W.P.(C)/8639/2010 of RP TOLANI Vs UOI AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 02.12.2013

Pronounced on : 23.05.2014

W.P.(C) 8639/2010 & C.M. NO. 21979/2010, 1942/2011 &

+1943/2011

R.P. TOLANI…..PetitionerThrough: Sh. M.S. Singhvi, Sr. Advocate with Sh.K.K.L.GautamandSh.Suresh.P.Tolani,Advocates.

Versus

UOI AND ORS.……..RespondentsThrough:Sh.B.V.NirenandSh.P.Jain,Advocates, for Resp. Nos. 1 to 3.Ms.RekhaPalliwithSh.HemantGupta,Advocates, for Resp. Nos. 4 to 7.

+W.P.(C) 8650/2010 & C.M. NO. 710/2013 & 5427/2013SUNIL KUMAR YADAV…..Petitioner

…..Petitioner

Through: Sh. Vinay Kumar Garg, Sh. VivekSharma and Sh. Neeraj Kumar Sharma, Advocates.

Versus

UOI AND ORS.……..RespondentsThrough:Sh.B.V.NirenandSh.P.Jain,Advocates, for Resp. Nos. 1 to 3.Ms.RekhaPalliwithSh.HemantGupta,Advocates, for Resp. Nos. 4 to 7.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT

1.The present judgment disposes two writ petitions which impugnthe order of the Central Administrative Tribunal (“CAT”) dated28.10.2010, dismissing OA No. 2839/2009 and OA No. 526/2010.The challenge in both the Original Applications stems from theselection process for three posts of the Vice-President of the IncomeTax Appellate Tribunal (“ITAT”), in which both Petitioners were notselected.

2.Briefly, the facts in this case are that the petitioner in WP(C)8369/2010, (referred to as “Tolani”) was selected as JudicialMember of the ITAT on 9.2.1998 and Mr. S.K. Yadav (hereafter“Yadav”) was selected on 21.3.1998 (after undergoing two yearsprobationary period from 21.3.1996). The grievance in both casesarises from an order of the Central Government, dated 23.11.2009appointing four members of the ITAT as Vice-Presidents, allegedlyoverlooking the two petitioners. Those appointed were K.L. Karwa,Judicial Member (Lucknow), O.K. Narayanan, Accountant Member(Ahmedabad), Bhartvaja Shankar (Chandigarh) and G.C. Gupta,Judicial Member (Hyderabad) – all referred to hereafter collectively as“the private respondents”. Subsequently, after receiving the minutes ofthe meetings of the Selection Committee on 5.9.2009 and 9.9.2009,and in view of the proposal to appoint Shri D.K. Tyagi as Vice-President of the ITAT, the grievance was again made by thepetitioners.

3.The conditions of service and rules applicable to ITATmembers are prescribed by the Income-Tax Appellate TribunalMembers (Recruitment and Conditions of Service Rules), 1963

(hereinafter “the Service Rules”), made by the President under theproviso to Article 309 of the Constitution. Rule 8 classifies the post ofa Vice-President as Group ‘A’ Gazetted Post. The Rules prescribefour types of members: Members (either Judicial or Accountant),Vice-Presidents, Senior Vice-President and President.

4.The claims made before the CAT were, first, that appointmentof the Vice-President from amongst members was by way of directrecruitment, rather than promotion, and, therefore, the obligation toreserve posts in favour of the Other Backward Castes (“OBC”) groupwas violated; secondly, and in the alternative, it was claimed that inview of the equality of pay scales of Members and Vice-Presidentsafter the recommendations of the sixth Central Pay Commission(hereinafter “the sixth CPC”) were enforced, appointment to the postof Vice-President would be designation which would go byseniority, and in any case, seniority-cum-merit. It was argued that ineither of these cases, the petitioners were senior to four of the fivemembers appointed as Vice-Presidents, except K.L. Karwa, and haveequally good, if not better, Annual Confidential Reports (“ACRs”) intheir favour. It was argued in this context that this crucial change inhierarchy of ITAT members brought about the Sixth CPC was notbrought to the notice of the Selection Committee, and thus, thedecision-making process was itself flawed and based on irrelevantconsiderations.5.It was thirdly argued that the Selection Committee exceeded itsjurisdiction by evolving its own procedure and terms as to theselection, which was not open to it. It was argued that in terms of Rule

13 of the Service Rules, the seniority-cum-merit method bond theSelection Committee, and as such, supersession was impermissible.Rule 13 provides that:

“[t]he conditions of service of member in respect ofmatters for which no provision is made in these rulesshall be the same as may be for the time being applicabletootheremployeesoftheGovt.ofIndiaofacorresponding status”,;

6.It was lastly argued that the Selection Committee did notprepare any chart of comparison between the various members beingconsidered for the post of Vice-President, and as no other material wasavailable before the Selection Committee except for the ACRs (which,the petitioners claim record their diligence and excellence in service),the decision-making process is liable to be interfered with.

7.The CAT rejected all three grounds. On the first ground, theCAT held that the observations in its earlier decision, in G.E.Veerabhadrappa v. Union of India, OA No. 463/2009, to the effectthat the appointment to the post of Vice-President was by way ofdirect recruitment was obiter, and thus, the question was consideredafresh. Holding that the appointment of Vice-Presidents is not bydirect recruitment, the decision of the CAT proceeded as follows:

“From the reading of the relevant rules referred to above,what clearly emerges is that whereas everyone having therequisite qualifications as mentioned in rule 4 is entitledand has right to be considered for appointment asMember, the selection of President, Senior Vice-Presidentand Vice-President of the Tribunal Members. Once,President, Senior Vice-President and Vice President areto be appointed by way of selection by the selection

committee so constituted under rule 7C from onlyamongst those who are already Members, it cannot be acase of direct recruitment. It would indeed be case ofpromotionbywayofselection.WehavealreadymentionedthatinsofarasourobservationsinVeerabhadrappa(supra)asreproducedaboveareconcerned, the same are obiter, so specifically stated on aclarificatory application moved on that behalf by theGovernment. If the said observations are not to be takeninto consideration, the applicant may have nothing tostate in support of the proposition that appointment ofPresident, Senior Vice-President and Vice-Presidentwould be by way of direct recruitment. The provisions ofthe rules would leave no one in any manner of doubt thatthe appointments being made by the Central Governmentof President. Senior Vice-President and Vice Presidentare by way of promotion where method of selection ismerit to be considered by the selection committee headedby Sitting Judge of the Supreme Court to be nominatedby the Chief Justice of India.”

On the second ground, the CAT noted:

“We find absolutely no merit in the aforesaid contentionof the learned counsel. We are of the firm view that meremention of the pre-revised scale of the post of Vice-President in the note dated 4.8.2009 would be of nomeaningandconsequence.Eveniftheselectioncommittee was to be apprised of the new pay scale ofVice-President, ITAT, which may be equivalent orbracketed with that of Member, ITAT, the same wouldhave made no difference. It could not have beenconsidered by the selection committee that since the payscale of Member and that of Vice-President is to be thesame, there would be no need to make selection fromamongst those who are eligible and in the zone ofconsideration and that only seniority would matter, Evenif the selection committee was to note that the pay scalesofMembersandVice-President,ITAThavebeenbracketed and for that purpose necessary amendment inthe rules had been carried out, the same also would havemade no difference in the matter of selection of those whowereunderconsideration.ItwouldbeseenthatAccountant Member, Judicial Member, Vice-Presidentand President have been separately defined under rule 2oftheRulesof1963.Theeligibilitycriteriaforappointment on the post of Member — Judicial orAccountant, is separately prescribed under rule 3.

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The mere fact that the pay scale of Member and Vice-President has been bracketed would not make the post ofMember equivalent to that of Vice-President and therewould be no question in teeth of the rules as mentionedabove for senior Member to be automatically appointedas Vice-President. Even the senior most Member has togo through process of selection as envisaged under rule7C. It is in consideration of the provisions of the rulesthat we have said hereinbefore that the mere fact that theselection committee was not informed of the pay scale ofMember and that of Vice-President to be the same as perrecommendations of the 6 CPC and non-amendment ofthe rules or non-information of the amendment in therules in that regard would be of no meaning andconsequence. Further, in view of DR-22(III) promotion inthe same pay scale can be made.”

9.On the third ground, relying on the decisions of the SupremeCourt in N Suresh Nathan and Ors. v. Union of India, AIR 2010 SC2171; General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi andOrs., (2009) 7 SCC 205, as also decision ofCAT, Chennai, inUttam Bir Singh Bedi v. Union of India, (OA No. 1001/2009, decided

on 12.3.2010), the CAT rejected the contentions in the followingterms:

“The conditions of service can be such as the method ofcalculating pension, various perks or facilities that aMember may be entitled to but the conditions of serviceas mentioned above, cannot include the mode, methodand procedure of recruitment/selection. We find the firstargument of the learned counsel, as noted above, to bealso equally devoid of merit. It may not have beenspecifically said in rule 7C, as has been said in rule 4A,that the selection board shall evolve its own procedure,but that would not mean that the procedure to be adoptedby the selection committee would be as envisaged underOMs dated 8.2.2002 and 18.2.2008. Once, the method ofrecruitment on the post of Vice-President is by way ofselection, the selection committee would be well within itspower and jurisdiction to evolve its own procedure,whether so said in the rules or not, It may be recalled thatprior to issuance of OMs dated 8.2.2002 and 18.2.2008,wherein the element of supersession in case an employeemay have the requisite benchmark was not involved, theinstructions issued by the Government as regards themethod of appointment or promotion by selection clearlystipulated that concerned DPC would have right toevolve their own procedure of making selection. Once,the field is governed by rule 7C, the instructionscontained in OMs dated 8.2.2002 and 18.2.2008 wouldhave no role to play. In the process of selection,supersession is possible, as the concerned committees orDPCs have to find out the best person suited for the jobirrespective of his seniority. Seniority at the most, wouldto be considered if he may come within the zone ofconsideration but not an automatic right of selection orpromotion, as the case may be.”

10.Finally, on the last ground, the CAT relied on the decision ofthe Supreme Court in National Institute of Mental Health and Neuro

Sciences v. Dr. K. Kalyana Raman & Ors., AIR 1992 SC 1806, to theeffect that

“the function of the Selection Committee is neitherjudicial nor adjudicatory. It is purely administrative …There is no rule or regulation brought to our noticerequiring the Selection Committee to record reasons.”

and held that:

“…the mere fact that the selection committee did notprepare any chart or sheet of comparison regardingperformanceofMemberswouldnotmeanthatcomparative merit was not considered by the selectioncommittee. It is absolutely inherent in the method ofselection that the respective merit of all the Memberswould have been considered. There was no requirementat all to make mention of the respective merits of theMembers under consideration for appointment on thepost of Vice-President, Mention of comparative meritmay: not have been made, and it appears to us wasrightly not made, as that would be rather counter-productive. To illustrate, if particular Member was notfound meritorious enough to be appointed as Vice-President because of some of his attributes which may beadverse, an argument would surface that unless such anattribute was to be put to the concerned Member, thesame could not be taken into consideration. Makingmentionofsuchattributeswouldalsoresult intobitterness. We are of the firm view that when selection bya high powered committee and there are not evenallegations of any bias or favouritism, lest there beingany material for the same, the selection made by suchcommittee would need no interference by the courts ortribunals. citizen must have faith in the system ratherthan crying foul when he has not been made to make it onmerits.”

Petitioners’ contentions

11.Impugning the CAT’s decision, learned counsel for thepetitioners argued that the failure to notify the new pay scales, afterthe merger of pay scales of the member and Vice-President, and thefailure of the President to notify the Selection Committee of thisdevelopment, vitiated the decision-making process. Since both theposts had an identical pay scale, and further, that member onbecomingaVice-Presidentisnotabsolvedofhisorherresponsibilities as member, the conclusion that the two posts are nothorizontally equal, is incorrect. In this regard, it was argued that parityof pay scales was material fact, without the knowledge of which anydecision arrived at by the Selection Committee stood negated.

12.Learned counsel next argued that Rule 13 of the Service Rulesincorporates, by reference the conditions in the Office Memoranda ofthe Department of Personnel and Training as regards the procedureand manner in which suitability for particular post is to be judged. Itwas argued that the interpretation of Rule 13 by the CAT wasrestrictive and narrow, as the procedure for promotion (assuming thefinding in Veerabhadrappa is incorrect) is part and parcel of the‘conditions of service’ mentioned in that rule. In support of thiscontention, learned counsel places reliance on the decisions of theSupreme Court in SB Bhatacharjee v. SD Majumdar and Ors., (2007)10 SCC 513, and Union of India v. Hemraj Singh Chauhan, 2010 (3)SCALE 272. Even otherwise, it is argued, the Selection Committeedoes not have an unfettered power to evolve its own rules by ignoringthe recruitment rules possessing statutory flavour.13.Learned counsels argued that the decision of the CAT that therewas no requirement to mention the reasons for not choosing thepetitioners herein was erroneous, because even though the SelectionCommittee is an administrative body, it is bound by the rule of lawand thus, must provide justification for its decisions. Further, learnedcounsels argue that the limited consideration of the ACRs, and noother material, is an extremely selective and restricted manner oftaking decisions. Relying on the decisions of the Supreme Court inGuman Singh v. State of Rajasthan, (1971) 2 SCC 452, and N. SureshNathan v. Union of India and Ors., (2010) 5 SCC 692, learnedcounsels argued that merit constitutes the sum total of various qualitiesand attributes, including past performance and other relevant factors,which cannot all lie within the limited content of the ACRs placedbefore the Selection Committee. Moreover, it was argued that even ina selection based on merit, the Selection Committee is nonethelessobligated to consider seniority of the candidates, which remains animportant factor in such decisions.

14.Further, learned counsels argued that the findings of CAT areinconsistent, because if the decision that the selection process isregulated by the Service Rules and not by the Office Memoranda ofthe Department of Personnel and Training is accepted, Rule 7 clearlystates that selection is to be by merit. Concededly, in the absence ofany comparison charts as regards the comparative merit of thecandidates, or any other material placed before the SelectionCommittee, the decision of the committee is liable to be set aside. Forthis, reliance is placed on the decision of the Supreme Court in Union

of India v. SK Goel & Ors., (2007) 14 SCC 641, to say that althoughthe Court refused to interfere with the selection process in that case, itwas only after satisfying itself of the comparative merit of the eligibleofficers examined by the committee in that case. Thus, in the presentcase as well, argued learned counsel, such an approach should havebeen adopted by the CAT.

Respondents contentions

15.The learned Additional Solicitor General (ASG) Shri RajeeveMehra, argued that the findings of the CAT are reasonable, presentingno reason for this Court to interfere with that decision. The learnedASG argued that being an administrative body, as opposed to ajudicial or quasi-judicial body, the Selection Committee was notobliged to provide any reasons for its decision, much less reasons fornot choosing particular candidate. It was argued, by placing relianceon the decisions of the Supreme Court in Union of India v. SamarSingh, (1996) 10 SCC 555, and Major General IPS Dewan v Union ofIndia &Ors, (1995) 3 SCC 383, that administrative orders affectingthe rights of citizens in matters of selection need not provide reasons.In this context, the learned ASG argued that absent any allegation orproof of mala fides or arbitrariness in the Selection Committee’sfunctioning, or the decision-making process, judicial review by thisCourt under Article 226 of the Constitution is extremely limited, andany interference in this case would cross the bounds of that limitedinquiry that is considered proper in such cases.

16.It was argued that seniority is not the criterion for selection andappointment to the post of Vice President. In this context, the ASGargued that the Office Memorandum relied on by the petitioners wasinapplicable, since it was in respect of Central Government officers inits service. However, in respect of matters of procedure such as thenumber of officers to be considered for selection, the silence in theRules meant that by reason of Rule 13, the Office Memorandum, tothe extent it provided for the zone of consideration from amongstthose to be considered, was applicable.

17.It was argued that the Selection Committee had the right todecide what ought to be the criteria to judge merit. Though thecommittee had the benefit of the ACRs, the experience of theChairman, sitting Supreme Court judge, with knowledge of taxationlaws and rulings of courts throughout the country, as well as theknowledge and input provided by the President, who had occasion tointeract with the candidates routinely and therefore in position toassess whoever was most suitable to be appointed.The ASGemphasised that since the position or post involved was essentiallyjudicial, the collective experience of the Chairman and the President,ITAT was sufficient in the circumstances. It was emphasized that thepetitioners could only claim right to be considered and not anoverriding entitlement, solely based on their ACR gradings to beappointed to the post of Vice President. No allegations of mala fides,legal or personal had been levelled or proved; there was no violationof statute or binding norms. In the absence of these, the Committee,which had fairly considered the candidature of all the officers, could

not be faulted for having recommended the selected officers, forappointment.

Analysis and Findings

18.Before entering the various questions that arise in this case, anunderstanding of the selection process, service rules and hierarchyamongst the members of the ITAT is relevant.

19.As noted above, the Service Rules outline four differentcategories of posts, i.e Member, ITAT (either judicial or accountant),Vice-President, Senior-Vice President and President. The rulesconcerning the appointment of the Vice-Presidents are crucial to thiscase, and are extracted below:

“7A. The Central-Government may appoint from amongthe Members one or more persons as Vice-President or,as the case may-be Vice-Presidents of the Tribunal toassist the President in the discharge of his functions.

7B. The Senior Vice-President: The Central Govt. mayappoint one of the Vice-Presidents of the AppellateTribunal appointed under rule 7A, to be the Senior Vice-President thereof.

7C. Selection Committee to select President, etc.:- TheSelection Committee consisting of sitting SupremeCourt Judge, to be nominated by the Chief Justice ofIndia, the President and the Secretary, Ministry of Lawand Justice (Department of Legal Affairs), based onmerit, shall recommend persons for appointment asPresident, Senior Vice-President and Vice-Presidents.”

20.There can be no doubt that appointment of Members to theITAT is undoubtedly by way of direct recruitment, and the method ofrecruitment is provided in Rule 4 of the ITAT Service Rules. There is

no similar – or at least an express – provision as regards the method ofappointment of Vice-Presidents. Instead, Rule 7C, as extracted above,is the sole guiding provision in this matter. There exists, however, aresidual clause – Rule 13 – which falls back upon the method ofappointment and selection of other employees of the Government ofIndia of comparable grade in the case of absence of guidelines in theService Rules. That clause states:

“The conditions of service of member in respect ofmatters for which no provision is made in these rulesshall be same as may for the time being be applicable toother employees of the Govt. of India of respondingstatus.”

21.The Service Rules apart, pay scales of ITAT membersunderwent change since the coming in force of the Rules. At thetime the two petitioners were appointed judicial members, theexisting pay scale was ` 22,400-26,000. The post of Vice-President atthe time was in the pay scale of ` 24,050-26,000 and thus,hierarchically superior to that of accountant and judicial members.Subsequently,aftertherecommendationofthe6[th]CPC,theGovernment of India abolished the different between the pay scales ofmembers and Vice-Presidents, by merging both the scales in the newpay band/scale of ` 75,000- with annual increment of 3%-i.e. `80,000. Thus, after the implementation of the recommendations of the6[th]CPC, there is pay parity as between the post of member and Vice-President.

22.The question that arises before the Court, therefore, is whetherthe manner of selection, including the decision-making process

adopted by the Selection Committee, is consistent with the terms ofthe Service Rules, or whether it is perverse and thus liable to be setaside.

23.InLalit Mohan Deb and Ors. v. Union of India and Ors.,[1963]3 SCC 862 and Dayaram Asanand Gursahani v. State of Maharashtraand Ors.,[1984] 3 SCC 36, Union Of India & Anr v S.S. Ranade 1995(4) SCC 462 the Supreme Court held that appointment to the selectiongrade having regard to the position of the rules in those cases did notconstitute promotion. These decisions were considered and explainedin State Of Rajasthan vs Fateh Chand Soni 1996 (1) SCC 562 where itwas observed that where the rules require process of selection, eitheron the basis of seniority-cum-merit, or merit based, the recruitment isa promotion:

“The position in the present case is, however, different.Here the Selection Scale is separate scale and is not anextension of the Senior Scale. Moreover appointment tothe Selection Scale is made by selection on the basis ofmerit and seniority-cum-merit in accordance with Rule28(A) of the Rules.

It must, therefore, be concluded that appointmentto the Selection Scale of an officer in the Senior Scale inthe Service constitutes promotion…”

25.In the present case, the revision of pay through the sixth payCommission might have brought about parity in pay and emolumentsbetween Members and Vice Presidents of ITAT; yet the separatemention of these two categories in the Rules, which have not beenchanged, and the fact that Vice Presidents are to be selected on the

basis of merit, from amongst members sets at rest any idea that the payparity did away with the distinction; the post of Vice President isclearly higher post in the hierarchy of judicial offices in the ITAT.26.A total of five posts of Vice-President of the ITAT were to befilled for the year 2009-10, which are in question today. The selectionprocess began with the screening of 14 members of the ITAT eligibleto hold the post of Vice-President, i.e. the ‘zone of consideration’. Inaccordance with the Department of Personnel and Training OfficeMemorandum(22011/1/90-Estt.(D),dated12.10.1990and22.4.1992), concerning the procedure to be observed by DepartmentalPromotion Committees (“DPCs”), the zone of consideration (twice thenumber of vacancies plus four, i.e. 14 candidates for 5 vacancies, interms of the seniority of the officers) was prepared. Subsequently,such list of candidates was placed before the Selection Committee,which comprised – as per Rule 7C – sitting Supreme Court judgenominated by the Chief Justice of India (Justice S.H. Kapadia), thePresident of the ITAT (Mr.Vimal Gandhi), and the Secretary, Ministryof Law and Justice (Department of Legal Affairs) (Mr. T.K.Vishwanathan). The Selection Committee met on 7.2.2009, 5.9.2009and 9.9.2009, for considering appointment to the post of Vice-President, and indicated the selection of five members. Amongst the14 members, Mr. SK Yadav was at Serial No. 5, and Mr. R.P. Tolaniat Sr. No. 6, in terms of the seniority. 4 of the 5 members chosen forthe post of Vice-President were ranked below in the seniority list, atSerial Nos. 8, 10, 12 and 14).

27.It is important at this stage, to consider the minutes of theSelection Committee meeting, which provide an insight into thedecision-making process. On 9.9.2009, the operative meeting of theSelection Committee, the minutes recorded as follows:

“… The Committee examined the character rolls of thefollowing members of the Tribunal …

The above Officers have been reported to be free fromVigilance angle by the Department of Legal Affairs.

On the basis of available character rolls, knowledge andsuitability, the Committee recommends the following forthe post(s) mentioned below …”

28.Later, confidential memorandum from the Ministry of Lawand Justice, Department of Legal Affairs, on 17.9.2009, to theAppointments Committee of the Cabinet, indicated that the selectionprocess had been completed, with the proposal of appointing the fivemembers chosen by the Selection Committee having received theapproval of the concerned Minister. Finally, on receiving this approval(communicated to the President, ITAT, by confidential letter dated20.11.2009), on 23.11.2009, the President (by Notification No. F.46-Ad(AT)/2009) issued the order for the appointment of the Vice-Presidents.

29.It is crucial, at this juncture, to note certain other detailsconcerning the decision-making process of the Selection Committee,revealed in responses under the Right to Information Act, 2005, on12.1.2010 (F. No. 21 (799)/2009-IC) on the basis of request filed byMr. RP Tolani. The response indicates that:

“[n]o such information viz. criteria framed for assessingMerits of candidates for the post of VPs are available onrecord. Hence, the information may be treated as “nil.”

Further,

“[n]o such information viz. copy of chart or notes forcomparison of merits of all the Members considered forthe appointment to the five posts of VPs in panel for2009-10 are available on record. Hence, the informationmay be treated as “nil”.

Next, the response states that “[n]o separate consideration zonepanels were drawn by this Department”.

30.The first question that arises for consideration in this case iswhether the decision of the Selection Committee, and more generally,the manner in which the five candidates were selected to the post ofVice-President (to the exclusion of the present two writ petitioners) isreasonable and consistent with law.

31.Promotion can be broadly categorized into three modesdepending on whether it purely by merit, purely by seniority orwhether it is mixture of the two, i.e. a) Departmental Examination;b) Seniority-cum-fitness (seniority subject to unfitness); and c)Selection (merit-cum-seniority). The difference between the variousmodes of promotion was explained in the following extract, by theSupreme Court in its decision reported as B. V. Sivaiah & Ors. v K.Addanki Babu & Ors. 1998 (6) SCC 720:

“The principle of 'merit-cum-seniority' lays greateremphasis on merit and ability and seniority plays lesssignificant role. Seniority is to be given weight only whenmerit and ability are approximately equal. In the context

of Rule 5(2) of the Indian Administrative Service/IndianPolice Service (Appointment by promotion) Regulations,1955 which prescribed that "selection for inclusion insuch list shall be based on merit and suitability in allrespects with due regard to seniority" Mathew. J. inUnion of India v. Mohan Lal Capoor & Ors.,1974 (1)SCR 797, has said :- " .... for inclusion in the list, meritand suitability in all respects should be the governingconsideration and that seniority should play secondaryrole. It is only when merit and suitability are roughlyequal that seniority will be determining factor, or if it isnot fairly possible to make an assessment inter se of themerit and suitability of two eligible candidates and cometo firm conclusion, seniority would tilt the scale."

Similarly, Beg J. (as the learned Chief Justice then was)has said :-

"Thus, we think that the correct view, in conformity withthe plain meaning of words used in the relevant rules, isthat the "entrance" or "inclusion" test for place on theselect list, is competitive and comparative applied to alleligible candidates and not minimal like pass marks at anexamination.TheSelectionCommitteehasanunrestricted choice of the best available talent, fromamongst eligible candidates, determined by reference toreasonablecriteriaappliedinassessingthefactsrevealed by service records of all eligible candidates sothat merit and not mere seniority is the governing factor."

On the other hand, as between the two principles ofseniority and merit, the criterion of 'seniority-cum-merit'lays greater emphasis on seniority. In state ofMysore &Anr. v. Syed Mahmood & Ors.,1968 (3) SCR 363, whileconsidering Rule 493)(b) the Mysore State CivilServicesGeneralRecruitmentRules,1957whichrequired promotion to be made by selection on the basisof seniority-cum-merit, this Court has observed that therule required promotion to be made by selection on the

basis of "seniority subject to the fitness of the candidateto discharge the duties of the post from among personseligible for promotion". It was pointed out that where thepromotion is based on seniority- cum-merit the officercannot claim promotion as matter of right by virtue ofhis seniority alone and if he is found unfit to dischargethe duties of the higher post, he may be passed over andan officer junior to him may be promoted.”

32.The expression ‘zone of consideration’ is one where particularnumber of vacancies in the promotional grade is present, all theeligible candidates in the feeder grade will not be considered for thepost, but only those who fall within the zone will be considered forpromotion. This, therefore, is known method of narrowing the poolof candidates, so as to present the responsible committee in that casewith list of eligible candidates amongst whom the choice can bemade. Equally, it is imperative that the zone of consideration be broadenough, especially in instances of selection by merit, so as to ensurethat the more suitable candidates emerge from the competitiveprocess. In this case, the generally accepted formula of twice thenumber of vacancies plus four was utilized by the SelectionCommittee, and this aspect of the decision-making process is notdisputed in this case, nor can it be questioned.

33.It is also undisputed – as matter of fact – that the SelectionCommittee did not conduct interviews or meet the candidates at anypoint in the selection process, nor were orders written by thecandidates in their capacity as members of the ITAT placed before theSelectionCommittee.TheonlymaterialbeforetheSelectionCommittee was the Annual Confidential Reports (“ACRs”) of the

candidates. It is on this basis that the selection of five candidates wasmade, as the minutes of the Selection Committee records, on the basisof “available character rolls, knowledge and suitability.”

34.Considering, first, the argument of the petitioners that thedecision of the Selection Committee disregarded the inter se seniorityof the candidates, by selecting 4 candidates who were below thepetitioners in the seniority list admitted by both parties. The argumenthere is that amongst those graded ‘fit’, by the relevant benchmark, intheir ACRs, no supersession is permissible. For this, the petitioners’argue that since Rule 7C of the Service Rules is silent on theprocedure, or more accurately, the criterion for selection, the rules inDepartment of Personnel and Training Office Memorandum F. No.35034/7/97-Estt(D), dated 8[th]February, 2002 are to be consideredapplicable by virtue of Rule 13 of the Service Rules which states that“[t]he conditions of service of member in respect of matters forwhich no provision is made in these rules shall be the same as may befor the time being applicable to other employees of the Govt. of Indiaof corresponding status”. Further, the Office Memorandum alsodelineates the precise manner of selection, in the following terms:Clause 3.1 provides the framework within which promotion by meritis to be judged and states that

“[i]n the case of ‘selection’ (merit) promotion, thehithertoexistingdistinctioninthenomenclature(‘selectionbymerit’‘selection-cum-seniority’)isdispensed with and the mode of promotion in all suchcases is rechristened as ‘selection’ only. The element ofselectivity (higher or lower) shall be determined with

reference to the relevant bench-mark (“Very Good” or“Good”) prescribed for promotion.”

35.Clause 3.2 then indicates how merit is to be judged by the

DPCs, in the following terms:

“The DPC shall determine the merit of those beingassessed for promotion with reference to the prescribedbench-mark and accordingly grade the officers as ‘fit’ or‘unfit’ only. Only those who are graded fit (i.e. who meet(he prescribed bench-mark) by the DPC shall be includedand arranged in the select panel in order to their inter seseniority in the feeder grade. Those officers who aregraded ‘unfit’ (in terms of the prescribed bench-mark) bythe DPC shall not be included in the select panel. Thus,there shall be no supersession in promotion among thosewho are graded ‘fit’ (in terms of the prescribed bench-mark) by the DPC.

3.2.1 Although among those who meet the prescribedbench-mark inter se seniority of the feeder grade shallremain intact, eligibility for promotion will no doubt besubject to fulfilment of all the conditions laid down in therelevantRecruitmentServiceRules,includingtheconditions that one should be the holder of the relevantfeeder post on regular basis and that he should haverendered the prescribed eligibility service in the feederpost.”

36.The CAT had rejected this argument, holding that the manner ofappointment does not fall within the phrase ‘conditions of service’,and thus, no reference to that Office Memorandum is mandated.37.In considering this issue, while the Court must remainconscious that the Office Memorandum in question marks departurefrom the previous nomenclature, and prescribes clear procedure for

‘selection’, as grading followed by seniority, it is important first andforemost to note the terms of Rule 7C, which is the primary ruleapplicable in this case. Rule 7C notes that the:

“SelectionCommittee…basedonmerit,shallrecommendpersonsforappointmentas…Vice-Presidents.” (emphasis supplied).”

38.Thus, Rule 7C itself gives specific guidance on the criterion onwhich the Selection Committee is to base its decision, leaving littlescope for either the Selection Committee to devise its own criterion(as the order of the CATindicates) or incorporate the OfficeMemorandum dated 8[th]February, 2002 (as the petitioner argues).While, concededly, the Selection Committee may decide – in itsdiscretion – what constitutes ‘merit’ for the purposes of appointing anindividual to the post of Vice-President, the fact that the criterion ismerit, and merit alone, is prescribed within Rule 7C, which ismandatory and cannot be departed from.

39.It is true, as the Supreme Court noted in Indira Sawhney v.Union of India, (1992) 3 SCC 217, that

“[p]romotion by selection, though based on merits, isultimately governed by seniority, for the concerned rulesgenerally provide that, where merits are equal, officerswill be ranked according to their seniority.”

40.Yet, the crucial issue is that while this may be the casegenerally under the concerned rules, the Court must construe the textof the rules before it in each case, which are the specific lawapplicable, rather than incorporating general principles to bypass thoseprecise prescriptions. Indeed, the Supreme Court has recognized at

various point, in cases concerning service rules, the Court must “readthe Rules as they are”, even more so when the rules are clear andexplicit (Ref, Nair Service Society v. Dr. T. Beermasthan and Ors.,(2009) 5 SCC 545, paragraphs 21, 41-2). In this case, Rule 7C statesin no uncertain terms that the determining factor for the SelectionCommittee (while determining suitability of candidates for the post ofVice President of ITAT) is the merit of the candidates. Indeed, if itwas the intention to include any other factors are determinative, orrelevant, to the Selection Committee’s consideration, they would havebeen included as such. In reading the general selection procedureunder the Office Memorandum dated 8[th]February, 2002, forGovernment posts, into the specific rules for ITAT members, wouldnot cohere with the text of the rules.41.While various judgments of the Supreme Court have underlinedthe importance of balancing fairness in promotion (represented by theobjective norm of seniority) with ensuring competition and merit, thefinal decision to balance these factors – being policy decision – isleft to the executive authorities. Indeed, the vires of Rule 7C is notchallenged in this case, and the terms of that Rule must remaindeterminative. This point was echoed by the Supreme Court in K.Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286,holding that:

“11. While laying down the promotion policy or rule, it isalways open to the employer to specify area andparameter of weightage to be given in respect of meritand seniority separately so long as policy is notcolourable exercise of power, or has the effect of

violating of any statutorily scope of interference andother relatable … It is for the employer to stipulate thecriteria for promotion, the same pertaining really to thearea of policy making. It was, therefore, permissible forthe respondent to have their own criteria for adjudgingclaims on the principle of seniority-cum- merit givingprimacy to merit as well, depending upon the class,category and nature of posts in the hierarchy ofadministration and the requirements of efficiency for suchposts.”

42.In this case, seniority is not completely excluded from theselection process. The zone of consideration prepared as the first stepin the process was on the basis of seniority, as the minutes of theSelectionCommitteeclearlyrecorded.However,thereisnoindependent requirement – either statutory or constitutional – toconsiderseniority.Evenindependently,giventhearrayofresponsibilities assumed by the Vice-President of the ITAT, theimportance of merit cannot be downplayed in any manner. Indeed, asimilar question came up before the Supreme Court in RR Das v.Union of India, 1986 Supp (1) SCC 617, where the Court noted asfollows:

“Indeed the amended provision Regulation 5 minimisedthe role of seniority in the process of selection andimportance and primacy was given to merit. This indeedis laudable object and helps in having the best for thecountry. It is also true that if selection is made on meritalone for promotion to higher service, selection of suchan officer though junior in service in preference to hissenior does not really amount to supersession. Ifpromotion is made on merit alone, the senior officer perse has no legal right to promotion and if promotion ismade on merit, it cannot be said that senior officer hasthe role of seniority in the process of selection andimportance and primacy was given to merit. This indeedis laudable object and helps in having the best for thecountry. It is also true that if selection is made on meritalone for promotion to higher service, selection of suchan officer though junior in service in preference to hissenior does not really amount to supersession. Ifpromotion is made on merit alone, the senior officer perse has no legal right to promotion and if promotion ismade on merit, it cannot be said that senior officer has

been superseded.It has been emphasised that thecategorisation is done on the service record. This hasalso been emphasised that such categorisation is done onthe service record including confidential character rollsas maintained by senior officers holding high positions.”(emphasis supplied).”

43.The emphasis, thus, is not on introducing seniority intodecision-making processes when merit alone is the clear criteria, butrather, to ensure that the consideration of merit is done properly,keeping in mind the broadest array of relevant considerations, toensure that the best or most suitable candidate is selected. Simply put,if the selection is to be determined by merit, then the consideration ofmerit should be on comprehensive view of the service record.Equally, given the limited power of judicial review of the Courts insuch matters, it is not for the Court to indicate the factors that may berelevant in judging merit – rather, that decision is left to the selectioncommittee. The learned Additional Solicitor General has argued,relying on the decisions in Samar Singh (supra) and Major GeneralIPS Dewan (supra), that the Selection Committee in this case didconsider the merit of the candidates, and returned its decision. Thus,given that this is an administrative function, it is argued that theCommittee is not bound to provide any reasons for not choosing aparticular candidate. This proposition is undoubtedly correct. As theSupreme Court held in Dalpat Abasaheb Solunke and Ors. v. Dr. B.S.Mahajan and Ors., AIR 1990 SC 434:

“it is not the function of the Court to hear appeals overthedecisionsoftheSelectionCommitteesandtoscrutinize the relative merits of the candidates. Whether

candidate is fit for particular post or not has to bedecided by the duly constituted Selection Committeewhich has the expertise on the subject. The Court has nosuch expertise. The decision of the Selection Committeecan be interfered with only on limited grounds, such asillegalityorpatentmaterialirregularityintheconstitution of the Committee or its procedure vitiatingthe selection, or proved mala fides affecting the selectionetc.”

44.Similarly, and directly relevant to this case, the Supreme Courtheld in Major General IPS Dewan v. Union of India, (1995) 3 SCC

383, that:

“18. Sri Ramaswamy then relied upon the decision in TheManager, Government Branch Press and Anr. v. D.B.Belliappa, (1979) ILLJ 156 SC in support of hissubmission that administrative orders affecting the rightsof citizens should contain reasons therefore. We areafraid, the said principle cannot be extended to matters ofselection. Unless the rules so require, the SelectionCommittee/Selection Board is not obliged to recordreasons why they are not selecting particular personand/or why they are selecting particular person, as thecase may be.”

45.The Court, in view of the above decisions, has to be cautious inensuring that its inquiry does not translate into ‘merit review’ of thedecision of the Selection Committee, but also that the SelectionCommittee cannot be faulted for failing to provide reasons forchoosing particular candidates, and rejecting others. However, whilstthe grounds for review are limited, the Court can – and must – insistthat the decisions are based on relevant material. i.e. the variouscomponents of the service record of the individual, which includes the

ACRs. In this case, the ACRs which were the only material before theSelection Committee. These ACRs provide for the basic inputs on thebasis of which assessment of the Government servant is made forappointment to higher post. Normally, they categorize governmentservant into any among the following: a) Outstanding; b) Very Good;c) Good; d) Average; or e) not yet fit. These remarks are thenconsidered by the Selection Committee in reaching its conclusion. Theimportance of the grading is well established and has been recognizedby the Supreme Court, for example, in UP Jal Nigam v. PrabhatChandra Jain, AIR 1996 SC 1661, where the Court held thatdowngrading of the ACR can have serious adverse effect on anincumbent’s chances of promotion where comparative merit of severalcandidates is considered, and in Devdutt v. Union of India, (2008) 8SCC 725, where the Court noted:

“In our opinion, every entry (and not merely poor oradverse entry) relating to an employee under the State oran instrumentality of the State, whether in civil, judicial,police or other service (except the military) must becommunicated to him, within reasonable period, and itmakes no difference whether there is bench mark ornot. Even if there is no bench mark, non-communicationof an entry may adversely affect the employee's chancesof promotion (or getting some other benefit), becausewhencomparativemeritisbeingconsideredforpromotion (or some other benefit) person having a`'`'`'good or average or fair entry certainly has less`chances of being selected than person having very'`'good or outstanding entry.” (emphasis supplied).”

47.In the present case, since there was no comparison chartprepared by the Selection Committee, nor was any material other than

the ACRs before it, the ACRs – as it appears from the record –constituted the only basis on which the decision was made. Thus, inthis case, the ACR grading was important. The ACR remarks for thefive years preceding the selection process indicate that Mr.Tolani hadfive ‘Very Good’ remarks, Mr.Yadav had one ‘Very Good’ and four‘Good’ remarks. Amongst the candidates selected for the post, theirgrading was as follows: (1) five ‘Good’, (2) four ‘Very Good’ plusone ‘Outstanding’, (3) two ‘Very Good’ plus three ‘Good’, (4) five‘Very Good’, and (5) One ‘Average’ plus one ‘Good’ plus three ‘VeryGood’.

48.Thus, on the basis of this grading – which was the only materialthat the Selection Committee had to assess merit – the conclusion thatthe two petitioners were not selected, whilst others, with lowercumulative grading, were, appears to be anomalous. This is not to saythat the two petitioners are more merited or qualified than thoseselected by the Selection Committee. That determination lies outsidethe domain of the Court. While the Selection Committee determineswhich candidate possesses greater merit, such determination must bebased on some objective fact which is capable of leading to thatconclusion. Needless to say, ‘Very Good’ grade is better than a‘Good’ grade, and so on, in terms of consideration for promotion.Thus in this case, given the grading of the candidates in their ACRs,the conclusion that the two petitioners were less merited – on the basisof that material – seems illogical. An ACR evaluates the performanceof the public officials, and based on certain objective bench-marks,provides grading, which reflects the quality of the service rendered

by that official. This grading thus is then used for determiningcomparative by DPCs. These ACR gradings are in no mannerconclusive; in M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119, the Courtstated:

“Therefore, in view of catena of cases, courts normallydo not sit as court of appeal to assess ACRs and muchless the Tribunal can be given this power to constitute anindependent Selection Committee over the statutorySelection Committee. The guidelines have already beengiven by the Commission as to how ACRs to be assessedand how the marking has to be made. These guidelinestake care of the proper scrutiny and not only by theSelection Committee but also the views of the StateGovernment are obtained and ultimately the Commissionafter scrutiny prepares the final list which is sent to theCentral Government for appointment. There also it is notbinding on the Central Government to appoint all thepersons as recommended and the Central Governmentcan withhold the appointment of some persons somentioned in the select list for reasons recorded.Therefore, if the assessment of ACRs in respect of Shri S.Daya Shankar and Shri R. Ramapriya should have beenmade as “outstanding” or “very good” it is within thedomain of the Selection Committee and we cannot sit as acourt of appeal to assess whether Shri R. Ramapriya hasbeen rightly assessed or Shri Daya Shankar has beenwrongly assessed. The overall assessment of ACRs ofboth the officers were taken; one was found to be“outstanding” and the second one was found to be “verygood”. This assessment cannot be made subject of court'sor Tribunal's scrutiny unless actuated by mala fide.”

50.Thus, the Selection Committee in this case was in no waybound by the ACR grading, and could have moved beyond them – oreven disagreed with them – to reach an opinion afresh on the merit of

the candidates, its determination ordinarily should be based on someindependent material or input. Absent any external evidence of themerit of the candidates, it would seem unclear how the SelectionCommittee decided to select those with lower grading in their ACRs.Having decided not to consider any independent material, thereasonableness of the Selection Committee’s conclusion contrary tothe ACRs placed before has to be considered. The observations of theSupreme Court in State Bank of India v. Kashinath Kher, (1996) 8SCC 762, are extremely pertinent here, as the Court considers exactlyhow such selection process can be fair and comprehensive withoutrestricting the prerogative of the DPC to consider the merit. In thatcase, the Court considered the process adopted by the DPC inselecting individuals for promotion from the Middle ManagementGrade Scale II to Scale III in the Bhopal Circle of the State Bank ofIndia, and in setting aside the decision of the DPC held:

“16. It would also appear from the record that theconfidential reports submitted were adopted in toto by theCommittee considering promotion without any crossverification from the character rolls or the record andindependent assessment of merit and ability. That wouldalso be clearly illegal. Being competent authority toconsider the claim of the candidates, the Committee forpromotion has to independently assess the merit andability of each candidate from the reports and the recordsetc. consistent with the weightage prescribed in the rulesand then to determine the relative merit and ability ofofficers and then to arrange order of merit of the officersfor promotion. Being selection posts, the selection recordalso must indicate reasons, however, brief they may be,so that when tested by judicial review, the - Court wouldbe better assisted by such record to reach correct

decision in law. This exercise should also be done by theappellant. If the confidential reports written earlier areby superior officers, then the entire record could besecured by the controlling officers. They should beconsidered by the promotion Committee and each casemust be examined in the light of the record of eachofficer. It would be desirable to prepare columnarstatement with all relevant columns. The C.Rs. and otherrelevantrecordshouldbepreserved.Themattersconsidered by the promotion committee should also bepreserved.”

51.In the present facts and circumstances too the SelectionCommittee was not bound by the ACRs; however, it adopted someother consideration in the absence of any material. The SelectionCommittee could have adopted the view that the petitioners were notmerited, if it formed this opinion on the basis of other material presentbefore it, as for example, sample judgments of the members, theirdisposal rates, cases turned on appeal etc. If such course had beenfollowed, the assessment of the Selection Committee would lie outsidethe Court’s limited power of judicial review. Yet, since no materialwas before the Selection Committee which could testify as to thosefactors, and since none of the candidates were interviewed by theSelection Committee (which did not have any occasion to interact withthem), the comparative merit as judged by the ACRs leads to aconclusion contrary to that returned by the Selection Committee.52.Here, the Court recognizes that the Selection Committee – as anadministrative body – does not have to give reasons for accepting thefive candidates in question, and rejecting the two writ petitioners. Thedecisions in IPS Dewan (supra) and Samar Singh (supra), consideredabove, consider this proposition in detail. Being an administrativebody, the Selection Committee is not obliged – as in quasi-judicialsetting – to provide reasons for its decision. Nevertheless, thedecision-making process should be fair and reasonable, and ensurethat promotions are made on the basis of the statutory criteria, andthrough fair consideration of the relative merit of the candidates tothe posts in question. Thus, if “inferences drawn (that) are such thatno reasonable person can reach such conclusions.” (Badrinath vGovernment of Tamil Nadu and Ors., (2000) 8 SCC 395), then theCourt must exercise its jurisdiction under Article 226 to quash thedecision-making process.

53.Leaving the precise factors and material to be considered inmaking such appointments to the Selection Committee, it is importantto note that in this case no attempt was made to conduct anindependent assessment of the candidates. Only one source ofinformation, the ACRs, was before the Committee, and no additionalmaterial was sought or at any time brought on record. The Minutes ofthe meetings of the Selection Committee indicate that the decision wasmade on the basis of the “available character rolls, knowledge andsuitability”, this boiled down to only the ACRs. Drawing an analogywith the selection of individuals to judicial services, which is similarto the post of the Vice-President of that ITAT,

“[t]he concept of merit in the case of appointment to asenior position … embraces within its scope every aspectof the personality of the officer relating to his work and

conduct.”(DK Agarwal v. The High Court of Allahabad,through its Registrar, 1988 1 AWC 2011 All)”

54.A robust and comprehensive process that considers variousfactors that touch upon the merit of the candidates, thus, is crucial insuch cases, especially given the high office to which they are to beselected. For example, in discussing the process of selection ofmembers of the subordinate judiciary, the Supreme Court, in All IndiaJudges Association and Ors. v. Union of India and Ors. 2002 (3)CGLJ 361, held as follows:

“While we agree with the Shetty Commission that therecruitment to the Higher Judicial Service i.e. the DistrictJudge cadre from amongst the advocates should be 25per cent and the process of recruitment is to be by acompetitive examination, both written and viva voce, weare of the opinion that there should be an objectivemethod of testing the suitability of the subordinatejudicial officers for promotion to the Higher JudicialService. Furthermore, there should also be an incentiveamongst the relatively junior and other officers toimprove and to compete with each other so as to exceland get quicker promotion. In this way, we expect that thecalibre of the members of the Higher Judicial Service willfurther improve. In order to achieve this, while the ratioof 75 per cent appointment by promotion and 25 per centby direct recruitment to the Higher Judicial Service ismaintained, we are, however, of the opinion that thereshouldbetwomethodsafarasappointmentby promotion is concerned: 50 per cent of the total postsin the Higher Judicial Service must be filled by promotionon the basis of principle of merit-cum-seniority. For thispurpose, the High Courts should devise and evolve testin order to ascertain and examine the legal knowledge ofthose candidates and to assess their continued efficiencywith adequate knowledge of case-law. The remaining 25

per cent of the points in the service shall be filledby promotion strictly on the basis of merit through thelimited departmental competitive examinationfor whichthe qualifying service as Civil Judge (Senior Division)should be not less than five years. The High Courts willhave to frame rule in this regard.” (emphasis supplied)

55.Thus, while “it would not be possible or practical to measurethe respective merits for the purpose of seniority with mathematicalprecision by barometer and some formula doing largest good to thelargest number had to be evolved” (Joginder Nath v. Union of India,[1975] 2 SCR 533), Courts have – in analogous instances ofpromotion – identified various factors that speak of candidate’smerit, and lead to comprehensive consideration of the comparativemerit of the candidates. This line of thought applies equally to high-posts such as that of ITAT, Vice President, where the screening of thecandidates should be thorough and detailed. As noted above, this isnot to dictate the precise factors relevant, or to indicate preferredprocedure for selection, to be adopted by the Selection Committee, butonly to demonstrate the various ways in which the Supreme Court haspreviously considered merit to be judged – through written tests,interviews/meetings, examination of legal knowledge and case-law,analysis of judgments written, frequency of judgments having beenoverruled by appellate authorities etc.

56.During the proceedings, the Central Government’s position wasthat even though materials other than the character rolls (ACRs) of thecandidates was not considered while at the same time the ACRgradings were not conclusive, it was also contended that given the

wide experience in income tax matters of the Chairman, i.e. JusticeKapadia (who later became the Chief Justice of India) and his havingconsidered numerous orders of the ITAT, as well as the experience ofthe President of ITAT, in the given facts of the case, there wassufficient knowledge about the candidates merit, to warrant theselection. Furthermore, it was argued that there was no allegation ofbias or mala fides nor was any proof of it forthcoming. In thesecircumstances, the appointment and selection should not be interferedwith.

57.Whilst there is authority of Constitution Bench in DelhiTransport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101that conferring power or authority to do something upon highofficial does not clothe the use of power with layer of immunity,equally the fact that no mala fides were urged or proved againstanyone in this case, or in respect of the process, is an importantcircumstance. Once that aspect is accepted, the further circumstancethat the Chairman had vast experience in income tax matters, wouldhave had occasion to consider some of the orders of the candidateswas relevant. He was aided by the President of ITAT, who in turnwould have provided inputs in respect of the functioning of eachcontender to the post. If these aspects are kept in mind, it cannot besaid that there was any unfairness in the selection process or that thecommittee’s decision is vitiated by non-application of mind, or thatrelevant material was withheld from consideration.

58.The above observations would be normally dispositive of theseproceedings. However, this Court is of the opinion that to allay any

futureapprehensions,itwouldbenecessaryfortheCentralGovernment, in consultation with all concerned, including thePresident of ITAT, to evolve some guidelines applicable for futurecases. This could be in the form of some minimum information abouteach candidate who applies for the post of Vice President, Senior VicePresident and President, in regard to the last three years or five years’performance, such as the number of orders written or delivered, eachyear; the units/appeals disposed of; certain number of orders, i.e.about five or ten (may be chosen in advance by the Chairman of theCommittee) to assess their quality, and personal interaction. Thecommittee might, for its own assistance, in accordance with suchguidelines, evolve an appropriate marking mechanism. This wouldlend objectivity and greater degree of scrutiny of the quality ofcandidates and avoid the odium of arbitrary or unfair procedure.59.This Court is of the opinion that members of tribunals such asthe ITAT perform crucial judicial functions, which can have anadverse bearing on individuals, and at times, vast commercial andfiscal ramifications. In these circumstances, the Central Governmentshould seriously consider continuous oversight through the concernedHighCourts, given that High Courts exercise appellate (andsupervisory writ) jurisdiction over the orders and proceedings of ITATand its benches. Some reporting mechanism, preferably centralized, tooversee the quality of the orders of ITAT is essential because thePresident of ITAT’s powers over members of ITAT and VicePresident are not appellate, they are administrative. Creation of thismechanism would result in adding new and possibly crucial

dimension to ensure greater scrutiny of ITAT and its orders and alsoprovide link in the decision making process of selection to seniorjudicial positions within ITAT.60.For the above reasons, these writ petitions cannot succeed. Theyare accordingly dismissed without any order as to costs.

S. RAVINDRA BHAT(JUDGE)NAJMI WAZIRI(JUDGE)MAY 23, 2014