THE PRINCIPAL COMMISSIONER OF INCOME TAX, vs. CHELANNUR SERVICE CO-OPERATIVE BANK LTD.,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943 OP (CAT) NO. 285 OF 2019 AGAINST THE ORDER IN OA NO.180/00119/2017 DATED 08.03.2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER/RESPONDENT NO.4 IN O.A: THE UNION PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI-110069 BY ADV THOMAS MATHEW NELLIMOOTTIL RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 3, 5 & 6 IN O.A: 1 A.DHANARAJ S/O. V.M.ARUNACHALAM (LATE), ADDITIONAL COMMISSIONER OF INCOME TAX, SR.AUTHORISED REPRESENTATIVE, INCOME TAX APPELLATE TRIBUNAL, 7TH FLOOR, C-BLOCK, KENDRIYA BHAVAN, OPPOSITE CEPZ,KAKKANAD, KOCHI-682 037,PERMANENT ADDRESS NO.85, “MORAIS GARDENS”, KOTTAPATTU, PONMALAIPATTI, TIRUCHIRAPPALLI-620 004 2 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110 001 3 THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF DIRECT TAXES), NEW DELHI-110 001 4 THE CHAIRMAN, CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,NEW DELHI-110 001 5 SHRI.G.AWUNGSHI GIMSON, IRS, COMMISSIONER OF INCOME TAX (APPEALS), EARNEST

O.P (CAT) Nos.285 & 309 of 2019 2 HOUSE, NARIMAN POINT MUMBAI-400 021 6 MRS.ANSHU SHUKLA PANDEY, COMMISSIONER OF INCOME TAX (APPEALS), KANPUR-208 001 BY ADVS. SRI.T.C.GOVINDA SWAMY SRI.B.RAMACHANDRAN, CGC SMT.KALA T.GOPI SRI.B.NAMADEVA PRABHU THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 29.03.2021, ALONG WITH OP (CAT).309/2019, THE COURT ON 09.06.2021 DELIVERED THE FOLLOWING:

O.P (CAT) Nos.285 & 309 of 2019 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943 OP (CAT) NO. 309 OF 2019 AGAINST THE ORDER/JUDGMENT IN OA 119/2017 DATED 08.03.2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS/RESPONDENTS IN O.A: 1 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110 001. 2 THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF DIRECT TAXES), NEW DELHI-110 001. 3 THE CHAIRMAN, CENTRAL BOARD OF DIRECTOR TAXES, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110 001. *4 THE UNION PUBLIC SERVICE COMMISSION,(STRUCK OUT) DHOLPUR HOUSE, SHAHJAHAN ROAD, NEW DELHI-110 069, REPRESENTED BY ITS SECRETARY. *5 SHRI.AWIUNGSHI GIMSON, IRS (STRUCK OUT) COMMISSIONER OF INCOME TAX (APPEALS), EARNERST HOUSE, NARIMAN POINT, MUMBAI-4000 021, (SET-EX-PARTY VIDE ORDER DTED 26.02.2018). *6 MRS.ANSHU SHUKLA PANDEY,(STRUCK OUT) COMMISSIONER OF INCOME TAX(APPEALS), KANPUR-208 001 (SET-EX-PARTY VIDE ORDER DATED 26.02.2018).

O.P (CAT) Nos.285 & 309 of 2019 4 *(PETITIONER NOS.4,5,6 ARE STRUCK OUT FROM THE PETITIONER ARRAY AS PER THE ORDER DATED 29/3/21 IN I.A.1/21 IN OP(CAT) 309/19.) BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA RESPONDENTS/APPLICANT AND RESPONDENT 5 AND 6 IN O.A: 1 A.DHANARAJ, S/O.V.M.ARUNACHALAM(LATE), ADDITIONAL COMMISSIONER OF INCOME TAX, FORMERLY SENIOR AUTHORISED REPRESENTATIVE, INCOME TAX APPELLATE TRIBUNAL, 7TH FLOOR, C BLOCK, KENDRIYA BAHVAN, OPPOSITE CEPZ, KAKKANAD, KOCHI-682 037. PRESENTLY. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-2, AAYAKAR BAVAN, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. PERMANENT ADDRESS. NO.85, MORAIS GARDEN, KOTTAPATTU, PONMALAIPATTI, TIRUCHIRAPILLY-682 004. P4 ARRAYED AS R2. *ADDL.R2 THE UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE,SHAHJAHAN ROAD,NEW DELHI-110069. REPRESENTED BY ITS SECRETARY. *(PETITIONER NO.4 IS ARRAYED AS RESPONDENT NO.2 AS PER THE ORDER DATED 29/3/21 IN I.A.1/21 IN OP(CAT)309/19.) THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 29.03.2021, ALONG WITH OP (CAT).285/2019, THE COURT ON 09.06.2021 DELIVERED THE FOLLOWING:

O.P (CAT) Nos.285 & 309 of 2019 5 (CR) ALEXANDER THOMAS & K.BABU, JJ. ================================= O.P (CAT) Nos.285 & 309 of 2019 [arising out of the impugned final order dated 08.03.2019 in O.A No.119/2017 on the file of the CAT, Ekm Bench] ================================= Dated this the 09th day of June, 2021 JUDGMENT ALEXANDER THOMAS, J. The prayers in O.P (CAT) No.285/2019 filed by the Union Public Service Commission (R4 in the O.A) are as follows [see page No.21 of the paper book of the O.P] : “a. Allow the present Original Petition (CAT); b. Issue a writ of certiorari and quash/set aside the Judgment & Order dated 08.03.2019 passed in O.A NO.180/00119/2017; and c. Pass such other order/orders as this Hon'ble Court may deem fit and proper.” 2. Being aggrieved by the same impugned final order of the Tribunal, the Union Government authorities have filed O.P(CAT) No.309/2019 with the following prayers [see page No.8 of the paper book of the O.P] : “...............to set aside Ext.P8 Order in OA 119/2017 dated 08/03/2019 of the Central Administrative Tribunal, Ernakulam bench, in the interest of justice.”

O.P (CAT) Nos.285 & 309 of 2019 6 3. Heard Sri.Thomas Mathew Nellimmoottil, learned Standing Counsel for the Union Public Service Commission (UPSC) appearing for the petitioner in O.P (CAT) No.285/2019 as well the 2nd respondent in O.P (CAT) No.309/2019, Sri.B.Ramachandran, learned Central Government Counsel (CGC) appearing for official respondent Nos.2 to 4 in O.P(CAT) No.285/2019, Sri.P.Vijayakumar, learned Assistant Solicitor General of India (ASGI) appearing for the petitioners (Union Government Authorities concerned) in O.P(CAT)No.309/2019 and Sri.T.C.Govinda Swamy, learned counsel appearing for contesting respondent No.1 (original applicant) in both the cases. Though notice process has been duly completed in respect contesting respondent Nos.5 & 6 in O.P (CAT) No.285/2019, the said parties have not entered appearance. O.P(CAT) No.285/2019 filed by the UPSC is taken as the lead case and reference to exhibits will be on the basis of documents as marked in O.P(CAT) No.285/2019. 4. The prayers in the instant Ext.P-2 original application, O.A No.119/2017 filed by the 1st respondent herein (original applicant) are as follows [see page No.50 of the paper book of the O.P] : “(i) Call for the records leading to the issue of Annexure A1 and quash the same to the extent it excludes the name of the applicant and includes the names of the applicant's juniors for promotion to the

O.P (CAT) Nos.285 & 309 of 2019 7 post of Commissioner of Income-tax; (ii) Call for the records leading to the issue of Annexure A2 and quash the same to the extent it downgrades the applicant's grading for the year 2011-12 from 'Very Good' to that of 'Good' in para 9 (iv) of A2 and declares the applicant unfit for promotion to the post of Commissioner of Income-tax; (iii) Direct the respondents to conduct a review DPC for promotion to the post of Commissioner of Income-tax for the panel year 2013- 14 and direct the respondents to consider and promote the applicant with all consequential benefits from the date of promotion of the applicant's juniors in Annexure A1; (iv) Award costs of and incidental thereto; (v) Pass such other orders or directions as deemed just and fit by this Hon'ble Tribunal.” 5. The original applicant belongs to Scheduled Caste community and he was initially appointed on the basis of direct recruitment to the Indian Revenue Service (IRS) of the 1991 batch. During the year in 2004, he was appointed as Additional Commissioner of Income Tax. The applicant and the other eligible candidates concerned were considered for promotion to the total 48 vacancies of Commissioner of Income Tax for the vacancy year 2013-14 by the Departmental Promotion Committee (DPC) in their meeting held on 19.11.2013. The case of the respondents in the O.A is that as per the governing norms, the Annual Confidential Report (ACR) / Annual Performance Appraisal Reports (APARs) for the preceding five relevant previous years in this case were of the year 2007- 08 to 2011-12. Annexure-A3 is the APAR for the period 2011-12. It is

O.P (CAT) Nos.285 & 309 of 2019 8 common ground that the competent authorities concerned have graded the applicant as 'Very Good' in the APARs for all the abovesaid five previous years in question (2007-08 to 2011-12). However, as per Annexure-A2 minutes of the meeting held on 19.11.2013, the DPC has found that though both the Reporting Officer and the Reviewing Officer have graded the applicant as 'Very Good' for the year 2011-12 as per Annexure-A3 by awarding him the numerical grading of 6.0, the Reporting Officer has remarked in column No.8(a) under Sec.III(B) of Annexure-A3 APAR for 2011-12 that “the applicant is a sincere person. He has to improve his attitude towards subordinates. He has to be practical.” and that these remarks broadly concurred to by the Reviewing Officer and that after going through Annexure-A3 APAR for 2011-12, the DPC was of the view that he could be graded only as 'Good' for the year 2011-12, though he has been graded as 'Very Good' in the APAR. On this basis, the DPC has taken the stand that since the applicant has been graded only as 'Good' for the year 2011-12 and though he has been graded as 'Very Good' for the other relevant previous years, he has not been able to cross the minimum bench mark of being graded by the DPC as 'Very Good' for all the abovesaid five previous relevant years in question and

O.P (CAT) Nos.285 & 309 of 2019 9 hence, promotion has been denied to him and his juniors, who have been graded as 'Very Good' for all the five years by the DPC have thus superseded him, etc. Annexure-A1 is the order dated 20.02.2014 issued by the competent authority of the Government of India in the Ministry of Finance (Department of Revenue), whereby some of the applicants seniors as well as some of his juniors have been promoted as Commissioner of Income Tax for the vacancy /panel year 2013-14 in pursuance of Annexure-A2 DPC proceedings rendered on 19.11.2013. It is the case of the applicant that if his seniority and eligibility were taken into account, he ought to have been placed well before the names, which figured as Sl.Nos.28 to 50 of Annexure-A1, all of whom belong to his junior batch (1992 batch) and that he should have been placed above Sl.No.10 of Annexure-A1. The case of the applicant is that the abovesaid stand of the DPC as reflected in Annexure-A3 that the applicant can be graded only as 'Good' for the year 2011-12 merely on the basis of observations made in column No.8(a) under Sec.III(B) of Annexure-A3 APAR, inspite of the fact that both the Reporting Officer and the Reviewing Officer have concurrently graded him as 'Very Good' for that year as per Annexure-A3, would amount to a grave illegality and

O.P (CAT) Nos.285 & 309 of 2019 10 unreasonableness. That, all relevant aspects of the matter have not been duly taken note of by the DPC while arriving at such an adverse order, which inflicts serious adverse consequences on the service career of the applicant. In that regard, it is also pointed out that the abovesaid stand of the DPC as per Annexure-A3 in so rating the applicant only as 'Good' and not as 'Very Good' for the year 2011-12, will have the effect of not only denying promotion for the vacancy year 2013-14 but also for at least four more years, as the said previous year 2011-12 would be relevant for the purpose of consideration of promotion for those succeeding years as well. 6. The official respondents in the O.A, viz., both the UPSC as well as the Union Government authorities have filed their separate reply statements in the matter. Ext.P-3 is the reply statement filed by the UPSC before the Tribunal in this case and Ext.P-4 is the reply statement filed by the Union Government authorities before the Tribunal. Ext.P-6 is the additional reply statement filed by the UPSC before the Tribunal, etc. 7. The main case of the respondents as reflected in the abovesaid reply statement is to the effect that as per para 6.1.2 of the Office

O.P (CAT) Nos.285 & 309 of 2019 11 Memorandum (OM) dated 10.04.1989 issued by the Department of Personnel & Training of the Union Government, “the DPC enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them”. Further that, as per para 6.2.1 (e) of the said OM dated 10.04.1989 of DoP&T, it has been stipulated that “the DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of entries in the CRs, because it has been noticed that sometime the overall grading in a CR may be inconsistent with the grading under various parameters or attributes”. Thus it is contended that the DPC has the power of applying their own mind in the matter and shall not mechanically act upon the grading given to the candidates concerned in the ACR/APAR and that they are obliged to make an independent assessment on the basis of the materials available and then come to a considered conclusion, as to whether the candidate concerned is to be graded as 'Good', 'Very Good', 'Outstanding', etc. Further it is pointed out that as per Annexure-R(1) OM dated 14.05.2009 issued by the Department of Personnel & Training of the Union Government, it has been stipulated that full APARs (from 2008-09 onwards) including the overall grading and assessment of integrity shall

O.P (CAT) Nos.285 & 309 of 2019 12 be communicated to the officer concerned to make representation within 15 days of such communication against the entries and final grading given in the report. That in the instant case, it has been certified by the departmental authorities that all the APARs for the abovesaid five previous relevant years in question have been duly communicated to the applicant. Further that, as stated in Annexure-A2, the ACR of the applicant for the 2007-08, which initially contained below bench mark grading, was duly communicated to him and to which the applicant had submitted objection/representation, which was examined by the competent authority of the department and it was decided to upgrade the said initial grading as 'Good' to 'Very Good' for the year 2007-08. That this gradation of 'Very Good' for the year 2007-08 in the APAR has also been accepted by the DPC. However, Annexure-A3 APAR for the year 2011-12, of the DPC on the basis of the abovesaid aspects have come to the considered conclusion that the applicant can be graded as only 'Good' and not as 'Very Good' even though the departmental authorities have graded him as 'Very Good' in the APAR for that year (2011-12) [these aspects are stated in the relevant portion of Annexure-A2 minutes dated 19.11.2013 of the DPC dealing with the applicant's case at internal page

O.P (CAT) Nos.285 & 309 of 2019 13 No.8 of Annexure-A2 [see page No.62 of the paper book in O.P (CAT) No.285/2019)]. On this basis, it is contended by the respondents that the DPC was well within its powers to evaluate and grade the applicant only as 'Good' for the year 2011-12. Hence, the stand appears to be that though the applicant has been graded as 'Very Good' even by the DPC for all the other four years concerned, he is not entitled for promotion, as he failed to secure the gradation of 'Very Good' by the DPC for the year 2011-12. That a candidate will be adjudged as entitled for promotion, only if he/she has secured gradation of at least as 'Very Good' for all the five previous relevant years in question by the DPC and not otherwise, etc. 8. The Tribunal, after hearing both sides and after going through the materials, has come to the considered conclusion that the abovesaid stand of the DPC in grading the applicant only as 'Good' and not as 'Very Good' for the year 2011-12, inspite of which, gradation as 'Very Good' for that year in the APAR, is highly arbitrary and unreasonable and has not been made taking into account all relevant aspects of the matter relating to the applicant. The Tribunal has come to the considered conclusion that the abovesaid observations made by the Reporting Officer in column

O.P (CAT) Nos.285 & 309 of 2019 14 No.8(a) under Sec.III (B) of Annexure-A3 APAR for the year 2011-12 are purely advisory in nature and that even the Reviewing Officer has clearly taken a stand in Sec.IV(B) of Annexure-A3 that the applicant is a sincere officer who needs fair assistance of infrastructure and staff and other officials to improve his performance further and that though he would agree with the abovesaid observations of the Reporting Officer, those observations of the Reporting Officer shall not be treated as an adverse view. It is further contended that the applicant has never filed any representation as against the observations made by the Reporting Officer in column No.8(a) under Sec.III (B) of Annexure-A3 APAR for the selection year 2011-12. Further that, a mere reading of Sec.III(B) & Sec.IV(B) of Annexure-A3 would make it clear that those portions are only dealing with advisory aspects and it has been clearly stated therein that they shall not be construed or deemed to be construing to adversely influence the overall grading and those observations are not to be considered for promotions, selection, deputations, etc. The Tribunal has come to the considered conclusion that in view of the abovesaid stand taken by the DPC, the applicant who is an efficient and hardworking officer, who belongs to Scheduled Caste community is barred for

O.P (CAT) Nos.285 & 309 of 2019 15 promotion along with his colleagues not only for the panel year in question (2013-14) but also for the next four years as well on account of him being so reiterated by the DPC only as “Good” for the year 2011-12. The Tribunal has thus held in para No.18 of the impugned Annexure-A1 final order that the abovesaid seemingly innocuous observation made by the Reporting Officer will have the highly calamitous effect on his career, as he has been excluded not only from the panel for the year 2013-14 but also stood excluded from the select panels for the next four years as well. The Tribunal has thus held that the abovesaid fact of the DPC is not only unreasonable and improper, but would also amount to grave miscarriage of justice, which has to be remedied. The Tribunal has held that it is true that the DPC indeed has independent discretion to make an assessment, as to how the candidates concerned in the field of choice should be graded and that they are not obliged to mechanically act upon the APAR grading that may be given by the departmental authorities concerned. But that, the said discretion has to be judiciously and fairly exercised after taking into account consideration all relevant aspects of the matter and that in the instant case, the abovesaid observations of the Reporting Officer in Annexure-A3 have been taken out of context and

O.P (CAT) Nos.285 & 309 of 2019 16 that the materials clearly show that the abovesaid conclusion arrived at by the DPC is unreasonable and unfair and has been so done without any valid justification. 9. On the above basis, the Tribunal has ordered in para No.20 of the impugned Ext.P-1 final order that Annexure-A2 to the extent, the DPC grades the applicant for the year 2011-12, only as 'Good' and not as 'Very Good' and thus evaluated him as unfit for promotion to the post of Commissioner of Income Tax for the panel year 2013-14 is quashed, as the same has been done without any valid justification. Accordingly, the Tribunal has further directed that the competent authority among the respondents in the O.A shall conduct a review DPC including the case of the applicant for promotion to the post of Commissioner of Income Tax for the panel year 2013-14 and if found fit, he should be granted promotion with all consequential benefits from the date of promotion of his juniors in Annexure-A1 and in the light of the abovesaid findings made by the Tribunal and that the steps in that regard have to be completed within a period of three months, etc. 10. We have heard both sides in extenso. The learned advocates appearing on both sides have also taken us through various decisions

O.P (CAT) Nos.285 & 309 of 2019 17 rendered by the Apex Court and by this Court. We have gone through the pleadings and materials on record. 11. At the outset, it may be pertinent to refer to some of the important decisions rendered by the Apex Court in respect of the above issues. The Apex Court in the case in UPSC v. Rajaiah & Ors. [(2005) 10 SCC 15] has clearly held that the Selection Committee / DPC has indeed the power to classify the officers in the field of choice as “Outstanding”, “Very Good”, “Good”, “Unfit”, etc. and that is a function which is incidental to the selection process and that the classification given by the governmental/departmental authorities concerned in the ACRs is not binding on the Committee and that no doubt, the Committee is by and large guided by the classification adopted by the Government / department concerned. But, for good reasons, the Selection Committee can evolve its own classifications which may be at variance with the gradation given in the ACRs and that such a classification is fully within the prerogative of the Selection Committee, etc. In that regard, it may be pertinent to note that para 4.3 of Ext.P-3 reply statement filed by the UPSC before the Tribunal, which deals with the relevant contents of the guidelines to be followed by the DPC as laid down in Office Memorandum

O.P (CAT) Nos.285 & 309 of 2019 18 dated 10.04.1989 issued by the Department of Personnel & Training of the Union Government. The relevant contents of the said O.M dated 10.04.1989 as given in the reply statement of the UPSC, read as follows (see internal page Nos.2 & 3 of Ext.P-3 reply statement, which is at page Nos.109 & 110 of the paper book) : “6.1.2- At present DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them. In order to ensure greater selectivity in matters of promotions and for having uniform procedures for assessment by DPCs, fresh guidelines are being prescribed. The matter has been examined and the following broad guidelines are laid down to regulate the assessment of suitability of candidates by DPCs. 6.1.3.- While merit has to be recognized and rewarded, advancement in an officer's career should not be regarded as a matter of course, but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the ACRs and based on strict and rigorous selection process. xxx xxx xxx xxx xxx xxx 6.2.1 (e) – The DPC should not be guided merely by the overall grading, if, any, that may be recorded in the CRs but should make its own assessment on the basis of entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes”. It is also pertinent to refer to para 6.2.1(f) of the above O.M dated 10.04.1989, which reads as follows : “6.2.1 (f) If the Reviewing authority or the Accepting authority as the case may be has over-ruled the Reporting Officer or the Reviewing

O.P (CAT) Nos.285 & 309 of 2019 19 authority as the case may be the remarks of the latter authority should be taken as the final remarks for the purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing authority and Accepting authority are complementary to each other and one does not have the effect of over-ruling the other, then the remarks should be read together and the final assessment made by the DPC.” 12. Further, it has been held by the Apex Court in decisions as in R.S.Dass v. Union of India & Ors. [1986 (Supp) SCC 617] that the Selection Committee consists of high ranking responsible officials presided over by a Chairman or a Member of the Union Public Service Commission, etc. and there is no reason to hold that they would not act in a fair and impartial manner in making selection. In Nutan Arvind v. Union of India & anr. {(1996) 2 SCC 428}, it has been categorically held that when a high level Committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, Courts may not sit over the assessment made by the DPC as an appellate authority. In UPSC v. Hirnyalal Dev & Ors. {(1988) 2 SCC 242} their Lordships of the Apex Court have again reiterated that the matter as to how to categorize the officials in the field of choice in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection

O.P (CAT) Nos.285 & 309 of 2019 20 Committee, etc. Grounds for invocation of the public law remedy of judicial review in such matters involving the decision of the Selection Committee / DPC concerned have been dealt with by the Apex Court in various decisions including the celebrated decision in Badrinath v. Government of Tamil Nadu & Ors. {(2000) 8 SCC 395}. It will be pertinent to refer to para No.40 of the abovesaid judgment of the Apex Court in Badrinath's case supra {(2000) 8 SCC 395 p.416}, which reads as follows : “40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunals cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. 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.” 13. The Apex Court has further explained in para No.41 of Badrinath's case supra that the writ Courts are to be extremely careful in exercising the power of judicial review in dealing with the assessment made by the DPCs and further that the executive authorities should also to bear in mind that in exceptional cases, the assessment of merit made by them is liable to be scrutinised by courts within narrow Wednesbury

O.P (CAT) Nos.285 & 309 of 2019 21 principles or on the ground of mala fides and that the judicial power remains but its use is restricted to rare and exceptional situations and that their Lordships of the Apex Court are making the said observations so that courts and Tribunals may not make interference with the assessment of merit in every case in a routine manner and that the courts and Tribunals can neither sit as appellate authorities nor substitute their own views of the Departmental Promotion Committees. 14. The Apex Court in the decision in Union of India & anr. v. A.K.Narula {(2007) 11 SCC 10} has inter alia held in para No.15 thereof, that the guidelines governing the exercise of discretion by the DPC (Selection Committee) give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in CRs, but may make its own assessment on the basis of the entries in CRs and that the DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. Further that, when the process of selection is vitiated either on the ground of bias, mala fides or arbitrariness, that selection calls for interference. Where a DPC has proceeded in a fair, impartial and reasonable manner and by applying the

O.P (CAT) Nos.285 & 309 of 2019 22 same yardsticks and norms to all the candidates and there is no arbitrariness in the process of assessment by the DPC, the courts may not interfere, etc. 15. After hearing both sides, we are of the considered view that the DPC has indeed the power and discretion to make their own assessment regarding the gradations given to the officers in the field of choice based on the materials available and by taking into account all relevant aspects of the matter and that the DPC is not to mechanically act upon the gradations given by the departmental authorities concerned in the APARs / ACRs concerned for the relevant years. There cannot be any quarrel with the abovesaid proposition and indeed the Tribunal has also taken the said view. As held by the Apex Court in Badrinath's case supra {(2000) 8 SCC 395} that unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunals may not interfere with assessments made by the DPC in regard to merit or fitness for promotion. But in rare cases, if the assessment is 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,

O.P (CAT) Nos.285 & 309 of 2019 23 or if the inferences drawn are such that no reasonable person can reach such conclusion, etc. or if there is any illegality attached to the decision, then powers of judicial review are not foreclosed. Such grounds in public review based on arbitrariness, mala fides, grounds of bias, etc. are also dealt with by the Apex Court in A.K.Narula's case supra {(2007) 11 SCC 10}. So the main issue to be determined is as to whether the present case would fall within the parameters of a rare case which calls for interference, as laid down by the Apex Court in decisions as in Badrinath's case supra {(2000) 8 SCC 395}, etc. The impugned verdict of the Tribunal may not be amended for any interference, if the parameters of such a rare case as laid down by the Apex Court in decisions as in Badrinath's case supra {(2000) 8 SCC 395} are made out in the facts and circumstances of this case. 16. Coming to the facts of this case, there is no dispute about the following aspects : That the original applicant as appointed by way of direct recruitment in the Indian Revenue Service for the 1991 batch. At the relevant time, he was continuing in the post of Additional Commissioner of Income Tax. The applicant belongs to Scheduled Caste community. The panel/vacancy year in the instant impugned selection process is for 2013-14. It is pointed out to us that as per the

O.P (CAT) Nos.285 & 309 of 2019 24 norms governing the field, the performance of the candidate for the five previous relevant years should be taken into account and that the said previous relevant years in question are 2007-08 to 2011-12. For 2007-08, the applicant was initially graded only as 'Good' and not as 'Very Good' in the APAR. On being communicated about the said gradation, he had submitted a representation and the competent authority has considered the said submissions of the applicant and had acceded to the same by interfering with the gradation and upgrading him as 'Very Good' for the year 2007-08 instead of the previous gradation only as 'Good'. These factual aspects are clearly stated in the top portion of internal page No.5 of Annexure-A2 impugned minutes of the DPC. For all the other relevant previous years, 2008-09 to 2011-12, the departmental authorities concerned have graded the applicant as 'Very Good'. Thus there is no dispute that the applicant has been duly graded as 'Very Good' in the APAR by the competent authorities concerned for all the five previous relevant years in question viz., 2007-08 to 2011-12. 17. The ground for rejecting the case of the applicant for promotion by the DPC is contained in item No.(iv) given on internal page No.5 of Annexure-A2 minutes of the DPC held on 19.11.2013, which reads as follows : “(iv) The ACR of Shri A.Dhanaraj (SC) for the year 2007-08 containing below benchmark grading was communicated to him in terms of DOP&T OM dated 13.04.2010. The representation submitted by the officer was examined by the competent authority and decided to upgrade it from 'Good' to 'Very Good'

O.P (CAT) Nos.285 & 309 of 2019 25 which was also accepted by the DPC. In the APAR for the year 2011-12, the Reporting Officer has awarded numerical grading of 6.0 with the remarks in Column 8(a) 'The officer is a sincere person. He has to improve his attitude towards subordinates. He has to be practical'. These remarks have also been endorsed by the Reviewing Authority. The Committee after going through the said APAR was of the considered opinion that over all grading in r/o Shri.A.Dhanaraj (SC) should be treated as 'Good' only. The Committee, therefore, decided to assess him as 'Good' for the year 2011-12.” 18. There is no dispute that even the DPC has graded the applicant as 'Very Good' for all the other four relevant previous years. It is only on account of the abovesaid gradation by the DPC for the year 2011-12 in view of the observations made by the Reporting Officer contained in column No.8(a) under Sec.III(B) of Annexure-A3 APAR for the year 2011-12 that the applicant's case has been rejected for promotion by the DPC. 19. So also, there is no dispute to the factual aspects that during the year 2011-12, the applicant had been working under the Director General of Income Tax (Investigation) from 01.04.2011 to 27.05.2011 and he was then shifted to Madurai under the control of the Chief Commissioner of Income Tax, Madurai. Further that, although he was posted as Additional Commissioner of Income Tax of Virudunagar Range, he was given full additional charge of Tirunelveli and Tuticorin Ranges and for major part of the said period, he had full and complete charge of

O.P (CAT) Nos.285 & 309 of 2019 26 four Ranges and the position continued in 2012-13 also. These aspects mentioned in para No.3 of the impugned Ext.P-1 final order rendered by the Tribunal are discernible from Annexure-A3 APAR for the year 2011- 12 as well as Annexure-A4 APAR for the year 2012-13. 20. Further, it is evident from Annexure-A3 APAR for the year 2011-12, that both the Reporting Officer and the Reviewing Officer have concurrently found that the applicant is to be graded as 'Very Good' for that year on the basis of the appraisal of his performance. In column No.3 of Annexure-A3, the applicant has clearly stated that there was no full time officer for Virudunagar Circle and there was no full time DCIT for Virudunagar Circle and ACIT for Tuticorin Circle and that for his posting for the whole year, he has been given additional charges of those officers and that there has been non-availability of adequate number of ITIs and Stenographers in Virudunagar Range. As regards the integrity, it is certified by the authorities concerned that the integrity of the applicant is beyond doubt. The overall numerical grading given to the applicant for the year 2011-12 as per Annexure-A3 APAR is 6.0. It is common ground that the gradation by way of numerical grade from 6 and upwards but below 8 would be 'Very Good' and gradation from 8 and

O.P (CAT) Nos.285 & 309 of 2019 27 above is treated as 'Outstanding'. Sec.III (B) of Annexure-A3 APAR, more particularly, clause 8(a) thereof would read as follows (see internal page No.X of Annexure-A3) : “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 strengths 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.)” Thereunder, the following endorsement has been made by the Reporting Officer as follows : “The officer is a sincere person. He has to improve his attitude towards subordinates. He has to be practical.” Clause 6(a) of Sec.IV (B) of Annexure-A3 provides as follows (see internal page No.XIII of Annexure-A3) : “6. (a) Advisory and performance improvement comments of the reviewing authority. Please comment (in about 100 words) on the overall qualities of the officer including areas of strengths 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.)” The Reviewing Officer has made the following observations as regards the earlier observation made by the Reporting Officer in column No.8(a) and

O.P (CAT) Nos.285 & 309 of 2019 28 the said observations of the Reviewing Officer are as follows (see internal page No.XIII of Annexure-A3) : “He is a sincere worker who needs to be given assistance of infrastructure & staff/officers to improve his performance further. Otherwise I agree with observation of CIT as Reporting Officer. This should not be treated as an adverse view.” Thus both the norms contained in Sec.III (B) & Sec.IV (B) of Annexure-A3 as well as the endorsement made by the Reviewing Officer would make it clear like the day light that the abovesaid observations of the Reporting Officer given in Sec.III (B) shall not be treated as an adverse view. Further, the Reviewing Officer after taking various relevant factual aspects of the matter has found that the applicant is a sincere officer who needs fair assistance of infrastructure and staff/officers to improve his performance further. Thus it can be seen that the abovesaid version of the applicant given in column No.3 of Annexure-A3 regarding the extra responsibilities and charges given to him and about lack of officials and supporting staff, etc., has been found as factually correct by the superior Reviewing Officer in his endorsement made in Sec.IV (B) of Annexure-A3. 21. The Tribunal has also referred to the contents of Annexure-A4 APAR for the subsequent year 2012-13. There also, the applicant has

O.P (CAT) Nos.285 & 309 of 2019 29 been graded as 'Very Good' by the Reporting Officer with a numerical gradation of 6.0, whereas, the Reviewing Officer has given a higher grading to the applicant as 'Outstanding' in Annexure-A4 with the numerical grading 9.0. In column No.8 (a) under Sec.III (B) dealing with the advisory observations, the Reporting Officer has made the following remarks (see internal page No.10 of Annexure-A4, page No.93 of the paper book) : “Let him work hard further to improve his skills” The Reviewing Officer has made the following remarks in column No.4 of Annexure-A4 as regards the observations and remarks of the Reporting Officer, which reads as follows (see internal page No.XII of annexure-A4, page No.95 of the paper book): “The Reporting Officer has been very conservative. The officer held four ranges, throughout the year and other two ranges as additional charge for long spells. In his regular charges most charges were fulfilled. It is pertinent that Madurai Region offices are spread over long distances. Besides, being the only senior officer he was burdened with sundry responsibilities, including co-ordination with CPWD for office and residences in 3-10 cities. Never was he found wanting. In short, I rate him as an outstanding officer, in disagreement with the reporting officer.” The abovesaid factual aspects discernible from Annexures-A3 & A4 are not in any manner disputed by the respondents. It is on the basis of these indisputable factual materials, which were available with the DPC that

O.P (CAT) Nos.285 & 309 of 2019 30 the Tribunal has come to the considered conclusion that the impugned stand of the DPC merely on the basis of the observations made by the Reporting Officer in the advisory remarks in column No.8(a) of Sec.III (B) of Annexure-A3, so as to grade the applicant only as 'Good' and not as 'Very Good', is highly arbitrary and unreasonable and is without any valid justification, inasmuch as crucial and relevant aspects of the matter have not been taken into consideration. The Tribunal has found that it is indisputable that none other than the superior Reviewing Officer has found that during the relevant year in question, the applicant was burdened with lot of additional responsibilities and charges and he was the only senior officer, who was burdened with those additional responsibilities and that in his regular charges, most of the charges were fulfilled by him and that in the region concerned, the officers are spread over for long distances and he was burdened even with additional responsibilities like co-ordination with the Central PWD for offices and residences in 3-10 cities, etc. As mentioned hereinabove, the factual version of the applicant in Annexure-A3 about non-availability of adequate staff and infrastructure, as made out in Annexure-A3 has also been fully concurred with by the Reviewing Officer in Annexure-A3.

O.P (CAT) Nos.285 & 309 of 2019 31 Even going by the version of the Reviewing Officer, as made out in Annexure-A3, the applicant is a sincere officer. The other observation made therein is that he has to improve his attitude towards subordinates and that he has to be practical. The abovesaid cumulative aspects discernible from the materials like in Annexures-A3 & A4 would make it clear that at the relevant time the applicant was having not only regular charge but also additional charge and his most of the offices in the region concerned were spread in long distances and the applicant was faced with lack of necessary officers, supporting staff, infrastructure and he was also burdened with lot of additional charge duties of having to even frequently co-ordinate with Central Public Works Department authorities for office and residences in 3-10 cities. The abovesaid factual aspects mentioned by the superior Reviewing Officer both in Annexures-A3 & A4, are not in any manner disputed by the respondents. The main aspect of the abovesaid remarks made by the Reporting Officer in Annexure-A3 is that the applicant has to improve his attitude towards his subordinates and that he has to be practical. 22. In that regard, it may also be pertinent to note the norms governing the field as contained in para No.6.2.1(f), wherein it has been

O.P (CAT) Nos.285 & 309 of 2019 32 stipulated that if the Reviewing authority or the Accepting authority, as the case may be, has overruled the Reporting Officer or the Reviewing authority, as the case may be, then the remarks of the latter authority should be taken as the final remarks for the purpose of relevant entries that the higher authority for the purpose of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. In that regard, it is also to be borne in mind that the abovesaid advisory observations made by the Reporting Officer in column No.8(a) of Annexure-A3 do not refer to any materials available with the department, so as to justify the said remarks. Even in the pleadings submitted before the Tribunal as well as before this Court, the respondents in the O.A/petitioners herein have not placed reliance on any materials that are available with the Reporting Officer, so as to justify his stray observations in column No.8(a) of Annexure-A3. If indeed the applicant's attitude with the subordinates was in any manner problematic, then, certainly materials would have been available with the Reporting Officer, so as to justify the said factual remarks. No such materials have been placed before us either by the departmental

O.P (CAT) Nos.285 & 309 of 2019 33 authorities or by the DPC. No such materials have been placed before us by any of the official respondents in the O.A, including the departmental authorities concerned. Whereas, the remarks of the superior Reviewing Officer appear to be on the basis of concrete factual aspects, which would also justify the factual version given by the applicant in Annexure-A3 and Annexure-A4 about lack of supporting staff resources, infrastructure, etc. and overburdened with additional responsibilities, etc. The norms in para 6.2.1 (f) of the O.M dated 10.04.1989 for giving privacy to the views of the superior Reviewing Officer would be relevant. As a matter of fact, the UPSC authorities themselves have relied on the said norms contained in the O.M dated 10.04.1989 issued by the competent authority. The said norm contained in para 6.2.1 (f) of the O.M dated 10.04.1989 also finds strong endorsement and resonance in para 4(ii) of the judgment of the Apex Court in A.K.Narula's case supra {(2007) 11 SCC 10 p.12}, which reads as follows: “4. …............................................... It provided that where vacancies to be filled are more than four, the number of officers to be considered by the Departmental Promotion Committee ('DPC' for short) shall be three times the number of vacancies. It authorized the DPC to decide its own method and procedure for objective assessment of the suitability of the candidates. It excluded interviews, unless specifically provided for in the relevant recruitment Rules and directed that Confidential Reports (CRs) were to be the basic inputs for assessment. The O.M. required the DPC to follow the procedure laid down therein to ensure that the evaluation of the CRs was fair, just and non-discriminatory. A

O.P (CAT) Nos.285 & 309 of 2019 34 summary of the relevant portions of the procedure laid down in the OM is given below: (i) XXX XXX XXX XXX XXX XXX (ii) DPC should not be guided merely by the overall grading that may be recorded in the CRs but should make its own assessment on the basis of entries made in the CRs. If the reviewing authority or the accepting authority had overruled the reporting authority or the reviewing authority as the case may be, the remarks of the latter authority should be taken as the final remarks for purposes of assessment provided it is apparent from the relevant entries that the higher authority had come to a different assessment consciously after due application of mind. If the remarks of the reporting authority, reviewing authority and accepting authority are complementary to each other, and one does not have the effect of overruling the other, then final assessment should be made by the DPC, by reading the remarks together.” In the light of these aspects, the stand of the DPC, in merely placing reliance on the abovesaid stray observations of the Reporting Officer, but at the same time, by ignoring the concrete factual aspects highlighted by the superior Reviewing Officer, would amount to an injudicious exercise of discretion in the facts and circumstances of the case, more particularly, as highly relevant and crucial aspects have been given a total go bye and it would amount to a clear case of ignoring. 23. During the course of the submissions, the learned Standing Counsel for the UPSC had submitted that the attitude of the applicant towards his subordinates may not have been encouraging during the

O.P (CAT) Nos.285 & 309 of 2019 35 reporting period in question and that failure to carry the subordinates along with him is a serious inefficiency on his part and it could be on this basis that the Reporting Officer would have made the said remarks in Annexure-A3 and further consequential remarks made by the Reporting Officer that the applicant should be practical, etc., are all relevant, so as to justify the conclusion of the DPC that the applicant could be graded only as 'Good' and not as 'Very Good' for the year 2011-12 inspite of the gradation as 'Very Good' for that year in Annexure-A3 APAR. 24. We are not prepared to countenance the abovesaid contentions of the petitioners herein/respondents in the O.A, for impugning the verdict of the Tribunal. The admitted materials, would clearly show that the Department had not made available necessary supporting officers and staff to the applicant, who was overburdened with lot of other additional responsibilities, as can be seen from a reading of the undisputed observations and remarks of the Reviewing Officer in Annexures-A3 & A4. When the applicant was faced with such an extremely difficult and tough times, he may have been strict in his dealings with his subordinates from whom he may not have got the requisite co-operation keeping in view the fact that the existing staff

O.P (CAT) Nos.285 & 309 of 2019 36 would also have to put in more co-operation with the applicant as a superior, as there was serious dearth of officials and personnel. It could be only on the basis of such feedback from the subordinates who may have been irked by the insistence of the applicant for their greater co-operation that the Reporting Officer would have made the remark in column No.8(a) of Annexure-A3 that the applicant has to improve his attitude towards his subordinates. 25. In view of the heavy additional burdens of the office to be tackled, any reasonable Head of the office like the applicant would have been constrained to insist that the existing officials and personnel should give more co-operation and assistance to the applicant who was the Head of the office. Many a time, this would have irked some or many of the subordinate personnel, going by the overall work culture prevalent in Governmental organizations. But to hold that a Head of office like the applicant has committed breach of the proper relationship with his subordinates, in a factual scenario like the present one, would be nothing short of rank unreasonableness and arbitrariness. If the Head of office does not insist strictly for greater co-operation from the subordinate staff, so as not to incur their displeasure, then it would have certainly

O.P (CAT) Nos.285 & 309 of 2019 37 amounted to inefficiency and even abdication of responsibilities of the Head of office. In such a situation, any reasonable official standing in the shoe of the applicant would have shown a strict or very strict attitude to the subordinate to tide over the crisis. To take an adverse view on the applicant for having taken such a sincere and responsible stand to protect the interests of the Government department would be vitiated by “Wednesbury” unreasonableness and arbitrariness in the peculiar facts and circumstances of this case. 26. It could be only in this context that further observation made that he has to be practical, etc., has to be reckoned. Sec.III (B) would make it clear like the day light that the said observations are only advisory in nature and cannot be considered for the purpose of promotions, selections, etc. In view of the abovesaid admitted factual aspects emerging from the materials on record, the abovesaid stray observations made by the Reporting Officer in column No.8(a) of Annexure- A3, cannot be the reasonable and proper basis for the DPC to take the view that the applicant could be treated only as 'Good' and not as 'Very Good' for the year 2011-12 even though, both the Reporting Officer and the Reviewing Officer have graded him as 'Very Good' for that year. In the light of these admitted factual materials mentioned hereinabove, we are

O.P (CAT) Nos.285 & 309 of 2019 38 firmly of the view that the present case would certainly be a rare case as envisaged by the Apex Court in para No.40 of Badrinath's case supra {(2000) 8 SCC 395} and the other decisions referred to hereinabove. 27. There can be no doubt that the petitioners herein/ respondents in the O.A are fully right in contending that the DPC has the independent discretion to make their own gradations regarding the performance of the officers in the field of choice for the relevant years in question and they are not obliged to merely follow the gradations given in the APARs by the competent departmental authorities concerned. But the said discretion has to be exercised in a highly judicious and fair manner. The abovesaid stand of the DPC would reflect that not all relevant aspects of the matter have been taken into consideration and the over emphasis on the abovesaid stray observations made by the Reporting Officer in column No.8(a) under Sec.III (B) of Annexure-A3, which deals with advisory observations, would amount to acting on insignificant, trivial and irrelevant materials in the facts and circumstances of the case. It also displays an attitude of ignoring or not giving weight to the positive aspects of the career of the applicant. The said stand of the DPC is certainly highly unreasonable and arbitrary. The

O.P (CAT) Nos.285 & 309 of 2019 39 abovesaid stand of the DPC inspite of the cumulative contra positive aspects in favour of the applicant emerging from the materials on record, if allowed to stand would have highly adverse consequence on the career of the applicant, not only for the present panel year 2013-14 but also for the next four years. This is so as the said gradation given by the DPC for 2011-12 would also have a direct bearing for the other four selection years as well. It is not in dispute that none other than the superior Reviewing Officer has found that the applicant is a sincere worker who needs fair assistance of infrastructure and staff, so as to enable him to improve his performance further and that the abovesaid remarks of the Reporting Officer should not be taken as an adverse view. When that is the position, the applicant cannot be blamed for not having filed any formal representation as against the abovesaid observations of the Reporting Officer in column No.8(a) of Annexure-A3. The overall grading given by both the Reporting Officer and the Reviewing Officer in Annexure-A3 is 'Very Good'. In view of the abovesaid specific stand of the superior Reviewing Officer in column No.6(a) under Sec.IV (B) that the abovesaid advisory observations made by the Reviewing Officer in column No.8(a) thereof, shall not be treated as an adverse view, etc., there was no

O.P (CAT) Nos.285 & 309 of 2019 40 necessity for the applicant to file any formal objections or representation to the said remarks of the Reporting Officer. The superior officer has found that inspite of the heavy additional charges given to the applicant, he was never found wanting in any manner and that he was overburdened with lot of other responsibilities, as mentioned hereinabove. 28. The learned counsel for the original applicant has also submitted that Annexure-A12 series contain the APARs of the applicant for the periods from 01.04.2013 to 31.03.2018 and that the gradations have been as 'Very Good' and 'Outstanding'. In that regard, it is pointed out that for the period from 01.04.2013 to 31.03.2014, he was graded as 'Very Good' concurrently by both the Reporting Officer and the Reviewing Officer. For the years 2015-16 & 2017-18, he has been graded as 'Outstanding', etc. The petitioners herein (respondents in the O.A) have not raised any factual disputes regarding the correctness of the abovesaid factual submissions. 29. In the teeth of these admitted and indisputable factual materials, we are of the view that the Tribunal is fully justified to hold that the abovesaid impugned stand of the DPC merely on the basis of the

O.P (CAT) Nos.285 & 309 of 2019 41 stray observations of the Reviewing Officer in column No.8(a) of Annexure-A3, is highly unreasonable and arbitrary and that there is no valid justification for the same, inasmuch as crucial and relevant aspects of the matters have been given a go bye by the DPC. In the light of the abovesaid facts and circumstances of this case highlighted hereinabove, we have no hesitation to hold that the Tribunal was fully justified to render the impugned verdict, as otherwise it would have amounted to grave miscarriage of justice. We have no hesitation to hold that the Tribunal was justified in interfering in the matter, inasmuch as the case involved is a rare one, which would fulfill the parameters for interference, as laid down by the Apex Court in decisions as in Badrinath's case supra {(2000) 8 SCC 395}. At any rate, we are not prepared to hold that the abovesaid view of the Tribunal is one which is vitiated by perversity or manifest unreasonableness. For these reasons, we are not in a position to interfere in the matter. 30. Before parting of this case, we note that the impugned Ext.P-1 final order of the Tribunal has been rendered as early as on 08.03.2019. The abovesaid O.P (CAT) No.285/2019 has been filed before this Court on 17.10.2019. O.P(CAT)No.309/2019 has been filed on 27.11.2019. In

O.P (CAT) Nos.285 & 309 of 2019 42 view of the long pendency of the matter, the time for compliance of the directions of the Tribunal has expired long ago. Accordingly, it is ordered that the competent authority among the respondents in the O.A will comply with the directions and orders of the Tribunal, without any further delay, at any rate, within two months from the date of receipt of a certified copy of this judgment. The petitions fail and accordingly, both the Original Petitions will stand dismissed. However, there will be no order as to costs. Sd/- ALEXANDER THOMAS, JUDGE Sd/- K.BABU, JUDGE vgd

O.P (CAT) Nos.285 & 309 of 2019 43 APPENDIX OF OP (CAT) 285/2019 PETITIONER'S ANNEXURES EXHIBIT P1 TRUE COPY OF JUDGMENT AND ORDER DATED 08.03.2019 PASSED BY CAT, ERNAKULAM BENCH, IN O.A.NO.119/2017 EXHIBIT-2 TRUE COPY OF THE O.A.NO.119/2017 EXHIBIT P2(A1) TRUE COPY OF THE OFFICE ORDER BEARING NO.32/2014 DATED 290 FEB 2014 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2(A2) TRUE COPY OF PROCEEDINGS OF THE DPC/UPSC COMMUNICATED UNDER RTI ACT BEARING LETTER NO.A.34011/RTI-44/2014 AD.VI DATED 16 MAY 2014, FROM THE OFFICE OF THE 2ND RESPONDENT EXHIBIT P2(A3) TRUE COPY OF APAR FOR THE PERIOD 01.04.2011 TO 11.03.2012 EXHIBIT P2(A4) TRUE COPY OF APAR FOR THE YEAR 2012-13 EXHIBIT P2(A5) TRUE COPY OF REPRESENTATION DATED 14.03.2014, ADDRESSED TO THE CENTRAL PUBLIC INFORMATION OFFICER IN THE DEPARTMENT OF REVENUE EXHIBIT P2(A6) TRUE COPY REPRESENTATION DATED 01.07.2014, ADDRESSED TO THE 3RD RESPONDENT CHAIRMAN OF THE CENTRAL BOARD OF DIRECT TAXES, EXHIBIT P2(A7) TRUE COPY OF LETTER BEARING NO.SF.2/ APAR/GAZ/2014/ADDL.CIT/JCIT

DATED 31.07.2014 FROM THE OFFICE OF THE CHIEF COMMISSIONER OF INCOME-TAX,CHENNAI EXHIBIT P2(A8) TRUE COPY OF REPRESENTATION DATED

O.P (CAT) Nos.285 & 309 of 2019 44 21.09.215 EXHIBIT P2(A9) TRUE COPY OF REPRESENTATION DATED 25.01.2016 EXHIBIT P2(A10) TRUE COPY OF NOTIFICATION BEARING NO.12 OF 2015 DATED 10.08.2015 ISSUED BY THE RESPONDENTS EXHIBIT P3 TRUE COPY OF REPLY STATEMENT FILED BY 4TH RESPONDENT EXHIBIT P3(R4)(1) TRUE COPY OF THE DOP & T'S OM DATED 14.05.2009 EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 3 EXHIBIT P4(R1) TRUE COPY OF THE OFFICE MEMORANDUM NO.21011/1/2005-ESTT (A) (PT-II) DATED 14.05.2009 OF THE DEPT OF PERSONNEL AND TRAINING EXHIBIT P5 TRUE COPY OF REJOINDER FILED BY THE APPLICANT EXHIBIT P5(A11) TRUE

COPY

DOPT

BEARING NO.22011/3/2007-ESTT (D) DATED 18.02.2008 EXHIBIT P6 TRUE COPY OF ADDITIONAL REPLY STATEMENT FILED BY RESPONDENTS 1 TO 3 EXHIBIT P6(R2) TRUE COPY OF THE ORDER DATED 17.03.2017 IN WPC NO.2415 OF 2017 EXHIBIT P7 TRUE COPY OF ADDITIONAL REJOINDER FILED BY APPLICANT EXHIBIT P7(A12) TRUE COPIES OF THE APARS FOR THE YEAR ENDING

31.03.2014,

31.03.2016

AND 31.03.2017 OF THE APPLICANT

O.P (CAT) Nos.285 & 309 of 2019 45 EXHIBIT P8 TRUE COPY OF 2ND ADDITIONAL REPLY STATEMENT FILED BY RESPONDENTS 1 TO 3 RESPONDENTS' ANNEXURES ANNEXURE-R(1) TRUE COPY OF THE OFFICE MEMORANDUM NO.21011/1/2005-ESTT (A) (PT-II) DTD 14/05/2009 OF THE DEPTT. OF PERSONNEL & TRAINING

O.P (CAT) Nos.285 & 309 of 2019 46 APPENDIX OF OP (CAT) 309/2019 PETITIONER'S ANNEXURES EXHIBIT P1 TRUE COPY OF THE OA NO.180/00119/2017 FILED BY THE PETITIONER DATED 06.02.2017 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P1(A1) TRUE COPY OF OFFICE ORDER BEARING NO.32/2014 DATED 20 FEB 2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P1(A2) TRUE COPY OF PROCEEDINGS OF THE DPC/UPSC COMMUNICATED UNDER RTI ACT BEARING LETTER NC.A.34011/RTI-44/2014

AD.VI

DATED 16.05.2014, FROM THE OFFICE OF THE 2ND RESPONDENT. EXHIBIT P1(A3) TRUE COPY OF PROCEEDINGS OF THE DPC/UPSC COMMUNICATED UNDER RTI ACT BEARING LETTER NC.A.34011/R.TI-44/2014

AD.VI

DATED 16.05.2014, FROM THE OFFICE OF THE 2ND RESPONDENT. EXHIBIT P1(A4) TRUE COPY OF APAR FOR THE YEAR 2012-13 (FORM 2) DATED 27.06.2013. EXHIBIT P1(A5) TRUE COPY OF REPRESENTATION DATED 14.03.2014 ADDRESSED TO THE CENTRAL PUBLIC INFORMATION OFFICER IN THE DEPARTMENT OF REVENUE. EXHIBIT P1(A6) TRUE COPY OF REPRESENTATION DATED 01.07.2014 ADDRESSED TO THE 3RD RESPONDENT CHAIRMAN OF THE CENTRAL BOARD OF DIRECT TAXES. EXHIBIT P1(A7) TRUE

COPY

LETTER

HEARING NO.SF/2/APAR/GAZ/2014/ADDL.CIT/CIT DATED 31.07.2014 FROM THE OFFICE OF THE CHIEF COMMISSIONER OF INCOME TAX, CHENNAI.

O.P (CAT) Nos.285 & 309 of 2019 47 EXHIBIT P1(A8) TRUE COPY OF REPRESENTATION DATED 21.09.2015 BY THE ADDITIONAL COMMISSIONER OF INCOME TAX. EXHIBIT P1(A9) TRUE COPY OF REPRESENTATION DATED 25.01.2016 TO THE JOINT SECRETARY. EXHIBIT P1(A10) TRUE COPY OF NOTIFICATION BARING NO.12 OF 2015 DATED 10.08.2015 ISSUED BY THE RESPONDENTS. EXHIBIT P2 TRUE COPY OF THE MA NO.180/00171/2017 IN OA 180/00119/2017 DATED 06.02.2017 FILED BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT IN OA 180/00119/2017 DATED 22.02.2018 BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P4 TRUE COPY OF THE REJOINDER IN OA 180/00119/2017 DATED 21.05.2018 FILED BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P4(A11) TRUE COPY OF THE DOPT OM BEARING NO.22011/3/2007 ESTT(D) DATED 18.02.2008. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN OA 180/00119/2017 DATED 06.09.2018 FILED BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT P5(A2) TRUE COPY OF ORDER DATED 17.03.2017 IN WP NO. 2415/2017 OF THE HON'BLE HIGH COURT OF DELHI. EXHIBIT P6 TRUE COPY OF THE ADDITIONAL REJOINDER FILED

THE

APPLICANT

OA 180/00119/2017 DATED 21.09.2018. EXHIBIT P6(A12) TRUE COPIES OF THE APARS FOR THE YEAR ENDING

31.03.2014,

31.03.2016

AND

O.P (CAT) Nos.285 & 309 of 2019 48 31.03.2017 OF THE APPLICANT. EXHIBIT P7 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 180/00119/2017 DATED 04.01.2019. EXHIBIT P8 TRUE COPY OF THE ORDER IN OA 180/00119/2017 DATED 08.03.2019 ISSUED BY THE CAT, ERNAKULAM BENCH.