http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: A.P.AGGARWAL

       Vs.

RESPONDENT: GOVT.  OF N.C.T.  OF DELHI AND ANOTHER

DATE OF JUDGMENT:       16/11/1999

BENCH: M.Srinivasan, R.C.Laboti

JUDGMENT:

SRINIVASAN.J.

     Leave  granted.   Heard  both sides  and  perused  the records.   2.   In November 1996, applications were  invited tor  appointment to the post of Member, Appellate  Tribunal, Sales-tax.   The qualifications, classification and scale of pay, dis-qualifications, medical fitness, retirement age and retirement  benefits were all set out in the  advertisement. The appellant had the requisite qualifications

     and  applied tor the post.  The post was to be  filled up  by the Central Government as per Section 13 of the Delhi Sales  Tax  Act 1975.  The Selection Committee  .constituted for  the",  purpose  recommended a panel of  two  names  for consideration  for  appointment by the  Central  Government. One  Mr.   M.L.  Sahni who was a Member of the Delhi  Higher Judicial  Service at that time and the present appellant who was  Addl.   Legal  Advisor, Ministry of  Law,  Justice  and Company  Affairs were on the panel.  The Central  Government appointed  Shri  M.L.  Sahni as Member, Appellate  Tribunal, Sales-tax  ’for a period of three years or till such time as his  successor  joins,  whichever   is  earlier’.   Pursuant thereto Shri M.L.  Sahni joined the post on 14.9.1997.  Even by  that time, he had been selected for the post of  Member, Income-tax  Appellate Tribunal.  He was appointed as such in December  1997,  and  he relinquished the  post  of  Member, Sales-tax Appellate Tribunal on 4.1.1998.

     3.   The Central Government instead of appointing  the appellant   as   the  Member,  chose   to  cause   a   fresh advertisement  to be issued calling for fresh  applications. Admittedly;   a  note  .was  submitted for  filling  up  the vacancy  either  by  inviting, applications  through,  press advertisements  or  by appointing the appellant whose  name; was

     recommended  earlier along with the name of Shri  M.L. Sahni  and to avoid delay in filling up the post, the latter course  was  suggested.   But that was not accepted  by  the Government  and it was decided to invite fresh  applications for a wider choice.  4.  In the meanwhile, the appellant had been  making  representations  repeatedly to  the  concerned authorities   for  appointing  him   as  Member,   Sales-tax Appellate  Tribunal.   As  there  was  no  response  to  any representation  and the Government proceeded to process  the applications  received pursuant to the fresh advertisements,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

the appellant filed 0.A.  No .630 of 1998 on the file of the Central Administrative Tribunal, Principal Bench.  New Delhi for  quashing  the  fresh advertisement and the  process  of selection  pursuant  thereto and for a direction to  appoint the  appellant as Member, Sales- tax Appellate Tribunal.  It should  be mentioned here, that the provisions of Section 13 of  the  Delhi Sales-tax Act were amended with  effect  from 28.1.98  whereby the words ’Central Government" appearing in the  Section were substituted by the words ’Lt.   Governor’. Thus the power of appointment vested thereafter with the Lt. Governor  of Delhi.  The appellant liad therefore  impleaded the Oovcrnmcnt of N.C.T.  of Delhi through the Lt.  Governor and the

     Secretary"   (Finance),  Government  of   N.C.T.    as respondents  in  his  application.    The  application   was contested  by  the  respondents  on   the  ground  that  the appellant did not get any right bv the inclusion of his name in  the panel.  Before tlie Tribunal, reliance was placed bv the appellant on Office Memorandum No.39021/18/84-Estt.  (B) dated  14.5..1987, Govt.  of India, Ministry of  Personnel., P.O.   and Pensions (Department of Personnel and  Training). It was stated on behalf of the appellant that the provisions in  the Office Memorandum were mandatory and the vacancy  in the  post having occurred within a period of six months from the  date of joining of Shri M.L Sahni, it should be  filled up  by appointing tlie appellant.  Reliance was also  placed on  the provisions of Section 13 of the Delhi Sales-tax  Act 1975.   --  -  .   .   5.   The  Tribunal  opined  that  the Government  Office  Memorandum was not mandatory and it  was open to the Government to resort to fresh selection process. ’The  Tribunal had also placed reliance on the decisions  of this  Court in which it has been laid down that a person  in the  waiting list does not get any right to be appointed  lo the  post if vacancy arises subsequently.  Ultimately,  tlie Tribunal.  dismissed the application tiled by the appellant.

     6.   The  appellant filed a writ petition in the  High Court Delhi which was dismissed in limine by a non -speaking orde  the  High  Court observed that it found no  reason  to interfere  with  the  impugned  decision  of  the  Tribunal. Aggrieved  thereby, the appellant has approached this Court. When the matter was pending before the Tribunal, there was a stay  of  the  process of selection pursuant  to  the  fresh advertisement.  When notice was ordered by this Court in the petition  for  Special  Leave,  similar  interim  order  was granted slaying fresh selection.

     7.   The  appointment of Member.  Sales-tax  Appellate Tribunal  is  governed by Section 13 of the Delhi  Sales-tax Act  1975.  Sub- section (4) of Section 13 reads as follows: Any  vacency  in  the membership of the  Appellate  tribunal Shall  be  lilled  up  by  the Central  Govt.   as  soon  as practicable.

     It is significant to notice use of the word ’shall’ in the  sub-section  .  There is no doubt that the statute  has cast  a  duty  on the Government to fill up the  vacancy  as early as practicable.

     8.  The Central Government issued an Office Memorandum on  14.5.1987 containing the instructions which would  apply in respect

     of  vacancies  arising  on  or  after  1.1.1986.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Memorandum is in the following terms:

     The   undersigned  is  directed  to  refer   to   this Department’s  O.M.   No.    39021/18/84-Estt.(B)  dated  6th February  1985, 13^ June 1985 and 20th November 1985 (copies enclosed)  and  to  say  that   according  to  the  existing procedure,  the reserve lists prepared with effect from I th January  1985  were to be operated only to fill  replacement vacancies.   Earlier  to this the reserve lists  were  being used  both for replacement vacancies and fresh vacancies  of identical  nature.   Some  of the Ministries  have  reported difficulties  in  filling  up  of   vacancies  caused  in  a situation  where  the recommended candidate joined the  post for  a  short period and then resigned or where the  vacancy occurred  on  account of the death of the candidate, It  was pointed  out  that the posts could not be kept vacant for  a long time till the next recruitment took place.

     ""*2.   The  matter has been examined in  consultation with  U.P.S.C.   and  it has been decided that  the  reserve lists may be operated in cases where a vacancy is created by a candidate resigning the post or in the event of his death, within  a period of six months from the date of his  Joining the  post subject to the condition that such an operation of the  lists  should be limited in respect of stetutory  posts and  those  of  scientific, technical, academic  or  medical nature  or other similar nature where it may not be possible to  keep  the  post  vacant till  the  completion  of  fresh recruitment or to make local arrangements.

     3.   In other types of cases also where the post could be  manned  normally  on officiating basis  or  bv  internal arrangements,  requests  of  the  Ministnes/Departments  for operation  of  reserve  lists  will  be  considered  by  the Commission  but only when it is apparent that making of such arrangements would not be feasible and the posts also cannot be  kept  vacant till the candidates from  next  recruitment process are available.

     4.   These  instructions  would apply  in  respect  of vacancies arising on or after I.  1 .86.’

     9.   While  it  is the contention  of  learned  senior counsel for the appellant that the instructions contained in the office memorandum are mandatory’, the learned Additional Solicitor   General  appearing  for   the  respondents   has contended  that  they  are  only   directory  and  there  is absolutely  no  necessity  for the  government  to  strictly comply  with the same.  He places reliance on the words ’may be operated’ appearing in Paragraph 2.

     10.  A reading of Section 13(4) of the Delhi Sales-tax Act and the Office Memorandum together shows that the latter was  issued  with a view to fill up the vacancy as  soon  as practicable.   The  statutory  provision   is  expressed  in mandatory  language and in order to give effect to the same, executive instructions were issued in die office memorandum. The  first paragraph of the office memorandum shows that the position   prevailing  prior  to   14.5.1987  lead  to  some difficulties and the memorandum in question was being issued in  order  to  get over such difficulties  and  achieve  the objective  of early fulfillment of the vacancy  contemplated in  the Act.  If the office memorandum is read in the  light of the provisions in Section 13 (4), there is no doubt

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

     whatever  that a public duty is cast on the  concerned authorities  to fill up the vacancy within as short time  as possible  provided the conditions set out in the  memorandum arc  present.   There  is no dispule in this case  that  the vacancy  was  created by the resigning of the post  by  M.L. Sahni  within a period of six months of the date of  Joining the  same.  The list recommended by the Select Committee and accepted  by  the Government contained a panel of two  names and  the  post  is  such it is not possible  to  make  local arrangements to fill up the vacancy.  Nor is it desirable to keep  it  vacant for a long time or till the  completion  of fresh recruitment.

     11.   In our opinion, this is a case of confirment  of power  together  with  a discretion which goes  with  it  to enable  proper  exercise  of the power and therefore  it  is coupled  with  a duty to shun arbitrariness in its  exercise and  to promote the object for which the power is  conferred which  undoubtedly is public interest and not individual  or private gain, whim or caprice of any individual.  Even if it is to be said, that the instructions contained in the Office Memorandum   dated  14.5.87  are   discretionary   and   not mandatory,  such discretion is coupled with the duty to  act in  a  manner  which will promote the object tor  which  the power is conferred and also satisfy the mandatory’

     ’requirement of the Statute.  It is not therefore open to  the  Government  .to  ignore   .the  panel  .which,  was already-approved  and accepted by it and resort to a  fresh, selection  process  without  giving any  proper  reason  for resorting to the same.  It is not the case of the Government at  any  stage that the appellant is not fit to  occupy  the post.   No  attempt was made before the Tribunal  or  betore this  Court  to  place  any valid reason  for  ignoring  the appellant and launching a fresh process of selection.

     12.   It  is well settled that every State action,  in order  to  survive, must not be susceptible to the  vice  of arbitrariness  which  is  the  crux of  Article  14  of  the Constitution  and basic to the rule of law, the system which governs  ns.  (vide Shrilekha Vtdyarthi versus_State.of U.P. ((1991) I S.C.C.  212).

     13.   Learned Additional Solicitor General referred to the  judgment  of this Court in Madan Lal and Others  versus State  of  J  -& K and Others ( (1995) 3 S.C.C.  486  )  and placed reliance on Paragraph 23 of the judgment at Page 502. That  ruling  has  no relevance in the  present  case.   The advertisement  was  for applications to the post of  Munsif. According  to the advertisement, there were 11 vacancies  to be filled up and the requisition to the Public Service

     Commission was to select II persons for filling up the said  seven  vacancies.  While sending the list of  selected candidates,  die  Public  Service  Commission  sent  a  list containing  more names than I I.  That was obviously with  a view  to fill up the vacancies, if any of the 11  candidates according  to  their merit did not join., from among the  11 candidates  in  the waiting list according to  their  merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could  not  be  used  for   any  purpose  thereafter.   That principle  will not apply in the present case in view of the facts already set out by us.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

     14.  In R.S.  Mittid versus Union of India (1995 Supp. (2) S.C.C.  230) the question arose with regard to selection of  candidates  to the post of Judicial  Member,  income-tax Appellate  Tribunal.  The selection was made by a  Selection Board  consisting  of  a sitting Judge of this  Court.   The Selection  Board  prepared a.  panel of selected  candidates which  included the name of the appellant before this  Court and  sent  its recommendations.  The candidates who were  at numbers I and 2 in the panel did not accept the appointment. The  Bench observed that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right

     to  be considered for appointment and at the same time the  appointing authority cannot not ignore the select panel or  decline to make an appointment on its whims.  The  Court said  that when a person has been selected by the  Selection Board  and  there is a vacancy which can be offered to  him, keeping  in view his merit position, ordinarily there is  no justification  to ignore him for appointment and that  there has  to  be  a justifiable reason to decline to  appoint  a. person who is on the select panel.  However, on the facts of the  case.   the  Bench  did  not give  any  relief  to  the appellant  as  he  was  only No.4  and  no  information  was available  about the stand of the person who was at No.3  of the select panel.  While reversing the findings given by the Central  Administrative Tribunal to the extent indicated  in the judgment the Bcnch dismissed the appeal but directed the Government  to pay cost of the proceedings to the  appellant which was quantified at Rs.30.000/-.

     Vircudcr  S.  Hooda and others versus State of Haryana and   .another  (1999  S.C.C.    696  The  Haryana   Service Commission  advertised  12  posts of Haryana  Civil  Service (Executive  Branch).  On completion of selection final  list was published.  Some of the selected candidates did not join and the appellant contended that they should

     have been considered against die vacancies so arising, depending upon the ranking obtained by the appellants in the competitive   examination.    They   relied  on   Government Circulars  dated 22.3.1957 and 26.5.1972 according to  which the  vacancies which arose within six months from receipt of recommendations  of  the Commission.  should be  filled  lip from  the  waiting list maintained by the  Commission.   The writ  petition filed by the appellants was dismissed by  the High  Court in the view that the administrative instructions contained in the Circulars could not be enforced.  Reversing the  decision of the High Court, the Division Bench of  this Court  observed that the Government ought to have considered the  case of the appellants as per the rank obtained by them and  the appellants had to be appointed if they came  within the  range  of selection.  The Bench pointed out  that  when those vacancies arose within a period of six months from the date  of  previous selection, the Government circulars  were attracted  and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they  are contrary to the declared policy of the Government. The  Bench  observed that the view taken by the  High  Court that  the administrative instructions could not be  enforced by the appellants would be looking

     at  the  matter  from a narrow and wrong  angle.   The Bench said, "when a policy has been declared by the State as to  the  manner  of filling up the post and that  policy  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

declared  in  terms of rules and instructions issued to  the Public  Service Commission from time to time and so long  as these  instructions  are  not  contrary to  the  rules,  the respondents  ought  to  follow the same".  The  ruling  will apply on all fours in the present case.

     16.   In  the circumstances we have no  hesitation  in allowing the appeal and directing the respondents to appoint the  appellant as Member, Sales-tax Appellate Tribunal as he is  the only other person in the panel of names selected  by the  Select  Committee and as nothing has been  brought  out against him by the Government.

     17.  On the facts, we find that all the conditions set out  in  the  office  memorandum   issued  by  the   Central Government dated 14.5.1987 are fulfilled in the present case and the rejection of the appellant’s name without any reason therefor  is arbitrary and unconstitutional.  The initiation of  fresh process of selection is not valid and it is hereby quashed.  The appeal is allowed accordingly.  No costs.

     18.  IA.  Nos.2 and 3 of 1999

     In view of the disposal of the civil appeal, these two applications   do  not  survive.    They  are  dismissed  as infructuous.