R.S. Mittal
Vs. Union of India [1995] INSC 195 (27 March 1995)
Kuldip
Singh (J) Kuldip Singh (J) Hansaria B.L. (J) Kuldip Singh, J.:
CITATION:
1995 SCC Supl. (2) 230 JT 1995 (3) 417 1995 SCALE (2)433
ACT:
HEAD NOTE:
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 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 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 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 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/-
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