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PETITIONER: R.S. MITTAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT27/03/1995

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J)

CITATION:  1995 SCC  Supl.  (2) 230 JT 1995 (3)   417  1995 SCALE  (2)433

ACT:

HEADNOTE:

JUDGMENT: KULDIP SINGH, J.: 1.   This  appeal is sequel to the selection  of  candidates for  appointment to the post of Judicial Member,  Income-tax Appellate  Tribunal, made by a Selection Board headed  by  a sitting  Judge  of  this Court.   The  Selection  Board  was constituted un- 419 der  sub-rules  (1)  and (2) of Rule  4  of  the  Income-tax Appellate  Tribunal (Recruitment and Conditions of  Service) Rules  1963 (the ’Rules’).  The Selection Board  prepared  a panel of selected candidates which included the name of  the appellant  and sent its recommendations on January 25,  1988 to the Central Government for consideration under  sub-rules (3)  and (4) of the Rules.  The Central Government  did  not make  any  appointment  and issued  fresh  advertisement  on February  22, 1990 inviting applications for the same  post. The appellant filed Original Application before the  Central Administrative   Tribunal   seeking  a  direction   to   the respondents  to appoint him as Judicial  Member,  Income-tax Appellate Tribunal on the basis of the select-panel prepared by  the  Selection  Board  in 1988.   The  Tribunal  by  its judgment  dated October 11, 1991 dismissed the  Application. This appeal by way of Special Leave is against the  judgment of the Tribunal. 2.The  appellant  is an advocate having  registered  himself with the Bar at Delhi in the year 197 1. In September, 1987, Ministry of Law and Justice issued an advertisement inviting applications for three posts of Judicial Members, Income-tax Appellate  Tribunal.   One post was reserved  for  Scheduled Tribe  candidate  and  the remaining two posts  were  to  be filled up from the general category.  It was further  stated in the advertisement that the three posts were temporary  in nature,  but  were likely to continue and further  that  the number  of  vacancies  was  only  proximate  and  liable  to alteration.  Before the Tribunal and also in this Court, the

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stand  of the Central Government is that  the  advertisement was  for the three vacancies which were anticipated  in  the year 1988-89.  The appellant applied for one of the posts in response to the advertisement.  The interviews were held  on January  12,  1988.  It is not disputed that  the  Selection Board sent its recommendations to the Central Government  on January 25,1988.  We have been informed at the Bar that  Mr. Murgod  was  at  No. 1, Mr.S.P. Singh Chaudhary  at  No.  2, appellant  at  No.4 of the select-panel recommended  by  the Selection  Board.   The Selection Board could not  find  any suitable Scheduled Tribe candidate and as such suggested for re-advertisement   of   the  vacancy.   According   to   the respondents, the reserved vacancy was re-advertised on March 28, 1988 and was subsequently filled up on January 25,1990. 3.The  Government  of India has filed counter by way  of  an affidavit  of  Mr.  S.A. Russel,  Deputy  Secretary  to  the Government  of India, Ministry of Law, Justice  and  Company Affairs,  Department  of Legal Affairs, New  Delhi.   It  is averred therein that the three vacancies anticipated  during the year 1988-89 were to fall vacant on the retirement of T. V. Venkatappa, on February 21, 1988 (ST), H.S. Ahluvalia  on September 27,1988; and F.C. Rustagi on October 17, 1988.  It further  states  that  the two vacancies  belonging  to  the general  category which were expected to arise on  September 27,   1988  and  October  17,  1988  respectively  did   not materialise  as  the  age of retirement of  members  of  the Income-tax  Appellate Tribunal was raised by the  Government from  60  years to 62 years with effect  from  September  8, 1988.   The expected vacancy position, thus, got  materially altered. 4.The  counter  affidavit filed by the Government  of  India further states that two vacancies which were not anticipated in 420 the  year  1988-89 did become available,  because  Sri  K.L. Thanikachalam,  a  Judicial  Member  of  the  Tribunal   was elevated to the High Court with effect from August 14,  1988 and  another  Judicial Member of the  Tribunal  Sri  A.K.Das sought  reversion to his parent cadre with effect from  June 5,  1989.   There  is thus no  difficulty  in  reaching  the conclusion that two vacancies became available on August 14, 1988 and June 5, 1989 respectively which could be offered to the candidates on the select panel in accordance with  their merit on the panel. 5.   The Central Government has, however, contended that out of  the two vacancies which became available, one was to  be kept  reserved  for  one P.J.Menon, who  was  on  deputation abroad.   According  to the Government, he  did  not  resume duties  in  India  on expiry of his  deputation  period  and disciplinary proceedings were initiated against him.   Since the Officer had a lien in the Tribunal, without prejudice to the  disciplinary proceedings, the post was to be  kept  for him  as he was free to resume duties in India at  any  time. We  do  not  agree  with  the  contention  of  the   Central Government.   All  appointments  to  the  post  of  Judicial Member, Income-tax appellate Tribunal, are made against  the existing  vacancies.   P.J.Menon must  have  been  appointed Member,  Income-tax Appellate Tribunal, against an  existing vacancy.   He  could not have been appointed  without  their being a vacancy.  His lien if any could only be kept in  the post  against  which he was initially  appointed.   We  are, therefore,  of the view that there were two clear  vacancies to by offered in accordance with the Rules to the candidates on the select panel recommended by the Selection Board. 6.Assuming that there was only one vacancy as claimed by the

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Central Government, there was gross delay on the part of the Central  Government in initiating action to fill  the  same. The vacancy became available on August 14, 1988 and, accord- ing to the chart placed on record by the Central Government, the  action was initiated on February 28, 1989.  We fail  to understand   what   Government  meant  by   the   expression ’Initiating   action’.    The  character   and   antecedents verification,  if any, should have been got done as soon  as the recommendation of the Selection Board was received.   No material  has been placed on record and none was brought  to our notice during the course of arguments to show as to  why the Central Government could not initiate action as soon  as the  vacancy was made available.  Needless to say  that  the recommendation  of the Selection Board headed by  a  sitting Judge  of  this Court was gathering dust in records  of  the concerned Ministry since January 25, 1988.  We take  serious view of the matter and we direct that any recommendation  of a Selection Board which is headed by a sitting Judge of this Court  must be given prompt and immediate  attention.   Once there is a recommendation by such a Selection Board, nothing should  intervene  between the recommendation and  the  con- sideration  by the appointments Committee of Cabinet  (ACC). The  Minister/Secretary in the Administrative Department  is under  a legal obligation and is duty bound to  process  the recommendation  of  the Selection Board by giving it  a  top priority an place the same before the ACC within  reasonable time.   In the present case though the action was stated  to be  initiated of February 28, 1989 the reference to  the  AC was made on May 1, 1989.  We direct that the recommendations of the Selection 421 Board headed by a sitting Judge of this Court must be placed before  the  ACC  expeditiously and  preferably  within  two months from the date of recommendation. 7.It  is stated by the Central Government that the offer  of appointment was sent to Mr. Murgod on January 30, 1990.   He did  not  join till May 4, 1990 and as  a  consequence,  the offer  was cancelled.  Thereafter no further offer was  made to any other candidate and the matter was closed. 8.  Apart from the appellant, Mr. S.P. Singh Chaudhary,  who was at No. 2 in the select-panel also sought similar  relief from  the Central Administrative Tribunal.  His  application having  been  dismissed, he filed Civil Appeal No.  5156  of 1993  in this Court.  Sri S.P. Singh Chaudhary was a  member of  the Delhi Judicial Service and was posted as  Additional District  and Sessions Judge at the relevant time.   At  the hearing of the appeal, we were informed that Sri S.P.  Singh Chaudhary   sought  voluntary  premature   retirement   from judicial service, which was granted by the Delhi High Court. He  later on withdrew his appeal, which was disposed  of  as such by this Court on November 15, 1994. 9.At  this stage, we may refer to Rule 4 of the Rules  which is reproduced hereunder:               "4. Method of Recruitment:-               (1)   There  shall be a Selection  Board  con-               sisting of -               (i)   a nominee of the Minister of Law;               (ii)  The Secretary to the Government of India               Ministry of Law (Department of Legal Affairs);               (iii) The President of the Tribunal; and               (iv)Such other persons, if any, not  exceeding               two, as the Minister of Law may appoint-               (2)   The nominee of the Minister of Law shall               be the Chairman of the Selection Board.               (3)   The  Selection  Board  shall   recommend

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             persons   for  appointment  as  members   from               amongst the persons on the list of  candidates               prepared by the Ministry of Law after inviting               applications therefore by advertisement or  on               the   recommendations   of   the   appropriate               authorities.               (4)   The   Central  Government  shall   after               taking into consideration the  recommendations               of the Selection Board make a list of  persons               selected for appointment as members.  " 10.As mentioned above, a sitting Judge of this Court being a nominee  of the Minister of Law was the Chairman of the  Se- lection Board. 11.The  Tribunal dismissed the application by  the  impugned judgment on the following reasoning:               (a)  The selection-panel was merely a list  of               person     found suitable and does not  clothe               the   applications    with   any   right    of               appointment.      The recommendations  of  the               Selection  Board   were  directory   and   not               therefore  enforceable by issue of a  writ  of               mandamus by the Court.               (b)   The  letter of Ministry of Home  Affairs               dated February 8, 1982 which extends the  life               of panel till exhausted is not relevant in the               present case.  In,, the circumstances the life               of the panel in this case cannot go beyond  18               months and as               422               such expired in July, 1989. 12.  It is no doubt correct that a person on the  select- panel  has no vested right to be appointed to the  post  for which he has been selected.  He has a right to be considered for  appointment.   But  at the same  time,  the  appointing authority cannot ignore the select-panel or decline to  make the  appointment  on  its whims.  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, then,  ordinarily, there is no justification to  ignore  him for  appointment.  There has to be a justifiable  reason  to decline to appoint a person who is on the select-panel.   In the present case, there has been a mere inaction on the part of  the Government.  No reason whatsoever, not to talk of  a justifiable  reason,  was given as to why  the  appointments were  not  offered to the candidates  expeditiously  and  in accordance  with  law.   The appointment  should  have  been offered   to  Mr.  Murgod  within  a  reasonable   time   of availability  of  the  vacancy and thereafter  to  the  next candidate.   The Central Government’s approach in this  case was wholly unjustified. 13.  On  the facts of this case, it is not necessary for  us to   go  into  the  question  o  applicability  of   various instructions relied upon by the Tribunal.  Even if there are any  instructions  which provide that a  select-panel  shall remain operative for one and a half year, the said period in our vie is sufficient for the Central Government to  exhaust the select-panel of the type with which we are concerned  in this  case.  We have already indicated the  time-bound  pro- cedure  to be followed in dealing with the  select-panel  of this type. 14.  Sri Murgod who was at No. 1 of the select-panel did not accept  the  appointment.   Sri  S.P.  Singh  Chaudhary  has already  withdrawn his appeal and he is out of run.  We  arc not sure about the stand of the person who is at No.3 of the select-panel.   Under  the  circumstances it  would  not  be

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appropriate to issue any direction at this point of time  in favour of the appellant who is at No.4 of the select-panel. 15.  While  reversing  the  findings given  by  the  Central Administrative  Tribunal, to the extent indicated above,  we dismiss this appeal.  In the circumstances of this case,  we direct  the respondent, Central Government, to pay  cost  of these proceedings to the appellant, which we quantify as Rs. 30,000/- 424