Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 737 (CAL)

Chairman, UPSC v. Prabhu Dayal Khandelwal

2002-12-20

S.P.Talukdar, Tarun Chatterjee

body2002
Judgment S.P. Talukdar, J. The Chairman, Union Public Service Commission, as appellant/petitioner, filed an application under Article 226 of the Constitution of India being numbered W.P.C.T. 772 of 2002. It is directed against the order dated 8th May, 2002 passed by the learned Central Administrative Tribunal, Calcutta Bench in O.A. No. 290 of 2001. 2. The relevant facts of the petitioner's case are, in a nutshell, as follows:- Respondent No.1, namely Prabhu Dayal Khandelwal, is Commissioner of Income Tax, now posted in Calcutta. The next promotional post of Commissioner of Income Tax is Chief Commissioner of Income Tax. All posts of Chief Commissioner of Income Tax are filled by promotion from amongst the Commissioners of Income Tax having at least three years regular service in the Senior Administrative Grade, Respondent No. 1 is working as Commissioner of Income Tax since 24th January, 1989 and is eligible to be considered for promotion to the post of Chief Commissioner of Income Tax arose for the year 2000-2001. Similarly 46 vacancies arose in the said post of Chief Commissioner of Income Tax during the year 2001-2002. The Department of Revenue, Government of India, sent a proposal to the Union Public Service Commission, New Delhi in the month of November, 2002 for filling up the said 101 vacancies in the post of Chief Commissioner of Income Tax. In response to that, the said Departmental Promotion Committee, hereinafter referred to as DPC, was constituted as per the Indian Revenue Service Rules, 1988. Rule 7(4) of the Indian Revenue Services Rules of 1988 (in short, IRS Rules) provided that promotion to the post of Chief Commissioner of Income Tax should be made on the basis of "selection on merit" which shall be in the order of seniority subject to rejection of the unfit on the recommendations of the Departmental Promotion Committee. Department of Personnel and Training, Government of India issued Office Memorandum No. 22011/5/91-Estt.(D), dated 10th April, 1989 [amended by Office 'Memorandum No. 22011/5/91-Estt.(D), dated 27th March, 1997] laying down the functions, composition of the DPC and the procedure to be followed by such Committee in 'selecting candidates. Part-IV of the said Department of Personnel and Training guidelines inter alia lays down the procedure and guidelines to be followed for preparation of panel. Part-IV of the said Department of Personnel and Training guidelines inter alia lays down the procedure and guidelines to be followed for preparation of panel. Clause (b) under paragraph 6.2.1 of the said DOPT guidelines inter alia provides that the DOPT should assess the suitability of the officers for promotion on the basis of their service record with particular reference to the confidential reports for the preceding five years. Clause (ii) of paragraph 6.3.1 of the said DOPT guidelines inter alia provides that in 'respect of posts which are the level of Rs.3,700/- to Rs.5,000/- (pre-revised) and above, the benchmark grade should be "very good" arid should be filled up by method of selection by merit. The candidature of respondent No. 1 along with other candidates was considered for promotion to the post of Chief Commissioner of Income Tax for both the years 2000-01 and 2001-02. On evaluation of annual confidential report of respondent No.1, the DPC graded him as "good" for both the panel years 2000-01 and 2001-02; Since the respondent No.1 could not attain the benchmark "very good" his name was not included in the panel for the years 2000-01 and 2001-02 for the promotion to the post of Chief Commissioner of Income Tax. The Union Public Service Commission forwarded the recommendations of the said Departmental Promotion Committee on 7th February, 2001 for promotion to the said post of Chief Commissioner of Income Tax. Respondent No.1 having failed to attend the benchmark "very good" his name was not recommended for promotion to the said post of Chief Commissioner of Income Tax. Being aggrieved by such action of the DPC in not recommending the name, respondent No.1 filed an application under section 19 of the Administrative Tribunals Act, 1985 being O.A. No. 290 of 2001 inter alia praying for the various reliefs which included direction upon the respondents in the said case to cancel, withdraw and/or rescind the impugned recommendations of the DPC held on 5th and 6th February, 2001 at Bombay. He also prayed for direction upon the respondents to consider the case of the applicant for promotion to the post of Chief Commissioner of Income Tax on the basis of seniority-cum-fitness and following the uniform practice and procedure in respect of IPS and IAS Officers. He also prayed for direction upon the respondents to consider the case of the applicant for promotion to the post of Chief Commissioner of Income Tax on the basis of seniority-cum-fitness and following the uniform practice and procedure in respect of IPS and IAS Officers. He also sought for direction upon the respondents not to-supersede him by his juniors, if he is otherwise found fit for promotion to the said post of Chief Commissioner of Income Tax. 3. Another candidate namely Sri Vaskar Sen, posted as Commissioner of Income Tax, Calcutta whose candidature was also considered along with Mr. Khandelwal, being unsuccessful in the selection for the promotion to the post of Chief Commissioner of Income Tax filed an application under section 19 of the Administrative Tribunals Act, 1985 being O.A. No. 299 of 2001 before the learned Tribunal praying for similar reliefs. 4. Both the applications were taken up for hearing analogously by the learned Tribunal. By the judgment and order dated 8th May, 2002, the learned Tribunal allowed both the applications inter alia directing all the respondents to reconsider the cases of both the applicants by holding a meeting of the Departmental Promotion Committee on urgent basis on the basis of observations of the learned Tribunal keeping in view of the assessment made by the DPC in the meeting held on 5th February, 2001 and to recommend their cases within a period of three weeks from the date of receipt of the order to the competent authority for further necessary action including grant of all consequential benefits to the applicants from the date their immediate juniors have been granted promotion as a result of the recommendation made by the DPC in a meeting held on 5th February, 2001 and communicate the final order to the applicants within a week thereafter. 5. Appellant/petitioner, Union Public Service Commission, in such application under Article 226 of the Constitution of India alleged that the selection of the candidates was made by Departmental Promotion Committee in strict compliance with the existing Rules framed for the purpose and the same did not call for any interference by the learned Tribunal. 5. Appellant/petitioner, Union Public Service Commission, in such application under Article 226 of the Constitution of India alleged that the selection of the candidates was made by Departmental Promotion Committee in strict compliance with the existing Rules framed for the purpose and the same did not call for any interference by the learned Tribunal. Learned Tribunal erred in law in not considering that the Indian Revenue Services Rules, 1988 does not contain the procedure to be followed for selection of Officers for promotion to the post of Chief Commissioner of Income Tax and accordingly, the DPC has to adopt the guidelines of the Department of Personnel and Training in the matter of selection of such candidates. I.R.S. Rules did not make any provision as to how merit would be decided. As such, question of DOPT guidelines superseding the provisions of I.R.S. Rules does not arise. Learned Tribunal erred in law in interpreting the expression "selection by merit" and the expression "selection on merit" as provided in the DOPT guidelines and the I.R.S. Rules respectively. Inasmuch as, there is no difference in law in the selection of the candidates under the said procedures since under the Rules of 1988, "merit" is the determining factor for deciding the filling up of the post of Chief Commissioner of Income Tax. It is implicit that comparative merits are the criterion. 6. There could be no reason for holding that the guidelines framed by the Department of Personnel and Training are not applicable for selection of candidates for the post of Chief Commissioner of Income Tax nor there could be any justification for holding that the DPC have ignored and infringed the provisions of I.R.S. Rules, 1988. It was not proper to hold that as per the Indian Revenue Services Rules, selection on merit means there is no demerit. The procedure of benchmark grading was not against the express provision of the I.R.S. Rules, 1988. There is no embargo on the part of the Departmental Promotion Committee to adopt DOPT guidelines and even in absence of such guidelines the DPC and/or the Union Public Service Commission has an inherent power to fix up guidelines for deciding the merit. The procedure of benchmark grading was not against the express provision of the I.R.S. Rules, 1988. There is no embargo on the part of the Departmental Promotion Committee to adopt DOPT guidelines and even in absence of such guidelines the DPC and/or the Union Public Service Commission has an inherent power to fix up guidelines for deciding the merit. Learned Tribunal did not consider that the direction of the Appointment Committee of the Cabinet, Department of Personnel and Training dated 8th December, 1999, in short A.C.C. direction dated 8th December, 1999, .did not prohibit implementation of DOPT guidelines for the purpose of selection of candidates in the post of Chief Commissioner of Income Tax. The expression "there shall be no super-session" in the A.C.C. direction dated 8th December, 1999 only means that there should not be any super-session amongst the candidates who have been found fit for the promotion and the seniority of the selected candidates should be maintained. The said direction does not include the unsuccessful candidates for promotion who have not attained the prescribed benchmark. It could not be appreciated that A.C.C. direction is advisory in nature and it has got nothing to do with the procedure for selection. Learned Tribunal was not justified in directing the petitioner/appellant to recommend the case of the respondent No.1 before the learned Tribunal for promotion to the post of Chief Commissioner of Income Tax with effect from the date their immediate juniors have been granted promotion on the basis of the observation made by the learned Tribunal inasmuch as, by making the observation in the order impugned in the application, the learned Tribunal introduced a new guideline for giving promotion to the post of Chief Commissioner of Income Tax and the learned Tribunal has no power to lay down the guidelines for deciding the merit and/or promotion. The Central Government enjoys the power to lay down such guideline and in absence of it, a committee considering the case of promotion is having inherent power to fix up the guidelines. The Tribunal has no power to recommend a person for promotion and such power is enjoyed by the UPSC under Article 315 of the Constitution of India. The Central Government enjoys the power to lay down such guideline and in absence of it, a committee considering the case of promotion is having inherent power to fix up the guidelines. The Tribunal has no power to recommend a person for promotion and such power is enjoyed by the UPSC under Article 315 of the Constitution of India. The petitioner/appellant further alleged that application under section 19 of the Administrative Tribunals Act, 1985 is not maintainable in view of the fact that the DPC is not a statutory body and it could not have been a party in the application. The DPC itself cannot be sued. The UPSC created under the Constitution of India was not made a party in the said application and as such, the application was not maintainable. 7. The petitioner/appellant, for all such reasons, prayed for setting aside the judgment and order dated 8th May, 2002 passed by the Central Administrative Tribunal, Calcutta Bench OA No. 299 of 2001 and O.A. No. 290 of 1991. 8. It is the stand of the respondent/applicant that the Departmental Promotion Committee wrongly applied the theory of benchmark of "very good" as per DOPT circular dated 10.4.1989 and 27.3.1997 in the case of promotion to the post of Chief Commissioner of Income Tax, which was against the IRS Rules, 1988 which provided that promotion to the post of Chief Commissioner of Income Tax should be made by selection on merit. According to the respondent/applicant, the comparative grades in merit were not required to be the deciding factor as has been recognized and acted upon by the DPC by recommending the names of candidates who achieved the benchmark of "very good" and excluding all others including the applicant who achieved less then "very good" but did have merit and did not have demerit. It was further contended that the ACR forms (Annexure-A/6) used for the posts of Chief Commissioner of Income Tax do not have provisions for grading in various categories namely, 'outstanding,' 'very good,' 'good', 'average', 'inadequate' etc. whereas ACR forms for posts below the level of Chief Commissioner of Income Tax do have such provisions.(Annexure A/7). The gradings have peen dispensed with as such officers are engaged with mainly policy implementation. The DPC can only grade such officers as 'fit' or 'unfit'. Grading of officers as 'outstanding', 'very good', 'good' etc. whereas ACR forms for posts below the level of Chief Commissioner of Income Tax do have such provisions.(Annexure A/7). The gradings have peen dispensed with as such officers are engaged with mainly policy implementation. The DPC can only grade such officers as 'fit' or 'unfit'. Grading of officers as 'outstanding', 'very good', 'good' etc. was based on extreme conjecture in absence of any material in ACR. It was against the principles of service jurisprudence, law and evidence as well against the provisions of Article 21 of the Constitution. The DPC findings being illegal should, therefore, be quashed as held by the Hon'ble CAT, Hyderabad in the case of Rama Rao vs. CIT, (1987) 3 S.L.R. Page-550. The ACR entry below the benchmark should have been communicated by the competent authority to the respondent/applicant as the same was going to adversely affect his promotion. If the same remained un-communicated, the same should not have been taken into consideration for the purpose of his promotion. The applicant presumes that his evaluation must have been equal to benchmark "very good" except for two years during which it was "good" for which his representation is pending. According to the respondent/applicant, promotion is a civil right of an employee as laid down in 1975 S.L.J., Page 266 (FB) Orissa and thus, by acting against the IRS Rules 1988, the DPC has tried to take away the civil right of the applicant by illegal recommendation. It was further contended that the DPC has not taken note of the ACC O.M. dated 8th December, 1999 which clearly directs as follows :- "There shall no super-session. Inter se seniority among all officers considered fit for promotion will be maintained as before. Department of Revenue should expeditiously undertake amendment to Recruitment Rules to bring it at par with All India Services to avoid super-session." ACC does not want discrimination in the matter of promotion in various services of the Union of India whereas the DPC has perpetrated the same by following and applying benchmark theory and considering the officers securing "very good" benchmark as suitable for promotion to the post of Chief Commissioner of Income Tax. This act of the DPC is also in violation of the Articles 14 and 16 of the Constitution. This act of the DPC is also in violation of the Articles 14 and 16 of the Constitution. It was further stated that the benefit given in principle by the Government to its one set of employees will have to be given to the other related set of employees as well as to the employees of all other Central Government Services similarly placed to avoid discrimination and to honour the principles of equality and equal treatment in accordance with provisions of Articles 14 and 16 of the Constitution. 9. In W.P.C.T. No. 772 of 2002 as well as W.P.C.T. No. 803 of 2002, the respondent No.1, Mr. Prabhu Dayal Khandelwal appeared in person and prayed, for dismissal of the appeal preferred by the U.P.S.C. as well as by the Union of India respectively. 10. Sri Vaskar Sen, Commissioner of Income Tax, also filed a similar application before the learned Central Administrative Tribunal and the Tribunal heard that application as well as the application filed by Sri Khandelwal analogously and decided the same by judgment and order dated 8th May, 2002. The Chairman, Union Public Service Commission as well as the Union of India filed two applications before this Court being numbered W.P.C.T. 773 of 2002 and W.P.C.T. 800 of 2002 respectively. Identical points of facts and law being involved in the said two applications, the same are also heard along with the applications filed against Sri Prabhu Dayal Khandelwal. All the applications as referred to earlier, relate to identical facts and points of law and as such, are dealt with herein. It may, however, be mentioned that Mr. Khandelwal appeared in person before this Bench whereas learned Counsel Mr. Samir Ghosh, appeared for Sri Vaskar Sen. 11. Mr. Kalyan Bandyopadhyay, learned Counsel for the appellant/petitioner, while referring to the judgment under challenge before us, submitted that the Tribunal has no jurisdiction to frame guidelines and its business is to adjudicate and not advise. Mr. Khandelwal at the very outset submitted that the UPSC has no jurisdiction to prefer such an appeal. Mr. Samir Ghosh, learned Counsel also echoed the same. The appellant, the Chairman, UPSC which is a constitutional body constituted under Article 315 of the Constitution cannot be said to be an authority without locus standi and in our opinion and, in the nature and background of the cases before us, it has the authority to file such applications. Mr. Samir Ghosh, learned Counsel also echoed the same. The appellant, the Chairman, UPSC which is a constitutional body constituted under Article 315 of the Constitution cannot be said to be an authority without locus standi and in our opinion and, in the nature and background of the cases before us, it has the authority to file such applications. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the President made the rules i.e., Indian Revenue Service Rules, 1988 for regulating recruitment to the said service. 12. As per Rule 2(c) "Departmental Promotion Committee" means a Committee constituted to consider the promotion and confirmation of officers in any grade. Section 7(4) of the I.R.S. Rules, 1988 reads as follows:- "The selection of officers for promotion shall be made by selection on merit, except in the case of promotion to the post in the grade of Assistant Commissioner of Income Tax (senior scale) and Deputy Commissioner of Income Tax (selection grade) which shall be in the order of seniority subject to rejection of the unfit on the recommendation of the Departmental Promotion Committee constituted in accordance with Schedule III." 13. Schedule-I to the I.R.S. Rules, 1988 shows that posts of Chief Commissioner of Income Tax/Director General of Income Tax are in the higher grade having pay scale of Rs.7,300/- to Rs.7,600/-. Schedule-II indicates that method of recruitment to the said post is by promotion on the basis of selection on merit from the officers holding the posts of Commissioners of Income Tax/Directors of Income Tax with three years regular service in Senior Administrative Grade in the pay scale of Rs.5,900/- to Rs.6,700/-. Departmental Promotion Committee for considering the promotion to the post of CCIT/DGIT comprises of the following:- (1) Chairman/Member, UPSC-Chairman (2) Secretary, Department of Revenue-Member (3) Chairman, Central Board of Direct Taxes-Member (4) Member, Central Board of Direct Taxes-Member. 14. It is also clearly pointed out in the note of the said Schedule (Appendix-V) that where the DPC constitutes of more than two members, the absence of a member, other than the Chairman or a member of the Commission, shall not invalidate the proceedings of the Committee, if more than half the members of the Committee had attended its meeting. It is also clearly pointed out in the note of the said Schedule (Appendix-V) that where the DPC constitutes of more than two members, the absence of a member, other than the Chairman or a member of the Commission, shall not invalidate the proceedings of the Committee, if more than half the members of the Committee had attended its meeting. It follows from the aforesaid provisions that D.P.C. has not only a very significant role to play in the matter of recruitment but it has definite statutory recognition as well. 15. How such DPC would function? How the same are to be constituted? Answers to these lie in the Consolidated Instructions as contained in G.I., Dept. of Per & Trg., O.M. No.22011/5/86-Estt. (D) dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(D), dated 27th March, 1997. 16. Such consolidated instructions cannot be said to be in violation of the Statutory Rules framed under Article 309 of the Constitution. It will be irrational to suggest that such instructions cannot be followed as those attempt to defy the Statutory Rules. 6.2.2. relates to grading of officers. (Ref: Swami's-Seniority and Promotion). It is laid down that in case of each officer, an overall grading should be given. The grading shall be one among (i) Outstanding, (ii) Very good, (iii) Good, (iv) Average, (v) Unfit excepting cases covered under Para 6.3.1 (iii). 6.3.1. relates to principles to be observed and preparation of panel. It is noted that the list of candidates considered by the D.P.C. and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the D.P.C. 6.3.1(ii) points out that in respect of posts which are in the level of Rs.3,700-5,000 and above, the benchmark grade should be 'very good' and will be filled by the method of selection by merit as indicated in sub-para(v). 6.31.1(iv) is as follows:- "Notwithstanding the provisions mentioned above, in the case of promotions made for indication for Group 'A' posts/services from lower group, while the benchmark would continue to be 'good', the DPC shall grade the officers as 'outstanding', 'very good', 'good', 'average' and 'unfit' as the case may be, and the officers will be arranged according to the grading obtained placing the 'outstanding' officers on top followed by those graded as 'very good' and so on in the select panel upto the number of vacancies, with the officers having the same grading maintaining their inter se seniority in the feeder grade." 17. Mr. Parbhu Dayal Khendelwal, appearing in person, submitted that they were never told that it is the selection on 'comparative merit'. He submitted that even selection to the post of Chief Commissioner of Income Tax should be on the basis of the remark 'fit' or 'unfit'. According to him, the principle of selection on 'comparative merit' is not applicable to members of Indian Administrative Service or Indian Police Service. 18. Referring to the decision in the case of (1) B.S. Badera, (2) G.S. Chaggar vs. Union of India & Ors., reported in AIR 1969, S.C., Page-118, it was submitted by Mr. Khandelwal that the clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning, unless hedged-in, by any limitations. He submitted that the Government is not competent to alter by means of administrative instructions the conditions of service prescribed by these rules framed under Article 309 of the Constitution of India. In this context, he referred to the decision in the case of State of Haryana vs. 1) Shamsher Jang Shukla, 2) Rachhpal Singh & Anr., reported in AIR 1972, S.C. Page-1546. Mr. In this context, he referred to the decision in the case of State of Haryana vs. 1) Shamsher Jang Shukla, 2) Rachhpal Singh & Anr., reported in AIR 1972, S.C. Page-1546. Mr. Khandelwal also referred to the decision in the case of Firm Amarnath Basheshar Dass vs. Tek Chand, reported in AIR 1972, S.C., Page-1548, while asserting that "although courts are not concerned with the policy of the Legislature or with the result of giving effect to the language of the statute, it is their duty to ascertain the meaning and intendment of the Legislature." It had been observed in the said judgment that "Courts will always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve." Reference was also made to the decision in the case of S.L. Sachdev & Ors. vs. Union of India & Ors., reported in AIR 1981, S.C., Page-411. Mr. Samir Ghosh, learned Counsel, appearing for respondent, Sri Vaskar Sen, submitted that Annual Confidential Reports are not meant for punishment but for rectification and improvement. He also submitted that there was no scope for issuing any guidelines in the form of administrative or executive orders not in tune with the rules framed under Article 309 of the Constitution of India. It was further pointed out that an adverse entry is required to be communicated to the employee concerned. Mr. Ghosh invited our attention to the decision in the case of U.P. Jal Nigam & Ors. vs. Prabhat Chandra Jain & Ors., reported in J.T. 1996(1), S.C., Page-643, in support of his contention that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. According to Mr. Kalyan Bandyopadhyay, learned Counsel for the appellant, the facts and circumstances of the present case are significantly different from those of the case, as referred to above. In the cases under our consideration, the respondents Mr. Khandelwal and Mr. Vaskar Sen, obtained the remark 'good'. But, can it be said that the I.R.S. Rules, 1988 and the requirement of the grading 'very good', as benchmark, for selection to the post CCIT were not within their knowledge? It appears Mr. In the cases under our consideration, the respondents Mr. Khandelwal and Mr. Vaskar Sen, obtained the remark 'good'. But, can it be said that the I.R.S. Rules, 1988 and the requirement of the grading 'very good', as benchmark, for selection to the post CCIT were not within their knowledge? It appears Mr. Khandelwal submitted a representation before the concerned authority which is reportedly still pending. 19. Our attention was also drawn to the decision in the case of Amar Kant Chaudhary vs. State of Bihar & Ors., reported in AIR 1984, S.C., Page 531, in support of the contention that a person having an adverse remark has a right to give representation. Learned Counsel, Mr. Ghosh, echoed the voice of Mr. Khandelwal and raised the question as to how in absence of any communication, the aggrieved persons would find a remedy. Mr. Kalyan Bandyopadhyay, learned Counsel for the appellant sought to explain the situation by pointing out that these aspects were not at all raised before the learned Tribunal. 20. It may, however, be pointed out that the facts and circumstances of the cases, as mentioned above, are clearly distinguishable from those under our consideration. In the instant cases, the aggrieved persons i.e., Mr. Khandelwal and Mr. Vaskar Sen knew that the benchmark 'very good' was required to be achieved to attain particular height in their service career. 21. It was submitted by Mr. P.D. Khandelwal that for him and for that matter, for Mr. Vaskar Sen, the post of Chief Commissioner of Income Tax is not a selection post nor an ex-cadre post. He referred to the decision in the case of Jai Narain Misra vs. State of Bihar & Ors., reported in 1970 S.L.R., Page-923, wherein it had been observed that "It was for the Government to select such officer as it considered as most suitable. High Court was not justified in going into the question of seniority not would be justified in going into that question. So far as the question of suitability was concerned, the decision entirely rested with the Government." Having regard to the service conditions and other relevant aspects we fail to appreciate the grievance as ventilated on behalf of the respondents. Besides, the said decision carries more curses than kisses for the respondents. 22. Our attention was drawn to the general guidelines for promotion etc. and function of Screening Committees. (Annexure-II). Besides, the said decision carries more curses than kisses for the respondents. 22. Our attention was drawn to the general guidelines for promotion etc. and function of Screening Committees. (Annexure-II). Rule 7.2 of the same may be reproduced as follows :- "In the case of each officer, an overall grading should be given which will be either 'Fit' or 'Unfit'. There will be no benchmark for assessing suitability of officers for promotion." The Annexure-II is linked up with No. 20011/4/92-AIS(II), Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel, and Training) dated 28th March, 2000. It is addressed to the Chief Secretaries of all State Governments and the Union Territories. The subject is clearly "Indian Administrative Service-Promotion to various grades-Guidelines regarding." 23. In our opinion, that particular clause was sought to be read out of context. It does not appear to have any applicability in the matter of recruitment to the post of Chief Commissioner of Income Tax. Learned Tribunal while deciding the cases framed certain issues (Para12.7, Page-31 of the judgment), which are as follows :- (i) Whether the provision of selection on merit in the IRS Rules, 1988 has been followed for promotion to the grade of CCIT; (ii) Whether DOPT guidelines dated 10.4.1989 are at all applicable for promotion to the grade CCIT in the unrevised scale of pay of Rs.7300-7600/-; (iii) Whether ACC direction dated 8.12.1999 and DOPT guidelines dated 30.3.2000 are applicable and were applied by the DPC while considering the cases of promotion to the grade of CCIT; (iv) Whether selection made on the benchmark of 'very good' grading should be construed as selection on merit, and, (v) Whether the practice of application of DOPT guidelines dated 10.4.1989 by the UPSC for promotion to similar grade in all other civil services of the Union is proper. 24. Before entering into all these issues, it may be pointed that there cannot be any administrative/executive instruction contrary to the rules framed under Article 309 of the Constitution. But, the State can in exercise of its executive powers issue administrative instructions to fill up the gaps and supplement the statutory rules framed under Article 309. 24. Before entering into all these issues, it may be pointed that there cannot be any administrative/executive instruction contrary to the rules framed under Article 309 of the Constitution. But, the State can in exercise of its executive powers issue administrative instructions to fill up the gaps and supplement the statutory rules framed under Article 309. [Ref: (1979) 2, SCC, Page-150] On behalf of the appellant, it was argued that it cannot be said that till statutory rules governing promotion to selection grade are framed, Government cannot issue administrative instructions regarding principles to be followed. In this context, reference was made to the decision in the case of Sant Ram Sharma vs. State of Rajasthan & Ors., reported in AIR 1967, S.C. Page-1910. It cannot be denied that the authority constituted under the rules must faithfully follow the rules. 25. Mr. Khandelwal drew our attention to the decision in the case of, Durga Charan Misra vs. State of Orissa & Ors., reported in AIR 1987, S.C., Page-2267, while asserting that the authority concerned cannot prescribe additional requirements for selection either as to eligibility or as to suitability. We are afraid, the said judgment does not, strictly speaking, have any application in the present cases. True, it is rather a wide proposition to say that an administrative order can never confer any right. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that the principle of natural justice of audi alteram partem has been imported. (Ref: AIR 1973, S.C., Page-303). 26. After due consi4eration of the facts and materials of the present cases and having regard to the discussion as made above, we have no hesitation to hold that DOPT guidelines dated 10th April, 1989 are very well applicable for promotion to the grade of Chief Commissioner of Income Tax in the unrevised scale of pay of Rs.7300-7600. Issue No. (ii) as framed by the learned Tribunal is, thus, decided in favour of the appellants. It appears that Appointments Committee of the Cabinet issued certain guidelines on 8th December, 1999. 27. Mr. Khandelwal has placed strong reliance on such guideline which may be reproduced as follows :- "There shall be no super-session. Inter se seniority among all officers considered fit for promotion will be maintained as before. It appears that Appointments Committee of the Cabinet issued certain guidelines on 8th December, 1999. 27. Mr. Khandelwal has placed strong reliance on such guideline which may be reproduced as follows :- "There shall be no super-session. Inter se seniority among all officers considered fit for promotion will be maintained as before. Department of Revenue should expeditiously undertake amendment to Recruitment Rules to bring it at par with All India Services to avoid super-session." 28. It seems "woods" have been missed for the "trees". The said guideline relates to promotion of 120 officers in the pay scale of Deputy Commissioner of Income Tax (now Joint Commissioner of Income Tax). It cannot have any relevance in the matter of selection to the post of Chief Commissioner of Income Tax. Similar is our view regarding DOPT guideline dated 30th March, 2000. A close scrutiny of such guidelines will make it amply clear that those have no bearing in the matter of selection to the post of Chief Commissioner of Income Tax. At the same time it may be pointed out that there has been no violation of the established long term procedure either. Issue No.(iii), as framed by the learned Tribunal, is also, thus, decided. Issue Nos.(i), (iv) and (v), as framed by the learned Tribunal, are indistinguishably interlinked. 29. Learned Tribunal in the impugned judgment observed as follows :- "We have already discussed above that 'selection by merit' and 'selection on merit' are not one and the same. They are different and have different meaning and connotation. While the selection by merit is a selection of the best amongst the meritorious, the 'selection on merit' is the selection of one who does not have demerit. In other words, the 'selection by merit' is based on comparative or higher merit, whereas 'selection on merit' is based on the minimum merit. We, therefore, hold that selection made on the benchmark of 'very good' grading according to the DOPT guidelines dated 10th April, 1989 cannot be construed as 'selection on merit' as required by the I.R.S. Rules, 1988." 30. It seems to be the view of the learned Tribunal that 'selection on merit' and 'selection by merit' are not one and the same. The Tribunal held that they are not synonymous. It seems to be the view of the learned Tribunal that 'selection on merit' and 'selection by merit' are not one and the same. The Tribunal held that they are not synonymous. According to the Tribunal, the expression 'selection on merit' pre-supposes non-existence of demerit or adverse merit whereas the expression 'selection by merit' visualizes comparative merit or more or higher merit." We, however, find it very difficult, if not impossible, to share such views. We are unable to agree to the concept that 'selection on merit' pre-supposes non-existence of demerit or adverse merit. Similarly, we also don't share the view that 'selection by merit' visualizes comparative merit or more or higher merit. The two expressions, in our opinion, practically mean the same. The idea is that in the process of selection, 'merit' should be the only criteria. After all, absence of 'pain' by itself is not 'pleasure'. 31. Clause 6.3.1(ii) in the consolidated instructions cannot be said to have introduced something alien to the IRS Rules. Respondents cannot afford to have any grudge against the selection process as contained in the IRS Rules, 1988. The said Rules speak about selection on merit and the expression 'selection by merit' elsewhere does not bring about any significant change in complexion. Clause 6.2.1(ii), as referred to earlier, reflects that there should be 'very good' grading as benchmark in respect of posts which are in the level of Rs.3,700-5,000 and above. Introduction of such benchmark for officers of a particular grade, and, in fact, the highest grade in the IRS Rules, does not seem to violate the IRS Rules, 1988 in any manner whatsoever. Learned Counsel for the appellant Mr. Kalyan Bandyopadhyay drew our attention to the decision in the case of Central Council for Research in Ayurveda and Siddha Vs. K. Santhakumari, reported in 2001 AIR, S.C.W., Page-2155; in support of his contention that selection post is to be filled up on the principle of inter se merit of eligible candidates. Our attention was drawn to the decision in the case of Sarat Kumar Dash & Ors. K. Santhakumari, reported in 2001 AIR, S.C.W., Page-2155; in support of his contention that selection post is to be filled up on the principle of inter se merit of eligible candidates. Our attention was drawn to the decision in the case of Sarat Kumar Dash & Ors. vs. Biswajit Patnaik & Ors., reported in J.T. 1995(2), S.C., Page-69, wherein it was held that Government had accepted the recommendations of the Public Service Commission, there could be no need for the Government to again record reasons in accepting the same and the Tribunal grievously erred in directing the Government to reconsider the matter afresh. In the present cases also learned Tribunal referred the matter back for fresh consideration in the light of observations made in the judgment. 32. In our view, learned Tribunal was not at all justified in doing so. The scope of judicial review is limited in the sense that while the Court exercising its power of judicial review, it is only concerned with the decision making process. It is not concerned with the merit of the decision impugned before it as held in the case of State of West Bengal & Ors. vs. Ashok Roy Chowdhury, reported in 1995 S.L.R., Page-686, that "power of judicial review can be exercised inter alia on the grounds of illegality, irrationality and procedure impropriety." The facts and circumstances of the cases under our consideration may be summed up before we conclude. 33. First grievance raised by the respondents related to authority of the UPSC to file such appeal. Union of India appears to have filed appeal against both, Mr. Prabhu Dayal Khandelwal and Mr. Vaskar Sen and the judgment of the learned Tribunal has been sought to be assailed by it as well. Besides, as observed earlier, UPSC is a constitutional authority which definitely has a right to challenge an order which attempts to change the guidelines or procedure relating to promotion of Government Officers. Grievance relating to impleading parties does not appear to have any merit. All affected parties did not necessarily be made parties in a case of such nature and as such, the applications filed before the learned Central Administrative Tribunal and thereafter, before this court, do not suffer from any inherent illegality on this score. 34. It has already been observed that, the contesting respondents, namely, Mr. Khandelwal and Mr. All affected parties did not necessarily be made parties in a case of such nature and as such, the applications filed before the learned Central Administrative Tribunal and thereafter, before this court, do not suffer from any inherent illegality on this score. 34. It has already been observed that, the contesting respondents, namely, Mr. Khandelwal and Mr. Sen, were not exactly in the dark while the process of selection to the post of Chief Commissioner of Income Tax was initiated. The remark 'good' had to make room for the remark 'very good'. The principle usually followed is to give due regard to the seniority of officers while considering confirmation and promotion up to a particular level. Gradually, as the officers go higher up, merit plays more and more significant role. This is absolutely proper and just and cannot in any way violate the principle of natural justice. All may be equal, but some may be more equal than others. The choice may naturally fall on those 'more equals'. 35. As observed earlier, we have failed to accept the observation of the learned Tribunal that 'selection on merit' and 'selection by merit' are two different criteria. The said two expressions practically and substantially mean the same, i.e., selection on the basis of merit. It is, thus, crystal clear that while giving promotion to the post of Chief Commissioner of Income Tax, the concerned authority has not gone beyond its jurisdiction and has not violated the IRS Rules, 1988 nor the DOPT guidelines. 36. Considering all such facts and circumstances, we are of the opinion that the learned Tribunal was not justified in directing fresh consideration in the matter of selection to the post of CCITIDGIT. The judgment and order dated 8th May, 2002 passed by the learned Central Administrative Tribunal in O.A. No. 290 of 2001 and O.A. No. 299 of 2001, thus, stand set aside. 37. The W.P.C.T. No. 772 of 2002, W.P.C.T. No. 803 of 2002, W.P.C.T. No. 773 of 2002 and W.P.C.T. No. 800 of 2002 are allowed. There is no order as to costs. Interim order, if any, stands vacated. Xerox certified copy be given to the parties, if applied for, on payment of requisite fees. Tarun Chatterjee, J.: I agree. Appeals allowed.