Anil Kumar vs Union Of India & Others

L. Narasimha Reddy, J

The applicant joined Indian Revenue Service (IRS) in 1986. He held various promotions over the period. In the year 2014-15, he worked as Commissioner of Income Tax (CIT) at Mumbai, and is said to have been assigned duties in two units i.e., CIT (A)-38 and CIT(A)-39. He was promoted to the post of Principal Commissioner of Income Tax (Pr.CIT) on 30.01.2015. He and his batchmates became eligible for promotion to the post of Chief Commissioner of Income Tax (CCIT), against three vacancies for the recruitment/vacancy year 2018, and 49 vacancies for the year 2019. A combined DPC was held for this purpose on 29.07.2019. The case of the applicant was also considered. However, the DPC downgraded the APAR of the applicant for the year 2014-15, which was at the level of 'Very Good', to the level of 'Good', and thereby declined selection.

The applicant felt aggrieved because his name did not find place in the list of the selected candidates,. He sought information by filing an application under Right to Information Act. It is stated that in Para 8.(i) of the minutes, the DPC has downgraded the APAR of the applicant for the year 2014-15 from the level of 'Very Good' and 'Good' and thereby declared as unfit for promotion.

The applicant contends that for the period between 19.09.2014 and 31.03.2015, the reporting officer and the accepting officer rated him 'Very Good' and awarded 6.8 marks. It is stated that under Section III (B), the reporting officer observed that the applicant needs to develop attribute of commitment, and though in the APAR form itself, it was clearly mentioned that any observations made in that column shall not be treated as relevant for promotion or other purpose, the DPC has downgraded his APAR only on the basis of the said observations. The applicant further contends that except that the reporting officer expressed the view that further improvement is needed, which can be said in respect of any one, nothing adverse was commented upon, and the DPC has travelled beyond the scope of its power, in downgrading his APAR.

In this background, he filed this OA with a prayer to declare Para 8.(i) of the minutes of the DPC held on 29.07.2019, as illegal, unsustainable, and to direct the respondents to consider his case for promotion to the post of CCIT, without taking into consideration, the said paragraph. A prayer is also made to direct the respondents to promote him as CCIT with effect from 02.12.2019, the date on which other officers of his batchmates were promoted, and to extend him the consequential benefits.

On behalf of the respondents, a detailed counter affidavit is filed. It is stated that the DPC has exercised the power to examine the rating the relevant APARs, and to revise the same, depending upon its own satisfaction. They state that the Tribunal cannot re-evaluate the conclusions arrived at by the DPC and that the OA deserves to be dismissed.

We heard Shri A.K.Behera, learned counsel for the Applicant and Ms.Sumedha Sharma Counsel for the Respondents 1 & 2, and Shri Ravinder Aggarwal, Counsel for Respondent No.

The applicant became due for promotion for the post of CCIT, against the vacancies of the years 2018 and 2019. There existed about 52 vacancies, and a combined DPC was held. The bench mark adopted by the DPC was that an officer should have APARs preceding 5 years at the level of 'Very Good' or above. The APARs of the applicant were above the benchmark, with regard to both the vacancy years i.e., 2018 and 2019. When the name of the applicant did not figure in the list of selected candidates, he made efforts to ascertain the reasons. A copy of the minutes of the DPC held on 29.07.2019, was furnished to him. It shows that the benchmark adopted by the DPC for promotion to the post of CCIT is 'Very Good'. This is evident from Para 6 of the minutes. The case of the applicant was dealt with in Para 8.(i), which reads as under:

"8. While examining the APARs of the officers included in the eligibility list for the year 2019, the Departmental Promotion Committee noted as under:_

(i) While assessing the APAR for the year 2014-15 (19.09.2014 to 31.03.2015); NRC for the period from 01.04.2014 to 18.09.2014) of Shri Anil Kumar (Sl.No.2), the Reporting Officer under Section III (B) has remarked that "the officer has to develop attribute of commitment...". The said APAR was disclosed to Shri Anil Kumar as per DOP&T's OM dated 14.05.2009 for making representation. However, the officer represented for upgradation of numerical grading 6.8 awarded, which was considered and rejected by the Competent Authority. The officer in his representation dated 24.09.2018 did not represent against the above stated remarks of the Reporting Officer. The Committee after careful consideration, unanimously decided to grade the officer as 'Good' for the year 2014-15."

What becomes evident from the minutes extracted above, is that the DPC has taken into account, a remark made by the reporting officer in the APAR for the year 2014-2015.

The portion of the APAR of the applicant for the year 2014-2015 which was taken into account by the DPC is the one, occurring in para-8(a) Section III(B) of the APAR form. Relevant column as well as the observations made by the reporting officer reads as under :-

Section III (B)

8(a) Advisory and performance improvement comments of the reporting authority. Please comment (in about 100 words) on the overall qualities of the officer including areas of strength and lesser strengths and his attitude towards subordinates & colleagues from SC, ST & other weaker sections and women (Advisory in nature - this is a feedback comment and should not be construed or deemed to be influencing the overall grade and is not to be considered for promotions, selection, deputations, etc. Comments like outstanding, very good, good and inadequate should not be mentioned here.)

He has given reasonable account of himself in his main as well as additional charge. He has to develop attribute of commitments as he can do better than what is achieved. An intensive care on the health front is required. He has been fair in his treatment towards all."

Taking into account, the observations of the reporting officer, in the first sentence extracted above, the DPC has downgraded his APAR from 'Very Good' to 'Good'. The fact that the applicant made a representation for upgradation of his APAR from 'Very Good' to 'Outstanding' was also taken note of.

We are conscious of the fact that the DPC is vested with the power to make its own assessment about the ACRs of the officers, while considering their cases for promotion and in a given case, it can even down grade the APAR. The instructions issued by the DOP&T in this behalf however place the DPC under obligation to assign reasons in case it proposes to downgrade an APAR. The objective is to ensure that the reasons are available for verification and they are naturally to germane and relevant. There has to be an objective assessment, even in the context of arriving at the subjective satisfaction. It is a different matter than even if the APARs of a particular officer are above bench mark, the DPC can still declare him as unfit, for promotion. Where, however, the DPC declares an officer as unfit only as a sequel to the downgrading of an otherwise above bench mark APAR, the restraint felt by the Tribunal and Courts to examine and review the assessment made by the DPC becomes slightly relaxed. If it emerges that the reasons assigned by the DPC for downgrading an APAR did not get support from the record, the system should not remain helpless. As observed earlier, the very purpose of requiring the recording of reasons, to downgrade in such a context, is to pave the way for judicial review thereof.

There is also, the relevance of the general principle of law. In the context of judicial review of administrative action, the court would not require the decision making authority to spell out reasons that prompted its decision. Where, however, the reasons are stated by the authority ,the same can be examined on the touchstone of reasonableness and relevance.

The observation made against the applicant was that he has given reasonable account of the discharge of duties, attached to the office held by him, as well as the one, he held in additional charge. It contains four sentences. In the first it is stated that he has given reasonable account in his main as well as the additional charge. In the second sentence it has been mentioned that the applicant has to develop attribute of commitments as he can do better than what is achieved. Here itself it is mentioned that what has been achieved by the applicant was rated as 'very good'. In the third sentence about the health of the applicant and the advice given to him was to improve it. The last sentence is almost a compliment, that he has been fair in his treatment towards all.

The only sentence that weighed with the DPC was second one. It has already been mentioned that nothing adverse was said about the applicant once he was assessed as 'very good' on the performance. The observation as regards the need for improvement, needs to be taken in a positive sense, namely that with a little more effort the applicant can even become outstanding. In fact some of the ACRs of the applicant are rated as 'outstanding'. The observation made by the reporting officer can be taken into account, as regards his performance.

The note of caution administered in para 8 (a) becomes relevant. It is clearly mentioned that what is stated in the column is just a feedback, and should not be construed or deemed to be reference to the over all grading, and is not to be considered for promotion, selection, deputation, etc. This is a command by the rule making authority and of the department. When a specific mention is made that none of the observations made in the column shall be taken into account, for promotion, selection on deputation, it is clearly aimed at and addressed to the authority, assigned with the functions related to promotion. The DPC being the authority, assigned with that function, was required to take note of that. As a matter of fact, the note of caution contained in para 8(a) is not of relevance to any other authority.

Though the DPC is conferred with the power to select candidates, it is required to operate within the frame work of law. It cannot ignore a note of caution , sounded with specific reference to the process of promotion and selection. Howsoever independent, the DPC may be, whatever be the latitude accorded to it by the law in the context of assessment, it cannot take into a factor, which is clearly prohibited by law. In such a situation, a recognized principle of administrative law; namely that a decision based upon of an otherwise irrelevant fact or factor, consideration gets vitiated; gets attracted. We are not deciding the relevance of a particular factor by ourselves. We are only referring to mandate of rulemaking authority. It is evident that the DPC did not bestow to its attention to clause 8 (i) and has chosen to downgrade the APAR of the applicant, to the level of 'Good' and thereby declared him as unfit. It is fairly well settled that what is prohibited directly in law cannot be permitted to be done indirectly. We are not referring to the relevant precedents on these aspects because they are fairly known to those connected with the administrative law.

The result of the discussion undertaken above is that the para 8. (i) of the minutes of the DPC, which met on 29.07.2019 for selection to the post of CCIT, cannot be sustained in law. The result would be that the case of the applicant needs to be considered by omitting that paragraph. The appointing authority shall decide whether or not to send back the matter to the same DPC once again or for reconsideration, or to constitute a review DPC.

We, therefore, allow the OA, and set aside para 8 (i) of the minutes of the DPC dated 29.07.2019. We direct the appointing authority to refer the matter of the applicant for selection to the post of CCIT to the same DPC or to a review DPC, for consideration and then to take further steps depending upon the recommendations of the DPC. This exercise shall be completed within two months from the date of receipt of a copy of this order. There shall be no order as to costs.