TMI Blog2009 (3) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 candida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istently 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 prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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