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Judgment
Justice L. Narasimha Reddy, Chairman:
The applicant is an Income Tax Officer of 1989 batch. He served as Additional Commissioner of Income Tax Range-1(3) and Additional DIT (Inv.) at Mumbai from June, 2006 to April, 2011. The office premises of M/s Sterling Biotech Group, at Vadodara (Gujarat) are said to have been searched by the Mumbai Income Tax Investigation Wing. In one of the diaries seized by the department, is an entry said to have been made with reference to a person, by name "S. Chandra". Suspecting the said person to be the applicant, he was issued a letter dated 30.05.2017 seeking his explanation. A detailed reply was submitted by the applicant on 19.07.2017denying any concern whatever with the said company. FIR No.8 (A) was registered under Section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, and the name of the applicant was also mentioned therein.
The applicant states that he became due for promotion to the grade of Principal Commissioner of Income Tax against one of the vacancies of the year 2017-2018, and he made a representation on 03.09.2019 with a request to consider his case 3 OA No-1786/2020 without being swayed away by the mentioning of his name in the FIR. Through an order dated 11.11.2019, the Secretariat of the Appointment Committee of the Cabinet (ACC), Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training promoted various officers including those for the panel year 2017-18, but the name of the applicant was not included therein.
The applicant contends that several juniors to him were promoted whereas his name was omitted. It is stated that his name was deferred though no charge sheet was pending against him and nor he was under suspension by the time the DPC met.
Feeling aggrieved by the deferment of his promotion, the applicant submitted a representation dated 27.11.2019. The applicant received a reply dated 20.01.2020 wherein it was mentioned that the DPC found him fit for promotion for the post of Principal Commissioner of Income Tax. Thereafter, the applicant went on making representations with a view to know the reasons for deferment of his promotion. In this 4 OA No-1786/2020 background, he filed this OA with a prayer to quash the order dated 11.11.2019 insofar as it omitted his name for promotion, and to direct the respondents to include his name in the said order as per his seniority, with all consequential benefits.
The applicant contends that once he was cleared by the DPC for promotion, there was absolutely no basis to deny him the benefit of promotion.
On behalf of the respondents, initially a short counter affidavit, and thereafter a detailed counter affidavit were filed. Various objections are raised. It is stated that though the DPC recommended the case of the applicant, it was found that his name figured in a criminal case and thereby the vigilance clearance was deferred and accordingly the promotion was not granted. It is also stated that certain officers whose name were found in the Diary were issued charge memos and in the case of the applicant, the CVC recommended initiation of major penalty proceedings vide OM dated 14.10.2020. Various other contentions advanced by the applicant are denied.
The applicant filed a rejoinder to the counter affidavit. He placed reliance upon certain judgments, such as the one in Union of India vs. K. V. Janakiraman 1991 (4) SCC 109.
We heard Shri Nalin Kohli with Shri M. K. Bhardwaj, learned counsel for the applicant and Shri Hanu Bhaskar and Shri Manjeet Singh Reen, learned counsel for the respondents.
The applicant became eligible to be considered for promotion to the post of Principal Commissioner of Income Tax for the vacancy year 2017-18. The process for empanelment began with the convening of DPC. In its meetings held on 30th and 31.07.2019, the DPC found the applicant as Fit for promotion. The next stage is of examining the vigilance clearance and the empanelment to be done by the ACC. It is here, that the case of the applicant was stuck. The respondents stated that while considering the panel recommended by the DPC, it wanted additional information about the case of the applicant, particularly, when his name figured in the FIR.
The law in this regard is fairly well settled. Even where the name of the officer is cleared by the DPC, the Appointing Authority will have its own discretion to verify various facts. In case of empanelment by the ACC, the discretion is still wider. In view of the occurrence of the name of the applicant in the FIR, it cannot be said that the deferment of his case by the ACC is without any basis.
One development that has taken place in the recent past is that the CBI has submitted a closure report as regards the name of the applicant. Though the concerned criminal court is yet to pass a final order in that behalf, the applicant is free from any blemish from the point of view of the CBI. This aspect needs to be examined. Though the applicant challenged the order dated 11.11.2019, it is not in true sense. He did not want the empanelment of the officers named therein to be set aside. His effort is to get is name included.
We, therefore, dispose of the OA directing that the concerned authority shall take into account, the fact that the CBI submitted a closure 7 OA No-1786/2020 report regarding the applicant and if he is otherwise clear from vigilance angle, proper decision may be taken in this behalf. We make it clear that the ultimate decision will be of the ACC, and by no means we issue any direction touching upon its discretion. Exercise in this behalf needs to be completed at the earliest possible time. There shall be no order as to costs.