BADAR DURREZ AHMED, J

1. This writ petition is directed against the order dated 09.12.2010 passed in O.A. No.3544/2009 by the Central Administrative Tribunal, Principal Bench, New Delhi. The petitioner is aggrieved by the fact that his said original application, which had been filed challenging the termination of probation order dated 20.11.2009, was dismissed.

2. The facts giving rise to the present writ petition are as under:

2.1 The petitioner was a practicing advocate in the Calcutta High Court as well as before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) for about 20 years mainly dealing with the customs, excise and service tax matters. On 22.04.2006, the petitioner appeared for an interview before the Selection Committee for the post of Member (Judicial) in CESTAT. He was selected. On 22.11.2006, the petitioner assumed charge as Member (Judicial) in CESTAT. On 21.11.2007, the petitioner completed the mandatory period of probation of one year under Rule 8(1) of the CESTAT Members (Recruitment and Conditions of Service) Rules 1987 (hereinafter referred to as ‘the said Rules’). No order extending the period of probation was issued. However, the petitioner continued to work as Member (Judicial). As pointed out in the impugned order, the petitioner served under three Presidents, namely, Justice Abichandani, Justice S.N. Jha and Justice R.M. Khandparkar. According to him, he never received any adverse comment from any of them during his tenure of service as a Member (Judicial). According to the petitioner, he was expecting that his probation period would come to an end and he would be confirmed in the post of Member (Judicial). But, he received an order dated 19.11.2009 extending his probation period first upto 21.11.2008 and then further upto 21.11.2009. Because of this, the petitioner came under great stress and tension, as a result of which, he tendered his resignation from the post of Member (Judicial) on 20.11.2009. On that very day, the order dated 20.11.2009 was issued, whereby the petitioner was discharged from his service. The said Order No.5 dated 20.11.2009 reads as under:-

“F. No.26/8/2006-Ad.IC

Government of India

Ministry of Finance

Department of Revenue ……

New Delhi, the 20th Nov., 2009

ORDER No.5 of 2009

In pursuance of rule 8(3) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987, the President hereby discharges forthwith Shri P.K. Das, Member (Judicial) in Customs Excise & Service Tax Appellate Tribunal from service.

2. By order and in the name of the President.

Sd/-

(Victor James)

Under Secretary to the Govt of India

To,

Shri P.K. Das, Member (Judicial)

CESTAT, West Block No.2,

R.K. Puram, New Delhi.

Copy to:

1. President, Customs, Excise & Service Tax Appellate Tribunal, New Delhi

2. Registrar, Customs, Excise & Service Tax Appellate Tribunal, New Delhi

3. Establishment Officer, Department of Personnel & Training, North Block

4. Pay and Accounts Officer, Department of Revenue

5. Notification Folder.

Sd/-

(Victor James)

Under Secretary to the Govt. of India”

2.2 Thereafter, by a letter dated 23.11.2009, the petitioner withdrew his resignation under Rule 9(2) of the said Rules within the prescribed period.

2.3 As mentioned in the impugned judgment, there is a note dated 26.11.2007 in File No.27/22/2005-Ad.IC, which was obtained under the Right to Information Act, 2005, in which it has been mentioned that the action for initiation of the process of confirmation of the petitioner, which was due on 22.11.2007, would be initiated in a new file. There is a noting of 23.01.2008 calling for the ACRs of the petitioner and two other members. On 06.06.2008, Justice S.N. Jha, President of CESTAT wrote to the Secretary, Department of Revenue requesting him to take steps for the confirmation of some of the members of CESTAT, including the petitioner. The Vigilance Cell also conveyed its clearance from the vigilance angle insofar as the pe