ITAT- administration: Unified pay scale of member and vice president (VP) does not mean that they are equal in seniority. The President of the Tribunal has no power to write the Members’ ACR- recently so held by Madras High Court.

[C.A. DEV KUMAR KOTHARI]

Relevant provisions, references and links:

Sections 252 and 255 of the Income-tax Act.

Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963

Dev Dutt vs. Union of India (AIR 2008 SC 2513).

Rajiv Ranjan Singh vs. Union of India [W.P.(Crl.)No.197-198 of 2004, dated 21.8.2006 reported in Current Tax Reports (SC) 53/2006 156 Taxman 512 (SC)]

REVENUE SECRETARY vs. SYED LIAQUATH PEERAN 2006 -TMI - 96481 – (MADRAS HIGH COURT)

R-2001 1-32/2010- ADIC-CESTAT, dated 28.10.2010 issued by GOI

Uttam Bir Singh Bedi Vs. Union of India &  Others judgment  of Madra High Court dt.30.11.2011 in Writ Petition No.77 15 of 2010 and M.P.No.3 of 2010

In case of Uttam Bir Singh Bedi Vs. UOI (supra.) the Petitioner,  Shri Bedi  a Judicial Member of the Tribunal, was superseded to the post of Vice President by his junior Mr. P. Mohanarajan.

Shri Bedi  claimed that the supersession was on account of adverse Annual Confidential Reports (“ACRs”) written by the President of the Tribunal which had misguided the high level Selection Committee without the Petitioner being giving an opportunity to represent against the ACR. CAT rejected such contention holding that  the Selection Committee had decided on the basis of merit.

The Petitioner challenged the decision of CAT before the High Court and raised  following  issues:

(i)   Whether, the post of Vice President is a promotional post to that of the Member of the ITAT or not?

(ii)  whether the President of the ITAT has the authority to record the ACRs of the Members

(iii)  If president has authority to write ACR,  whether the Government has the right to review the ACRs of the Members?

On consideration of relevant provisions as stated in references, in preamble of this write-up the court analyzed and held on the following lines:

(i)   The Vice Presidents of the Tribunal are appointed from amongst the Members  of Tribunal .

(ii)  The criteria for selection is merit.

(iii) From provisions it is found that Senior VP and VP are considered as senior in the matter of delegation of functions of the President of Tribunal. Some functions can, in absence of the President can be delegated to VP but not to any member.

(iv)  There may be  a merger of the pay scales of the posts of Members and Vice Presidents for unification of pay scale.

(v)   There is no a merger of the posts of VP and member.

(vi)   There is only a unification of the pay and not a merger of the posts.

(vii)  Under the scheme of the Act, the post of Vice President is over and above the level of Member & carries higher responsibilities, higher pay band and is definitely a promotional post from that of the Member;

(viii)  The Tribunal is a judicial body and while the President exercises administrative control over the Benches, he has no power to write the ACRs of the Members.

(ix)   Further, being a judicial body, the Tribunal should have judicial autonomy and therefore, the Government cannot act like a reviewing authority;

On analysis of ACR court observed :

(a)    the Petitioner’s ACR showed that while he was a hard working and knowledgeable person, he behaved in a rude manner with the colleagues and his rigid tendency and non-adjustable nature had invited many problems, resulting in his frequent transfers.

(b)   These must have weighed with the Selection Committee.

(c)     As the ACRs were illegally recorded by the President (without having authority for the same) and reviewed by the Government, the Selection Committee must reconsider the claim of the Petitioner on merits de hors the ACRs;

(d)     The Court observed that it was “pained” & “disturbed” by the material on record that showed the he was “arrogant” and “would always throw to winds the well established judicial conventions” including “instances of keeping the matters for writing dissenting orders for months together and fighting with the other Members on silly aspects are some of them“. Noted that the Petitioner was “transferring his personal feelings against his colleagues into the orders circulated by them and nurturing unnecessary hatred and ill-feelings” and advice given that the Petitioner should “mend his ways and conduct himself in a dignified manner and follow the established judicial conventions, so as to maintain the decorum on and off the dais“.

 Per author:

There seems inconsistency in contentions of the petitioner. If he consider that the post of member and VP are merged and there is no difference, then why he had grievances on being not promoted to post of VP. He should have satisfaction with same pay scale with designation as member and should not felt so much aggrieved to indulge into litigation, which was likely to make public adverse remarks against him as recorded in ACR.