9911796707
TMI Blog1999 (12) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember, 1982. On 25th September, 1982 he was formally appointed by the President of India as Judidal Member of CEGAT and was posted at Bombay Bench of the said Tribunal. Gazette notification dated 11th October, 1982 to this effect was issued by the respondents and petitioner joined the post on 29fh October, 1982. 2. In exercise of powers conferred by the proviso to Article 309 of the Constitution of India notification dated 26th February, 1987 was issued promulgating Customs, Excise and Gold (Control) Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 (hereinafter referred to as CEGAT Rules, for short). As per these rules period of probation as Judicial Member was one year. On 3rd November, 1988 order was issued by the respondents stating that petitioner had completed his period of probation w.e.f. 28th October, 1983 which was followed by notification dated 7th November, 1988 appointing petitioner substantively to the post of Judicial Member of CEGAT w.e.f. 29th Odober, 1983. While the petitioner was working as Member, CEGAT, by order dated 15th January, 1991 he was appointed as Vice-President of CEGAT at Delhi w.e.f. date he took over the charge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 1995. In fact on 12th April, 1995 itself he had applied for leave w.e.f. 12th April, 1995 to 28th April, 1995. The leave applied for by the petitioner was, however, refused vide letter dated 27th April, 1995 on the ground that since he had completed three years tenure as President on 12th April, 1995 and could not continue in CEGAT in any other capacity no leave could be granted to him. Be that as it may, fact remains that after 12th April, 1995 petitioner did not work in any capacity in CEGAT. Petitioner submitted representation against order dated 17th April, 1995 on 8th October, 1995. Vide letter dated 17th October, 1995 he was informed by the Finance Minister that he shall have the matter carefully examined. However, as no further communication or reply was received from the respondents, petitioner filed application (O.A. No. 2249/95) under Section 19 of the Administrative Tribunal Act before the Central Administrative Tribunal (hereinafter referred to as CAT, for short) Principal Bench, New Delhi. By impugned order dated 13th April, 1998 CAT dismissed the application filed by the petitioner. Feeling aggrieved against the order of the CAT present writ petition has been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Judge of a High Court) is appointed as President, he shall hold the office of the President, for a period of three years or till he attains the age of 62 years, whichever is earlier, (4) Where a serving Judge of a High Court is appointed as Member and President, he shall hold office as President for a period of three years from the date of his appointment or till he attains the age of 62 years, whichever is earlier : Provided that where a Retired Judge of a High Court above the age of 62 years is appointed as President, he shall hold office for such period not exceeding three years as may be determined by the Central Government at the time of appointment or re-appointment. 9. Thereafter, relevant rule for our purpose is Rule 16 and it reads as under : 16. Compulsory retirement : Subject to, provisions of Rule 10, the date of compulsory retirement of a Member (other than the President) shall be the date on which he attains the age of sixty years and not the last day of the month as in the case of other Central Govemment Servants, unless it is extended by an order of the Central Govemment. 10. In addition to the above rules, since F.R. 9(4), 9(13), 9(22), 9( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a tenure post of three years. He butteressed this argument by contending that all the posts in CEGAT belong to same cadre. He submitted that the composition of CEGAT was that of President, Senior Vice-President (which post stood abolished on 26th September, 1997), two Vice-Presidents and 18 Members which belong to the same cadre. He referred to the letter dated 18th July, 1991 addressed by Deputy Secretary, Government of India to the Registrar, CEGAT relating to sanction regarding setting up of the Appellate Tribunal for Customs, Excise and Gold (Control) Matters and particularly Para 2 thereof which reads as under : One of the Members would be President of the Appellate Tribunal and there will be one Vice-President also from among the Members. Each Bench will have atleast one Judicial Member and one Technical Member. 14. He submitted that initial constitution of the Tribunal included seven Judicial Members and seven Technical Members and it is one of the Members who was to be the President of Appellate Tribunal and another Member was to be the Vice-President. Thus President, Vice-President were to be from amongst Members of the Tribunal which clearly shows that the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, to sum up, Mr. Malhotra argued that his case was based on the following three propositions : (A) Post of Member to which the petitioner was appointed, was a permanent post which he held in substantive capacity; (B) He was appointed as President on a tenure post of three years during which period he held his lien on the permanent post of Member; (C) The posts of Member as well as Vice-President belong to the same cadre and therefore on completion of tenure he had a right to join back as Member, CEGAT till he attains the age of superannuation. 17. As may be noticed in detail herein after respondents do not dispute the first proposition as well as second proposition to the extend that petitioner was appointed as President which is tenure post. Respondents do not, however, agree that petitioner held lien on the post of Member after his appointment as President. The entire dispute is on the third proposition advanced by Mr. P.P Malhotra, as well as retention of petitioner s lien on the post of Member after his appointment as President, CEGAT. 18. It would be appropriate, at this stage, to refer to the impugned judgment of the Central Administrative Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident and shows that it is a fresh direct appointment to an independent post based on selection method and inter alia provides that any Member (not necessarily senior most Member) can be appointed as President. He submitted that it is not even necessary that only Member is appointed as President and even a person who is or has been a Retired Judge of a High Court can be appointed as President of CEGAT. He further referred to Rule 16 of CEGAT Rules which fixes superannuation age of a Member (other than the President) at 62 years. Rule 16 expressly makes it subject to Rule 10 including sub-rule (3) of Rule 10 while according to him, can only mean that a Member on becoming President will go out on the expiry of his tenure under sub-rule (3). Thus, according to him, if Rule 16 is subject to Rule 10(3) President cannot have the advantage of superannuation as in Rule 16. Dilating further on this aspect, learned Additional Solicitor General submitted that Rule 10(3) provides that Office of the President shall be for a tenure of three years only or till the age of 62 years whichever is earlier and, therefore, Rule 10(3) substantially makes the provision by which a President has to dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is approved by the Appointments Committee of the Cabinet. 25. Once a person is appointed as President he is governed by totally different set of service conditions. Office of President is on a tenure basis. Section 129C of the Customs Act recognises it to be a different office with special powers which a Member does not have. Moreover, F.R. 9(22) read with Rule 9(30A) makes the post of President a permanent post, albeit, for a limited period. This fact is even admitted by the petitioner as in his O.A. filed before the Central Administrative Tribunal he himself stated that on his appointment to the post of President he held the post of President substantively. 26. Sustenance to this conclusion can also be drawn from reading Rule 16 of the CEGAT Rules dealing with age of retirement. A perusal of this rule reveals two significant aspects, namely, (a) it is made subject to provisions of Rule 10 and (b) retirement age prescribed is that of a Member specifically excluding President. The Pay and Allowance structure contained in the rules show that President s post carries a higher salary as compared to the post of Member. A Member is treated on different footing as President. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself clearly indicated that the incumbent would be on probation for one year. It is also an admitted position that the appointment to the post of Director is a tenure post for a period of five years. Thus, it is a permanent post. The question, therefore, is whether, on completion of the period of five years, the incumbent would revert to his parent post? It is seen that the appellant came to be selected while he was working in the post of Professor and Head of the ENT Department. Take for instance, a doctor who is selected from outside the institute from anywhere in the country; on his appointment, unless he is permitted by his Appointing Authority to go on tenure basis with a right to revert to the parent department, he cannot claim to retain his post in his original appointment; at the same time, he can be a permanent Government servant in the Central Government with the AIIMS. 30. Similarly, in Bidap s case (supra) the Supreme Court held that Chairman of U.P.S.C. is also a Member but nevertheless the Office of a Member is different from that of a Chairman so also the duties attached to each office are different although both are Members. The Supreme Court observed that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of duties and pay scales attached to the posts are different, they cannot be said to be in the same cadre. 33. In this connection we would like to note the observations of the Supreme Court in Dr. Chakardhar Paswan v. State of Bihar, AIR 1988 SC 959. As per facts in the said case the Directorate of Indigenous Medicine comprised of 4 posts, namely, Director and three Deputy Directors which were all Class I posts. The Supreme Court observed that though the Director and Deputy Directors were Members of the same service but they do not belong to the same cadre. The question in that case was about reservation of posts as per 40 point roster. It was observed In service jurisprudence, the term cadre has a definite legal connotation. In the legal sense, the word cadre is not synonymous with service . Fundamental Rule 9(4) defines the word cadre to mean the strength of a service or a part of service sanctioned as a separate unit, the post of Director which is the highest post in the Directorate is carried on a higher grade or scale, while the post of Deputy Directors are borne in a lower grade or scale and, therefore, constitute two definite cadres or grades. It is open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Fundamental Rule 9(13) defines lien to mean title of a Government servant to hold substantively either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post to which he has been appointed substantively. Therefore, if a Government servant is appointed substantively to a permanent post or a tenure post he becomes a Government servant for the purposes of his tenure. Consequently, he is entitled to retain lien on that post. A tenure post means as per FR 9(30A) a permanent post which an individual Government servant may not hold for more than a limited period. The Supreme Court observed in this behalf in Dr. Kacker s case : 10. It would indicate that on appointment to a permanent post, be it under the Central Government or the State Government, outside the cadre on which he is borne, his lien on the previous permanent post stands terminated on his acquiring a lien in a permanent post. The post of Director is not in the same cadre as the post of Professor in the AIIMS. The post of Director is the Head of the AIIMS and it is independent of all the Departments. The Director is enjoined to supervise not only the administrative w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment) outside the cadre on which he is borne. 40. The said provision suggests that the lien on the permanent post earlier held by the Government servant stands automatically terminated on his acquiring a lien on another permanent post outside the cadre. Therefore, this decision is of no help to the petitioner. 41. In State of Haryana v. D.R. Sangar, AIR 1976 SC 1199, the legal position was almost akin to the one in T.R. Sharma s case (supra). The same Punjab Civil Service Rule was under consideration and the Court arrived at this decision on the same basis. In view of the F.R. 14A(d) this decision is again of no help to the petitioner. 42. The other decisions, namely, State of Punjab v. Labhu Ram, AIR 1977 SC 98; and D.M. Bharati v. L.M. Sud Ors., (1991) Suppl. II SCC 162, in our view have no relevance in the facts and circumstances of the present case. 43. The main argument of the learned Counsel for the petitioner that the posts of Member and President, CEGAT are in the same cadre and, therefore, the petitioner retained his lien on the post of Member when he was appointed as President on a fixed tenure has already been dealt with. We have held that the two posts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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