TMI Blog2013 (8) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Respondent reiterated the stand taken by them in the impugned communications dated 12-9-2012 and 6-12-2012, which was not be sustainable – Respondent vehemently relied upon the word ‘ceasing to hold office’ - The said phrase cannot be applied to probationer not found suitable to be confirmed and discharged from service - Reference has been made to CESTAT Member (Recruitment and Condition of Service) Rules, 1987, but in the said rule, there is no any stipulation that if a probationer member of CESTAT is not found suitable to be confirmed and discharged, he cannot appear before it – Decided in favor of Appellant. - O.A. Nos. 4283/2012 with 4006/2012 - - - Dated:- 27-2-2013 - Mrs. Manjulika Gautam and Shri A.K. Bhardwaj, JJ. Mrs. Jyoti Singh, Sr. Advocate with Ms. Tinu Bajwa, Ms. Deepali Dwivedi, Mohit Buluck and Shri Gagan Deep Sharma, for the Appellant. Shri Rajeev Kumar, Advocate, for the Respondent. ORDER Since both the aforementioned Original Applications filed by applicant Shri Ramesh Nair raise inter-linked facts and issues, same are assimilated for disposal by common order. In terms of Office Memo F.No. A-12026/1/2011-Ad.IC (CESTAT), dated 13-9-2012, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129(6) of Customs Act, 1962 and Central Excise Act, 1944 in the event of his ceasing to hold office as Member before the expiry of period of probation, the applicant filed OA No. 4006/2012 which came up for hearing for admission on 3-12-2012 and again on 18-12-2012. During the pendency of said OA, respondents issued letter No. A. 12026/1/2011-Ad.IC (CESTAT), dated 6-12-2012 withdrawing the offer of appointment to the post of Member (Judicial) in CESTAT issued to applicant (ibid) on the ground that despite sufficient time granted for the purpose, his unconditional willingness to accept the offer of appointment had not been received in the department. In OA No. 4283/2012 filed by him, the applicant has questioned the aforementioned order of withdrawal and cancellation, i.e. offer of appointment given to him. The salient grounds raised on behalf of applicant in two OAs are :- (i) The Respondent s action in issuing impugned letter dated 6-12-2012 was precipitate in nature and ex facie unsustainable in law, as it amounted to defeating the process of the Tribunal initiated by issuance of notice in OA No. 4006/2012 on 3-12-2012 and the dispensation of justice by way of executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the counsel for parties and the material available on record, we find that most of the controversy involved in the present case revolves around the interpretation of the phrase on ceasing to hold office used in Section 129(6) of Customs Act, 1962. For convenient adjudication of the OA, the propositions required to be determined by us are articulated as under :- (i) Whether a person not confirmed as Member of CESTAT can be said to be holding the office as Member of said Tribunal? (ii) Whether the term ceasing to hold office as Member would also include discharge of a probationer? (iii) Whether a request to seek clarification of certain doubt or challenge to clarification so received before Court of law can be construed as conditional or/absence of willingness to accept the offer of appointment to a post? The adjudication of aforementioned proposition Nos. 1 and 2 would involve interpretation of the phrase ceasing to hold office, particularly the phrase hold office. A Statute is an edict of Legislature and the conventional way of interpreting or construing it is to seek the intention of its maker. It is to be construed according to the intent of those who make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y without any controversy fall within the content of a word, but there may be many others on or near the borderline in respect of which it may be a matter of doubt and serious argument whether they are within or outside the connotation of the word. It is therefore, said that word, in addition to hard central core of meaning have a penumbra, a dim fringe , and cases falling within near to this fringe are apt to give rise to sharp difference of opinion. There are indeed opinions where the fiction of intention is lifted and judges are seen acknowledging that they are filling in the gaps, or that they have, by construction added certain words not contained in the enactment, or that the conclusion reached by them is as if like definition clauses existed in the statute itself. The intention of the Legislature are assimilate two aspects : in one aspect it carries the concept of meaning , i.e. what the words mean and in another aspect, it conveys the concept of purpose and object or the reason and spirit pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. The colloquial word of a statute does not fix an artificial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric, such as a house, a store, a church, a shed .. These observations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants. 5. In Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Ors (AIR 1979 SC 193), it is viewed as under : 63. The primary principle of interpretation is that a constitutional or statutory provision should be construed according to the intent of they that made it (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held as under :- 20. The question of interpretation involves determining the meaning of a text contained in one or more documents. Judges are often criticised for being tied too closely to the statutory words and for failing to give effect to the intention of the Parliament or the law-maker. Such language, it has been said, in Cross s Statutory Interpretaion (Second Edn.) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation - the statutory text and the intention of the Parliament - and the Judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the lawgiver has been expressed. Cross refers to Blackstone s observations that the fairest and most rational method to interpret the will of the law-maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law. We have no doubt, in our opinion, that having regard to the language used it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old . The universal meaning of the word hold (past and past part held) given in Concise Oxford dictionary is grasp, carry, or support 2. keep or detain keep possession of keep in a specified position continue to follow (a course)-stay or cause to stay at a certain value or level (In sport) manage to achieve a draw against. 3. remain secure or intact be or remain valid or available (hold to) refuse to abandon or change (a principle) (hold someone to) cause someone to adhere to (a commitment) 4. contain or be capable of containing-be able to drink (a reasonable amount of alcohol) without suffering ill effects. 5. have in one s possession have or occupy (a job or position) have in store. I don t know what the future holds-have (a belief or opinion) consider to be responsible for a situation.-(hold someone/thing in) regard someone or something with (a specified feeling) the speed limit is held in contempt (of a judge or court) rule. 6 reserve maintain (a telephone connection) 7. N. Amer informal refrain from adding or using (hold it) informal wait or stop doing something 8. arrange and take part in (a meeting or conversation), n. 1 a grip 2 a handhold. 3 a degr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification. An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as on probation without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made, when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. The question for our consideration is whether the protections of Art. 311 are available to each of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors (Scotland) Act, 1890 (c. 40), S. 1]; See hereon Great Eastern Railway v. Lords Trustees (1909) AC 109. 20. In Words and Phrases, Permanent Edition Vol. 25 the definition of word lien when used to explain the equitable lien is given thus : A lien from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches. 21. At page 393 of the same volume it is stated : The word lien has a well known signification. In law it signifies an obligation, tie, or, claim annexed to or attaching upon any property, without satisfying which such property cannot be demanded by its owner, videi Storm v. Waddell, N.Y., 2 Sandf. Ch. 494, 507, 508. 22. Again at page 399 of the same Volume it is stated : Lien is a term of very large and comprehensive signification, but which never imports more than security, vide Mobile Building and Loan Ass n v. Robertson, 65 Ala 382, 383. 23. In Black s Law Dictionary, 6th Edition, at page 922 the following passage is found : The word lien is a generic term and, standing alone, includes liens acquired by contract or by operation of law. 24. Shelat, J. in Pare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to have acquired lien on the office of Member (CESTAT). A person can cease to hold something when he has acquired it. There is no question of cessation to hold something on which no lien/possession or the holding is earned or generated. As is viewed by Hon ble Supreme Court in Rajesh Kumar Srivastava v. State of Jharkhand and Ors [JT 2011 (3) SC 99], a person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. During the period of probation, the action and activities of the probationer are generally under scrutiny and on the basis of his overall performance, a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. Relevant excerpts of said judgment read as under- 11. The records placed before us disclose that at the time when the impugned order was passed, the appellant was working as a Probationer Munsif. A person is placed on probation so as to enable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for confirmation. Para 35 of the judgment reads as under : 35. In the case on hand, correctness of the interpretation given by this Court to Rule 24 of the Rules in the case of Dayaram Dayal v. State of M.P. [(1997) 7 SCC 443] is the bone of contention. In the aforesaid case, no doubt, this Court has held that a maximum period of probation having been provided under sub-rule (1) of Rule 24, if a probationer s service is not terminated and he is allowed to continue thereafter it will be a case of deemed confirmation and the sheet anchor of the aforesaid conclusion is the Constitution Bench decision of this Court in the case of State of Punjab v. Dharam Singh [AIR 1968 SC 1210]. But, in our considered opinion in the case of Dayaram Dayal. Rule 24 of the Rules has not been interpreted in its proper perspective. A plain reading of different sub-rules of Rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of Rule 24 a maximum period of 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Shamsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra). 39. Apart from sub-rule (I) of Rule 24 of the Rules, the effect of sub-rule (3) may also be considered. Under sub-rule (3), if a probationer has been found unsuitable for the service during the period of probation or he has failed to pass the prescribed departmental examination then the Governor at any time thereafter may dispense with his service. The power for dispensing with services has been conferred upon the Governor to be exercised at any time after the period of probation if the probationer is found unsuitable or if he has failed to pass the prescribed departmental examination. If the interpretation given by this Court in the case of Dayaram Dayal (supra) to sub-rule (1) of Rule 24 is held to be correct then this power of the Governor under sub-rule (3) would become otiose inasmuch as a probationer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfactory it could not have been held that his service could be regularised automatically by a deeming provision. Thus, in view of aforementioned, probation is the process of assessment and adjudgment of suitability of a person for his confirmation and fitness to acquire lien on the post. A person under probation may not be said to be holding an office for the purpose of Section 129(6) of Customs Act, 1962, albeit for other purposes he may be so called depending upon the circumstances. A person can be said to have ceased to hold something only when he has been holding it. Thus, the discharge of probationer from service on account of being not found suitable for being confirmed may not be compared with cessation of office by person who has acquired a lien on it. In order to appreciate the intention of legislation incorporating Section 129(6) in Customs Act, 1962, we may usefully refer to an order of ITAT Delhi ( B Bench) Special Bench (2009) 120 ITD 19 (Delhi), wherein detailed affidavit filed on behalf of UOI is taken note of. As has been noted in para 40 of the order of ITAT the Members of ITAT on ceasing to hold office are debarred from appearing before it in view of dignity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing and practicing before the Tribunal wherein they have adjudicated the dispute of others. According to him, although many of the interveners have questioned the legislative competence for enacting Rule 13E into the service conditions and have also questioned its validity as discriminatory and violative of Article 14, 19 and 309 of the Constitution of India, in so far as these questions are raised by the interveners, this Tribunal is not competent to go into the warrants of the legislation in the manner canvassed by the interveners and it should be rejected at the threshold. As a result, the Members who have resigned from such posts while they were in probation an analogy may be drawn to Article 220 of the Constitution, where provision of appointment of a permanent judge of the High Court and persons who have resigned before becoming permanent may not be debarred under Article 221 of the Constitution. On the same analogy such Members of the Tribunal who resigned from service when not confirmed without retirement benefits may plead that they should not be debarred from practicing before ITAT. However, this controversy cannot be left here for the reason that in the case of P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be worthless to refer to the judgment of Division Bench High Court of Bombay (D.B) in the case of Nitin Shankar Deshpande v. President of India and Ors - [2012 Law Suit (Bom.) 710]. In the said case, Hon ble High Court viewed as under :- 15. This, however, cannot provide justification for the Court, while interpreting the provisions of Article 220, to rewrite a constitutional provision. Where the Constitution has specifically confined the prohibition on the right to practice before the same High Court only to a person who has held office as a permanent Judge of the High Court, there would be no reason or justification for the Court to introduce such a restraint by a process of judicial interpretation upon Additional Judges. The view which we have placed on the plain language of Article 220 also accords with the observations of the Supreme Court in N. Kannadasan v. Ajoy Khose. In that case, the Supreme Court considered the provisions of Section 16 of the Customer Protection Act, 1986 which provides that the State Commission shall consist of a person who is or has been a Judge of the High Court. The Supreme Court was of the view that the suitability of a person to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, the choice among competing considerations is made by the Constitution. The duty of the Court is to respect a conscious choice made by the constituent body. In the absence of a constitutional challenge, whether a constitutional provision should be revisited or altered is not for this Court to decide since the constitutional authority to do so vests in Parliament. 17. There is absolutely no merit in the contention that an Additional Judge who upon reverting to the Bar commences practice would be placed in an unequal position as compared to any other member of the Bar. Judges are vested with a solemn obligation of rendering justice in accordance with law; justice which is dispassionate and objective. If a person who is appointed as an Additional Judge reverts to the Bar at the end of his tenure of office or earlier, that person assumes the role of an Advocate before the Court. Every member of the Bar is entitled to the same treatment from the Bench and there is no basis in the apprehension that this would not be the case if an Additional Judge, upon ceasing to hold office reverts to the Bar. Judicial office is associated with the discharge of significant responsibilities. Train ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 (ibid), the applicant sent a communication dated 25-10-2012 to the Under Secretary, Government of India, Ministry of Finance (Department of Revenue) giving his unconditional willingness to accept the offer of his appointment as Member (J) in Chennai and sought certain clarifications, including, whether a member is entitled to practice and appear in CESTAT after he is discharged from service for any reason given by either side during the period of probation. Relevant excerpts of said representation read as under :- I hereby give my unconditional willingness to accept the offer of my appointment as Member (Judicial) in Chennai subject to your kind clarification on my following queries : In my appointment offer, in condition 3, it is mentioned that A Member may be discharged from service at any time during the period of probation without assigning any reason. The maximum probation period is 3 years. In this regard I would like to seek an important clarification that whether a Member is entitled to practice and appear in CESTAT after he is discharged from service for any reason given by either side during the period of probation. I further like to refer to Section 129(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a judicial member directly appointed from the bar is discharged or demits his office during the probation period, no condition can be attached to him that he cannot practice before the Appellate Tribunal. A member on probation cannot be equated with a permanent member and he cannot be deprived of his means of livelihood only for the reason that he acted temporarily as a member for a short period of time. In absence of such clarity for the CESTAT Members, by drawing the inference of the above Rule 9(2), I am of the bona fide belief that even the same provision must mutatis mutandis apply to the CESTAT Members also directly appointed from the bar and if for any reason such Member is discharged from his services or he decides to demit his office for any reason whatsoever during the probation period, he is entitled for practice and appear before CESTAT. In the above view, I humbly request you to clarify Whether a Member of CESTA after discharge from the services or he decides to demit his office for any reason whatsoever during his probation period, is entitled to appear, act or plead before the Appellate Tribunal (CESTAT). Before the representation dated 25-10-2012 (ibid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointment as Judicial (Member) issued to him vide memo dated 13-9-2012, corrected vide corrigendum dated 19-9-2012. He had not questioned any of the conditions mentioned in aforementioned OM and corrigendum and had initially only made a request for change of place of his posting and subsequently having given unconditional willingness to his appointment at Chennai, he sought clarification of Section 129(6) of Customs Act, 1962, i.e. whether the phrase on ceasing to hold office as Member would include only confirmed member or also the member discharged as probationer. In OM dated 13-9-2012 (offer of appointment), it is mentioned that on his appointment a Member shall be governed by Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment Conditions of Service) Rules, 1987 as amended from time to time. In said rules though it is provided that in a case of person appointed as Technical or Judicial Member from any post under the Union or State, unless such person is confirmed, the Central Government may at any time revert him to his parent post without assigning any reason, after giving him one month notice of such reversion and in case technical or judicial member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to limitations prescribed in law. 14. In R.K. Jain v. Union of India and Ors. [JT 1993 (3) SC = 1993 (65) E.L.T. 305 (S.C.)] while examining the question of appointment to the post of President of CEGAT, Hon ble Supreme Court in Para 69 emphasized on the need for appointment of true judge who is beyond purchase by threat or temptation, popularity or prospects and who can counter the counterfeit current even though it may be uneasy. Relevant excerpts of said judgment read as under :- 68 The Tribunals set up under Arts. 323A and 323B of the Constitution or under an Act of Legislature are creatures of the Statute and in no case claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , political and social philosophy of the Constitution to uphold which his oath enjoins him. In Krishnaswami s case, (1992 (4) SCC 605) in para 67 at p. 650, it was observed that to keep the stream of justice clean and pure the judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of rule of law and the working of the Constitution itself. 70. In Krishna Sahai v. State of U.P., (1990) 2 SCC 673 = (AIR 1990 SC 1131), this Court emphasised its need in constituting the U.P. Service Tribunal that, it would be appropriate for the State of Uttar Pradesh to change its meaning and a sufficient number of people qualified in law should be on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribunal . In Rajendra Singh Yadav v. State of U.P. - (1990) 2 SCC 763, it was further reiterated that the Services Tribunal mostly consist of Administrative Officers and the judicial element in the manning part of the Tribunal is very small. The disputes require judicial handling and the adjudication being essentially judicial in character it is necessary tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erience at the Bar and aptitudinal approach are fundamental for efficient judicial adjudication. Then only as a repository of the confidence, as its duty, the tribunal would properly and efficiently interpret the law and apply the law to the given set of facts. Absence thereof would be repugnant or derogatory to the Constitution. 72. The daily practice in the Courts not only gives training to Advocates to interpret the rules but also adopt the conventions of Courts. Inbuilt experience would play vital role in the administration of justice and strengthen and develop the qualities, intellectual and character, forbearance and of patience, temper and resilience which are very important in the practice of law. Practising Advocates from the Bar generally do endow with those qualities to discharge judicial functions. Specialised nature of work gives them added advantage and gives benefit to broaden the perspectives. Judges by David Pannick (1987 Edition), at page 50, stated that, we would not allow a man to perform a surgical operation without a thorough training and certification of fitness. Why not require as much of a trial judge who daily operates on the lives and fortunes of oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to have made the appointment of a sitting or retired High Court Judge as President unattractive and directory frustrating the legislative animation. A sitting Judge when is entitled to continue in his office up to 62 years would he be willing to opt to serve as President, if his superannuation as President is conterminous with 62 years. He would be attracted only if he is given extended three years more tenure after his superannuation. But Rule 10(3) says that the total period of the tenure of the President by a sitting or retired judge as a period of three years or till he attains the age of 62 years, whichever is earlier , i.e. conterminous with superannuation as a Judge of the High Court. The proviso is only discretionary at the whim of the executive depleting independence and as an exception to the rule. Thereby practically the spirit of the Act, the solemn assurance given by the Govt. to the Parliament kindling hope in the litigant public to have a sitting or a retired judge appointed as President has been frustrated deflecting the appointment of a judicially trained judge to exercise judicial review. We are constrained to observe that the rules, though statutory, wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the petitioner, a public spirited person. 76. But this conclusion does not give quietus to the journey s end. There are persistent allegations against mal-functioning of the CEGAT and against Harish Chander himself. Though we exercised self-restraint to assume the role of an Investigator to charter out the ills surfaced, suffice to say that the Union Govt. cannot turn a blind eye to the persistent public demands and we direct to swing into action, an indepth enquiry made expeditiously by an officer or team of officers to control the mal-functioning of the institution. It is expedient that the Govt. should immediately take action in the matter and have fresh look. It is also expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be the President. The rules need amendment immediately. A report on the actions taken in this behalf be submitted to this court. 77. Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial reviews. The Judicial review and remedy are fundamental rights of the citizens. The dispensation of justice by the tribunals is much to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as legal representative. Thus, a person offered appointment as Judicial (Member) may not be prohibited from returning to his position enjoyed by him before such appointment in the event of being not considered suitable to be confirmed as Member (Judicial). 15. In the counter reply filed on behalf of respondent, respondent have reiterated the stand taken by them in the impugned communications dated 12-9-2012 and 6-12-2012, which we have declined to countenance, for the reason mentioned hereinabove. They have vehemently relied upon the word ceasing to hold office , which we have interpreted as above. According to us, said phrase cannot be applied to probationer not found suitable to be confirmed and discharged from service. Though a reference has been made to CESTAT Member (Recruitment and Condition of Service) Rules, 1987, but in the said rule, we do not find any stipulation that if a probationer member of CESTAT is not found suitable to be confirmed and discharged, he cannot appear before it. In view of the aforementioned, the impugned letter dated 13-9-2012 and corrigendum dated 6-12-2012 cannot be countenanced or sustained and are quashed. OA stands allowed. Consequences w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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