Kerala High Court
A.Abdul Kaffar vs Deputy Commissionr on 25 August, 2014
Author: P.B.Suresh Kumar
Bench: Thottathil B.Radhakrishnan, P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936
WA.No. 705 of 2012 () IN WP(C).16922/2007
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WP(C) 16922/2007 of HIGH COURT OF KERALA
APPELLANT(S)/PETITIONER:
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A.ABDUL KAFFAR
KARYATTU BUNGALOW, AUVANEESWARAM.R.S.P.O,
KUNNICODE, KOLLAM DISTRICT.
BY ADVS.SRI.VIJAYAN. K.U.
SRI.K.N.SREEKUMARAN
RESPONDENT(S)/RESPONDENTS:
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1. DEPUTY COMMISSIONR
COMMERCIAL TAXES, KOLLAM-691001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
TAXES(D)DEPARTMENT, GOVERNMENT OF KERALA
THIRUVANANTHAPURAM-691 001.
ADDL.R3 IMPLEADED :
3. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO
GOVERNMENT, GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
(IMPLEADED AS ADDL. THIRD RESPONDENT AS PER ORDER DT.
12.6.2013 IN I.A.NO.404/13)
BY GOVERNMENT PLEADER SMT.K.T.LILLY.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-08-2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
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Writ Appeal No.705 of 2012
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Dated 25th August, 2014.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
Appellant was employed with the Commercial Taxes Department of the Government of Kerala. He was convicted and sentenced for offence punishable under the Prevention of Corruption Act, 1988. As a consequence of that, he was dismissed from service. He wanted to be a Sales Tax Practitioner, hereinafter 'STP' for short, in terms of Rule 97 of the Kerala Value Added Tax Rules, 2005, for short, `KVAT Rules'. He applied for inclusion of his name in the list as per those Rules. Since that was refused by the department, he filed the writ petition. That stands dismissed. Hence, this writ appeal.
2. Appellant claimed eligibility for inclusion in the W.A. No.705/12 2 list exclusively on the basis of Rule 97(3)(d) since, admittedly he is not eligible under any other clause of that Rule. The relevant provision reads as follows :
"97. Chartered Accountant, Cost Accountant and Sales Tax Practitioner --(3) A person shall not be eligible to appear as a Sales Tax Practitioner under clause (d) of Section 86 of the Act unless his name has been included in the list in Form No.28A in the manner provided in sub-rule(4) and unless he is a person -
(d) who:-
(i) has retired from the Commercial Tax Department of the Government of Kerala and a period of two years has elapsed since his retirement; and
(ii) during his service under the Government, had worked in a post not lower in rank than that of an assessing authority for a period of not less than three years :
Provided that no person shall be disqualified for appearance before the Commissioner or the Appellate Tribunal merely on the ground that two years have not elapsed since his retirement."
According to the appellant, he is one who has retired from the Commercial Tax Department of the Government of Kerala and is hence eligible under clause (d) of Rule 3. The learned single W.A. No.705/12 3 Judge repelled that plea and held that only a person, who has retired from the Commercial Tax Department, is eligible to be included with reference to that clause and the appellant/writ petitioner, being one who was dismissed from service, could not be treated as one who has retired. This finding of the learned single Judge is impeached in this appeal.
3. During the course of this appeal, the appellant/writ petitioner was granted leave to amend the writ petition and the writ appeal, enabling a challenge to the constitutional validity of the exclusion of persons who had left the service of the Commercial Tax Department, 'otherwise than by retirement'. The pointed plea in this regard is that it would amount to hostile discrimination resulting in arbitrariness and also in depriving persons like the appellant, of the fundamental right to practise and carry on with an avocation. The charge is that the said provision is, therefore, violative of right to equality and the right to practise and carry on avocation, profession and employment and hence, Articles 14 and 19(1)(g) of the Constitution of India stand infracted.
W.A. No.705/12 4
4. The learned counsel for the appellant argued that having regard to the fact that a legal practitioner is entitled to appear before an authority under the Kerala Value Added Tax Act, 2003, for short, `KVAT Act', by virtue of Section 86 of that Act, it needs to be considered whether the persons who had gone out of service of Commercial Tax Department otherwise than by retirement could be excluded. The argument is that the Advocates Act, 1961, does not prohibit the enrolment of persons who have been convicted and have suffered the conviction and sentence and if such a person can become an Advocate and thereby could be a legal practitioner to appear before an authority under the KVAT Act, there is no reason to confine the eligibility of persons who have left the Commercial Tax Department to be only to those who had retired. The plea is that those who had severed the relationship with the department otherwise, that is to say, even by being dismissed are also eligible to be considered.
5. For one thing, if the provisions of the Advocates Act, 1961 and the provisions of the Chartered Accountants Act, W.A. No.705/12 5 1949, as also, the Cost and Works Accountants Act, 1959, are relevant for registration of different professionals who may, among other things, be entitled to appear before the authorities under the KVAT Act, a person who is included in the list in terms of Rule 97(3) of the KVAT Rules will be entitled to practise only before the authorities under the KVAT Act by reason of such inclusion. The KVAT Act, particularly Section 86(1)(d) authorises the prescription of qualification by the competent authority. The qualifications have been prescribed by the Government through the KVAT Rules. While doing so, the qualification is so laid that only persons who have retired from the Commercial Tax Department would be entitled to be enlisted. All that is provided further is that they have a cooling off period of two years after retirement.
6. The power to make such subsidiary legislation is founded in the primary legislation, viz., the KVAT Act and the rule making authority has not exceeded its delegated power. It is within the wisdom of the delegate to decide the scope and the extent to which the Rules would be made to satisfy a given W.A. No.705/12 6 situation in its wisdom. The Government, obviously, has thought that the person who can practise after working in the Commercial Tax Department should be one who has retired after serving that department. Retirement is obviously a non stigmatic exit which happens in two events. It can be either retirement by superannuation or retirement taken voluntarily. The employer-employee relationship will come to an end by the process of retirement jurisprudentially, both having no allegations or complaints against the other regarding the process of the ending of the service of jural relationship between the master and servant. We do not see any arbitrariness in the Government having excluded other forms of termination of service from the purview of Rule 97(3)(d) of the KVAT Rules.
7. The aforesaid position notwithstanding, it can also be said that in the exercise of such rule making power, the Government were obliged in the backdrop of the Constitution of India to safeguard the different quasi judicial proceedings that may happen before the statutory proceedings under the KVAT W.A. No.705/12 7 Act. All possible techniques of insulating such procedures from possible erosion of values in the adjudicating process have to be appropriately foreseen and taken care of by the rule making authority. We see abundant wisdom in the Government having framed the Rules by confining the field of choice to be to those persons who have retired. If we were to enlarge the scope of the word "retired" in Rule 97(3)(d) and bring in also one who was dismissed from service, that too, on a ground of moral turpitude for an offence punishable under the Prevention of Corruption Act, we would not be enforcing the Constitution, but depriving it of its basic values. No such legislative construction can be made in the constitutional format. The challenge against the rule, therefore, fails.
8. The appellant admittedly is not qualified otherwise and he has not claimed for inclusion on any other ground.
9. Having held that the Rules get confined to those who had retired from service and not otherwise, the reasoning of the learned single Judge that a person who has left the W.A. No.705/12 8 service otherwise than by retirement, that is to say, including by dismissal from service, does not fall in that Rules. The said reasoning does not call for any interference.
In the result, this writ appeal is dismissed.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)