JUDGMENT
V.P. Tipnis, J.
1. We have heard this petition for a considerable length of time. We have heard Shri Singh learned Counsel for the petitioner and Shri Apte learned Additional Advocate General of the State of Maharashtra for respondent Nos. 1 and 3.
2. By this petition the petitioner is seeking quashing and setting aside the selection and appointment of 5th respondent Shri Dravid and 6th respondent Shri Sakhalkar as Administrative Members of the Maharashtra Administrative Tribunal at Aurangabad and Nagpur Benches respectively. There are several other reliefs claimed in the petition. The only other relief which is relevent, is further direction to consider the petitioner for appointment as Administrative Member for the aforesaid posts.
3. Upon enquiry the petitioner signified his willingness to be considered for appointment as Administrative Member of the Maharashtra Administrative Tribunal, Aurangabad Bench and in fact he accordingly applied on 2nd July 1994 for the purpose. In a meeting held on 6-2-1995 by the Selection Committee one G.B. Pingulkar was selected for the post of Administrative Member of the Maharashtra Administrative Tribunal, Aurangabad Bench. The petitioner filed writ petition bearing Writ Petition No. 1196 of 1995 before the Nagpur Bench of this Court challenging the aforesaid selection of Shri Pingulkar. After hearing the parties the said petition was admitted but later on admittedly withdrawn by the petitioner. It is further an admitted position before us that ultimately the Central Government did not approve the selection of said Shri Pingulkar on the ground that Shri Pingulkar was not qualified on the date of selection. Again a meeting was held by the Selection Committee however, nobody was selected. It appears that the Selection Committee sometimes in November 1995 again considered several applicants for selection for the post of Administrative Member of the Maharashtra Administrative Tribunal, Aurangabad Bench and ultimately one Zamre was selected. Sometimes in April 1996 recommendations in favour of said Shri Zamre were rejected by the Government of India on the ground that the said Shri Zamre was not qualified. It is relevant to notice that on all these occasions admittedly petitioner’s case was also considered by the Selection Committee.
4. It appears that by a communication dated 16-4-1996 the Government of India informed all the State Governments including the State of Maharashtra that while making selection for appointment of the Administrative Members of the Maharashtra Administrative Tribunals, only such persons may be considered who are not more than 57 years old at the time of applying for the post. On 17-8-1996 the petitioner submitted a representation to the Government of Maharashtra contending that these administrative instructions are violative of Articles 14 and 16 of the Constitution of India and should be rescinded. It was also prayed that petitioner’s name may be considered by the Selection Committee in its next meeting for selection to the post of Administrative Member of the Maharashtra Administrative Tribunal at its Bench at Aurangabad as also at Nagpur. Identical representation was also made to the Government of India by a communication dated 2-9-1996. However, the name of the petitioner was not placed before the Selection Committee for the aforesaid selection of Administrative Member on the Aurangabad and Nagpur Benches of the Maharashtra Administrative Tribunal only because the petitioner by August or September 1996 was over 57 years of age and ultimately in the said meeting one Shri V.R. Dravid respondent No. 5 and one Shri V.S. Sakhalkar respondent No. 6 were selected as Administrative Members of the Maharashtra Administrative Tribunal at Aurangabad and Nagpur Benches respectively. It is an admitted position that selection of Shri Dravid and Shri Sakhalkar has been duly approved by the Central Government as also by the Chief Justice of India and in fact orders of their appointment as such members have been issued by the President of India on 31-1-1997.
5. In the aforesaid circumstances this petition has been filed by the petitioner for the reliefs which we have already mentioned above. Apart from several allegations of mala fides against the then Chief Secretary Mr. Upasani, who is 4th respondent to the petition, it was contended that when Pingulkar’s recommendation was not approved and when again Selection Committee considered the candidates for appointment of Administrative Member of the Maharashtra Administrative Tribunal at Aurangabad Bench it was impermissible for the Selection Committee to consider any other candidates save and except those who were considered in its first meeting. In other words Shri Singh contended that once a selection out of candidates available is made which selection is not approved and the committee is required at a later stage again to select a candidate, only those candidates could be considered, who were considered on the earlier occasion. Secondly Shri Singh contended that in any case the petitioner has outstanding record whereas one of the selected candidates i.e. Shri Dravid was superseded on innumerable occasions and as such selection of Shri Dravid is absolutely unjustified. Thirdly Shri Singh contended that in any case the administrative instructions issued by the Central Government by its communication dated 16-4-1996 are impermissible and unlawful inasmuch as in effect it creates an additional condition of qualification for becoming member of the Administrative Tribunal, apart from the statutory requirement as provided in section 6(3A) of the Administrative Tribunals Act, 1985. Shri Singh in this behalf pointed out several judgments and contended that these so called administrative instructions are clearly contrary to the provisions regarding qualifications as found in section 6(3A) of the Administrative Tribunals Act, 1985. Shri Singh then contended that on merits those instructions are clearly discriminatory between the judicial member and the administrative member inasmuch as for judicial member the instructions contemplate that the names of only such persons may be considered, who if appointed, will have at least 4 years tenure whereas in the case of administrative member the names of only such persons may be considered who are not more than 57 years old at the time of applying for the post meaning thereby they must have a tenure of about 5 years. Shri Singh therefore contended that non consideration of petitioner’s case altogether by the Selection Committee when said Shri Dravid and Shri Sakhalkar were selected completely vitiates the selection procedure and consequently the said selection has to be quashed and set aside and selection afresh has to be made when the petitioner also should be considered alongwith other candidates.
6. The learned Additional Advocate General Shri Apte submitted that so far as the allegations of mala fides against Shri Upasani are concerned there is absolutely no basis for the same. Shri Apte contended that petitioner’s submission that every time the candidate selected is ultimately not approved by the Central Government and when fresh selection takes place it is like a review proceeding, is incorrect. Shri Apte pointed out that in consonance with the directions of the Apex Court and as per the instructions of the Central Government a High Powered Selection Committee headed by the sitting Chief Justice of this Court and consisting of the Chairman of the Maharashtra Public Service Commission (MPSC), Chairman of the Maharashtra Administrative Tribunal (MAT) and the Chief Secretary of the State is constituted. Shri Apte emphasized the fact that the committee consisting of at least 2 Constitutional functionaries like the Chief Justice of this Court and the Chairman of MPSC by no stretch of imagination could be amenable to any influence either by the State or by the Chief Secretary who is merely one of the members of the Selection Committee. Shri Apte therefore submitted that the allegations against the selection committee are absolutely baseless. Shri Apte emphasized the fact that the petitioner was considered on all 3 prior occasions by the high powered committee and every time someone else was selected and recommended in preference to the petitioner. Shri Apte submitted that section 35 of the Administrative Tribunals Act, 1985 empowers the Central Government to make Rules, and as of this date no rules are framed under the said provision. Shri Apte submitted that as a matter of fact it is settled law that in the absence of rules it is always permissible for the Government to issue administrative instructions for implementing the provisions of the Act, and that even when there are rules, it is permissible for the competent authority to give administrative instructions either for providing for matters not provided for by the rules or for supplementing the existing rules or statutory provisions. Shri Apte emphasized the fact that as is expressly stated in the administrative instructions the instant instructions were given specifically in view of the opinion and recommendations of the Hon’ble Chief Justice of India. Shri Apte contended that they are not in any way in conflict with any statutory provisions. Shri Apte also relied upon paragraph 21 of the judgment of the Apex Court reported in A.I.R. 1987 S.C. 386 S.P. Sampath Kumar v. Union of India & ors, in support of his contention that the administrative instructions providing that only the candidates who have not completed the age of 57 years on the date of application should be considered, is just fair and absolutely proper. Shri Sakhare learned Counsel for the Union of India supported the submissions of Shri Apte.
7. So far as the allegations of mala fides are concerned we do not consider them to be sufficient to vitiate the earlier selections or selections of Shri Dravid or Shri Sakhalkar. As stated earlier the Selection Committee consists of the sitting Chief Justice of this Court, Chairman of MPSC and Chairman of the MAT as also Chief Secretary of the State. Taking into consideration the high constitutional office which the Chief Justice of this Court and the Chairman of the MPSC enjoy and further taking into consideration that the Chairman of the MAT who is the other member also cannot be expected to be under any influence either of the State or the Chief Secretary, we find it extremely difficult to accept the contention of the petitioner that all these high functionaries, two of them being constitutional functionaries, can get influenced solely because of the alleged bias or mala fides entertained by the Chief Secretary of the State, who is only one of the members of the Selection Committee. Shri Singh also submitted that Shri Dravid was superseded on many occasions and could not have been legitimately selected on merits. We do not think it permissible for us to go into this aspect. The election is made by the duly constituted high power Selection Committee. Such a selection by such an independent body cannot be lightly brushed aside. It is for this reason we do not find any force in the submission of Mr. Singh that non selection of the petitioner on earlier three occasions or selection of Shri Dravid and Shri Sakhalkar on the later occasion is vitiated in any manner.
8. We also do not find any merit in the second contention of Shri Singh i.e. that on earlier occasion when Pingulkar’s recommendation was rejected by the Central Government or when Zamre’s recommendation was also rejected by the Central Government, the Selection Committee in law could not have considered any other candidates save and except those candidates who were considered at the first instance. We are not at all impressed by the submission that in such a case all subsequent meetings for the purpose of selection are review proceedings. Reference and reliance placed in this behalf on some instructions by the Central Government in respect of the proceedings of departmental promotion committees, in our opinion is thoroughly irrelevant and inapplicable to this committee which in our opinion has unique composition and which is constituted for altogether different purpose. The selection as Administrative Member of the MAT is not for any promotional post. This is altogether an ex-cadre post for which selection has to be made in accordance with the provisions of the Administrative Tribunals Act. As such we do not find much merit in the second contention of Shri Singh.
9. So far as the exclusion of the petitioner altogether from consideration on the ground that he has completed 57 years of age in the meeting when Mr. Dravid and Mr. Sakhalkar were selected is concerned, we must state that the communication dated 16-4-1996 which is termed as administrative instructions raises certain important questions especially on the aspect as to which is the authority, which should implement these instructions even if they are found lawful and valid.
10. Shri Singh cited the following authorities in support of his submissions that the instructions are totally unlawful, and invalid on the ground that these instructions add to the statutory provisions of the qualifications of a person to be eligible to be selected as an Administrative Member of the MAT :
1. 1992 Supp (1) Supreme Court Cases 150 State of Madhya Pradesh and anr. v. M/s. G.S. Dall and Flour Mills, and paragraph No. 24 in particular.
2. State of Haryana etc. v. Shamsher Jang Bahadur etc., paragraph 7 in particular.
3. Ex-Capt K. Balasubramanian and ors. v. State of Tamil Nadu & anr., paragraphs 8 and 9 in particular.
4. Union of India and ors v. Arun Kumar Roy, paragraphs 13, 14 and 15 in particular.
5. P.D. Aggarwal and ors. v. State of U.P. & ors., paragraph 20 in particular.
6. Guman Singh v. State of Rajasthan & ors, paragraph 37 in particular.
7. 1986 Lab.I.C. 786 Indravadan H. Shah v. State of Gujarat & anr., paragraphs 9 and 10 in particular.
We do not find it necessary to refer to these authorities in detail as in almost all these cases the Apex Court considered particular facts of the case before it in order to see whether those facts satisfy the requirement of the ratio in the judgment of the Apex Court in the matter of Sant Ram Sharma v. State of Rajasthan, . In paragraph 8 of the decision Supreme Court observed that the decisions to which they have made a reference including Sant Ram Sharma’s case it has been laid down that although the Government cannot amend the statutory rules by administrative instructions but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
11. Shri Apte as stated earlier brought to our notice the judgment of the Apex Court in the matter of Sampath Kumar’s case and especially to paragraph 21 thereof. Section 6 of the Administrative Tribunals Act, 1985 in so far as relevant provides as under :
“6(3A). A person shall not be qualified for appointment as an Administrative Member unless he-
(a) has, for at least two years, held the post of an Additional Secretary to the Government of India, or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(b)has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India;
and shall, in either case, have adequate administrative experience”
Thus so far as the qualification for appointment as Administrative Members of MAT is concerned, the Act only provides as indicated in Clauses (a) and (b) of section 6(3A) of the said Act. The administrative instructions in the form of communication date 16-4-1996 are as under :
“No.A. 11014/1/96-AT Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi 110001, the 16th April 1996
To
The Chief Secretary
Government of Andhra Pradesh, Himachal Pradesh,
Karnataka, Madhya Pradesh,
Maharashtra, Orissa,
Punjab, Tamil Nadu, and West Bengal.
Sub- Procedure for appointment of Vice Chairman
and Members in the State Administrative
Tribunal (SAT).
Sir,
Kind reference is invited to this Department’s Order No.A. 11013/54/90/AT dated 27th May 1993 on the above subject (copy enclosed)
2. As per section 8 of the Administrative Tribunals Act, 1985, a Vice Chairman or a member holds office for a term of five years from the date on which he enters upon his office or till he attains the age of 65 years in the case of a Vice Chairman and 62 years in the case of Member, whichever is earlier.
3. It is in the interest of continuity and smooth functioning of an Administrative Tribunal that appointments to the post of Vice Chairman and Members are made of such persons who may hold office for a period of five years or as near to that period as possible.
4. It has been noticed in the past that in some cases, State Governments have been sending proposals for appointments in respect of persons who, if appointed, would hold office for a very short period resulting in frequent change of incumbents thus affecting the continuity and smooth functioning of the Tribunal. This aspect has been commented upon by the Hon’ble Chief Justice of India when consultations were made with him for such appointments.
5. It would, therefore, be appropriate to take into account the following criteria while making selection for appointments of Vice Chairman and Members in the State Administrative Tribunal :-
(i) For the post of Vice Chairman, the names of only such persons may be considered who will have about three years tenure available in the State Administrative Tribunal, if appointed.
(ii) For the post of Judicial member the names of only such persons may be considered who, if appointed, will have at least four years tenure in the State Administrative Tribunal.
(iii) For the post of Administrative Member in Administrative Tribunals the names of only such persons may be considered who are not more than 57 years old at the time of applying for the post.
These guidelines may also be brought to the notice of the Members of the Selection Committee.
Yours faithfully,
Sd
Smt. Sarita Prasad
Joint Secretary to the Government of India.”
Thus it is clear that the instructions are issued in the interest of continuity and smooth functioning of the Administrative Tribunals that the appointments to the post of Vice Chairman and Members are made of such persons who may hold office for a period of their permissible tenure or as near to that period as possible. The letter further makes it clear that it has been noticed in the past that in some cases, State Governments have been sending proposals for appointments in respect of persons who, if appointed, would hold office for a very short period resulting in frequent change of incumbents thus affecting the continuity and smooth functioning of the Tribunal. The letter makes express reference to the fact that this aspect has been commented upon by the Hon’ble Chief Justice of India when consultations were made with him, for such appointments. In paragraph 5 the letter proceeds to state that therefore it would be appropriate to take into account the following criteria while making selection for appointment of Vice Chairman and Members in the State Administrative Tribunal. The formula provides that for the post of Vice Chairman the names of only such persons may be considered who will have about three years tenure available in the State Administrative Tribunal, if appointed; for the post of Judicial Member the names of only such persons may be considered who, if appointed will have at least four years tenure in the State Administrative Tribunal and for the post of Administrative Member in the Administrative Tribunals the names of only such persons may be considered who are not more than 57 years old at the time of applying for the post. The letter significantly states in the last paragraph that these guidelines may also be brought to the notice of the members of the Selection Committee.
12. On the express provisions of section 6(3A) of the Administrative Tribunals Act, 1985, undoubtedly there is no such condition that the applicant must not be over 57 years of age on the date of application. To read such a condition on the basis of the aforesaid administrative instructions may amount to adding some condition of qualification which is not provided by the substantive provisions of the Act.
13. In this context it is relevant to notice that as per guidelines in the letter dated 27-5-1993 regarding the procedure for appointment of Vice Chairman and Members of the State Administrative Tribunals the Government of India directed that for the purpose of selection of Vice Chairman and Members of the concerned State Administrative Tribunals there shall be a Selection Committee of the concerned State Government consisting of :
1. Chief Justice of the High Court of the concerned State.
2. Chief Secretary of the concerned State Government .
3. Chairman of the State Administrative Tribunal of concerned State and
4. Chairman of the State Public Service Commission of the concerned State.
In paragraph 2 it was provided that the Selection Committee shall recommend persons for appointment as Vice Chairman and Members from amongst the persons on list of the candidates prepared by Chief Secretary/Secretary General Administration Department or Personnel Department of the State Government after writing to various cadre controlling authorities of the State. In paragraph 4 it is provided that the Selection Committee of the concerned State Government may devise its own procedure or lay guidelines for inviting applications as also for selection of Vice Chairman and Members of the State Administrative Tribunal of the concerned State Government
14. The State Government has produced before us the minutes of the meetings of the Selection Committee held on 29th January 1994. In the said meeting the Selection Committee consisting of Hon’ble the Chief Justice, Chief Secretary of the State, Chairman of the MAT and Chairman of the MPSC. considered the guidelines for the functioning of the committee and in fact determined the guidelines. In guideline No. 5 it is provided that as far as possible and subject to availability, a panel of at least 3 names should be put up for each vacancy for consideration of the committee. So far as the Judicial Members are concerned, the Chief Justice would recommend the names. In regard to administrative members the Chief Secretary would put up the names alongwith bio-data and annual confidential reports. In guideline No. 7 inter alia it was provided that in regard to selection of members, (administrative) it should be ensured that the person concerned had exercised in the past quasi judicial powers.
15. In Sampath Kumar’s case in paragraph 21 the Apex Court has observed as under:
“21. Section 8 of the Act prescribes the term of office and provides that the term for Chairman, Vice Chairman or members shall be of 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 or 65 for the different categories is in accord with the pattern and fits into the scheme in comparable situations. We would, however, like to indicate that 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 belonging 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 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. At the hearing, learned Attorney General referred to the case of a member of the Public Service Commission who is appointed for a term and even suffers the disqualification in the matter of further employment. We do not think that is a comparable situation. On the other hand membership in other high powered tribunals like the Income Tax Appellate Tribunal or the Tribunal under the Customs Act can be referred to. When amendments to the Act are undertaken, this aspect of the matter deserves to be considered, particularly because the choice in that event would be wide leaving scope for proper selection to be made”.
It is also relevant to notice that as a matter of fact in the subsequent amendment to the Administrative Tribunals Act, 1985, various recommendations of the Apex Court in the aforesaid decision were given effect to and recommendations in paragraph 21 to which we have made a detailed reference, were given effect to by amending section 8, by additionally providing that the Chairman, Vice Chairman or other members, shall be eligible for reappointment for another term of 5 years. According to Shri Apte reading the provisions of section 6, and section 8 in the context of expression of opinion by the Apex Court in paragraph 21 in Sampath Kumar’s case, there could be no manner of doubt that the instant administrative instructions contained in the communication dated 16-4-1996 are proper, valid and lawful. Shri Apte emphasized that under section 34 of the Administrative Tribunals Act if any difficulty arises in giving effect to the provisions of the Act the Central Government may by order published in the Official Gazette make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty. Shri Apte further relied upon the provisions of section 35 of the said Act empowering the Central Government to make rules. Shri Apte contended that no rules have been framed as yet and in the absence of any rules, it is always permissible and lawful for the Central Government to issue administrative directions.
16. There could be hardly any dispute that in the absence of rules or even when there are rules, the State can issue administrative instructions either to provide for effective implementation of the provisions of the Act or to provide for matters not provided for in the rules or to supplement the rules. But one thing can never be disputed that any rules framed under section 35 or order published in the Official Gazette to remove any difficulty arising in giving effect to the provisions of the Act, under section 34 of the Act cannot be inconsistent or contrary to the provisions of the Act. We are of the opinion that the aforesaid administrative instructions cannot be read as if it lays down a rule that the person who is over the age of 57 years on the date of the application cannot be considered at all for selection as Administrative Member of the MAT. Reading the administrative instructions in such a manner, in our opinion would clearly amount to amending the provisions of section 6(3A) of the said Act by adding additional condition to the qualifications i.e. that the applicant must be below 57 years of age on the date of application, which cannot be permissible or lawful. Substantive provision of the Act cannot be amended by administrative instructions.
17. The learned Counsel for the petitioner submitted that even if these administrative instructions are to be taken into consideration it must be left to the Selection Committee while selecting the candidates and not by the Chief Secretary at the very threshold while preparing the panel of candidates for consideration by the Selection Committee. We find considerable merit in this submission. The learned Additional Advocate General submitted that as per the administrative instructions the Chief Secretary was within his powers not to forward the case of any candidate who on the date of the application completes 57 years of age. Undoubtedly there is much to be said in favour of the view that the candidates for such a post must be selected in such a fashion so as to have a reasonably long tenure with a view to ensuring that the person who is appointed as an Administrative member gets himself sufficiently trained in discharging the judicial functions. However, we must notice that the administrative instructions are part of the guidelines while making selections for appointment of the members in the State Administrative Tribunal. The stage of selection is only when the candidates are considered by the duly constituted committee. Last part of the guidelines to the effect that these guidelines may also be brought to notice of the members of the Selection Committee, in our opinion leave no doubt that the intention was that this aspect of the matter was expected to be adverted to by the Selection Committee while selecting candidates out of the available candidates. Member of the State Administrative Tribunal is an important position and the candidate is selected upon scrutiny by a very high powered committee headed by the Chief Justice and which committee also includes Chairman of the MAT and Chairman of the MPSC. If these instructions are read, as the learned Additional Advocate General would like us to read, in effect it would mean that merely because a candidate has completed 57 years his case will not be considered at all by the Selection Committee and such a candidate in reality becomes totally disqualified for even being considered. That cannot be lawful in the face of provisions of section 6(3A) of the Act. As a matter of fact the committee as stated earlier has recommended that a panel of at least 3 names should be put up for each vacancy for consideration of the committee and in regard to the administrative members the Chief Secretary would put up names alongwith the bio-data and the annual confidential reports. Upon our enquiry as to on what basis on the earlier 3 or four occasions names of 3 or 4 persons were forwarded we were informed by the learned Additional Advocate General that no occasion to prepare the panel arose because the number of applicants was always less than the number required to be placed on panel according to the formula. This indicates that it is likely that there may not be enough number of applicants as per the formula of 3 candidates per vacancy. In such an event if the candidate who has completed 57 years is not to be considered and if there is no candidate who is willing and who has not completed 57 years the effect will be that there would not be a single candidate to be considered by the Selection Committee. One can even contemplate a situation where a candidate is say of 58 years of age meaning thereby he may get 3 or 4 years on appointment and there are other candidates who are less than 57 years on the date of application. On comparative merit candidate who has only 4 years tenure, may be far more superior and much more meritorious, than the candidates who are of less than 57 years of age. If entry at the threshold of such a candidate only on the ground that he has completed 57 years of age is to be barred, it would disable the competent Selection Committee from considering whether such person should have been appointed in preference to others. It is one thing to say that as far as possible it should be ensured that a candidate selected gets the tenure of 4 or 5 years and quite another to say that the person who cannot have the tenure of 4 of 5 years is totally debarred from consideration. In the circumstances we are of the opinion that if the requirement of longer tenure as far as possible is to be achieved without adding to or without affecting the qualifications prescribed under section 6(3A) of the said Act, the only course which we think proper is that the Chief Secretary should not debar a person at the threshold only on the ground that the person on the date of application is more than 57 years of age if otherwise he is eligible under the provisions of section 6(3A) of the said Act. After such a person is considered alongwith others it is for the Selection Committee to consider whether looking to the tenure which the candidate is likely to have such a candidate should be selected. This would clearly eliminate any possibility of any personal bais or any possible discrimination by the Chief Secretary while preparing the panel of candidates for selection by the Selection Committee.
18. We may also refer to another important aspect of the matter. Under the guidelines formulated by the committee itself, it is the Chief Secretary who would prepare a panel of persons to be considered for appointment as Administrative Members and the only guideline is that the list should be of 3 persons per vacancy. However, we find that there is absolutely no further guideline to the Chief Secretary as to how he will select these 3 persons out of all available candidates or eligible candidates. Normally when persons are short listed and when a particular proportion of candidates in relation to number of vacancies is to be determined usually the selection is made on the basis of seniority. However, if younger persons are to be preferred then the selection panel will have to be made exactly in reverse way. We are of the opinion that it is desirable that the Selection Committee should frame detailed guidelines which will be followed by the Chief Secretary for preparing the panel of candidates to be considered for selection as Administrative Members by the Selection Committee. We say all this with a view to eliminate any possible injustice to any candidate. If this scheme is followed then all the eligible candidates will be considered by the Selection Committee and then obviously it is for the Selection Committee to consider all the relevant factors including probable tenure which a candidate may have and in such a matter there will be little scope for any grievance because the decision will not be of Chief Secretary but it will be of an independent high powered body. As such we direct the Central Government to approach the Selection Committee with a request to frame guidelines to the Chief Secretary for the purpose of preparing the list of candidates for selection as Administrative Member to be considered by the Selection Committee.
19. Admittedly the case of the petitioner was not even forwarded and consequently the Selection Committee did not consider the case of the petitioner at all in its meeting held on 7-8-1996 and such non consideration or non forwarding the name of the petitioner for consideration was solely on the ground that by that time the petitioner admittedly had completed the age of 57 years. In the normal circumstances obviously, result would have been directing that the petitioner’s case should be so considered. However, while considering any matter and while granting any relief the Court has to consider the effect of supervening circumstances. Firstly any such order at this juncture is bound to result into almost catastrophic consequence on Mr. Dravid and Mr. Sakhalkar. It must be appreciated that before assuming the post of Administrative Member of the MAT a person has to resign from the Government service. In the cases of Mr. Dravid and Mr. Sakhalkar after having been duly selected, by an order of the President dated 31-1-1997, they were appointed as such members from the date they would assume charge. We are informed by the learned Additional Advocate General that Shri Dravid and Shri Sakhalkar as a matter of fact in pursuance of Rule 16(2) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 have served Government of Maharashtra with three months notice of retirement and Shri Sakhalkar accordingly will stand retired on 4-4-1997 and Shri Dravid will stand retired on 6-4-1997. Rule does not provide that such retirement is to be accepted or approved by the State Government except in the case of person who is under suspension or any other person of the description under Rule (2-A) of the aforesaid Rule 16. Shri Dravid and Shri Sakhalkar do not fall in any of those categories and as such they shall stand retired on those particular dates mentioned above without any further requirement. We must observe that in the entire process we cannot lay any blame either on Shri Dravid or on Shri Sakhalkar. Second aspect of the matter is that the post of Administrative Member of the Bench at Aurangabad has been vacant since 1991. In fact several writ petitions have been filed in this Court for mandatory directions to fill in the posts immediately. It is unnecessary to emphasize that all such posts must be filled in as early as possible and in view of the fact that the post of the Administrative Member at Aurangabad has been vacant since 1991 we are of the opinion that no further delay whatsoever should be permitted to take place. Third aspect of the matter is that taking into consideration the observations of the Apex Court in paragraph 21 of the judgment in Sampath Kumar’s case and the fact that as indicated in the administrative instructions even the Hon’ble Chief Justice of India had indicated that persons selected should have sufficiently long tenure and in view of the fact that if the selection process is to be ordered again it is bound to take not less than six months taking into consideration the holding of meeting of the Selection Committee approval by the Central Government, approval by the Chief Justice of India by which time petitioner will have completed about 59 and half years leaving hardly 2 and half years tenure and further fact that even if such an exercise is undertaken there cannot be any guarantee of the petitioner being selected because ultimately it will be for the Selection Committee to consider whom to select out of the available candidates on merits, we are not inclined to entertain the petition and merely keep it pending. It is solely for these reasons we are not entertaining the petition and the petition is rejected.
