RAMESH NAIR Vs. UNION OF INDIA

JUDGEMENT

(1.) SINCE both the aforementioned Original Applications filed by applicant Shri Ramesh Nair raise interlinked facts and issues, same are assimilated for disposal by common order. In terms of Office Memo F. No. A -12026/1/2011 -Ad. IC (CESTAT), dated 13 -9 -2012, the President was pleased to offer applicant an appointment as Member (Judicial) in the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) on certain terms and conditions mentioned therein. Subsequently by Corrigendum issued vide No. F. No. A -12026/1/2011 -Ad. IC (CESTAT), dated 19 -9 -2012 (Annexure A -2), para 5 of the OM was modified to the extent that instead of a term of 5 years from the date of entry upon the office, the offer was made for appointment until the age of superannuation, i.e. 62 years. With reference to OM dated 13 -9 -2012 and corrigendum dated 19 -9 -2012 received by him on 19 -9 -2012 and 25 -9 -2012 respectively, the applicant sent communication dated 27 -9 -2012 to Under Secretary, Govt. of India, Ministry of Finance, Department of Revenue, North Block, New Delhi accepting the appointment as Member (J) in CESTAT. However, in the said communication, he made a request for change of his posting from Chennai to Mumbai. In response, thereto, the respondent vide their letter No. A. 12026/1/2011 -Ad. IC (CESTAT) dated 8 -10 -2012 apprised the applicant that his request for posting at Mumbai or at any other place near Indore had not been accepted and requested him to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within a period of 10 working days from the date of receipt of said communication, failing which action for cancellation of offer of appointment could be initiated without further notice. Thus, the applicant sent a letter dated 25 -10 -2012 to the Under Secretary, Government of India, Ministry of Finance (Department of Revenue), North Block, New Delhi giving his unconditional willingness to accept the offer of appointment as Member (Judicial) in Chennai and sought the clarification, "whether a member is entitled to practice and appear in CESTAT after he is discharged from service for any reason given by either side during the period of probation." As a result, the respondent issued letter No. A. 12026/1/2011 -Ad. IC (CESTAT), dated 12 -11 -2012 informing the applicant that the words "on ceasing to hold office", are applicable to all types of cessation - - whether it is retirement or resignation or discharge during probation or by any other way. Questioning the decision so communicated and seeking issuance of direction to respondent to permit him to join as Member in CESTAT without being subjected to embargo of Section 129(6) of Customs Act, 1962 and Central Excise Act, 1944 in the event of his ceasing to hold office as Member before the expiry of period of probation, the applicant filed OA No. 4006/2012 which came up for hearing for admission on 3 -12 -2012 and again on 18 -12 -2012. During the pendency of said OA, respondents issued letter No. A. 12026/1/2011 -Ad. IC (CESTAT), dated 6 -12 -2012 withdrawing the offer of appointment to the post of Member (Judicial) in CESTAT issued to applicant (ibid) on the ground that despite sufficient time granted for the purpose, his unconditional willingness to accept the offer of appointment had not been received in the department. In OA No. 4283/2012 filed by him, the applicant has questioned the aforementioned order of withdrawal and cancellation, i.e. offer of appointment given to him. The salient grounds raised on behalf of applicant in two OAs are: -

(2.) IN view of the submission of the counsel for parties and the material available on record, we find that most of the controversy involved in the present case revolves around the interpretation of the phrase "on ceasing to hold office" used in Section 129(6) of Customs Act, 1962. For convenient adjudication of the OA, the propositions required to be determined by us are articulated as under: -

(3.) IN Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Ors ( : AIR 1979 SC 193), it is viewed as under: