy, he will be passed over. That means, he will not be offered appointment even though he may be in the panel drawn for the year.
16. A close and careful reading of Para 2 (e), (f) and (g) provides clarity on the issue of period up to which the ACRs are to be considered. For the financial year a panel is to be prepared. Para 2 (a) prescribes that last ten recorded and available ACRs of each candidate, would be considered for grading. This provision read with the advertisement which indicated the last date of receiving application as 31.12.2009 for drawing up the Panel for 2010-2011, ACRs available as on 31.12.2009 would be considered. Normally, the Reporting Officer initiates the ACR for the financial year within 3 months from the completion of the financial year. Thus, for the present case, the last available recorded ACR would be 2008-09. The argument of the counsel for applicants is that on the 1st meeting of the COS all recorded and available ACRs should have been considered. The Counsel for the respondents repelled such a view stating that cut off date for the purpose being 1st April, the ACRs up to 2008-09 would be available for consideration of the COS which would suggest that ACRs available up to 31.12.2009 would be the right approach. There is logic and rationality in this contention advanced by the respondents counsel. We agree with the same.
17. We may consider the issue of crucial date and cut off date which are relevant and pertinent to determine the controversy in the case. (i) what are the crucial dates on which the eligibility of the competing candidates are to be considered for the post and (ii) what is the cut off year and crucial date up to which the ACRs of the candidates is to be considered for the purpose. One must accept that such a crucial date if fixed in a manner in the statutory rule will be binding on the parties. If the guidelines envisage cut off or crucial date, in the absence of the provision in the rule, the same will supplement and guide the respondents. In the absence of any provision in the rule and the executive instructions or if there is any confusion or alternative possibilities, the Tribunal can provide purposive interpretations and constructions in order to avoid hardship in all conceivable cases. It must be understood that whatever date is fixed, some will fall on the right side of the date and some persons will fall on the wrong side of the date. That cannot make the crucial date or cut off date arbitrary unless the date is so wide off the mark as to make it wholly unreasonable. This view was expressed by the Honourable Supreme Court in Union of India versus Parameswaran Match Works [(1975) 1 SCC 305] and Ami Lal Bhat (Dr) versus State of Rajasthan [(1997) 6 SCC 614] in respect of fixation of cut off dates. In a catena of decisions of the Honourable Apex Court it has been held that the crucial date and cut off date can be fixed by the executive authority keeping in view many administrative and other attending circumstances. It also held the view that fixing such dates comes within the domain of the executive authority and the court should not normally interfere with such fixation of a date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. We draw support from the dicta of Honble Apex court in the case of State of Punjab versus Amar Nath Goyal (AIR 2006 SC 171). Further, in large number of judgments of Honble Apex Court viz. D. G. Gouse and Co. versus State of Kerala [(1980) 2 SCC 410]; State of Bihar versus Ramjee Prasad [(1990) 4 SCC 212] it has been held that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.
18. As per the RR, all Chief Commissioners of Income Tax or equivalent of the Central Board of Direct Taxes having essential qualifications, namely at least 15 years of experience in administration and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of CBDT etc. shall be eligible for consideration for Selection for the post of Member, CBDT. Note 2 below the Column 12 of the RR stipulates another important eligibility condition that no person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. The RR-2006 also provide that selection is to be made by the Selection Committee under the Chairmanship of the Cabinet Secretary and comprising of the Principal Secretary to Prime Minister, Home Secretary, Secretary (Personnel) and Secretary, Department of Revenue. It is noted that consequent to RR-2006. Guidelines for the Selection Committee were issued with the approval of the Prime Minister. As per the guidelines, instead of circulating vacancy, a panel for a year is to be prepared calculating on the basis of number of anticipated vacancies X 1.5 rounded to the nearest whole number. It is further noticed that the official respondents adopt the procedure of getting approval of the ACC and the selection and appointment is made in order given in the panel with the approval of the Finance Minister. In case it is considered necessary to deviate from the panel, the same is sent with full justification to the ACC for approval with the concurrence of the Finance Minister. If a panelist whose turn has come for appointment as a Member and he has less than one year of residual service on the date of occurrence of vacancy, he will be passed over. It is noticed that the provisions of para (e) of the guidelines read with Note 2 to the Column 12 of the RR that the preparation of the panel is an important process leading to the appointment. We also find that the official respondents have taken into account the dates of occurrence of vacancies, for the panel preparation ahead of the financial year in order to facilitate the selection process. It is further found that the panel is prepared on financial year basis, for consideration for inclusion in the panel, the crucial date for deciding the eligibility being 1st April of the year for which panel is prepared irrespective of the closing date for submission of application or the date of holding of the meeting of the Selection Committee. In our considered opinion that cut off date for deciding eligibility with respect to age, educational qualification, qualifying service experience is adopted for all Selections/Appointments/Recruitments by all Government agencies, and as such adopting 1st of April for the financial year is right approach subject of course to the dates prescribed in RR like the date of occurrence of vacancy in the financial year.
19. In the background of the above conclusion arrived at, we notice that pursuant to the circulars calling for application and willingness for being considered for selection for appointment to the post of Member, CBDT during the year 2010-11, 40 officers submitted their willingness. The official respondents having considered those applications and taking into account, one year service in the post of Chief Commissioner of Income Tax/ equivalent posts in the cadre and minimum residual service of 1 year as on 1st April of panel year i.e. 1/4/2010, found that there were 26 officers eligible to be examined. However, it is informed that the selection for the panel preparation for the year 2010-11 could not be finalized 1st October, 2010 as the One Man Committee (Shri P.G. Mankad) was reviewing the selection in view of the representations of some of the applicants. Six vacancies were anticipated during the year 2010-11 (two vacancies on 31.05.2010, one vacancy on 31.12.2010; two vacancies on 28.02.2011 and one vacancy on 31.03.2011) on account of vacancies arising of various superannuation taking place on the respective dates. Hence, as per the Guidelines, against these six anticipated vacancies, a panel of 9 officers was to be prepared and the zone of consideration for Selection Committee was fixed as 22. The crucial date of 1st April, 2010 was adopted by the Official respondents for deciding eligibility (for inclusion in the panel) on two counts viz. (i) one year service in the grade of Chief Commissioner/equivalent and (ii) for reckoning the residual service of one year. The Officers who became eligible on both crucial dates should be considered for selection and their vigilance status, impeccable integrity, ACR grading etc. were assessed.
20. Crucial date to draw a panel for the entire financial year may be 1st April but for the consideration of the eligible candidates and subsequent appointment definitely the RR prescribes the date of vacancy as the crucial date which condition is mandatory. Those who are in the panel but do not have one year of residual service on the date of vacancy, such empanelled persons cannot be offered appointment as Member, CBDT. We are of the opinion that out of two crucial dates, one is for administrative convenience i.e. 1st April, but the second crucial date i.e. date of the vacancy is statutory in nature and mandatory for compliance of the RR prescription. It is the respondents to ensure that officers being considered are eligible in respect of both crucial dates.
21. Our close and careful scrutiny of the file placed before us revealed that the Department of Revenue carried out the simultaneous exercise for the selection to the posts of (i) Member, Central Board of Direct Taxes, and (ii) Member, Central Board of Excise & Customs as the empanelment process is generally carried out annually. The first meeting of the Selection Committee was held on 23rd August, 2010 to discuss the proposal of the Department of Revenue for empanelment for the year 2010-11, where the Department of Revenue indicated that a One Man Committee set up under Shri P. G. Mankad, former Finance Secretary, to look into selection process for appointment in the CBDT/CBEC submitted its recommendations which proposed determination of panel size and other issues. While the Selection Committee agreed with the suggestion regarding the panel size, it did not agree with the change in the system of weighted average of ACRs. The Selection Committee again met on 1st October, 2010. It was informed that the decision of the Selection Committee was placed before the Finance Minister, who directed that the background behind the proposed change must be brought to the notice of the Selection Committee for properly appreciating the suggestion. It was informed that the annualized method was being followed consistently in DPCs. The number of months for which an ACR relates to, as shown in the ACR itself, was quite often found to be different from the actual number of months for which the ACR should have been written. Mankad Committee had made a recommendation to abandon the weighted average method in favour of the annualized method. It was informed that neither in the Recruitment Rules nor in the PMO Guidelines there was any indication as to how the ACRs should be graded. This was left entirely to the Selection Committee to decide, as per the RR. After considering all aspects, the Selection Committee approved the proposal of the Department of Revenue to evaluate the ACRs on the basis of the annualized method as was being done in DPCs. Following three sets of changes were adopted for 2010-11 Panel and thereafter; (i) monthly weighted average calculated i.e. period mentioned on the ACR earlier taken into account was changed to the ACR taken for the whole year on the annualized method; (ii) In the case of multiple ACRs in one year, non specific gradings and unjustified gradings the principles to be followed were laid down. Earlier, the grades at each level (Reporting, Reviewing and Accepting) used to be taken into account by averaging out the gradings. This was changed w.e.f. from 2010-11 panel. The final grade only was taken into account where it was upgraded or downgraded with justification. (iii) Prior to 2010-11, while determining the panel size, apart from the vacancies in the Boards, the likely vacancies outside the Board (Ombudsman, AAR etc.) used to be taken into account. This was changed and the vacancies arising outside the Boards were not taken into account to draw up panel from 2010-11. The Selection Committee also finalized the principles to be followed in the evaluation of ACRs. The Committee was further informed by the first respondent that 26 officers who satisfy the minimum qualifying criteria as per the Recruitment Rules and the PMO Guidelines were to be considered in detail by the Selection Committee. The Committee was informed of the provisions of the RRs and the PMO Guidelines for selection for appointment to the posts of Member of the Central Board of Direct Taxes.
22. The Committee considered the names of the senior most 22 officers. Four officers were not considered. The CVC has denied vigilance clearance in respect of Shri B. R. Sondhi against whom major penalty proceedings are pending and the Committee decided that he was not clear from the vigilance angle. In regard to Shri R. N. Tripathi, V. K. Bhatia, Akhilesh Prasad and K. P. Singh, the Central Vigilance Commission observed that certain matters were pending/under process in respect of these officers and advised that the factual position in respect of the impugned matters concerning them should be placed before the Competent Authority while it would decide the suitability of these officers for selection. The Committee has gone through the details of these pending matters and noted that (a) the CVC did not deny the vigilance clearance to these officers, and (b) no disciplinary action was pending or contemplated against them. The Committee, therefore, found that it would not be correct to exclude them altogether from the panel on the ground of these pending matters. If the average gradings justify their inclusion in the panel, then they must be included, subject to the condition that appointment as Member can be made only if they are clear from the vigilance angle at the time of arising of vacancy of Member. The Selection Committee arranged 22 officers in descending order of their available ACR gradings and the first 9 persons were selected for inclusion in the panel. Once the top 9 candidates had been so shortlisted, they were again rearranged according to their inter se seniority, as per their IRS seniority list. Thus, after taking into account their service records, the annualized ACR gradings and also the relevant reports about their vigilance status and integrity, the Committee recommended the empanelment of the following nine officers belonging to the Indian Revenue Service (Income Tax), in the order of the names as indicated below, for appointment as Member in the Central Board of Direct Taxes against the vacancies arising in the year 2010-11, which was approved by the Appointments Committee of the Cabinet.
A. K. Basu, 1974 M. C. Joshi, 1974 Hardeep Srivastava, 1974 V. K. Bhatia, 1974 Qaiser Shamim, 1974 Kamlesh Argal, 1974 M. Kacker, 1974 Dr. P. K. Saxena, 1975 Satyendra Singh Rana, 1975
23. The respondents took the ground that the eligibility of the persons as on 01.04.2010 was taken into account to finalise the zone of consideration. As on 01.06.2010, the date on which the first two vacancies arose, two officers (Shri Milap Jain and Shri A. K. Basu) were not having the residual service of one year but Shri A. K. Basu, as per respondents, had one year residual service as on 01.04.2010. As on 31st December, 2010, i.e. the date of the subsequent vacancy, 7 officers (A. Prasad, Qaiser Shamim, Kamlesh Argal, Kalyan Chaudhury, Mukesh Bhanti, Anjani Kumar and K. P. Singh) were not having the one year residual service. It was argued by the counsel for the official respondents that if the argument of the applicants and the statutory RR eligibility condition are to be followed, and the officers having the residual service of one year on the date of occurrence of the vacancy are to be considered for inclusion in the panel, all these 9 officers are to be excluded from the zone of consideration. In their place, another 9 officers should have been included in the zone of consideration. That is the interpretation of the statutory provision. This would entirely change the complexion of the panel. Let us assume that one or more unanticipated vacancies arise prior to the date (s) on which these 9 officers had fallen short of the one year residual service, may become eligible, but it must be noted that the unanticipated vacancies arise due to voluntary retirement or punishment of removal/dismissal, or death etc. Panel is not prepared for such contingencies. The empanelment process as stated in the RR is meant for the anticipated vacancies. We, therefore, do not accept the argument of the Official respondents that the panel was also prepared to meet the contingencies of unanticipated vacancies, which may not arise at all.
24. The learned counsel for the respondents in one of his contentions submitted that the relevant date for applying the eligibility conditions in the present case was 1 April, 2010 as the financial year wise panel was prepared and selection was not made vacancy wise. He urged that it would be arbitrary to shift this date to the date of the meeting of the Selection Committee, which is 1 Oct, 2010 or the date on which the 1st vacancy actually arose, which is 31 May, 2010. Though, in our above analysis, we have accepted the 1st April as one of the crucial dates for administrative convenience to draw up a Panel for the financial year and to consider ten years of ACRs available on that date, but the crucial date prescribed in the statutory RR cannot be ignored or even violated. By simply choosing the date of the Selection Committee meeting appropriately, it will be possible to disqualify candidates and consequently include others lower down in seniority, thereby changing the composition of the zone of consideration and even the final panel altogether. This will be quite arbitrary. A careful reading of the RR and the Guidelines, we note that there are 4 major eligibility conditions (1) minimum of one year of residual service on the date of vacancy; (2) minimum 1 year qualifying service as Chief Commissioner; (3) 15 years experience in the administration and running of the direct tax administration and (4) out of the said 15 years, at least 10 years experience in the field formations of CBDT. In case of eligibility conditions at (2), (3) and (4) and considering the recorded and available ACRs, 1st April would be the crucial date, but with regard to the eligibility condition at (1) above, the RR being very specific, the eligibility to have minimum one year of residual service has to be adopted even to consider for empanelment. Thus, the clause given in the Guidelines dated 8.6.2006 though clarifies for deletion of such names from the panel, in our view, the said provision of the guideline may meet the requirements of a panel prepared for the year 2006-07 but will not meet the explicit provision in the RR for the subsequent years. If the guidelines are to be followed the 1st respondent was duty bound to carry out amendments in the RR. Though more than 4 years have passed, no amendment of RR has been done. Thus, we are of the considered opinion that the official respondents have faulted in including the names of such persons in the zone of consideration who are not eligible as per condition (1) above i.e. minimum of one year of residual service on the date of vacancy. RR is sacrosanct and the provisions on the eligibility criteria to be taken into account, more specifically, one year residual service on the date of occurrence of vacancy has to be mandatorily adopted.
25. We have prepared three tables below to simplify the position of the empanelled persons. These tables are based on the information furnished in the respondents records. We tabulate below the relevant information on each of the empanelled person:
Sl. Name year of Date of Birth Date of Date of appointment No. IRS retirement as Chief Commissioner 1. A. K. Basu 1974 01.04.1951 01.04.2011 04.05.2005 2. M. C. Joshi 1974 25.01.1952 31.01.2012 04.01.2007 3. Hardeep Srivastava 1974 28.01.1952 31.01.2012 04.01.2007 4. V. Bhatia 1974 03.12.1951 31.12.2011 04.01.2007 5. Qaiser Shamin 1974 05.06.1951 30.06.2011 04.01.2007 6. Kamlesh Argal 1974 22.08.1951 31.08.2011 17.09.2007 7. M. Kacker 1974 17.04.1952 30.04.2012 30.03.2007 8. Dr. P. K. Saxena 1975 21.05.1953 31.05.2013 01.01.2008 9. Satyendra Singh Rana 1975 30.03.1953 31.03.2013 01.01.2008
Six anticipated vacancies were due to arise on the dates indicated below. The following table provides the details on the vacancies:
Vacancy No. Who retires? When retires Vacancy date 01 Sh. Naimuddin 31.05.2010 01.06.2010 02 Sh. Narinder Singh 31.05.2010 01.06.2010 03 Sh. S. S. N. Moorthy 31.01.2011 01.02.2011 04 Sh. C. S. Kahlon 28.02.2011 01.03.2011 05 Sh. D. Shankaron 28.02.2011 01.03.2011 06 Sh. Sudhir Chandra 31.03.2011 01.04.2011
As per the above table, the sixth vacancy should have come for the next financial year (2011-2012). Be that as it may, we will analyse the above two tables in the following table to find whether any of them is not eligible for consideration on the date of occurrence of vacancy.
Sl. Name of the Date of Number of Eligible No. empanelled retirement months of for consideration Persons residual service under Note 2 of Vacancy Column 12 of RR No. Months for which vacancy 01. A. K. Basu 01.04.2011 01 11 Not eligible 02. M. C. Joshi 31.01.2012 01& 20 Eligible for 1st 02 and 2nd 03. Hardeep Srivastava 31.01.2012 01& 20 Eligible for 1st, 02 2nd and 3rd 03 13 Other less than 12 months 04. V. K. Bhatia 31.12.2011 01&02 19 Eligible for 1st, 03 12 2nd & 3rd Other less than 12 months 05. Qaiser Shamim 30.06.2011 01&02 13 Eligible for only Others less than 1st and 2nd 12 months 06. Kamlesh Argal 31.08.2011 01&02 15 months Eligible for 1st and Others less than 2nd 12 months 07. M. Kacker 30.04.2012 All vacancies more than Eligible for all 12 months vacancies 08. Dr. P. K. Saxena 31.05.2013 All vacancies more than Eligible for all 12 months vacancies 09. Satyendra Singh Rana 31.03.2013 All vacancies more than Eligible for all 12 months vacancies
26. The above tabular analysis undisputedly discloses that Shri A. K. Basu (empanelled at Seniority No.1) the private respondent having less than one year of residual service on the date of 1st vacancy was not even eligible for consideration as per RR. His name should not have been brought even in the zone of consideration. The 1st respondent has used 1st April, 2010 to show his residual service for the 1st vacancy as 13 months. Question arises, by doing so, can he ignore the RR? Of course, he cannot. Thus, he has not properly guided the Selection Committee as a result of which the selection process to this extent has been vitiated. Therefore, we are of the considered view that the empanelment of Shri A. K. Basu is de hors the RR and hence illegal.
27. Let us proceed further in the analysis. If the 1st vacancy goes to Shri M. C. Joshi, 2nd and 3rd vacancies would have gone to Shri Hardeep Srivastava and Shri V. K. Bhatia respectively. In such event, Shri Qaiser Shamim and Shri Kamlesh ARgal who are eligible only for 1st and 2nd vacancies, though they are in the panel, they would have been passed over as per RR and guidelines. In such a position three other panelists who are eligible for all vacancies, would have been entitled for 4th, 5th and 6th vacancies.
28. From the above facts and for the above reasons, the official respondents have committed illegality in empanelling Shri A. K. Basu for which we quash and set aside the panel qua Shri A. K. Basu. All others in the Panel may be entitled to be considered for the vacancies for which they are eligible. In respect of Shri V. K. Bhatia, we note the observation of the Selection Committee as narrated by us in Paragraph 22 within. The stand taken by the Selection Committee is legally sustainable. As Shri Milap Jain is not in the Panel, we are not giving our opinion on him, though the applicants have raised issues on him in the OA.
29. With regard to the grounds of non-reviewed ACRs to be ignored and the down graded ACRs to be properly considered, it must be noted that the posts are to be filled up by selection and there is no benchmark prescribed for consideration. The Guidelines provide grading weightage in a declining order i.e. 5 for Outstanding, 4 for Very Good, 2.5 for Good and 0 for others. This type of grading system has been uniformly applied for all the candidates by the respondents and points scored by each of the candidates has been calculated on the annualized basis meticulously. At this stage, it may not be feasible, not even practicable and proper to open the issue of below benchmark ACRs and downgraded ACRs, as in our considered opinion the prescribed grading system has been neutral to all candidates and designed in such a manner that the gradings assigned by the authorities are taken into account in the point scores arrived for each candidate. We do not find any ground to open the issue to recalculate the scores.
30. We have also perused the statement where each of the 22 candidates have been assigned marks on the basis of the available recorded ACRs of 10 years. The last year being 2008-09, we find there is no discrimination on this score among the applicants and private respondents. Thus, the claim to consider applicants ACRs for 2009-10 is not admissible. The score of Shri Laxman Das and Shri R. Bhardwaj being 87 and 74 respectively, the chance of Shri Bhardwaj is rather remote but Shri A. Prasad having 89 and Shri Laxman Das with 87 marks need to be considered by the Review Selection Committee to consider them for the panel year 2010-2011. It is seen that once Shri A. K. Basu is outside the zone of consideration, the case of Shri A. Prasad and Laxman Das may deserve to be considered for the panel. Shri Laxman Dass date of retirement is 31.07.2012 whereas Shri A. Prasads date of retirement is 30.09.2011. In case of Shri A. Prasad though he may be eligible to be considered for two vacancies arising on 1st of June, 2010 but he will not be eligible to be considered for the subsequent vacancies when his residual period of service will be less than one year. As analysed within, there are candidates with higher scores who would get appointment in the first and second vacancies whereas in case of Shri Laxman Das, he would be eligible for all the vacancies arising in the year 2010-2011 as he will be retiring on 31.07.2012. In these peculiar circumstances of the case, applicant Laxman Das would be entitled to be considered by the Review Selection Committee for empanelment. In case he gets empanelled in the Review Selection Committee, he would get his seniority vis a vis other panelists in the panel for the year 2010-2011. While taking into account the case of other applicant Shri R. Bhardwaj, he has secured only 74 marks whereas there are large number of candidates who have secured much higher mark and thus his case may not come up for consideration on the basis of the scores that he has obtained.
31. Taking into account the totality of facts and circumstances of the case, we are of the considered opinion that the consideration and selection of Shri A. K. Basu as Member-CBDT is illegal and the panel qua Shri A. K. Basu is quashed and set aside. We, further direct that the Review Selection Committee shall be convened to consider the application of Shri Laxman Das for the post of Member-CBDT within a period of three months from today.
32. In terms of the above directions, OA No.3823/2010 is allowed and OA No.4043/2010 is dismissed. In the typical nature of the case, we order the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/