TMI Blog2006 (6) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... oner in June, 2000 and at present is holding the post Additional Director General (Audit). The applicant has stated that his record throughout has been excellent. He had applied for the post of Member (Technical) in CESTAT in response to an advertisement issued by Government of India, Ministry of Finance, Department of Revenue on 8-9-2004. The applicant appeared before the Selection Committee comprising of a sitting Judge of the Supreme Court, Secretary, Ministry of Law and Secretary (Revenue) in the Ministry of Finance. The Selection Committee selected following three persons for the post of Member (Technical). (a) S/Shri T.V. Sairam, R.M. Ramchandani and P. Karthikeyan. 3. In addition to the three names cited above, Selection Committee also recommended a wait list of three names. After processing the recommendations made be Selection Committee the respondent no. 2 forwarded Note for the ACC in March, 2005 which was considered sometime in April, 2005. The applicant has contended that according to his information, his name was approved by ACC. The applicant has submitted that out of the Select List of three persons, the respondents have issued an offer of appointment in May, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used to negate the selection made by a High Powered Committee headed by a Judge of the Supreme Court. The learned Counsel stated that after the verdict of the Hon ble Supreme Court in the case of Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, the DOPT s has also issued instructions vide OM dated 25-10-2004 that no promotion can be withheld merely on the basis of suspicion or doubt or when the matter is under preliminary investigation and has not reached the stage of issue of charge sheet. He contended that in the present case there is no allegation of any misconduct against the applicant and he is being denied the port he was selected for, on the ground of his name being in the Agreed List. 6. The learned Counsel submitted that as per the decision of the Tribunal dated 1-8-2002 given while diposing of OA 505 of 2002 (Dr. M.G. Venugopalan v. Union of India others), the guidelines issued by the Government regarding Vigilance Clearance for appointment on a cadre post shall also apply for ex-cadre post since there can be no different criteria for giving vigilance clearance for cadre and ex-cadre posts. 7. The learned Counsel has relied upon a verdict of the Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents, the consideration of additional material by ACC is contrary to law laid down by the Apex Court in the case of A.K. Doshi (supra). The learned Counsel for the applicant has relied upon the verdict of the Apex Court in the case of Rajinder Singh (Dr.) v. State of Punjab , 2001 SCC ( L S) 855 wherein it was held as follows - The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme . 11. The learned Counsel for the applicant submitted that Ministry of Home Affairs OM dated 30-4-1966 clearly provides that Agreed List is required to be reviewed at the end of a period of one year and the name of the officers against whom there is no sufficient evidence, should be deleted. The learned Counsel argued that provisions of this OM were not placed before the ACC. It was also not made clear that on the date of the meeting of the Select Committee, the name of the applicant was continued in the Agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chandani as Member, CESTAT. The learned Counsel contended that in this entire process no where any right of appointment has accrued to the applicant. The department is taking action against the persons responsible for the lapse. The applicant, certainly cannot take advantage of such lapse on the part of an official of the department. 13. The learned Counsel stated that the process of selection had stated in September, 2004. The applicant had appeared before the Selection Committee on 4-12-2004. At that point of time the fact of applicant s name being on Agreed List was not known to the Ministry since such list is prepared by the CBEC in consultation with the CBI and is also maintained by CBEC. The learned Counsel stated that undoubtedly it was the duty of CBEC to forward such information for being placed before the Selection Committee. However for some reasons it failed to do so. The learned Counsel submitted that Secretary, Government of India, Revenue Department came to know about such fact only on 16-5-2005 and thereafter immediately took up the matter with the CBEC and a note was submitted for fresh consideration by ACC. The learned Counsel stated that the name of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in the cited case i.e. Inder Raj Soni (supra) has given a number of Apex Court rulings wherein it was held that in the absence of any legal requirement for the Selection Committee to record reasons, the recommendations made without recording reasons cannot be found fault with. 17. The learned Counsel for respondents Shri Sethna mentioned that Agreed List is not an extraneous material and its consideration during the process of selection has been held legally valid in the case of Inder Raj Soni (supra). He mentioned that in the case of Dr. A.K. Doshi (supra) the Hon ble Supreme Court had taken objections to certain notings made by Secretary to the ACC. Therefore the facts of that case are quite different. 18. The learned Counsel for the applicant concluding his submissions reiterated that the main and only reason for annulling the name of the applicant was that his name figured on the Agreed List and this fact was not mentioned in the ACC note earlier. Rectification of such mistake was absolutely necessary and when no orders for appointment in favour of the applicant were issued , he has no vested right to challenge the decision of the Government. 19. The learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws - ..We were informed that the other two allegations were not brought to the notice of the Selection Committee as in those cases, only a warning had been issued and no entry had been made in the confidential records. One wonders how such material could have been placed before the Appointment Committee when admittedly it was not considered serious enough to be placed before the Selection Committee. 20. The learned Counsel continuing his submissions drew our attention to the following observations in the case of Dr. A.K. Doshi (supra) - After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation along with material considered by Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case, the Appointments Committee feels that certain material which was not available to be considered by Selection Committee has come into existence in the meantime, and the material is relevant for the purpose of appointment, then the matter should be placed before the Appointments Committee with the additional material for its consideration. 21. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the fact of applicant s name being on the Agreed list came to the notice of Revenue Secretary on 16-5-2005, another ACC note was floated on 30-5-2005 and the ACC approved the annulment of applicant s name. The main issue for adjudication is whether such action of the respondents is in conformity with law laid down by the Apex Court in the case of Dr. A.K. Doshi (supra). The Apex court has held that whatever material was placed before the Selection Committee should be placed before the ACC without any further addition or alteration. Only in exceptional cases if ACC feels that certain material was not available to be considered. Selection Committee and has come into existence in the meantime, it could be considered. In the present case, as reported by the respondents the fact of applicant s name being on the Agreed List was known to CBEC but was not uncorporated in ACC note dated 18-2-2005. In subsequent note dated 30-5-2005 it was mentioned that such lapse to submit this vital information is regretted. It is thus apparent that the information of the applicant s name being on Agreed List did not come in between the dates of the meeting of Selection Committee and that of ACC. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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