Central Administrative Tribunal - Delhi
Mrs. Sandhya Baliga vs Union Of India Through on 10 February, 2014
Central Administrative Tribunal
Principal Bench
OA No.4061/2013
Reserved on: 23.01.2014
Pronounced on:10.02.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B. K. Sinha, Member (A)
Mrs. Sandhya Baliga,
W/o Sh. Sushant Baliga,
R/o C-2/56, Bapa Nagar,
New Delhi. ...Applicant
(By Advocate: Shri S.K. Gupta)
Versus
Union of India through
1. Secretary,
Department of Revenue,
Ministry of Finance,
North Block,
New Delhi.
2. Sh. S.S. Rana,
Presently working as Director General (Vig.),
Customs & Central Excise,
3rd Floor, Hotel Samrat,
Kautilya Marg, Chanakyapuri,
New Delhi 110 021. ...Respondents
(By Advocate: Sh. Rajesh Katyal for R-1
Sh. Satish Kumar for R-2)
O R D E R
By Dr. B. K. Sinha, Member (A):
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 Honble 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.
2. 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.
3. 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.
4. The principal ground adopted by the applicant is that of all the candidates, who had submitted their willingness to be considered for the post of Member, Authority for Advance Rulings, she was the lone candidate who was holding the post of Member (Legal & Judicial) and of CBEC. According to Section 28(f)(2)(b) of Customs Act, 1962, an officer of Indian Customs & Central Excise, who is qualified to be a Member of the Board, is eligible to apply for the post of Member of the Authority for Advance Rulings. However, the respondent no.2, who has been recommended for the afore post, had never qualified to be a Member of the Board and, hence, the action of the Committee of Secretaries in clearing the appointment of the respondent no.2 for the post of Member of the Authority for Advance Rulings is bad in law. Here, the applicant has sought to draw a distinction between being eligible and being qualified for the post. While the respondent no.2 may be eligible for the post of Member of the Board but he was never declared qualified to be its Member as the basic qualification arises from being empanelled as a Member, CBEC. Therefore, the case of the respondent no.2 could not have been considered for this post. The applicant has further pleaded the ground of seniority but it was not pressed during the course of the arguments.
5. 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:-
Officers of the Central Government having one year regular service in the Higher Administrative Grade in the pay sale of Rs.67000-79000/- AND possessing the following essential qualification:-
Having at least 15 years of experience in administering and running the indirect tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Excise and Customs;
Having high professional merit and excellence; and Having impeccable reputation of integrity.
6. The learned counsel for the respondent no.1 submitted that since there is a difference between the phrases qualified to be and eligible to be and there being no separate recruitment rules for the post of Member of the Authority for Advance Rulings, it is guided by the Customs Act, which prescribes only the qualification. It was decided with the approval of the Finance Minister to consider only the essential qualification given in the recruitment rules. The selection for the post of Member (C&CE) in the Authority for Advance Rulings is made by the Selection Committee comprising of Cabinet Secretary, Principal Secretary to the Prime Minister, Home Secretary, Secretary (Personnel) and Revenue Secretary. The Selection Committee met on 24.10.2013 and considered the service records, ACRs/APARs, seniority and vigilance profile of all the short-listed eligible officers.
7. The learned counsel for the respondent no.1 further submitted that for being qualified to be a Member (C&CE), officers of the Central Government having one year regular service in the HAG Scale of Rs.67000-79000/- should have possessed the essential qualification mentioned in Para 6(II) but he would not be considered to be eligible for appointment to the post of Member, CBEC if he/she does not have residual service of one year or more on the date of occurrence of vacancy. This is the basic difference between the phrases qualified to be and eligible to be. The respondent no.2 is qualified to be a Member (C&CE) as he possessed the essential qualification prescribed for the said post. Mere not applying for the post of Member (C&CE) does not impose a bar on his qualification. The learned counsel for the respondent no.1 further argued that in the ordinary course of the term had Y.G. Parande completed his tenure till 31.10.2013, the applicant would have retired and would not have been eligible for the post of Member of the Authority for Advance Rulings as only serving Member of the Service are eligible to apply. However, it was decided at the level of the Finance Minister that all candidates possessing the requisite qualification may be considered on the basis of their ACRs and other service records. All the seven candidates have accordingly been considered and the proposal is under consideration of the ACC, which is the Appointing Authority.
8. The respondent no.2 has filed a separate counter affidavit wherein he has rebutted the contentions of the OA that only Members of the Central Board of Excise & Customs or those empanelled as Member of the Board are qualified to be appointed as Member of the Authority for Advance Rulings. Had it been the case, there would be no necessity of circulating the vacancies to the other authorities i.e. all Chief Commissioners of Customs & Central Excise, all Directors General of Customs & Central Excise, all Members of CESTAT, who are officers of IRS (C&CE). All these officers are not Members or empanelled as Members of Board but are nevertheless qualified to be its Members irrespective of the fact whether they have applied for the post of Member or not. In other respect, the respondent no.2 supported the stand of the respondent no.1.
9. The applicant has submitted a rejoinder application to the counter affidavit filed by the respondent no.1 reiterating the points raised by her in the OA. The applicant has submitted that the appointment to the post of Member of the Authority for Advance Rulings is governed by two tier system involving the qualification and integrity. As per the guidelines, dated 08.06.2006, as approved by the Prime Minister, if an officer finds place in the panel, he becomes qualified to be a Member of CBEC. If a distinction were not to be drawn between the phrases qualified to be and eligible to be, there would be no need to adopt a two tier system and even to convene the meeting of the Secretaries. In such a case, even fulfilment of necessary qualification makes an officer qualified to be a Member of the Board and there is no need to undergo the process of selection in order to qualify for the post in question.
10. The applicant has also filed a rejoinder to the counter affidavit of the respondent no.2 rebutting his arguments and reiterating the averments made in the OA. The applicant has also prayed for summoning of departmental records under Rule 24 of the CAT (Procedure) Rules, 1987.
11. The applicant has also submitted her arguments in the form of written submissions.
12. We have carefully examined the pleadings of both the parties and such documents as have been submitted by them as also the written submissions submitted by the applicant. We have also carefully listened to the arguments advanced by the learned counsels of the respective parties. We have also perused the department records contained in FileNo.3/14/2013-CS(A) having CF No.58508 relating to the appointment of the post of Member of the Authority for Advance Rulings. On the basis of the consideration above, the issues that are to be decided in this context are Whether the OA is premature;
Whether the respondent no.2 is disqualified from being considered for the post of Member of the Authority for Advance Rulings;
What relief, if any, could be provided to the applicant?
The consideration of issues is prequalified by the stipulation that in case the answer to the first issue is in negative, the remaining other two issues will be considered.
13. In respect to the Issue No.1, it is stated that appointment to the post of Member, Authority for Advance Rulings is to be made by the ACC and the file is still under its consideration. However, on perusal of the process of appointment, we find that the following 7 officers were considered for appointment to the post of Member of the Authority for Advance Rulings:-
Sandhya Baliga, Special Secretary & Member, CBEC (applicant in the instant OA);
H.K. Jain, CC, New Delhi;
C.S. Prasad, CC, Mumbai;
S.S. Rana-II, DG (Vig.), New Delhi;
Ms. Jagjit Pavadia, CC, Nagpur;
Sunil Uke, CC (Preventive), Customs, New Delhi; & Ms. Shashi Minz, CC, Bhubaneshwar.
It appears from the perusal of the record that the DPC considered the case of all the seven candidates in its meeting held on 24.10.2013 for selection to the post of Member, Authority for Advance Rulings in various parameters including the ACRs since 1999-2000, clearance from vigilance angle, qualification and eligibility to be considered for post and assessed them on a cogent point system. It further appears from the records that the applicant was considered but the name of respondent no.2 has been recommended. The file is under submission before the ACC for its approval. It is not known as yet whether the ACC is going to affix its seal of approval upon the proposal or would remand it for further consideration. Both these options are still open to the ACC at the present time. The cause of action for the applicant, therefore, does not arise till the final order of the ACC is passed.
14. Moreover, even after the approval of the ACC, the applicant would have the liberty of filing a representation against the order to be passed by the ACC, if so desired. Section 20 of the Administrative Tribunals Act, 1985 is abundantly clear that unless the remedies available are exhausted, no OA can be entered under the terms of Sections 21 & 22 of the Rules ibid. However, for the sake of better clarity, these provisions are being extracted below:-
20. Applications not to be admitted unless other remedies exhausted.
(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) If a final order has been made by the Government or other authority of officer or other person competent to pass such order under such rules, rejecting any appeal preferred or respresentation made by such person in connection with the grievance; or
(b) Where no final has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Government of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
15. It is to be noted from the above that the Tribunal has been barred from entertaining an Application subject to its satisfaction that all the remedies available to the applicant relating to redressal of grievances have been availed of by him. In this particular case, we are of the opinion that under the extant situation where the ACC, being the final Appointing Authority, is yet to form an opinion, the OA is definitely devoid of the cause of action. This issue is accordingly decided.
16. In a decided case titled as Kandimalla Raghavaiah and Co. Versus National Insurance Co. And Anr. [(2009) 7 SCC 768], the Honble Supreme Court has gone into the fact that what constitutes a cause of action and has held as under:-
13. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. However, for determining the cause of action, the Tribunal is required to read the entire Application as a whole. It is the bundle of facts that have to be examined and where the Application discloses even a small of cause of action, it is a settled principle of law that the case cannot be thrown out. In the instant case, we find that the dispute whether the applicant was the sole qualified amongst the candidates considered goes to the root of the matter. Unless this issue were to be decided, any decision at the present time would conceal within itself germs of future litigation. The term ordinarily used within Section 20 (1) of the Administrative Tribunals Act, 1985 implies that though it is the rule that alternative remedies must have been exhausted in order that the Original Application be entertained, but there are exceptions to it. We feel that this is one exception where the root of the issue needs to be decided. Accordingly, we take up Issue no.2.
17. In paragraph 5 of this order, the qualifications prescribed for appointment to the post of Member, CBEC have already been noted. The arguments of the learned counsel for the applicant has also been noted that there is a basic difference between eligibility, qualifying eligibility and unqualified. Even for the sake of repetition, what the applicant has argued is that the legislature has used the word qualified and not eligible. Here, the term qualified would only imply those who have been empanelled to be Members of CBEC. Since the applicant was the lone candidate to have been empanelled, she alone of all the candidates considered was qualified to be the Member, CBEC.
18. We find that this distinction had been taken note of while submitting the proposal for selection to the post of Member, Authority for Advance Rulings. For sake of better elucidation, the relevant portions from the accompanying note, contained in File No.3/4/2013-CS (A) at page 3, are reproduced hereunder:-
There is a difference between the phrase qualified to be and eligible to be and the Customs Act prescribe only the qualification. Further the term of office of Member, AAR (C&CE) is 62 years, whereas the Member, CBEC retires at 60 years. In view of this, it was decided with the approval of Finance Minister to consider only the essential qualifications given in the RRs and not to enforce the requirement of one year residual service prescribed in the Recruitment Rules for the post of Member, Central Board of Excise & Customs, for making appointment to the post of Member, AAR (C&CE). This is also in consonance with past practice.
19. In the proceedings, the case of the applicant and that of the respondent no.2 was considered in the meeting dated 24.10.2013 wherein the applicant along with other candidates was evaluated after having obtained the vigilance clearance on point basis. The applicant secured a total of 91 points whereas the respondent no.2 scored 97 points along with another candidate Jagjit Pavadia. However, the Committee recommended the name of respondent no.2. In this regard, the Committee has held as under:-
The Committee was informed that the post of Member, AAR (HAG+) that is meant to be filled by an officer of IRS(C&CE), had become vacant on 21.10.2013 upon resignation of the incumbent, Shri Y.G. Parande, to take up an assignment in Tax Administration Reform Commission. The Committee was further informed that a Member can hold office for a term of three years or up to the age of 62 years, whichever is earlier and when appointed as Member, he shall seek retirement from Government service. As per the Customs Act, an officer of the Indian Customs & Central Excise Service, who is qualified to be a Member of the Central Board of Excise & Customs is eligible for the post of Member, AAR (C&CE). It is evident from the afore mentioned notings that the terms have been used inter-changeably in the office documents.
20. In order to understand the distinction between these two terms, we take the meaning of the respective terms as given in The Law Lexicon (3rd Edition 2012), which reads as under:-
Term Eligibility Eligible Qualification for office Qualified Meaning The quality of being eligible Worthy of choice; desirable; that may be selected, or elected; worthy or choice or adoption; suitable. (Stand Dict.) preferable (Websters Dict.) Qualification for office as defined by the most approved lexicographers, is the endowment or accomplishment that fits one for an office; having the legal requisites; endowed with qualities fit or suitable for the purpose.
QUALIFICATION with reference to an office, has a double meaning, one of which is the endowment or acquirement which renders one eligible to place or position, and the other relates to the act whereby he is installed in his office. Qualified has a double sense, and mean a condition or status of an officer, and is also often used to describe his act of taking an oath. The word qualified when applied to any person elected or appointed to office, shall be construed to mean the performance by such person of those things which are required by law to be performed by him previous to his entering upon the duties of his office.
Endowed with qualities or possessed by accomplishments, which fit one for certain end, office or function [S.174(3), Cr.PC, 1973 (2 of 1974)] An acceptance is general when it imports an absolute acceptance precisely in conformity to the tenure of the bill itself. It is unqualified when it contains no qualification, limitation, or condition different from what is expressed on the face of the bill or from what the law implies upon a general acceptance. It is qualified when the drawee absolutely accepts the bill, but makes it payable at a different time or place, or to a different firm, or in a different mode from that which is the tenure of the bill. (Story of the Bill.)
21. In the case of Karnataka State Road Transport and Another versus S. Manjunath and Others [2000 (5) SCC 250], the Honble Supreme Court has drawn a distinction between the terms Qualified and Eligible for substantive permanent appointment and has held as under:-
10. This Court had an occasion to review, analyse critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal's case (1997 AIR SCW 3331 : AIR 1997 SC 3269 : 1997 Lab IC 3330) (supra) and Wasim Beg's case (1998 AIR SCW 1159) : AIR 1998 SC 1291 : 1998 Lab IC 1233 (supra). One line of cases has held that if in the Rule or Order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The Constitution Bench which dealt with the case reported in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 : (1968 Lab IC 1409), while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.
11. The principles laid down in Dharam Singh's case (supra) though were accepted in another Constitutional Bench of a larger composition in the case reported in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : (AIR 1974 SC 2192 : 1974 Lab IC 1380), the special provisions contained in the relevant rules taken up for consideration therein were held to indicate an intention not to treat the officer as deemed to have been confirmed, in the light of the specific stipulation that the period of probation shall be deemed to be extended if the officer concerned was not confirmed on the expiry of his period of probation. Despite the indication of a maximum period of probation, the implied extension was held to render the maximum period of probation a directory one and not mandatory. Hence, it was held that a probationer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of probation has been fixed would be, as to whether there are anything else in the rules which had the effect of whitt-ling down the right to deemed confirmation on account of the prescription of a maximum period of probation beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal's case (1997 AIR SCW 3331 : AIR 1997 SC 3269 : 1997 Lab IC 3330) (supra). If flows from the above that the terms have to be used in contra distinction in order to be able to establish that they are two different things and they denote two different stages of any process. However, it is common that eligibility could also imply being qualified and vice versa. To our mind, one has to look to the spirit with which this term has been used. After having gone through the provisions of law and the way of appointment for the post of Member, Authority for Advance Rulings, it is clear that the term has been used only to imply the categories of Members who hold the qualifications to be considered for the post.
22. We could also draw a parallel to the Administrative Tribunals Act, 1985. Section 6 of the A.T. Act, 1985 deals with the qualifications prescribed for appointment as Chairman, Vice Chairmen and other Members in the Tribunal. For the sake of clarity, the relevant part of the provision is extracted hereinbelow:-
6. Qualifications for appointment as Chairman, Vice-Chairman or other Members-
(1) A person shall not be qualified for appointment as the Chairman unless he is, or has been, a judge of a High Court.-
Provided that a person appointed as Vice-Chairman before the commencement of this Act shall be qualified for appointment as Chairman if such person has held the office of the Vice-Chairman at least for a period of two years.
(2) A person shall not be qualified for appointment xxx xxx xxx
(b) as Judicial Member, unless he is or qualified to be a Judge of a High Court or he has for at least two years held the post of a Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member-Secretary, Law Commission of India or held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years. Here the law, as it is being applied, clearly denotes that qualification to be a Judge of High Court is that qualification which also prescribes the eligibility. Here, the term qualified means that the person should be eligible to be a Member of a Judge of the High Court. It does not mean that the person should have been considered for appointment of a Judge and should have been made an offer. There are few examples of persons who have declined the post of Judge of the High Court. Therefore, had the distinction as being pointed out by the learned counsel for the applicant been applicable here then the term qualified to be a judge of the High Court would have a very narrow and rare application and would serve to exclude a large number of serving Judicial Members. This is, however, not the case. The learned Members of the Bar who are being considered for this post are those who have the eligibility for being appointed as Judges of High Courts and not on the basis that they were selected and offered appointment.
23. In view of the above discussions, the Issue No.2 is decided against the applicant and we find that the respondent no.2 is qualified to be a Member of the Authority for Advance Rulings.
24. In view of the consideration above, we have no hesitation to say that the meaning of the term to be qualified is not what the applicant has asserted, but is as is applicable in the case of appointment of the Members of the Administrative Tribunal. Here also, the interpretation and the distinction, if any to be drawn, would be subject to the wordings of the statutes and the stages that they do imply. In facts of the instant case, one is also to be guided by the fact that the application of law does not imply treating irrational distinctions between the two terms. Otherwise also we find that the process of selection has followed reasonable and rational criteria and cannot be faulted on grounds of procedure or structural lapses.
25. In view of the above discussion, we find the instant Original Application being devoid of merits and is accordingly dismissed leaving the parties free to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/