2021 (3) TMI 438 - HC - Customs

Appointment of members of CESTST - petitioner contends that CAT did not consider (a) sub-section (7) added to Section 129 of the Customs Act 1962 (Customs Act), vide the same Finance Act 2017 and which Section 129(7) - contention of the counsel for the respondents is that if the respondents, under the impugned order of CAT were to be given the benefit of the 2017 Rules - HELD THAT - Though the counsel for the respondents is correct in his contention aforesaid but it is not as if the order of CAT whereunder the said benefits had been directed to be given to the respondents, had/has attained finality. The same was subject matter of the judicial review in this petition and in which exercise of power of judicial review, merit is found in the contention that CAT, in the impugned order has not noticed Section 129(7) of the Customs Act which permits of no ambiguity. In accordance therewith, the respondents, who are pre 2017 appointees, are to be continued to be governed by the 1987 Rules and not by the 2017 Rules. The respondents cannot pick beneficial provisions from both the Rules. They cannot claim security of tenure till the age of superannuation, under the 1987 Rules and at the same time claim emoluments under the 2017 Rules. They forget that post 2017 appointees have a maximum tenure of five years only. Without a challenge being made to Section 129(7) of the Customs Act and/or the same being struck down, the principle of equal pay for equal work, though otherwise appears to be justified, could not have been applied in contravention of the statute. However for application of the said principle also, a comparative study of all the terms and conditions of appointment have to be made and which has also not been done in the impugned order. Section 129(7) of the Customs Act having admittedly not been noticed by CAT in the impugned order, the same is per incuriam to that extent and cannot be sustained - Petition allowed.

Summary

Issues:
Challenge to order of Central Administrative Tribunal (CAT) regarding salary disparity between pre and post-2017 appointees of Customs, Excise & Service Tax Appellate Tribunal (CESTAT).

Detailed Analysis:

1. Impugned Order by CAT:
The petition challenged the CAT order allowing the plea of respondents, pre-2017 appointees of CESTAT, regarding salary disparity. CAT reasoned that the 2017 Rules applied to post-2017 appointees, entitling them to higher salaries compared to pre-2017 appointees.

2. Legal Provisions Involved:
CAT based its decision on Sections 183 and 184 of the Finance Act, 2017, empowering the Central Government to frame rules for qualifications, appointments, and salaries of tribunal members. CAT found that the 2017 Rules provided for higher salaries for post-2017 appointees.

3. Contentions of Petitioner:
The petitioner argued that CAT failed to consider Section 129(7) of the Customs Act, which specified that pre-2017 appointees should be governed by the 1987 Rules. The petitioner contended that the principle of equal pay for equal work could not apply due to statutory provisions.

4. Judicial Review and Final Decision:
The High Court found merit in the petitioner's argument, stating that pre-2017 appointees should be governed by the 1987 Rules, not the 2017 Rules. The Court noted that the principle of equal pay could not contravene statutory provisions unless challenged and struck down.

5. Observations and Conclusion:
The Court expressed doubt over CAT's interpretation of the protective nature of Section 183's proviso. Despite subsequent developments, the High Court set aside the CAT order, emphasizing the need to adhere to statutory provisions and avoid cherry-picking beneficial rules.

6. Final Verdict:
The High Court allowed the petition, setting aside the CAT order and highlighting the importance of adhering to statutory provisions and conducting a comprehensive analysis of all terms and conditions before applying principles like equal pay for equal work.

This detailed analysis provides insights into the legal intricacies surrounding the salary disparity issue between pre and post-2017 appointees of CESTAT, emphasizing the significance of statutory provisions and the need for a thorough examination of all relevant factors in legal judgments.