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TMI Blog2011 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2011 - P. Sathasivam AND A.K. Patnaik, JJ. JUDGMENT 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 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 lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 'the Rules') are amended. The three Original Applications were transferred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 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 justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras High Court, though the 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment 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 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 authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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