Central Administrative Tribunal - Delhi
Jaspal Singh vs Union Of India Through on 12 December, 2013
Central Administrative Tribunal
Principal Bench
OA No.3817/2012
Reserved on : 22.08.2013
Pronounced on:12.12.2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B. K. Sinha, Member (A)
Jaspal Singh
IRS, Code No.76013,
s/o Sh. Dalip Singh,
Commissioner of Income Tax,
North West Region,
Chandigarh. Applicant.
(By Advocate : Sh. P. S. Khurana)
Versus
1. Union of India through
Secretary to Government of India,
Department of Revenue,
North Block
New Delhi.
2. The Cabinet Secretary
Cabinet Secretariat,
Rashtrapati Bhawan,
New Delhi.
3. Sh. R. K. Tewari, IRS
Civil List Code No.76032,
Member Secretary,
Central Board of Direct Taxes,
Ministry of Finance,
North Block,
New Delhi.
4. K. V. Chowdhary, IRS,
Member Secretary,
Central Board of Direct Taxes,
Ministry of Finance,
North Block,
New Delhi.
5. Anita Kapur, IRS
Member Secretary,
Central Board of Direct Taxes,
Ministry of Finance,
North Block, New Delhi.
6. Deepa Krishan, IRS
Member Secretary,
Central Board of Direct Taxes,
Ministry of Finance,
North Block, New Delhi.
7. Parvinder S. Behuria, IRS,
Member Secretary,
Central Board of Direct Taxes,
Ministry of Finance,
North Block,
New Delhi. . Respondents.
(By Advocate : Sh. R. N. Singh for official respondents
Sh. Abhimanyu, counsel for R-7)
O R D E R
Dr. B.K. Sinha, Member (A):
The applicant in the instant case is an Indian Revenue Service Officer posted as Chief Commissioner of Income Tax in North Western Region, Chandigarh. He has challenged Order No.171 of 2012 appointing one Shri R. K. Tewari as Member, CBDT.
2. The applicant has prayed for the following reliefs:-
(i) summon the relevant records;
(ii) quash the impugned Order No.171 of 2012, dated 28.08.2012, Annexure A-1 passed by the respondent No.1 vide which the respondent no.3 has been selected and appointed as Member of the Central Board of Direct Taxes, Ministry of Finance without considering and deciding the claim of the applicant, who is senior to the respondent no.3, and without deciding the objections as well as the numerous representations submitted by the applicant for not correctly evaluating the grading of the relevant ACRs/APARs as per the relevant guidelines and the principles formulated on the issue in an illegal, arbitrary, unfair, discriminatory and unconstitutional manner and also being not sustainable in the eyes of law;
(iii) appoint the applicant as Member of the Central Board of Direct Taxes being fully eligible, qualified and for granting all the consequential benefits arising there from the date the respondent no.3 was allowed to illegally join as such;
(iv) quash the impugned panel adopted by the Selection Committee for financial year 2012-13 with a direction for re-casting the same keeping in view the submission made and the existing DOPT instructions.
(v) To review the selection and appointment of the respondent no.3 as Member of the Central Board of Direct Taxes, Ministry of Finance made by the respondent nos.1 and 2 without considering and deciding the claim of the applicant, who is senior to the respondent no.3, and also without deciding the objections as well as the numerous representations submitted by the applicant for not correctly evaluating the average grade as per the relevant guidelines and the principles formulated on the issue. The said appointment is, therefore, illegal, arbitrary, unfair, discriminatory and unconstitutional and not sustainable in the eyes of law;
(vi) Pass an appropriate order or direction appointing the applicant as Member of the Central Board of Direct Taxes, in the light of submissions made and the existing DOPT instructions and guidelines of the government of India, and for granting all the consequential benefits arising there from the date the respondent no.3 was allowed to join as Member, CBDT.
(vii) Grant any other relief to which this Honble Tribunal may deem fit in the facts and circumstances of the case may also kindly be granted;
(viii) The compliance of Section 24-A of the Administrative Tribunals Act, 1985 be dispensed with;
(ix) cost of the application be also awarded in favour of the applicant and against the respondents;
3. The applicant has confined his argument to only three points. His grievance is that he has not been considered for the post of Member, CBDT for the financial year 2012-2013, and despite being the senior most Revenue Officer his junior one, Shri R. K. Tiwary, has been promoted. The applicant submitted that the post of Member, CBDT is a selection post, selection to which is governed by the guidelines issued by the Department of Personnel & Training OM dated 6.01.2006. Earlier, this matter was regulated by an OM of the same department dated 22.04.1992, whereby there was a normal zone of consideration twice the number of vacancies plus four, while the extended zone of consideration included 5 times the number of vacancies. However, vide OM dated 8.02.2002, it was decided that the officers were only to be graded as Fit or Unfit. The OM dated 6.01.2006 has further rationalized the zone of consideration in light of the instruction regarding the grading of officers as Fit and Unfit. The applicant submits that the rules were framed as per the Notification dated 2.02.2006 for regulating the method of recruitment for the post of Chairman and Member, CBDT called Central Board of Direct Taxes (Chairman & Members) Recruitment Rules, 2006. A Selection Committee headed by the Cabinet Secretary including Principal Secretary to the Prime Minister was constituted for this purpose. Prior to this, the selection was guided by the twin principle of fitness and seniority for which a panel was prepared. All officers considered fit were placed in the panel without there being a distinction on the basis of grading of the ACRs, irrespective of the fact that whether it was very good or outstanding. The gradings of Very Good and Outstanding were treated at par until the recruitment rules came into effect consequent to the notification dated 2.02.2006. As per OM dated 23.07.2009, a different system of grading was introduced w.e.f. the financial year 2009-2010 under which the Annual Performance Assessment Reports (APARs) between the range of 8 to 10 were to be treated as Outstanding and a score of 9 was to be adopted for the purpose of section and promotion. A copy of OM dated 23.07.2009 has been placed at Annexure A-14. Likewise, numerical scores of 6 to 8 were to be treated as Very Good with a score of 7 to be adopted. As per the information derived under the RTI Act, 2005, the Screening Committee for the last 10 available ACRs/APARs will grade in the manner i.e. 9 points between the scores of 8 to 10 and 7 points for a score of 6 to 8. The Selection Committee determines the aggregated scores of the officers in the zone of consideration and the same are tabulated in a descending order. The relevant number of officers to be empanelled is drawn from this tabulated list on the basis of the aggregated scores. Thereafter, the officers empanelled are again rearranged in the order of seniority while appointing them as Members/Chairman of CBDT.
4. The argument of the applicant is that he is aggrieved with the grading made by the selection committee for the year 2002-2003. The respondents have stated in their counter reply that a part of the ACR was missing and, therefore, the applicant has been given 8 marks. However, learned counsel for the applicant argued that it is not possible to get 8 under the system of grading in operation after 2008-2009 where the ACR between 6 to 8, short of 8, it is adjusted at 7 and where it is more than that it is adjusted at 9. Therefore, it is not possible for the applicant to have received 9. The second argument the applicant has made in this regard is that a part of the ACR for the year 2008-2009 is missing. However, this was not communicated earlier and has been reported only in the year 2008. However, the same ACR was available in full and was used for promotion of the applicant to the post of Chief Commissioner of Income Tax. Further the applicant has drawn our attention to the letters written by his former reporting authority one P L Rungta, the erstwhile Director General of Income Tax (Inv.) (retired). He vide his letter dated 30.01.2003 enclosed the ACRs of 8 officers including the applicant figuring him at No.3. When it was brought to his notice that the same has not been received by the applicant he enclosed another copy of the ACR vide his communication dated 31.01.2012 in respect of the applicant. Since the covering letters are placed on the file and has been extracted by the means of RTI Application, there is no question of original not being there. The 3rd argument of the applicant that the ACR is not available, as per the guidelines referred to above, the incomplete ACR for a year will not be used and in that case the next available ACR will be used. Since the ACRs for the year 2011-2012 are available, the same could have been used and assessed in both these cases. The applicant stands to gain one point each and, therefore, his total number of points scored would come to 91. As the promotion is to take place on the basis of merit-cum-seniority he would be considered first in the list.
5. The Respondent Nos. 1 & 2 have filed their counter affidavit praying for dismissal of the OA. The answering respondents in this application have raised a preliminary objection that the applicant submitted a representation which was yet to be decided and has since approached the Tribunal by filing the OA which has rendered unsustainable on this ground. The applicant has, therefore, not approached this Tribunal with a clean hand. The answering respondents further submits that it is not within the domain of this Tribunal to sit as an Appellate Authority over the assessment of the DPC except in the rarest of rare cases where findings of the DPC may be tainted with malice. It is a DPC alone which is capable of judging the comparative merit of different candidates as has been held in the case of Dalpat Abasdaheb Solunke v. Dr. D. B. Mahajan AIR 1990 SC 434. The above legal position has been reiterated by the Honble Apex Court in the case of State of Madhya Pradesh v. Srikant Chaphekar 1992 (5) SLR 635.
6. The case of selection is distinct from that of promotion and this being a selective post the candidates those have secured more marks than the applicant will merit above him. The applicant would have therefore, no case even if he were to get two marks etc as it stands the case of the applicant has been rejected by the selection committee.
7. Respondent nos. 1 & 2 contend that after due consideration there is little relief that this Tribunal can give to the applicant by way of overruling the recommendation of the DPC. The respondent nos.1 & 2 have further denied having received the 2nd part of the ACR for the year 2002-2003. However, while admitting the receipt of the letter of P L Rungta, the former Director General of Income Tax (Inv.) (retired), the answering respondents deny having received the enclosures in respect of the applicant and, therefore, the non-availability certificate has been given as per the procedure. The respondents no. 1 & 2 have also contested the submission of the applicant that prior to the notification of the recruitment rules, the selection/appointment to the post of Member/Chairman, CBDT was governed by the OM dated 6.01.2006. This was not possible as the Recruitment Rules 2006 were notified on 3.02.2006 and there was no selection in the period between 6.01.2006 to 2.02.2006. To the contrary, the empanelment process was covered under the instructions contained in the guidelines approved by the Prime Minister (Annexure R-II). As per the instructions, 5 marks were to be given to the Outstanding ACRs, 4 marks to Very Good ACRs, 2.5 marks to Good ACRs and Zero mark for ACRs below Good. However, in practice to avoid decimals, 10 marks are assigned to Outstanding, 8 marks to Very Good and 5 marks to Good. From the year 2009-2010 onwards, the procedure is covered by the Circular dated 23.07.2009 whereby 9 marks are assigned to numerical gradings from 8 to 10 and 7 marks for grading between 6 to 8 and short of 8. The selection committee has thus followed the principle scrupulously without fail.
8. The respondent no.7 one Parvinder Behuria, Member Secretary, Central Board of Director Taxes, Ministry of Finance, North Block, New Delhi has filed his counter affidavit wherein he has resisted the Original Application. The respondent no. 7 submits that while the applicant has challenged the selection procedure adopted for constituting the select panel for the year 2012-13 for appointment to the post of Member, CBDT. The validity of the selection procedure had been tested and upheld by the Tribunal in the case of TBC Rozara versus Union of India & Others (OA No. 8 of 2012 decided on 25.05.2012). This Tribunal in the afore cited case had clearly held as under:-
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 year 2009-10, 2008-09, 2004-05 and 2003-04 in the Selection Commi9ttee 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
9. The work of assessment of the ACRs had been done by a Sub Committee comprising the Revenue Secretary and the Secretary (Personnel) and the grade points were assigned as decided by the Sub Committee. The learned counsel appearing for the respondents submitted that the ACRs including the APARs had been provided to the officers in the zone of consideration as per the judgment in Dev Dutt versus Union of India [2008 (8) SCC 725). However, since there was a conflict between the judgment of Dev Dutts case (supra) and that of Satya Narayan Shukla and K.M. Mishra, the matter had been referred to a Larger Bench. The learned counsel for the applicant informed the Tribunal that the Larger Bench had applied its mind and upheld the judgment in Dev Dutt versus Union of India (supra) vide its order dated 07.05.2008. The respondent no.7 further submitted that even if the applicant was to succeed in the prayer made, he would be required to undergo a regular selection process. In that eventuality, one R.K. Tewari placed lowest in the merit in the select panel would get impacted by any future decision by the Department of Revenue, Government of India taken in accordance with law post the decision of this Tribunal. The respondent no.7 further submitted that with regard to 10 ACRs of R.K. Tewari, which were considered for the selection as Member, it was found that he had secured less marks than awarded to the respondent no.7. One K.V. Chowdary has also secured lesser marks than him. Therefore, in the case of any reversal to be ordered by this Tribunal, the persons namely R.K. Tewari followed by K.C. Chowdary were to be affected and not the respondent no.7.
10. We have carefully considered the pleadings of the rival parties and the respective documents submitted by the parties and listened their oral submissions. During the course of the arguments, the learned counsel for the respondents has produced the original records bearing File No.3.9/2012-CS(A) [ACC Cell] in two Volumes as also the proceedings of the DPC held on 01.10.2010 and the report of the Sub Committee including the Calculation Chart. Some officials from the Department were also present who, during the course of the arguments, assisted the learned counsel for the respondents in his presentation. On the basis of the above, the following questions need to be asked so that the existing issue may be resolved:-
1) Whether the grading system followed by the respondents is contrary to what has been provided in the Recruitment Rules dated 2.02.2006 in terms of assigning marks?
2) Whether the respondents have received the missing second part of ACRs for the year 2002-2003 which they have previously used in promoting the applicant to the post of Chief Commissioner of Income Tax?
3) Assuming that the argument of the respondents is correct that second part of the ACR for the year 2002-2003 has not been received whether the DPC should have gone back to the 1st year when the next ACR was available?
11. In respect of the first of the issues, we need not go into the same as arguments of both the parties have already been recorded. We simply state that the situation has been complicated by the fact that two different sets of ACRs were being considered. Admittedly, the Government of India has switched over from the ACR to the APAR from the year 2009-10. This switching over had been necessitated by the decision rendered in number of cases including that of Dev Dutts case (supra). Admittedly, the year 2009-10 had been the transitional year switching over from ACR to APAR system. Thus, when the Selection Committee considered 10 years, the 2009-10 was one of such years 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 had been APAR based. This signifies that two sets of performance assessment were required to be made by the Selection Committee. In this respect, the PMO guidelines also become pertinent for that matter. Under the ACR System, as per para 2 (g) of the Circular of the Cabinet Secretariat bearing No.3.3/2006 (7)PS(a), the following point systems has been devised:-
Sl.No. Grading Points
1. Outstanding 5
2. Very Good 4
3. Good 2.5
4. Others 0 For APAR system, which was introduced in the year 2009-10, as per Annexure-I of the OM dated 21.07.2009 of the DOPT, Ministry of Public Grievances & Pensions, the following grading points have been provided:-
Sl.No. APAR Grading Equivalent Grading Points
1. 8 to 10 Outstanding 9
2. 6 to 8 Very Good 7
3. 4 to 6 Good 5
4. Below 4 0 The Sub Committee comprising the Secretary (Personnel), Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions; and Finance Secretary, Ministry of Finance, finalized the CR gradings of officers under consideration for the post of Member, CBDT for the last ten years available and also placed on records. We find that as per this gradings, the applicant has secured total of 89 marks. The main grievance of the applicant relates to two years. We have noted that the ACRs are recorded in several parts, which may be, say for instance, 7 months in one part and 5 months in the other; or it may even be 2 months for first part, 4 months for second part, 6 months for the remaining period. In such cases, the aggregation is done by following a method of straight line average. Since points are also being allocated in fraction, there may be a difficulty in aggregation of the same. As per the system being followed, the final scoring as provided in para no.11 above is rounded off to the next whole number as per the method explained above. Here two different alternative methodologies could have been followed. One was that each fraction is rounded off and then aggregated, and the final aggregated figure being rounded off again. The second methodology is that the weighted average of the numbers is calculated and the final figure is rounded off as in the manner provided above. The results in both the cases would be different. Assuming a particular ACR is recorded in three parts, each in fraction and the same are first rounded off, then aggregated and then rounded off again, the figures would be obviously higher than that where the ACRs are aggregated and rounded off finally. This matter had been referred to the DoP&T vide OM dated 16.05.2012 as under:-
2. The above methodology is being followed for assigning score in respect of APAR/ACR from the year 2009-10 onwards for empanelment for appointment to the posts of Member CBDT & CBEC. In connection with calculation of ACR/APAR scores for empanelment for appointment to the above post of it has been noticed that in a few cases, the officers under consideration have multiple APAR with different numerical gradings for some years and this Department was applying the principle contained in the OM dated 23rd July, 2009 in respect of each such ACRs and thereafter taking straight average of the average scores of multiple ACRs. For example, if in one part the numerical grading is 7.4 and in the other it is 9.5, the average of 7 & 9 i.e. 8 is taken. However, some officer have represented that this system is disadvantageous to them and therefore requested that the numerical gradings of different ACRs should be totaled in the first instance (i.e. 7.4 + 9.5 = 16.9 divided by 2 = 8.45) and then the score may be assigned according to the average i.e. 9 as per the principle contained in the DoPTs OM mentioned above. However, the reply of the DoP&T communicated vide its OM dated 07.06.2012 is as under:-
2. The issue raised is working out the average to be done arithmetically. The rating and assignment of score given in O.M. dated 23.07.2009 will ordinarily apply in the case of APARs and there are no separate instructions on part APARs. Assessment in such cases is left to the DPC for promotions.
12. The meeting of the Departmental Committee was held on 14.02.2011. The said Committee considered and decided in its minute of even dated that the past ACRs communicated by the Department of Revenue would be considered by the Committee. The Committee also agreed that the suggestion of the Revenue Department that the ACR assigned grading by the Department of Revenue would be vetted by a Sub Committee comprising Secretary (Personnel) and Revenue Secretary. The Committee also agreed on the following:-
6. The Committee was informed that from 2009-10, the two services would be taking into account APAR gradings which gave specific numerical ratings. The Committee was also informed that the DoP&T O.M. dated 23.7.2009 required that APARs graded 8 and above were to be treated Outstanding and given a score of 9 for the purpose of calculating average score for empanelment/promotion. Similarly, APARs graded 6 and above but short of 8 are to be treated as Very Good and given a score of 7. This would imply giving a score of 10 for Outstanding and 8 for Very Good for ACRs prior to 2009-10, while giving the score of 9 for Outstanding and 7 for Very Good for APARs from 2009-10 onwards. The Committee noted that the DoP&T O.M. dated 23.7.2009 had been issued with the approval of the competent authority and would apply to APARs containing numerical gradings. The PMO Guidelines, which preceded the APAR system itself, naturally covered ACRs which did not contain numerical gradings but only overall assessment. Hence, the Committee concluded that the PMO Guidelines could confine to apply for all ACRs and the DoP&T OM for all APARs. The Committee concluded that there was no inconsistency in the above, especially because the same norms would be applied uniformly to all the candidates. Thus, the principles approved by the Selection Committee for consideration are as follows:-
2. Since the full CRs for all officers for the year preceding the panel years will not be ready by February- March when the panel for the next year is prepared, the last ACR i.e. the ACR for the year preceding the year for which panel is prepared shall not to be considered, even if it is available in some cases. For example, for preparing the panel for year 2011-12, the ACRs upto and including the year 2009-10 only is considered. The 2010-11 ACRs whether for the part year or for the full year shall not be considered even if available.
3. Instead of following monthly weighted average method for assessing the ACR, the ACR should be treated for the whole year and the assessment of the ACRs should be done as per the following principles:
If the Reviewing Officer has upgraded or downgraded an officer without giving any justification for such upgrade or downgrade, as the case may be, then the original grading by the Reporting Officer is taken, If the Reviewing Officer has upgraded or downgraded an officer, with justification for such upgrade or downgrade, as the case may be, then the revised grading of the Reviewing Officer is taken, If grading by the Reporting Officer is not specific, but that of the Reviewing Officer is specific, then the specific grading by the Reviewing Officer is taken, whether or not he has given any justification for such grading.
If grading by the Reviewing Officer is not specific, but that of the Reporting Officer is specific, then the specific grading of the Reporting Officer is taken, whether or not there is any justification for the grading by the Reporting Officer.
If the overall gradings by the Reporting Officer and the Reviewing Officer are both not specific then an overall view is taken by analyzing the gradings or remarks given against the various attributes and the general remarks.
In case there are multiple ACRs in a year (i.e. different part periods), first apply the principles at (i), (ii), (iii), (iv) and (v) to the ACRs for a part period to arrive at a single overall grading for that part period. Then take a straight average of the points so arrived at for the different part periods. It was in this backdrop that the ACRs of the officers within the zone of consideration were appraised. In this regard, it is necessary to re-visit the submission of the applicant as stated in his representation dated 03.04.2012 (b) the points of the APAR for the period 01.04.2009 to 16.08.2009 is 7.7 7.0 and for the period 17.08.2009 to 31.03.2010 is 8.9 9.0. The overall average point is 8.0 i.e. average of 7 and 9. In this respect also, I wish to submit that the methodology adopted does not appear to be correct and fair. In this year, there were two APARs namely for the period 01.04.2009 to 16.08.2009 for which the grading by the Reporting/Reviewing Officer was 7.7 and for the second period i.e. 17.08.2009 to 31.03.2010, the grading by the Reporting/Reviewing Officer was 8.9. As seen from the above, the 2nd period of the APAR was for 7= months, which has been graded as Outstanding [Being 8.9] whereas the grading for the first part comprising of 4= months is adopted as Very Good [Being 7.7]. Before applying the criteria as per Office Memorandum No.210111112005-Estt. (A) (Pt-II) Government of India/ Ministry of Personnel, Public Grievances and Pension/ Department of Personnel and Training) dated 23.07.2009, the average of the points awarded for the 1st and 2nd period should have been adopted namely 7.7 + 8.9/2 = i.e. 8.3 and thereafter the criteria as per the above O.M. dated 23.07.2009 should have been adopted whereby it would have been determined at 9. Even otherwise, it would be very reasonable to plead that the letter APAR which is also for the longer period deserves more weighted.
13. The learned counsel for the applicant had vehemently argued that the score given in the appraisal could not have been 8. If it was below 8, it should have been rounded off at 7 and in case it was above 8, it should have been rounded off to 9.
14. We find that the contested entries in respect of the year 2010 for the applicant is in two parts one for 5 months where he has been given 7.7 points by the reporting officer and the same has been given by the accepting officer. The other part of the entry is for 7 months where the reporting officer has rated him 8.9 and the reporting officer also rated him 8.9. Thus, taking these two gradings together, it comes to at 8.0. We also find that the rating from 1.4.2009 to 16.08.2009 was covered under para 4 of the OM dated 23.07.2009 as referred above which provides that APAR grading between 6 and short of 8 will be treated as Very Good and will be given a score of 7. Therefore, we find that the applicant has been rated at 7.7 which is short of 8 and should have been given 7. However, for the second period of 7 months, he has been rated as 8.9. Had we been taking a weighted average in that case the score 7.7 would have been as follows:
7.7 x 5 + 8.9 x 7 /12 = 8.4 In that case for below 9 it would been rounded off to 8. However, no weighted average is being taken but rather a straight line average is taken as provided in the guidelines itself. The rating of 7.7 will be rounded off to 7 while 8.9 will be rounded off to 9. Thus, the formulation that emerges using the straight line method is as follows:-
9 + 7 = 16/2 = 8
15. Now we have to see whether the same method has been adopted in other cases as well where multiple gradings are there. One Surindra Kumar Mishra at serial no.2 has been graded 9 for 7 months and 9 for 4 months. Using the straight line method, it comes to 9 + 9 = 18/2=9. However, this may not be the appropriate example as the gradings are the same. In the case of one S.K. Sen, he was graded 7.15 by the reporting officer for 7 months while for the remaining 5 months, there was a certificate for non-availability of ACRs. Accordingly, applying the straight line method to the gradings 7.15 + 7.15 = 14.30/2=7.15 which has been rounded off to 7.0. It has also been submitted that this very panel was challenged in the case of TBC Rozara Versus Union of India (supra).
16. The respondents have strongly urged that this Tribunal is precluded from sitting in judgment over the deliberations of the DPC. All that this Tribunal can do is to point out whether the DPC meeting is held by some procedural laches or violation of some rules or is hit by malafide. In the case of K.P. Singh versus Union of India [OA No. 878 of 2007 decided on 03.07.2007], this Tribunal was required to apply its mind qua challenge to the Selection Committee for the post of Member, CBEC. This Tribunal came to the conclusion by holding as under:-
42. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that, in the first instance, appointment to the post of Member, CBEC, is not a promotion per se. The standard guidelines for promotion, including O.M. dated 08.02.2002 (supra), are not strictly applicable to the appointment aforementioned. It is now more so in view of Rules of 2006. The Selection Committee was, therefore, within its rights to devise the criteria for assessment, which, unfortunately, resulted in supersession of the applicant. Secondly, given the facts and circumstances of the present case, we also do not find any merit in the contention of the applicant that the Selection Committee could not have taken into consideration any material, which would visit the applicant with evil consequences, without putting him on notice. Likewise, in the case of Brijesh Gupta versus Union of India & Others [OA No. 4275/2011], which was heard and decided commonly with the case of TBC Rozara versus Union of India & Others [OA No.8/2012] vide its order dated 25.05.2012, the matter was very akin to what is before us. In OA No. 4275/2011, the applicant who had been working as Chief Commissioner of Income tax was aggrieved by the decision of the Selection Committee when he did not find himself in the panel of 20 officers prepared for selection by the size of the panel for being appointed as Member, CBDT. In OA No. 8/2012, the applicant T.C. Rozara Chief Commissioner of Income Tax was also aggrieved by his non-selection to the post of Member, CBDT for the panel year 2011-12. He challenged the selection mainly on the ground of improper marking done to his ACRs, number of vacancies having been inflated and the zone of consideration prepared for selection being violative of the extant Government instructions. He also prayed to treat his ACRs for the year 2009-10, 2008-09 and 2004-05 as Outstanding and grant him 10 grade points for each of these years and to ignore the incomplete ACRs for the year 2003-04 and in its place to consider the ACRs for the year 1999-2000. One of the issues that had arisen for consideration was whether the respondents were to be directed to upgrade the marks assigned to 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? In other words, the validity of this very panel was under challenge by two different applicants. This Tribunal discussed the new APAR system introduced by the Government of India w.e.f. 2009-10 and came to the conclusion as under:-
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. The Tribunal, therefore, declined to interfere in the panel. As stated earlier, that of course, the challenge in the afore cited case was by different sets of persons, however, it was the validity of the panel that was being challenged including the integrity of the process.
17. In the instant case, it is the marking system which is being challenged. The applicant has not challenged whether the system of straight line marking as decided upon is correct or not rather the applicant challenges the application of the system. The contention of the applicant is that for the year 2009-10, he should have been given 9 points instead of 8. We have already seen in the above case that in so far as methodology is concerned, we tend to agree with the respondents. The DPC was free to devise its own system and this was the system that was decided upon. The records of the proceedings were produced before us. We further found after having gone through the records of the 20 officers that in the case of multiple gradings, the system has been uniformly applied and it was not a case of Pick and Choose selectively. Therefore, this issue is decided against the applicant.
18. Now we take up issue no.2. The arguments of the applicant have already been noted that the ACRs for the year 2001-02 were duly recorded and were dispatched by the accepting authority by means of a covering letter dated 30.01.2003. It has also been argued that while the ACRs of all other officers are there on record, it is only the ACR of the applicant in respect of which a non-availability certificate has been issued. It is also the case of the applicant that the same ACR had been used while promoting him as CIT, therefore, non-availability of the ACR for the second promotion gives rise to natural suspicion. The applicant has further approached the reporting officer one P.L. Rungta [former DIG (I&B)] who once again forwarded the ACR vide letter dated 31.01.2012 to the authorities. The argument of the applicant is that there is no reason why his ACR should go missing while those of other which had been forwarded along with his ACRs at the first instance on 30.01.2003 should go missing. His contention is that efforts should be made to trace his ACR or alternatively they could go one year below and consider an alternative ACR. On the other hand, the learned counsel for the respondents has vehemently argued that full efforts were made to trace the concerned ACR of the applicant but the same being not available, a non-availability certificate was issued when the applicant was promoted to the post of CIT in the year 2009. The applicant, however, denied that ACR was not available and rather stated that the ACR had been used on one occasion and was deliberately made to go missing for the second time when it came to his empanelment for the post of Member CBDT. We, of course, find it strange that when ACRs of 9 officers were sent by the same covering letter then why ACR of only one officer went missing. However, we are not in a position to unveil the mystery but it could be done only by the Department itself by conducting a closed enquiry. We, therefore, place reliance upon the words of the learned counsel for the respondents that efforts were made to trace out the missing ACR but when not being successful, the non-availability certificate had to be issued. We clearly hold that the subsequent letter sent in the year 2011 by the erstwhile reporting officer one P.L. Rungta is not acceptable at this late stage. The ACRs have to be recorded within two months of retirement of the reporting officer. The ACRs cannot now be accepted with a delay of almost 8 years. For whatever reason that might have been the ACRs were not available and the authorities were faced with no choice except to issue a non-availability certificate.
19. In consideration of the above facts, we find that the applicant was promoted to the rank of CIT despite the concerned ACR being not available. This fact had already been considered by the DPC held on 01.10.2010. It was for the applicant to have challenged the non-availability certificate at that point of time. However, having not done that, no ground emerges vide which the applicant could ask for setting aside the recommendation of the DPC in this respect on the ground of non-availability of his ACR for the period 01.04.2002 to 31.12.2002. We, therefore, decide this issue against the applicant as well.
20. Now we consider as to what relief could be given to the applicant. Having decided all the previous issues against the applicant, we find that the applicant has failed to substantiate any of the grounds on basis of which the proceedings could have been set aside. On the other hand, we also find that the question of ACR being missing for the period 01.04.2002 to 31.12.2002 is an old story which had been considered by the Government and a non-availability certificate issued. This Certificate forms the basis of his promotion as CIT. Therefore, the applicant cannot now turn around and say that he challenges his missing ACR in the instant Original Application.
21. In the facts and circumstances of the case enumerated above, we find that there is no merit in the instant Original Application and the same is ordered to be dismissed without any order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/