OA No. 234/2009. Case: Mala Ramakrishnan, IRS Vs 1. Union of India, through Secretary, Government of India, Ministry of Finance, 2. Chairman, Central Board of Direct Taxes, 3. S. S. Narayana Moorthy, Member, Central Board of Direct Taxes, 4. Sheikh Naimuddin, Member, Central Board of Direct Taxes, 5. Narinder Singh. Central Administrative Tribunal
| Case Number | OA No. 234/2009 |
| Counsel | G. D. Gupta, Vishal Anand, R. Venkataramani, A. K. Joseph, H. K. Gangwani |
| Judges | V. K. Bali (Chairman) & L. K. Joshi (Vice Chairman) |
| Issue | Constitution of India, 1950 - Articles 14, 16 |
| Judgement Date | January 12, 2010 |
| Court | Central Administrative Tribunal |
Judgment:
L. K. Joshi (Vice Chairman), (Principal Bench, New Delhi)
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Smt. Mala Ramakrishnan, the Applicant herein, is an officer of Indian Revenue Service (IRS), Income Tax of the 1972 batch. She is currently posted as Director General (Investigations) in the Income Tax Department at Mumbai. The grievance of the Applicant in this OA stems from the fact that she has been superseded in appointment to the post of Member, Central Board of Direct Taxes (CBDT) by Shri S.S. Narayna Moorthy and Shri Sheikh Naimuddin, both juniors to her by order dated 27.08.2008 of the first Respondent, i.e., the Department of Revenue in the Ministry of Finance.
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The facts, in nuce, would show that the Applicant was promoted to the post of Chief Commissioner of Income Tax (CCIT), Mumbai by order dated 29.04.2005. The third Respondent, Shri S.S. Narayana Moorthy, was promoted as CCIT on 31.05.2006 and the fourth Respondent Shri Sheikh Naimuddin was promoted as CCIT on 31.01.2006. A notification dated 14.12.2007, issued by the first Respondent called for applications for the post of Member, CBDT. Two vacancies were notified for the post of Member, CBDT. The Applicant also sent her application on 14.01.2008 in the prescribed format. The selection for the post of Member, CBDT is considered by a Special Committee of Secretaries (SCOS) chaired by the Cabinet Secretary. The Selection Committee met in July 2008. The third and the fourth Respondents were selected as Member and the Applicant herein was overlooked.
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The Applicant challenged her being superseded in the present OA on several grounds, which included challenge to the methodology adopted by the Selection Committee, not consulting the Union Public Service Commission (UPSC), making it optional to have the Chairman, CBDT as a member of the Selection Committee and consideration of ACRs of ten years instead of five years as per prescribed procedure etc. This OA was being heard along with OAs No.1687/2008, 1797/2008, 2808/2008 and 1731/2008. Shri Narindar Singh, Applicant in OA-1687/2008 submitted before the Tribunal, during the course of hearing, that he would not challenge the criteria for selection evolved by the Selection Committee but would challenge the application of the criteria in his case by that Committee. Shri Narindar Singh's challenge was mainly on the ground that the Respondents had not followed the principles evolved by the SCOS itself that the grading in an year would be weighted to the number of months covered in the report. He successfully demonstrated that the number of months considered in his case were either more or less for various years than the actual period for which he had worked in those years. The Tribunal upheld the contention of the Applicant in OA 1687/2008 and gave the following directions:
"..We direct that a fresh selection be made by the SCOS for the aforesaid year by meticulously working out the period for which each person considered had worked in every year during the ten years for which ACRs were considered. If as a result, the Applicant is successful, he would be selected for the post of Member, CBDT and also consequently considered for the post of Chairman, CBDT".
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The Applicant herein then filed an additional affidavit on 21.10.2009 before us in which it was, inter alia, stated as under:
It is submitted that the (sic) Mr. Narinder Singh had also challenged the selection of Shri S.S.N. Moorthy and Shri Sheikh Naimuddin by filing petition before the Hon'ble Tribunal being O.A. No. 1687 of 2008 on the issues identical as that of the Petitioner. The Hon'ble Tribunal by its order dated 9.10.2009 in O.A. No.1687/2008 titled as 'Narinder Singh Vs UOI' has quashed the selection made for the post of Member, CBDT for FY 2008-09. The Hon'ble Tribunal has categorically observed vide para 2 of the order that the case of 'Narinder Singh Vs UOI' O.A. No.1687/2008 and other matter including that of the Petitioner have identical issues. The Hon'ble Tribunal has further observed in the order that the selection committee has not uniformly followed the policy enunciated by itself and, therefore the selection to the post of the Member, CBDT for the year 2008-09 is vitiated. Since, the issues in the matter of the Petitioner and that of Shri Narinder Singh are identical the Petitioner is praying before the Hon'ble Tribunal to grant the Petitioner order similar to that of Shri Narinder Singh.
In the case of Narinder Singh (supra), the Tribunal had, inter alia, observed thus:
The policy is anchored on the principle that only the period for which an officer has worked during an year should be taken into consideration for a fair comparison among various contenders for the posts in question. The number of months for which an officer has worked is, therefore, of crucial importance for this high level selection. This process is quite distinct from the procedure followed by the Departmental Promotion Committees (DPCs), in which the ACR recorded for a particular year, regardless of the period for which an officer has worked during that year, is taken to be the ACR for the whole year. For example, if the only ACR of an officer available is for a period of seven months, it would be considered as ACR for the whole year. Even if the Applicant has worked for a period of three months in an year, for example, and his ACR for the rest of the seven months is not available, then the grading for the three months would be taken to be the grading for the whole year. It was in order to eliminate any undue advantage or disadvantage to an officer that the system of assigning weightage on the basis of months for which a person has worked has been worked out. Needless, therefore, to say that consideration only of the number of months for which an officer has worked during an year is critical requirement in such selection. In other words, for a selection to these very senior posts, it would be expected that the SCOS would meticulously work out the period for which the Applicant has worked during an year. For working out such a crucial requirement, reliance only on the period recorded in the ACR dossier, in our considered opinion, is an abdication of their responsibility by the Respondents. The reason is that the system has been evolved in the year 2006 only. Earlier, as we have noted above, an ACR recorded for even a period of three months, if no other ACR was recorded during that year, would be considered to be the ACR for the entire year. An officer, recording his self assessment say in April, 1994, would not consider it to be very significant to mention the precise number of months for which he/she has worked. He would not know how crucial this aspect would become from 2006 onwards. We have been emphasizing that this selection is for a very senior level post of Member CBDT. There cannot be any doubt that it would entirely be the responsibility of the Respondents to work out the details of the period for which the concerned officers have worked during an year and furnish this information to the SCOS. The Respondent is the repository of all information about the Applicant's career, including the leave he has taken, the period for which he was worked in a particular post under a particular reporting officer etc. The task is not particularly onerous as the number of officers under consideration is not very large
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The Applicant, in her additional affidavit, has worked out her total score and the number of months for which she worked in ten years, for which her ACRs were considered as follows:
No.
Year
Grade
No. of months
Average Points
...
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