1. In this OA the applicant has challenged the decision of the respondents not to promote/appoint him to the post of Member, Central Board of Excise and Customs (CBEC, for short). He has further sought a direction to the respondents to convene a review meeting of the Selection Committee held in July 2006 and also in the first/second week of May 2007, to consider the case of the applicant on merit for promotion/appointment to the post of Member, CBEC, with consequential benefits.
2. The bare facts of the case are deceptively simple. The applicant belongs to 1970 batch of Indian Customs and Central Excise Service.
After getting various promotions, he was ultimately promoted to the rank of Chief Commissioner. The applicant has stated that in a meeting of the Committee of Secretaries (C.O.S., for short) held in July 2006 for the purpose of preparing a panel for promotion/appointment to the post of Member, CBEC, the applicant was not empanelled, while his juniors were empanelled. The applicant submitted various representations to Secretary (Revenue), Cabinet Secretary and Finance Minister, but to no avail. Hence the OA.3. When the matter came up for hearing on 25.05.2007, this Tribunal ordered as follows: Learned Counsel for respondents states at the Bar that the appointments would be made before 31.5.2007. In the light of this, we direct the respondents to produce the departmental records and the matter would be finally heard on 29.5.2007.
As there is no question of filling the post of Member, CBEC, as the person who is in position would vacate it only on 31.5.2007, the prayer for grant of status quo, in these circumstances, would be in futility and if it is not so, the matter would be heard in that context on the next date.
When the matter came up for hearing today, learned Counsel for the official respondents submitted that the applicant had been considered for selection for the year 2006 and the records, which are available with the respondents would indicate that he was not found suitable as also five other officers.
In respect of 2007 selection, it is submitted that notwithstanding the provisions contained in Notification dated 2.2.2006 [Note (2) in Column No. (12)], regarding the residual age of the candidates, it has been decided to include the name of the applicant as well, as a candidate, and a decision will be taken after necessary deliberations. It is too premature to pronounce upon the veracity of 2006 selection, as pleadings are not complete.
To be listed for further orders on 6.6.2007. Any appointment made, over looking the applicant, will be subject to the final outcome of the OA.5. On 08.06.2007, after the final arguments were heard, the Tribunal ordered as follows: 2. Any person promoted on the post of Member, Central Board of Custom and Excise during the period judgment is delivered would be told and it would be mentioned in the appointment letter that applicant Shri K.P. Singh has sought for his selection on the post of Member, Central Board of Custom and Excise in the OA 878/2007.
6. The applicant has contended that the next promotional post, for which he is entitled to be considered, is the post of Member, CBEC.Though it is an ex-cadre post, it is a promotion post in terms of the order of the Mumbai Bench of this Tribunal in the case of Dr. M.G.Venugopalan v. Union of India and Ors. (OA No. 505/2002 decided on 01.08.2002) and also as per the order in the case of S.K. Choudhary v.Ministry of Finance (OA No. 704/2001), which has been followed in case of Dr. M.G. Venugopalan.
7. The applicant has stated that promotions to the rank of Member, CBEC were considered by a C.O.S., constituted by the Government of India, which met in the month of July 2006. It is understood that the case of the applicant was not considered at all, whereas the case of Shri S.K.Shingal, who is senior to the applicant, besides various other officers, juniors to the applicant, namely, S/Shri Devendra Dutt, P.C.Jha and A.K. Raha and others were considered and, thus, non-consideration of the case of the applicant is illegal, arbitrary and against the spirit of Government of India instructions dated 14.09.1992 read with the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. v. K.V. Jankiraman , since on the date when the Committee of Secretaries met in July 2006 and even as on date, the applicant was neither placed under suspension, nor was facing any disciplinary proceedings, as no charge sheet whatsoever has been issued till date, and further the applicant has never faced any criminal prosecution and hence there is no question of pendency of any criminal charge against the applicant. As a matter of fact the work and conduct of the applicant, throughout his service career, remained upto the mark and even, at one point of time, the office of respondents had awarded the applicant with a "Samman Patra" in 1999.
8. The applicant has further contended that Shri J.M.K. Sekhar, who belongs to 1972 batch and had joined the office of respondents as on 11.12.1972, has also been promoted to the post of Member, Central Board of Excise & Customs on 28.02.2007 by virtue of his empanelment in the meeting of the C.O.S. held in July 2006. However, the applicant, who belongs to 1970 batch has been ignored. A special C.O.S. meeting, as was convened in the case of Shri B.M. Singh, has not been convened in the applicant's case, despite receipt of Vigilance Clearance of the applicant by the Department of Revenue in January 2007 from the CVC, which is highly discriminatory.
9. The applicant has argued that post(s) in question is/are Group 'A' post(s) and is/are required to be filled up by adopting the selection method and, thus, ACRs of the individual concerned play a very important role and, undoubtedly, at no point of time adverse remarks have been communicated to the applicant. Since the applicant thus has comparable excellent/very good service record, his supersession, without considering his case on merits, is illegal and arbitrary.
10. The applicant has further contended that it is understood that the case of the applicant has not even been considered by C.O.S., which met in July 2006, on the ground of patently false and vague allegations against the business activities of the applicant's son, which were referred to the CBI by the Department of Revenue in June 2006 and consequently, after registering a Preliminary Enquiry (P.E., for short), the CBI is enquiring into those allegations. The rule relating to withholding of promotion, where a mere inquiry is pending with CBI or Department was amended in the year 1991 and the new and contemporary rule was not applied in the case of the applicant. Up to the year 1991, sealed cover procedure could be followed in case an investigation on serious charge of corruption was pending and where no formal charge-sheet had been issued. However, this rule was changed in the year 1991. Notwithstanding the fact that the rule was amended, the Competent Authority appears to have relied on the old rule in the case of the applicant.
11. The applicant has further stated that on the superannuation of Shri V.P. Singh as on 31.05.2007, again one post of Chairman and as follow up, one post of Member, CBEC, will be falling vacant on 31.05.2007 and it is highly probable that again an officer junior to the applicant may be considered and promoted on the consequential vacancy of a Member. In fact, the C.O.S. is again understood to have recommended a panel for the post of Member, excluding the name of the applicant and without considering his case on merits.
12. The respondents have contended that the applicant's case rests on the assumption that he has not been considered for appointment to the post of Member, CBEC, in the selection, which took place in July 2006.
Placing reliance on the order of the Tribunal rendered in the case of Dr. M.G. Venugopalan (supra), applicant seeks review of the selection, which took place in July 2006. But this assumption of the applicant that he has not been considered in the above said selection is factually wrong. The applicant was duly considered, in accordance with procedure being followed for selection to the post of Member. On the basis of evaluation by the C.O.S., which constitutes the Selection Committee, the applicant was not found suitable for appointment.
13. The respondents have further contended that appointment to the post of Member, CBEC, is by selection. Seniority has no relevance in adjudging suitability. Besides a good record of service, and experience, impeccable integrity is an important element, which goes into the process of assessment. Since the CBEC is entrusted with a wide range of power and functions, including taking policy decisions having a bearing on the country's revenue, the Selection Committee is guided by considerations of selecting persons with un-blemished record. It would be, therefore, inappropriate to treat or equate the process of selection to the post in question to any other post in the civil services with all its attributes of promotion, seniority, gradation of merit etc. Thus, just because the applicant has not been found suitable, it cannot be taken to mean that his case has not been considered at all. Once it is shown that by applying relevant and uniform criteria and, after due consideration, assessments have been made in regard to suitability, this Tribunal may decline to probe into the matter or to sit in judgment over the selection process and the outcome of the selection. The records of the case will show that C.O.S.has been guided by the relevant and uniform criteria. In the absence of any allegations of bias and mala fides, this Tribunal will refuse to scrutinize the records of the case for an enquiry beyond the relief claimed in this OA.14. The respondents have stated that reliance placed by the applicant on the case of Dr. M.G. Venugopalan (supra) is misconceived. At the time of adjudication of Dr. M.G. Venugopalan's case (supra), there were no rules framed under Article 309 of the Constitution, regulating the method of recruitment to the post of Chairman and Members of the CBEC.Based on the then prevailing convention that the senior-most officers belonging to the Indian Customs and Central Excise Services were used to be appointed as Member, CBEC, and also taking note of an earlier order of the Tribunal in the case of S.K. Choudhary (supra) this Tribunal took the view in Dr. M.G. Venugopalan's case (supra) that the post in question is a promotion post. For want of vigilance clearance, which was withheld for reasons of certain pending investigation and prosecution at the preliminary stage, the case of Dr. M.G. Venugopalan (supra), was not taken up for consideration by the Selection Committee.
The non-issuance of the vigilance clearance was found by the Tribunal to be wrong and, consequently, directions were issued for grant of vigilance clearance and reconsideration of his case thereafter.
However, in the instant case, no vigilance clearance has been withheld nor there has been a lack of consideration, on such grounds. During the selection process of July, 2006, various materials, including inputs supplied by the Central Vigilance Commission, which are in addition to the departmental vigilance clearances, and all other relevant materials have been considered in the process of evaluation and assessment of the comparative merits of the officers in the zone of consideration and in terms of Central Board of Excise and Customs (Chairman and Members) Recruitment Rules 2006 (Rules of 2006, for short), which have now been framed. The selection process is also regulated by internal guidelines emanating from the Office of the Prime Minister. The parallel sought to be drawn between the case of the applicant and the case of Dr. M.G.Venugopalan (supra) on the ground that in both cases the investigations or prosecutions were only at the preliminary stage and no charge-sheet had been filed or departmental enquiry initiated, is also equally misconceived. In the case of applicant and other officers, in terms of the guidelines referred to above, the Central Vigilance Commission has given negative feedback in respect of the applicant. Thus, it may be seen that the case of Dr. M.G. Venugopalan (supra) is not similar to that of the applicant. To reiterate, the case of the applicant has been duly considered. His non-empanelment on grounds of comparative merit and suitability cannot, therefore, be a subject of scrutiny in the instant case.
15. The respondents have further contended that subsequent to the order in the case of Dr. M.G. Venugopalan (supra), the process of appointment to the post of Member, Central Board of Customs Tribunal again came up for consideration in OA No. 1416/2005 (Inder Raj Soni v. Union of India and Ors.) decided on 08.06.2006. After considering the earlier judgments referred to above, this Tribunal held as under: 15 The appointment may have some elements and characteristics of promotion but it is definitely not a promotion in the strict sense in which it is considered in service jurisprudence.
21'But for an ex cadre post of the nature and importance like Member, CBEC the SCOS, which is competent to devise its own procedure may not exclude from consideration 'agreed lists' along with other relevant service records and information received or collected specifically for selection. It will be incorrect to hold that the information which has been received by the CBI and the Government should first be communicated to the affected officer and a hearing to be provided to him before his name is included in the agreed list 16. It has been contended that the very nature of the office, to which the appointment as a Member, CBEC is made, would allow the Government to collect information about the person under consideration from any of its sources and it may be futile to contend that the selection has to be based purely on available service record of the officer. Even report from the Intelligence Bureau is called for in the matter of appointment to certain very high and sensitive posts, viz. the High Courts and certain other bodies. It is also taken into consideration for deciding the suitability of the persons to man such high posts.
17. It has been further argued that the applicant's seniority alone will not be a justifiable criterion for his promotion, ignoring other factors to assess and evaluate his suitability for the post. His reputation about honesty and integrity is one of the relevant considerations. In the absence of any statutory rules or provision to the contrary the Selection Committee is not obliged to record reasons for its decision to select or not to select a particular person.
18. As regards the selection set in motion in the year 2007, the respondents have contended that the matter is still under process. The applicant's name has been brought within the zone of consideration. The matter is in the domain of Appointments Committee of the Cabinet. It would, therefore, be inappropriate to offer any comments or make any submissions in this regard. Since the applicant's only grievance is the alleged non-consideration, which has been shown to be wholly wrong, nothing survives in the OA for further consideration by this Tribunal.
19. In his rejoinder, the applicant, apart from reiterating and elaborating on various averments made in the main application, has stated that it is his basic plea that his case was not considered on merits by evaluation of the records of the applicant vis-`-vis other eligible officers figuring within the zone of consideration. If the aforesaid exercise was not carried out by the respondents, then certainly this Tribunal has jurisdiction to scrutinize the entire records. In fact, it is understood that the ACRs of the applicants, besides those of other officers, were prepared by the Department of Revenue in the form of a comparable chart after giving marks to all the eligible officers. It is a verifiable fact which can be seen from the file of Department of Revenue concerning the relevant COS meetings.
20. He has further argued that for carrying out selection of Member, CBEC, there is hardly any difference between the selection under the Recruitment Rules notified on 02.02.2006 and the procedure followed on earlier occasions. Thus the ratio of the order of this Tribunal in the case of Dr. M.G. Venugopalan (supra) is still valid.
21. During oral arguments, Shri G.D. Gupta, learned Counsel for the applicant, in the first instance, argued that the promotion/appointment of applicant as Member, CBEC could not have been withheld simply because some P.E.s were pending against him. He went on to contend that adverse remarks in ACRs, if any, or other material adverse to the case of the applicant in terms of his promotion cannot be relied upon or given weightage by the competent authority, if the applicant was not put on notice for it. He further drew our attention to the instructions issued by the Department of Personnel and Training (DoP&T, for short), vide O.M. dated 14.09.1992 (supra), whereby promotion could be withheld (by using 'sealed cover' procedure) only under certain specific circumstances, as mentioned in the counter affidavit. Apart from the case of Dr. M.G. Venugopalan (supra), he cited the judgment of the Hon'ble Supreme Court in the cases of Union of India and Anr. v. S. K.Goel and Ors.State of U.P. v. Yamuna Shanker Misra and Anr. , to argue that there should be objectivity, impartiality and fairness in writing of ACRs and no adverse remarks in ACRs should be recorded unless the officer concerned had been confronted with them in advance. He further cited the judgments of the Hon'ble Supreme Court in the cases of Gurdial Singh Fiji v. State of Punjab; AIR 1979 SC 1626; and Barkha Gupta v. High Court of Delhi Through Registrar General and Anr. ) to further argue that adverse material in the ACRs, not disclosed to the petitioner, cannot be used for denying promotion to him. He also cited the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Ors. v. Sughar Singh 1974 (1) SLR 435 to argue that an order, which visits a public servant with any evil consequences or casts an aspersion against his character or integrity, must be considered to be one by way of punishment, which cannot be imposed without due process of law. Relying on the judgment of the Hon'ble Supreme Court in the case of S.B. Bhattacharjee v. S.D. Majumdar and Ors. Appeal (Civil) 2527/2007 et al, decided on 15.05.2007, the learned Counsel, in the context of Rules of 2006 notified on 02.02.2006, argued that the Recruitment Rules must be followed in 'letter and spirit'.
22. Learned Counsel further contended that the Recruitment Rules notified on 02.02.2006 had all the characteristics of promotion by selection as held by this Tribunal in the case of Inder Raj Soni v.Union of India and Ors. (OA No. 1416/2005 decided on 08.06.2006). He, therefore, argued that the guidelines issued by DoP&T in O.M. dated 08.02.2002 (supra), which dispenses with the practice of supersession in promotion, would apply in the case of the applicant too. He stated that it is understood that the Selection Committee fixed a benchmark of 8.5 marks for empanelment of officers for the post of Member, CBEC.Therefore, if the applicant had achieved the said benchmark, promotion to him could not have been denied.
23. Learned Counsel for the applicant further stated that the respondents have not denied that the case of the applicant was not considered on merits after the receipt of vigilance clearance in January 2007 (Ground-F). The respondents have also not specifically denied the contention of the applicant that his name was not in the 'agreed list', i.e. list of officers of doubtful integrity (Ground-G).
The applicant's apprehension that he has not been considered by C.O.S.on account of pendency of a P.E. relating to some false and vague allegations against the business activities of applicant's son, has also not been denied by the respondents (Ground-M). A conjoint reading of these averments and the corresponding counter replies, the learned Counsel contended, would show that in spite of vigilance clearance and in spite of the fact that the applicant's name was not in the 'agreed list', relying of some extraneous material in the name of so-called 'inputs' and 'report', the applicant's case was not considered 'on merits' for promotion, simply on account of the pendency of a P.E.24. Shri R. Venkatramani, learned Counsel for the respondents, opened his arguments by highlighting the fact that the job of Member, CBEC, was of a sensitive nature and, therefore, persons of impeccable integrity alone could be selected for it. Thus, it was not a question of denying appointment, in the present case, only if disciplinary proceedings or criminal prosecution was pending against the applicant or the applicant was placed under suspension, for that matter. He further invited attention to Rules of 2006, which were formulated taking note of the judgment of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra), orders of this Tribunal in the case of Dr.
M.G. Venugopalan (supra) and Inder Raj Soni (supra) as well as the instructions and guidelines of the DoP&T issued vide O.M. dated 14.09.1992 (supra) and O.M. dated 08.02.2002 (supra). Rules of 2006 specifically mention that the posts of Chairman and Members of CBEC shall not form part of the cadre of any organized Service under the Central Government. The provisions of the Recruitment Rules in respect of Member, CBEC are as follows: 3. Classification General Central Service, Group `A', Gazetted, Non-Ministerial.
5. Whether selection or selection-cum-seniority or non selection post. Selection.
7. Whether benefit of added years of service admissible under rule 30 of the Central Civil Services (Pension) Rules 1972. Not applicable.
8. Educational and other qualification for direct recruits. Not applicable.
9. Whether age and educational qualification prescribed for direct recruits will apply in the case of promotees.
11. Method of recruitment whether by direct recruitment or by promotion or by deputation/ absorption and percentage of posts to be filled in by various methods. Deputation/ Absorption.
12. In case of recruitment by promotion/deputation / absorption, grades from which promotion/deputation/absorption to be made.
Deputation/ Absorption (i) Officer of the Central Government appointed on a regular basis in the grade of Rs. 22,440 24,500/- (i) 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 formations of Central Board of Excise and Customs.
NOTE : (1) The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
(2) No person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration.
13. If a Departmental Promotion Committee exists, what is its composition. Not applicable; However, a Selection Committee with the following composition shall make selection of eligible officers to be appointed to this post by the Central Government.
(iv) Secretary (Personnel) Department of Personnel and Training Member; Note: 1. The Cabinet Secretary may co-opt Chairman, Central Board of Excise and Customs for Selection Committee meetings.
14. Circumstances in which the Union Public Service Commission is to be consulted in making recruitment. Consultation with Union Public Service Commission not necessary.
25. In particular, the learned Counsel for the respondents invited attention to Column No. 5, which, according to him, prescribed an additional criterion of 'selection' over and above the existing criteria of 'selection-cum-seniority' and 'non-selection post'. This, according to him, paved the way for supersession. He further invited attention to Column No. 12, which, inter alia, prescribed 'Having impeccable reputation of integrity' as one of the essential qualifications for the post.
26. On the strength of Rules of 2006 aforementioned, the learned Counsel argued that since the post of Member, CBEC, was not a cadre post, the question of Members of Indian Revenue Service (Customs & Central Excise) [IRS (C&CE), for short] cannot aspire to be promoted to it. Even though conventionally, the Members of IRS (C&CE) have been appointed as Members CBEC, in view of the qualifications prescribed in the Rules of 2006, even Members of CESTAT would be eligible to be considered for appointment to that post. Inasmuch as the issue of promotion was not in the reckoning, various guidelines and instructions issued by DoP&T with regard to promotion, including O.M. dated 14.09.1992 (supra) and O.M. dated 08.02.2002 (supra) were not applicable in the present case.
27. Learned Counsel further argued that insofar as Column No. 13 of Rules of 2006 prescribed that the Selection Committee may devise ways to assess candidates, the Selection Committee was free to obtain reports from various sources to arrived at an informed decision, given the sensitive nature of the post. In this context, he invited attention to Section 8(1)(g) of the Central Vigilance Commission (CVC, for short) Act 2003, which provided that CVC shall, inter alia, tender advice to the Central Government on such matters as may be referred to it by the Government. It is in this context that the Central Government had obtained the advice of CVC, which gave a `negative' feedback.
28. Learned Counsel for the respondents cited a catena of judgments to argue that promotion can be withheld if there are serious allegations, even though no disciplinary proceedings have been initiated, and the recommendations of the DPC could be deemed to have been kept in the 'sealed cover'. He also argued that the Selection Committee is not required to record any reason for non-empanelment of officers with outstanding service records and inclusion of a candidate's name in the selection list does not give him any right to be appointed to the post.
Moreover, the courts cannot interfere with the evaluation made by a Selection Committee and an expert body, like a Public Service Commission, can evolve its own mode of evaluation of merit and selection of the candidate [Satya Narain Shukla v. Union of India and Ors.Union of India and Ors. v. Kali Dass Batish and Anr.Delhi Development Authority v.H.C. KhuranaMajor General Lakhwinder Singh v. Union of India and Ors. {W.P. (C) No. 899/2006 (Delhi High Court) decided on 22.03.2007}; Union of India and Ors. v. Shri R.C. Sehgal, {W.P. (C) No.10541-43/2006 (Delhi High Court) decided on 17.11.2006}; and M.L. Sant v. Union of India and Ors. (O.A. No. 1554/2004, decided on 06.01.2005)].
29. Learned Counsel further argued that the facts of the case of Dr.
M.G. Venugopalan (supra) were different. In that case, clearance from vigilance angle had not been made available to the Selection Committee on the ground of pendency of P.E. and hence the Tribunal came to the conclusion that vigilance clearance could not have been withheld on that ground. In the present case, the vigilance clearance has not been withheld. He also contended that the judgment of Hon'ble Supreme court in the case of Yamuna Shanker Misra (supra) is not applicable in the present case insofar as it was a case of downgrading of ACR. The case of Barkha Gupta (supra) is one of discreet enquiry. Similarly, the issue in the case of Sughar Singh (supra) is different. In fact, there is no case set up by the applicant that any un-communicated adverse remark has been relied upon by the Selection Committee.
30. Learned Counsel invited our attention to the order of this Tribunal in the case of Inder Raj Soni (supra) to argue that appointment to the post of Member, CBEC, can no longer be deemed to be a promotion since the Tribunal took a different view in that case. The ratio of the order of this Tribunal in the case of Inder Raj Soni (supra), in this regard, has been further affirmed in the order of this Tribunal in the case of Rakesh Kumar v. Union of India and Anr. (OA No. 1656/2006 decided on 21.02.2007). In any case, Rules of 2006 have been framed to remove any lingering doubt in the matter.
31. We have heard the learned Counsel for the parties at great length and perused the material on record. We have also taken note of the proceedings of the Selection Committee and related documents, made available to us by the learned Counsel for the respondents. We have also taken into consideration the case law, which has been cited on behalf of the parties in support of their respective averments.
32. The original scenario drawn up by the applicant was that he was not at all considered for the post of Member, CBEC. However, after the respondents had filed the counter stating that the applicant's case for promotion/appointment as Member, CBEC, was indeed considered by the Selection Committee, the applicant has sought to lay more stress on his averment that his case was not considered on merit. In either case, his apprehension is that due to pendency of some P.E.s, his case has not been properly considered or considered and rejected on extraneous considerations. In this context, he has, inter alia, placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.V.Jankiraman (supra), the order of this Tribunal in the case of Dr. M.G.Venugopalan (supra) as well as O.M. dated 14.09.1992 (supra) and O.M.dated 08.02.2002 (supra).
33. The respondents would contend that a lot of water has flown under the Ganges since the case of Dr. M.G. Venugopalan (supra) was decided.
They have contended that on account of notification of Rules of 2006, the rules of the game have completely changed.
34. The facts of the case of Inder Raj Soni (supra) are surprisingly very similar to the one before us, except that in the case of Inder Raj Soni (supra), the applicant was denied the appointment as Member, CBEC, inter alia, on account of the fact that his name was put on the 'agreed list', which is not part of the factual matrix of the present case.
However, in the case of Inder Raj Soni (supra), this Tribunal has already traversed more or less the same ground as we are required to do. In addition, it examined the ratio of 'voluminous case law', including most of the significant judgments/orders cited by the applicant. Rules of 2006 dated 02.02.2006 were also within the knowledge of the Tribunal, although the case of Inder Raj Soni (supra) pertains to a period preceding the notification. Some of the findings and rulings of the Coordinate Bench of this Tribunal in the case of Inder Raj Soni (supra), therefore, need to be quoted in extenso. First and foremost, regarding the issue whether the post of Member, CBEC, is a promotional post for the officers of IRS (C&CE), the Tribunal examined the various contentions and held as follows: 14. A question has been raised whether the post of Member, CBEC is a promotion post for the members of IRS (CE&C). There is no dispute that it is an ex-cadre post though the applicant has claimed that it has all the characteristics of a promotion post. This post is not in the hierarchy of IRS but conventionally only the seniormost Chief Commissioners with certain length of residual service, presently one year residual service before retirement, are eligible for consideration for appointment as Members. So it is submitted by the counsel for applicant, the appointment made to the post of Member is a promotion of an IRS officer. To contra the official respondents claim that the post of Member is an ex-cadre post but conventionally the seniormost Chief Commissioners Members of IRS (C&CE) upon selection are appointed to that post, and that does not make it a promotional post. Counsel for applicant has relied upon two orders of Mumbai Bench of this Tribunal titled S.K. Chaudhary v. Union of India 2002 (1) 39 ALT 481 which was followed in the case of Dr. M.G. Venugopalan v. Union of India and Ors. OA No. 505/2002 decided on 1.8.2002. He has argued that the Mumbai Bench of this Tribunal in the case of S.K. Chaudhary (supra) has held that the appointment to the post of Member (CBEC) is a promotion and this view has been followed in the later judgment of the same Bench in the case of Dr.
M.G. Venugopalan (supra). In the case of S.K. Chaudhary (supra) the Tribunal after observing that no guidelines have been laid down for appointment to the post of Member further observed that there should be some guidelines and in the absence of the guidelines what should be the test for examining the grievance of the applicant? The Tribunal observed further 'we find from the record that though the posts in question are ex cadre posts but while preparing the panel COS has considered all the persons in the eligibility zone on the basis of seniority which principle is being followed by the Department concerned in matters of regular promotion. It is similar to guidelines laid down in respect of regular promotions. Therefore we consider that the appointments of Chief Commissioners of Excise or Chief Commissioners of Customs for CBEC be considered under same OM under which regular departmental promotion is done in accordance with paras 2. 2(i) and 2 (ii) of the OM No.22011/4/91-Estt. (A) dated 14.9.1992.' In Dr. M.G. Venugopalan's case the Tribunal referred to the aforesaid observations and observed that in the above case it was held that the post of Member has to be treated as a promotion post and, therefore, OM dated 14.9.92 will be applicable. Principal Bench of this Tribunal also considered the question whether the appointment to the post of Member, CBEC is a promotion in the case of Virender Singh v. Union of India and Ors.
OA-1649/2003 decided on 24.10.2003. In para 7 of the judgment after noticing the order of Mumbai Bench in the case of S.K. Chaudhary (supra) in extenso the Bench has held as under: These findings clearly show that the Mumbai Bench of this Tribunal had not held that it is a promotional post. We re-iterate that it is not in dispute that it is an ex-cadre post and, therefore, strict provisions of promotion rules will not be applicable. It is akin to a promotion because most of the persons to be considered are of the rank of the Chief Commissioner concerned. Therefore, the applicant cannot contend that it has been held that strictly it is a promotional post.
15. Admittedly, the post of Member, CBEC is an ex-cadre post. It is not a post in the hierarchy of promotional post manned by the officers of IRS. But it is not denied by respondent No.1, Union of India, that conventionally it is being manned by seniormost officers of IRS, i.e., Chief Commissioners of Central Excise and Customs. No statute or statutory rules have provided appointment to the said post only from amongst the Chief Commissioners CBEC but conventionally the senior Chief Commissioner are being considered for empanelment and appointment as Member, CBEC. It is not denied that the Government had not framed any guidelines or recruitment rules for appointment to the post of Member when this selection was held in the month of June 2005. Now, we are told that the Government by notification dated 2.2.2006 published in Gazette of India dated 3.2.2006 has notified Central Board of Direct Taxes (Chairman and Members) Recruitment Rules 2006. As the field of choice is confined to the Chief Commissioners, appointment to the post of Member, CBEC has some traits and colors of promotion. Though in strict sense it is not a promotion. It is a selection from amongst the senior Chief Commissioners in Excise and Customs Department for appointment as Member of the apex body. Though exactly not similar but a parallel may be the elevation of a judicial officer as Judge of the High Court. Some vacancies are earmarked for their elevation and only they are considered for appointment as Judges but it does not amount to their promotion as Judge in the High Court. Not much different situation exist here. The appointment may have some elements and characteristics of promotion but it is definitely not a promotion in the strict sense in which it is considered in service jurisprudence.
In the absence of a statute, the statutory rules or guidelines, indeed, as observed by Mumbai Bench in S.K. Chaudhury (supra) some help can be taken from DoP&T's OM dated 14.9.92 and others but that would not be the only guidelines to regulate the selection process.
For the above reasons we are in respectful agreement with the view of the Principal Bench in the case of Virender Singh (supra) that appointment to the post of Member is not a promotion. But it is similar or akin to a promotion because presently only the seniormost eligible Chief Commissioners, CBEC are in the zone of consideration for such appointment.
35. On the issue whether the Selection Committee can take into consideration material adverse to the applicant (which has the potential to visit him with evil consequences), without putting him on notice, the Tribunal held as follows: 23. The very nature of the office to which the appointment as Member CBEC is made will allow the Government to collect information about the person under consideration from any of its sources and it may be futile to contend that the selection has to be based purely on available service record of the officer. Even report from the Intelligence Bureau is called in the matter of appointment to certain very high and sensitive posts viz., the High Court and certain other bodies. It is also taken into consideration for deciding the suitability of the person to man such high posts. The argument of the applicant that 'agreed list' could be taken into consideration only after the reason for it was disclosed to him and he was heard, i.e. principle of natural justice was followed, to our view is devoid of any substance.
24 Even in the case of selection to the post in hierarchy of cadre or service the decision of the Selection Committee cannot ordinarily be interfered with by the Tribunal unless it is vitiated by malafides and bias (see. State Bank of India and Others v. Mohd.
Mynuddin ). The post of Member CBEC is an ex-cadre post and sensitive post and will not be strictly governed by the administrative instructions regarding promotion to the higher post in the hierarchy or cadre of service. The method of evaluation and the assessment of the person to be selected for such post is ordinarily be left to be decided by the Committee consisting of persons who had the knowledge of requirement of the post. The only caution is that the process of selection adopted by them should be fair and reasonable and should not be vitiated on the ground of bias and malafide. In the present case, apart from the allegation that the Committee has taken into consideration the 'agreed list' which in the words of the applicant is an extraneous material based on information collected behind his back, the remaining material available in the service record including C.R. of the applicant and other eligible persons which was taken into consideration for which the applicant has no grievance. It may be reiterated that the applicant's seniority alone will not be justifiable criterion or his promotion ignoring other factors and consideration to assess and evaluate his suitability to the post. His reputation about honesty and integrity is one of the relevant consideration. Here it may also be pertinent to note that in the absence of any statutory rules or provision to the contrary the Selection Committee was not obliged to record reasons for its decision to select or not to select a particular person. Following principles of natural justice and recording of speaking order will not be necessary in the matter of selection. (See Major General IPS Dewan v. Union of India ). In the present case the Selection Committee has considered the applicant along with his eligible senior and juniors in service and not only the applicant but his senior has also been ignored. There is no allegation of individual malafide or bias against the Members of the Selection Committee. The allegation of malafide or bias is only to the extent of taking into consideration the 'agreed list' and report of respondent No. 8. Applicant's non-selection seem to be based on overall evaluation and assessment of the suitability by the Committee. Needless to repeat that the selection cannot be based on the sole criteria of seniority but it has to be on overall assessment of the candidate. The case of the applicant has been properly considered. Simply because 'agreed list' is also taken into consideration, it is improper to impute legal mala fide against the Selection Committee. There is no reason to assume that the select panel prepared by the Cabinet Secretary with the assistance of the Committee of Special Secretaries was not prepared by making a comparative evaluation of the suitability of the persons under consideration. It may be relevant here to state that the Selection Committee was free to device its own procedure and assess the persons under consideration. In fact in the new Recruitment Rules also the Selection Committee is allowed to devise ways to assess the candidates.
36. The Tribunal also examined the applicability of the ratio of the judgments of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra), Yamuna Shanker Misra (supra) and Sughar Singh(supra) and came to the following conclusions: 34. Applicant has referred to the judgment of the Hon'ble Supreme Court in Union of India v. K.V. Jankiraman to urge that the promotion could be withheld in case the Government servant was under suspension and the circumstances when sealed cover procedure was permissible and no such circumstances prevail in the case of the applicant. Jankiraman's case was a case of a promotion in the hierarchy of the cadre and it is not applicable to the peculiarities of the present case.Badrinath v. State of Tamil Nadu and it is argued that Wednesbury doctrine is applicable in the present case and Tribunal in its power of judicial review can look into the proceedings of the Selection Committee to find out fairness and reasonableness of the proceeding but in this judgment the Hon'ble Supreme Court has also held that unless there is a strong case for applying the Wednesbury doctrine and there are mala fides, Courts and Tribunals cannot interfere with assessments made by DPCs in regard to merit or fitness for promotion. It was further held that 'but in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed.
Undue inference by the Courts and Tribunals will result in paralyzing recommendations of Departmental Committees and promotions.' 36. In the present case the Wednesbury rule cannot be said to have been violated only because 'agreed list', has been taken into consideration. It cannot be said to be an extraneous material or a malafide action on the part of the Selection Committee. There is no violation of rule of natural justice in the present case because the applicant was not heard before his name was placed in the 'agreed list'.State of U.P. v. Yamuna Shankar Mishra in support of the contention that adverse entries in the ACR's 'integrity' column are required to be communicated to the applicant. It is not the case of the applicant that some adverse entry in 'intergrity' column was made which was taken into consideration without giving him an opportunity of explaining it.
The judgment, therefore, does not advance the case of the applicant.State of U.P. and others v. Sughar Singh was a case of reversion of an officer out of 200 similarly situated persons which was founded on adverse entry in the character roll. The Supreme Court on the peculiar facts of the case found the order of reversion punitive. The law laid down is not applicable to the case of the applicant.
37. The Tribunal also dwelt on the scope of judicial review of administrative action, particularly in the context of decision of Selection Committees, and made the following observations: 26. The power and jurisdiction of the Tribunal in judicially reviewing an administrative action is not very wide. The Tribunal review the decision making process, the manner in which a decision is arrived at, and does not review the decision itself. In the context of Selection Committee, the Hon'ble Supreme Court in Dalpat Abasaheb Solunke v. Dr. B.S.Mahajan It is needless to emphasise that it is not the function of the court to hear appeal over the decision of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered only on legal grounds such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved malafides affection the selection etc.
27. It will also be relevant to notice the observation of the Hon'ble Supreme Court in the case of Jai Narain Misra (Dr.) v. State of Bihar So far as the question of suitability is concerned, the decision entirely rested with the Government. In other words, the Government is the sole judge to decide as to who is the most suitable candidate for being appointed as the Director of Agriculture. For discharging that responsibility it was open to the Government to seek the assistance of the Public Service Commission. In our judgment the High Court was not justified in calling for the records of the Public Service Commission and going through the notings made by various officers in the Commission as well as the correspondence that passed between the Commission and the Government. The High Court overlooked the fact that the Government sought the assistant of the Commission and not that of the High Court for finding out the most suitable candidate. In this case there was no complaint of malafides either on the part of the Government or the Commission.
That being so the interference of the High Court in the matter of selection made by the Government was not called for.
28. Even in the case of an ordinary promotion to the higher echelon of a service the right to be considered for promotion has been held to be a term of service but the choice and right of actual promotion are not. (See State of Maharashtra v. Chandra Kant Anand Kulkarni .National Institute of Mental Health and Neuro Sciences v. Dr. K.Kalyana Raman and others 1992 Supp (2) SCC 481, it is held as under: There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with.... Even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement.
This principle has been stated by this Court in R.S.Dass v. Union of India (1986 Supp SCC 617) in which Capoor's case (Union of India v. Mohan Lal Capoor 30. It was observed by the Hon'ble Supreme Court in the case of S.Pratap Singh v. State of Punjab The only question which could be considered by the court is whether the authority is vested with the power has paid attention to or taken into account circumstances events or matters wholly extraneous to the purpose for which the power was vested or whether the proceeding have been initiated malafide proceedings for satisfying a private or personal grudge of the authority against the officer if the act is in excess of the power grant or is an abuse or misuse of power the matter is capable of interference and rectification by the court. In such an event the fact that the authority concerned denies the charge of malafides, or asserts the absence of oblique motives or of its having taken into consideration in proper or irrelevant matter does not preclude the court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the even of the allegations being made out. We have also borne in mind that the charges of personal hostility are easily and very often made by persons who are subjected to panel or quasi panel proceedings against those who initiate them, and have therefore, made full allowance for these factors and we have examined and weighed the evidence with anxious care 'The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a court is satisfied that there is an abuse of misuse of power and its jurisdiction is invoked, it is incumbent on the court to afford justice to the individual.Anil Katiyar (Mrs.) v. Union of India and others Having regard to the limited scope of judicial review of the merits of a selection made for appointment to a service or a civil post, the Tribunal has rightly proceeded on the basis that it not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC and that it would not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by mala fides or on the ground it is being arbitrary. It is not the case of the appellant that the selection by the DPC was vitiated by mala fides.
38. From the extracts of the order of this Tribunal in the case of Inder Raj Soni (supra) it can be seen that the Coordinate Bench has held that appointment to the post of Member, CBEC, may have some elements and characteristics of promotion but it is definitely not a promotion in the strict sense in which it is considered in service jurisprudence. The Coordinate Bench also held that the post of Member, CBEC, being an ex-cadre post and a sensitive post, it will not be strictly governed by the administrative instructions regarding promotion to the higher post in the hierarchy or cadre of service. The method of evaluation and the assessment of the person to be selected for such a post has ordinarily to be left to be decided by the Selection Committee, which, inter alia, may include not only service records but also information received or collected specifically for selection, including information regarding the officer having been put on the 'agreed list'. It was also held that observance of principles of natural justice and recording of speaking order will not be necessary in the matter of selection. Again, seniority alone cannot be the criterion for promotion and person's reputation about honesty and integrity is one of the relevant consideration.
39. We are in respectful agreement with aforementioned findings/rulings of the Coordinate Bench in the case of Inder Raj Soni (supra).
40. On perusal of the proceedings of the Selection Committee we find no indication of any adverse entries in ACRs of the applicant or downgrading of his ACRs having had any role to play in his non-selection. Hence the law laid down in the cases of S.K. Goel (supra), Yamuna Shanker Misra (supra), Gurdial Singh Fiji (supra), Barkha Gupta (supra) and Sughar Singh (supra), cited by the learned Counsel for the applicant, is not applicable in the present case. It is also obvious that the law laid down in the landmark judgment of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra) is also inapplicable in the facts and circumstances of the present case, since it is not a case of a promotion in the hierarchy of the cadre. In any case no 'sealed cover' procedure has been adopted in respect of the applicant. As regards the ratio of the judgment of the Hon'ble Supreme Court in the case of S.B. Bhattacharjee (supra), we are of the opinion that the respondents have followed the Rules of 2006 in letter and spirit.
41. As regards consideration of the applicant's case for appointment as Member, CBEC, on merit, from the proceedings of the meeting of the Selection Committee it can be gathered that his case was indeed considered on merit and his ACRs were evaluated accordingly. However, the Selection Committee also took note of relevant reports relating to applicant's vigilance status and integrity. As we have already held, the Selection Committee was free to devise its own ways to assess the candidates and accordingly take note of various reports submitted to it, which may not be in the knowledge of the applicant. In our opinion, following the ratio of the order of the Co-ordinate Bench in the case of Inder Raj Soni (supra), the Selection Committee could take into consideration not only information regarding an officer having been placed in the 'agreed list', but also 'information received or collected specifically for selection', without its communication in advance to the applicant. In any case, no mala fides have been specifically alleged or established against the Selection Committee.
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.
43. In view of the above, we also do not consider it necessary to issue any direction to the respondents with regard to the empanelment done, if any, in the meeting of the Selection Committee allegedly held in May 2007.
44. In the result, the OA is devoid of merit and is, therefore, dismissed. In the peculiar facts of the case, the costs are made easy.