JUDGMENT

KULDIP SINGH, J.-This appeal is sequel to the selection of candidates for appointment to the post of Judicial Member, Income Tax Appellate 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 (Recruitment and Conditions of Service) Rules, 1963 (the Rules). The Selection Board prepared a panel of selected candidates which included the name of the appellant and sent its recommendations on 25-1-1988 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 on 22-2-1990 inviting applications 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 11-10-1991 dismissed the application. This appeal by way of special leave is against the judgment of the Tribunal.

2. 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 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 further that the number of vacancies was only proximate and liable to alteration. Before the Tribunal and also in this Court, the stand of the 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 advertisement. The interviews were held on 12-1-1988. It is not disputed that the Selection Board sent its recommendations to the Central Government on 25-1-1988. We have been informed at the Bar that Mr Murgad was at No. 1, Mr S.P. Singh Chaudhary 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-advertisement of the vacancy. According to the respondents, the reserved vacancy was re-advertised on 28-3-1988 and was subsequently filled up on 25-1-1990.

3. 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 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 21-2-1988 (ST); H.S. Ahluvalia on 27-9-1988; and F.C. Rustagi on 1-7-10-1988. It further states that the two vacancies belonging to the general category which were expected to arise on 27-9-1988 and 17-10-1988 respectively did not materialise as the 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 8-9-1988. The expected vacancy position, thus, got materially altered.

4. The counter-affidavit filed by the Government of India further states that two vacancies which were not anticipated in the year 1988-89 did become available, because Shri K.L. Thanikachalam, a Judicial Member of the Tribunal was elevated to the High Court with effect from 14-8-1988 and another Judicial Member of the Tribunal, Shri A.K. Das sought reversion to his parent cadre with effect from 5-6-1989. There is thus no difficulty in reaching the conclusion that two vacancies became available on 14-8-1988 and 5-6-1989 respectively which could b