Holding

A Selection Board’s recommendation does not confer a vested right of appointment, but the appointing authority must consider the recommendation and cannot refuse appointment without a justifiable reason; in this case the Government’s inaction was unjustified, yet no specific direction for appointment was issued.

Summary

The appellant, R.S. Mital, was placed fourth on a selection panel prepared by a board headed by a sitting Supreme Court judge for the post of Judicial Member of the Income‑Tax Appellate Tribunal. The board sent its recommendation to the Central Government on 25 January 1988, but the government neither appointed any candidate nor acted on the panel, later issuing a fresh advertisement in 1990. Mital approached the Central Administrative Tribunal for a mandamus directing his appointment; the Tribunal dismissed the petition, holding that the panel did not confer a vested right. On appeal, the Supreme Court held that while a selection‑panel candidate has no vested right, the appointing authority must consider the recommendation and cannot arbitrarily decline without a justifiable reason. The Court found the Government’s inaction unjustified but, because other candidates had been offered or withdrawn, declined to issue a direction for Mital’s appointment and dismissed the appeal, awarding costs to the appellant.

Issues considered

When does a recommendation of a Selection Board create a vested right to appointment?
Is the Central Government legally obligated to act promptly on a Selection Board recommendation, especially when the board is headed by a sitting judge?
Can a writ of mandamus be issued to compel appointment based on such a recommendation?
Whether the Government’s delay in appointing candidates from the panel is justified.

Legislation cited

Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963s. Rule 4 (sub‑rules 1‑4)

Subjects

selection boardappointmentvested rightmandamusIncome Tax Appellate Tribunalservice lawadministrative lawgovernment delayjudicial member

Judgment

(

• R.S. MIITAL A
v.
UNION OF INDIA

MARCH 27, 1995

[KULDIP SINGH AND B.L. HANSARIA, JJ.] B

Service Law :

'1,,,,- Income Tax Appellate Tribunal Members (Recrnitment and Conditions
of Service) Rules, 1963: Rule 4. C
· Income Tax Appellate Tribunal-Judicial Member-Selection--
Recommendation by Selection Board-Government's obligation to
process-Held Government should take prompt and immediate action-Held
selected candidate has no vested right to appointment but Government cannot
decline appointment but for justifiable reasons. D
A Selection Board, constitution under sub-rules (1) and (2) of Rule
4 of the Income Tax Appellate Tribunal Members (Recruitment and Con·
ditions of Service) Rules, 1963 and headed by a sitting judge of the
Supreme Court, prepared a panel of selected candidates for the posts of
Judicial Members, Income Tax Appellate Tribunal in which the appellant E
was placed at No. 4. On January 25, 1988, the Selection Board sent its
recommendation to the Central Government for consideration but no
appointment was made as a fresh advertisement was/Assued on February
22, 1990 inviting applications for the same post. The appellant filed an
application before the Central Administrative Tribunal seeking a direction F
to the respondents to appoint him on the basis of 1988 panel. The Tribunal
dismissed the application holding that the preparation of panel does not
clothe the applicant with any right of appointment; the recommendations
of the Selection Board being not mandatory were not enforceable by a writ
of mandamus.
G
Against the judgment of the Tribunal, an appeal was preferred in
this Court. From the counter-affidavit filed by Government of India it was
clear that two vacancies become available on August 14, 1988 and June S,
1989 respectively but there was nothing to show as to why the Central
Government could not initiate action for appointment. However, on the H
1127
I
\
1128 SUPREME COURT REPORTS [1995] 2 S.C.R.

A basis of the action initiated on February 28, 1989, an offer of appointment
was sent to candidate at SI. No.1 but he did not join. Thereafter, no further
offer was made to any other candidate. Candidate at S. No. 2 also initiated
legal proceedings for seeking appointment but later withdrew his appeal.

Dismissing the appeal, this Court
B
HELD : 1. A person on the select panel has no vested right to be
appointed to the post for which he has been selected. He has a right to be
considered for appointment. But at the same time, the appointing
·authority cannot ignore the select penal or decline to make the appoint- f
~J
C ment on its whims. When a person has been selected by the Selection Board
and 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. There has to be a justifiable reason to decline to appoint a
person who is oo the select panel. [1133-F]

D 2. In the present case, there has been a mere inaction on the part of
the Government. No reason whatsoever, not to talk of a justifiable reason,
was given as to why the appointments were not offered to the candidates
expeditiously and in accordance with law. The appointment should have
been offered within a reasonable time of availability of the vacancy. The
Central Government's approach in this case was wholly unjustified. How-
E
. ever, in the circumstances it would not be appropriate ta issue any direc-
tion at this point of time in favour of the appellant. [1133-G-H, 1134-A]

3. Any recommendation of a Selection Board which is headed by a
sitting Judge of this Court must be given prompt and immediate attention.
F Once there is a recommendation by such a Selection Board, nothing should
intervene between the recommendation and the consideration by the Ap·
pointment Committee of Cabinet (ACC). The Ministry/Secretary in the
Administrative Department is under a legal obligation and is duty bound
to process the recommendation of the Selection Board by giving it a top
G priority and.place the same before the ACC within a reasonable time. The
recommendations of the Selection Board headed by a sitting Judge of this
Court must be placed before the ACC expeditiously and preferably within
two months from the date of recommendation. [1131-G-H, 1132-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5155 of
H 1993.
I
R.S. MIITALv. U.0.1. [KULDIPSINGH,J.] 1129
From- the Judgment and Order dated 11.10.91 of the Central Ad- A
ministrative Tribunal, New Delhi in O.A. No. 180 of 1991.
)
P.P. Rao, M.P. Jha and Anil K. Chopra with him for the Appellant
in C.A. No. 5155/93.

Raju Ramachandran for the Appellant in C.A. No. 5156/93. B
N.N. Goswamy, Mr. Hemant Sharma and C.V.S. Rao with him for
the Respondent.

The following Judgment of the Court was delivered by :
c
KULDIP SINGH, J. This Appeal is sequel to the selection of can-
didates for appointment to the post of Judicial Member, Income-tax Ap-
pellate Tribunal, made by a Selection Board headed by a sitting Judge of
this Court. The Selection Board was constituted under sub-rules (1) and
(2) of Rule 4 of the Income- tax Appellate Tribunal Members (Recruit-
ment and Conditions of Service) Rules, 1963 (the 'Rules'). The Selection D
Board prepared a panel of selected candidates which included the name
of the appellant and sent its recommendations on January 25, 1988 to the
Central Government for consideration under sub-rules (3) and (4) of Rule
4 of the Rules. The Central Government did not make any appointment
and issued fresh advertisement en February 22, 1990 inviting applications E
for the same post. The appellant filed Original Application before the
Central Administrative Tribunal seeking a direction to the respondents to
appoint him as Judicial Member, Income-tax Appellate Tribunal on the
basis of the select-panel prepared by the Selection Board in 1988. The
Tribunal by its judgment dated October 11, 1991 dismissed the Application.
This appeal by way of Special Leave is against the judgment of the F
(-itibunal.

The appellant is an advocate having registered himself with the Bar
at Delhi in the year 1971. In September, 1987, Ministry of Law and Justice
issued an advertisement inviting applications for three posts of Judicial
Members, Income-tax Appellate Tribunal. One post was reserved for G
Scheduled Tribe candidate and the remaining two posts were to be filled
up from the general category. It was further stated in the advertisement
that the three posts were temporary in nature, but were likely to continue
and furth~r that the number of vacancies was only proximate and liable to
alteration. Before the Tribunal and also in this Court, the stand of the H
1130 SUPREME COURT REPORTS (1995) 2 S.C.R.

A Central Government is that the advertisement was for the three vacancies
which were anticipated in the year 1988-89. The appellant applied for one
of the posts in response to the advertisment. The interviews were held on -(
January 12, 1988. It is not disputed that the Selection Board sent its
recommendations to the Central Government on January 25, 1988. We
have been informed at the Bar that Mr. Murgod was at No. 1, Mr. S.P.
B Singh Chaudqary at No. 2 and the appellant at No. 4 of the select-panel
recommended by the Selection Board. The Selection Board could not find
any suitable -Scheduled Tribe candidate and as such suggested for re-ad-
vertisement of the vacancy. According to the respondents, the reserved f
vacancy was re-advertised on March 28, 1988. and was subsequently filleJ-..r ,
C up on January 25, 1990.
The Government of India has filed counter by way of an affidavit of
Mr. S.A. Russel, Deputy Secretary to the Government of, India, Ministry
of Law, Justice and Company Affairs, Department of Legal Affairs, New
D Delhi. It is averred therein that the three vacancies anticipated during the
year 1988-89 were to fall vacant on the retirement of T.V. Venkatappa, on
February 21, 1988 (ST); H.S. Ahluvalia on September 27, 1988; and F.C.
Rustogi on October 17, 1988. It further states that the two vacancies
belonging to the general category which were expected to arise on Septem-
ber 27, 1988 and October 17, 1988 respectively did not materialise as the
E age of retirement of members of the Income-tax Appellate Tribunal was
raised by the Government from 60 years to 62 years with effect from ·
September 8, 1988. The expected vacancy position, thus, got materially
altered.

F The counter affidavit filed by the Government of India further states
that two vacancies which were not anticipated in the year 1988-89 .<,!i~,.
become available, because Sri K.L. Thanikachalam, a Judicial Member of '-.
the Tribunal was elevated to the High Court with effect from August 14,
1988 and another Judicial Member of the Tribunal Sri AK. Das sought ---.-
reversion to his parent cadre with effect from June 5, 1989. There is thus l
G no difficulty in reaching the conclusion that two vacancies became available
on August 14, 1988 and June 5, 1989 respectively which could be offered
to the candidates on the select-panel in accordance with their merit on the
panel.

H The Central Government has, however, contended that out of the
/
R.S. MIITAL v. U.0.1. [KULDIP SINGH, J.] 1131

two vacancies which became available, one was to be kept reserved for one A
P.J. Menon, who was on deputation abroad.· According to the Government,
he did not resume duties in India on expiry of his deputation period and
disciplinary proceedings were initiated against him. Since the Officer had
a lien in the Tribunal, without prejudice to the disciplinary proceedings,
the post was to be kept for him as he was free to resume duties in India B
at any time. We do not agree with the contention of the Central Govern-
ment. All appointments to the post of Judicial Member, Income-tax Ap-
pellate Tribunal, were made against the existing vacancies. P J. Menon
must have been appointed Member, Income-tax Appellate Tribunal,
against an existing vacancy. He could not have been appointed without
their being a vacancy. His lien if any could only be kept in the post against C
which he was initially appointed. We are, therefore, of the view that there
were two clear vacancies to be offered in accordance with the Rules to the
candidates on the select-panel recommended by the Selection Board.

Assuming that there was only one vacancy as claimed by the Central D
Government, there was gross delay on the part of the Central Government
in initiating action to fill the same. The vacancy became available on August
14, 1988 and, according to the chart placed on record by the Central
Government, the action was initiated on February 28, 1989. We fail to
understand what the Government meant by the expression 'initiating
action'. The character and antecedents verifications, if any, should have E
been got done as soon as the recommendation of the Selection Board was
received. No material has been placed on record and none was brought to
our notice during the course of arguments to show as to why the Central
Government could not initiate action as soon as the vacancy was made
available. Needless to say that the recommendation of the Selection Board F
headed by a sitting Judge of this Court was gathering dust in the records
of the concerned Ministry since January 25, 1988. We take serious view of
the matter and we direct that any recommendation of a Selection Board
which is headed by a sitting Judge of this court must be given prompt and
immediate attention. Once there is a recommendation by such a Selection
Board, nothing should intervene between the recommendation and the G.
consideration by the Appointments Committee of Cabinet (ACC). The
Minister/Secretary in the Administrative Department is under a legal
obligation and is duty bound to process the recommendation of the Selec-
tion Board by giving it a top priority and place the same before the ACC
within a reasonable tiine. In the present case though the action was stated H
~
\ \

1132 SUPREME COURT REPORTS (1995) 2 S.C.R.

A to be initiated on February 28, 1989 the reference to the ACC was made
on May 1, 1989. We direct that the recommendations of the Selection -(
Board headed by a sitting Judge of this Court must be placed before the
ACC expeditiously and preferably within two months from the date of
recommendation.

B It is stated by the Central Government that the offer of appointment
was sent to Mr. Murgad on January 30, 1990. He did not join till May 4,
1990 and as a consequence, the offer was cancelled. Thereafter no further
offer was made to any other candidate and the matter was closed.

C Apart from the appellant, Mr. S.P. Singh Chaudhary, who was at No.
2 in the select-panel also sought similar relief from the Central Administra-
tive Tribunal. His application having been dismissed, he filed Civil Appeal
No. 5156of1993 in this Court. Sri S.P. Singh Chaudhary was a member of
the Delhi Judicial Service and was posted as Additional District and
Sessions Judge at the relevant time. At the hearing of the appeal, we were
D informed that Sri S.P. Singh Chaudhary sm;ght voluntary premature retire-
ment from judicial service, which was granted by the Delhi High Court. He
later on withdrew his appeal, which was disposed of as such by this Court
on November 15, 1994.

E At this stage, we may refer to Rule 4 of the Rules which is
reproduced hereunder :

"4Method o/Recruitment: (1) There shall be a Selection Board
consisting of -

F (i) a nominee of the Minister of Law;

(ii) The Secretary to the Government of India, Ministry of law
(Department of Legal Affairs);
-y--
(iii) The President of the Tribunal; and
G
(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
H the Selection Board.·
(
R.S. MITTAL v. U.0.1. [KULE>IP SINGH, J.) 1133
(3) The Selection Board shall recommend persons for appointment A
as members from amongst the persons on the list of candidates
prepared by the Ministry of Law after inviting applications therefor
by advertisement or on the recommendations of the appropriate
authorities.

(4) The Central Government shall after taking into consideration B
the recommendations of the Selection Board make a list of persons
selected for appointment as members."
r As mentioned above, a sitting Judge of this Court being a nominee of the
'
Minister of Law was the Chairman of the Selection Board. C
The Tribunal dismissed the application by the impugned judgment
on the following reasoning :

(a) The selection-panel was merely a list of persons found suitable
and does not clothe the applicants with any right of appointment. D
The recommendations of the Selection Board were directory and
not mandatory and were not therefore enforceable by issue of a
writ of mandamus by the Court.

(b) The letter of Ministry of Home Affairs dated February 8, 1982
which extends the life of panel till exhausted is not relevant in the E
present case. In the circumstances the life of the panel in this case
cannot go beyond 18 months and as such expired in July, 1989.

It is no doubt correct that a person on the select-panel has no vested right
to be appointed to the post for which he has been selected. He has a right F
to be considered for appointment. But at the same time, the appointing
~ )--authority cannot ignore the select-panel or decline to make the appoint-
ment on its whims. When a person has been selected by the Selection
W- Board and there is a vacancy which can be offered to him, keeping in view
Y his merit position, then, ordinarily, there is no justification to ignore him
\ for appointment. There has to be a justificable reason to decline to appoint G
a person who is on the select-panel. In the present case, there has been a
mere inaction on the part of the Government. No reason whatsoever, not
to talk of a justificable reason, was given as to why the appointments were
not offered to the candidates expeditiously and in accordance with law.
The appointment should have been offered to Mr. Murgod within a H
\
1134 SUPREME COURT REPORTS (1995] 2 S.C.R.

A reasonable time of availability of the vacancy and thereafter to the next
candidate. The Central Government's approach in this case was whole
un_justified.

On the facts this case, it is not necessary for us to go into the question
of applicability of various instructions relied upon by the Tribunal. Even if
B there are any instructions which provide that a select-panel shall remain
operative for one and a half year, the said period in our view is sufficient
for the Central Government to exhaust the select-panel of the type with
which we are concerned in this case. We have already indicated the time- {
bound procedure to be followed in dealing with the select-panel of this - - T'
C type. .

Sri Murgod who was at No. 1 of the select-panel did not accept the
appointment. Sri SiP. Singh Chaudhary has already withdrawn his appeal
and he is out of run. We are not sure about the stand of the person who
is at No. 3 of the select-panel. Under the circumstances it would not be
D appropriate to issue any direction at this point of time in favour of the
appellant who is at No. 4 of the select-paneL

While reversing the findings given by the Central Administrative
Tribunal, to the extent indicated above, we dismiss this Appeal. In the l(

circumstances of this case, we direct the respondent, Central Government,
E to pay cost of these proceedings to the appellant, which we quantify as Rs.
30,000.

T.N.A. Appeal dismissed.