Case Note & Summary
The matter arose from a special leave appeal against the judgment of the Central Administrative Tribunal dated October 11, 1991, by which the Tribunal dismissed the appellant's Original Application seeking a direction to the Union of India to appoint him as Judicial Member, Income-tax Appellate Tribunal on the basis of a select panel prepared in 1988. The appellant, an advocate enrolled at the Delhi Bar in 1971, had applied in response to a September 1987 advertisement for three posts of Judicial Members, one reserved for a Scheduled Tribe candidate and two for general category. The Selection Board, constituted under Rule 4 of the Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963 and headed by a sitting Judge of the Supreme Court, interviewed candidates on January 12, 1988 and sent its recommendations to the Central Government on January 25, 1988. The appellant was at serial No. 4 of the panel. The Central Government did not make any appointment from the panel and issued a fresh advertisement on February 22, 1990, prompting the appellant to seek legal remedy. The Central Government's counter affidavit stated that the three vacancies anticipated during 1988-89 were to arise on the retirement of T. V. Venkatappa on February 21, 1988, H.S. Ahluvalia on September 27, 1988 and F.C. Rustagi on October 17, 1988. However, the two general category vacancies did not materialise because the retirement age of members of the Tribunal was raised from 60 to 62 years with effect from September 8, 1988. Nevertheless, two unanticipated vacancies became available: one on August 14, 1988 when K.L. Thanikachalam was elevated to the High Court and another on June 5, 1989 when A.K. Das reverted to his parent cadre. The Government contended that one of these two vacancies had to be kept reserved for P.J. Menon, an officer on deputation abroad who had a lien in the Tribunal and did not resume duties. The offer of appointment was sent to the first panelist Mr. Murgod only on January 30, 1990, but he did not join and the offer was cancelled; no further offers were made. The second panelist, S.P. Singh Chaudhary, had filed a separate appeal but later withdrew it after taking voluntary retirement. The legal issues concerned whether a select panel candidate has a vested right to appointment, whether the Central Government was duty bound to fill available vacancies from the panel and to process the Selection Board's recommendations expeditiously, whether the panel had lapsed due to the passage of eighteen months under executive instructions, and whether the appellant, being at serial No. 4, could be granted relief. The appellant contended that he was duly selected and that two vacancies had arisen which should have been offered to candidates according to their panel position. The Central Government argued that the anticipated vacancies had been altered by the change in retirement age, that the P.J. Menon lien required reservation of one vacancy, that the panel had lapsed, and that no candidate on the panel had a legal right to appointment. The Supreme Court held that a person on a select panel has no vested right to be appointed but has a right to be considered for appointment. The appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected and there is a vacancy which can be offered keeping in view his merit position, ordinarily there is no justification to ignore him for appointment; there must be a justifiable reason to decline. The Court rejected the Government's lien argument, observing that all appointments to the post of Judicial Member, Income-tax Appellate Tribunal are made against existing vacancies and P.J. Menon's lien, if any, could only be kept against the post he initially held. Thus, two clear vacancies existed on August 14, 1988 and June 5, 1989, which could have been offered to the panel candidates. The Court also strongly deprecated the delay in processing the recommendations, noting that the recommendation made on January 25, 1988 was gathering dust; action was initiated only on February 28, 1989 and the matter was referred to the Appointments Committee of Cabinet on May 1, 1989. It directed that recommendations of a Selection Board headed by a sitting Judge of the Supreme Court must be placed before the ACC expeditiously and preferably within two months. The Court did not find it necessary to decide the applicability of the eighteen-month life instruction, observing that even if such a period applied, it was sufficient time for the Government to exhaust the panel. On the question of relief, the Court noted that the first-ranked candidate did not accept the appointment, the second-ranked candidate had withdrawn his appeal and was out of the running, and the stand of the third-ranked candidate was not clear. Therefore, it was not appropriate to issue any direction in favour of the appellant at serial No. 4. The Supreme Court reversed the findings of the Central Administrative Tribunal to the extent indicated, dismissed the appeal, and directed the Central Government to pay costs of Rs. 30,000 to the appellant.
Headnote
A) Service Law - Selection Panel and Right to Appointment - No Vested Right but Right to Consideration - Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963, Rule 4 - The Central Administrative Tribunal held that a selection panel was merely a list of suitable persons and did not confer a vested right; the Supreme Court partially agreed that no vested right existed, but held that a select panel candidate has a right to be considered and the appointing authority cannot ignore the panel whimsically when a vacancy is available, and mere inaction without justifiable reason is unlawful - Held that the Central Government's approach was wholly unjustified (Paras 11-12). B) Administrative Law - Duty to Process Selection Board Recommendations - Prompt Consideration by Appointments Committee of Cabinet - Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963, Rule 4 - The Selection Board headed by a sitting Judge of the Supreme Court made recommendations on January 25, 1988, but the Central Government took until February 28, 1989 to initiate action and referred the matter to ACC only on May 1, 1989; the Supreme Court directed that recommendations of such a Selection Board must be placed before the ACC expeditiously and preferably within two months, treating any delay as a serious lapse - Held that the recommendation was gathering dust and no material justified the delay (Para 6). C) Service Law - Vacancy Determination and Lien - Treatment of Available Vacancies - Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963, Rule 4 - The Central Government claimed one of two vacancies that arose in 1988-89 had to be reserved for an officer on deputation abroad with a lien; the Supreme Court rejected this because all appointments are against existing vacancies and a lien can only be kept against the post initially held; therefore two clear vacancies existed on August 14, 1988 and June 5, 1989 which could have been offered to panel candidates - Held that the Central Government could not reserve the vacancy and thereby deny available posts to select panel candidates (Paras 4-5). D) Service Law - Life of Select Panel - Applicability of Executive Instructions - Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963, Rule 4 - The Tribunal relied on instructions providing an 18-month life for select panels and held the panel lapsed in July 1989; the Supreme Court did not decide the applicability of those instructions but observed that even if such a period applied, it was sufficient time for the Central Government to exhaust the panel and follow a time-bound procedure - Held that the Tribunal's reliance on the panel's expiry did not justify the Government's inaction (Para 13). E) Service Law - Relief to Candidate Lower on Panel - Exercise of Discretion - Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules, 1963, Rule 4 - The Supreme Court declined to direct appointment of the appellant, who was at serial No. 4, because the first-ranked candidate did not accept the offer, the second-ranked candidate withdrew his appeal and was out of the running, and the Court was not sure about the stand of the third-ranked candidate; in these circumstances no direction could be issued in favour of the appellant - Held that appeal was dismissed while reversing the Tribunal's adverse findings (Paras 14-15).
Issue of Consideration
Whether a person on a select panel for appointment as Judicial Member, Income-tax Appellate Tribunal has a vested right to be appointed; whether the Central Government was obliged to fill available vacancies from the panel and process the Selection Board's recommendations promptly; and whether the appellant, at serial No. 4 of the panel, could be granted a direction for appointment.
Final Decision
The Supreme Court reversed the findings of the Central Administrative Tribunal to the extent indicated, dismissed the appeal, and directed the Central Government to pay costs of Rs. 30,000 to the appellant. No direction was issued for appointment of the appellant because he was at serial No. 4 and the stand of the third-ranked candidate was unclear while the first-ranked candidate had not accepted the offer and the second-ranked candidate had withdrawn his appeal.
Law Points
- A person on select panel has no vested right but right to be considered
- Appointing authority cannot ignore select panel whimsically when vacancy available
- Recommendation of Selection Board headed by sitting Judge of Supreme Court must be placed before ACC within two months
- Government cannot reserve vacancy for officer with lien against post not initially held
- Mere inaction in offering appointment to select panel candidates is unjustified
