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2021 (3) TMI 438 - DELHI HIGH COURTAppointment 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.
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