TMI Blog2021 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Members (Technical) as well as Members (Judicial) hold a civil post and accordingly the Central Civil Services Rules are applicable to them; (iv) the respondents were appointed in different years, from 1996 to 2016 and were having a pay scale of ₹ 2,05,600-2,24,400; (v) after promulgation of the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and other Conditions of Members) Rules, 2017, made in exercise of powers under Section 184 of the Finance Act, 2017, all the members of CESTAT appointed subsequent to the promulgation of 2017 Rules were being paid salary of ₹ 2,25,000/- (fixed), along with allowances as admissible to Central Government post carrying the same pay; (vi) the appointees, post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the provisions of section 184 shall not apply to the Chairperson, Vice- Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or, as the case may be, Member holding such office as such immediately before the appointed day. 184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Section 183 was protective in nature in the sense that Chairman, Vice-Chairman and Members who are already in office, shall not get affected on account of change of conditions which may be stipulated under the Rules referable to Section 184; (vi) the 2017 Rules were framed vide notification dated 1st June, 2017 and Rule 11 therein provided for the salary of ₹ 2,25,000/- (fixed) plus other allowances and benefits, and Members being appointed post promulgation of the said Rules, were drawing the said salary and allowances; (vii) payment of less salary to the Members who were appointed earlier, compared to those who were appointed later, could not be supported or sustained in law; (viii) the 2017 Rules did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force. ; and, (b) the proviso to Section 183 of the Finance Act, 2017. It is contended, that therefrom it follows that the pre 2017 appointees were/are to be continued to be governed by the 1987 Rules. It is further contended that no challenge whatsoever was made to the said statutory provisions and in the face of the said statutory provisions, the principle of equal pay for equal work could not have been applied. 6. Else, the counsel for the petitioner has informed that vide Rojer Mathew Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, 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. 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
