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2013 Supreme(Del) 1609
High Court of Delhi
PRADEEP NANDRAJOG & V. KAMESWAR RAO, JJ.
Union of India
Versus
Ramesh Nair
W.P.(C) No. 7112 of 2013, 7114 of 2013
Decided On : 02-12-2013
For the Petitioner:Rajeeve Mehra, ASG instructed by Ankur Chibber, Aashish Gumber, Advocates.
For the Respondent:Atul Nanda, Sr. Advocate instructed by Ms. Rameeza Hakeem, Parinay T.Vasandani, Advocates.
A person under probation may not be said to be holding an office for the purpose of section 129(6) of the Act, and 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).
Headnote:
CESTAT - Appointment of Member (Judicial) - Section 129(6) of the Customs Act, 1962 - The Tribunal held that a person under probation may not be said to be holding an office for the purpose of section 129(6) of the Act. It was further concluded that in case of discharge of probationer from service on account of not being found suitable for being confirmed may not be compared with cessation of office by person who has acquired a lien on it. 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).
Fact of the Case:
The respondent, a practising Advocate at Indore, was offered appointment as Member (Judicial) of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The respondent accepted the offer but requested a change in posting location due to family reasons. The petitioners refused the request and asked for unconditional acceptance within 10 days. The respondent responded with unconditional acceptance but sought clarification on certain conditions.
Finding of the Court:
The Tribunal held that the respondent's request for change of posting did not constitute a conditional acceptance of the appointment terms. It also concluded that a person under probation may not be said to be holding an office for the purpose of section 129(6) of the Act. The Tribunal further held 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).
Issues: The issues included whether the respondent's request for change of posting constituted a conditional acceptance, whether a person under probation can be said to be holding the office as a member of the Tribunal, and whether a request to seek clarification of certain doubts can be construed as conditional or absence of willingness to accept the offer of appointment to a post.
Ratio Decidendi: The Tribunal interpreted the term 'hold office' used in Section 129(6) of the Act and concluded that a person under probation may not be said to be holding an office for the purpose of the section. It also held 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).
Final Decision: The Tribunal dismissed the writ petitions and upheld its decision, stating that even if another view is possible, the Court would not interfere with the impugned order.
V. Kameswar Rao, J.
1. By a common order dated February 27, 2013 the Central Administrative Tribunal has quashed two letters dated November 12, 2012 and December 06, 2012 sent by the petitioner to the respondent while allowing Original Application No.4006/2012 and Original Application No.4283/2012.
2. The respondent, a practising Advocate at Indore was offered appointment as Member (Judicial) of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). It was indicated that the respondent would be on probation for a period of one year and upon confirmation shall hold office for a term of 5 years extendable by another term 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 Office Memorandum F.No.A-12026/1/2011-Ad.IC(CESTAT) dated 13.09.2012 received on 19.09.2012 and corrigendum dtd. 19.09.2012 received on 25.09.2012, wherein I have been offered an appointment as Member (Judicial) in the Customs, Excise and Service Tax Appellate Tribunal.
First of all, I am very grateful to the Selection Committee, especially to the Hon’ble President, who has considered me for such a prestigious and responsible position, of Member (Judicial). In CESTAT, I am glad to accept this offer of appointment. However I humbly request you for kind consideration on my following submissions-
In the said Appointment Offer my first posting has been given at CESTAT, Chennai Bench. In this connection I would like to make a humble submission that my posting in Chennai, will disrupt my family to a great extent. I along with my wife and three children are permanently settled in Indore having my own house. My three children are 13 years, 11 years and 9 years of age are studying since beginning in the schools at Indore. They are acclimatized with the prevailing condition and environment of Indore. My wife being an advocate is also practicing and running her own office at Indore. Therefore, it will not be possible for me to shift my family from Indore to any other place. Due to these reasons I am required to visit Indore very frequently to take care of my family. In these circumstances, if, I am posted in Chennai, it will not be possible to visit Indore in quick intervals, mainly because there is no direct regular train for Chennai-Indore-Chennai, and the traveling time is more than thirty hours.
In view of above difficulties, I humbly request that my posting may kindly be made in any nearly place from Indore, preferably in Mumbai, so that, I would be also to pay visit to Indore, frequently by making overnight train/bus journeys on Holidays. It may also kindly be noted that during my past practice I do not have more than 2 to 3 cases pending in CESTAT Mumbai, which were filed through me.
In view of the above, I humbly request to kindly consider my posting in CESTAT Mumbai or in nearby place instead of CESTAT, Chennai.”
5. On Octob
