Probationer not Member of CESTAT; Clarification on Ceasing Office; Conditional Acceptance

The Tribunal held that a probationer cannot be considered as holding the office of a Member of CESTAT. It clarified that the term 'ceasing to hold office' does not include the discharge of a probationer. Merely seeking clarification on doubts does not amount to conditional acceptance of an appointment offer. The Tribunal quashed certain letters and allowed the respondent to join CESTAT as a Member without being subjected to the provisions of the Customs Act in case of ceasing to hold office during the probation period. The High Court upheld the Tribunal's decision, dismissing the writ petitions.

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Issues Involved:
1. Whether a person not confirmed as Member of CESTAT can be said to be holding the office as a member of said Tribunal.
2. Whether the term 'ceasing to hold office as Member' includes discharge of a probationer.
3. Whether seeking clarification on certain doubts or challenging the clarification received before a court can be construed as conditional acceptance or absence of willingness to accept the offer of appointment.

Detailed Analysis:

Issue 1: Whether a person not confirmed as Member of CESTAT can be said to be holding the office as a member of said Tribunal.
The Tribunal relied on various judgments to interpret the term 'hold office' in Section 129(6) of the Customs Act, 1962. It concluded that a probationer cannot be said to hold office as a Member of CESTAT. The Tribunal referred to the meaning of 'hold' in the Concise Oxford Dictionary and concluded that only a person who keeps possession or lien on a job can be said to be a holder of that office. It further relied on the judgment in Purshotam Lal Dhingra vs. UOI, which held that a probationer does not acquire any substantive right to the post and thus cannot be said to hold office.

Issue 2: Whether the term 'ceasing to hold office as Member' includes discharge of a probationer.
The Tribunal concluded that the term 'ceasing to hold office' does not include the discharge of a probationer. It held that Section 129(6) of the Act applies only to confirmed members who cease to hold office and not to probationers. The Tribunal referred to the legislative intent and the distinction between a probationer and a confirmed member, concluding that a probationer does not acquire a lien on the post and thus cannot be said to cease holding the office upon discharge.

Issue 3: Whether seeking clarification on certain doubts or challenging the clarification received before a court can be construed as conditional acceptance or absence of willingness to accept the offer of appointment.
The Tribunal held that merely seeking clarification does not amount to conditional acceptance. The respondent had accepted the terms of appointment unconditionally but sought clarification regarding the applicability of Section 129(6) to probationers. The Tribunal found that the respondent's willingness to accept the offer was unconditional and that seeking clarification was a legitimate query that should not be held against him.

Conclusion:
The Tribunal quashed the letters dated November 12, 2012, and December 06, 2012, and allowed the respondent to join as Member (Judicial) in CESTAT without being subjected to the embargo of Section 129(6) of the Customs Act, 1962, in the event of ceasing to hold office during the probation period. The Tribunal's interpretation of the term 'ceasing to hold office' and the distinction between a probationer and a confirmed member was upheld. The High Court dismissed the writ petitions, agreeing with the Tribunal's plausible view and declined to interfere with the impugned order.

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