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SERVICE MATTER = As has been held by this Court in Director, SCTI for Medical Science & Technology and Another v. M. Pushkaran (supra) each case must be considered on its own merits and where the Court does not find any reason for the authorities not to offer any appointment to the candidate placed in the selection panel the Court can direct appointment. In the facts of the present case, the Madras High Court did not see any justification on the part of the Central Government in not giving effect to the select panel when there was a very large pendency of cases in the Income Tax Appellate Tribunal resulting in hardship to the litigant public as well as loss to the exchequer, but after the Appointments Committee approved appointments of 16 selected candidates found suitable for appointment as members of the Income Tax

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1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6567-6569 OF 2010

Union of India & Anr. … Appellants
Versus
Pradip Kumar Kedia Etc. …

Respondents

J U D G M E N T
A. K. PATNAIK, J.
These are the appeals against the common judgment
dated 20.03.2009 of the Delhi High Court in Writ Petition
(Civil) Nos. 7526 of 2008, 7521 of 2008 and 7523 of 2008 (for
short `the impugned judgment’).
2. The facts very briefly are that the Government of India,
Ministry of Law and Justice, Department of Legal Affairs, by
advertisement dated 22.01.2005 invited applications for 9
vacancies in the post of Judicial Member and 13 vacancies in
the post of Accountant Member in the Income Tax Appellate
Tribunal. The advertisement, however, stated that the number
of vacancies indicated in the advertisement was only
2
approximate and was liable to increase or decrease due to
unexpected circumstances that may occur upto 31.12.2005.
On 07.09.2005, one more vacancy arose in the post of
Accountant Member of the Income Tax Appellate Tribunal and
this took the total number of vacancies in the post of
Accountant Member to 14. Against the 9 vacancies in the post
of Judicial Member and 14 vacancies in the post of Accountant
Member, the Selection Board in its recommendations placed
18 candidates in the main select list, 7 candidates for the post
of Judicial Member and 11 candidates for the post of
Accountant Member. The Selection Board in its
recommendations also placed 2 candidates, namely, Nandan
Kumar Jha and B. Krishna Mohan in the wait list for the post
of Judicial Member and 2 candidates, namely, P.K. Kedia and
Inturi Rama Rao in the wait list for the post of Accountant
Member. Out of the 18 selected candidates, 2 candidates
selected for the post of Accountant Member were not cleared
by the Vigilance Department and the list of 16 remaining
candidates was placed before the Appointments Committee of
the Union Cabinet on 26.04.2006. The Appointments
Committee approved the appointment of all the 16 candidates
but directed the Law Ministry to amend the recruitment rules
so as to provide for appointment of the members of the Income
3
Tax Appellate Tribunal for a period of two years.
3. In 2007, the Revenue Bar Association filed Writ
Petition No. 8288 of 2007 in the Madras High Court for a
mandamus to give effect to the selection list with regard to the
posts of Judicial and Accountant Members in the Income Tax
Appellate Tribunal pursuant to the advertisement dated
22.01.2005 and by order dated 24.04.2007 the Madras High
Court disposed of the Writ Petition with a direction to the
appellants to place the matter before the Appointments
Committee and with a further direction to give effect to the
Selection List as approved by the Selection Board in the light
of the decisions in R.S. Mittal v. Union of India [1995 Supp. (2)
SCC 230] and A.P. Aggarwal v. Govt. of NCT of Delhi and
Another, [(2000) 1 SCC 600]. The order of the Madras High
Court was challenged by the Union of India before this Court
in a Special Leave Petition, but on 17.08.2007 this Court
dismissed the Special Leave Petition and directed the Union of
India to complete the formalities and to give effect to the
Selection List. The Appointments Committee thereafter
approved the names of all the 16 selected candidates and
appointed them till the date of retirement on attaining the age
of 62 years or until further orders in its decision taken on
31.08.2007. In the decision taken on 31.08.2007, the
4
Appointments Committee also decided that the appointment of
members of the Income Tax Appellate Tribunal in future will
be taken up only after the recruitment rules of Income Tax
Appellate Tribunal are amended. In accordance with the
decision of the Appointments Committee, the Law Ministry of
the Union of India, issued orders for appointment to all the 16
candidates approved by the Appointments Committee.
4. In 2008, B. Krishna Mohan, who was placed in the
wait list of candidates for the post of Judicial Member and
Inturi Rama Rao, who was placed in the wait list of candidates
for the post of Accountant Member, filed two separate Original
Applications in the Hyderabad Bench of the Central
Administrative Tribunal and P.K. Kedia, who was placed in the
wait list of candidates for the post of Accountant Member, filed
Original Application in the Mumbai Bench of the Central
Administrative Tribunal and in all the three Original
Applications, the applicants prayed for directions for their
appointment. The Union of India filed its reply affidavit before
the Central Administrative Tribunal saying that the
Appointments Committee has decided that no further
appointment of members in the Income Tax Appellate Tribunal
will be made until the Income-tax Appellate Tribunal
(Recruitment and Conditions of Service) Rules 1963 ( for short
5
`the Rules’) are amended. The three Original Applications were
transferred to the Principal Bench of the Central
Administrative Tribunal and on 31.07.2008, the Principal
Bench passed a common order allowing the three Original
Applications and directing the Union of India to consider the
three wait-listed candidates for filling up the advertised
vacancies existing in the posts of Judicial Member and
Accountant Member in the unreserved category within eight
weeks.
5. The Union of India challenged the common order of
the Principal Bench of the Central Administrative Tribunal
before the Delhi High Court contending that the vacancies in
the post of Judicial Member and Accountant Member can be
filled up only after the recruitment rules of the Income Tax
Appellate Tribunal are amended as decided by the
Appointments Committee. In the impugned judgment, the
High Court held that the recruitment rules of the Income Tax
Appellate Tribunal had already been amended and an
amendment had been inserted in Rule 4(a) of the recruitment
rules, but there was nothing in the amendment which
disqualifies any of the three wait-listed candidates from being
appointed as members of the Income Tax Appellate Tribunal.
In the impugned judgment, the Delhi High Court further held
6
that the selection had been conducted by a high-power
Selection Board presided over by a sitting Judge of the
Supreme Court and no one can doubt the recommendation of
the Selection Board which deserved to be given due weightage
and consideration. In the impugned judgment, the High Court
further held that the only way of reducing the backlog is to fill
up the vacancies at the earliest and by not doing so, the Union
of India was merely prolonging the agony of a large number of
assesses apart from depriving itself of its legitimate dues which
depends upon the verdict of the Income Tax Appellate Tribunal
in appeals pending before it. The High Court, therefore, did
not accept the explanation given by the Union of India in not
making appointments and dismissed the writ petition and
further directed the Union of India to process the case for the
appointment of the 3 wait-listed candidates against the
respective vacancies and thereafter place the matter before the
Appointments Committee of the Cabinet for further directions
within the period of eight weeks.
6. Mr. A.S. Chandhiok, learned counsel for the appellants
submitted that it is settled law that the person whose name
appears in the select list much less a person who is placed in
the wait list, does not acquire any indefeasible right of
appointment. In support of this submission, he relied on the
7
decisions of this Court in Shankarsan Dash v. Union of India
[(1991) 3 SCC 47], Asha Kaul (Mrs.) and Another v. State of
Jammu and Kashmir and Others [(1993) 2 SCC 573] and
Sanjoy Bhattacharjee v. Union of India and Others [(1997) 4
SCC 283]. He submitted that in the present case, the
Selection Board selected 18 candidates out of whom 2 did not
get the vigilance clearance and all the remaining 16 selected
candidates were approved for appointment by the
Appointments Committee of the Union Cabinet but the
Appointments Committee decided not to make any further
appointment till the amendment of the Rules. He submitted
that out of these 16 selected candidates, one candidate
selected for the post of Judicial Member declined to accept the
offer of appointment and another candidate though appointed
as Judicial Member resigned and as a result there were some
unexpected vacancies and in these unexpected vacancies B.
Krishna Mohan who was placed in the wait list of the
candidates recommended for appointment as Judicial Member
could not be appointed because of the decision of the
Appointments Committee not to make any further
appointment until the amendment of the Rules. He submitted
that similarly there were 5 vacancies of Accountant Members
in the general quota and 5 candidates were selected but one
8
selected candidate declined and another selected candidate did
not get vigilance clearance and Inturi Rama Rao and P.K.
Kedia, who were placed in the wait list could not be appointed
as the Appointments Committee had taken a view that there
will be no further appointments till the rules are amended.
7. Mr. Chandhiok submitted that the High Court has
held that there was nothing in the amendment inserting Rule
4(a) in the Rules which disqualifies any of the aforesaid 3 wait-
listed candidates, namely, B. Krishna Mohan, Inturi Rama Rao
and P.K. Kedia from being appointed as the members of the
Income Tax Appellate Tribunal and hence the amendment of
the Rules was not relevant for denying appointment to the 3
wait-listed candidates as members of the Income Tax Appellate
Tribunal. He submitted that Rule 4(a) was already in existence
when the Selection Board made its recommendations in 2005
and the Appointments Committee in its decisions was
therefore did not have in mind Rule 4(a) of the Rules when it
decided on 31.08.2007 that all further appointments will be
made only after amendment of the rules. In this context, he
referred to Para 6 of the reply filed by the Union of India before
the Central Administrative Tribunal, Principal Bench, New
Delhi in O.A. No. 1024 of 2008 filed by P.K. Kedia. He
submitted that the High Court, therefore, wrongly considered
9
the amendment inserting Rule 4(a) of the Rules and rejected
the explanation given by the Appointments Committee in not
making appointment.
8. Mr. Vijay Hansaria, appearing for B. Krishna Mohan,
submitted that the recommendations of the Selection Board
would show that the wait-listed candidates who were to be
considered for appointment in case any of the candidates
included in the main list of selected candidates were not
available or found unsuitable for appointment after
antecedents verification and therefore if some of the
candidates placed in the main list of selected candidates were
either not available or not found suitable for appointment after
antecedents verification, the wait-listed candidates have the
right to be considered for appointment. He submitted that the
advertisement was for filling up not only existing vacancies but
also vacancies that may occur upto 31.12.2005 as has been
stated in Para 2 of the advertisement. He submitted that well
before 31.12.2005, 2 vacancies in the post of Judicial
Members occurred and B. Krishna Mohan was entitled to be
considered for appointment to the post of Judicial Member of
the Income Tax Appellate Tribunal. He submitted that the
Madras High Court issued mandamus in Writ Petition No.
8288 of 2007 to the appellants to place the matter before the
10
Appointments Committee of the Union Cabinet and also
directed to give effect to the selection list as approved by the
selection board. He submitted that the selection list approved
by the selection board would include not only the candidates
placed in the main selection list, but also the candidates in the
wait list.
9. Mr. Hansaria submitted that in R.S. Mittal v. Union of
India (supra) this Court while interpreting Rule 4 of the Rules
has held that when a person has been selected by the
Selection Board and there is a vacancy which could be offered
to him, keeping in view his merit position, then, ordinarily
there is no justification to ignore him for appointment. He also
relied on the decision in A.P. Aggarwal v. Govt. of NCT of Delhi
and Another (supra) in which this Court has reiterated that it
is not open to the Government to ignore the panel which has
already been approved and accepted by it and resort to a fresh
selection process without giving any proper reason for
resorting to the same. He cited Director, SCTI for Medical
Science & Technology and Another v. M. Pushkaran [(2008) 1
SCC 448] in which this Court has held that the selectee has no
such legal right and the superior court in exercise of its power
of judicial review would not ordinarily direct issuance of any
writ, but each case must be considered on its own merits and
11
where the Court does not find any reason for the authorities
not to offer any appointment to candidate placed in the
selection panel, the Court can direct appointment. He
submitted that in the present case, since no good reason had
been shown by the appellants for not making appointment to
the vacancies for the post of Judicial Members in the Income
Tax Appellant Tribunal, the High Court rightly directed the
appellants to make the appointment of B. Krishna Mohan as a
Judicial Member.
10. Mr. A.K. Behera, appearing for P.K. Kedia submitted
that as two of the selected candidates recommended for
Accountant Member by the selection board were not appointed
to the vacancies in the unreserved quota already advertised,
P.K. Kedia, who was placed in the wait list of candidates
selected for appointment to the post of Accountant Member
has a vested right to be considered for appointment as has
been held by this Court in R.S. Mittal v. Union of India (supra).
He also relied on A.P. Aggarwal v. Govt. of NCT of Delhi and
Another and Director, SCTI for Medical Science & Technology
and Another v. M. Pushkaran (supra).
11. Mr. Behera next submitted that the Madras High
Court in its order dated 24.04.2007 directed the appellants to
give effect to the selection list as approved by the Selection
12
Board and against this order of the Madras High Court the
appellants filed Special Leave Petition (Civil) No. 13681 of
2007, but on 17.08.2007 this Court dismissed the Special
Leave Petition and directed the appellants to give effect to the
selection list as approved by the Selection Board within eight
weeks. He submitted that the grounds which were urged in
Special Leave Petition No. 13681 of 2007 have been reiterated
in the present Special Leave Petition and this was not
permissible in law. He argued that this is therefore a fit case
in which this Court should dismiss the Civil Appeal.
12. Mr. V. Kanakraj, learned counsel appearing for Inturi
Rama Rao, submitted that the rules do not prohibit
preparation of a wait list. He submitted that the
recommendation of the Selection Board would show that some
of the candidates were placed in the wait list because the
Selection Board did not want to recommend candidates in the
main select list in excess of the notified vacancies. He
submitted that the candidates placed in the wait list therefore
also had merit and deserve to be appointed. He finally
submitted that the candidates placed in the wait list had a
legitimate expectation of being considered for appointment to
the vacancies as and when they arose.
13. Selection and recruitment of members of the Income
13
Tax Appellate Tribunal, both Judicial and Accountant, is made
under Rule 4 of the Rules which is quoted hereinbelow:

“4. Method of Recruitment:-
(1) There shall be a Selection Board consisting 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. “
14. Rule 4 of the Rules quoted above was considered by
this Court in R.S. Mittal v. Union of India (supra) and this
Court held that a person on the select panel has no vested
right to be appointed to the post for which he has been
selected, but he has a right to be considered for appointment.
This Court also held in the aforesaid decision that the
14
appointing authority cannot ignore the select-panel or decline
to make the appointment on its whims and when 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. In the aforesaid decision, this Court has
held that there has to be a justifiable reason to decline to
appoint a person who is on the select-panel. The question of
filling up the post of Member in Sales Tax Appellate Tribunal
constituted under the Delhi Sales Tax Act, 1975 arose for
consideration in A.P. Aggarwal v. Govt. of NCT of Delhi and
Another (supra) and this Court observed that it was not open
to the Government to ignore the panel which has already been
approved and accepted by it and resort to a fresh election
process without giving any proper reason for resorting to the
same.
15. The Madras High Court has disposed of writ petition
No. 8288 of 2007 on 24.04.2007 with a direction to the
appellants to place the matter before the Appointments
Committee and further directed to give effect to the selection
list as approved by the Selection Board in the light of the
decision in R.S. Mittal v. Union of India (supra) and A.P.
Aggarwal v. Govt. of NCT of Delhi and Another (supra). Against
these directions of the Madras High Court, though the
15
appellants carried a special leave petition, this Court
dismissed the special leave petition on 17.08.2007 and
directed the Union of India to complete the formalities and give
effect to the selection list. Hence, we are required to consider
whether the selection list has been given effect to by the
appellants in the light of the decisions of this Court in R.S.
Mittal v. Union of India (supra) and A.P. Aggarwal v. Govt. of
NCT of Delhi and Another (supra).
16. So far as the candidates placed in the main select list,
there is no dispute that out of the 18 candidates placed in the
main select list, 2 were found unsuitable and the remaining 16
were found suitable and all the 16 candidates found suitable
were approved for appointment by the Appointments
Committee of the Union Cabinet in its decisions dated
26.04.2006 and 31.08.2007. The difference between the
decisions of the Appointments Committee of the Union Cabinet
taken on 26.04.2006 and 31.08.2007 was that on 26.04.2006
the Appointments Committee approved the appointment of 16
candidates found suitable for a period of 2 years and further
decided that the rules be amended for making such
appointment for a period of 2 years, whereas on 31.08.2007
after the Supreme Court dismissed the Special Leave Petition
against the order of the Madras High Court, the Appointments
16
Committee approved the appointment of the 16 candidates for
a full tenure upto 62 years as provided under Rule 11 of the
Rules. Hence, the main list of the selected candidates
recommended by the Selection Board has been given effect to
in accordance with the directions of the Madras High Court as
upheld by this Court.
17. The wait list of candidates recommended by the
Selection Board, however, has not been given effect to. Under
sub-rule (3) of Rule 4 of the Rules quoted above, the Central
Government after taking into consideration the
recommendations of the Selection Board make a list of persons
selected for appointment as members. Thus, until the
Appointments Committee approved the list of wait-listed
candidates, such wait-listed candidates are not persons
selected for appointment. Appointments Committee in its
meetings held on 26.04.2006 and 31.08.2007 had taken a
view that any further appointment after the 16 selected
candidates can be made after the amendment of the Rules.
The Central Government is both the rule making authority as
well as the appointing authority of any member of the Income
Tax Appellate Tribunal under the Income Tax Act, 1961.
Hence, if the Central Government has taken a decision
through the Appointments Committee of the Union Cabinet to
17
undertake appointments in future after amendment of the
rules, it is difficult for the Court to hold that the reason given
by the Central Government in not making any further
appointments because of the proposed amendments to the
rules was not a justifiable or proper reason and that the
decision of the Central Government in not approving the wait
list of candidates recommended by the Selection Board is not
in accordance of this Court’s decisions in R.S. Mittal v. Union
of India (supra) and A.P. Aggarwal v. Govt. of NCT of Delhi and
Another (supra).
18. The High Court, however, has held that the
amendment inserting Rule 4(a) of the Rules did not in any way
disqualify the three candidates placed in the wait list to be
appointed as Members of the Income Tax Appellate Tribunal.
The High Court lost sight of the fact that Rule 4(a) had already
been inserted in the Rules by notification dated 26.04.2004
and therefore this could not be the amendment which was in
the mind of the Appointments Committee when it took the
decisions on 26.04.2006 and 31.08.2007 to make further
appointments only after the Rules were amended. Para 6 of
the short reply on behalf of the Union of India filed before the
Central Administrative Tribunal, Principal Bench, New Delhi in
O.A. No. 1024 of 2008 has made a reference to the proposed
18
amendment discussed in the meeting of the Appointments
Committee and is quoted hereinbelow:
“Para 6 – The ACC approved appointment of 16

candidates for a period of not exceeding 02 years

from the date of assumption of charge of the post or

until further orders and also it directed the

respondent No.1 for amendment of the Recruitment

rules. Since the existing recruitment rules do not

have provision of appointment of members for a

period of two years except in the case of

appointment to the temporary benches, the matter

was under correspondence between the respondent

and the ACC.”
19. As has been held by this Court in Director, SCTI for
Medical Science & Technology and Another v. M. Pushkaran
(supra) each case must be considered on its own merits and
where the Court does not find any reason for the authorities
not to offer any appointment to the candidate placed in the
selection panel the Court can direct appointment. In the facts
of the present case, the Madras High Court did not see any
justification on the part of the Central Government in not
giving effect to the select panel when there was a very large
pendency of cases in the Income Tax Appellate Tribunal
resulting in hardship to the litigant public as well as loss to
the exchequer, but after the Appointments Committee
approved appointments of 16 selected candidates found
suitable for appointment as members of the Income Tax
19
Appellate Tribunal, the immediate need for filling up the
vacancies was met and if the Appointments Committee has
taken a view that any further appointments will be considered
only after the rules are amended, the Court should not compel
the Central Government to make the appointments from the
wait-listed candidates recommended by the Selection Board by
a writ of mandamus. In our considered opinion, the
circumstances in which this Court dismissed the Special
Leave Petition against the order of the Madras High Court no
longer subsisted after the Appointments Committee approved
the appointment of the 16 selected candidates so as to warrant
a direction by the Delhi High Court to the Central Government
to appoint the 3 wait-listed candidates as members of the
Income Tax Appellate Tribunal.
20. We accordingly set aside the impugned judgment of
the Delhi High Court and the common judgment of the Central
Administrative Tribunal, Principal Bench, in O.A. Nos. 1024 of
2008, 1036 of 2008 and 1037 of 2008 and dismiss the
Original Applications. The appeals are allowed, but there shall
be no order as to costs.
………………………..J.

(P. Sathasivam)
20
………………………..J.

(A. K. Patnaik)

New Delhi,

November 17, 2011.

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