ORDER
N.Y. Hanumanthappa, J
1. The facts and law involved in W. A.No.501/96 and W.P.No.9819/96 are common and as such they are clubbed and disposed of by this common order.
2. Writ Appeal 501/96 is filed by the State of Andhra Pradesh challenging the order of the learned Single Judge of this Court, dated 26-4-1996 in W.P.No. 9590/96 filed by om D.Siva Prasad. W.P.No.9819/96 is filed by one D.Siva Prasad challenging the appointment of one Mr.D. V.I..N.Murthy as Member (Administrative) of the Andhra Pradesh Administrative Tribunal. Thus both the writ petitions are filed by the same petitioner.
3. For purpose of convenience, the rank of the parties is referred as in W.P. No.9590/96. W.P.No.9590/96 was filed on 6-5-1996. The respondents in W.P.No.9590/96 are (1) Government of Andhra Pradesh, represented by the Chief Secretary, Hyderabad (2nd respondent in W.P.No.9819/96), (2) Union of India represented by the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, New Delhi (1st respondent in W.P.No.9819/96), (3) T.Munivenkatappa, IAS, (4) D. V. L. N. Murthy, I.A.S. (3rd respondent in W.P.No.9819/96) and (5) Ch. Venkatapathi Raju, IAS. The Chairmanof A. P. Administrative Tribunal has been made as 4th respondent in W.P.No.9819/96).
4. The relief sought in W.P,No.9590/96 was (o issue a writ directing the respondents 1 and 2 namely the State and Central Government not to appoint the respondents 3 to 5 namely T. Munivenkatappa, D.V.L.N. Murthy and Ch. Venkatapathi Raju as Members (Administrative) of Andhra Pradesh Administrative Tribunal (for short the 'APAT') and also to issue a consequential direction to the respondents 1 and 2 to include the name of the petitioner (D.Siva Prasad, IAS) in the panel for appointment as Member (Administrative) of the APAT.
5. The relief sought for in W.P.No.9819/96 is to issue a writ declaring the appointment of D.V.L.N. Murthy as Member (Administrative) of the APAT and his assumption of office as Member on 30-4-1996 as null and void in view of the order dt. 26-4-1996 passed by this Court in W.P.no.9590/96.
6. A few facts which are necessary to dispose of the writ appeal and the writ petition are as follows:-- The petitioner, D.Siva Prasad, IAS, was working as Secretary to Government, Backward Class Welfare Department, Government of Andhra Pradesh on the date of filing of the writ petition. During the year 1962, he passed M.Sc., (Mathematics) in first class from Sri Venkateswara University, Tirupati. In the year 1965 he succeeded in the competitive examinations conducted by the A.P.Public Service Commission and was selected and appointed as Deputy Collector by an order dt:20-12-1965. Between 1965 and 1982 he received several promotions. On 3-5-1992, he was promoted to the Indian Administrative Services (IAS) from the quota reserved to the Stale Services. He became eligible to be appointed as Member of the APAT. According to him, he possessed sufficient knowledge and experience to work as Member of the APAT. He passed M. A. in Public Administration with personnel Administration as one of the subjects and obtained first rank from Nagpur University.He did research in Personnel Management in Commercial Taxes Department of Andhra Pradesh (Public Administration) and obtained Ph.D. from Osmania University. He'did L.L.B. and LL.M., from Nagpur University and obtained first class. He served in several departments namely Revenue, Panchayat Raj (Engineering), Factories, Boilers and Backward Class Welfare. The State of A.P. by its D.O.letter No.1383/Spl.A/94, dated 26-12-1994 called upon the petitioner and other eligible officers to intimate their willingness before 10-1-1995 together with their bio-data for appointment as Member of the APAT. On 5-1-1995, he expressed his willingness for the said post. When the applications were in process and the Government was about to take a decision on the recommendations of the Selection Committee, the General Administration Department through their Memo No. 1224/ Spl.A/95-1 dated 24-10-1995, again asked the petitioner to intimate his willingness by 28-10-1995 together with complete bio-data for consideration as Member of the APAT. He again expressed his willingness on 28-10-1995. Before filing of the writ petition, the Government of A.P. recommended to the Government of India the names of T. Munivenkatappa who had to retire on 30-6-1996 by superannuation, D.V.L.N. Murthy who was to retire on 31-5-1996 and Ch.Venkatapathi Raju who was to retire on 28-2-1996, ignoring the name of the petitioner. As such he submitted a representation to the Union of India on 4-3-1996 through the Chief Secretary to the State of A.P., to include his name in the panel. According to him, the State Government recommended his name. On 19-4-1994, the State Government had recommended the names of T.S.Rao, V.V.Satyamrayaw and T. V. Rangarajan for appointment as Members of the APAT, who had less than five years of service for retirement. But the Union of India through their D.O.Letter No. A-1014/6/95- A1,dt: 11-7-1994 rejected the recommendation in respect of the said three persons as theyhad less than 5 years to retire whereas the term of office is 5 years. According to him, the Hon'ble Chief Justice of India had expressed his view that the persons to be recommended for appointment as Member of the Tribunal should have a full term of 5 years, keeping in view the effect of Sections 6 and 8 of the Administrative Tribunals Act, 1985. This view of the Hon'ble Chief Justice was incorporated by the State Government in their D. O. letter dt: 26-12-1994. The Union of India also recommended the views of the Hon'ble Chief Justice to the State Government to follow and, thus, they are binding on the State. Disregarding the views of the Hon'ble Chief Justice, the names of T. Munivenkatappa, D. V.L.N. Murthy and Venkatapathi Raju were considered, ignoring the names of the petitioner. According to him, while preparing the panel, the State Government should have prepared it in the ratio of 1 : 3 and as there were three vacancies the State Government should have prepared a panel of members. According to him, the Slate Government prepared a panel wherein his name was included placing him above Venkatapathi Raju. When such was the occasion, the State Government again asked the willingness of the petitioner and others similarly placed. When the Selection Committee of the Stale of A.P. already prepared a panel placing the petitioner above Venkatapathi Raju, again calling for the willingness was not warranted. It is his further case that the names of Munivenkatappa and two others namely respondnets 3 to 5, who had no legal background, should not have been considered as the appointment was for a Tribunal whose functions are judicial in nature. The qualifications and other relevant factors were not objectively evaluated in this case in making appointments. According to him the appointment and selection, if any, in this case is quite arbitrary and contrary to Sections 6 and 8 of the Administrative Tribunals Act, 1985 (for short the Tribunals Act'), and violative of Article 14 of the Constitution of India.
7. In writ petition No.9590/96, the learned single Judge of this Court, after hearing both sides, passed the impugned order. Since the impugned order is a short one, the same is extracted hereunder:
'The learned Counsel for the petitioner points out that even according to the letter dated 26-12-1994 asking for his willingness to be appointed as member of the APAT, it was stated that only persons, who will have full tenure of five years would be considere0d for appointment since the retirement age of members of APAT is 62 years, only those who are less than 57 years of age could be considered whereas according to the petitioner, respondents 3,4 and 5, who have less than 5 years are being considered and respondent No. 3 has also been appointed recently. The learned Government Pleader submits that there is a direction from this Court to fill up the vacancies, and, therefore, the process of filling up of vacancies should not be stalled.
In the circumstances, all that is required to be said is that the Government should stick to the policy stated in the letter cited above and see that the candidates considered for appointment have the maximum tenure of five years. With this observation, the writ petition is disposed of. No costs. '
Challenging the said order, the Stale of A.P. filed W.ANo.501/96 contending that disposing of the writ petition at the admission stage observing that the State should adhere strictly to the letter dt:26-12-1994 in the matter of appointment of members of the APAT and see that the candidates have the maximum tenure of 5 years is without jurisdiction and illegal. The learned single Judge should have ordered notice on the State and other respondents. Sections 6 and 8 of the Tribunals Act do not prescribe any requirement that the candidates selected for the post of member of the Tribunal should have a maximum tenure of five years before being considered for appointment. The State further contended that the letter dated 26-12-1994 is just a directory in nature. The suitability ofthe petitioner and others was considered by the Selection Committee and found the others were suitable than she petitioner. No illegality was committed while making selection of others as members of the APAT.
8. On 6-1-1996, i.e. on the same day when the writ appeal was filed, the petitioner, D.Siva Prasad, also filed W.P.No.9819/96 urging that the appointment of D.V.L.N. Murthy and his assumption of charge as Member of APAT be declared as null and void in view of the order dt:26-4-1996 passed by this Court in W.P.No. 9590/96. The averments in the said writ petition are almost similar to the averments made in W.P.No. 9590/96. The additional facts given by the petitioner in W.P.No.9819/96 are that the order of the learned single Judge dt:26-4-1996 was communicated to the Union of India by wire on 27-4-1996 which was received on 30-4-1996. The said order was also communicated to the other respondents. Inspile of communication of the above orders, Mr. D. V. L. N. Murthy assumed charge as member of the APAT on 30-4-1996 and ordering his appointment is with effect from 24-4-1996. According to Ihe petitioner, the appointment of D.V.L.N.Murthy is quite arbitrary and illegal. He alleged that he has no maximum tenure of five years. Mr. Murthy should not have been appointed in view of the order of the single Judge. When W.P.No.9590/96 came up for admission, the Government Pleader did not contest the writ petition According to him, the order dt 26-4-1996 was not passed in the absence of the respondents. On the other hand, it was passed in the presence of the respondents who were represented by the Government Pleader. Thus, there was notice to the respondents and to the State. The appointment of DVLN Murthy is in contravention of the orders of this Court dated 26-4-1996. In the case of others, the petitioner alleged, the Union of India took nearly four months to the proposals but in the case of Murthy it took hardly two months and his proposal was submitted in the last week of February and appointment was issued immediately. Hence the appointmentof D. V.L.N.Murthy as Member of APAT is liable to be quashed.
9. On 5-7-1996, the Bench of this Court passed order in W.P.No.9819/96 to hear this writ petition along with W. ANo.501/96. Accordingly both the cases were listed for final hearing.
10. The 2nd respondent namely the State of A.P. did not file separate counter in W.P.No.9819/96. It contended with the grounds raised in W. A.No.501/96.
11. On behalf of the Union of India-1st respondent counter was filed in W. ANo.501/96 sworn to by one T.C.Panth, Director, Administration Tribunals Division/in the Department of Personnel, Ministry of Personnel Public Grievances and Pensions. According to him, the Selection Committee in respect of selection and appointment of the Vice Chairman and Members of the Tribunals consists of Chief Justice of High Court of the state concerned, Chief Secretary of the State concerned, Chairman of the State Administrative Tribunal of the concerned state and the Chairman of the Stale Public Service Commission of the concerned State. The said Selection Committee sends its recommendations. It may devise its own method or guidelines for inviting applications and also for selection of Vice Chairman and Members of the Administrative Tribunals of the State concerned. In the instant case, the Government after considering the recommendation of the Selection Committee sent a proposal on 27-2-1996 to appoint D.V.L.N.Murthy, T. Munivenkatappa and Ch.Venkatapathi Raju. He admitted the calling for willingness and preparing of panel wherein the name of the petitioner was also found. According to him, the Selection Committee appears to have met on 30-1-1996 and considered the bio-data and the confidential records of ten candidates and recommended the names of above three persons for appointment. The said recommendation was approved by the State Government forthwith and the same was sent to the Union of India on 27-2-1996. The Union of India after obtaining the concurrenceof the Hon'ble Chief Justice of India selected the above three persons. The said three persons accepted the offer of appointment. D.V.LN.Murthy and Venkatapathi Raju sought for voluntary retirement from their services. The appointment orders were issued to D.V.LN. Murthy on 19-4-1996 and he assumed charge of the post on 28-4-1996, The acceptance of offer of appointment by Venkatapathi Raju was received through the State Government on 30-4-1996 and appointment orders were issued in his case on 2-5-1996 keeping in view that his date of birth was 8-2-1940. He had full tenure of five years on the date of appointment. The acceptance of offer of appointment by Munivenkatappa was received on 30-4-1996, but no appointment orders were issued to him. In para 9, he stated that as per Sec.8 of the Tribunals Act, the members will be appointed for five years or till they attain 62 years whichever is earlier. He stated about the procedure in making appointments and sending for approval. He also admitted about the receipt of consent of Hon'ble Chief Justice in the matter of appointment and stated in the instant case, the consent of the Chief Justice was received on 11-4-1996. According to him, there is no provision under Central Act 13 of 1985 which either expressely or by necessary implication requires rigid tenure of five years. The requirement of five years shall be considered as a guideline which is directory in nature. The Selection Committee headed by the Chief Justice of A.P. met on 30-1-1996 and recommended the names of D.V.L.N. Murthy, T. Munivenkatappa and Ch. Venkatapathi Raju. At para 14 he referred to the circumstances which led to making appointments as Members of the Tribunal. The order in W.P.No.9590/96, dt:26-4-1996 was passed arbitrarily without notice to others and hence the same is liable to be quashed.
12. Mr.T. Munivenkatappa, the 3rd respondent in W.A.No.501/96 also filed counter reiterating the stand taken by the Union of India in its counter. According tohim he was not aware of the status quo order. Mr. Venkatapathi Raju also took the same stand.
13. In support of the rival contentions, the Advocates appearing on both sides advanced their arguments. According to Sri V.V.S.Rao, learned Senior Counsel appearing for the writ petitioner that the appointments of D. V.L.N. Murthy, Munivenkatappa and Venkatapalhi Raju as members of APAT are quite arbitrary, illegal and not only violative of Art. 14 of the Constitution but also contrary to the guidelines of the Government of India in its letter dated 11-7-1994 which were framed pursuant to the advice given by the Hon'ble Chief Justice of India. The appointments of the above three members ignoring the case of the petitioner are violative of Section 8 of the Tribunals Act as the Act prescribes the age limit as maximum tenure of office is 5 years. In other words, fixing the age of the member for appointment is mandatory and the same should not be ignored so lightly which had happened in, the instant case. He further contended that when the respondents 1 and 2, that is, the State and the Union Governments sought for the willingness of the petitioner for appointment as Member of the APAT and received his willingness along with others and when he was no where disqualified, on the other hand well qualified when compared to others, he was right in expecting 2nd respondent to consider and select him for appointment to the said post Non-consideration of his candidature resulted in giving a go-by to the theory of legitimate expectation. In support of his contention, he placed reliance on the following decisions in S.P.Sampath Kumar v. Union of India, AIR 1987 SC 386, Narendra Kumar v. Union of India, : [1989]3SCR43 , Sri Konaseema Co-op. Central Bank Ltd, v. N.Seetharama Raju, AIR 1990 AP 171 (FB), Union of India v. Hindustan Development Corporation, : AIR1994SC988 , Binay Kant Mani Tripathi v. Union of India, AIR 1994, 502, Y.S. Vivekananda Reddy v. Governmentof AP., : AIR1996AP403 (FB), 1996 (2) ALD 164 (FB), Krushna Chandra Sahu v. Slate of Orissa, : (1996)ILLJ919SC .
14. On the other hand, Sri Raghuram, learned counsel appearing for the Central Government supported the action of the Union of India in appointing D.V.L.N. Murthy and two others as members of the APAT. According to him, the Prime Minister as Minister In-Charge of Personnel Administration dutifully approved the recommendation on 25-3-1996 made by the State Government. The same was sent to the Hon'ble Chief Justice of India on 27-3-1996 and on 11-4-1996, the Chief Justice gave his concurrence. On the same day the said recommendation was sent to the Secretariat namely the appointment committee of the Union Cabinet On 16-4-1996 the Appointment Committee of the Union Cabinet approved the appointment of the three persons. The same was communicated to the Chief Secretary on 19-4-1996. D. V.L.N. Murthy informed his willingness to accept the post. Accordingly, appointment order was issued on the same day. On 30-4-1996, T.Munivenkatappa's acceptance was received. However, appointment order was not issued to him immediately as the proceedings were pending in the Supreme Court. Further there was an order of the Division Bench of this Court staying the appointment subsequent to the disposal of W.P.No. 95 90/96. T. Munivenkatappa was communicated about the same on 10-6-1996. According to him, Sections 6 and 8 of the Tribunals Act if understood in proper manner prescribing the minimum tenure of period of five years is only directory and not mandatory. Selection and appointment of Members is left to the Selection Committee and other authorities. According to him, there is no illegality or arbitrariness in the impugned proceedings. The petitioner has not shown how his right has been affected in not appointing him. To support his contention he placed reliance on the following decisions in Ramana v. International Airport Authority of India, : (1979)IILLJ217SC , Gurbaksh Singh Sibbia v. State of Punjab, : 1980CriLJ1125 , U.P.S.R.T.C.V. Mohammed Ismail, : (1991)IILLJ332SC . He also took us to the observations of some of the Authors namely De Smith on the subject of 'Judicial Review of Administrative Action' (pages 505, V Edition), P.P.Craiz on the subject of Administration of Law (in Edition page 391), Stewards on 'New Directions in Judicial Review - Current Legal Problems' and also took us to the comments made at page 35, Vol.1 of Halsbury 4th Edition. The stand of the other respondents is almost akin to the stand taken by the 2nd respondent. The averments made in their counters do not differ from the contentions of the Union of India
15. As an answer to these contentions, the petitioner, D.Siva Prasad, filed reply affidavits reiterating the averments made in other two writ petitions and contended that the appointment of the above three persons ignoring the case of the petitioner is quite arbitrary and violative of Article 14 of the Constitution. When there was a bar for appointment, the authorities should not have appointed the three persons and thus urged the Court to dismiss the writ appeal and allow the writ petition No.9819/96,
16. In order to appreciate the rival contentions and to reach a correct conclusion, it is proper to understand the effect of Sections 6 and 8 of the Administrative Tribunals Act, 1985, the object behind in issuing the letter dated 26-12-1994 and the comparative qualifications of the three respondents namely respondents 3 to 5 and the petitioner and the principles enunciated in the authorities relied on by both the parties.
17. Section 6 of the Administrative Tribunals Act, 1985 deals about qualification of appointment of Chairman, Vice-Chairman of other Members of the Tribunal, whereas Section 8 deals about the term of office of Chairman, Vice-Chairman of other Members. The said sections will be referred to a little later.
18. There was a request by the State of Andhra Pradesh to accord permission to fillup the posts of Vice-Chairman and other members of the APAT from among the panel selected by the Selection Committee headed by the Cheif Justice of Andhra Pradesh, the Chairman of the APAT, the Chief Secretary of Andhra Pradesh and the Chairman of the Public Service Commission. As on the date of selection, there was one post of Vice-Chairman and four posts of Members out of the said posts, three were Administrative Members and the fourth one a judicial member. One Mr.RV.Krishnan, who was working as Member was recommended for the post of Vice-Chairman. Thus, the post held by him was also due for vacant. For the posts of Administrative Members, Sri. D.V.L.N. Murthy and Sri T.Mumvenkatappa were recommended. The name of Sri Venkatapathi Raju was also recommended in anticipation of the resultant vacancy going to be caused by virtue of Sri R. V.Kmhawn 's appointment as Vice-Chairman. In order to know how the proceedings to fill up the said posts took place, the file pertaining to the proceedings maintained by the Personnel and Training, Union of India was called for and on a direction the same was produced. From the proceedings, it can be seen that during April, 1996, the State of Andhra Pradesh had sent a panel of three names, namely Sri D. V.L.N.Murthy, Sri T.Munivenkatappa and Sri Venkatapathi Raju to appoint them as Administrative Members. At that lime, if those persons were appointed, the tenure would have been three years and 8 1/2 months, four years and four months and three years and three months respectively. The file relating to the recommendations of the Selection Committee and approval of the Government of Andhra Pradesh were sent to the Hon'ble Prime Minister for approval. At that stage, a query was raised keeping in view the observations of the Hon'ble Chief Justice of India, who had observed that in the matter of appointment to the posts of Chairman, Vice Chairman or Members, the candidate shall have the tenure of full term of five years. As the age of any one of the candidates was not in accordance with thequery raised by the Hon'ble the Chief Justice of India, the proposals of the State Selection Committee were sent back for reconsideration and to submit a fresh panel. However, the State Government took a stand that the panel earlier sent be considered on the same basis and recommended by the Selection Committee presided by the Chief Justice of Andhra Pradesh. The State also said that the Administrative Tribunals Act does not stipulate any age limit as qualification for appointment as Members. As the State Government did not reply properly to ihe Government query, the said proposal was not pursued further.
19. According to the Personnel andTraining Department the qualification of tenure of office of five years to appoint as a member of the Administrative Tribunal is not mandatory. On the other hand, the selections were made by the Selection Committee following its procedure and guidelines devised by it. The Personnel and Training Department further took into consideration the instance where a person who had three years and a months tenure was appointed as a Member of the Himachal Pradesh Administrative Tribunal, keeping the above in mind, once again, the Department requested the Cheif Justice of India to approve the list recommended by the Selection Committee which received green signal.
20. During the period of correspondence, there was interim stay in W.P.No.9894of 1996 granted on 26-4-1996. By the time, the interim stay order was received by the Department of Personnel and Training. On 19-4-1996 the appointment order of Sri D. V.LN.Murthy was issued. Later he took charge as such on 30-6-1996. The order of appointment of Sri Munivenkatappa was not issued as his retirement from the State service was not communicated to Personnel and Training Department whereas Sri Venkatapathi Raju was appointed with effect from 7-5-1996. Stay in his case could not be implemented as he was not a party to the said writ petition. From the records it is seen that not only the names of the abovethree persons but also the name of writ petitioner available in the panel of names to be considered for selection as Member of the Andhra Pradesh Administrative Tribunal, by the Selection Committee. As on the dale of submitting his application and the date of selection and even on the date of ordering appointment, he was less than 57 years, that means, if he was appointed he would have been there for more than five years. Sri Venkatapathi Raju assumed charge as Member on 7-5-1996 while Sri Munivenkatappa assumed charge on 28-10-1996. Thus, on the date of appointment, the members so appointed had no full period of five years of tenure. However, the Department of Personnel and Training took a view that Rule of five years only an 'executive instruction' but not 'inflexible rule'. As on the date of interim order granted in the writ petition, Sri Munivenkatappa had not submitted his resignation to his earlier post whereas the resignation of Venkatapathi Raju was made on 30-4-1996. The interim order of slay granted in the writ petition was stayed in writ appeal on 10-6-1996.
21. Before the amendment of the Administrative Tribunals Act, Section 8 of the Act dealing with the term of office was as follows:
'8. Term of office: The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains:
(a) in the case of the Chairman or Vice-Chairman, the age of sixty-five years, and
(b) in the case of any other Member, the age of sixty-two years, whichever is earlier.'
The term of five years for Chairman, Vice-Chairman and Members prescribed whether gives any incentive or otherwise had come up for consideration before the Supreme Court of India in the case of A.F.Sampath Kumar v. Union of India, AIR 1987 SC 386 and dealing with the same, the Supreme Court held as follows:
'Section 8 prescribes the term of office and provides that the term for Chairman, Vice-Chairman or members shall be five years from the date on which he enters upon his office or until he attains the age of 65 in the case of Chairman or Vice-Chairman and 62 in the case of Member, whichever is earlier. The retiring age of 62 and 65 for the different categories is in accordance with the pattern and fits into the scheme in comparable situations. However, appointment for a term of five years may occasionally operate as a disincentive for well-qualified people to accept the offer to join the Tribunal. There may be competent people blonging to younger age groups who would have more than five years to reach the prevailing age of retirement. The fact that such people would be required to go out on completing the five year period but long before the superannuation age is reached is bound to operate as deterrent. Those who come to be Chairman, Vice-Chairman or Members resign appointments, if any, held by them before joining the Tribunal and, as such, there would be no scope for their return to the place or places from where they come. A five year period is not a long one. Ordinarily some time would be taken for most of the members to get used to the service - jurisprudence and when the period is only five years, many would have to go out by the time they are fully acquainted with the law and have good grip over the job. To require retirement at the end of five years is thus neither convenient to the person selected for the job nor expedient to the scheme.'
After the above pronouncement by the Supreme Court, Section 8 of the Administrative Tribunals Act, 1985 was amended which reads as follows:
'Term of office :--The Chairman Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years:
Provided that no Chairman, Vice-Chairman or other Member shall hold office as such after he has attained,--
(a) in the case of the Chairman or Vice-Chairman, the age of sixty-five years, and
(b) in the 'case of any other Member, the age of sixty-two years'
The tenure of five years introduced in the Act is pursuant to the decision of the Supreme Court rendered in S.P.Sampath Kumar v, Union of India, AIR 1987 SC 386. The said decision suggested that a person to be appointed should have a longer period. Otherwise, if the persons having short period appointed, it may not serve the purpose for which they were appointed. In order to acquaint with different types of laws, normally one will take a long period. Further, if such tenure is not fixed, it could not be possible to attract the young and dynamic persons to occupy the said positions. The letter dated 26-4-1994 written by the Hon'ble the Chief Justice of India mentioning that the persons to be appointed shall have minimum five years of tenure was pursuant to the principles laid down in S.P.Sampath Kumar's cast. When the section is quite clear as to the tenure of office, it is difficult to understand that the tenure of five years is only an 'executive instruction' and not 'inflexible rule'.
22. When a qualification is prescribed for a particular assignment, such a requisite qualification shall be fulfilled. The said view has been expressed by the Supreme Court in Ratnana v. LA. Authority of India, : (1979)IILLJ217SC :
'Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government, which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and itcannot act arbitrary and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.''
In Narendra Kumar v. Union of India, : [1989]3SCR43 , the Supreme Court held as follow:
'The power of discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confirmed and structured by rational, relevant and non-discriminatory standard or norm and, if the government departed from such standard or norm in any particular case or cases, the action of the government would be liable to be struck down, unless it could be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, irrelevant, unreasonable or discriminatory.'
In the case of UPSRTC v. Mohd. Ismail, : (1991)IILLJ332SC , the Supreme Court held that the discretion allowed by the statute to the holder of an office is intended to be exercised 'according to the rules of reason and justice, not according to private opinion;. according to law and not humour. It is to be,, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself Every discretion conferred by statute on a holder of public office must be exercised in furtherance of accomplishment of purpose of the power.
23. Thus any action or decision shall be just reasonable and shall not be arbitrary ordiscriminatory.
24. In Union of India v. Hindusthan Development Corporation, : AIR1994SC988 , the Supreme Court of India held that even in the matter of administrative acts of the State, there shall not be arbitrarinessotherwise it violates Article 14 of the Constitution of India In the same case their Lordships while dealing with the legitimate expectations observed as follows:
'Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. By and large they arise in cases of promotions which are in normal course expected, though not guaranteed by way of a statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. For instances in cases of discretionary grant of licences, permits or the like, carries with it a reasonable expectation, though not a legal right to renewal or non-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the Court has to see whether it was done as a policy or in the public interest either by way of G.O., rule or by way of a legislation. If that be so, adecision denying a legitimate expectation based on such grounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore, the limitation is extremely confined and if according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the Court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the Court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the Court will not interfere on the ground of procedural fairness to a person whose interest basedon legitimate expectation might be affected. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Art. 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action, must be restricted to the general legal limitations, applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits, 'particularly when the element of speculation and uncertainty is inherent in that very concept. The Courts should restrain themselves and restrict such claims duly to the legal limitations.'
Whenever there was a promise indicating an aspirant to do a particular thing and obtained consent, subsequently the Government is estopped from withdrawing the consent as held by the Full Bench of this Court in Y.S.Vivekananda Reddy v. Government of A.P., : AIR1996AP403 , which is extracted below:
'Consent of the State Government was a pre-condition of the sub-lease and thus a step before the actual contract came into existence. But for the representation by the State Government in the form ofconsent the Corporation would not have executed the sub-leases and the pattedars could not have acquired the sub-leases. Such a precontract stage representation alone made the pattedars to proceed to acquire the sub lease and to alter their position, to enter into the contract of sublease. The State Government shall be estopped from going back from its representations in the form of consent and thus cancel the same. The principle of promissory estoppel could be extended to the facts of the instant case. One should have no wonder if the State Government had a clear perception and the Central Government also had the same perception that in a case, in which the State Government granted lease to another and the lessee in turn granted sub-lease, previous approval of the Central Government was not required. They interpreted the law correctly when they gave consent to the grant of sub-leases to the pattedars and later when they changed their view and took the stand that subleases should not have been granted to pattedars because previous approval of the Central Government had not been obtained, the Central Government expressed its disapproval to the said view by staying the order of the State Government and thus continuing the sub-lease.''
In Binay Kant Mani Tripathi v. Union of India and others, : (1994)IILLJ30SC , the Supreme Court while dealing with the appointment of Vice-Chairman of the Central Administrative Tribunal who crossed the age fixed for retirement of a High Court Judge and dealing with Sec.6 of the Administrative Tribunals Act, 1985 observed that any person being qualified to be a judge of the High Court, his appointment cannot be challenged on the ground that he has crossed the age fixed for the retirement of a High Court Judge. On facts this decision and other decisions relied upon by Sri Raghumm have no application.
25. While interpreting Sec.8 of the Administrative Tribunals Act, 1985, we have to take into consideration the legislative intentwhich can be found in the language which the Legislature uses. Any ambiguities can undoubtedly be resolved by resort to extraneous aids but words, shall be given full effect, as explained by the Supreme Court in Gurbakshi Singh v. Slate of Punjab, : 1980CriLJ1125 .
26. From the facts narrated and the discussion made above, it is clear that the post of Member of Administrative Tribunal is to discharge the judicial functions. To be an administrative member though one need not possess a law degree but possessing higher qualifications particularly in the field of law will be helpful to such a member to discharge his functions more effectively. The petitioner herein like the other respondents who were appointed as Administrative Member of the Tribunal possessed I.A.S. In addition, the petitioner also possessed MA. in Public Administration obtaining a rank, did his PhD. in Personnel Management and Commercial Taxes and also possessed LLM Degree. These special qualifications will be useful for the Member to discharge the judicial functions more effectively. The petitioner herein possessed the above special qualification whereas the other respondents namely Munivenkatappa, D. V.L.N.Murthy and Venkatapathi Raju did not possess such special qualifications. Section 8 of the Amended Act is in tune with the principles laid down by the Supreme Court in the case of 'Sampath Kumar wherein it is held that in the matter of appointment to the post of Administrative Member, it is always proper to appoint younger people so that they will have more tenure during which period they can equip themselves with more legal knowledge and discharge their duties effectively. On an earlier occasion, the Union Government in its proceedings dt: 11-7-1994 rejected the State Government's recommendations in respect of T.S.Rao, V- V.Satyanarayana and T. V. Rangarajan to appoint them as members of the A.P. Administrative Tribunal on the ground that they had less than five years of service whereas the term of office is five years. From this what implies is that the Governmentwanted to appoint only those who have five years or more for the post of members to Administrative Tribunals. When the remarks of the Hon'ble Chief Justice of India were requested, the Hon'ble Chief Justice was pleased to inform the Union of India that while making appointment either to the post of Chairman or the Members of the Administrative Tribunal, the candidate shall be in a position to serve for a period of more than five years. In the panel that was prepared by the Selection Committee of the State, several names were included including the name of the petitioner placing him above Venkatapaihi Raju and also the names of D. V.L.N.Murthy and Munivenkatappa. At the lime of selection all the three respondents namely D.V.L.N. Murlhy, Munivenkatappa and Venkatapathi Raju, some other applicants were more than 57 years of age. Thus, they had no chance to serve as Members at least for a full period of five years, whereas the petitioner as on the date of appointment of the above three persons had more than five years to serve. At the time of issuing appointment orders, the single Judge of this Court issued interim orders in WPMP No. 9590/96 wherein it is ordered that while making appointment to the post of Administrative Member, the Government should stick to the policy stated in the letter dt:26-12-1994 and see that the candidates seeking appointment have a maximum tenure of five years. The same was communicated to the respondents 1 and 2. Inspite of the receipt of the said order, the respondents proceeded to appoint the above three respondents namely Munivenkatappa, DVLN Murthy, and Venkatapathi Raju. The reasons which prompted the respondents to consider the case of these respondents for appointment as Members of the A.P. Administrative Tribunal are that Section 8 of the Act is not mandatory, but it is directory and selection and appointment is left to the discretion of the Selection Committee. In other words, the rule of five years is only an executive instruction but not inflexible rule. It is for the Selection Committee to adopt its own guidelines and method to make selections. Toignore five years rule in this case was because that on an earlier occasion, a candidate who had less than five years tenure namely who had three years and a month tenure was appointed as Member of the Himachal Pradesh Administrative Tribunal. As such no irregularity was committed in the present case to appointment respondents 3 to 5 namely Munivenkatappa, DVLN Murthy and Venkatapathi Raju. The Selection Committee constituted is the best judge in the matter of selection. The Selection Committee can adopt its own method or policy in making selection and the Court cannot substitute its opinion. But when once the Court notices that there is some arbitrariness or deviation of mandatory requirements, the Court can observe such selection is incorrect. The selection though an administrative act but it shall not be arbitrary and capricious. But it shall be just and reasonable and shall not reflect that there is any deviation of mandatory requirements. When the name of petitioner was proposed along with the others in the panel for purpose of selection and when the Government sought the petitioner's willingness for selection to the post of Administrative Member he was right in expecting that the respondents would consider his case favourably as he possessed better qualifications both academic and age than the respondents 3 to 5. The respondents-officials should have adhered to the mandatory requirements of Section 8 of the Act. The Selection Committee while making assessment of suitability of the candidates it should have made an objective assessment. Though it is difficult to say there was any discrimination or malafides on the part of the Selection Committee in recommending respondents 3 to 5 ignoring the name of the petitioner, but the fact remains the non-consideration of the petitioner's name for selection is contrary to Section 8 of the Act. If we consider the case of appointment of respondents 3 to 5 keeping in view the scope of Section 8 of the Act and the principles laid down by the Supreme Court in Sampath Kumar case as to the tenure and the other decisions on various aspects particularly that the authoritiesvested with powers to appoint shall act fairly and their action shall be free from any arbitrariness, we can hold without any hesitation that non-consideration of the petitioner for the post of Administrative Member of the APAT though not a malafide one but it lacks proper and objective evaluation of various factors required for being appointed as Administrative Members. If the claim of the petitioner had been properly considered, he would have been appointed as Member of the APAT in place of any one of the respondent Nos.3 to 5. Since respondents 3 to 5 were appointed long back and they are discharging their duties, at this stage it will not be proper to quash their appointment and ask the Government to fill up the resultant vacancy by appointing the petitioner. In our view justice though delayed but be met if the respondents-officials are directed to consider the case of Sri D.Siva Prasad, the petitioner herein to appoint him as a Member of the APAT as and when a vacancy arises.
24. Accordingly, the respondents-authorities are directed to appoint Sri D.Siva Prasad, the petitioner herein as a Member of the A.P. Administrative Tribunal and continue him till he attains the age of 62 years as and when a vacancy arises. With this observation, the Writ Appeal and the Writ Petition are disposed of. No costs.