Sunil Kumar Yadav vs. UOI & B. R. Mittal vs. UOI (CAT Delhi Bench)

Appointment of Vice President of the ITAT is by merit-based selection and not seniority. No reservation for OBC

Shri. B. R. Mittal & Shri. Sunil Kumar Yadav, Members, ITAT, filed petitions challenging the selection process for appointment to the three posts of Vice-President, ITAT.

Shri. Mittal contended that he had been wrongly superceded to the post of Vice-President (VP) by Shri. Tyagi, a junior Member. It was claimed that appointment to the post of VP was only a designation which had to go by seniority and that even if it were regarded as a promotion, an incumbent having requisite benchmark had necessarily to be promoted and could not be superseded by his juniors. On merits, it was contended that the Member who had been selected as VP was “under cloud” and these facts were not placed before the selection committee. It was also pleaded being under the administrative and financial control of a junior Member would be embarrassing.

Shri. Sunil Kumar Yadav contended, relying on the judgement of the CAT in G. E. Veerabhadrappa vs. UOI that as appointment to the post of Vice-President is by of direct recruitment, two (out of nine) posts of VP had to be reserved for OBC and that he, being OBC, should be appointed VP. HELD dismissing both petitions:

(i) Re B. R.Mittal: The scheme of the ITAT (Members) Rules, 1963 makes it clear that the post of a Member is different from that of Vice-President. While appointment of Member is by way of direct recruitment open to all who answer the eligibility criteria, appointment to the post of Vice-President has to made from amongst the Members by the method of selection. It cannot be said that a senior Member should automatically be appointed Vice-President. (G. E. Veerabhadrappa vs. UOI followed). In a selection, supersession is possible as the best person suited for the job has to be found irrespective of seniority;

(ii) The selection committee would have considered aspects relating to the efficiency, performance, capacity to work, quality of judgments and other attributes of the Members in the zone of consideration for selection. The fact that a chart of comparison was not prepared does not mean that comparative merit was not considered by the selection committee. Mention of comparative merit need not be made as it could be counter-productive and lead to bitterness. A citizen must have faith in the system rather than crying foul when he has not been able to make it on merits;

(iii) On facts, the challenge to the selection of the junior Member on the basis of adverse material is not acceptable because all that happened was that the said Member was issued a show cause and asked to remedy certain defects. After reply to the notice, no action was taken against him. A legitimate presumption can be made that the said Member improved after that incident;

(iv) Re SK Yadav: The appointment to the post of President and VP is by way of selection based on merit and not by way of promotion. No reservation can apply where the appointment is not by way of direct recruitment. Observations made in G.E. Veerabhadrappa vs. UOI that the appointment of VP is by way of direct recruitment are obiter and of no legal effect.