Bar in s. 129(6) on ex-Members practising before CESTAT does not apply to Members demitting office on probation

The respondent, a practising Advocate at Indore, was offered appointment as Member (Judicial) of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). It was indicated that the respondent would be on probation for a period of one year and upon confirmation shall hold office for a term of 5 years extendable by another term of 5 years. It was indicated in the letter that if the respondent accepted the offer his first posting would be at CESTAT Chennai Bench. The respondent sent a letter accepting the offer of appointment but requested that he may be posted at a place nearby Indore, preferably at Mumbai. That request was not accepted and the respondent was requested to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within 10 days. The respondent wrote a reply in which he gave his unconditional willingness to be appointed Member (Judicial) but sought clarification whether a Member is entitled to practice and appear in CESTAT after he is discharged from services for any reason during the period of probation. The Government responded and stated that the bar in s. 129(6) of the Customs Act which applied to a member ‘on ceasing to hold office’ is applicable to all types of cessation; whether on retirement, resignation or discharge during probation or by any other way. The respondent challenged the said letter before the Central Administrative Tribunal and sought a direction that he should be allowed to join as Member in the CESTAT without being subjected to the embargo of s. 129 (6) in the event of his ceasing to hold office as Member before the expiry of period of probation. During the pendency of the application before the CAT, the Government withdrew the offer of appointment on the ground that his unconditional willingness to accept the offer of appointment had not been received. The respondent challenged the withdrawal of the offer of appointment before the CAT. The CAT held that a person under probation was not holding an office for the purpose of s. 129(6) of the Customs Act and that the case of discharge of a probationer from service on account of not being not found suitable for being confirmed was not comparable with cessation of office by person who has acquired a lien on it. The CAT followed the order in Concept Creations vs. ACIT 120 ITD 19 (Del) (SB) where it was held that Members of the ITAT are debarred from appearing before the ITAT only after retirement from service of the Tribunal and such conditions are not made applicable to a member discharged from service during the period of probation. It also held that the clarification sought by the respondent did not mean that he had not unconditionally accepted the offer of appointment and that the same could not be revoked. The Government challenged the said order in a Writ Petition. HELD by the High Court dismissing the Petition:

The bar under s. 129(6) that a Member “on ceasing to hold office” shall not be entitled to appear, act or plead before the Tribunal is applicable to a Member holding the post on substantive basis and not to a person demitting office as a probationer. The word ‘probation’ means the testing of the character, conduct or abilities of a person. A Member on probation cannot be said to be “holding office” because he has no vested right in the said office. The Service Rules also show that a distinction has been made between the appointment of a Member who is on probation and a Member who is confirmed. Also, the fact that the respondent sought a change in the place of posting and sought clarification does not mean that he had not unconditionally accepted the offer of appointment.