ivil Appeal No 2559 of 1988 From the Judgment and Order dated 3181987 of AP Adminis trative Tribunal Hyderabad in RP No 393 i of 1987
K Madhva Reddy and G Prabhakar for the Appellants
YP Rao for the Respondent
561 The Judgment of the Court was delivered by SAWANT J
The admitted facts in the present case are that the respondent applied for Grade I and Grade II teacher posts Post Graduate Teacher and Trained Graduate Teacher posts respectively in September 1985 pursuant to a news paper s advertisement calling for applications for the said posts
Admittedly the qualification prescribed in the advertisement for the said posts was a second class degree in MA and the respondent held a third class degree in MA
However it appears that on December 27 1985 an order was issued wrongly by the first appellant appointing her as a Post Graduate Teacher in Hindi
The order stated that her appointment was subject to the production of original cer tificates and to the compliance with the other necessary formalities
When pursuant to the order the respondent approached the authorities with the certificates it was noticed that the respondent was not qualified for the post
She was therefore not allowed to join the service and was sent back
The respondent thereafter approached the Andhra Pradesh Administrative Tribunal at Hyderabad representing to the Tribunal that pursuant to the order of December 27 1985 she had joined her duties on January 2 1986 and that she should be allowed to continue in service with all the bene fits from that day
The Tribunal passed the impugned order directing the appellants to allow her to join the duties and to pay to her salary from the date she reported for her duties in compliance with the order of December 27 1985
The Tribunal also awarded costs against the appellants
We are of the view that the Tribunal is clearly in error
The reasons given by the Tribunal in support of its order are firstly that the appellants had issued the order of appointment knowing fully well that she was not quali fied and secondly that she was selected for the appoint ment because there was no other candidate available with better marks
It has been brought to our notice during the course of the arguments that the original selection was made by mistake on the presumption that the respondent had satisfied the qualification requirements as stated in the advertise ment without scrutinising the certificates copies of which were sent with her application
The Selection Committee presumed that all those who had applied in response to the advertisement must have had the requisite qualifications needed for the posts
However the order appointing the respondent had made 562 it clear that the respondent should come along with the original certificates
When the respondent approached the appellants with the originals of the certificates which were scrutinised it was found that in fact she was short of the qualifications
It is in these circumstances that she was not allowed to join the service
It cannot therefore be said that the appellants had selected the respondent with the knowledge that she was under qualified
According to us there is a good deal of force in this contention
It is common knowledge that sometimes either by mistake or other wise the notes put up before the Selection Committee contain erroneous data prepared by the office and sometimes the Selection Committee proceeds on the basis that all those who appear before it are otherwise qualified
However the second stage at which the documents are scrutinised is when the higher authorities go through them at the time the candidate concerned approaches them for resuming duties along with the original certificates
It is at that stage that the mistake was discovered in the present case and the respondent was not permitted to resume her duties
We see nothing wrong in this action
The observation of the Tribunal that there were no other candidates available with better marks is in the circumstances a halftruth because assuming that she had better mark among those who had applied it seems that no one with second class had applied or the applications only of the third class candidates were considered
If so they were the applications of those third class candidates who had applied and not of all those who would have applied had the advertisement given an indication that those with a third class degree could also apply
It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same it is not a matter only between the appointing authority and the appointee concerned
The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertise ment
It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable
No court should be a party to the perpetuation of the fraudu lent practice
We are afraid that the Tribunal lost sight of this fact
We are however informed that the respondent subsequent ly 563 acquired another degree in MA with second class and has qualified herself to be appointed to the said post
Whatever the merits of the decision given by the Tribunal we cannot forget that she was entitled to rely upon it till this time where she had succeeded
She was not allowed to join service on January 2 1986 and thereafter she had approached theTribunal in January 1987
The decision of the Tribunal was of 31st August 1987 and thereafter the present Civil Appeal was pending in this Court from December 1987 till this day
Considering the fact that she is compelled to serve that she has acquired the requisite qualification that today she may be overaged for the post and the further fact that many who were underqualified were appointed to the post earlier we feel that it will be unjust to deprive her of the post at this stage
We therefore set aside the impugned order of the Tribunal but allow the appeal partial ly and direct that the respondent should be appointed in the post from the beginning of the ensuing academic year 1990 91
Since Shri Madhav Reddy contended that there is no vacant post at present we further direct that if neces sary a post be created to accommodate her
She will howev er not be entitled to any benefits including back wages till her appointment
The parties will bear their own costs
NVK Appeal allowed


Summary:
In Commissioner of Income Tax Madras vs Veeraswami Nainar  9rs
  the Madras High Court took the view that the development rebate reserved should be made at the time of making up the Profits and Loss Account and this was affirmed by this Court in Indian Overseas Bank s Ltd vs Commissioner of Income Tax A distinction was drawn between development rebate reserve and other reserves createable under the Companies Act and the Income Tax Act and it was required to be separately created
Consequent to this decision it was noticed that an important circuit of the Central Board of Direct Taxes dated October 4 1965 was unwittingly mowed down
This circular gave the Board s Explanation three paragraphs a b and c regarding the position for creation statutory reserve for allowance of development rebate
A spate of litigation ensued and some of the taxing authorities relying on the Indian Overseas Bank s case in some cases took revitional and rectificatory actions and these reached various High Courts
The Gujarat High Court in Surat Textiles Mills Ltd vs Commissioner of Income tax Gujarat opted for the narrow view in assuming that all the 3 Explanations contained in the 1965 Circular stood wiped out by Indian Overseas Bank s case
The Central Board of Direct Taxes therefore took the step of withdrawing in the year 1972 the Circular dated October 14 1965 to the extent it stood superseded by deci sion in Indian Overseas Bank s case
Other High Courts however took a broader view to the effect that Explanation contained in para a only was done away with by this Court s decision in Indian Overseas Bank s case and that contained in paras b and c were still alive
462 On account of the aforesaid difference of opinion it was represented to the Board that the earlier instructions dated October 14 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by the decision in Indian Overseas Bank s case had created unnecessary hardships to the assessees
In the instant appeal the question whether the respond entassessee was entitled to allowance rebate on the plant and machinery after 111958 after due compliance with the provisions of proviso b to section 102vib of the Income Tax Act 1922 was answered by the Division Bench of the Allahabad High Court in favour of the assessee and against the Revenue
The Revenue appealed to this Court
Dismissing the appeal this Court HELD 1
The Board itself had clarified the matter by Circular No 189 dated 30th January 1986
It states to have re examined the issue involved coming to the view that except the clarification contained in Explanation para a which stood superseded by the decision of this Court in Indian Overseas Bank s case the clarification given in paragraphs b and c hold good
465D 2
The Board itself has opted for the broader view expressed in the matter in theTata Iron and Steel Compa nies  case and other cases
There is therefore no reason to do the exercise of taking any side of the two views
465E 3
It is undisputed that the Board s view is not only valid under the new Income Tax Act of 1961 but to the Indian income Tax Act 1922 as well
465F Commissioner of Income Tax Madras vs Veeraswami Nainar and Ors  affirmed
Indian Overseas Bank Ltd vs Commissioner of Income Tax  followed
Surat Textile Mills Ltd vs Commissioner of Income Tax Gujarat  overruled
Veerabhadra Iron Foundary  Anr
vs Commissioner of Income ITR 425 Tata Iron and Steel Co Ltd vs
N C Upadhyaya and The Commissioner of Income Tax vs Sardar Singh 86ITR 387 approved