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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

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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

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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

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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

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‘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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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)

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………………………..J.                                                                         (A. K. Patnaik) New Delhi, November 17, 2011.