MRS. SANDHYA BALIGA Vs. UNION OF INDIA THROUGH SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE AND SH. S.S. RANA PRESENTLY WORKING AS DIRECTOR GENERAL (VIG.) CUSTOMS & CENTRAL EXCISE

JUDGEMENT

(1.) THE applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 questioning the action of the respondent no. 1 in recommending the name of the respondent no. 2 for appointment to the post of Member of the Authority for Advance Rulings (Central Excise, Customs and Service Tax) [hereinafter referred to as Authority for Advance Rulings]. Under the provisions of Section 28(f) of the Customs Act, 1962 in Chapter V -B, the Authority for Advance Rulings comprises of Chairperson and Members. While the Chairperson is the retired Judge of the Hon'ble Supreme Court, the Members are required to be the persons qualified to be Member of the Board and an officer of the Indian Legal Service qualified to be an Additional Secretary to the Government of India. The facts of the case, in brief, are that the applicant, who was an Indian Revenue Service Officer and superannuated from the post of Member of the Customs & Central Excise [hereinafter referred to as C&CE], which is required to be filled up in accordance with the recruitment rules as notified by the office of the respondent no. 1 vide Notification dated 02.02.2006. The applicant submits that the post of Member, Authority for Advance Rulings to be filled up from amongst the Members of the Central Excise and Customs Service was being held by one Y.G. Parande who has since been appointed as a full time Member of the newly constituted Tax Administration Reform Commission (TARC) w.e.f. 10.11.2013. The case of the applicant is that options were called for this post and the applicant submitted her willingness for the same on 03.09.2013. The applicant further submits that total 8 officers applied for this post and the applicant was the only eligible candidate who was qualified to be Member of the Board was required to be considered for the post of Member of the Authority for Advance Rulings. The respondent no. 1, however, considered the name of all the eight candidates including the respondent no. 2. A DPC was held on 24.10.2013 wherein, as per the information on the whispersinthecorridor.com and otherwise obtained by the applicant, the name of the respondent no. 2 had been recommended for the post of Member of the Authority for Advance Rulings.

(2.) THE applicant submitted a representation on 29.10.2013 challenging the action of the respondent no. 1 in recommending the name of the respondent no. 2 for the post of Member of the Authority for Advance Rulings. The ground adopted by the applicant in her representation is that as per the Indian Customs Act, 1962, an officer of the Central Excise & Custom Service, who is qualified to be a Member of the Central Board of Excise and Customs, is eligible for consideration for appointment as Member of the Authority for Advance Rulings. Since the applicant had been holding the post of Member (Legal & Judicial) and additional charge of Member (Customs) in CBEC for more than one year, she was the only serving Member to be considered and appointed as Member of the Authority for Advance Rulings. In the past, seniority had been the criteria for selection and even the last incumbent, namely, Y.G. Parande had been selected on the basis of seniority and not on the basis of gradings of the ACRs. The applicant superannuated from service on 31.10.2013 from the post of Member (Legal & Judicial) and also Member CBEC and upon learning that the respondent no. 2 has been recommended for the post of Member, Authority for Advance Rulings, she challenged the action of the respondent no. 1 by the way of the instant Original Application.

(3.) THE respondent no. 1 has submitted a counter affidavit wherein he has raised the preliminary objection that the appointment of the Member of the Authority for Advance Rulings is still under consideration of the ACC and as such no cause of action has arisen to the applicant to approach this Tribunal. Moreover, departmental remedies were available to the applicant which she has not availed of and has come directly to this Tribunal. The respondent no. 1 has further submitted that coming to the issue of qualification, under the provisions of Section 28(f)(2)(b) of the Indian Customs Act, 1962, an officer of the Indian Customs & Central Service, who is qualified to be a Member of the Central Board of Excise & Customs, is eligible for appointment as Member (C&CE) of the Authority for Advance Rulings. As per the existing recruitment rules for the post of Member, Central Board of Excise & Customs (CBEC), the following categories of officers are eligible for consideration for appointment to the post of Member, CBEC: -