9911796707
TMI Blog2005 (8) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... or under this Act. Rule 4 of the M.P. Vanijyik Kar Niyam, 1995 ("the Rules", for short) as it originally stood, provided that the Tribunal shall consist of three or more Judicial and Account Members appointed by the State Government. The said rule was substituted by a new rule 4 as per notification dated June 3, 2002, the relevant portion of which read as follows: "4. Constitution of the Tribunal and its functions.--(1) The Tribunal shall consist of a Chairman and two Members, appointed by the State Government, who have vast experience of administration or taxation matters. …………. (5)(c) The salaries, allowances and other conditions of service of the Chairman, Members, officers and other employees of the Tribunal shall be such as the State Government may, by orders, specify." 3.. By Notification dated January 10, 2003, the State Government, in exercise of power under section 4 of the M.P. Vanijyik Kar Adhiniyam, 1994 constituted the "M.P. Commercial Tax Tribunal", with Shri Suraj Prakash (Retired I.A.S.) as Chairman and Shri G.P. Tiwari (Retired Additional Commissioner, Commercial Taxes) and Shri Nemi Chand Jain (Advocate, Guna) as the Members. By o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laries, allowances and other conditions of service of the Chairman and Members of the Appellate Board shall be such as the State Government may, by order, specify. (5) A Member of the Appellate Board may at any time tender his resignation from the post and such resignation shall take effect from the date of its acceptance by the State Government. (6) The State Government may terminate before the expiry of the tenure, the appointment of the Chairman or a Member of the Appellate Board, if the Chairman or the Member-- (a) is adjudged as an insolvent; or (b) is engaged during his term of office in any paid employment outside the duties of his office; or (c) is in the opinion of the State Government, unfit to continue in office by reason of infirmity of mind or body; or (d) is convicted of an offence involving moral turpitude; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions; or f) has so abused his position as to render his continuance in office prejudicial to the public interest." (emphasis supplied) 5.. After such substitution of rule 4, two orders were issued on July 9, 2004. By the first order dated July 9, 2004 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted as Member nor continue as a Member of the Appellate Board. The petitioner in W.P. No. 3197 of 2004 has reiterated the contention that the third respondent was not entitled to hold the office of Member of the Board and therefore liable to be removed by issue of a writ of quo warranto. 8.. Respondents 1 and 2 resisted the petitions contending that rule 4(3) of the Rules as amended by notification dated July 7, 2004 is validly made and did not suffer from any infirmity. It is further contended that in view of such amendment, any person who has already attained the age of 62 years cannot be appointed as Member and any Member already appointed and who has crossed 62 years as on the date when the amended rule 4 came into force (July 7, 2004) cannot continue as Member beyond July 7, 2004. The petitioner who was 66 years when appointed as Member on January 10, 2003 could not, therefore, be continued as Member beyond July 7, 2004 and that necessitated the issue of an order dated July 9, 2004, bringing his appointment to an end. In so far as the appointment of third respondent as Member in place of petitioner, it is contended that as per the particulars and documents furnished by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenure cannot extend beyond 62 years for Members. The learned counsel for the petitioner was not able to justify his contention that any term of the rule is unreasonable or arbitrary. He, however, contended that as the amendment is retrospective which has the effect of taking away a benefit already accrued to the petitioner under the existing rules, it is arbitrary, discriminatory and violative of article 14 of the Constitution. Strong reliance is placed on the decisions of the Supreme Court in Chairman, Railway Board v. C.R. Rangadhamaiah (1997) 6 SCC 623; AIR 1997 SC 3828, T.R. Kapur v. State of Haryana (1986) Supp SCC 584; AIR 1987 SC 415, P.D. Aggarwal v. State of U.P. (1987) 3 SCC 622; AIR 1987 SC 1676, K. Narayanan v. State of Karnataka (1994) Supp 1 SCC 44; AIR 1994 SC 55 and Union of India v. Tushar Ranjan Mohanty (1994) 5 SCC 450 in support of the said contention. It is submitted that a right had accrued to the petitioner by virtue of his appointment to serve for five years or till attaining the age of 70 years (whichever is earlier) and that right cannot be curtailed or taken away by providing that no one can have a tenure as a Member of the Appellate Board beyond 62 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Supreme Court, a rule which operates to affect only the future rights of those already in service and which does not affect the benefits or rights which have already accrued or enjoyed (till the date of the rule coming into effect) is not a rule which is retrospective in operation and consequently cannot be termed as violative of article 14 of the Constitution. 14.. The petitioner next contended that by virtue of his appointment as a Member on January 10, 2003 and subsequent order dated February 7, 2003 fixing his tenure (as five years or till attainment of 70 years, whichever was earlier), a right had accrued to him to continue in service till attaining the age of 70 years and that right cannot be altered unilaterally to his disadvantage, that too, without giving an opportunity to show cause. This contention is also untenable. In a series of decisions, the Supreme Court has clarified that though employment or service under the Government may be contractual in origin, the Government servant acquires a "status" on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority, which for it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to challenge the authority of the State to amend, alter and bring into force new rules relating to his existing service [vide decisions in State of Jammu & Kashmir v. Triloki Nath Khosa (1974) 1 SCC 19; AIR 1974 SC 1 and P.U. Joshi v. Accountant-General (2003) 2 SCC 632; AIR 2003 SC 2156]. Therefore, we hold that: (i) rule 4(3) of the Rules does not suffer from any Constitutional or other infirmity; (ii) that rule 4(3) is not retrospective, but prospective in operation; and (iii) such a rule can be made applicable to existing Member of the Appellate Board, to be effective from the date of the rule coming into effect. 16.. When the new rule 4(3) came into effect on July 7, 2004, the petitioner became ineligible to continue in the post from July 7, 2004. Consequently, the State was justified in putting an end to his service as Member of the Appellate Board by issuing a letter dated July 9, 2004. As we have already held that giving effect to a rule in future without affecting the rights anterior to the date of amendment does not amount to giving retrospective effect to the rule, there is no merit in the challenge to the letter dated July 9, 2004 bringing to an end the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 2, 1994. Therefore, admittedly the third respondent was not an advocate with 10 years standing on July 9, 2004, when he was appointed as a Member of the Appellate Board. The third respondent contends that the requirement of rule 4(2)(b) is that the person appointed should (i) be an advocate and (ii) have an experience of at least 10 years of practice in sales tax, commercial tax or income-tax. It is submitted that rule 4(2)(b) does not require that the person to be appointed as a Member should have been an advocate for 10 years. It is alleged that the third respondent was practicing in the taxation field for more than 10 years as on July 9, 2004 and was enrolled as an advocate on August 2, 1994 and, therefore, he fulfilled both requirements for being appointed as a Member. 20.. Let us examine whether the third respondent could be considered as a person "practicing" taxation for 10 years as on July 9, 2004. Section 31 of the Act relates to appearance before taxing authorities. Sub-section (1) thereof provides that any dealer may attend or appear in person or represented by a person authorised by him in writing, being a relative of or a person regularly employed by the dealer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The Supreme Court held: "It clearly appears that a distinction has been drawn between a legal practitioner and a sales tax practitioner in section 71. Both may appear before an authority in connection with sales tax cases. That will not turn a sales tax practitioner into a legal practitioner. Even a relative or an employee of an assessee may appear on his behalf before a sales tax authority. He does not require to have any special qualification for doing that. If an employee appears regularly for his employer in connection with sales tax cases of his employer before a sales tax authority, he cannot be treated to be a legal practitioner or entitled otherwise to practise the profession of law by virtue of section 71 of the Bombay Sales Tax Act. The second category of persons, who are entitled to appear before sales tax authorities under clause (b) of section 71, are professionally qualified persons. A legal practitioner or a chartered accountant or a cost accountant may appear before a sales tax authority on behalf of his client. Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case, the third respondent admittedly did not get himself registered as a tax practitioner. Therefore, the contention that the third respondent had started tax practice in the office of Sogani & Company at Nayapura, Guna in February 1994 itself and that earlier he was dealing with taxation matters of one Pradeep Kumar Jain and others from July 1, 1989 to June 1994, even if true, are of no relevance. As he was not a registered tax practitioner, it could not be said that he was practicing taxation. We, therefore, hold that the third respondent was ineligible for being appointed as a Member of the Appellate Board on July 9, 2004, as he did not have the experience of ten years' practice in the field of taxation as on July 9, 2004. 22.. The contention of the third respondent that he had been given an identity card by the M.P. State Bar Council showing the enrolment No. 1215/1994 and the date of enrolment as June 2, 1994 and, therefore, he had 10 years' experience is only to be stated to be rejected. As noticed above, the register of the Bar Council of M.P. clearly shows that he was enrolled on August 2, 1994. This is not disputed. In the circumstances, if the identity card show ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
