Full Judgment Text
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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,
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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
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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
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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.
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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
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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.