UNION OF INDIA & ANR.versusPRADIP KUMAR KEDIA ETC.

                   [2011] 13 (ADDL.) S.C.R. 196

A                     UNION OF INDIA & ANR.
                                 v.
                   PRADIP KUMAR KEDIA ETC.
              (Civil Appeal Nod. 6567-6569 of 2010)
                       NOVEMBER 17, 2011
B
            [P. SATHASIVAM AND A.K. PATNAIK, JJ.]

        INCOME-TAX APPELLATE TRIBUNAL
C      (RECRUITMENT AND CONDITIONS OF SERVICE)
    RULES, 1963:

        r. 4 - Appointment of Members of Income-Tax Appellate
     Tribunal -Appointments of 16 candidates placed in the main
    select list approved by Appointments Committee - It further
D   giving direction that appointment of the Members in future
    would be taken up only after the recruitment rules of Income
    Tax Appellate Tribunal were amended - Candidates placed
    in· the wait list claiming appointment - Held: Until the
    Appointments Committee approved the list of wait-listed
E   candidates, such candidates are not persons selected for
    appointment - The 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
F   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 -
    Therefore, if the Central Government has taken a decision
    through the Appointments Committee of the Union Cabinet
    to undertake appointments in future after amendment of the
G   Rules, it cannot be held 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.

H                               196
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 197
                     ETC.
       Pursuant to the advertisement dated 22.01.2005 for A
 the posts of Judicial Member and Accountant Member of
 the Income Tax Appellate Tribunal, the Selection Board
 in its recommendations placed 18 candidates in the main
 select list. Since 2 candidates selected for the post of
 Accountant Member were not cleared by the Vigilance B
 Department, the list of 16 remaining candidates was, on
 26.04.2006, placed before the Appointments Committee
 of the Union Cabinet, which approved the appointment
 of all the 16 candidates, but directed the Law Ministry to
 amend the Recruitment Rules so as to provide for c
 appointment of the members of the Income Tax Appellate
 Tribunal for a period of two years. In 2007, a writ petition
 was filed before 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 0
 Appellate Tribunal pursuant to the advertisement dated
 22.01.2005. The High Court, by order dated 24.04.2007,
 directed the appellants to place the matter before the
 Appointments Committee and to give effect to the
 Selection List as approved by the Selection Board, in the E
"light of the decisions in R. S. Mittal's case 1 and A.P.
 AgganNal's case 2• The special leave petition was dismissed
  by the Supreme Court with a direction to the Union of
 India to complete the formalities and to give effect to the
  Selection List. The Appointments Committee, in its
  decision taken on 31.08.2007, approved the names of all F
  the 16 selected candidates and appointed them till the
  date of retirement on attaining the age of 62 years. The
  Appointments Committee also decided that the
  appointment of Members of the Income Tax Appellate
  Tribunal in future would be taken up orily after the G
  Recruitment Rules were amended. Consequently, orders

1.   R.S. Mittal v. Union of India 1995 (2) SCR 1127.
2.   A.P. Aggarwal v. Govt. of NCT of Delhi and Another, 1999 (4) Suppl. SCR
     443.                                                                      H
    198     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A for appointment to all the 16 candidates were issued.
    Three candidates placed in the wait list filed Original
    Applications which came to be decided by the Principal
    Bench of the Central Administrative Tribunal. It directed
    the Union of India to consider the three wait-listed
B · candidates for filling up the advertised vacancies existing
    in the posts of Judicial Member and Accountant Member
    in the unreserved category. The Union of India
    challenged the said order before the Delhi High Court
    contending that the vacancies in the post of Judicial
c Member and Accountant Member could be filled up only
    after the Recruitment Rules were amended as decided by
    the Appointments Committee. The High Court dismissed
    the writ petition and directed the Union of India to process
    the case for the appointment of the 3 wait-listed
    candidates against the respective vacancies and
0
    thereafter place the matter before the Appointments
   Committee of the Cabinet for further directions.
    Aggrieved, the Union of India filed the appeals.

          Allowing the appeals, the Court
E
        HELD: 1.1 Rule 4 of the Income Tax Appellate Tribunal ·
  (Recruitment and Conditions of Service) Rules, 1963 was
  considered by this Court in R.S. Mittal's case wherein it
  was held that a person on the select panel has no vested
F right to be appointed to the post for which he has been
  selected, but he has a right to be considered for
  appointment. It was also held that the appointing
  ~uthority cannot ignore the select-panel or decline to
  make the appointment on its whims and when there is a
G vacancy which can be offered to him, keeping in view his
  merit position, then, ordinarily, there is no justification to
  ignore hiin for appointment; and there has to be a
  justifiable reason to decline to appoint a person who is
  on the select-panel. In A.P. Aggarwal's case this Court
H observed that it was not open to the Government to
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 199
                        ETC.
ignore the panel which has already been approved and        A
accepted by it and resort to a fresh selection process
without giving any proper reason for resorting to the
same. [para 14] [210-A-D]

    R.S. Mittal v. Union of India 1995 (2) SCR 1127=1995    B
Supp. (2) SCC 230; A.P. Aggarwal v. Govt. of NCT of Delhi
and Another, 1999 (4) Suppl. SCR 443 = (2000) 1 sec 600
- referred to.

     1.2 So far as the candidates placed in the main select
list are concerned; there is no dispute that out of the 18 C
candidates placed in the main select list, 2 were found
unsuitable, 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 D
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 E
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 Committee
approved the appointment of the 16 candidates for a full F
tenure up to 62 years as provided under Rule 11 of the
Rules. Thus, 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. [para 16) [211-A-D]
                                                            G
    1.3 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, the Central
Government shall, after taking into consideration the
recommendations of the Selection Board, make a list of      H
    200   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A 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. The Appointments
  Committee in its meetings held on 26.04.2006 and
B 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
C Tribunal under the Income Tax Act, 1961. Therefore, if the
  Central Government has taken a decision through the
  Appointments Committee of the Union Cabinet to
  undertake appointments in future after amendment of the
  Rules, it cannot be held that the reason given by the
  Central Government in not making any further
0
  appointments because of the proposed amendments to
  the Rules was not a justifiable or proper reason and that
  the d~cision of the Central Government in not approving
  the wait list of candidates recommended by the Selection
  Board is not in accordance with this Court's decisions
E in R.S. Mitta/'s case and A.P. Aggarwal's case. [para 17]
  [211-E-H; 212-A-C]

       1.4 In the considered opinion of this Court, the
  circumstances in which this Court dismissed the special
F 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
G candidates as Members of the Income Tax Appellate
  Tribunal. [Para 19) [213-D-F]

        Director, SCTI for Medical Science & Technology and
                                             =
    Another v. M. Pushkaran 2007 (12) SCR 465 (2008) 1 SCC
    448 - referred to.
H
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 201
                     ETC.
     1.5 The impugned judgment of the Delhi High Court             A
and the common judgment of the Central Administrative
Tribunal, Principal Bench, are set aside and the Original
Applications filed by the candidates are dismissed. [para
20] [213-G]
                                                                   B
    Shankarsan Dash v. Union of India 1991 (2)
SCR 567 =(1991) 3 SCC 47; Asha Kaul (Mrs.) and Another
v. State of Jammu and Kashmir and Others 1993 (3)
SCR 94 = (1993) 2 SCC 573; and Sanjoy Bhattacharjee v.
                                               =
Union oflndia and Others 1997 (2) SCR 915 (1997) 4 sec C
283 - cited.

                      Case Law Reference:
    1995 (2) SCR 1127            referred to         para 3
    1999 (4) Suppl. SCR 443 referred to              para 3        D
    1991 (2) SCR 567             cited               para 6
    1993 (3) SCR 94              cited               para 6
    1997 (2) SCR 915             cited               para 6        E
    2007 (12) SCR 465            referred to         para 10
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6567-6569 of 2010.
    From the Judgment & Order dated 20.03.2009 of the High         F
Court of Delhi at New Delhi in Writ Petition (C) Nos. 7526, 7521
& 7523 of 2008.

    A.S. Chandhiok, ASG, Vijay Hansaria, V. Kanakraj, W.A.
Quadri, Sadhna Sandhu, Bhagat Singh, Yash Wardhan Tiwari,          G
Saima Bakshi, Anil Katiyar, B. Krishna Prasad, B. Sunita Rao,
Anindita Popli, A.K. Behera, Vivek Gupta, Vanita Giri, Anjani
Aiyagari for the appearing parties.

    The Judgment of the Court was delivered by                     H
    202    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A       A. K. PATNAIK, J. 1. 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').

B       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
C Tribunal. The advertisement, however, stated that the number
   of vacancies indicated in the advertisement was only
   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
D 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 µlaced 18 candidates
   in the main select list, 7 candidates for the post of Judicial
E 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 lnturi Rama Rao in the wait list for the
F 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 cand.idates was placed before the Appointments
  Committee of the Union Cabinet on 26.04.2006. The
G 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 Tax Appellate Tribunal for a period of
  two years.
H
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 203
            ETC. [A.K. PATNAIK, J.]
      3. In 2007, the Revenue Bar Association filed Writ Petition A
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 B
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 AP. C
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
                                                                    0
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 Appointments Committee also decided that the E
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 F
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 lnturi
Rama Rao, who was placed in the wait list of candidates for        G
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            H
    204 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.

A 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
B 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 'the Rules') are
  amended. The three Original Applications were transferred to
  the Principal Bench of the Central Administrative Tribunal and
C 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
D 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 \acancies in the post
   of Judicial Member and Accountant Member can be filled up
E 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
F 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 that the selection had been conducted by a
G 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
H reducing the backlog is to fill up the vacancies at the earliest
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 205
            ETC. [A.K. PATNAIK, J.)
and by not doing so, the Union of India was merely prolonging         A
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            B
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.      c
      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 D
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 E
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 F
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 G
 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 H
    206    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A 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 selected candidate
  declined and another selected candidate did not get vigilance
  clearance and lnturi Rama Rao and P.K. Kedia, who were
B 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
C the Rules which disqualifies any of the aforesaid 3 wait-listed
   candidates, namely, B. Krishna Mohan, lnturi 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
D 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
E 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
F Court, therefore, wrongly considered 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,
G 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
H verification and therefore if some of the candidates placed in
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 207
            ETC. [A.K. PATNAIK, J.]
the main list of selected candidates were either not available A
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 B
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 c
Madras High Court issued mandamus in Writ Petition No.
8288 of 2007 to the appellants to place the matter before the
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
                                                                  0
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   E
 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 F
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 & G
 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 where the Court H
    208 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.

A 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
B 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
C 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
D 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, SGT/ for Medical Science & Technology
  and Another v. M. Pushkaran (supra).

E       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 Board
  and against this order of the Madras High Court the appellants
  filed Special Leave Petition (Civil) No. 13681 of 2007, but on
F 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
G 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 lnturi
  Rama Rao, submitted that the rules do not prohibit preparation
H of a wait list. He submitted that the recommendation of the
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 209
            ETC. [AK. PATNAIK, J.]
Selection Board would show that some of the candidates were        A
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      B
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
Tax Appellate Tribunal, both Judicial and Accountant, is made      C
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;                          D

    (ii) The Secretary to the Government of India Ministry of
    Law (Department of Legal Affairs);
    (iii) The President of the Tribunal; and                       E
    (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.                               F

    (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     G
    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."                                                      H
    21.0   SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R


A       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
B held in the aforesaid decision that the 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.
c 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
0
  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.

E       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
F 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
  appellants carried a special leave petition, this Court dismissed
  the special leave petition on 17 .08.2007 and directed the Union
G 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 AP. Aggarwal v. Govt. of NCT of Delhi and
H Another (supra).
 UNION OF INDIA & ANR. v. PRADIP KUMAR KEDIA 211
            ETC. [A.K. PATNAIK, J.]
      16. So far as the candidates placed in the main select list,   A
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                B
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        C
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
Committee approved the appointment of the 16 candidates for
a full tenure upto 62 years as provided under Rule 11 of the         0
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.
                                                                     E
     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 F
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 G
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 H
    212     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Government has taken a decision through the Appointments
  Committee of the Union Cabinet to 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
B 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 AP. Aggarwal v.
C 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
D lost sight of the fact that Rule 4(a) had already been inserted
  in the Rules by notification dat... d 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
E 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
  amendment discussed in the meeting of the Appointments
F 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
G         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
H         ACC."
 UNION OF !NOIA & ANR. v. PRADIP KUMAR KEDIA 213
            ETC. [A.K. PATNAIK, J.]
      19. As has been held by this Court in Director, SGT/ for A
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 B
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, c
but after the Appointments Committee approved appointments
of 16 selected candidates found suitable for appointment as
 members of the Income Tax Appellate Tribunal, the immediate
 need for filling up the vacancies was met and if the
Appointments Committee has taken a view that any further 0
 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 E
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. F

    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 G
Applications. The appeals are allowed, but there shall be no
order as to costs.

R.P.                                        Appeals allowed.
                                                                 H