A. P. Aggarwal vs Government Of Delhi(Ntc)

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(SC) 1334

1999(9) Supreme 251
SUPREME COURT OF INDIA
(From Delhi High Court)
Dr. A.S. Anand, CJI., M. Srinivasan & R.C. Lahoti, JJ.
A.P. Aggarwal -Appellant
versus
Government of National Capital Territory of Delhi & Anr. -Respondents
Civil Appeal No. 6529 of 1999
(Arising out of SLP (Civil) No. 15574 of 1998)
Decided on 16-11-1999
Counsel for the Parties :
For the Appellant : P.P. Rao, Sr. Advocate, H.V.P. Sharma, A.N. Bardiyar, Advocates.
For the Respondent : Mukul Rohtagi, Additional Solicitor General, K.C. Kaushik, Ms. Sushma Suri, Mrs. Anil Katiyar, Advocates.
For the Intervenors : Hari Shanker, K., Advocate.

Headnote:Service Law - Appointment-Post of Member, Delhi Sales Tax Appellate Tribunal-Delhi Sales Tax Act, 13(4) r/w Office Memorandum No. 39021/18/84-Estt. (B) dated 14.5.1987-Selection Committee recommending a panel of two names for one vacancy-Appellant, was not appointed-Appointed candidate resigned post within six months-Govt. advertising calling for fresh applications-In terms of Office Memorandum appellant entitled to be appointed as member-Initiation of fresh process of selection not valid.
       Held : It is significant to notice use of the word shall in the sub-section 13(4). There is no doubt that the statute has cast a duty on the Government to fill up the vacancy as early as practicable. 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 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 fulfilment 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 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 it is not possible to make local 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. (Paras 7 & 10)
       This is a case of confirment 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 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 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. (Para 11)
       The respondents were directed 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. 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. (Paras 16 & 17)

JUDGMENT

Srinivasan, J.-Leave granted. Heard both sides and perused the records.

2. In November 1996, applications were invited for appointment to the post of Member, Appellate Tribunal, Sales-tax. The qualifications, 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 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 Addl. 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 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.

3. The Central Government instead of appointing the appellant as the Member, chose to cause a fresh advertisement to be issued calling for fresh 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 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 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 as 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 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 of N.C.T. of Delhi through the Lt. Governor and the Secretary (Finance), Government of N.C.T. as respondents in his application. The 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. of India, Ministry of Personnel, P.G. and Pensions (Department of Personnel and Training). It was stated on behalf of the appellant that the provisions in the Office Memorandum were mandatory and the vacancy in the post 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.

5. The Tribunal opined that the Government Office Memorandum was not mandatory and it was open 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