Transfer as an incident of public service - judicial restraint in interference with administrative transfer - mala fides requirement to invalidate transfer - no right to hearing prior to transfer effected in public interest based on complaint - collegium recommendation for transfer - procedure in cases of dissentTransfer as an incident of public service - judicial restraint in interference with administrative transfer - mala fides requirement to invalidate transfer - Validity of the transfer order directing the applicant's transfer from the Chandigarh Bench to the Rajkot Bench - HELD THAT: - The transfer was a discretionary administrative act undertaken on recommendation of the Tribunal collegium. The Court applied the settled principle that transfers of public servants are ordinarily an incident of service and courts should refrain from interfering unless the transfer is vitiated by perversity, extreme arbitrariness, collateral purpose or mala fides. On the material before it there was no averment or iota of bias against the President or the other Vice President who were part of the collegium; consequently the transfer recommendation was not shown to be tainted by mala fides or arbitrary exercise of power. The Court therefore declined to invalidate the transfer and held the Original Application devoid of merit. [Paras 11, 12, 19, 21]The transfer order is valid and the O.A. is dismissed.No right to hearing prior to transfer effected in public interest based on complaint - mala fides requirement to invalidate transfer - Whether the applicant was entitled to a prior hearing before being transferred on the basis of a complaint - HELD THAT: - The Court endorsed the view that an opportunity of hearing is not invariably required before effecting an administrative transfer made in public interest on the basis of a complaint. Reliance was placed on the rationale that insisting on a full pre transfer hearing where serious complaints exist may frustrate administrative purpose and that courts will interfere only if the transfer is mala fide or in breach of rules. As no disciplinary order had been passed and no illegality or mala fide was established, absence of a prior hearing did not invalidate the transfer order. [Paras 13, 14, 15, 16, 21]No infirmity arises from non grant of prior hearing to impugn the transfer.Collegium recommendation for transfer - procedure in cases of dissent - Whether the role of the Vice President who conducted the preliminary examination of the complaint rendered the collegium's recommendation invalid - HELD THAT: - Although one Vice President of the Tribunal in Delhi had considered the complaint, the applicant did not demonstrate any bias on the part of the President or the other Vice President who constituted the collegium. The Court noted the collegium composition and found no material showing that the association of the Vice President who had inquired produced a taint of bias in the collective decision. Consequently the collegium's recommendation was not vitiated on that ground. [Paras 12, 21]The collegium's recommendation stands; no disqualification or bias shown.Procedure in cases of dissent - Appropriateness of the applicant's conduct in retaining and returning a draft judgment and non observance of internal conventions - HELD THAT: - The Court examined the Tribunal's circulated conventions governing dissent between Members and observed that the applicant retained a draft judgment forwarded by the co Member for an extended period and returned it with a note after a Coordinate Bench had taken a contrary view. The retention was found inappropriate and, coupled with failure to follow the prescribed procedure for recording dissent, demonstrated disregard for the internal methodology. While the conduct was not articulated as the sole basis for transfer, it was a relevant factual circumstance justifying the collegium's action. [Paras 10, 17, 18, 19]The applicant's conduct in handling the draft and non observance of the dissent procedure was inappropriate and supports the collegium's decision.Final Conclusion: The Tribunal dismissed the O.A. holding the transfer from the Chandigarh Bench to the Rajkot Bench to be within administrative discretion, not shown to be mala fide or arbitrary, and not vitiated by non grant of a prior hearing or by bias in the collegium; the applicant's conduct regarding retention of a draft judgment was inappropriate and did not merit interference with the transfer. No order as to costs.

Entitlement to back wages - effect of conviction and incarceration on entitlement to back wages - suspension and subsistence allowance - application of internal office order protecting employees pending appeal for offences committed while on duty - reinstatement without back wagesApplication of internal office order protecting employees pending appeal for offences committed while on duty - reinstatement without back wages - Office Order No.201 dated 24.11.1954 does not apply to the applicant because the conviction arose from an offence (murder) not committed while on duty. - HELD THAT: - The Office Order governs cases where drivers are prosecuted while on duty and provides that departmental action be taken only after the appellate court decides the appeal; it is not a general protection for convictions arising outside the course of employment. The Tribunal found that the applicant's conviction was for an offence not connected to any accident or mis-happening while on duty, and therefore the protection envisaged by Office Order No.201 is inapplicable to the facts of this case. The sole ground advanced by the applicant based on that Office Order was accordingly rejected. [Paras 11]Office Order No.201 is not applicable and cannot be relied upon to defeat dismissal in the present facts.Entitlement to back wages - effect of conviction and incarceration on entitlement to back wages - suspension and subsistence allowance - Applicant is not entitled to back wages for the period he was convicted and incarcerated; subsistence allowance already paid for suspension periods and service interruption while in jail precludes claim to back wages. - HELD THAT: - Relying on the principle affirmed by the Supreme Court decisions cited in the impugned order, where an employee becomes disabled from rendering service by reason of conviction and incarceration, denial of back wages is permissible even if acquittal follows on appeal. The Tribunal observed that the applicant had remained in jail during the period in question and could not have performed duties; subsistence allowance for the suspension periods has already been paid under the relevant service regulations. No distinguishing circumstances were shown (such as departmental-initiated prosecution) to warrant a different result. Consequently, reinstatement without back wages was upheld. [Paras 11, 12]Reinstatement may be ordered but claim for back wages is rejected; subsistence allowance already paid for suspension periods and period of incarceration will not attract back wages or count for pensionary/other service benefits.Final Conclusion: The application is dismissed at the admission stage: the internal Office Order relied upon does not apply, and on the settled principle that conviction and resultant incarceration disabling an employee from rendering service precludes entitlement to back wages, the claim for back wages is refused while reinstatement without back wages stands; no costs.

Legality of non-consideration for selection on age criterion - quashing of vacancy notice - direction for fresh selection/interview for remaining post - effect of Appointments Committee of the Cabinet approval on selection - determination of inter se seniority by interview marksQuashing of vacancy notice - direction for fresh selection/interview for remaining post - Vacancy Notice dated 19-7-2008 quashed and respondents directed to hold a fresh interview for one post of Judicial Member, CESTAT including the second respondent and the seven other candidates previously interviewed. - HELD THAT: - The Tribunal found that the earlier order in OA No. 658/2008 had set aside the entire selection process because the second respondent was not considered on the ground of age. Having regard to the fact that two posts were under consideration and that only one person had been recommended by the Selection Committee, the Tribunal concluded that the correct remedy was to quash the vacancy notice dated 19-7-2008 and to direct a fresh interview for the remaining one vacancy. The fresh interview is to include the second respondent and the seven candidates who had earlier appeared before the Selection Board on 5-4-2008. The parties agreed that inter se seniority between the applicant and the second respondent would be determined by the marks secured in the interview; the Tribunal adopted this approach and directed that the fresh selection be completed expeditiously, preferably within three months of receipt of certified copy of the order. [Paras 6]Vacancy notice quashed; fresh interview ordered for one post including second respondent and earlier candidates; inter se seniority to be decided by interview marks.Effect of Appointments Committee of the Cabinet approval on selection - The applicant's selection, which had been approved by the Appointments Committee of the Cabinet, was recognised and not set aside by the Tribunal's directions. - HELD THAT: - The Tribunal recorded that the applicant's selection for one of the two posts had been approved by the Appointments Committee of the Cabinet on 24-8-2008. While directing a fresh interview for the remaining vacancy, the Tribunal acknowledged the ACC approval of the applicant's appointment and did not disturb that selection. The remedy afforded was limited to filling the other vacancy without affecting the applicant's already-approved appointment. [Paras 2, 6]Applicant's selection approved by the Appointments Committee of the Cabinet stands; only the unfilled post is to be refilled by fresh interview.Final Conclusion: The Tribunal quashed the vacancy notice dated 19-7-2008 and directed a fresh interview for the single remaining post of Judicial Member, CESTAT (including the second respondent and the seven previously interviewed candidates), ordered that inter se seniority between the applicant and the second respondent be determined by interview marks, and recognised the applicant's appointment as having been approved by the Appointments Committee of the Cabinet.

Computation of time excluding the first day under the General Clauses Act, 1897 - interpretation of recruitment advertisement as supplementing statutory rules - administrative instructions cannot override binding judicial precedent - right to be considered in a selection where eligibility is wrongly computed - select list does not confer an indefeasible right to appointmentComputation of time excluding the first day under the General Clauses Act, 1897 - administrative instructions cannot override binding judicial precedent - Computation of the 45-day period specified in the advertisement and whether the day of publication is to be excluded for determining last date of receipt of applications. - HELD THAT: - The Tribunal applied the ratio of the Apex Court that where a period is delimited by a terminus a quo and terminus ad quem and the words equivalent to 'from' are used, the first day is to be excluded and the last day included. Interpreting the advertisement phrase 'Should reach within 45 days of the date of publication of this notice' as requiring exclusion of the day of publication, the 45-day period expired on 18-10-2007. The Tribunal rejected the respondents' reliance on an administrative clarification and held that an administrative instruction cannot override judicial dicta; therefore the computation must follow the judicially declared rule of exclusion of the first day. [Paras 20, 22, 23]The day of publication (3-9-2007) is excluded in computing the 45-day period; the last date was 18-10-2007, and the applicant was eligible by reason of age on that date.Interpretation of recruitment advertisement as supplementing statutory rules - right to be considered in a selection where eligibility is wrongly computed - select list does not confer an indefeasible right to appointment - Whether rejection of the applicant's candidature for having not completed 45 years on the erroneously computed cut-off date vitiated the selection process and what relief follows. - HELD THAT: - The Tribunal held that an advertisement initiating a selection supplements the statutory eligibility rules and must be interpreted consistently with those rules and binding judicial principles. Because the applicant was eligible when the period was correctly computed (excluding the publication day), denial of consideration amounted to illegality. Although persons on a select list do not acquire an indefeasible right to appointment, the exclusion of an eligible candidate vitiates the selection process. The Tribunal therefore set aside the selection and consequent process made pursuant to the impugned advertisement and permitted the respondents to hold a fresh selection in which the applicant and other earlier participants shall be eligible to be considered. [Paras 23, 27, 29]Rejection of the applicant's candidature on the basis of the wrongly computed cut-off date was illegal; the selection and consequent process pursuant to the advertisement dated 3-9-2007 are set aside and the respondents may hold a fresh selection in which the applicant shall be eligible to be considered.Final Conclusion: The OA is allowed to the extent that the selection and consequent process under the advertisement dated 3-9-2007 is set aside; the applicant (having been eligible when the 45-day period is computed excluding the date of publication) and other earlier participants shall be eligible for consideration in any fresh selection to be held by the respondents.

Adverse entry in Annual Confidential Report - Pre-decisional opportunity before recording adverse remarks - Responsibility for delay in pronouncement of judicial judgment - Judicial review of administrative action on ACRAdverse entry in Annual Confidential Report - Pre-decisional opportunity before recording adverse remarks - Responsibility for delay in pronouncement of judicial judgment - Judicial review of administrative action on ACR - Expunction of the adverse remark recorded in the applicant's ACR for the year 2003-04 - HELD THAT: - The Tribunal found that although there was delay in pronouncing the judgment, the material on record (paras 4.2-4.8) was not denied by the respondents and showed that the predominant cause of delay lay with the Presiding Member who retained the file for nearly a year and nine months. The Bombay High Court's adverse observation related to delay generally and did not single out the applicant as responsible. The respondents, having failed to make independent administrative inquiries readily open to them (such as dates of hearing, dispatch and receipt of files), proceeded to record an adverse remark without first affording a fair pre decisional opportunity and without establishing that the applicant was personally at fault. A post decisional opportunity to explain was inadequate in the circumstances. On this factual and legal basis the impugned remark lacked foundation and was unsustainable. [Paras 27, 28, 29, 30, 31]The impugned adverse remark in the ACR for 2003-04 has no basis in fact and is ordered to be expunged.Final Conclusion: The Original Application is allowed; the respondents are directed to expunge the impugned remark from the applicant's ACR for 2003-04 within one month of receipt of certified copy of this order, with no order as to costs; respondents are advised to take note of the Madras High Court decision cited for any further action.

Principles of natural justice - selection committee recommendations and ACC power - A.K. Doshi principle on material before Appointments Committee - Agreed List / vigilance watch-list - Central Vigilance Commission guidelines on anonymous/pseudonymous complaints - vigilance clearance and its effect on appointment - no vested right in ex-cadre appointment until formal orderSelection committee recommendations and ACC power - A.K. Doshi principle on material before Appointments Committee - Agreed List / vigilance watch-list - no vested right in ex-cadre appointment until formal order - Validity of the ACC's annulment of its earlier approval of the applicant's appointment in light of additional vigilance material (Agreed List) and whether the Selection Committee's recommendation gave the applicant a vested right. - HELD THAT: - The Tribunal held that while material placed before the Selection Committee should ordinarily be placed before the Appointments Committee without addition or alteration, the limited exception in A.K. Doshi permits ACC to consider material that came into existence after the Selection Committee's meeting. In the present case the respondents admitted a lapse in not placing the Agreed List information earlier, and the Agreed List information was thus considered by ACC in a subsequent note. Given the significance of the Agreed List for sensitive appointments, ACC's reconsideration and annulment of its earlier approval was permissible. Further, the post in question was an ex-cadre appointment and no final appointment order had been issued; consequently the applicant had no vested right to appointment which could be enforced merely on the basis of a prior recommendation or provisional approval. [Paras 24, 25, 26]ACC's annulment of its earlier approval on account of the applicant's name on the Agreed List was lawful and the applicant possessed no vested right to the ex-cadre appointment prior to formal orders.Principles of natural justice - Agreed List / vigilance watch-list - Central Vigilance Commission guidelines on anonymous/pseudonymous complaints - vigilance clearance and its effect on appointment - Whether consideration of the Agreed List by ACC without giving the applicant an opportunity to be heard violated principles of natural justice or applicable vigilance guidelines. - HELD THAT: - The Tribunal accepted the precedent of the Principal Bench (Inder Raj Soni) that consideration of the Agreed List does not equate to an adverse ACR entry and does not, in the circumstances of selection for sensitive posts, attract a requirement to afford the candidate a prior hearing. The respondents' reliance on vigilance-related instructions and the acknowledged lapse in initial disclosure did not convert into a legal requirement to afford the applicant a hearing before ACC's annulment; nor did the circumstances show that anonymous/pseudonymous complaints (which CVC guidelines say should not be acted upon) were the basis for action such as would invalidate ACC's reconsideration. The Tribunal thus found no breach of natural justice or applicable vigilance norms warranting interference. [Paras 22, 23, 24, 27]No breach of principles of natural justice or applicable vigilance norms occurred in ACC's reconsideration; non-provision of a hearing did not vitiate the annulment.Final Conclusion: The OA is dismissed. The Tribunal finds no legal infirmity in ACC's decision to annul its earlier approval of the applicant's appointment after consideration of his presence on the Agreed List, and the applicant had no vested right to the ex-cadre post prior to issuance of a formal appointment order.

Annual Confidential Report - communication of adverse entries within stipulated time and inclusion of good points - disposal of representation against adverse entries within prescribed time - requirement of material/data to support adverse adverse entries - power to adopt conditions of service by parity with employees of corresponding status - expunction of unsupported adverse entriesCommunication of adverse entries within stipulated time and inclusion of good points - Annual Confidential Report - Whether the adverse entries in the ACR for the period 1-4-2000 to 31-3-2001 were communicated in accordance with Government/DOPT instructions and whether the communication complied with the requirement to include good points as well as adverse entries - HELD THAT: - The Tribunal accepted that the departmental practice of writing ACRs was being followed and proceeded to examine compliance with DOPT instructions. The DOPT instructions require that adverse entries be communicated within one month of being recorded and that communications should mention the adverse entries along with the good points. In the present case the adverse entries were recorded on 21-5-2001 but were communicated to the applicant only on 26-12-2001, and the communication omitted the positive remarks recorded in the ACR. The Tribunal held that these failures were contrary to the instructions and were material defects in the procedure followed while communicating the ACR entries to the applicant. [Paras 27, 28]Failure to communicate adverse entries within one month and omission of the good points amounted to breach of the instructions governing ACR communications, warranting remedial action.Disposal of representation against adverse entries within prescribed time - Annual Confidential Report - Whether the representation made by the applicant against the adverse entries was disposed of in conformity with the time-limits prescribed in the Government/DOPT instructions - HELD THAT: - The Tribunal noted that the instructions prescribe disposal of any representation against adverse entries within three months of submission. The applicant's representation dated 10-1-2002 was disposed of by the impugned order on 28-6-2002 (decision communicated after consideration by the Finance Minister on 25-6-2002), which was approximately six months later. The Tribunal found this delay to be contrary to the prescribed three-month time-frame and therefore inconsistent with the applicable instructions. [Paras 12, 29]The representation was not disposed of within the three-month period required by the instructions; the delay was contrary to the prescribed procedure.Requirement of material/data to support adverse adverse entries - expunction of unsupported adverse entries - Whether the adverse entries in the ACR were supported by contemporaneous material or records and, if not, whether they were liable to be expunged - HELD THAT: - The respondents repeatedly relied on the assertion that the ACR had been initiated on the basis of available materials and records, but no such materials or records were placed before the applicant or produced before the Tribunal for scrutiny. The applicant had furnished his statement of disposal for the relevant period, which the Tribunal considered a significant contemporaneous record in a quasi-judicial forum. In the absence of any disclosed or produced material supporting the adverse entries, and having regard to precedents and departmental instructions emphasizing the need for substantiation, the Tribunal concluded that the adverse entries could not stand. [Paras 14, 30]Adverse entries not supported by disclosed material are liable to be expunged; the applicants' adverse entries for 1-4-2000 to 31-3-2001 were to be expunged.Power to adopt conditions of service by parity with employees of corresponding status - Annual Confidential Report - Whether the practice of writing ACRs for Members/Vice-Chairman of CEGAT was authorised and at what administrative level that decision stood - HELD THAT: - The Tribunal examined departmental file notings showing that a doubt existed within the Government as to whether ACRs should be written for Members/Vice-Chairman of CEGAT and that, after consulting DOPT, a decision was recorded to continue the practice similar to ITAT. The Tribunal observed that the emergence of this doubt and the manner of decision-making indicated ambivalence and that it was not demonstrated that the decision to continue the practice had been taken at the appropriate level with requisite clarity. The Tribunal therefore refrained from finally deciding the question and left it open for the Government to determine at the appropriate level whether the practice should continue. [Paras 24, 25, 26]The question whether ACRs should be written for Members/Vice Chairman of CEGAT is left open; the Government to decide at the appropriate level (no adjudication on merits by the Tribunal).Expunction of unsupported adverse entries - Relief to be granted following findings on procedural non-compliance and lack of supporting material - HELD THAT: - Having found breach of DOPT instructions in communication and disposal timelines and absence of disclosed supporting material for the adverse entries, the Tribunal assessed appropriate relief. It held that expunction of the adverse entries from the ACR for the period 1-4-2000 to 31-3-2001 and quashing of the impugned order rejecting the representation would meet the ends of justice. The Tribunal thereupon directed the respondents to expunge the adverse remarks and quashed the impugned order dated 28-6-2002. [Paras 31]Direct respondents to expunge the adverse remarks in the ACR for 1-4-2000 to 31-3-2001 and quash the impugned order dated 28-6-2002.Final Conclusion: The Tribunal found breaches of the DOPT instructions in delayed and incomplete communication of adverse ACR entries and in delayed disposal of the applicant's representation, and concluded that adverse entries unsupported by disclosed material must be expunged; accordingly the adverse remarks in the ACR for 1-4-2000 to 31-3-2001 were directed to be expunged and the impugned order of 28-6-2002 was quashed, while the broader question whether ACRs should be written for Members/Vice Chairman of CEGAT was left to the Government to decide at the appropriate level.