Union Of India Through Secretary ... vs Capt.Pramod Kumar Bajaj & Anr.
2017 Latest Caselaw 1395 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 3								A.F.R.
 

 
Case :- SERVICE BENCH No. - 8648 of 2017
 
Petitioner :- Union Of India and another
 
Respondent :- Captain Pramod Kumar Bajaj and another
 
Counsel for Petitioner :- Surya Bhan Pandey
 
Counsel for Respondent :- P. K. Bajaj (Inperson)
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard Shri Ashok Mehta, learned Additional Solicitor General, assisted by Shri S. B. Pandey, Assistant Solicitor General and Shri Neeraj Chitravanshi, learned counsel for petitioners and respondent No.1, Captain Pramod Kumar Bajaj, who appears in person.

2. This writ petition under Article 226 of Constitution of India has come up against the judgment and 10.02.2017 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as, 'Tribunal') in Original Application No. 95 of 2016, disposing of the original application of applicant-respondent No.1 relating to the issue of appointment of respondent No.1 as Accountant Member in Income Tax Appellate Tribunal.

3. Tribunal has disposed of original application with following directions:

"Accordingly, the O.A is disposed of with the direction to the respondents to resubmit the alleged adverse IB report before the Section Committee within one month from the date of receipt of copy of this order for taking a final view with regard to his appointment as the Accountant Member of ITAT."

4. Appointment of Members of Income Tax Tribunal is made in accordance with Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, (hereinafter referred to as, 'Rules, 1963'), copy whereof has been placed on record as Annexure-2 to this writ petition.

5. Method of recruitment is provided under Rule 4 of Rules, 1963, which reads as under:

"(1) There shall be a Selection Board consisting of:-

(i) a nominee of the Minister of Law;

(ii) the Secretary to the Govt. of India, Ministry of Law (Department of Legal Affairs);

(iii) the President [or the Senior Vice-President] of the Tribunal, and

(iv) such other person, if any, not exceeding two, as the Minister of Law may appoint.

(2) The nominee of the Minister of Law and Justice shall be the Chairman of the Selection Board.

(3) The Selection Board shall recommend persons for appointment as members from amongst the persons on the list of candidates prepared by the Ministry of Law after inviting applications therefor by advertisement or on the recommendations of the appropriate authorities.

(4) The Central Govt. shall after taking into consideration the recommendations of the Selection Board make a list of persons selected for appointment as member;"

6. Procedure for selection is contained in Rule 4A of Rules, 1963, which reads as under :

"The Selection Board shall evolve its own procedure:

Provided that where the suitability of the candidate is judged from his or her viva voce, each member shall evaluate the performance and award marks out of the maximum marks fixed by the Board.

Provided further that where the Selection Board is of the opinion that it shall not be practicable to call all the candidates for the viva voce, it shall short list the candidates for this purpose by adopting such criteria which shall not be less than the following criteria:-

(i) for accountant member

(a) a member of the Indian Income-tax Service Group 'A' and has held the post of Commissioner of Income-tax or any equivalent or higher post for at least three years; or

(b) a person who has for at least twenty years been in the practice of accountancy as a Chartered Accountant under the Chartered Accountants Act, 1949 (38 of 1949) or partly as such registered accountant and partly as a Chartered Accountant and has net Taxable income of not less than Rs.1,40,000/-(after allowable exemptions or deductions).

(ii) for judicial member

(a) a member of judicial services who has held a post of District and Sessions Judge or Additional District and Sessions Judge for not less than seven years; or

(b) a person who has been practicing as an Advocate for at least twenty years and who has net taxable income of not less than Rs.1,40,000/- (after allowable exemptions or deductions); or

(c) a member of the Indian Legal Service who has held a post of Grade-I of that service or any equivalent or higher post for at least three years; or

(d) a person who has held judicial office or the office of a member of a Tribunal or any post under the Union or a State requiring special knowledge of law after he became an Advocate or judicial officer, having a combined experience of twenty years;

Provided also that in case of candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes Categories, the Selection Board may adopt such criteria as it may deem fit, but which shall not be less than the eligibility criteria prescribed under Sub-sections (2) and (2A) of Section 252 of the Income-tax Act, 1961 (43 of 1961) and rule 3."

(emphasis added)

7. In the present case, applicant-respondent, who was discharged from Indian Army and thereafter selected in Indian Revenue Services was working as Commissioner, Income Tax. He applied for appointment to the post of Accountant Member. Eligibility, qualification etc. of applicant-respondent satisfying requirement of appointment as Accountant Member are not in dispute. It is also not in dispute that selection board has recommended his name for appointment to the post of Accountant Member.

8. However, Government of India did not make appointment in view of adverse report received from Intelligence Bureau. This led applicant-respondent to approach Tribunal in the aforesaid original application. Tribunal found that even if some adverse material has been collected by appointment authority at a later stage, which according to it, may have some relevance with regard to question of appointment as a member in Income Tax Appellate Tribunal, proper procedure would have been to forward this material to Selection Committee (in the present case Selection Board) for consideration of additional material by Selection Committee and make its recommendation accordingly. On this aspect, it relied on a judgment of Supreme Court in Dr. A.K. Doshi Vs. Union of India CA 1692-1694 of 2001, which is detailed in para-20 of Tribunal's judgment.

9. Report of Intelligence Bureau which has been considered by petitioners has also been placed before us for our perusal, but we do not propose to make any comment, since in our view, Selection Board being a statutory body for recommending name of applicant-respondent for appointment to the post of Member of Income Tax Appellate Tribunal, appropriate procedure would be that aforesaid material should be considered by Selection Board itself at the first instance and a decision be taken by it. In this backdrop, direction given by Tribunal to petitioners to re-submit alleged Intelligence Bureau's report to Selection Board for consideration of additional material and make its recommendation again, accordingly, is wholly justified and warrants no interference.

10. In view thereof, we find no reason to interfere with the impugned judgment.

11. However, since, aforesaid judgment was rendered on 10.02.2017 and almost four months have already passed, hence in these circumstances, we direct petitioners to act in accordance with directions of Tribunal and get entire process of reconsideration by Selection Committee completed within three months from today. Appropriate action and recommendation of Selection Committee be taken within four weeks thereafter.

12. Disposed of accordingly.

Order Date :- 30.5.2017

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