9911796707
TMI Blog1999 (11) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... intment 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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