Central Administrative Tribunal - Delhi
Shri Brijesh Gupta vs Union Of India Through on 25 May, 2012
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.4275/2011
and
OA No.08/2012
Reserved on: 09.05.2012
Pronounced on: 25.05.2012
Honble Mr. Justice S. C. Sharma, Acting Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
I. OA No.4275/2011
Shri Brijesh Gupta
Chief Commissioner of Income Tax
Room No.101, 1st Floor,
New Central Revenue Building,
Statue Circle, Bhagwan Das Road,
Jaipur 302 005. .. Applicant
(By Advocate: Shri Anshum Jain)
Versus
1. Union of India through
Secretary,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi.
2. The Chairman
Central Board of Direct Taxes,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi.
3. Shri S. S. Rana
Member, CBDT,
North Block, Rajpath,
New Delhi.
4. Shri K. Madhavan Nair
Member, CBDT,
North Block, Rajpath,
New Delhi.
5. Shri S. C. Jaini
Member, CBDT,
North Block, Rajpath,
New Delhi.
6. Smt. Sudha Sharma
Director General of Income Tax (Vigilance),
1st Floor, Dayal Singh Public Library Building,
Deen Dayal, Upadhyaya Marg,
New Delhi.
7. Shri R. K. Tewari
Chief Commissioner of Income Tax,
C.R. Building, IP Estate,
New Delhi.
8. Shri S. S. Bajpai
Director General of Income Tax (Inv.)
Aayakar Bhawan, 5, Ashok Marg,
Lucknow.
9. Shri Vijay Sharma
Chief Commissioner of Income Tax
Central Revenue Building,
Birchand Patel Marg,
Patna.
10. Shri S. Pradhan
Additional Secretary,
Department of Disinvestment,
Ministry of Finance, CGO Complex,
New Delhi. . Respondents
(By Advocates : Shri R. Venkataramani, Senior Advocate
with Ms. Rinchen O. Bhutia and Sh. Aljo K.
Joseph)
II. OA No.08/2012
T. B. C. Rozara
S/o Sh. B. Sanghuma
R/o D-5, Tower-1,
New Moti Bagh,
New Delhi 110 023.
Working as
Chief Commissioner of Income Tax-III, Delhi
C. R. Building, IP Estate,
New Delhi 110 002. . Applicant
(By Advocate: Shri A. K. Behera)
Versus
1. Union of India through
Secretary, Department of Revenue,
Ministry of Finance,
North Block, New Delhi.
2. Shri S. C. Jaini
Member, CBDT,
North Block, Rajpath,
New Delhi.
3. Smt. Sudha Sharma
Director (Vigilance),
1st Floor, Dayal Singh Public Library Building,
Deen Dayal, Upadhyaya Marg,
New Delhi 110 002.
4. Shri R. K. Tewari
CCIT-Delhi-IV, R. No.325,
C.R. Building, IP Estate,
New Delhi.
5. Shri Vijay Sharma
CCIT, Patna,
Central Revenue Building,
Birchand Patel Marg,
Patna.
6. Shri S. S. Bajpai
D.G.I.T. (Investigation, Ayakar Bhawan Annexe)
5, Ashok Marg,
Lucknow 226 001.
7. Shri Siddhartha Pradhan
Additional Secretary & CVO,
Department of Disinvestment,
Ministry of Finance,
Room No.520, 5th Floor,
Block No.14, CGO Complex,
Lodhi Road,
New Delhi. . Respondents
(By Advocates : Shri R. Venkataramani, Senior Advocate
with Ms. Rinchen O. Bhutia and Sh. Aljo K.
Joseph)
O R D E R
By Dr. Ramesh Chandra Panda, Member (A):
By this common order, we intend to decide the common controversies raised in both the OAs (OA No.4275/2011 and OA No.08/2012) with the consent of counsel for the parties as the questions of facts and law involved in both the OAs are common.
Relief(s) sought
2. In OA No.4275/2011, Shri Brijesh Gupta, the applicant herein, presently working as Chief Commissioner of Income Tax, who was considered by the Selection Committee for selection to the post of Member, Central Board of Direct Taxes (CBDT), found himself not in the panel approved for the same. He has, therefore, prayed in the OA to quash the zone of consideration of 20 officers prepared for selecting eight officers in the panel, whereas, for the empanelment of officers to fill up vacancies, the size of the zone of consideration should have been 14 for the panel year 2011-2012. Further, it has been prayed to declare the respondent Nos.7 to 10 as ineligible in terms of the Notification dated 6.01.2006 and 8.06.2006. Further, it is prayed to direct the 1st respondent that in case the applicant is found fit, he should be appointed from the date the officer below his seniority has been appointed to the post of Member, CBDT. Besides, he has prayed to grant the consequential benefits including seniority as the Member, CBDT.
3. In OA No.08/2012, the applicant Shri T.B.C. Rozara, Chief Commissioner of Income Tax has been aggrieved by his non-selection to the post of Member, CBDT for the panel year 2011-12. and has challenged the selection on three main grounds viz (i) improper marking done for his ACRs; (ii) number of vacancies have been inflated; and (iii) the zone of consideration prepared for selection is violative of the extant Government instructions. He has, therefore, prayed to treat the applicants ACRs for the year 2009-2010, 2008-2009 and 2004-2005 as Outstanding and to grant him 10 grade points for each of these years and to ignore the incomplete ACR for the year 2003-2004 and in its place to consider the ACRs for the year 1999-2000 in which he was rated as Outstanding for which the applicant should be entitled for 10 grade points. It is further prayed that ACRs for the year 2000-2001, 2001-2002, 2002-2003 and 2004-2005 (part) should be treated as Outstanding in order to get appropriate grade points for selection as Member, CBDT for the year 2011-2012. The applicant has also prayed to direct the official respondents to select him as Member, CBDT by reviewing the assessment made by the Selection Committee as there has been less number of vacancies against which adoption of the inflated zone of consideration has prejudiced the applicant.
4. It is their case that on the basis of their excellent performance and service record they were periodically promoted and reached the grade of Chief Commissioner of Income Tax (CCIT) in April, 2009. The applicants have filed the OAs challenging their non-empanelment for the panel year 2011-12. They alleged that due to glaring illegalities and irregularities committed by the official respondents, the applicants were not empanelled. Had those glaring illegalities and irregularities not been committed, the applicants would have been empanelled in the panel as the same is prepared in order of seniority in the grade of CCIT / DGIT from amongst selected officers. The prayers in both the OAs revolve around three basic issues. The applicant in the OA No.08/2012 has prayed to direct the respondents (i) to adopt correct number of vacancies of the Member, CBDT for the panel year 2011-12; (ii) to adopt correct size of the zone of consideration and confine the selection to the correct zone of consideration for preparation of the said panel; and (iii) to correct / rectify the illegalities / irregularities in certain ACRs and to empanel him for the panel year 2011-12 as he would secure more than 90 marks on such correction / rectification. During the hearing we were informed that a vacancy existed in the post of Member-CBDT, caused due to retirement of Ms. Manjari Kacker, on 30-4-2012 and the vacancy has not yet been filled up in view of the interim order of this Tribunal dated 25/04/2012 in the present OA. Thus his prayer is to consider him to be placed at Seniority No.3 of the panel and consequently to appoint the applicant as Member-CBDT in the said vacancy protecting his seniority. The first two controversies viz (i) the number of vacancies has not been properly taken into account the respondents; (ii) the number of candidates considered in the zone of consideration has been more than prescribed under the extant instructions of the Government, are common to both the OAs and the third controversy i.e. ACRs have not been properly assessed and to direct the respondents to grant appropriate grade marks as per the prayer, relates only to the applicant in OA No.08/2012. In view of this position on the issues, we would take the issues of the ACRs after consideration of the other two inter related and intertwined issues, namely, whether vacancies in the post of Member, CBDT for the year 2011-2012 and whether the zone of consideration have been properly fixed.
Brief Facts
5. It is appropriate to bring out briefly the relevant facts common to both OAs. Vide a circular dated 27/12/2010, the official respondents invited applications from all Chief Commissioners of Income Tax / Director Generals of Income Tax and all Members of Income Tax Appellate Tribunal (ITAT) for some posts of Members in Central Board of Direct Taxes (CBDT) for the vacancies of the financial year 2011-12. According to the Recruitment Rules of 2006(RR 2006) as well as the guidelines issued on the basis of the Prime Ministers decision on the subject, only above 2 categories of officers are eligible for appointment as Member, CBDT which is to be filled by deputation/absorption basis by selection. It is averred that though 2 categories officers are eligible for the posts of Member, CBDT, only the Chief Commissioners/ Director Generals of Income Tax only apply for the post and generally Members of ITAT do not apply as the age of superannuation in ITAT is 62 years whereas the age of superannuation for Member, CBDT is 60 years. This was the factual position in the previous years under the RR 2006 as well as in the panel year 2011-12. In pursuance to the circular dated 27.12.2010, both the applicants along with others who fulfilled eligibility conditions applied for the same. Totally thirty two officers applied in pursuance to the said circular. As two of them (Mrs. Manjari Kacker and Dr. Poonam Kishore Saxena) were already appointed as Member, CBDT, there remained balance 30 candidates, out of which only the senior most 20 officers were kept in the zone of consideration. The rest 10 officers were not assessed by the Selection Committee. It is noted that the applicants have raised the issue of the size of zone of consideration alleging that the official respondents did not adopt the time tested principle of zone of consideration for considering the candidates in order of seniority in the grade of Chief Commissioners of Income Tax / Director Generals of Income Tax. We will deal with this issue more elaborately to determine whether the official respondents violated any provision by which the applicants have been prejudiced. Another issue that arises for our consideration is that the vacancy / anticipated vacancies for the panel year 2011-12 was wrongly calculated and consequently the zone of consideration was wrongly fixed which has prejudicially affected the empanelment of the applicants. A meeting of the Selection Committee was held in June, 2011 where eight candidates who secured a total of 90 marks and above were empanelled and arranged in the order of their seniority in the grade of CCIT/DGIT. But the applicants were not empanelled even though some of their juniors were empanelled. The applicant (Shri Rozara) had secured 87 marks and the applicant (Shri Gupta) secured 87 marks in the selection and as a result they did not find place in the panel. It is therefore contended that the incorrect fixing of number of vacancy which led to the number of eligible candidates to be in the incorrect zone of consideration has cascading effect resulting in arriving at the erroneous cut-off marks for selection as Member-CBDT. Had the respondents considered number of vacancies and the zone of consideration the cut off marks would have been lower than 90 and the applicants would have come into the panel? Thus both applicants feeling aggrieved have instituted their respective OAs seeking the relief(s) stated above.
6. During hearing the applicants pressed for a stay of filling up of the vacancy of Member, CBDT which was going to arise on 30.04.2012. On the basis of the submissions, and after hearing the counsel for the parties, since the counsel for the official respondents gave a statement that the said vacancy would not be filled up till the delivery of the judgment in the present OA, the same was duly recorded in the order dated 25.04.2012.
Issues for consideration
7. We heard Shri A K Behera learned counsel for the applicant in the OA No. 08/2012 who led the arguments on behalf of both the applicants. Shri Anshum Jain learned counsel in the OA No.4275/2011 endorsed the contentions canvassed by Shri Behera. On the other hand, learned senior counsel Shri R. Venkataramani, along with Ms. Rinchen O. Bhutia and Sh. Aljo K. Joseph learned counsel appeared on behalf of the official respondents. All the selected officers arrayed as 2nd to 7th respondents, though were duly served, none of them have contested the present OAs. Neither they filed their affidavits nor were they represented by any counsel during the final hearing. The official respondents placed before us the relevant file dealing with the panel preparation for the post of Member, CBDT for the year 2011-12. With the assistance of the counsel we perused the documents on record and the relied on judgments. Having heard the counsel for the parties we frame following issues for our consideration and determination.
[ i ] Whether five vacancies of Member, CBDT for the panel year 2011-12 have been correctly fixed?
[ii] Whether inclusion of twenty eligible candidates in the zone of consideration is legally sustainable?
[iii] Whether respondents are to be directed to up -
grade the marks assigned to Shri Rozaras ACRs for the years 2009-10, 2008-09 and 2004-05; and ignore ACR for the year 2003-04 by substituting ACR for 1999-2000?
Statutory Rules and Guidelines
8. At this stage of our analysis and before consideration of the issues flagged by the counsel for both the applicants, we prefer to take note of certain specific features and characteristics of the case. The post of Member, CBDT is a selection post and not a promotional post. Further the post does not come within the ambit of IRS cadre and is an ex-cadre post. Therefore, the Government rules, guidelines, instructions and procedures applicable for promotion purpose are not mutatis mutandis applicable to this post unless by practice or by instructions certain procedure is followed. Further, there is a recruitment rule notified as The Central Board of Direct Taxes (Chairman and Members) Recruitment Rules, 2006 as amended on 24th December, 2008.and supplemented by Guidelines issued for the selection of Member CBDT. Selection to the post is made as per the provisions of the recruitment rules and the Guidelines approved by the Prime Minister. This Tribunal has considered certain aspects of the extant RR and guidelines and upheld those in the matter of Laxman Das versus Union of India and Others [OA No.3823/2010 decided on 02.09.2011]. The Cabinet Secretariat in its 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:
a. circulation of the vacancies for the position in CBDT/CBEC shall be limited to the CBDT/CBEC and ITAT/CESTAT;
b. 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;
c. 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;
d. 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;
e. Since there are a few vacancies already, the first panel may be made valid for all existing vacancies and those that are anticipated up to 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;
f. 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 penalty proceedings, complaints, whether the candidate is or has ever been on the Agreed List and the report of the CVC;
g. 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;
h. 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.
i. 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;
j. 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 a clarificatory 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. 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, 1.5 times of the vacancies rounded to the nearest number, a panel for the year is to be prepared. In Laxman Dass case (supra) the Tribunal has held 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. Having specified the statutory rules and guidelines relevant to the controversies, we now advert to consider the issues.
First Issue: Whether five vacancies of Member, CBDT for the panel year 2011-12 have been correctly fixed?
9. The principal contention of the applicants is that the official respondents committed illegalities and irregularities on the calculation of the anticipated vacancies for the Member, CBDT posts for the year 2011-12. In the additional affidavit filed by the applicants it has been stated that the number of anticipated vacancies for the post of Member-CBDT was only three and the same was demonstrated indicating that the vacancy arose due to the retirement of (i) Shri Prakash Chandra, Member-CBDT on 31.07.2011; (ii) Shri M.C. Joshi, Member-CBDT retired on 31.01.2012; and (iii) Ms. Hardeep Srivastava, Member-CBDT retired on 31.01.2012. It is further stated that the vacancy arising due to retirement of Sh. Sudhir Chandra (due to retire on 31-3-2011), has already been considered for arriving at the number of vacancy / anticipated vacancy for the panel year 2010-11 and this fact has been recorded by this Tribunal in its judgment dated 02-09-2011 in the case of Laxman Das (supra). Therefore, this vacancy cannot be considered again for the year 2011-12, even though a two month extension was granted to him and who actually retired on 31-05-2011. It was further stated that no new post of Member, CBDT was created / added during the panel year 2011-12 or immediately before that. Thus, the vacancies which could be taken into consideration were the vacancies which arose only by retirement / voluntary retirement / resignation / death of the incumbents already holding the posts of Member CBDT. As per the said norm, it is contended that only 3 vacancies are likely to arise during the year 2011-12 due to retirement. Shri Behera submits that the respondents have conceded that they have considered the vacancy on account of Shri Sudhir Chandras retirement in panel year 2011-12, as a two month extension i.e. 1-4-2011 to 31-5-2011 was granted to Sh Sudhir Chandra who actually retired on 31-5-2011. It was Shri Beheras contention that at the time of issuing notification calling for application for the post of MemberCBDT i.e. 27/12/2010 and on the last date for receipt of application i.e. 17-01-2011, the fact about the said 2 months extension to Shri Sudhir Chandra could not have been anticipated, less to have been known to the official respondents. It is an established position that vacancy / anticipated vacancies position after the last date of submission of application, cannot be taken into account. Thus, the vacancy arising on account of retirement of Sh Sudhir Chandra cannot be considered for the year 2011-12, as the same has already been considered for the previous panel year i.e. 2010-11. He referred to the point stressed by the official respondents that the post of Chairman-CBDT which fell vacant on 31-12-2010 due to retirement of Sh S.S.N. Moorthy, was not filled-up in the year 2010-11 and this vacancy was carried over to the panel year 2011-12 and the vacancy was filled up by Shri Sudhir Chandra by giving him charge of the post of Chairman. It was mainly for the reason that he was holding the charge of the post of Chairman, he was given 2 months extension to meet the needs of budget preparation. Thus his continuance of 2 extra months was primarily because of holding of charge of the post of Chairman and as such can be counted against the post of Chairman only. The vacancy of the post of Member which he held had already been accounted for in the previous panel of 2010-11. Thus, only the Chairmans vacancy may be added in the vacancy position of the panel year 2011-12 thereby making the vacancy position to be four in the said year
10. Controverting the ground taken by the applicants Shri Venkataramani learned senior counsel for the official respondents would contend that the respondents anticipated the number of vacancies to be five. He submits that in addition to three clear vacancies of Member CBDT, the consequential vacancy of Member CBDT arising due to the selection of one of the Members as Chairman CBDT has been anticipated. Further, though the retirement vacancy of Shri Sudhir Chandra was considered for the panel year 2010-11, but in effect he retired on 31.5.2011 as two month extension was granted to him by the Government to meet the budget preparation needs. His contention is that the number of vacancies of Member CBDT for the year 2011-12 is five and action of the respondents cannot be faulted.
11. With regard to the allegation of inaccurate vacancies arrived at by the respondents for filling up of the Member CBDT posts through a panel for the year 2011-12, learned counsel for the applicants would initially submit that the vacancies were only three and ultimately took the position and informed the same to be four. Therefore, Shri Behera held the view that the respondents anticipating five vacancies of Members CBDT were not justified. On the contrary, the respondents submit that there were five vacancies of the Members in the CBDT, namely, one vacancy arising due to the appointment of one of the Members as Chairman as the Chairmans post was vacant w.e.f. 31.12.2010. The consequential vacancy of the Member, CBDT along with the 3 vacancies, already mentioned by the counsel for the applicants, needs to be added. Further, it was stated on behalf of the respondents that vacancy of Sh. Sudhir Chandra, Member-CBDT arose on 31.05.2011 as he was granted two months extension from the date of his retirement i.e. 31.03.2011. In this context, counsel for the applicants contended that vacancy of Sh. Sudhir Chandra, MemberCBDT was already counted for drawing up the panel in the year 2010-2011 and the same vacancy cannot be counted for the second time in the year 2011-2012. He referred to the judgment of this Tribunal in OA No. 3823/2010 decided on 02.09.2011 in the matters of Laxman Das (supra). Our attention was invited to paragraph 25 of the said order of this Tribunal which took into account the vacancy of Shri Sudhir Chandra, Member-CBDT for the year 2010-2011. It is appropriate for us to indicate that in the said judgment of the Tribunal, it was recorded that 6th vacancy (the vacancy arising due to retirement of Sh. Sudhir Chandra on 31.03.2011) would have come normally for the next panel year i.e. 2011-12 but no specific conclusion or direction was issued thereon except to state that the above fact of inclusion in the year 2010-2011 vacancies, the 6th vacancy position due to retirement of Shri Sudhir Chandra was considered. But admittedly Shri Sudhir Chandra was granted two months extension as a result of which he retired on 31.05.2011. Prior to date of his retirement, he was holding charge of the Chairman, CBDT. This fact has to be appreciated. The official respondents know the exigencies and need of the continuance of the Chairman, CBDT for the budget preparation. These are in effect the realistic anticipation to meet the exigencies which might arise. The official respondents are in a better position to appreciate the anticipated vacancies likely to arise. Timing of such calculation comes well within the functional domain of the executive and this Tribunal cannot undertake a roving enquiry. In our considered opinion the respondents have, therefore, correctly anticipated (a) three clear vacancies [Shri Prakash Chandra, Member-CBDT on 31.07.2011; Shri M.C. Joshi, Member-CBDT retired on 31.01.2012 and Ms. Hardeep Srivastava, Member-CBDT retired on 31.01.2012]; (b) the consequential vacancy to arise due to filling up the post of Chairman, CBDT from amongst the existing Members CBDT; and (c) as well as the vacancy to arise due to retirement of Sh. Sudhir Chandra on 31.05.2011. Thus, in our view, the respondents have correctly calculated the vacancy position as five. We, therefore, find that the contention raised by the counsel for the applicants is not tenable.
Second Issue: Whether inclusion of twenty eligible candidates in the zone of consideration is legally sustainable?
12. Learned counsel for the applicants submitted that despite the process adopted by the Selection Committee on the basis of selection taking the marks secured by each as the rationale, it ultimately adopted the principle of seniority as part of promotion while drawing up the panel and even issuing the postings. He highlights that after selection of Chief Commissioners for empanelment as Member-CBDT on the basis of highest marks allotted as per the ACR / APAR, the panel is prepared by arranging the selected officers in the order of their seniority in the grade of Chief Commissioners or Director Generals, irrespective of the number of marks awarded to them. Thus, the total marks are relevant only for selection but the final panel and appointment to the post of Member is done on the basis of seniority in the feeder grade irrespective of the total marks awarded to them. The official respondents have been following this system consistently in the past selection as well as in the impugned selection. This position had not been denied by the official respondents in their additional affidavit even though specific averments in this regard were made in the affidavit filed by the applicants. Therefore, even though the empanelment may be stated as selection or Member, CBDT as ex-cadre post, the element of seniority in the feeder cadre i.e. CCIT/DGIT being followed consistently for actual empanelment and appointment, no difference is made in the actual practice due to the word selection being mentioned in the mode of recruitment. In any case, the posts of Member, CBDT are filled up only by deputation /absorption basis.
13. Referring to para 3.2 and 3.3 of the counter reply to the additional affidavit of the applicant where the official respondents have stated that in exercise of powers conferred by statutory rules, the selection committee in the year 2008-09 decided to adopt the principle of zone of consideration linked to the panel strength, Shri Behera strongly objects highlighting that the respondents have failed to produce such statutory rules or instruction, as such linking is neither prescribed in the Recruitment Rules of 2006 amended in 2008, nor in the PMs guidelines. Besides, no such decision of the Selection Committee for the year 2008-09 was produced along with any of the pleadings of the respondents. He wondered how the said Selection Committee could fix the size of the zone of consideration contrary to the Government OM 22011/2/2002-Estt (D) dated 06/01/2006 issued by DOPT holding the field, was not clear. Besides, he submitted that if an earlier Selection Committee wrongly interpreted the said OM, the same cannot be perpetuated by the subsequent Selection Committees. To be more specific the learned counsel of the applicants contended that the respondents conceded to have adopted the DOPT OM No. 22011/2/2002-Estt (D) dated 6.1.2006 on fixation of consideration zone i.e. vacancy / anticipated Vacancy X 2 + 4. It has amply been established that the Panel (vacancy X 1.5) as provided in PMs guidelines and Consideration Zone and vacancy/anticipated vacancy are three different concepts in service jurisprudence. In fact the former is a subset of the latter i.e. Panel has to come out of the Consideration Zone which in turn has to be fixed on the basis of vacancies / anticipated vacancies. In the OM also the Zone of consideration is determined with reference to the number of vacancies / anticipated vacancies. There is no ambiguity in the prescription of the OM. He further submits that the language employed in the OM does not give rise to more than one interpretation. Thus, the judgments relied on by the official respondents senior counsel relating to executive practice Shri Behera contends that in cases where two interpretations are reasonably permissible the said judgments are not applicable in the present case. On the other hand he has given two judgments of Honble Supreme Court to the effect that if a wrong interpretation has been practiced in the past; the same cannot be approved or perpetuated particularly where the language does not permit any ambiguity. In the case of Bhupinder Singh and Others Versus State of Punjab[(2000) 5 SCC 262], the Honble Apex Court after noticing the wrong practice of the respondents held in para 14 of the judgment that .Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end.. Similarly, in Seth Balgopal Das Versus The State of UP and Others[(1976) 3 SCC 394], the Honble Apex Court after noticing the wrong practice in the said case held 11. ..A wrong practice cannot possibly modify what naturally and logically follows from the language in Sec. 3(2) of the Act. Shri Behera goes ahead to argue that Member-CBDT is ex-cadre/selection post does not make any difference because, in the absence of any stipulation either in RR or PM guidelines, the DOPT OM will be applicable to the subject. In fact, the official respondents have categorically admitted that they have adopted the said OM and the norms prescribed there under for fixing the zone of consideration but once concede to the same they cannot resile from the legal effect of the same by saying that the said OM is not applicable to the posts of Member, CBDT. Thus the linking of panel for the consideration zone is arbitrary and cannot be allowed to be perpetuated. Even the argument that such a fusion of the concepts of Panel and Consideration Zone for affording better selection is totally contrary to the concept of zone of consideration, which the official respondents have admittedly adopted. Therefore, Shri Behera states that the correct consideration zone should be 4 X 2 + 4 = 12 and taking the vacancy position as five, the zone of consideration would be 5x2+4=14. There should be no practical difficulty in adopting the correct zone of consideration of 12 or 14. Had the size of the consideration zone been limited to 12 or 14, the applicants would have been in the panel of eight.
14. Shri R Venkataramani learned senior advocate representing the official respondents clarified the stand of the respondent on the issue. In his comprehensive argument Shri Venkataramani submitted that as per the RR any officer in the HAG scale of pay and having 15 years of experience in administering and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of CBDT and having high professional merit, impeccable reputation of integrity and at least one year residual service on the date of occurrence of the vacancy would be eligible to be considered. The statutory rules also empower the selection Committee to devise ways to assess the candidates keeping in view the requirement of high professional merit for the post. The applicants have been duly considered by the Selection Committee in a fair, equitable and impartial manner. However, they do not have right to be appointed to the post of Member, CBDT simply by virtue of their seniority in the IRS (IT) Cadre. In a catena of orders including the Civil Appeal 689/2007 arising out of SLP (C) No.2410/2007 in the matter of Union of India and Another Versus S.K.Goel and Others, the Honble Supreme Court of India has held that the DPCs and Selection Committees enjoy full discretion to devise its method and procedure for objective assessment of suitability and merit of candidates being considered by it and hence interference of Courts and Tribunals are not called for. The Apex Court also held that the evaluations made by an Expert Committee should not be interfered with by Courts, as the Courts and Tribunals do not have the necessary expertise to undertake the exercise. In so far as the issue of whether the selection of candidates for Member, CBDT post is based on promotion criteria or selection, he informed that as per the RR that was purely on the basis of selection from among eligible CCs of IT, DGs of IT and Members of ITAT and not on promotion basis. Reverting to the issue of the zone of consideration, he referred to the reply affidavit dated 2nd May, 2012, to state that the Selection Committee was not bound by the instructions meant for promotions, the Selection Committee decided to adopt the principle of zone of consideration based on the panel strength as against the number of vacancies, which is ordinarily the reckoning factor in case of promotions. The correct number of anticipated vacancies during the year 2011-12 was five and accordingly, as per the guidelines, a panel of eight officers was to be prepared. For the panel strength of eight, the correct zone of consideration was 20 applying the principle contained in the OM dated 06.01.2006. His contention is that there is no error of logic or any illegality in applying the combined principles, laid down in the PMO guidelines and the above said OM, for the purpose of determining the zone of consideration. It is pertinent to bear in mind that having regard to the large number of officers eligible in terms of the RR, and the need to pick up the best persons to suit the requirements of the Central Board of Direct Taxes, it has been found appropriate to give due consideration to , i.e. first merit and then seniority. This is in the best interests of all eligible officers. No legal right of the applicants can be said to have been infringed by the criteria adopted by the Selection Committee and put in position in the past selections. Thus, there is no error or malafide in the selection for the post of Member, CBDT for the year 2011-12 calling for the intervention of this Tribunal. Therefore, he urges that the OA may be dismissed.
15. We have carefully considered the rival contentions in respect of the important issue of the zone of consideration and associated issue of promotion versus selection raised by the applicants. Learned counsel for the applicants argues in this regard that even if the vacancies anticipated are five, the zone of consideration as per the extant guidelines of DOP&T would be 14, but the official respondents having considered 30 candidates and short-listed 20 senior-most candidates in the zone of consideration had erred which was violative of the relevant DOP&T OM. It is further stated that had the zone of consideration been limited to 12 or 14 considering the vacancies, both the applicants would have made the grade because by extending the zone of consideration to 20, four persons who have been selected in the panel, come from the serial nos. 15 to 20 in the zone of consideration. Had the zone of consideration been limited to 12/14 those four candidates would not have been in the panel. On the other hand the cut off mark would have come below 90 and both the applicants would have been in the panel. On the contrary, the respondents stand is that the zone of consideration was prepared taking into account the past practice adopted by the respondents right from the panel of 2008-09 in the successive panel years for preparation of the panel and the number of persons to be in the panel was taken as the basis to prepare the zone of consideration. As per the guidelines of the PMO, the respondents are required to prepare a panel, which should be 1.5 times of the number of vacancies. As the total number of vacancies arrived at was 5, the panel would, therefore, be 7.5 or rounded up to 8. It was stated by the learned senior counsel for the respondents that the zone of consideration, therefore, for 8 would be 20 (8x2+4). The above contention of the respondents was very strongly opposed by the counsel for the applicants. The main ground was that number of vacancies should have been considered for drawing up a panel in arriving at the number of candidates to be considered in the zone of consideration, but the respondents having adopted the number of persons to be in the panel as the basis in the zone of consideration, in the views of the applicants. We have thoughtfully considered this issue. In case of filling up of the vacancies for the Members, CBDT, PMs guidelines stipulated that a panel should be prepared which should be 1.5 times of the total number of anticipated vacancies for the financial year. With regard to the number of vacancies we have already concluded in preceding paragraph that the total number would be five. The respondents have, therefore, correctly adopted the number of persons to be in the panel as eight. The counsel for the applicants referred to the DOP&T O.M. No. 22011/2/2002-Estt.(D) dated Jan. 6, 2006, which deals with the guidelines on the size of zone of consideration. A careful perusal of the said O.M. would disclose that for the purpose of selection, selection-cum-seniority and selection by merit, generic guidelines have been issued for preparation of zone of consideration. For five vacancies, normally the size of zone of consideration is 14 and extended zone of consideration for SC/ST is 25. Extended zone of consideration is not applicable in the present case. The said O.M. envisages that while the size of the zone of consideration would be as prescribed, however, the DPC as per the extant instructions need not assess and grade all the officers in the eligibility list. Assessment of suitability of eligible employees in the zone of consideration in the descending order of seniority in the feeder grade for inclusion in the panel for promotion should be considered only up to the number, which is considered sufficient for preparing the normal panel with reference to the number of vacancies. In respect of the remaining employees in the zone of consideration as now prescribed in the O.M., the DPC may put a note in the minutes of its meeting that the assessment of the remaining employees in the zone of consideration is not necessary as the sufficient number of employees with the prescribed benchmark have become available. The said O.M. also, inter alia, stipulates the following:-
Accordingly, a need has arisen for review of the size of zone of consideration. Having a size of zone of consideration larger than is necessary in the revised context would lead to unnecessary paper work, which may also lead to delay in convening DPCs. However, the zone of consideration has still to be wide enough to cater to the needs of the Departments/Cadre Authorities for giving an extended panel against empanelled officers who are on deputation or are expected to proceed shortly; who have retired or will be retiring in the course of the vacancy year or who have refused promotion and are under debarment. The size should also be sufficient to take care of offices in the feeder grade whose cases are to be placed in sealed cover and also of those who do not meet the prescribed benchmark. Thus, there is a need for optimizing the size of zone of consideration.
16. The above instructions issued by the Government are generic guidelines for the Departments and the DPC to follow for promotion. Normally, the departments draw up a panel to meet the exact number of vacancies anticipated during the panel year or vacancy year. The extended panel is only prepared to meet the mandated provision for promotion of SC/ST candidates. The DPC sometimes prepares wait-listed candidates which are not part of the main panel for promotion and the wait-listed candidates are promoted if the exigencies arise during the year. In the extant case, it must be noted that RR stipulates selection as the mode and not by means of promotion. Surely, Member, CBDT posts are not filled up by promotion. These posts are ex cadre posts to be filled by deputation/absorption. Further, the RR and the guidelines are silent about the issue - how to arrive at the size of the zone of consideration? The committee which considered the process of preparing the panel is Selection Committee and not DPC. In practice the PMO guidelines stipulate the respondents to draw up a panel which must be 1.5 times of the number of anticipated vacancies for the panel year. For the zone of consideration in this type of scenario, the respondents have adopted the number of persons to be put in the panel as the basis to calculate the number of candidates to be considered in the zone of consideration. No doubt the Selection Committee took into account the formula prescribed in the DOP&T OM dated 06.01.2006 to identify the size of zone of consideration. The panel strength not the vacancies was taken as the basis to know the size of the zone. This practice is being followed by the respondents for last 4 years. It is only now that this has been challenged to say that not the number of persons to be put in the panel but the number of vacancies should be the basis to find out the zone of consideration.
17. At this stage the question arises whether the past practice followed by the respondents in adopting the panel strength as the basis to determine the size of zone of consideration is legally tenable or not? It is trite law to note that judicial review cannot extend the Tribunals power to act as an appellate authority sitting in judgment over the decision taken by the respondents. Therefore we have to examine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate their action, no matter whether the action is in the realm of executive.
18. At this stage, we may refer to the judgment in Bhupinderpal Singh's case (supra) relied upon by Shri Behera. We examined the facts of the case from judgment and note that only the applicants, thousands in number, but the authorities too were also belabouring under an identical wrong impression and that is why the applications were entertained and the applicants called for interview though not eligible by referring to the last date for receipt of applications. Eligibility on a cut off date was the issue. In that context the Hon'ble Apex Court observed as follows:
" In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellants/petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidateshave been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment.Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinised and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from decided cases of this Court and stated herein above which have now to be treated as the settled service jurisprudence." (emphasis is supplied as the said statement was cited by the counsel for the applicants) Taking the above observation of the Hon'ble Supreme Court into account we note that the observation is distinguishable as the respondents have a well set practice and there is no loose practice. The practice is followed from 2008-09 by adopting the panel strength as the basis for determination of the size of zone of consideration. We also went through the Judgment of Honble Apex Court in Balgopal Dass case (supra) and note that the facts of the said case being far different, ratio laid by the Honble Apex Court will not be applicable to the present OA.
19. We have to only decide whether a more reasonable decision or course of action could have been taken in the circumstances of the case. Even examining the case from angle of doctrine of fairness or the duty to act fairly and reasonably in order to prevent failure of justice as the action is of administrative in nature we note that the respondents have been fair and reasonable in adopting the number of candidates to be put in the panel as the basis for determining the size of the zone of consideration as in the past right from 2008-09 the said practice has been followed. We referred to the judgments of Hon'ble Apex Court in of N. Suresh Nathan versus Union of India, [(1992) Supp 1 SCC 584] and S.B. Bhattacharjee versus S.D. Majumdar and Others, [(2007) 6 SCR 743], it was held that normally, a Court would not disturb the past practice consistently followed by the Department if the view taken or practice followed is also reasonable. Same view was noted by the Hon'ble Supreme Court in U.P. Power Corporation Ltd. Versus Ayodhya Prasad Mishra[AIR 2009-SC-296] and Union of India Versus Rajpal Singh[2009-1-SCC-216]. In view of the above settled position in law and in the absence of any specific guidelines on the zone of consideration to be adopted for the purpose, the Selection Committee having adopted panel strength as the basis for the zone of consideration and against eight to be in the panel consideration of twenty eligible candidates according to OM dated 06.01.2006 is considered as reasonable and rational.
Third issue: Whether respondents are to be directed to up grade the marks assigned to Shri Rozaras ACRs for some years and ignore incomplete ACR?
20 This issue relates to the case of Shri Rozara only. A major allegation by the applicant in the OA is that the official respondents have seriously prejudiced the applicant by its action which has resulted in erroneous granting of 87 marks viz (i) in assigning 9 marks for the outstanding ACR for 2009-10, (ii) considering incomplete ACR for 2003-04, and (iii) improper rejection of his representation for up gradation of ACR for 2004-05 and 2008-09. His submission was that had these been rectified he would have secured more than 90 marks in his 10 years ACRs and would have been in the panel for appointment as Member CBDT. We will consider the grounds advanced by the applicant, response thereon by the respondents and determine in respect of each ACR. However, it is proper to tabulate the ACR grading marks assigned to him by the Selection Committee and the grading marks claimed by the applicant. The table is furnished below:-
Sl.
No. ACR Year Grade Mark assigned by Selection Committee Grade mark claimed by Applicant Remarks 01 2009-10 09 10 02 2008-09 08 10 03 2007-08 10 10 04 2006-07 10 10 05 2005-06 10 10 06 2004-05 08 09 07 2003-04 08 10 (1999-2000 Claim is to ignore 2003-04 by substituting 1999-2000 08 2002-03 08 08 09 2001-02 08 08 10 2000-01 08 08 Ten Years 87 93 The above table signifies that the applicant has not raised any dispute on the grade marks for six years [2007-08, 2006-07, 2005-06, 2002-03, 2001-02, and 2000-01]. The claims of the applicant are confined to the grade marks assigned to him for the remaining four years [2009-10, 2008-09, 2004-05 and 2003-04].
21. In so far as ACR for the year 2009-10 is concerned Shri Behera learned counsel for the applicant contends that the official respondents in their reply dated 05th October, 2011 have stated that for the said ACR, though the applicant has been graded as Outstanding, yet he has been awarded only 9 marks but his contention is that as per Prime Ministers guideline, the applicant is entitled to 10 marks. He further adds that the said ACR of the applicant though reported for 4 months has been reviewed for the whole year by the Reviewing Officer who had seen the work of the applicant for the whole year. No other Reporting Officer had seen the work of the applicant for more than 3 months. Refuting the stand taken by the official respondents justifying award of 9 marks on the basis of the OM dated 23.07.2009, Shri Behera opposes the same for 3 broad reasons. (i) The official respondents have adopted the APAR system for the year 2009-10 but supplied the ACR formats where neither the Reporting nor the Reviewing Officer has given any numerical grading as required under the OM dated 23.07.2009. On the other hand the ACR had been written and an overall grading outstanding has been given both by the Reporting and Reviewing Officer. He submits that the official respondents by the order dated 27.01.2011 deferred the adoption of APAR system till the year 2010-11 with the prior approval of DOP&T. Shri Behera, therefore, contends that once the APAR system had not been adopted by the official respondents, the system of assessment under the said OM for numerical grading under the said OM cannot be adopted. It is an established law that a party to litigation cannot rely upon a document in part. If a document is to be relied, the same is to be relied as a whole. (ii) The Prime Ministers guideline is a specific guideline for selection for Member, CBDT and applicable unless superseded by the same or a higher authority. The OM dated 23.07.2009 is a general guideline issued by the DOP & T. It is an established law that if on a subject there is a specific guideline, then the specific guideline is to be followed. If Prime Ministers guideline is followed for the year 2009-10, the applicant would be entitled to 10 marks for the year 2009-10. (iii) For previous years ACRs, i.e.2008-09 and before the official respondents have followed Prime Ministers guideline in awarding 10 marks for outstanding. Prime Ministers guideline envisages a different system of marking with separate hierarchy of marking in the stages of Very Good and Outstanding whereas the OM dated 23.07.2009 is a totally different system of assessment where 8 to 10 numerical points are considered as the same level i.e. 9. The new APAR system if adopted for one year only, would result in undue benefit to officers who have got very good grading in the year 2009-10. This would also amount to adopting double standards in the same selection. In fact during the course of oral hearing it came out from the official records, as an example, that respondent no. 2 (Shri SC Jaini) would have got only 8.5 marks (split ACRs) under the PMs guideline for the year 2009-10, but was awarded 9 marks by the selection committee. Thus, it clearly stands demonstrated that by adoption of OM dated 23.07.2009 some persons have been unduly benefited and some people like the applicant have been unduly prejudiced. Adoption of double standards of assessment to different ACR years in the same selection would lead to this kind of aberrations which are not in consonance with Article 14 and 16 of the Constitution of India. It is stated that if new system of assessment is adopted for all 10 years, the applicant is getting 90 marks which is the maximum permissible under the new system of assessment.
22. But the official respondents have justified the award of 9 marks on the ground that by OM dated 23.07.2009, the DOP&T introduced the Annual Performance Assessment Reports (APAR) instead of the then existing Annual Confidential Reports (ACR). In the said APAR system, the Reporting and Reviewing officers were required to give numerical grading to officers reported upon on various attributes prescribed in the said OM. According to the said OM all numerical grading in the range of 8 to 10 would be taken as 9. The above parameter adopted for the purpose was based on the principle of transition from ACR to APAR system of assessment as a result of which those ACRs of the candidates who got outstanding in ACR system got 9 marks. There was no double standard. Adoption of PM Guidelines for the years prior to 2009-10 as ACR system was in vogue, and APAR brought in 2009-10 could not be termed as double standard. The respondents have further contended that the said OM was uniformly applied to all candidates for the year 2009-10, thus there is no discrimination.
23. Referring to the ACR of 2008-09 of the applicant Shri Behera contends that no overall grading has been given by the Reporting or the Reviewing officer in the ACR of the applicant. Yet, the Selection Committee has considered the rating of the said ACR as Very Good and has awarded 8 marks. In this context he raised two fold submissions. (i) The ACRs of the applicant for 4 (four) consecutive years 2005-06, 2006-07, 2007-08 and 2008-09 have been written by the same Reporting Officer and the concerned Minister was the Reviewing Officer, who agreed with the Reporting Officer. In none of the said years the Reviewing Officer has given any separate comment / observation. The comments / observations of the Reporting Officer in all those 4 consecutive years were almost identical language in each of the attributes in the ACR format. A comparative chart was shown to us during the hearing which would demonstrate that the Reporting Officer used almost identical language for all those consecutive 4 years. However, in the years 2005-06, 2006-07, 2007-08 the Reporting Officer has assessed him as Outstanding which has been accepted by the Selection Committee and has awarded 10 grade marks for each of the said years. But for the year 2008-09, though almost identical language has been used in all attributes, the Reporting Officer has not given any overall grading, the Reviewing Officer,(the Minister), has only signed. In such a situation, the Reporting Officer being same in all those years, on a parity of logic, the overall grading for the year 2008-09 should have been taken as Outstanding as in the previous 3 years. (ii) The second submission is that the Selection Committee was duty bound to consider the said ACR as an incomplete ACR as one of the columns has not been duly filled as required under the instructions for writing ACRs and should have gone back to one more ACR backwards i.e. 1998-99 which is again an Outstanding ACR. Shri Behera submits that the applicant would again gain additional 2 marks on this count.
24. For the grading marks of 8 assigned for the ACR of year 2008-09, Shri Venkataramani submits that the ACR was rightly assessed as Very Good considering the various remarks against the attributes and general remarks. The contention of the applicant that the remarks in the other ACRs are comparable to the remarks in the ACR for the said year is incorrect. The selection committee has carefully considered the contents and attributes in the ACR for the year 2008-09 and did not find it appropriate to grade it as outstanding but assessed the same to be very good and hence grade point of 8. If the procedure suggested by the applicant namely that the ultimate grading in the ACR should be modified by mechanical comparison with other previous or later ACRs, is to be adopted, the very rationale of annual appraisals will be rendered redundant and the process of review of ACRs will essentially become a substitute process of completely rewriting the ACRs.
25. Shri Behera submits that the ACR of the applicant for the year 2004-05 has been assessed as Very Good and the Selection Committee has awarded 8 marks but he observes that the respondents argument for rejecting the applicants request for upgradation of his ACR for the year 2004-05 is unjust. He further adds that without prejudice to the submissions made before, if for the year 2008-09, upgradation is denied on the basis of attributes in each columns of ACR (without reference to previous 3 ACRs written by the same Reporting Officer), then for 2004-05 on the same basis i.e. attributes in each columns of ACR, the overall rating cannot be anything other than outstanding. Shri Beheras contention is that the respondents are adopting double standards which cannot be allowed in any judicial review. Therefore, it is prayed that ACR of the year 2004-05 must necessarily be upgraded from very good to outstanding. The applicant would gain 2 additional marks on this score too.
26. Shri Venkataramani opposing the above contentions submits that all candidates including the applicant were supplied the ACRs for 10 years to represent against any grading and entry. The applicant did submit his representation to upgrade grading from Very Good to Outstanding for the 2004-05 ACR. On consideration of the same, the Competent Authority rejected the claim. Thus, Very Good grading continued in the ACR for the years. Action of the Selection Committee granting him 8 grade points being based on the Very Good grading, cannot be faulted.
27. In respect of the ACR 2003-04 of the applicant Shri Behera would submit that the ACR was not reviewed and hence the same must be treated as incomplete and ignored. His contention is that as per law, the said ACR having not been recorded at two levels is not a complete ACR and cannot be taken into consideration for the assessment purpose by the Selection Committee. During the course of hearing the judgment of the Division Bench of this Tribunal in the case of A.K. Aneja versus Union of India and Others [OA No. 24/2007 decided on 07.05.2008] dealing exactly with the same point of law was relied on by Shri Behera. A.K. Anejas case (supra) pertained to the same official respondents as in the present case where the promotion from Commissioner of Income Tax to Chief Commissioner of Income Tax was the prayer. By relying on earlier judgment of Honble Supreme Court, this Tribunal held that if the ACR had not been maintained at 2 levels for any reason, then the same was not a complete ACR in the eyes of law. Hence, his contention is that 2003-04 ACR cannot be taken into consideration for empanelment. The aspect of retirement of Reviewing Officer was specifically dealt with in the said judgment. The official respondents have already implemented the judgment of the Tribunal. In spite of being aware of that law, the official respondents have assessed the incomplete ACR of the applicant for the year 2003-04 and have awarded him 8 marks for that year. However, if following the ratio in the case of AK Aneja, the previous ACR of the applicant for the year 1999-2000 is taken into consideration, the applicant would get 10 marks as the said ACR is an Outstanding ACR. Shri Behera further contends that the respondents argument on uniform application will not be correct, as that would adversely affect the applicants career for no fault of his. Hence, he urges that ACR for the year 2003-04 has to be ignored and in its place the ACR pertaining to an earlier year i.e. 1999-2000 will have to be considered which would give the applicant an additional 2 marks on this count alone.
28. Opposing the above contentions learned senior advocate for the official respondents would submit that the issue of non-reviewed ACR was duly considered and decided by the Tribunal in OA No.3823/2010 and 4043/2010 in Para 29 of its Order dated 2nd September, 2011 and concluded that there was no ground to open the issue to recalculate the scores since the post of Member, CBDT is an ex-cadre post. Having regard to the comparative merits of the officers included in the panel and others, which is available for perusal by this Tribunal, even the exercise of considering some other ACR will not help the applicant. It is stated that the law laid in A.K. Anejas case (supra) is not applicable to the present case as A.K. Anejas case relates to promotion whereas the present case is of selection. He urges that this Tribunal should follow its earlier order in Laxman Dass case (supra).
29. Thus, Shri Behera wound up a long argument with the plea that if all the aforesaid 4 illegalities / irregularities are rectified the applicant would get 94 marks instead of 87 marks awarded to him by the Selection Committee which is much above the 90 marks awarded to the last selected officer in the impugned selection. In fact rectification of each of the above illegalities would increase the marks of the applicant by one or two marks independently. Thus, even if any one or two of the aforesaid illegalities is ignored, then also the applicant is getting more than 90 marks and would thus be entitled to empanelment even without disturbing the vacancy calculation of the respondents for the panel year 2011-12 and the zone of consideration fixed by them. On the basis of the aforesaid 4 glaring illegalities/irregularities itself the applicant is entitled to succeed without going into the question of vacancy calculation or zone of consideration fixed.
30. In view of the above contentions by the rival parties on the 4 years ACRs of the applicant advanced, we examine the pertinent issues raised therein in the following paragraphs.
31. In respect of the applicants representation, the Revenue Secretary as the Competent Authority went through the relevant aspects of the issues raised for upgradation of the ratings and to ignore some of the grade marks seeking substitution with other ACRs. It would be pertinent for us to take the extract of the observations made by the Revenue Secretary on the said ACRs of the applicant, which read thus:-
8. Shri T.B.C. Rozara (75051)-2000-01, 2001-02, 2002-03, 2003-04, 2004-05.
8.1 Shri Rozara has requested to upgrade the overall rating to Outstanding for the years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05.
8.2 The different Reporting Officers who supervised his work directly during these years have given a clear specific grading of Very Good. These were agreed to by the Reviewing Officers except in the year 2003-04, wherein NRC has been appended as the ACR could not be reviewed. The officer has not cited any exemplary work done during these years. The grounds given by the officer do not justify the upgradation to Outstanding grading. An outstanding grading is not a matter of right. The request for Upgradation of ACRs for years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05 is, therefore, rejected.
Shri T.B.C. Rozara (75051)-2008-09 9.1 The Reporting Officer as well as the Reviewing Officer has not given any specific grading. Shri Rozara has requested that the rating be given as Outstanding. He has also mentioned that the same Reporting Officer rated him as Outstanding in three preceding years.
9.2. The Reporting Officer as well as the Reviewing Officer has not given any specific grading. Out of the 7 attributes in the ACR, the remarks against 2 are very good, one is good, and remaining 4 are indicative of very good. Considering these remarks, the overall grading can be considered as very good only. The Outstanding rating given in preceding three years is not a valid ground for taking the grading as Outstanding. The request for giving Outstanding grading is therefore rejected. It is noted, however, that since the grading given by the Reporting Officer is not specific, this is a case that will be put to the sub committee comprising of Revenue Secretary and Secretary, DOP&T for confirmation of the grading.
32. The above observations have been accepted by the Selection Committee while considering the candidature of the applicant for the post of Member, CBDT. It is noted that the representation of the applicant to upgrade his ACR ratings for the period 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05 has been rejected. Further his request for upgrading his ACR from Very Good to Outstanding in respect of the ACR for the year 2008-09 has also been considered and the claim for rating it as Outstanding has been rejected. It has been noted that in view of the fact that no specific grading has been assigned by the Reporting and Reviewing Officers, the Selection Committee has considered and rated the applicant as Very Good for the year 2008-09.
33. One of the issues of double standard having been adopted by the Selection Committee in assessing 10 years ACRs of the candidates has been carefully considered by us. It is a fact that the Government of India has switched over from the Annual Confidential Report (ACR) to the Annual Performance Appraisal Report (APAR) from the year 2009-10. It must be noted that such a shift has been done specifically on the basis of various judgments of Honble Apex Court and more specifically the judgment in the matter of Dev Dutt vs. Union of India & Ors. Thus the 2009-10 has been the transitional year switching over from ACR to APAR. Thus, when the Selection Committee considered 10 years, the 2009-10 is one of such year where the performance assessment of the candidates would be necessary, therefore, the Committee considered 9 years which are ACR based and the 10th year i.e.2009-10 has been APAR based. This signifies that such situation of two sets of performance assessment would be available for the Selection Committee to consider even in future till the completion of 10 years of APAR system. It is, therefore, pertinent for us to decide the issue from the legal point of view. PMs guidelines specify numerical ratings to be derived from the qualitative gradings given in the ACR, which means the overall assessment gradings given in the ACR like Outstanding, Very Good, Good and Poor are some of the over all ratings which are generally assigned. The numerical conversion given in the PMs guidelines would be wholly or solely application to such a case of ACRs which have been written upto and including 2008-09. But in the case of the ACR written in the year 2009-10 when the APAR was introduced, there would be case of the candidates whose assessment would be either in ACR format or in APAR format. In the Office Memorandum dated 23.07.2009 issued by the DOP&T it has been clearly indicated in Annexure I of the guidelines as to how the APAR with numerical gradings should be taken up. Before we advert to the said aspect, it would be appropriate to mention that irrespective of the fact whether the ACR or APAR is available for the year 2009-10 for any of the candidates being considered for the post of Member, CBDT, the numerical gradings indicated in the Annexure I of the DOP&T OM dated 23.07.2009 would be applicable. The fact is that PMs guidelines dated 06.01.2006 has not taken cognizance of APAR as the APAR system was not in existence then. It must be noted that the DOP&T comes within the functional jurisdiction of the Prime Minister and as such the OM issued by the DOP&T dated 23.07.2009 is not in conflict with the PMs guidelines dated 06.01.2006. Both are complementary to each other. Having decided in this manner, it would be appropriate for us to take extract of DOP&T OM dated 23.07.2009 dealing with the guidelines regarding filling up of APAR with numerical grading, which read thus:
Guidelines regarding filling up of APAR with numerical grading.
The columns in the APAR should be filled with due care and attention and after devoting adequate time.
It is expected that any grading of 1 or 2 (against work output or attributes or overall grade) would be adequately justified in the pen-picture by way of specific failures and similarly, any grade of 9 or 10 would be justified with respect to specific accomplishments. Grades of 1-2 or 9-10 are expected to be rare occurrences and hence the need to justify them. In awarding a numerical grade the reporting and reviewing authorities should rate the officer against a larger population of his/her peers that may be currently working under them.
APARs graded between 8 and 10 will be rated as outstanding and will be given a score of 9 for the purpose of calculating average scores for empanelment/promotion.
APARs graded between 6 and short of 8 will be rated as very good and will be given a score of 7.
APARs graded between 4 and 6 short of 6 will be rated as good and will be given a score of 5.
APARs graded between 6 and short of 8 will be rated as very good and will be given a score of 7.
APARs graded below 4 will be given a score of zero.
34. There are incomplete ACRs of the candidates whereby the Selection Committee has adopted the available rating by either the Reporting Officer or Reviewing Officer or Accepting Authority. In a three tier assessment system either of the authorities having not rated the respective candidates, the respondents have adopted the available ratings on the basis of which marks have been assigned. The applicants claim is to ignore the non-reviewed ACR and to substitute the same by earlier ACR. This issue has been analysed by the Tribunal more specifically for selection of Member, CBDT. The Tribunal in Laxman Dass case (supra) has held that the grade marks assessed for such incomplete ACRs is not alone for the applicant but for many other candidates who are either in the panel or outside the panel. It is apt to take the extract of Para 29 of the Tribunals order in Laxman Dass case (supra) which reads thus:-
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. Though, the counsel of the applicant has referred to the judgment of Honble Apex Court which are for the purpose of promotion, and are not application for selection. Further, the official respondents have uniformly applied the principle for all candidates and has not substituted non-reviewed ACRs of other candidates. In these circumstances, we do not find any ground to differ from the orders passed by the Tribunal in Laxman Das case (supra).
35. The Selection Committee has applied its mind and has properly assessed the applicant and others in a transparent and non-discriminatory manner. Assigning of grade marks for each year through pre-designed system for which the Selection Committee has been guided by the Government instructions on APAR as well as PMs guidelines on the ACR. The Selection Committee has specifically adopted a complementary system of PMs guidelines upto the year 2008-09 and the APAR guidelines of the Government for the year 2009-10. We are not giving specific details of each of the candidates whose ACRs/APARs have been assessed and assigned grade marks. We are convinced that such assessment has been guided by the respective instructions and based on rational, reasonable and non-discriminatory approach.
36. Considering the analysis made by us on the applicants contentions on his four ACRs, we are of the considered opinion that the official respondents more specifically the Selection Committee have awarded 87 grade points properly to the applicant. The grade points granted to the applicants ACRs for the years 2009-10, 2008-09, 2004-05 and 2003-04 in the Selection Committee being based on the extant guidelines are legally sustainable and procedurally tenable. Thus, the third issue on the four ACRs of the applicant is answered in favour of the official respondents stand.
Decision making Process
37. Our careful perusal of the file placed before us by the official respondents 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 Cabinet Secretary chaired the meeting where Principal Secretary to Prime Minister, Home Secretary, Secretary (Personnel) and Secretary (Revenue) participated. It was informed to the Committee that the posts of Member, CBDT were in the apex scale of Rs.80,000/- (fixed) with the status of Special Secretary to the Government of India, and the selection of suitable officers is governed by the Central Board of Direct Taxes (Chairman and Members) Recruitment Rules notified on 03.02.2006 as amended on 24.12.2008 as well as the guidelines approved by the Prime Minister. As per the Recruitment Rules, for selection to the post of Member, CBDT an officer should be an officer of the Central Government appointed on a regular basis in the grade of Pay Band-4 Rs.37,400-67,000/- with Grade Pay of Rs.12,000/- per month (Revised Rs.67,000-79000), and possessing the following essential qualifications (a) having at least 15 years of experience in administering and running the indirect tax administration in the Central Government with at least 10 years of experience in the field of formations of Central Board of Direct Taxes; (b) having high professional merit and excellence; and (c) having impeccable reputation of integrity. Recruitment Rules also provide that no person with less than one year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. As per the guidelines approved by the Prime Minister, for empanelment for the post of Member in the CBDT, officers of IRS(IT) will require to have at least one years service in the post of Chief Commissioner of Income Tax or equivalent in the cadre, as on 1st April of the year for which the panel was being prepared. The guidelines provide that, 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. The Committee was informed that in CBDT, 5 vacancies were anticipated in the year 2011-12 and therefore a panel of 8 officers were prepared. We note from the minutes that the Committee was also informed that, in order to avoid deep selection from the selection year 2008-09, it was decided to adopt the principle of zone of consideration as provided under DOP&Ts O.M. No.22011/2/2002-Estt(B) dated 6th June, 2006. (The correct date is 6th January, 2006). According to this, for selection of 8 officers, (panel strength, in this case) 20 senior most willing and eligible officers were to be considered.
38. In respect of the ACRs of the candidates, the respondents following the judgment of Honble Supreme Court of India in the matter of Dev Dutt versus Union of India, copies of the ACRs for the last 10 years were supplied to all the officers under consideration to enable them to represent against the remarks/gradings in the ACRs. The representations received from the officers in this regard were considered by the Revenue Secretary and decision taken in each case was placed before the Committee. The principles already approved by the Committee in its meeting held on 14.02.2011, based upon the principles followed in finalizing the panel of Members for CBDT for 2010-11, was followed.
39. The Committee took note that out of 30 candidates, 2 officers, namely, Shri S. Pradhan, IRS (IT:1977) and Ms. Parvinder Behuria, IRS (IT:1977) were promoted to the grade of CCIT vide Office Order dated 22.01.2010 but they could not assume charge of the post since they had been on deputation under the Central Staffing Scheme. The amendment dated 13.07.2006 of PMO guidelines stipulates that for empanelment for the post of Member in the CBDT, officers of the Indian Revenue Service (Income Tax) will require to have at least one years service in the post of CCIT or equivalent in the cadre, as on 1st April of the year for which the panel was being prepared. Keeping in view the fact that the above 2 officers had been granted pay scale of CCIT under next below rule and that they could not assume charge of the post only because they were working as Additional Secretary to the Government of India/Secretary, PESB under Central Staffing Scheme, which is equivalent to the grade of CCIT, it was proposed by the Selection Committee that they would be considered for empanelment, subject to approval by the ACC to relax this condition contained in the PMO guidelines. The Committee considered the senior most 20 officers and remaining 10 officers were not considered. The 20 officers were arranged in descending order of their average ACR grading marks and the first 8 persons were selected for inclusion in the panel. Once the top 8 candidates had been so selected, they were again re-arranged according to their inter-se seniority as per their Service [IRS (IT)] seniority list. Thus, after taking into account their service records, the annualized ACR gradings, the seniority and also the relevant reports about their vigilance status and integrity, the Committee recommended the empanelment of the following officers belonging to the IRS (IT), 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 2011-12:-
Satyendra Singh Rana, 1975 K. Madhavan Nair, 1975 Sharad Chandra Jaini, 1976 Sudha Sharma, 1976 R.K. Tewari, 1976 S.S. Bajpai, 1976 Vijay Sharma, 1976 S. Pradhan, 1977
40. The ACC considered the proposal submitted by the Cabinet Secretary and approved the empanelment of 8 officers for the Indian Revenue Service (Income Tax) for appointment as Members, Central Board of Direct Taxes against the vacancies arising during the year 2011-12, in the order of the names as indicated above and accorded relaxation in respect of the empanelment of Shri S. Pradhan of the stipulation in the PMO guidelines by the ACC, and also the appointment of Shri Vijay Sharma subject to the opinion of CVC.
Observations
41. The Selection Committee was informed that deep selection was avoided w.e.f. 2008-09 selection year and zone of consideration based on panel strength was being adopted. Earlier, the Selection Committee was considering all eligible candidates irrespective of size of the panel. From 2008-09 the size of the zone of consideration was fixed as per the DOP&T OM dated 16.01.2006. The Selection Committee very consciously adopted the panel strength as the basis for zone of consideration. The past practice in this rgard is about four years old including the selection year 2011-12. In the absence of any Rule/Regulation/Guidelines, though the panel strength seems reasonable, the respondents should come out with appropriate amendments or issue fresh guidelines to make it clear what would be the size of zone of consideration. In order to decide the size of zone of consideration, the Government has three options, vacancy based/panel based/eligibility based. The deep selection is otherwise known as eligibility based which may include all those eligible candidates/applicants and by this method, it has been stated that very juniors having better grades get selected leading to supersession of large number of seniors. Vacancy based zone of consideration is not followed as the Member, CBDT post is filled by selection and not by promotion. By this method, number of candidates for consideration get extremely limited. Third basis is panel strength based zone of consideration. The panel strength is decided by multiplication of 1.5 with the number of vacancies. The size of the zone of consideration in this panel strength method is bigger than the vacancy based system and smaller than the deep selection method. We, therefore, find that there is logic in adopting panel strength as the basis for determining the size of the zone of consideration. This past practice has withstood the test of time w.e.f. 2008-09 and is noted to be reasonable and the rights of the applicants to be considered have not been deprived. We are of the considered opinion that the said executive practice and past understanding have become a convention. If the official respondents desire the same can be formalized.
Considered Conclusions
42. We note that the Selection Committee in the present case has adopted the policy to select 8 candidates in the panel as per the PM Guidelines for the same to be achieved size of zone of consideration has been taken as 20 and concluded that the last candidate i.e. 8th positioned officer secured 90 marks which was taken as the cut off mark and those who have secured 90 marks and above were put in the panel. Of course, if the required number of persons to be put in the panel does not meet the marks from out of the zone of consideration, the cut off marks might have come down to find the candidates to be put in the panel. It is not in dispute that out of 8 persons to be in the panel, 4 are within the first 14 candidates and the remaining are from among the candidates between 15 and 20. The apprehension of the applicants can be appreciated. But when the respondents go for a transparent and reasonable selection process, follow the past practice to draw up the zone of consideration and adopt a neutral method combining the provisions of RR, guidelines and DOP&T OM, the process of selection cannot be faulted. They have adopted the panel strength as the basis for preparing the zone of consideration. The respondents have not committed any procedural error though their action is not backed by any specific law or rules but the practice that is being followed is the established practice and the convention for which the zone of consideration is prepared for four years and has already withstood the test of time and has become binding on the respondents. The applicants were not unaware of the past established practice to draw up size of zone of consideration on the basis of panel strength. Had they changed the course for preparation of the panel for 2011-2012 by taking the number of vacancies as the basis, the other candidates would have, of course, been prejudiced and challenged the same. Further, the quality of selection would have come into the challenge by those who could not be considered though eligible. The intention of the Government is to maintain high caliber persons with proper justification for their empanelment as Member, CBDT. Therefore, the principle of selection process adopted by the respondents based on the strength of the panel for preparing the zone of consideration, in our considered view, cannot be faulted. Therefore, the contentions of the applicants do not convince us for any interference in the matter.
43. It is contended that after the above vacancy circular for filling up the Member CBDT posts was circulated the official respondents forwarded the applicant the copies of his ACRs for the years 1998-99 to 2008-09 vide letter dated 03.01.2011 advising him to submit his representation, if any, against the gradings or comments in his ACRs prior to the year 2008-09. The applicant represented against some of his ACRs. Shri Behera submits that till the date of filing of the rejoinder the applicant has not received any reply from the official respondents about his representation. However, the official respondents filed a reply to the rejoinder annexed a photocopy of an unsigned and undated office note stating that his representation was rejected. But he contends that the said office note filed cannot be taken as a communication to the applicant. Had the official respondents communicated any adverse decision on the representation of the applicant before the meeting of the selection committee, the applicant would have got a cause of action to challenge the same and get it rectified before the meeting of the selection committee. The learned senior counsel for the official respondent submits that the competent authority has already taken decision in rejecting the applicants representation and the same will be communicated. At this stage, we note the position that as Government have taken decision, let the same be communicated to him which will give him a fresh cause of action to challenge the same. This issue in our opinion being independent of the principal issues raised in both OAs, we will rather grant liberty to the applicant to challenge the said decision as and when communicated to him.
44. Taking into account the totality of facts and circumstances of the case and for the reasons given within, we are of the considered views that there are no grounds on the basis of which we can interfere in the matter. The applicants fail to convince us on all the fronts. In the result, both the OAs (OA No.4275/2011 and 08/2012) being bereft of merits are dismissed leaving the parties to bearer their respective costs.
(Dr. Ramesh Chandra Panda) (S.C. Sharma)
Member (A) Acting Chairman
/naresh/