Union Of India And Another vs B. Krishna Mohan
2009 Latest Caselaw 905 Del

*         HIGH COURT OF DELHI : NEW DELHI


+         Writ Petition (Civil) No.7521 of 2008


                     Judgment reserved on: February 13, 2009

%                    Judgment delivered on: March 20, 2009


1.   Union of India
     Represented by Secretary to Government
     Ministry of Finance
     South Block
     New Delhi.

2.   Union of India
     Represented by Secretary to Government
     Department of Legal Affairs
     Ministry of Law and Justice
     Shastri Bhavan
     Dr. Rajendra Prasad Road
     New Delhi-110001.                             ...Petitioners

                     Through Mr. P.P. Malhotra, ASG with Mr.A.K.
                             Bhardwaj and Ms. Jagriti Singh, Advs.

                     Versus

B. Krishna Mohan
S/o Late B.S.R. Anjaneyulu
H. No. 18-531/1 "Sri Sai Krupa"
Road No. 5, Kamalanagar
Dilsukhnagar
Hyderabad-500060.                                  ...Respondent

                     Through Mr.Vishwanathan Shetty, Sr. Advocate
                             with Ms.Sunita Rao and Mr. R. Kumar,
                             Advs.

WP (C) Nos.7521, 7523 & 7526/2008                            Page 1 of 15
                                WITH


2.        Writ Petition (Civil) No.7523 of 2008


1.   Union of India
     Represented by Secretary to Government
     Department of Legal Affairs
     Ministry of Law and Justice
     Shastri Bhavan
     Dr. Rajendra Prasad Road
     New Delhi-110001.

2.   The Appointment Committee of Cabinet
     Through Cabinet Secretary
     Government of India
     South Block
     Raisina Hill
     New Delhi.                                   ...Petitioners

                     Through Mr. P.P. Malhotra, ASG with Mr.A.K.
                             Bhardwaj and Ms. Jagriti Singh, Advs.


                     Versus

Inturi Rama Rao
S/o I, Subba Rao
Age 43 years, Chartered Accountant
II, No. 8-3-319/b/24/9
Behind Saradhi Studios
Yellareddyguda, Ameerpet
Hyderabad.                                        ...Respondent

                     Through Mr. A.K. Behera with Mr. K.R.
                             Prasad, Advs.




WP (C) Nos.7521, 7523 & 7526/2008                         Page 2 of 15
 3.        Writ Petition (Civil) No.7526 of 2008

1.   Union of India
     Represented by Secretary to Government
     Department of Legal Affairs
     Ministry of Law and Justice
     Shastri Bhavan
     Dr. Rajendra Prasad Road
     New Delhi-110001.

2.   The Appointment Committee of Cabinet
     Through Cabinet Secretary
     Government of India
     South Block
     Raisina Hill
     New Delhi.                                    ...Petitioners

                     Through Mr. P.P. Malhotra, ASG with Mr.A.K.
                             Bhardwaj and Ms. Jagriti Singh, Advs.

                     Versus

Pradip Kumar Kedia
Having Office at 208
Blue Moon Chamber, Nagindas
Master Road, Near Welcome Restaurant
Fort, Mumbai-400001.

Residing at B-1104, Gaurav Geet
Gaurav Garden Complex
Near Hindustan Naka
Charkop Kandivili West
Mumbai-400067.                                     ...Respondent

                     Through Mr. A.K. Behera with Mr. K.R.
                             Prasad, Advs.




WP (C) Nos.7521, 7523 & 7526/2008                         Page 3 of 15
 Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Yes

2. To be referred to Reporter or not?                         Yes

3. Whether the judgment should be reported
   in the Digest?                                             Yes


MADAN B. LOKUR, J.

The Petitioner (Union of India) is aggrieved by an order

dated 31st July, 2008 passed by the Central Administrative Tribunal,

Principal Bench in OA No.1024/2008, OA No.1036/2008 and OA

No.1037/2008.

2. The Respondents are an advocate (Shri B. Krishna Mohan)

and two Chartered Accountants (Shri Inturi Rama Rao and Shri Pradip

Kumar Kedia). They all belong to the general or unreserved category

and have been held entitled to appointment as a Judicial Member and

Administrative Members respectively in the Income Tax Appellate

Tribunal (for short the ITAT).

3. On 22nd January, 2005 the Union of India issued an

advertisement for filling up 22 vacancies of members in the ITAT. Of

these vacancies, three were for Judicial Member (JM) in the unreserved

category (UR) and five were for Accountant Members (AM) also in the

unreserved category (UR). The advertisement specifically stated that

the number of vacancies is approximate and is liable to increase or

decrease due to unexpected circumstances that might occur upto 31st

December, 2005.

4. For filling up the above 22 vacancies, a Selection Board was

chaired by Hon'ble Ms. Justice Ruma Pal (then a Judge of the Supreme

Court of India) and two members Shri R.L. Meena, Law Secretary,

Government of India and Shri Vimal Gandhi, President of the ITAT.

The magnitude of the task facing the Selection Board can be gauged

from the fact that it interviewed as many as 286 candidates over a period

of 14 days in four different cities of the country.

5. The Selection Board gave its recommendations on 22 nd

September, 2005 and the applicants found most suitable for appointment

were mentioned in Appendix I (both for JM as well as for AM). The

Appendix also included a number of wait-listed candidates including the

Respondents, who could be considered for appointment in case any of

the candidates included in the select list were not available or found

unsuitable for appointment after verification of their antecedents etc.

6. We are concerned only with the vacancies for JM/UR and for

AM/UR.

For the three vacancies of JM/UR, the candidates recommended and

appointed were Smt. Asha Vijayraghavan, Shri George George K. and

Shri George Mathan. Therefore, all the three vacancies of JM/UR were

filled up.

As far as the AM/UR vacancies are concerned, of the five advertised

vacancies, three of them were filled up by Shri B. Ramakotaiah, Shri

Abraham P. George and Shri Amarnath Pahuja. Shri R.N. Dash was

selected but did not join, while the name of Shri Satya Prakash was not

sent to the Appointments Committee of the Cabinet (ACC) because his

vigilance clearance was not available and we were told that even today

it is not available. In any case, he has not been appointed as a member of

the ITAT. There are, therefore, two clear vacancies in the category of

AM/UR.

7. In so far as the post of JM/UR is concerned, it has come on

record that Shri Vishnu Chander Gupta (selected against a JM/UR

vacancy advertised in 2003) declined the offer on 21st March, 2005 and

consequently the offer given to him was cancelled and withdrawn by the

Department of Legal Affairs by its letter dated 6th April, 2005. It has

also come on record that Shri Sanjeev Sharma (selected against a

JM/UR vacancy advertised in 2003) joined duties on 9th March, 2005

but subsequently resigned and his resignation was accepted with effect

from 10th May, 2005 vide Notification dated 9 th May, 2005 issued by the

Government of India, Ministry of Law and Justice.

8. Against the above two vacancies of JM/UR arising from the

selection made in 2003, the Union of India recommended the name of

Shri Pradeep Kumar Mahajan and Ms. Neera Gupta, who were in the

waiting list of 2003 but by a letter dated 3rd October, 2005 the ACC did

not approve their appointment. Shri Mahajan and Ms. Gupta challenged

the failure of the Union of India to appoint them by filing writ petitions

in the Supreme Court being WP (C) No. 637/2005 (Pradeep Kumar

Mahajan vs. Union of India) and WP (C) No. 22/2006 (Neera Gupta vs.

Union of India). Both the writ petitions were dismissed on 24 th

September, 2007.

9. On these broad facts, the case of Shri B. Krishna Mohan

JM/UR is simply this: as per the advertisement issued on 22nd January,

2005 it was clearly stated that the number of vacancies is liable to

increase due to unexpected circumstances that may occur upto 31 st

December, 2005. Unexpectedly, two vacancies did arise with Shri

Vishnu Chander Gupta (JM/UR) declining to join the ITAT and the

offer given to him having been withdrawn on 6 th April, 2005 and Shri

Sanjeev Sharma (JM/UR) tendering his resignation which was accepted

on 9th May, 2005. Consequently, two unexpected vacancies arose in

2005 (though from the 2003 selection) against which Shri B. Krishna

Mohan could be appointed. It was submitted that the failure of the

Union of India to appoint him is completely arbitrary and contrary not

only to the advertisement issued but also the recommendation of the

Selection Board.

10. As far as the two AM/UR vacancies are concerned, the

submission of Shri Pradip Kumar Kedia and Shri Inturi Rama Rao is

that there were admittedly two clear vacancies because, of the five

AM/UR vacancies, only three were filled up (with Shri R.N. Dash

refusing to join and Shri Satya Prakash not having been granted

vigilance clearance). Therefore, Shri Pradip Kumar Kedia and Shri

Inturi Rama Rao who were the first two in the wait list ought to have

been offered appointment as AM/UR. The failure of the Union of India

to do so is completely illegal and arbitrary.

11. As can be seen from the fact situation mentioned above, the

issues raised are not at all complicated. Undoubtedly, there are

vacancies available both in the category of JM/UR as well as in the

category of AM/UR. In the category of JM/UR two unexpected

vacancies arose before 31st December, 2005 which were not considered

by the Union of India against which Shri B. Krishna Mohan could be

appointed. In so far as AM/UR vacancies are concerned, there is no

dispute that there are two clear vacancies against which Shri Pradip

Kumar Kedia and Shri Inturi Rama Rao could be appointed.

12. Before the Tribunal, one of the questions that had arisen was

whether the 2005 select panel was still valid or not. The Tribunal was of

the view that the 2005 select panel was very much alive. The learned

Additional Solicitor General did not agitate or contest this issue before

us at all. We are, therefore, proceeding on the basis that the select panel

recommended by the Selection Board on 22 nd September, 2005 is still

valid. The learned Additional Solicitor General also did not contest

before us that the two unexpected vacancies of 2003 could not be

carried forward till 2005. We are, therefore, proceeding on the basis

that the two unexpected vacancies of JM/UR were available for being

filled up through the 2005 selection process.

13. The learned Additional Solicitor General urged two issues

before us - one on facts and the other on law. The factual issue urged

was that no vacancy existed as regards JM/UR for accommodating Shri

B. Krishna Mohan. This submission is factually incorrect as we have

noted above. No submission was made before us of the non-availability

of any vacancy to adjust Shri Pradip Kumar Kedia and Shri Inturi Rama

Rao against the posts of AM/UR. Again, as we have already noted

above, two vacancies did exist to accommodate them.

14. The controversy in law raised by the learned Additional

Solicitor General is that waitlisted candidates have no right to be

appointed and it is for this reason and this reason alone that the order

passed by the Central Administrative Tribunal is sought to be faulted.

15. The learned Additional Solicitor General placed reliance on

Sanjoy Bhattacharjee v. Union of India and others, (1997) 4 SCC 283

wherein it has been held by the Supreme Court that merely because a

candidate has been put in the waiting list he does not get any vested

right to an appointment.

16. This proposition of law is not only well settled but extends

beyond what is submitted by the learned Additional Solicitor General.

In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, it has been

held that even a candidate on the merit list does not have any

indefeasible right to an appointment, even if a vacancy exists. A similar

view has been taken in several other cases such as in Asha Kaul and

another v. State of Jammu and Kashmir and others, (1993) 2 SCC 573

and Food Corporation of India and others v. Bhanu Lodh and others,

(2005) 3 SCC 618.

17. However, what is of importance is what the Supreme Court

recently said in State of Madhya Pradesh and others v. Sanjay Kumar

Pathak and others, (2008) 1 SCC 456 that if a vacancy exists and it is

not filled up, there must be some reasonable explanation for not doing

so. In coming to this conclusion, the Supreme Court relied upon K.

Jayamohan v. State of Kerala, (1997) 5 SCC 170 and Munna Roy v.

Union of India, (2000) 9 SCC 283. Indeed, this view has been

consistently expressed by the Supreme Court in several other decisions

such as R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 and A.P.

Aggarwal v. Government of NCT of Delhi and another, (2000) 1 SCC

600.

18. The law, therefore, seems to be quite well settled to the effect

that no one has indefeasible or vested right to an appointment, whether

he is on the waiting list or on the merit list, but at the same time there

must be some reasonable basis for not filling up an existing vacancy or

not offering an appointment to a meritorious candidate. If a reasonable

or rational explanation does not exist, it would clearly fall foul of

Article 14 of the Constitution.

19. In so far as the present case is concerned, the only

explanation proffered by the learned Additional Solicitor General for

not filling up the vacancies was that the Recruitment Rules were likely

to be amended. In fact during the course of oral submissions, it was

brought to our notice that an amendment to the Recruitment Rules was

contemplated sometime in November, 2004. It was further brought to

our notice that a Notification bearing GSR No. 742(E) dated 23 rd

December, 2005 was inserted through an amendment in Rule 4A in the

Income Tax Appellate Tribunal Members (Recruitment and Conditions

of Service) Rules, 1963. Nothing in this amendment disqualifies any of

the Respondents from being appointed as members of the ITAT, nor was

any such argument advanced by the learned Additional Solicitor

General. We are, therefore, unable to see the relevance of the

amendment to the Rules, which is sought to be made the basis of

denying appointment to the Respondents to the post of member of the

ITAT.

20. Contrast this with the fact that the selection was conducted

by a high-powered Selection Board presided over by a sitting Judge of

the Supreme Court. No one can doubt that the recommendations of such

a Selection Board deserve to be given due respect, weightage and

consideration. There is also no doubt that there is a huge backlog of

cases pending in the ITAT and it does not serve anybody's interest if the

backlog remains or increases. The only way of reducing the backlog is

by filling up all vacancies at the earliest and by not doing so, the Union

of India is merely prolonging the agony of a large number of assessees,

apart from depriving itself of its legitimate dues, depending on the

verdict of the ITAT in the appeals pending before it. Therefore, far from

being a reasonable or rational explanation for not filling up the

vacancies, the explanation given is detrimental to the public interest and

the interest of the Revenue.

21. We have also seen from a perusal of the impugned order

passed by the Tribunal that there is no explanation whatsoever given by

the Union of India for not filling up the vacancies except some proposed

amendment to the Rules. Before us also there is no other explanation

forthcoming. Consequently, we have no option but to dismiss the writ

petitions and approve the view taken by the Tribunal. The Union of

India is, therefore, directed to process the case for the appointment of

the Respondents against the respective vacancies to which they may be

entitled and thereafter place the matter before the Appointments

Committee of the Cabinet for further directions. The needful should be

done by the Union of India within a period of 8 weeks from today.

22. The writ petitions are dismissed but there will be no order as

to costs.

                                       MADAN B. LOKUR, J




March 20, 2009                         SURESH KAIT, J
kapil

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