THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE K.G.SHANKAR Writ Petition No.31955 of 2010 ORDER (Per Sri Justice Ghulam Mohammed, J) This writ petition is filed seeking a writ of mandamus to declare the action of the respondent in appointing another committee to review the resolution, dated 23.05.2007, recommending the candidates for selection to be appointed as Administrative Members of Andhra Pradesh Administrative Tribunal, Hyderabad (for short ‘the Tribunal’) together with the impugned resolution in respect of subject No.1 in its minutes, dated 24.04.2010, as illegal and arbitrary, and to direct that the recommendations of the selection committee constituted for the purpose of selection of persons for appointment as members of APAT pursuant to Notification, dated 04.04.2007 be processed as per Rules 5(2)(iii) and 8 of the Administrative Tribunals (Procedure for Appointment of Vice-chairman and Members) Rules, 2006 (for short ‘the Rules’) and Section 6(4) of the Administrative Tribunals Act, 1985 (for short ‘the Act’) Act at once, to reach finality. 2. The writ petition was dismissed on 25.01.2011 as it was represented by the learned Government Pleader for General Administration Department that the Notification dated 04.04.2007, issued by the Government, was revoked by the Selection Committee in its meeting on 24.04.2010 holding that the said notification was issued contrary to Rule 5(2)(ii) of the Rules and thereafter, fresh notifications were issued on 27.05.2010 and 28.09.2010. Thereafter, on the restoration petition filed by the petitioner in W.P.M.P.No.6487 of 2011, this Court restored the writ petition to its file on 30.03.2011, for the reasons stated in the affidavit. 3. The brief facts are that the petitioner retired from service as Member of the Apex Postal Services Board on 31.05.2007. In pursuance of the notification issued by the respondent on 04.04.2007, inviting applications for the post of Administrative Member in the Tribunal, the petitioner, who possessed all the requisite qualifications, applied for the same. The petitioner states that the Selection Committee recommended his name along with two other Officers and send its recommendations to the Central Government for further action, but no appointment has been given till this date. While so, the Selection Committee conducted a meeting on 24.04.2010, and passed a resolution by revoking the notification dated 04.04.2007 holding it as being contrary to Rule 5(2)(ii) of the Rules and consequently, fresh notifications were published on 27.05.2010 and 28.09.2010. Aggrieved by the same, the petitioner filed the present writ petition. 4. The respondent filed counter stating that the appointment of Member (Administration) in Tribunal, is governed by Sections 6 and 8 of the Act and the Rules and also governed by Rule 5 and of its sub-rules of the said Rules. The Selection Committee for the purpose of appointing Administrative Members in the Tribunal in three vacancies met on 27.03.2007 and passed a resolution, in pursuance of which, an advertisement was issued in the Newspapers by the State Government inviting applications from the eligible candidates throughout the country and thereafter, 14 applications were received and proposals were sent for approval of the Governor of Andhra Pradesh State. At that stage, the State of Andhra Pradesh by an order dated 13.11.2007 decided that the Selection Committee shall recommend persons on the list of the candidates forwarded by the Chief Secretary after writing to various Cadre Controlling Authorities of the State, but applications are invited contrary to the Rules from all over the country and also requested the Selection Committee to follow the procedure prescribed as per the Rules and also as per the orders of the Government of India dated 27.05.1993. It is stated that as per Rule 5(2)(ii) of the Rules, the Chief Secretary is required to prepare the list of candidates after writing to various Cadre Controlling Authorities of the State. But it does not envisage calling nominations from other States or calling applications from all over the country even though Rule 5(2)(i) empowers the Selection Committee of the concerned State devised its own procedure or lay down guidelines for inviting applications but would not result in inviting applications from all over the country. The sum and substance of combined reading of Rule 5 and its sub- rules of the aforesaid Rules that candidates shall be identified only from and within the State. It is also evident from the communication of the Government of India dated 18.02.2009 to the State Government that in addition to the usual procedure of circulating vacancies of Member of Andhra Pradesh Administrative Tribunal amongst the various Cadre Controlling Authorities, High Courts, it is also required to be published in leading English, Hindi and Vernacular Dailies in the state to give wide publicity and attract more talented persons to apply to the post. In these circumstances, the State Government brought to the notice of the Selection Committee, which consequently reconsidered its earlier resolution and passed a fresh notification on 24.04.2010 by revoking the earlier notification, dated 04.04.2007, being contrary to the mandate of Rule 5(2)(ii) of the Rules and by inviting applications for five posts of Administrative Members. In pursuance of the same, a fresh Notification dated 27.05.2010 was published but with a difference that this publication was only being given statewide followed by another Notification dated 28.09.2010 as per Rule 5(2))(ii) of the Rules. As per the new Notification dated 27.05.2010, the petitioner is not eligible as he is belonging to outside the State of Andhra Pradesh. Therefore, the Administrative Members to the Andhra Pradesh Administrative Tribunal are required to be selected from and among the officers working within the State of Andhra Pradesh and the persons belonging to outside the State are not within the zone of consideration. Hence, the writ petition is liable to be dismissed. 5. Heard the petitioner-in-person and the learned Additional Advocate General appearing for the respondent. 6. The petitioner contended that the respondent issued two notifications dated 27.05.2010 and 28.09.2010, which are identical with the earlier notification, that too more than three years after selection by the Section committee holding it as being contrary to Rule 5(2)(ii) of the Rules. He contended that when once the Selection Committee had prepared the list and send it for approval, the State Government has no power to meddle with it. In support of his contention, he relied upon the decision of the Apex Court in R.S.MITTAL V. UNION OF INDIA[1]. He further contended that the resolution dated 24.04.2010 does not give any reasons as to why notification dated 04.04.2007 was held contrary to Rule 5(2) (ii) of the Rules. He submitted that he is not seeking his appointment but procedure should be completed as per Rule 5(2) (iii) of the Rules. 7. Learned Additional Advocate General reiterating the averments made in the counter affidavit submitted that Rule 5(2) (ii) of the Rules does not envisage calling nominations from other States or calling applications from the candidates all over the country even though Rule 5(2)(i) empowers the Selection Committee of the concerned State devised its own procedure or lay down guidelines for inviting applications but not inviting applications from all over the country and therefore, the Selection Committee re-considered its earlier resolution and passed a fresh resolution on 24.04.2010 by revoking the earlier notification dated 04.04.2007 being contrary to Rule 5(2)(ii) of the Rules and thereafter, fresh notification dated 27.05.2010 was published only in State wide followed by another Notification dated 28.09.2010 as per Rule 5(2)(ii) of the Rules. He submitted that the petitioner has not applied for the revised notifications. He further contended that the members of the State cadre alone are eligible to appoint as Members of the Tribunal. He further contended that mere recommendation of the name of the petitioner to be considered by the Central Government and Chief Justice of India does not contemplate as per Rule 5(2)(iii) of the Rules, as per which, the selection list is being finalized. Learned Additional Advocate General also relied upon the decision of the Apex Court in PUNJAB STATE ELECTRICITY BOARD v. MALKIAT SINGH[2] wherein it was held as under; “Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench Judgment of this Court in Shankarsan Dash v. Union of India ((1991) 3 SCC 47), which reads: 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up , the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted”. With regard to the procedure, learned Additional Advocate General contended that though the Selection Committee send its recommendations for approval, the list has not been finalized as per Rule 5(2)(iii) of the Rules since the applications were invited contrary to the Rules from all over the country and as such, the earlier notification was revoked and fresh notifications were issued. 8. The material on record shows that since the Notification dated 04.04.2007, was issued inviting applications for the post of Administrative Member in the Tribunal from the eligible candidates throughout the country and in response, the State Government received 14 applications of which two were received through Tamilnadu Government. Out of the said candidates, the Selection Committee selected three officers and proposals were sent for approval of the Governor of Andhra Pradesh. Before finalizing the said list, it is found that the applications are invited as per notification dated 04.04.2007 contrary to the Rules from all over the country, thereby, the Selection Committee vide resolution dated 24.04.2010 revoked the said notification. Subsequently, fresh Notification dated 27.05.2010 was published calling for the applications within the State and also another Notification dated 28.09.2010 as per Rule 5(2)(ii) of the Rules but the petitioner did not apply. As such, mere sending of recommendations proposing the name of the petitioner does not amount to be appointed and give right to the petitioner to claim for his appointment that the selected list has not been finalized as per Rule 5(2)(iii) of the Rules. Further, the Apex Court in PUNJAB STATE ELECTRICITY BOARD’s case cited 2 supra held that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. Therefore, the petitioner cannot claim as a matter of right for appointment to the said post as per the notification dated 04.04.2007, which was already revoked by subsequent resolution dated 24.04.2010 and consequent notifications. For the aforesaid reasons, we do not find any merit in this writ petition. Accordingly, the Writ Petition is dismissed. No costs. _______________________ GHULAM MOHAMMED, J _______________ K.G.SHANKAR, J Date:20.06.2011 sj [1] 1995 SCC Suppl(2) 230 [2] (2005) 9 SCC 22