TaxTMI 
TaxTMI 
1999 (11) TMI 830
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.... 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 representatio....
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....n to interfere with the impugned decision of the Tribunal. Aggrieved thereby, the appellant has approached this Court. When the matter was pending before the Tribunal, there was a stay of the process of selection pursuant to the fresh advertisement. When notice was ordered by this Court in the petition for Special Leave, similar interim order was granted slaying fresh selection. 7. The appointment of Member. Sales-tax Appellate Tribunal is governed by Section 13 of the Delhi Sales-tax Act 1975. Sub- section (4) of Section 13 reads as follows: Any vacency in the membership of the Appellate tribunal Shall be lilled up by the Central Govt. as soon as practicable. It is significant to notice use of the word 'shall' in the sub-section . There is no doubt that the statute has cast a duty on the Government to fill up the vacancy as early as practicable. 8. The Central Government issued an Office Memorandum on 14.5.1987 containing the instructions which would apply in respect of vacancies arising on or after 1.1.1986. The Memorandum is in the following terms: The undersigned is directed to refer to this Department's O.M. No. 39021/18/84-Estt.(B) dated 6^th February 1985, 13^....
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....ssued 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 die 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 fulfillment 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 arc 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 k....
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....to their merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could not be used for any purpose thereafter. That principle will not apply in the present case in view of the facts already set out by us. 14. In R.S. Mittid versus Union of India (1995 Supp. (2) S.C.C. 230) the question arose with regard to selection of candidates to the post of Judicial Member, income-tax Appellate Tribunal. The selection was made by a Selection Board consisting of a sitting Judge of this Court. The Selection Board prepared a. panel of selected candidates which included the name of the appellant before this Court and sent its recommendations. The candidates who were at numbers I and 2 in the panel did not accept the appointment. The Bench observed that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right to be considered for appointment and at the same time the appointing authority cannot not ignore the select panel or decline to make an appointment on its whims. The Court said that when a person has been selected by the Selection Board and there is a....