Holding

The Court held that the Office Memorandum, read with Section 13(4), imposes a mandatory duty to fill the vacancy from the approved panel, making the government's fresh selection process arbitrary and unconstitutional, and directed the appellant's appointment.

Summary

The appellant, A.P. Aggarwal, was the second name on a selection panel for the post of Member, Sales‑Tax Appellate Tribunal. After the first appointee resigned within six months, the Central Government, contrary to Office Memorandum No. 39021118/84 dated 14‑May‑1987 and Section 13(4) of the Delhi Sales‑Tax Act, 1975, issued a fresh advertisement and conducted a new selection process, ignoring the panel. The appellant challenged this before the Central Administrative Tribunal and the Delhi High Court, both of which dismissed his claim. The Supreme Court held that the memorandum, read with the statutory provision, imposed a mandatory duty to fill the vacancy promptly using the reserve list, and that the government's fresh selection was arbitrary and violative of Article 14. Consequently, the Court quashed the fresh selection and directed the government to appoint the appellant as Member of the Tribunal. The appeal was allowed.

Issues considered

The Office Memorandum dated 14‑May‑1987 is mandatory or merely directory.
Whether Section 13(4) of the Delhi Sales‑Tax Act, 1975 creates a mandatory duty to fill a vacancy promptly.
Whether the government's decision to re‑advertise and conduct a fresh selection process is arbitrary and violative of Article 14.
Whether the appellant has a vested right to be appointed from the selection panel.

Legislation cited

Constitution of Indias. Article 14
Delhi Sales Tax Act, 1975s. 13(4)

Subjects

Service lawAppointmentVacancy fillingArbitrarinessArticle 14Delhi Sales‑Tax ActOffice MemorandumSelection processPublic duty

Judgment

A.P. AGGRAWAL A
v.
GOVT. OF NATIONAL CAPITAL TERRITORY OF
DELHI AND ANR.

NOVEMBER I 6, 1999
B
[DR. A.S. ANAND, C.J., M. SRINIVASAN AND R.C. LAHOTI, JJ.]

Service Law:

Office Memorandum No. 39021118184-Estt. (B) dated 14-5-1987, Govt. of C
India, Ministry of Personnel. P.G. and Pensions (Department of Personnel
and Training)-Vacancy arising for the post of Member Sales-tax Appellate
Tribunal, due to resignation of the selected member within 6 months ofjoining
the post-Appellant was the only other member recommended earlier by the
Selection Committee in the panel oftwo names for consideration ofappointment D
by the Central Government-Hence appellant claiming appointment to the said
post-Central Government, instead, initiating a fresh process of selection--
Application before the Central Admininstrative Tribunal and subsequent writ
petition before the High Court, dismissed-On qppeal-Held, initiation of
fresh process of selection is not valid and rejection of appellant's name
without any reason is arbitrary and unconstitutional-A combined reading E
of Section 13(4) of the Act and Office Memorandum dated 14-5-1987 shows
that a public duty is cast on the concerned authorities to fill up the vacancy
within as short time as possible provided the conditions set out in the
Memorandum are present-It was not open to the govt. to ignore the panel
which was already approved and accepted by it and resort to a fresh selection
process without giving any proper reason for resorting to the same-Even F
if it is to be said that the instructions contained in the Office Memorandum
are discretionary, such discretion is not to be exercised in an arbitrary
manner-Appellant directed to be appointed as Member, Sales-tax Appellate
Tribunal-Constitution ofIndia, 1950-Article 14-Arbitrariness-Delhi Sales
Tax Act, 1975-S.13(4). G
Applications were invited for appointment to the post of Member, Sales-
tax Appellate Tribunal. The Selection Committee constituted for the purpose
recommended a panel of two names for consideration for appointment by the
Central Government. The panel consisted of one Mand the appellant M was
. H
443
444 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R

A appointed to the said post but soon thereafter he resigned. ~

The appellant made numerous representations to the concerned
authorities for appointing him as Member, Sales-tax Appellate Tribunal but
to no avail. The Central Government caused a fresh advertisement to be issued
calling for fresh applications and proceeded to process the applications received
B pursuant thereto. The appellant filed an application before the Central
Administrative Tribunal for quashing the fresh advertisement and the process
of selection pursuant thereto and for a direction to appoint him as Member,
Sales-tax Appellate Tribunal. The appellant relied upon Office Memorandum
No. 39021118/84-Estt. (B) dated14-5-1987 issued by the Central Government
c which stipulated that reserve lists may be operated in certain cases where a
vacancy is created by a candidate resigning the post or in the event of his
death, within a period of six months from the date of his joining the post The
said application was dismissed by the Tribunal. Writ petition filed in the High
Court was also dismissed. Hence the present appeal.

D On behalf of the appellant, it was contended that the instructions
contained in the office memorandum dated 14-5-1987 were mandatory and the
vacancy in the post having occurred within a period of six months from the
date of joining of the selected candidate, it should be filled up by appointing
the appellant.

E On the other hand, on behalf of the respondents it was contended that
the said instructions were only directory and there was absolutely no necessity
for the Govt. to strictly comply with the same.

Allowing the appeal, the Court

F HELD: I.I. On the facts, all the conditions set out in the Office
Memorandum issued by the Central Govt. dated 14-5-1987 are fulfilled in the
present caseand the rejection of the appellant's name without any reason
therefor is arbitrary and unconstitutional. The initiation of fresh process of
selection is not valid and hence quashed. The respondents are directed to ·
G appoint the appellant as Member, Sales-tax Appellate Tribunal as he is the
only other person in the panel of names selected by the Select Committee and
as nothing has been brought out against him by the Govt. [452-D, El

1.2. The appointment of Member, Sales-tax Appellate Tribunal is
governed by Section 13 of the Delhi Sales-tax Act, 1975. A reading of Section
H 13(4) and Office Memorandum dated 14-5-1987 together shows that the letter
"·
A.P. AGGRA WAL v. GOVT. OFN.C.T. OF DELHI 445
~-
was issued with a view to fill up the vacancy as soon as practicable. The A
statutory provision is expressed in mandatory language and in order to give
effect to te same executive instructions were issued in the Office
Memorandum. If the Office Memorandum is read in the light of the provisions
of Section 13(4), there is no doubt whatever that a public duty is cast on the
concerned authorities to fill up the vacancy within as short time as possible
provided the conditions set out in the memorandum a~.e present. There is no
B
dispute in this case that the vacancy was create~. by the resigning of he post
by the member within a period of six months of the date of joining the same.
The list recommended by the Select Committee and accepted by the Govt.
contained a panel of two names and the post is such it is not possible to make
local arrangements to fill up the vacancy. Nor is it desirable to keep it vacant c
for a long time or till the completion of fresh recruitment.
(449-E, F, G, H; 450-A)

1.3. This is a case of conferment of power together with a discretion
which goes with it to enable proper exercise of power and therefore it is coupled
with a duty to shun arbitrariness in its exercise and to promote the object for D
which the power is conferred which undoubtedly is in public interest and not
individual or private gain, whim or caprice of any individual. Even if it is to be
said, that the instructions contained in Office Memorandum dated 14-5-1987
are discretionary and not mandatory, such discretion is coupled with the duty
to act in a manner whieh will promote the object for which the power is
E
conferred and also satisfy the mandatory requirement of the Statute. It is not
therefore open to the Govt. to ignore the panel which was already approved
and accepted by it and resort to a fresh selection process without giving any
proper reason for resorting to the same. It is not the case of the Govt. at any
stage that the appellant is not fit to occupy the post. No attempt was made
before the Tribunal or before this Court to place any valid reason for ignoring F
the appellant and launching a fresh process ofselection. (450-B, C, DJ

Virender S. Hooda & Ors. v. State of Haryana & Anr., (1999) 3 SCC
696, held applicable.

R.S. Mittal v. Union of India, (1995) Supp. 2 SCC 230, referred to. G
Madan Lal & Ors. v. State of J&K and Ors., (1995) 3 SCC 486, held
inapplicable.

2. Every State action, in order to survive, must not be susceptible to the
1> vice of arbitrariness which is the crux of Article 14 of the Constitution and H
446 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R

A basic to the Rule of Law;
Shrilekha Vidyarthi v. State of U.P., (1991] 1 SCC 212, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6529of1999.

B From the Judgment and Order dated 24. 8. 98 of the Delhi High Court
in C.W.P. No. 4165of1998.

P.P. Rao, H.V.P. Sharma and A.N. Bardiyar for the Appellant.

Mukul Rohtagi, Additional Solicitor General, K.C. Kaushik, Ms. Sushma
C Suri and Mrs. Anil Katiyar for the Respondent.

Hari Shankar, K. for Intervenors.

The Judgment of the Court was delivered by

SRINIVASAN, J. Leave granted.
D
Heard both sides and perused the records.

2. In November 1996, applications were invited tor appointment to the
post of Member, Appellate Tribunal, Sales-tax. The qualifications,
E 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 for 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
F 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 Addi. 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
G 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 Appellate Tribunal on
4.1.1998.

H 3. The Central Government instead of appointing the appellant as the
'

A.P. AGGRAWALv. GOVT. OFN.C.T. OF DELHI [SRINIVASAN,J.] 447
Member, chose to cause a fresh advertisement to be issued calling for fresh A
applications. Admittedly a note was submitted for filling up the vacancy
either by inviting applications through press advertisements or by appointing
the appellant whose name was recommended earlier along with the name of
Shri M.L. Sahni and to avoid delay in filling up the post, the latter course was
suggested. But that was not accepted by the Government and it was decided B
to invite fresh applications for a wider choice.

4. In the meanwhile, the appellant had been making representations
repeatedly_ to the concerned authorities for appointing him as Member,
Sales-tax Appellate Tribunal. As there was no response to any representation
and the Government proceeded to process the applications received pursuant C
to the fresh advertisements, the appellant filed O.A. No .630 of 1998 on the
file of the Central Administrative Tribunal, Principal Bench. New Delhi for
quashing the fresh advertisement and the process of selection pursuant thereto
and for a direction to appoint the appellant a5 Member, Sales- tax Appellate
Tribunal. It should be mentioned here, that the provisions of Section 13 of
the Delhi Sales-tax Act were amended with effect from 28.1.98 whereby the D
words 'Central Government" appearing in the Section were substituted by
the words 'Lt. Governor'. Thus the power of appointment vested thereafter
with the Lt. Governor of Delhi. The appellant had therefore impleaded the
Government ofN.C.T. of Delhi through the Lt. Governor and the Secretary"
(Finance), Government of N.C.T. as respondents in his application. The E
application was contested by the respondents on the ground that the appellant
did not get any right by the inclusion of his name in the panel. Before the
Tribunal, reliance was placed by the appellant on Office Memorandum
No.39021/18/84-Estt. (B) dated 14.5.1987, Govt. oflndia, Ministry of Personnel,
PG. and Pensions (Department of Personnel and Training). It was stated on
behalf of the appellant that the provisions in the Office Memorandum were F
mandatory and the vacancy in the poJt having occurred within a period of
six months from the date of joining of Shri M.L Sahni, it should be filled up
by appointing the appellant. Reliance was also placed on the provisions of
Section 13 of the Delhi Sales-tax Act, 1975.
G
5. The Tribunal opined that the Government Office Memorandum was
not mandatory and it was ?pen 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 to the post if vacancy arises subsequently.
Ultimately, the Tribunal dismissed the application filed by the appellant. H
448 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A 6. The appellant filed a writ petition in the High Court of Delhi which ·~
was dismissed in limine by a non-speaking order 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
B pursuant to the fresh advertisement. When notice was ordered by this Court
in the petition for Special Leave, similar interim order was granted staying
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 Section 13
C reads as follows:

'Any vacancy in the membership of the Appellate Tribunal shall be
filled up by the Central Govt. as soon as practicable.'

It is significant to notice use of the word 'shall' in the sub-section.
There is no doubt that the statute has cast a duty on the Government to fill
D up the vacancy as early as practicable.

8. The Central Government issued an Office Memorandum on 14.5.1987
containing the instructions which would apply in respect of vacancies arising
on or after 1.1.1986. The Memorandum is in the following terms:

E 'The undersigned is directed to refer to this Department's O.M. No.
39021/18/84-Estt.(B) dated 6th February 1985, 13th June 1985 and 20th
November 1985 (copies enclosed) and to say that according to the
existing procedure, the reserve lists prepared with effect from 1st
January 1985 were to be operated only to fill replacement vacancies.
Earlier to this the reserve lists were being used both for replacement
F
vacancies and fresh vacancies of identical nature. Some of the
Ministries have reported difficulties in filling up of vacancies caused
in a situation where the recommended candidate joined the post for
a short period and then resigned or where the vacancy occurred on
account of the death of the candidate, it was pointed out that the
G posts could not be kept vacant for a long time till the next recruitment
took place.

2. The matter has been examined in consultation with U.P.S.C. and it
has been decided that the reserve lists may be operated in cases

H
where a vacancy is created by a candidate resigning the post or in
the event of his death, within a period of six months from the date of ..
A.P. AGGRAWAL v. GOVT. OFN.C.T. OF DELHI [SRINIVASAN, J.] 449

his joining the post subject to the condition that such an operation A
of the lists should be limited in respect of statutory posts and those
of scientific, technical, academic or medical nature or other similar
nature where it may not be possible to keep the post vacant till the
completion of fresh recruitment or to make local arrangements.

3. Jn other types of cases also where the post could be manned B
normally on officiating basis or by internal arrangements, requests of
the Ministries/Departments for operation of reserve lists will be
considered by the Commission but only when it is apparent that
making of such arrangements would not be feasible and the posts also
cannot be kept vacant till the candidates from next recruitment process C
are available.

4. These instructions would apply in respect of vacancies arising on
or after 1.1.86.'

9. While it is the contention of learned senior counsel for the appellant
that the instructions contained in the office memorandum are mandatory', D
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.
E
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 the office memorandum. The first paragraph of
the office memorandum shows that the position prevailing prior to 14.5.1987 F
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 office memorandum
is read in the light of the provisions in Section 13 (4), there is no doubt
whatever that a public duty is cast on the concerned authorities to fill up G

- the vacancy within as short time as possible provided the conditions set out
in the memorandum are present. There is no dispute in this case that the
vacancy was created by the resigning of the post by M.L. Sahni within a
period of six months of the date of joining the same. The list recommended
by the Select Committee and accepted by the Government contained a panel
·..~ of two names; and the post is such that it is not possible to make local H
450 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R

A arrangements to fill up the vacancy. Nor is it desirable to keep it vacant for
a long time or till the completion of fresh recruitment.

11. In our opinion, this is a case of conferment of power together with
a discretion which goes with it to enable proper exercise of the power and
therefore it is coupled with a duty to shun arbitrariness in its exercise and
B to promote the object for which the power is conferred which undoubtedly
is public interest and not individual or private gain, whim or caprice of any
individual. Even if it is to be said, that the instructions contained in the
Office Memorandum dated 14.5.87 are discretionary and not mandatory,
such discretion is coupled with the duty to act in a manner which will
C promote the object for which the power is conferred and also satisfy the
mandatory requirement of the Statute. It is not therefore open to the
Government to ignore the panel which was already approved and accepted
by it and resort to a fresh, selection process without giving any proper reason
for resorting to the same. It is not the case of the Government at any stage
that the appellant is not fit to occupy the post. No attempt was made before
D the Tribunal or betore this Court to place any valid reason for ignoring the
appellant and launching a. fresh process of selection.

12. It is well settled that every State action, in order to survive, must
not be susceptible to the vice of arbitrariness which is the crux of Article 14
E of the Constitution and basic to the rule of law, the system which governs
us (vide Shrilekha Vidyarthi v. State of U.P .. [1991] I SCC 212.

13. Learned Additional Solicitor General referred to the judgment of this
Court in Madan Lal and Ors. v. State of J & Kand Ors., [1995] 3 SCC 486)
and placed reliance on Paragraph 23 of the judgment at Page 502. That ruling
F has no relevance in the present case. The advertisement was for applications
to the post of Munsif. According to the advertisement, there were I 1 vacancies
to be filled up and the requisition to the Public Service Commission was to
select 11 persons for filling up the said seven vacancies. While sending the
list of selected candidates, the Public Service Commission sent a list containing
G more names than 11. 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
H set out by us.
A.P. AGGRAWALv. GOVT. OFN.C.T. OF DELHI [SRINIVASAN, J.] 451

14. In R.S. Mittal v. Union of India, [1995] Supp. 2 SCC 230 the A
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 Judge of this Court. The Selection Board prepared
""'-. a panel of selectea candidates which included the name of the appellant
before this Court and sent its recommendations. The candidates who were at
numbers I and 2 in the panel did not accept the appointment. The Bench
B
observed that though a person on the select panel has no vested right to be
appointed to the post for which he has been selected has a right to be
considered for appointment and at the same time the appointing authority
cannot ignore the select panel or decline to make an appointment on its
~
whims. The Court said that when a person has been selected by the Selection c
Board and there is a vacancy which can be offered to him, keeping in view
his merit position, ordinarily there is no justification to ignore him for
appointment and that there has to be a justifiable reason to decline to appoint
a person who is on the select panel. However, on the facts of the case the
Bench did not give any relief to the appellant as he was only No.4 and no
information was available about the stand of the person who was at No.3 of D
the select panel. While reversing the findings given by the Central
Administrative Tribunal to the extent indicated in the judgment the Bench
dismissed the appeal but directed the Government to pay cost of the
proceedings to the appellant which was quantified at Rs. 30,000.
E
15. In Virender S. Hooda and others v. State of Haryana and Anr.,
[1999] 3 SCC 696. The Haryana Service Commission advertised 12 posts of
Haryana Civil Service (Executive Branch). On completion of selection final
list was published. Some of the selected candidates did not join and the
appellant contended that they should have been considered against the
vacancies so arising, depending upon the ranking obtained by the appellants F
in the competitive examination. They relied on Government Circulars dated
22.3.1957 and 26.5.1972 according to which the vacancies which arose
within six months from receipt ofrecommendations of the Commission should
be filled up from the waiting list maintained by the Commission. The writ
petition filed by the appellants was dismissed by the High Court in the view
G
that the administrative instructions contained in the Circulars could not be
-- enforced. Reversing the decision of the High Court, the Division Bench of
this Court observed that the Government ought to have considered the 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
J...... out that when those vacancies arose within a period of six months from the H
452 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R

A 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
B 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.
c 16. In the circumstances we have no hesitation in allowing the appeal
and directing the respondents to appoint the appellant as Member, Sales-tax
Appellate Tribunal as he is the only other person in the panel of names
selected by the Select Committee and as nothing has been brought out
against him by the Government.
D
17. On the facts, we find that all the conditions set out in the office
memorandum issued by the Central Government dated 14.5.1987 are fulfilled
in the present case and the rejection of the appellant's name without any
reason therefor is arbitrary and unconstitutional. The initiation of fresh
process of selection is not valid and it is hereby quashed. The appeal is
E allowed accordingly. No costs.

18. IA. Nos.2 and 3 of 1999.

In view of the disposal of the civil appeal, these two applications do
not survive. They are dismissed as infructuous.
F
M.P. Appeal allowed.

..... .;