TaxTMI 
TaxTMI 
2014 (3) TMI 138
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....m of 5 years. It was indicated in the letter that if respondent accepts the offer his first posting would be at CESTAT Chennai Bench. The respondent was required to submit his acceptance on the terms and conditions as per the letter offering appointment. It was indicated that the term of the office would be subject to the upper age limit of 65 years. Vide corrigendum dated September 19, 2012 the age 65 years was corrected to be 62 years. 3. On September 27, 2012 the respondent sent a letter accepting the offer of appointment as per the letter dated September 13, 2012 read with the corrigendum dated September 19, 2012 but requested that he may be posted at a place nearby Indore, preferably at Mumbai, indicating reasons why respondent was seeking posting near Indore. 4. Since an issue arose, as would be evident from the facts noted hereinafter, whether respondent unconditionally accepted the terms of his appointment as per the letter of offer dated September 13, 2012 read with the corrigendum dated September 19, 2012, we note the contents of respondent's letter dated September 27, 2012. It reads as under:- "Sub: Appointment as Member (Judicial) in CESTAT Please refer your....
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.... to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within 10 days. The letter dated October 08, 2012 reads as under:- "Subject: Filing up of the post of Member (Judicial) in CESTAT - reg. Sir, I am directed to refer to your letter dated 27.09.2012 and to say that your request for posting at Mumbai or at any nearby place from Indore on appointment as Member (Judicial) in CESTAT, has been considered. However, the same has not been acceded to by the Competent Authority. 2. You are, therefore, requested to convey your unconditional willingness to accept the offer of appointment as Member (Judicial) within a period of 10 working days from the date of receipt of this communication, failing which action for cancellation of offer of appointment will be initiated without further notice". 6. The response of the respondent was as per a letter dated October 25, 2012. He wrote as under:- "Subject: Filling up of the post of Member (Judicial) in CESTAT - reg. Please refer to your letter No.A.12026/1/2011-Ad.IC (CESTAT) dated 08.10.2012 wherein I have been communicated that my request for change of posting from Chennai to Mumbai or....
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....on after giving him one month's notice of such termination and in case such technical or judicial member wishes to resign, he shall be required to give one month's notice to the Central Government. (2) In case of a person appointed as a judicial member directly from the Bar, unless he is confirmed, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month's notice of such termination and in case such judicial member wishes to resign, he shall be required to give one month's notice to the Central Government". A harmonius reading of the said rule leads to unescapable conclusion that sub rule 2 which refers to judicial member directly appointed from the bar is also entitled to same treatment as is extended to employees to the Union or State. In this circumstances when a judicial member directly appointed from the bar is discharged or demits his office during the probation period, no condition can be attached to him that he cannot practice before the Appellate Tribunal. A member on probation cannot be equated with a permanent member and he cannot be deprived of his means of livelihood only for the reason that h....
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....he process initiated by him by filing an Original Application No.4006/2012 wherein he had challenged the letter dated November 12, 2012. It was also his case that Section 129 (6) of the Act does not debar a person who is discharged from service as Member (J) during the period of probation from appearing before the CESTAT. He also contended that the bar from practicing before the CESTAT is violative of Article 19 (1)(g) of the Constitution of India. He further contended that Article 220 of the Constitution of India recognizes the concept that it is only a permanent judge of a High Court who is barred from practising in the same High Court and not one who demits the office as an Additional Judge. 12. The case of the petitioners as argued by their counsel was that since the respondent had failed to accept, unconditionally the offer of appointment the same was rightly withdrawn by them. According to them under Section 129(6) of the Act a Member of the CESTAT who demits the office is barred from practising in CESTAT. 13. The Tribunal decided both Original Applications by a common order posing three questions : (i) whether a person not confirmed as Member of CESTAT can be said t....
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.... order to determine whether a probationer can be said to be holder of office of Member CESTAT. The Tribunal had a glance at the meaning of the word 'hold' provided in Concise Oxford Dictionary wherein the meaning of the said word has been inter alia given as 'have in one's possession or occupy'. On such basis the Tribunal concluded that only a person who keeps possession or lien on a job can be said to be holder of that office. Further, while interpreting the term 'probationer', the Tribunal placed its reliance on the decision reported as AIR 1958 SC 36 Purshotam Lal Dhingra vs UOI wherein it was held that the status of a 'probationer' is that of appointment on trial. It was further held in the said decision that in case of an appointment to permanent post on probation, the servant so appointed does not acquire any substantive right to such a post and consequently cannot complain if his service is terminated at any time. Thereafter, the Tribunal relied on the decision reported as AIR 1992 SC 496 Trivedi Shankar Saxena vs State of UP and Ors wherein it was held that 'lien' means the title of a Government servant to hold substantively, either immediately or on the termination of a pe....
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....office as Member' would include only confirmed member or also a member discharged as probationer. On the basis of the above, the Tribunal held that merely because the applicant had sought for certain clarifications, it cannot be said that he had declined to accept the condition of his appointment. It was also held that since the applicant had shown confidence to seek clarification regarding applicability of Section 129 (6) of the Act to those discharged on probation, the same cannot be held against him. 19. Finally, the Tribunal concluded that a person offered appointment as Member (J) may not be prohibited from returning to his position enjoyed by him before such appointment in the event of being not considered as Member (J). 20. Mr.Rajeeve Mehra, learned Additional Solicitor General assisted by Mr.Ankur Chibber, Advocate appearing for the petitioners would challenge the impugned order of the Tribunal by stating that the Tribunal has erred in concluding that the letters dated September 27, 2012 and October 25, 2012 written by the respondent in response to the offer of appointment would not be construed as a conditional acceptance. According to him a perusal of the said lette....
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....ear extendable by another year cannot be considered to be holding an office during the said period. It is only when he is made permanent on successful completion of probation, that the respondent said to be holding an office. In other words he would canvass that if the respondent demits the office during the period of probation the bar under Section 129 (6) would not be applicable to him and the respondent would be within his right to practice before the CESTAT. He would submit that the judgment relied upon by the petitioners in N.K.Bajpai's case (supra) would not be applicable to the case in hand inasmuch, on facts, the Supreme Court was considering a case where the appellants before it had demitted the office while holding the post on permanent basis. According to him the case of the respondent is not of such a nature. Rather he would rely upon the opinion of the Supreme Court in the case reported as (2009) 7 SCC 1 N.Kannadasan v. Ajoy Khose & Ors. to contend that even the Supreme Court held while considering the case of an Additional Judge, appointed to High Court but not confirmed, is allowed to practise before the same High Court. On a specific query from us, Mr.Nanda would su....
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.... be delegated to him by the President by a general or special order in writing. (6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal". 25. The President, in exercise of power conferred by the proviso to Article 309 of the Constitution of India had made Rules regulating the method of recruitment and conditions of service of persons appointed as members of the Customs, Excise and Service Tax Appellate Tribunal known as customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 (hereinafter referred to as Rules). The Rules inter alia stipulates qualification for recruitment (Rule 3), disqualification (Rule 4), method of recruitment (Rule 6), probation (Rule 8), reversion or termination of the service of members (Rule 9), classification (Rule 13), age of superannuation (Rule 16), retirement benefits (Rule 17) and other conditions of service (Rule 18). For the purpose of our consideration we reproduce Rule 8, Rule 9, Rule 16, Rule 17 and Rule 18, the same are as under:- "Rule 8. Probation. - (1) Every person appointed as a me....
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....antive capacity may within 3 months of his appointment in a substantive capacity, elect for pensionary benefits, and if no communication is received in the office of the Registrar of the Tribunal, within this period, the member shall be deemed to have exercised his option to continue to subscribe to the Contributory Provident Fund, in which case he shall not be entitled to any pension. (4) The declaration once made shall be final. (5) A member recruited directly from the Bar shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one-fourth of the length of service or the actual period by which the age at the time of recruitment exceeded twenty five years, or a period of five years, whichever is less, provided that this concession shall not be admissible to a member unless the actual qualifying service at the time he quits Government service is not less than ten years. Rule 18 - Other conditions of service. - The conditions of service of a member in respect of matters for which no provision is made in these rules shall be the same as may for the time being be applicable to oth....
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.... facie an unconditional acceptance of the terms of appointment. The request to be posted at a place near Indore and preferably at Mumbai cannot be construed as a condition to the acceptance. It is merely a request that upon being appointed on the terms as per letter offering appointment the respondent should be posted near Indore. In fact, the letter of appointment dated September 13, 2012 itself has to be read as constituting two distinct subject matters. The terms on which appointment was offered are as per paras 1 to 11 of the letter. Paragraph 12 which reads : 'If he accepts this offer, his first posting will be at CESTAT, Chennai Bench' clearly brings out that even as per the letter the petitioners clearly understood that place of posting had no concern with the terms offering appointment and thus the petitioners themselves distinctly wrote that upon respondent accepting the offer he would be posted at Chennai. 30. The issue in so far as whether a Member on probation is said to be holding office is concerned the same can be also looked from a different perspective. The word 'probation' has been defined in shorter Oxford Dictionary to mean the testing of the character, condu....
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.... of U.P. v. Kaushal Kishore Shukla placing reliance on judgment in Parshotam Lal Dhingra's case (supra) has held as under:- "A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitut....