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VINEET OHRI
 
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Date of decision : 30 November 2011

2011-HRIOL-04-CAT-SERVICE-DEL

CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH NEW DELHI

OA No.3929/2011

VINEET OHRI
D-1033, NEW FRIENDS COLONY
NEW DELHI 110 065

Vs

1. UNION OF INDIA THROUGH
SECRETARY DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, NORTH BLOCK
NEW DELHI 110 011.

2. SHRI M. C. THAKUR MEMBER
CENTRAL BOARD OF EXCISE & CUSTOMS
DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, NORTH BLOCK
NEW DELHI 110 011.

3. SMT. SHEELA SANGWAN
MEMBER CENTRAL BOARD OF EXCISE & CUSTOMS
DEPARTMENT OF REVENUE
MINISTRY OF FINANCE
NORTH BLOCK, NEW DELHI 110 011

V K Bali, Chairman AND Dr. Ramesh Chandra Panda, Member (A)

Dated: November 30, 2011

Appellants Rep by: Shri Atul Nanda, Senior Adv with Shri C. Harishankar, Sh. Jagdish N. and Shri S. Sunil
Respondents Rep by: Shri Rajeev Kumar for Respondent No.1 Shri Amit Anand Tiwari, Shri Ashutosh Jha and Shri Jagdev Singh for Respondent No.3

Administration - Selection of Member of CBEC - Vineet Ohri's candidature directed to be considered by Review Selection Panel - Considering names of officers with less than one year service left is not correct: Government faulted in including the names of such persons in the zone of consideration who are not eligible as per the condition that minimum of one year of residual service on the date of vacancy. The official respondents would have done well to go down the list of candidates in the zone of consideration to find out those who would be eligible to be considered for the said vacancies. Had such analysis been done, the case of the applicant may have come within the select list for empanelment. Having included those persons (J. V. Singh, T. Prem Kumar and Hrishikesh Sharan ) in the Panel year 2010-2011 who did not have one year of residual service on the date of vacancy, such inclusion in the Panel for the year 2010-2011 has been flawed. The applicant whose date of retirement is 31.01.2013 and has been eligible for all four vacancies if he has been in the appropriate rank in the merit list, would be entitled for consideration for empanelment to the post of Member, CBEC . Government directed to re-examine the case of the applicant in a Review Selection Committee and find out whether after omission of those three officers who have been included in the Panel and later on passed over from the Panel, whether the applicant would be eligible to be considered for empanelment in the Panel year 2010-2011 for the post of Member CBEC .

Case Law referred:

Laxman Das and Another versus Union of India and Others - (2011-HRIOL-02-CAT-SERVICE)

JUDGEMENT

Per: Ramesh Chandra Panda:

Shri Vineet Ohri, the applicant herein, belongs to Indian Customs and Central Excise Service of 1975 batch. He was promoted as Deputy Commissioner in August, 1983, again as Additional Commissioner on 25.01.1990 and as Commissioner in May, 2001. He reached the grade of Chief Commissioner w.e.f. 27.07.2007 vide order dated 26.11.2009. He is presently working as Chief Commissioner, Customs (Preventive) New Delhi w.e.f. 15.10.2011. He is aggrieved of his non selection as Member in the Central Board of Excise and Customs (CBEC) in the Panel year 2010-2011. The 2nd and 3rd respondents have been appointed as Member, CBEC vide office orders dated 31.03.2011 (Page-26) and 18.08.2011 (Page-27). As per the Civil List of Indian Revenue Service (Customs & Central Excise) as on 01.01.2010, the applicant is at Sl. No.17 whereas 3rd and 4th respondents are at Sl. No.20 and 30 respectively and both belong to 1976 batch. It is his case that his juniors have superseded him in getting appointment as Member, CBEC. It is the case of the applicant that he is eligible to be considered for selection to the post of Member, CBEC as per the Recruitment Rules, but his non selection and non appointment to the post of Member, CBEC has been the grievance for which he represented to Finance Minister in his letter dated 22.04.2011 (Annexure-A6) and submitted note dated 18.05.2011 (Annexure-A7) to the 1st respondent. As his grievance was not attended to, he has approached this Tribunal in the instant OA with the prayers to quash and set aside the appointment of 2nd and 3rd respondents with a direction to the 1st respondent to consider applicant's appointment as Member CBEC against the vacancies which arose on 30.11.2010 and also to grant consequential benefits admissible.

2. At the admission stage, while issuing notice to the respondents vide order dated 3.11.2011, we recorded the following:-

"Based on Instructions dated 08.06.2006 (Annexure A-3) as also judgment in OA No. 3823/2010 in the matter of Shri Laxman Das Vs. Union of India & Ors. recently decided by this Tribunal, learned senior counsel representing the applicant, would inter alia contend that in the panel that is to be prepared for the year 2010-11, Mrs. Jasdeep V. Singh, Mr. T. Premkumar and Mr. H.K. Sharan cannot find place for not having the residency period of one year, and if it may happen so, the applicant would be in the panel for consideration for the post of Member, C.B.E.C. Learned counsel would further contend that some juniors of the applicant have already scored over him, and his non-consideration this time would cause irreparable loss to him.

2. Issue notice to the respondents returnable on 17.11.2011. Considering the contention of the learned counsel and the Instructions and Judgment relied upon, we will permit the applicant to be provisionally considered in the panel which shall, however, be subject to final decision of the OA. We further order that if the applicant is not to be appointed, then in the appointment letter of the person last in the merit considered to be appointed by the respondents, it shall be mentioned specifically that his/her appointment shall be subject to the decision of this OA.

3. On our asking, Mr. R.N.Singh accepts notice on behalf of official respondents. This is stated to be covered matter. Respondents may file their reply even on the date fixed in the court itself but copy of the same will be handed over to the counsel opposite two days in advance, who may, if so desired, file rejoinder. Other respondents be served by DASTI service as well."

Subsequently when the case came up on 17.11.2011, the following order was recorded:-

"No one appears on behalf of respondents No.2 and 3 despite second call. They are proceeded ex parte.

Mr. Atul Nanda, learned Sr. Advocate for the applicant, in the context of order dated 3.11.2011, would like to address the arguments on merits of the controversy. However, even though the notice was accepted by Mr. R.N. Singh, the learned counsel on behalf of official respondents and the reply was to be filed today, as specifically mentioned in the order aforesaid even in the court, Mr. Rajeev Kumar, counsel representing respondent No.1, says that the reply shall be filed on Monday. Let the reply be filed on Monday with an advance copy to the counsel opposite, who may file rejoinder, if required. The matter shall be heard on the next date fixed. List this case on 22.11.2011."

Again the matter came up for hearing on 22.11.2011 and we passed the following orders:-

"This order be read in continuation of our order dated 17.11.2011. Even though, respondent No.2 & 3 who were served by the date aforesaid, had not chosen to appear, nor representations were made on their behalf, they were proceeded ex-parte, it was yet specifically mentioned that they be permitted to join if they appear on the next date of hearing. Mr. Amit Anand Tiwary appears for Respondent No.2, but no one has chosen to appear on behalf of Respondent No.3.

Mr. Atul Nanda, learned Senior Counsel representing the applicant vehemently pleads that this Tribunal may restrain the respondents from proceeding to make selections for which the process is to start from 30.11.2011 or may ensure early disposal of the case as delay in the matter would frustrate the cause of the applicant.

Having heard the learned counsel for the parties, we are of the view that there will be no need to stop the ongoing process for selection even though, in view of the facts and circumstances of the case, the matter needs to be disposed of as early as possible. Counsel for the applicant has an apprehension that 3rd respondent who has been served and, for his non appearance, is proceeded ex-parte and yet, permitted to join, may join by the next date of hearing and ask for further adjournment to file reply, which will delay disposal of the OA. We would issue fresh notice to 3rd respondent even though, he has already been served. He may still join but, in case, if he wants to file reply, the same may be filed even on the date of hearing but advance copy of the same must be given to the counsel for applicant, so that the matter can be disposed of by the next date of hearing.

List again on 29.11.2011."

Finally, the case was heard on 29.11.2011 when Shri Atul Nanda, learned Senior Advocate along with Shri C. Hari Shankar and Shri Jagdish, learned counsel represented the applicant and Shri Rajeev Kumar, learned counsel appeared on behalf of Respondent No.1 and Shri Amit Anand Tiwari, Shri Ashutosh Jha and Shri Jagdev Singh counsel argued on behalf of Respondent No.3.

3. The principal contention of Shri Atul Nanda, learned Senior Advocate is that the applicant's case is fully covered by the law laid by the Tribunal in the recent decision in Laxman Das and Another versus Union of India and Others (OA No.3823/2010 and OA No.4043/2010) decided by a common order dated 2.09.2011. As per the Recruitment Rules, Shri Atul Nanda would submit that the crucial factor of one year residual service of the officer's concerned as on the date of occurrence of vacancy has not been strictly followed by the official respondents while finalizing the panel for 4 posts of Members in CBEC for the Panel year 2010-2011. It is submitted that the applicant submitted his representations for non selection vide his letter dated 22.04.201, 18.05.2011 and 25.05.2011. In spite of these letters and notes sent by him, his case has not yet been considered to be included as Member of the CBEC. He drew our attention to a Note at Annexure A-9 to submit that the official respondents have already operated the panel whereby the first vacancy was filled up with Lalitha John and the second vacancy was filled up with Shri Rajesh Dhingra on superannuation of Ms. Chitra Gauri Lal. The said note inter alia indicated that the selection process for the Panel year 2011-2012 had already been initiated and all issues having been settled, the official respondents expect to secure approval for the Panel before 31.03.2011. The 4th vacancy arising on 31.03.2011 would also to be filled up appropriately from the Panel. Shri Atul Nanda submits that for the Panel Year 2010-2011, 4 vacancies were taken into account which would be arising, one on 31.05.2010, two vacancies on 30.11.2010 and one vacancy on 31.03.2011. The 1st vacancy was an actual vacancy, which was existing whereas, 3 remaining vacancies were anticipated vacancies. It is submitted that ten senior most Chief Commissioners of Customs and Central Excise were eligible for consideration as Member, CBEC included the applicant at seniority number 8. Referring to the tabular statement presented during the hearing, he would submit that Shri G. S. Narang at seniority number 1 could not be empanelled. Ms. Lalita John at seniority number 2 has been appointed in the first vacancy. Shri Ajit Kumar at 3rd seniority number was not considered as he has got vigilance cases. Mr. Jasdeep V. Singh, 4th ranked in the seniority list though eligible for 1st vacancy could not be appointed. Shri Rajesh Dhingra who was eligible to be considered for 2nd vacancy and the other officers in the seniority number 6 (T. Prem Kumar), 7 (Shri Hrishikesh Sharan) and No.8 (Shri Vineet Ohri, applicant) have not been appointed. It is contended by the counsel for the applicant that the respondents have not empanelled the applicant though he was eligible for all the 4 vacancies and his junior namely, Shri M. C. Thakur has been empanelled at seniority number 6 against 3rd vacancy. The contention of Learned Senior Advocate is that the 2nd and 3rd respondents who were not having one year of residual service ought not to have been considered, less to speak of including them in the Panel. His case is that if the 2nd and 3rd respondents are not included, the applicant would have a fair chance to be considered for inclusion in the Panel. In view of the above contentions, Shri Atul Nanda would urge that the OA should be allowed and the official respondents may be directed to consider the applicant's case.

4. On receipt of the notice from the Tribunal, the respondents have entered appearance and 1st respondent has submitted its reply affidavit on 21.11.2011, though Shri Rajeev Kumar, learned Senior Central Government Counsel. On behalf of 3rd respondent, Shri Amit Anand Tiwari, learned counsel has submitted the reply affidavit in the court on the final date of hearing i.e. on 29.11.2011.

5. It is contended by the counsel for official respondents that the relief sought for by the applicant to quash and set aside appointment of 2nd and 3rd respondents as Members in CBEC, it would be appropriate to note that the 2nd respondent was appointed as Member, CBEC against the vacancy for the year 2010-2011 whereas the 3rd respondent was appointed as Member CBEC against the vacancy for the Panel year 2011-2012. The applicant has challenged the Panels for the year 2010-2011 and 2011-2012 which amounts to multiple remedies and would, therefore, attract Rule 10 of the Central Administrative Tribunals Rules 1987. It is contended that if the guidelines approved by the Prime Minister were to be applied and no benchmark was to be taken into account, the applicant would have been entitled to empanelment and also to appointment as Member CBEC against the 3rd vacancy for the Panel year 2010-2011, whereas the Member, CBEC being the selection post, the Selection Committee considered the merits of the competing officers and the applicant was not selected. It is further submitted that the applicant's reliance on the judgment of this Tribunal in Laxman Das's case (supra) is not correct as the said judgment is not applicable in the present case. Distinguishing the judgment of the Tribunal in Laxman Das's case where the Tribunal quashed the selection of Shri A. K. Basu who did not have the requisite residual service of one year on the date of occurrence of any of the vacancy in that year, whereas in the present OA, the applicant seeks setting aside the empanelment of Smt. Jasdeep V. Singh, Shri T. Prem Kumar and Shri Hrishikesh Sharan on the ground that the respective dates on which their turn came they did not have the requisite residual service of one year. The contention is that a parity cannot be claimed on the said ground by the applicant as in the case of Laxman Das. It is further submitted that the provisions of Recruitment Rules and the Guidelines issued in the judgment were strictly followed in connection with the preparation of the Panel for appointment to the post of Member, CBEC for the year 2010-2011 & 2011-2012. It is submitted that Smt. Jasdeep V. Singh has the requisite residual service of one year as on 1.04.2010 as well as on the date of occurrence of first vacancy i.e. 31.05.2010. Therefore, there was nothing wrong in her empanelment. However, when her turn came she did not have the requisite residual service and, therefore, as provided under para 2 (c) of the guidelines she was passed over. Similar procedure was adopted in case of Shri Hrishikesh Sharan and in case of Shri T. Prem Kumar who had the requisite residual service of one year on 1.04.2010 was, therefore, considered and empanelled as per the Provisions and the Guidelines, but when his turn came he did not have the requisite residual service. Therefore, he was passed over as provided under the Guidelines. It is, therefore, improper and incorrect to say that the applicant should have been empanelled for the third vacancy position. It is contended that all the officers empanelled were having the requisite service on 1.04.2011 as well as on the date of occurrence of the first vacancy. Therefore, it is submitted that there is no violation of the provisions of Recruitment Rules or the Guidelines approved by the Prime Minister in empanelment for the post of Member, CBEC for the year 2010-2011 and 2011-2012.

6. On behalf of 3rd respondent, Shri Amit Anand Tiwari with Sh. Jagdev Singh, learned counsel, would submit that the applicant's contention that the decision of the Tribunal in Laxman Das's case (supra) was rather mis-conceived. He submits that the right to be considered for either appointment or promotion is a legal right. However, consideration of a government servant if he is found not fit he has no right for appointment. His contention is that in the judicial review the scope of interference is rather limited and it has to be established whether the selection process has been illegal or the Recruitment rules have been violated. In that background, Shri Amit Anand Tiwari would submit that the applicant was considered for appointment but could not be found fit in merit as compared to others. As such, he has no legal right to be enforced through the present OA. On this ground, he would submit that the law laid by the Tribunal in Laxman Das's case (supra) would not come to his rescue. With regard to appointment of Respondent No.3, Shri Amit Anand Tiwari would submit that her appointment was valid and legal as she fulfilled all the eligibility criteria for consideration and no relaxation was granted in her favour though there was a clause for such relaxation. He, therefore, urges that the OA is liable to be dismissed as the applicant himself was found to be unfit for empanelment for the year 2010-2011 and 2011-2012.

7. Having heard the contentions of the rival parties, with assistance of their counsel, we perused the pleadings. We have also taken on record the reply affidavit filed on behalf of 3rd respondent during the final hearing. The main controversy in the issue is rather legal in nature. It is to be considered and determined whether the controversy in the present case is covered by the judgment of this Tribunal in Laxman Das's case (supra) and if so, whether the official respondents are required to be issued any specific directions?

8. As per the Recruitment Rules, Member CBEC is the selection post. Rule 3 of the said RR prescribes inter alia eligibility criteria for selection, qualification and related matters as specified in Column 5 to 14 of the Schedule. It is not necessary to extract the same as it is available in the public domain. It is to be noted that the Cabinet Secretariat in its Confidential Guidelines dated 8.06.2006 outlined the manner in which the selection of Chairman and Members of CBEC is to be considered and the same has been given in the relevant paragraph of Laxman Das's case (supra). It is noticed that the said guideline was issued for selection of the Chairman and Members of the CBDT and CBEC. On a very careful and thoughtful scrutiny, we are of the view that the issue in the present case is covered by our judgment in Laxman Das's case (supra). We take the extract of the pertinent part of our order, which read as follows:-

"15. It is noted that the Para 2 (b) of the Guidelines prescribes to prepare a Panel valid for one year calculating the anticipated vacancies arising in the year. Financial Year (1st April to 31st March) has been adopted for the purpose of drawing up the Panel. Para 2 (e) also provides that panels will be made for vacancies anticipated to arise in one financial year. In order to meet the exigencies, 1 = times of the vacancies rounded to the nearest number, the said panel for the year is to be prepared. Further, a combined reading of the Para 2 (b) and 2 (c) manifests that it is not necessary to prepare a panel for each vacancy but if a panelist whose turn has come for a Member and he has less than one year of residual service on the date of occurrence of the vacancy, he will be passed over. That means, he will not be offered appointment even though he may be in the panel drawn for the year.

16. A close and careful reading of Para 2 (e), (f) and (g) provides clarity on the issue of period up to which the ACRs are to be considered. For the financial year a panel is to be prepared. Para 2 (a) prescribes that last ten recorded and available ACRs of each candidate, would be considered for grading. This provision read with the advertisement which indicated the last date of receiving application as 31.12.2009 for drawing up the Panel for 2010-2011, ACRs available as on 31.12.2009 would be considered. Normally, the Reporting Officer initiates the ACR for the financial year within 3 months from the completion of the financial year. Thus, for the present case, the last available recorded ACR would be 2008-09. The argument of the counsel for applicants is that on the 1st meeting of the COS all recorded and available ACRs should have been considered. The Counsel for the respondents repelled such a view stating that cut off date for the purpose being 1st April, the ACRs up to 2008-09 would be available for consideration of the COS which would suggest that ACRs available up to 31.12.2009 would be the right approach. There is logic and rationality in this contention advanced by the respondents' counsel. We agree with the same.

17. We may consider the issue of crucial date and cut off date which are relevant and pertinent to determine the controversy in the case. (i) what are the crucial dates on which the eligibility of the competing candidates are to be considered for the post and (ii) what is the cut off year and crucial date up to which the ACRs of the candidates is to be considered for the purpose. One must accept that such a crucial date if fixed in a manner in the statutory rule will be binding on the parties. If the guidelines envisage cut off or crucial date, in the absence of the provision in the rule, the same will supplement and guide the respondents. In the absence of any provision in the rule and the executive instructions or if there is any confusion or alternative possibilities, the Tribunal can provide purposive interpretations and constructions in order to avoid hardship in all conceivable cases. It must be understood that whatever date is fixed, some will fall on the right side of the date and some persons will fall on the wrong side of the date. That cannot make the crucial date or cut off date arbitrary unless the date is so wide off the mark as to make it wholly unreasonable. This view was expressed by the Honourable Supreme Court in Union of India versus Parameswaran Match Works [(1975) 1 SCC 305] and Ami Lal Bhat (Dr) versus State of Rajasthan [(1997) 6 SCC 614] in respect of fixation of cut off dates. In a catena of decisions of the Honourable Apex Court it has been held that the crucial date and cut off date can be fixed by the executive authority keeping in view many administrative and other attending circumstances. It also held the view that fixing such dates comes within the domain of the executive authority and the court should not normally interfere with such fixation of a date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. We draw support from the dicta of Hon'ble Apex court in the case of State of Punjab versus Amar Nath Goyal (AIR 2006 SC 171). Further, in large number of judgments of Hon'ble Apex Court viz. D. G. Gouse and Co. versus State of Kerala [(1980) 2 SCC 410]; State of Bihar versus Ramjee Prasad [(1990) 4 SCC 212] it has been held that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.

18. As per the RR, all Chief Commissioners of Income Tax or equivalent of the Central Board of Direct Taxes having essential qualifications, namely at least 15 years of experience in administration and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of CBDT etc. shall be eligible for consideration for Selection for the post of Member, CBDT. Note 2 below the Column 12 of the RR stipulates another important eligibility condition that no person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. The RR-2006 also provide that selection is to be made by the Selection Committee under the Chairmanship of the Cabinet Secretary and comprising of the Principal Secretary to Prime Minister, Home Secretary, Secretary (Personnel) and Secretary, Department of Revenue. It is noted that consequent to RR-2006. Guidelines for the Selection Committee were issued with the approval of the Prime Minister. As per the guidelines, instead of circulating vacancy, a panel for a year is to be prepared calculating on the basis of number of anticipated vacancies X 1.5 rounded to the nearest whole number. It is further noticed that the official respondents adopt the procedure of getting approval of the ACC and the selection and appointment is made in order given in the panel with the approval of the Finance Minister. In case it is considered necessary to deviate from the panel, the same is sent with full justification to the ACC for approval with the concurrence of the Finance Minister. If a panelist whose turn has come for appointment as a Member and he has less than one year of residual service on the date of occurrence of vacancy, he will be passed over. It is noticed that the provisions of para (e) of the guidelines read with Note 2 to the Column 12 of the RR that the preparation of the panel is an important process leading to the appointment. We also find that the official respondents have taken into account the dates of occurrence of vacancies, for the panel preparation ahead of the financial year in order to facilitate the selection process. It is further found that the panel is prepared on financial year basis, for consideration for inclusion in the panel, the crucial date for deciding the eligibility being 1st April of the year for which panel is prepared irrespective of the closing date for submission of application or the date of holding of the meeting of the Selection Committee. In our considered opinion that cut off date for deciding eligibility with respect to age, educational qualification, qualifying service experience is adopted for all Selections'/Appointments/Recruitments by all Government agencies, and as such adopting 1st of April for the financial year is right approach subject of course to the dates prescribed in RR like the date of occurrence of vacancy in the financial year.

(Emphasis added)

19. In the background of the above conclusion arrived at, we notice that pursuant to the circulars calling for application and willingness for being considered for selection for appointment to the post of Member, CBDT during the year 2010-11, 40 officers submitted their willingness. The official respondents having considered those applications and taking into account, one year service in the post of Chief Commissioner of Income Tax/ equivalent posts in the cadre and minimum residual service of 1 year as on 1st April of panel year i.e. 1/4/2010, found that there were 26 officers eligible to be examined. However, it is informed that the selection for the panel preparation for the year 2010-11 could not be finalized 1st October, 2010 as the One Man Committee (Shri P.G. Mankad) was reviewing the selection in view of the representations of some of the applicants. Six vacancies were anticipated during the year 2010-11 (two vacancies on 31.05.2010, one vacancy on 31.12.2010; two vacancies on 28.02.2011 and one vacancy on 31.03.2011) on account of vacancies arising of various superannuation taking place on the respective dates. Hence, as per the Guidelines, against these six anticipated vacancies, a panel of 9 officers was to be prepared and the zone of consideration for Selection Committee was fixed as 22. The crucial date of 1st April, 2010 was adopted by the Official respondents for deciding eligibility (for inclusion in the panel) on two counts viz. (i) one year service in the grade of Chief Commissioner/equivalent and (ii) for reckoning the residual service of one year. The Officers who became eligible on both crucial dates should be considered for selection and their vigilance status, impeccable integrity, ACR grading etc. were assessed.

20. Crucial date to draw a panel for the entire financial year may be 1st April but for the consideration of the eligible candidates and subsequent appointment definitely the RR prescribes the date of vacancy as the crucial date which condition is mandatory. Those who are in the panel but do not have one year of residual service on the date of vacancy, such empanelled persons cannot be offered appointment as Member, CBDT. We are of the opinion that out of two crucial dates, one is for administrative convenience i.e. 1st April, but the second crucial date i.e. date of the vacancy is statutory in nature and mandatory for compliance of the RR prescription. It is the respondents to ensure that officers being considered are eligible in respect of both crucial dates.

(Emphasis added)

21. Our close and careful scrutiny of the file placed before us revealed that the Department of Revenue carried out the simultaneous exercise for the selection to the posts of (i) Member, Central Board of Direct Taxes, and (ii) Member, Central Board of Excise & Customs as the empanelment process is generally carried out annually. The first meeting of the Selection Committee was held on 23rd August, 2010 to discuss the proposal of the Department of Revenue for empanelment for the year 2010-11, where the Department of Revenue indicated that a One Man Committee set up under Shri P. G. Mankad, former Finance Secretary, to look into selection process for appointment in the CBDT/CBEC submitted its recommendations which proposed determination of panel size and other issues. While the Selection Committee agreed with the suggestion regarding the panel size, it did not agree with the change in the system of weighted average of ACRs. The Selection Committee again met on 1st October, 2010. It was informed that the decision of the Selection Committee was placed before the Finance Minister, who directed that the background behind the proposed change must be brought to the notice of the Selection Committee for properly appreciating the suggestion. It was informed that the annualized method was being followed consistently in DPCs. The number of months for which an ACR relates to, as shown in the ACR itself, was quite often found to be different from the actual number of months for which the ACR should have been written. Mankad Committee had made a recommendation to abandon the weighted average method in favour of the annualized method. It was informed that neither in the Recruitment Rules nor in the PMO Guidelines there was any indication as to how the ACRs should be graded. This was left entirely to the Selection Committee to decide, as per the RR. After considering all aspects, the Selection Committee approved the proposal of the Department of Revenue to evaluate the ACRs on the basis of the annualized method as was being done in DPCs. Following three sets of changes were adopted for 2010-11 Panel and thereafter; (i) monthly weighted average calculated i.e. period mentioned on the ACR earlier taken into account was changed to the ACR taken for the whole year on the annualized method; (ii) In the case of multiple ACRs in one year, non specific gradings and unjustified gradings the principles to be followed were laid down. Earlier, the grades at each level (Reporting, Reviewing and Accepting) used to be taken into account by averaging out the gradings. This was changed w.e.f. from 2010-11 panel. The final grade only was taken into account where it was upgraded or downgraded with justification. (iii) Prior to 2010-11, while determining the panel size, apart from the vacancies in the Boards, the likely vacancies outside the Board (Ombudsman, AAR etc.) used to be taken into account. This was changed and the vacancies arising outside the Boards were not taken into account to draw up panel from 2010-11. The Selection Committee also finalized the principles to be followed in the evaluation of ACRs. The Committee was further informed by the first respondent that 26 officers who satisfy the minimum qualifying criteria as per the Recruitment Rules and the PMO Guidelines were to be considered in detail by the Selection Committee. The Committee was informed of the provisions of the RRs and the PMO Guidelines for selection for appointment to the posts of Member of the Central Board of Direct Taxes.

22. The Committee considered the names of the senior most 22 officers. Four officers were not considered. The CVC has denied vigilance clearance in respect of Shri B. R. Sondhi against whom major penalty proceedings are pending and the Committee decided that he was not clear from the vigilance angle. In regard to Shri R. N. Tripathi, V. K. Bhatia, Akhilesh Prasad and K. P. Singh, the Central Vigilance Commission observed that certain matters were pending/under process in respect of these officers and advised that the factual position in respect of the impugned matters concerning them should be placed before the Competent Authority while it would decide the suitability of these officers for selection. The Committee has gone through the details of these pending matters and noted that (a) the CVC did not deny the vigilance clearance to these officers, and (b) no disciplinary action was pending or contemplated against them. The Committee, therefore, found that it would not be correct to exclude them altogether from the panel on the ground of these pending matters. If the average gradings justify their inclusion in the panel, then they must be included, subject to the condition that appointment as Member can be made only if they are clear from the vigilance angle at the time of arising of vacancy of Member. The Selection Committee arranged 22 officers in descending order of their available ACR gradings and the first 9 persons were selected for inclusion in the panel. Once the top 9 candidates had been so shortlisted, they were again rearranged according to their inter se seniority, as per their IRS seniority list. Thus, after taking into account their service records, the annualized ACR gradings and also the relevant reports about their vigilance status and integrity, the Committee recommended the empanelment of the following nine officers belonging to the Indian Revenue Service (Income Tax), in the order of the names as indicated below, for appointment as Member in the Central Board of Direct Taxes against the vacancies arising in the year 2010-11, which was approved by the Appointments Committee of the Cabinet.

A. K. Basu, 1974

M. C. Joshi, 1974

Hardeep Srivastava, 1974

V. K. Bhatia, 1974

Qaiser Shamim, 1974

Kamlesh Argal, 1974

M. Kacker, 1974

Dr. P. K. Saxena, 1975

Satyendra Singh Rana, 1975

23. The respondents took the ground that the eligibility of the persons as on 01.04.2010 was taken into account to finalise the zone of consideration. As on 01.06.2010, the date on which the first two vacancies arose, two officers (Shri Milap Jain and Shri A. K. Basu) were not having the residual service of one year but Shri A. K. Basu, as per respondents, had one year residual service as on 01.04.2010. As on 31st December, 2010, i.e. the date of the subsequent vacancy, 7 officers (A. Prasad, Qaiser Shamim, Kamlesh Argal, Kalyan Chaudhury, Mukesh Bhanti, Anjani Kumar and K. P. Singh) were not having the one year residual service. It was argued by the counsel for the official respondents that if the argument of the applicants and the statutory RR eligibility condition are to be followed, and the officers having the residual service of one year on the date of occurrence of the vacancy are to be considered for inclusion in the panel, all these 9 officers are to be excluded from the zone of consideration. In their place, another 9 officers should have been included in the zone of consideration. That is the interpretation of the statutory provision. This would entirely change the complexion of the panel. Let us assume that one or more unanticipated vacancies arise prior to the date (s) on which these 9 officers had fallen short of the one year residual service, may become eligible, but it must be noted that the unanticipated vacancies arise due to voluntary retirement or punishment of removal/dismissal, or death etc. Panel is not prepared for such contingencies. The empanelment process as stated in the RR is meant for the 'anticipated vacancies'. We, therefore, do not accept the argument of the Official respondents that the panel was also prepared to meet the contingencies of unanticipated vacancies, which may not arise at all.

(Emphasis supplied)

24. The learned counsel for the respondents in one of his contentions submitted that the relevant date for applying the eligibility conditions in the present case was 1 April, 2010 as the financial year wise panel was prepared and selection was not made vacancy wise. He urged that it would be arbitrary to shift this date to the date of the meeting of the Selection Committee, which is 1 Oct, 2010 or the date on which the 1st vacancy actually arose, which is 31 May, 2010. Though, in our above analysis, we have accepted the 1st April as one of the crucial dates for administrative convenience to draw up a Panel for the financial year and to consider ten years of ACRs available on that date, but the crucial date prescribed in the statutory RR cannot be ignored or even violated. By simply choosing the date of the Selection Committee meeting appropriately, it will be possible to disqualify candidates and consequently include others lower down in seniority, thereby changing the composition of the zone of consideration and even the final panel altogether. This will be quite arbitrary. A careful reading of the RR and the Guidelines, we note that there are 4 major eligibility conditions (1) minimum of one year of residual service on the date of vacancy; (2) minimum 1 year qualifying service as Chief Commissioner; (3) 15 years experience in the administration and running of the direct tax administration and (4) out of the said 15 years, at least 10 years experience in the field formations of CBDT. In case of eligibility conditions at (2), (3) and (4) and considering the recorded and available ACRs, 1st April would be the crucial date, but with regard to the eligibility condition at (1) above, the RR being very specific, the eligibility to have minimum one year of residual service has to be adopted even to consider for empanelment. Thus, the clause given in the Guidelines dated 8.6.2006 though clarifies for deletion of such names from the panel, in our view, the said provision of the guideline may meet the requirements of a panel prepared for the year 2006-07 but will not meet the explicit provision in the RR for the subsequent years. If the guidelines are to be followed the 1st respondent was duty bound to carry out amendments in the RR. Though more than 4 years have passed, no amendment of RR has been done. Thus, we are of the considered opinion that the official respondents have faulted in including the names of such persons in the zone of consideration who are not eligible as per condition (1) above i.e. minimum of one year of residual service on the date of vacancy. RR is sacrosanct and the provisions on the eligibility criteria to be taken into account, more specifically, one year residual service on the date of occurrence of vacancy has to be mandatorily adopted."

(Emphasis added)

9. The present case, in our opinion, has the main issue that one year residual service on the date of vacancy is crucial, for consideration, empanelment and appointment. The candidates not having such one year residual service, if at all in the panel need to be ignored and not taken into the zone of consideration. Thus, those of the officers who were not having the one year residual service on the date of vacancy, if at all considered/empanelled/appointed, should be declared as illegal and arbitrary. In the background of the law laid by us in the judgment in Laxman Das's case (supra), when we examine the relief prayed for by the applicant, we find that though the applicant has been considered but has not been empanelled due to his rank in lower merit position, though he was eligible to be considered for all the four vacancies. It is noticed from the statement furnished by the counsel for the applicant not disputed by the counsels for all respondents that names of (1) Jasdeep V. Singh, (2) T. Prem Kumar and (3) Hrishikesh Sharan were included in the panel for the vacancy year 2010-2011 but were passed over as on the date of vacancy they did not have residual service of one year. The procedure adopted in passing over them and not appointing those empanelled officer is correct. But even consideration and inclusion of their name in the panel for the year 2010-2011 is not legally correct. The Selection Committee should have examined when the grading has been given to the officers under zone of consideration that whether each of them are qualified according to their merit in different vacancy slots and if the earlier vacancies are to be filled by the empanelled officers, the other officers are likely to be passed over. Such names should not have been brought into the Panel. To that extent, consideration and inclusion of the names of those in the Panel who have not been appointed as they did not have the one year residual service is not in accordance with the true spirit of the RR. In this context, we are of the considered opinion that the official respondents have faulted in including the names of such persons in the zone of consideration who are not eligible as per the condition that minimum of one year of residual service on the date of vacancy. The official respondents would have done well to go down the list of candidates in the zone of consideration to find out those who would be eligible to be considered for the said vacancies. Had such analysis been done, the case of the applicant may have come within the select list for empanelment. Having included those persons (J. V. Singh, T. Prem Kumar and Hrishikesh Sharan) in the Panel year 2010-2011 who did not have one year of residual service on the date of vacancy, such inclusion in the Panel for the year 2010-2011 has been flawed. The applicant whose date of retirement is 31.01.2013 and has been eligible for all four vacancies if he has been in the appropriate rank in the merit list, would be entitled for consideration for empanelment to the post of Member, CBEC.

10. Considering the totality of facts and circumstances of case, following our judgment in Laxman Das's case (supra), and for the reasons given within, we direct the official respondents to re-examine the case of the applicant in a Review Selection Committee and find out whether after omission of those three officers who have been included in the Panel and later on passed over from the Panel, whether the applicant would be eligible to be considered for empanelment in the Panel year 2010-2011 for the post of Member CBEC. Let the exercise, as ordained above be completed as expeditiously as possible but definitely within a period of six weeks from today. If in consideration as mentioned above, the applicant is to be recommended for the post under contention, our interim directions passed at motion stage on the date when the matter came up for hearing on 3.11.2011 will become operative.

11. In terms of our above directions, the OA is disposed of leaving the parties to bear their respective costs.

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