Honble A.K.Bhardwaj, Member (J): 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 13.09.2012, the President was pleased to offer applicant an appointment as Member (Judicial) in the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) on certain terms and conditions mentioned therein. Subsequently by Corrigendum issued vide No. F.No.A-12026/1/2011-Ad.IC (CESTAT) dated 19.09.2012 (Annexure A-2), para 5 of the OM was modified to the extent that instead of a term of 5 years from the date of entry upon the office, the offer was made for appointment until the age of superannuation, i.e. 62 years. With reference to OM dated 13.09.2012 and corrigendum dated 19.09.2012 received by him on 19.09.2012 and 25.09.2012 respectively, the applicant sent communication dated 27.09.2012 to Under Secretary, Govt. of India, Ministry of Finance, Department of Revenue, North Block, New Delhi accepting the appointment as Member (J) in CESTAT. However, in the said communication, he made a request for change of his posting from Chennai to Mumbai. In response, thereto, the respondent vide their letter No.A.12026/1/2011-Ad.IC (CESTAT) dated 8.10.2012 apprised the applicant that his request for posting at Mumbai or at any other place near Indore had not been accepted and requested him to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within a period of 10 working days from the date of receipt of said communication, failing which action for cancellation of offer of appointment could be initiated without further notice. Thus, the OA No.4283 and 4006/2012 applicant sent a letter dated 25.10.2012 to the Under Secretary, Government of India, Ministry of Finance (Department of Revenue), North Block, New Delhi giving his unconditional willingness to accept the offer of appointment as Member (Judicial) in Chennai and sought the clarification, 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. As a result, the respondent issued letter No. A.12026/1/2011-Ad.IC (CESTAT) dated 12.11.2012 informing the applicant that the word on ceasing to hold office, is applicable to all types of cessation-whether it is retirement or resignation or discharge during probation or by any other way. Questioning the decision so communicated and seeking issuance of direction to respondent to permit him to join as Member in CESTAT without being subjected to embargo of 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 NoA.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:- OA No.4283 and 4006/2012

(i) The Respondents 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 executive fiat.

(ii) The act of respondent in issuing letter dated 6.12.2012 cancelling the offer of appointment given to applicant smacks of utter disregard of this Tribunal. The said letter is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India.

(iii) It had never been the intention of legislation ( Section 129 (6) of Custom Act, 1962 of the Central Excise Act, 1944) to debar a person who is discharged from service as Member (CESTAT) during the period of probation from appearing before CESTAT.

(iv) When the person appointed as Technical or Judicial (Member) from other source such as services of Union or State Government, they are entitled to revert back to their parent post on giving one month notice. The Member of the Bar who joins the CESTAT as Judicial (Member) on probation should not be deprived of such privilege and they should also be entitled to resume their previous position with all privileges including that of appearing before CESTAT as Advocate.

(v) Even in the case of Honble Judges of High Court, Article 220 of the Constitution of India plays an embargo on their right to practice after ceasing to hold office as Judge from the same Honble High Court only when they are permanent Judges and not before their acquiring permanency by way of confirmation. OA No.4283 and 4006/2012

(vi) The applicant is specialist in the field of Customs, Excise and Service Tax and has been practicing as an Advocate in said field for over 15 years.

(vii) The Apex fact finding judiciary/judicial authority in a Central Excise and Service Tax matter being CESTAT, closure of his right from practicing before it even before achieving the status of confirmation as Member therein would be a travesty of justice and would also violate his right to freedom of occupation and profession conferred under Article 19 (1) (g) of the Constitution of India. Ms. Jyoti Singh, learned senior counsel for applicant reiterated the aforementioned grounds.

2. Respondent filed their reply in OA No.4006/2012 and preferred not to file reply in OA 4283/2012. Though on 08.1.2013, learned counsel appearing on behalf of respondent had sought extension of time for filing reply in said OA, but on 12.02.2013 when the matter came up for hearing, he adopted the reply filed in OA No. 4006/2012 as reply in OA No. 4283/2012 also. He read out the contents of said reply.

3. In view of the submission 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. OA No.4283 and 4006/2012

(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 No.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 and the duty of adjudicator is to act upon the true intention of the legislature -the mens or sentential legis. Words in any language are not scientific symbols having any precise or definite meaning, and language is but an imperfect medium to convey ones thought, much less of a large assembly consisting of persons of various shades of opinion. It is impossible even for the most imaginative legislature to forestall exhaustively situation and circumstances that may emerge after enacting a statute where its application may be called for. The problem of interpretation is a problem of meaning of words and their effectiveness as medium of expression to communicate a particular thought. A word is used to refer to some object or situation in the real world and this situation has been assigned a technical name referent. Words and phrases are symbols that stimulate mental references to referents. But words of any language are capable of referring to different referent in different context and times like in the present case the phrase hold office may be interpreted as being confirmed member or probationer as referent. In ordinary conversation or correspondence, it is generally open OA No.4283 and 4006/2012 for parties to obtain clarification if the referent is imperfectly communicated. The position is, however, different in the interpretation of statute. A statute as enacted cannot be explained by the individual opinion of the legislator, not even by a resolution of entire legislature. After the enacting process is over, the legislature becomes functus officio so far as that particular statute is concerned, so that it may not itself interpret it. The legislature can no doubt amend or repeal any previous statute or can declare its meaning but all this can be done only by a fresh statute after going through the normal process of law making. There are no doubt references that in good old days it was permissible for the judges to go to the legislature and enquire what they meant where the language of an Act was ambiguous or contradictory but happily enough the practice is dead and bygone and there is no hope of its revival (M/s Girdharilal and Sons v Balbir Nath Mathur (1986) 2 SCC 237 p.242). Apart from controversy as to the limits of the context outside the statute, there is a difficulty arising out of fringe meaning of words. There may be certain objects or situation which may 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 OA No.4283 and 4006/2012 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 statue does not fix an artificial content of scientific symbols, they have a penumbra, a dim fringe, a connotation, for they express an attitude or well, into which our duty is to penetrate and which one must enforce when we can ascertain it, regardless of imprecision in its expression. The application of a given legislation to new and unforeseen needs and situation broadly falling within the statutory provision is within the interpretative jurisdiction of the courts. This is not legislation in strict sense but application and is within the courts province.

4. In State of Bombay and Another Vs. Sardar Venkat Rao Krishna Rao Gujar (AIR 1966 SC 991), Honble Supreme Court while interpreting the word building viewed that the expression building does not mean everything that can by any means be described as built; it means building is a more narrow sense than structures, because there are other structure of a limited class which under the terms of sub-section may also be taken into consideration. In the said case, Honble Supreme interpreted the word building as an erection 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. Relevant excerpts of said judgment read as under:- "It is quite clear that the expression buildings does not mean everything that can by any means be described as built; it means buildings in a more narrow sense than structures, because there are other structures of a limited class which under the terms of the sub-section may also be taken into consideration.: Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word "buildings" is OA No.4283 and 4006/2012 something which has been built That meaning would be modified if the provisions of law justify giving some other meaning. Finally he relied upon the decision in Samuel Small v. Parkway Auto Supplies, 49 Am LR 1363. The observations relied on by him are as follows: "The word 'building' in its ordinary sense denotes 'a structure of edifice including a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed.' * * * * The word 'building' cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection 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 Vs. (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 precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation. OA No.4283 and 4006/2012

64. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud J. as he then was) put it in Kesavananda Bharati's case (AIR 1973 SC 1461) "while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in 'a single complex instrument in which one part may throw light on the others' so that the construction must hold a balance between all its parts".

6. In Collector of Central Excise, Bombay-1 and another Vs. M/s Parle Exports (P) Ltd. (AIR 1989 SC 644) , it 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 would not be in consonance with the spirit and the reason of law to give exemption for non-alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose. In our opinion, it cannot be contended that expensive items like Gold-Spot base. Limca-base or Thumps up-base were intended to be given exemption at the cost of public, exchequer. OA No.4283 and 4006/2012

7. In K.Ramanathan Vs. State of Tamil Nadu and Another (AIR 1985 SC 660) it could be viewed that the word regulation has no fixed connotation and its meaning differs according to the nature of the things to which it is applied. Para 24 of the said reads as under:- 24. We find no lawful justification for giving a restricted meaning to the word 'regulating' in Cl. (d) of sub-s. (2) of S. 3 of the Act as not to takes in 'prohibiting'. In State of Tamil Nadu v. M/s. Hind Stone (1981) 2 SCC 205: (AIR 1981se7l1), Chinnappa Reddy; J. referred with approval the observations of Mathew, J. in K. Krishnan v. State of Tamil Nadu (1975) 2 SCR 715 : (AIR 1975 SC 583) laying down that the word 'regulation' has no fixed connotation and that its meaning differs according to the nature of the thing to which it is applied. The learned Judge also observed: "In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales (1949) 2 All ER 755 - and we agree with what was stated therein - that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified." As has been noted hereinabove, in the present case, we are concerned with the interpretation of the term hold office used in Section 129 (6) of the Customs Act, 1962, i.e. whether a probationer can be said to be holder of office of Member CESTAT. To interpret the said phrase correctly, we need to understand the meaning of the term hold. 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 OA No.4283 and 4006/2012 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 ones possession >have or occupy ( a job or position)> have in store. I dont 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 degree of power or control. Thus, only a person who keeps possession/lien on a job or position can be said to be holder of that office. The term probation has been defined in detail in Purshotam Lal Dhingra Vs. UOI ( AIR 1958 SC 36). In the said case, the status of a probationer has also been commented upon and defined as that of appointment on trial. In the said case, the Honble Supreme Court ruled that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service OA No.4283 and 4006/2012 may be substantive or on probation or on an officiating basis. Paras 18 and 19 of the judgment read as under:- 18. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a "lien" on the post. This "lien" is defined in Fundamental Rules S. III, Ch. II R. 9(13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards, on the abolition of the post or on being found guilty, after a proper 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 termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquired any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a OA No.4283 and 4006/2012 temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, in efficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rule promulgated in 1949 to which reference will hereafter be made his service had ripened into what is called a quasi-permanent service.

19. The position may, therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under he 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 severals categories of Government servants.

8. The term lien, i.e. synonymous of right to keep possession has been defined and explained by Honble Supreme Court in Triveni Shankar Saxena Vs. State of UP and Ors (AIR 1992 SC 496). Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. In the said case, it is also viewed that a person can be said OA No.4283 and 4006/2012 to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. Relevant excerpts of said judgment read as under:- 17. There cannot be any controversy that unless the appellant shows to the satisfaction of the Court that he was having a lien on the post of Lekhpal, he cannot make a grievance of any violation having been perpetrated under the above said rules. The word "lien" is defined in Rule 9(13) of the above said rules as follows: "Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively."

18. We shall now examine what the word 'lien'means. The word'lien'originally means "binding" from the Latin ligamen. Its lexical meaning is "right to retain". The word "lien" is now variously described and used under different context such as 'contractual lien', equitable lien', 'specific lien', 'general lien', 'partners lien', etc. etc. In Halsbury's Laws of England, Fourth Edition, Volume 28 at page 221, para 502 it is stated: "In its primary or legal sense "lien" means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims are satisfied."

19. In Stroud's Judicial Dictionary, 5thEdition, Volume 3 at page 1465 the following passage is found: "Lien. (1) A lien - (without effecting a transference of the property in a thing) - is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, "lien" is defined as including "the right of retention" (Sale of Goods Act 1893 (c.71), S. 62), or it shall mean and include right of retention" (Factors (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." OA No.4283 and 4006/2012

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 Paresh Chandra v. Controller of Stores, AIR 1971 SC 359 while interpreting clause 14 of Rule 2003 of the Railway Fundamental Rules which defines lien has observed (at p. 360 of AIR): "Rule 2003 of the Railway Fundamental Rules defines in Cls. 3 and 14 the terms'cadre, 4pd 'lien'. 'Lien', as defined in Cl. 14 means the title of a railway employee to hold substantively a permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect tram August 15, 1947 (when all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent."

25. A learned single Judge of the Allahabad High Court in M. P. Tewari v. Union of India, 1974 All LJ 427 following the dictum laid down in the above Paresh Chandra's case in distinguishing the decision of this Court in P. L. Dhingra v. Union of India, AIR 1958 SC 36 has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement. Also in Ali M.K. & Ors. Vs. State of Kerala and Ors (AIR 2003 SC 4006) it is held that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. Para 25 of the judgment reads as under:- A faint attempt was made to submit that the non-official respondents had lost their lien as they were appointed to posts of substantive nature. Reference was made to Rule 28 to submit that on completion of probation and in case of promotion, it is to be presumed that there was substantive appointment. The Full Bench has recorded a factual finding the non-official respondents have not been confirmed in the posts in the Co-operative Department. It has been specifically recorded that no material was placed to show OA No.4283 and 4006/2012 that any order has been passed by the Co-operative Department confirming the concerned employees in their posts, with reference to Rule 24 it was noted that mere completion of probation does not result in automatic confirmation. It is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made appointment on that post and not earlier.  In view of aforementioned, a probationer who is under trial cannot 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 Honble Supreme Court in Rajesh Kumar Srivastava Vs. 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 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. At that stage and during the period of probation the action and activities of the appellant 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. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not OA No.4283 and 4006/2012 satisfactory and therefore he was not suitable for the job. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.

9. In Khazia Mohammed Muzammil v. The State of Karnataka and Anr. (JT 2010(17) SC 149), Honble Supreme Court viewed that the question of confirmation of probationer is dependant upon his fitness for such confirmation. The question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the appointing authority and he is found to have passed the prescribed departmental examination then the appointing authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer who he is required to pass in accordance with the rules governing the question of confirmation subject to a finding that the probationer is in fact fit 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 OA No.4283 and 4006/2012 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 years' probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed subject to his fitness for confirmation and to his having passed the departmental examination, as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that the question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the appointing authority and he is found to have passed the prescribed departmental examination then the appointing authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of Rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh."

10. In High Court of Madhya Pradesh through Registrar and Ors. Vs. Satya Narain Jhavar ( JT 2001 (6) SC 368), it is again held that the confirmation is a positive act on the part of the employer which he is required to pass in accordance with the rules governing the question of confirmation subject to a finding that the probationer is fit for confirmation. Paras 38 and 39 of the judgment read as under:- 38. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation 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). OA No.4283 and 4006/2012

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 would acquire a deemed confirmation on the expiry of the maximum period of probation provided in sub-rule (1). Sub-rule (3) of Rule 24, therefore, is another inbuilt provision in the Rules which can be held to be a special provision to negative the inference of deemed confirmation on the expiry of the maximum period of probation indicated in sub-rule(1), as has been observed by this Court in the case of Dayaram Dayal (supra) also and which is in conformity with the decisions of this Court in the case of Shamsher Singh (supra), Sukhbans Singh (supra), G.S. Ramaswamy (supra) and AkbarAli Khan (supra). Rule 24 on a plain grammatical meaning being given to the words used therein does not provide for a deemed confirmation on expiry of the maximum period of probation, and on the other hand it contemplates a positive order of confirmation to be passed by the Appropriate Authority, if the Authority concerned is satisfied about the fitness of the probationer for confirmation, and if the probationer has passed the departmental examination, as prescribed. Mere continuance of the probationer after considering his case of confirmation during the period of probation and finding him unsuitable for confirmation by the decision of the Full Court, by no stretch of imagination can be construed to be a confirmation by implication, as was held by this Court in the case of Dharam Singh (supra) and that can never be the intention of the Rule Making Authority. If the Full Court would not have considered the suitability of the probationer for confirmation while the probation period was continuing, the matter might have stood on a different footing.

11. In Mohd Salman Vs Committee of Management and Others) (2011) 12 SCC 308), it is reiterated that the completion of probation period does not necessarily mean that the person concerned is entitled to confirmation. Para 18 of the judgment reads as under:- 18. In our considered opinion, the ratio of the aforesaid decision is also clearly applicable to the facts of the present case. In the present case, in the appointment letter issued to the appellant, it was specifically mentioned that his service would be regularised only when his performance during the probation period is found to be good/satisfactory. In view of the aforesaid stipulation, so long OA No.4283 and 4006/2012 an order is not passed holding that the service of the appellant is good and satisfactory, 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)120ITD 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 of office and perception of bias. In the said case, it is the stand of UOI that on their retirement the members of the Tribunal should refrain from appearing before it on their own. Sub-Section 6 of Section 129 of Customs Act, 1962 was introduced by Section 110 of Finance Act, 2007 w.e.f. 11.05.2007. Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 were amended by Notification GSR 389 (E) dated 3-6-2009 in as much as Rule 13E was inserted therein. In terms of the said Rule, the President, Senior Vice President, Vice-President and Members of Tribunal were debarred from practicing before it after the retirement from service. For easy reference, said rule is extracted hereinbelow:- OA No.4283 and 4006/2012 13E. The President, the Senior Vice-President, the Vice-President and the Member of the Tribunal shall not practice before the Tribunal after retirement from the service of the Tribunal. After detailed deliberation, the special Bench of ITAT viewed that only such Member of the Tribunal who joined after 3.06.2009, i.e. in terms of the amended rules could be debarred from appearing ITAT and not the others. Thus, in terms of the aforementioned rules applicable to Members of ITAT, they are debarred from appearing before ITAT only after retirement from service of the Tribunal. Such conditions are not made applicable to a member discharged from service during the period of probation. Thus, from the stand taken by UOI before ITAT in Concept Creations VPO Vs. Addl.CIT, Range, Panipat and the provisions of Rule 13 (E) of Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, it can be deduced that the object of legislature was only to debar the Member of the Tribunal from practicing before the same Tribunal only after retirement, in the interest of dignity of office and to avoid possibility of biasness in disposal of cases represented by them by their ex colleagues. For easy reference, relevant excerpts of said order read as under:- 40. On behalf of the Ministry it was pleaded that in the light of the decision of Delhi High Court in the case of P.C. Jain ( supra), which interpreted the identical provision of Section 129 (6) of Customs Act, 1962, there is a possibility to debar the appearance of such Members also. In view of dignity of office and perception of bias, such Members on their own should refrain from appearing 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 Articl 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 OA No.4283 and 4006/2012 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 th reason that in the case of P.C. Jain, where identical provisions were subject matter of consideration by the High Court, they may also be hit by Rule 13E, but on the said question of their right to practice a magnanimous view may be taken. This was stated in para 11 of the affidavit, as referred to by some of the interveners. Accordingly, Rule 13E may not disqualify such persons from practicing Under Section 288 of the I.T. Act. The intention of Rule 13E, according to him, was to avoid any kind of perception of a litigant that the decision in any controversy could be influenced by appearing of a retired Member of the Tribunal. He relied upon the affidavit on merit and pleaded that the ratio of decision in the case of P.C. Jain (supra) may still be made applicable to all the cases including the cases of resigned Members. It may not be against the dignity of office of Members of CESTAT if a person who is not found suitable to be confirmed in said office is allowed to practice before it. Similarly albeit a member who retired from service on attaining the age of superannuation can be said to have got opportunity to interact and develop proximity with President, Senior Vice-President, Vice President and other Members of the Tribunal as well as its staff, but it may not be so said in respect of a person who is discharged from service on account of non completing the initial period of probation successfully. During the initial period of probation a member may not get an opportunity to develop his proximity with many others in the Tribunal, thus after his discharge there is least possibility of extension of any benefit to him on account of being a probationer member of Tribunal for some time. Besides an Advocate who resumes his practice after being discharged from service on account of being found unsuitable for confirmation in the office of Member CESTAT may otherwise also be not looked at by the Member before whom he appears after discharge in a manner different from other lawyers . OA No.4283 and 4006/2012

12. In view of aforementioned, particularly in view of the rule 13 (E) of Income Tax Appellate Tribunal (Recruitment and Conditions of Service) Rules 1963, the intention of Section 129 (6) of Customs Act is only to debar the confirmed members of the Tribunal (CESTAT) for practicing before it on their ceasing to hold the office. While addressing the vital issue (ibid) and appreciating the intent of legislature, it 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 Vs. President of India and Ors (2012 Law suit (Bom) 710). In the said case, Honble High Court viewed as under:- 15. This, however, cannot provide justification for the Court, while interpreting the provisions of Article 220, to re write 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 vs. 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 considered for appointment as a Chairman of a State Commission, having regard to Article 217 of the Constitution, which mean those Judges who have retired from service without any blemish whatsoever and not that merely a person who has been a Judge would be eligible for appointment. Significantly, in two observations in paragraphs 41 and 45 of the judgment, the Supreme Court noticed the distinction between an additional Judge and a permanent Judge of the High Court. In paragraph 41, the Supreme Court observed as follows: 41. An Additional Judge holding a tenure post stricto sensu does not retire. It is one thing to say that having regard to he constitutional embargo he would not hold office after he attains the age of 62 years but it is another thing to say that for all other purpose, he can be equated with a sitting Judge. Similarly, in paragraph 45, the Supreme Court noted that an Additional Judge, despite being a former Judge, is entitled to practice in the same High Court which other Judges are not permitted to do. OA No.4283 and 4006/2012

16. Though Permanent Judges and Additional Judges of the High Court perform the same duties and functions, there is yet a cardinal distinction in the Constitution in the tenure of an Additional Judge as distinct from that of a Permanent Judge. A Judge of the High Court is a Permanent Judge on the basis of a guarantee of tenure which extends until the Judge attains the age of superannuation of sixty two. The tenure of an Additional Judge is for a period of two years. In imposing a prohibition on the right to practice and while curtailing the freedom under Article 19(1) (g), the Constitution draws a careful balance of the need to preserve the independence of the judiciary on the one hand and the right of a person who has held office of Judge of the High Court to practice upon demitting office, on the other. A Permanent Judge of the High Court cannot practice before the Court in which he held office as a Permanent Judge. A person who held office as an Additional Judge of the High Court is not subject to the constitutional prohibition of practice before the same High Court upon demitting Office. That is a matter of a constitutional choice. There may be and there indeed is a cause of concern when a member of the Bar who has been appointed as a Judge of the High Court resigns and reverts to the Bar. But in so far as judicial review is concerned, 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. Training as Judge and the conventions of the Bench are important elements in the process of dispensing justice that is objective. Upon reverting to the Bar, such a person has the same position as that of any other member of the Bar.

18. There is absolutely no merit in the contention that the expression Permanent Judge in Article 220 of the Constitution must be held to include an Additional Judge in view of Section 17 of the General Clauses Act, 1897. What sub section (1) of Section 17 provides is that in any Central Act or Regulation, it shall be sufficient for the purpose of indicating the application of a law to every person executing the functions of an office, to mention the official title of the officer at present executing the functions. This by no stretch of logic can be pressed in aid to even suggest that he expression Permanent Judge for the purpose of Article 220 will include an Additional Judge. OA No.4283 and 4006/2012

19. Having carefully considered therefore, the grievance of the Petitioner, we do not find any reason to exercise our extra ordinary writ jurisdiction under Article 226 of the Constitution. The Petition shall stand dismissed. There shall be no order as to costs. In view of aforementioned, it is held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and the provision of Section 129 (6) of Customs Act, 1962 would be applicable only to such Members who cease to hold office only after their confirmation. The phrase on ceasing to hold office as Member used in Section 129 (6) (ibid) would not include discharge of probation and only a Member who is confirmed to hold office in such capacity can be said to have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, there is no question of his ceasing to hold the same.

13. The sole ground mentioned in the letter No.A.12026/1/2011-Ad.IC (CESTAT) dated 6.12.2012 for withdrawal and cancellation of the offer of appointment to the post of Member (J) in CESTAT issued to applicant vide departments OM of even number dated 13.09.2012 and subsequent Corrigendum dated 19.09.2012 is that despite sufficient time, his conditional willingness to accept the said offer had not been received in the Department. It is seen that having received OM dated 13.09.2012 and Corrigendum dated 19.09.2012 (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 OA No.4283 and 4006/2012 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) of Customs Act, 1962 which is reproduced below: (6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal. In the above provision, it is not explicit that the restriction for appearing is applicable to those members also who cease to hold office during the probation period. However it is pertinent to mention here that in Rule 9 of Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Condition of Service) Rules, 1987 certain provisions has been given in case if a person who is appointed as technical or judicial member from any post under the Union or State during the period of his probation he shall be reverted back to his original post. Rule 9 reads as under:- Rule 9.Reversion or termination of the service of members. (i) In case of a person appointed as a technical or a judicial member from any post under the Union or a State, unless such a person is confirmed, the Central Government may at any time revert him to his parent post without assigning any reason, after giving him one months notice of such reversion and in case a technical or a judicial member wishes to revert to his parent post, he shall be required to give one months notice to the Central Government: Provided that in case such technical or judicial member has already superannuated according to the relevant rules of his parent post, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one months notice of such termination and in case such technical or judicial member wishes to resign, he shall be required to give one months notice to the Central Government. (2) In case of a person appointed as a judicial member directly from the Bar, unless he is confirmed, the appointment may be terminated by the Central Government at any time without OA No.4283 and 4006/2012 assigning any reason after giving him one months notice of such termination and in case such judicial member wishes to resign, he shall be required to give one months notice to the Central Government. A harmonious reading of the said rule leads to unescapable conclusion that sub rule 2 which refers to judicial member directly appointed from the bar is also entitled to same treatment as is extended to employees of the Union or State. In this circumstances 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 bonafide 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), the applicant had also made representation dated 27.09.2012 to the Under Secretary communicating his acceptance to the offer of appointment as Member (J) in CESTAT given to him. However, in the said representation also he had made a request for his posting to a place near to Indore instead of Chennai. For easy reference, relevant excerpts of said representation are also extracted hereinbelow: First of all, I am very grateful to the Selection Committee, especially to the Honble President, who has considered me for such a prestigious and responsible position, of Member (Judicial) in CESTAT. I am glad to accept this offer of appointment. However I humbly request you for kind consideration on my following submissions- In the said Appointment Offer my first posting has been given at CESTAT, Chennai Bench. In this connection I would like to make a humble submission that my posting in Chennai, will disrupt my family to a great extent. I along with my wife and three children are permanently settled in Indore having my own house. My three OA No.4283 and 4006/2012 children are 13 years, 11 years and 9 years of age are studying since beginning in the school at Indore. They are acclimatized with the prevailing condition and environment of Indore. My wife being an advocate is also practicing and running her own office at Indore. Therefore, it will not be possible for me to shift my family from Indore to any other place. Due to these reasons I am required to visit Indore very frequently to take care of my family. In these circumstances, if, I am posted in Chennai, it will not be possible to visit Indore in quick intervals, mainly because there is no direct regular train for Chennai-Indore-Chennai, and the traveling time is more than thirty hours. In view of above difficulties, I humbly request that my posting may kindly be made in any nearly place from Indore, preferably in Mumbai, so that, I would be able to pay visit to Indore, frequently by making overnight train/bus journeys on Holidays. It may also kindly be noted that during my past practice I do not have more than 2 to 3 cases pending in CESTAT Mumbai, which were filed through me. In view of the above, I humbly request to kindly consider my posting in CESTAT Mumbai or in nearby place instead of CESTAT, Chennai. From the aforementioned representation, it is clear that applicant had given his willingness to accept the offer of appointment as Judicial (Member) issued to him vide memo dated 13.09.2012, corrected vide corrigendum dated 19.09.2012. 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 13.09.2012 (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 OA No.4283 and 4006/2012 appointed as Technical or Judicial Member from any post under the Union or State, unless such person is confirmed, the Central Government may 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 wishes to revert to his parent post, he shall be required to give one month notice to the Central Government and it is also provided that in case of a person appointed as judicial member directly from the Bar, unless he is confirmed, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month notice of such termination and in case such judicial member wishes to resign, he shall be required to give one month notice to the Central Government, it is not stipulated that on being discharged during probation, member would be debarred from appearing before the Tribunal. Thus on the face of communications dated 27.09.2012 and 25.10.2012 sent by applicant to respondent through Under Secretary to Government of India giving his unconditional willingness to accept the offer of appointment as Member (Judicial) Chennai and expressing his pleasure in accepting the offer given to him, we do not find the reason given by respondent in communication dated 6.12.2012 as incorrigible and acceptable. Merely because the applicant sought certain clarification from the respondent regarding applicability of Section 129 (6) of Customs Act, 1962 to those discharged from service during probation, it cannot be said that he declined to accept the condition of his appointment. In view of unconditional willingness to accept the offer of appointment as Member (J) in Chennai given by applicant vide communication dated 25.10.2012, the request made by him for his place of posting near to Indore cannot be construed as non-acceptance of condition of OA No.4283 and 4006/2012 appointment by him. Besides, once questioning the clarification dated 12.11.2012 applicant had approached this Tribunal by way of OA No.4006/2012, respondent ought not to have tried to overreach the judicial proceedings by issuing the impugned letter dated 6.12.2012 recalling the offer of appointment. The provision of Section 129 (6) of Customs Act, 1962 is not one of the conditions of service for appointment of Member of CESTAT but only defines that on ceasing to hold office, the President/Vice President/Member of said Tribunal would be disabled from appearing before the Tribunal (CESTAT). The legislation once enacted cannot be interpreted even by legislature except by due process of law far less the executive is competent to do so. It is only for Court to interpret the statute subject to limitations prescribed in law.

14. In R.K.Jain Vs. Union of India and Ors ( JT 1993 (3) SC 297), while examining the question of appointment to the post of President of CEGAT, Honble 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 adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion OA No.4283 and 4006/2012 different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision.

69. In Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 at 442 : (AIR 1977 SC 2328 at p. 2338), this Court at p. 463 (of SCR) : (at p. 2355. of AIR) laid emphasis that, "independence of the judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great judges in the past. In England too, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise". At page 471 it was further held that if the beacon of the judiciary is to remain bright, Court must be above reproach, free from coercion and from political influence. At page 491 (of SCR) : (at p. 2376 of AIR), it was held that the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as not militate seriously against the free flow of public justice. Such a balance blend is the happy solution of a delicate, complex, subtle, yet challenging issue which bears on human rights and human justice. The nature of the judicial process is such that under coercive winds the flame of justice flickers, faints and fades. The true judge is one who should be beyond purchase by threat or temptation, popularity or prospects. To float with the tide is easy, to counter the counterfeit current is uneasy and yet the Judge must be ready for it. By ordinary obligation for written reasoning, by the moral fibre of his peers and elevating tradition of his profession, the judge develops a stream of tendency to function 'without fear or favour, affection or ill-will', taking care, of course, to outgrow his prejudices and weaknesses, to read the eternal verities and enduring values and to project and promote the economic, political and social philosophy of the Constitution to uphold which his oath enjoins him. In Krishna swami'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 that adequate number of judges of the appropriate level should man the Services OA No.4283 and 4006/2012 Tribunals. This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunal and the institution as well would command the requisite confidence of the disputants. In Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : (1992 AIR SCW 1093), this Court emphasised that, "Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. The objectives enshrined in the Constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility."

71. In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should he the Courts. Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. It cannot be dispensed with by creating tribunal under Arts. 323A and 323B of the Constitution. Any institutional mechanism or authority in negation of judicial review is destructive of basic structure. So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High Court, it is consistent with constitutional scheme. The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. The alternative arrangement must, therefore, be effective and efficient. For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Govt. To maintain independence and imperativity it is necessary that the personnel should have at least modicum of legal training, learning and experience. Selection of competent and proper people instil people's faith and trust in the office and help to build up reputation and acceptability. Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured. Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustice. Therefore, functional fitness, experience 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. OA No.4283 and 4006/2012 Why not require as much of a trial judge who daily operates on the lives and fortunes of others". This could be secured with the initial training given at the Bar and later experience in judicial adjudication. No one should expect expertise in such a vast range of subjects, but familiarity with the basic terminology and concept coupled with knowledge of trends is essential. A premature approach would hinder the effective performance of judicial functions. Law is a serious matter to be left exclusively to the judges, because judges necessarily have an important role to play in making and applying the law. There is every reason for ensuring that their selection, training and working practice facilitate to render their ability to decide the cases wisely on behalf of the community. If judges act in injudicious manner, it would often lead to miscarriage of justice and a brooding sense of injustice rankles in an aggrieved person.

73. The Cegat is a creature of the statute, yet intended to have all the flavour of judicial dispensation by independent members and President. Sri Justice Y. V. Chandrachud, Chief Justice of India, in his letter dated October 5, 1982 stated that "Govt. had created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court. Added to that is the fact that selection of the members of the Tribunal is made by a Committee headed by a Judge of the Supreme Court.......I am sure that the Tribunal will acquire higher reputation in the matter of its decision and that the litigants would look upon it as an independent forum to which they can turn in trust and confidence". This Court to alongate the above objective directed the Govt' to show whether the convention is being followed in appointment of the President of CEGAT and further directed to consider appointment of a Sr. Judge or a retired Chief Justice of the High Court as its President. Admittedly Chief Justice of India was not consulted before appointing Sri Harish Chander as President. Several affidavits filed on behalf of the Govt. do not also. bear out whether the directions issued by this Court even brought to the notice of the Hon'ble Prime Minister before finalising the appointment of Sri Harish Chander. The solemn assurance given to the Parliament that the Tribunal bears judicious blend by appointment of a High Court Judge as President was given a go-by. While making statutory rules the executive 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 OA No.4283 and 4006/2012 constrained to observe that the rules, though statutory, were so made as to defeat the object of the Act. The question then is : can and if yes, whether this Court would interfere with the appointment made of Harish Chander as President following the existing rules.

74. Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to protect the citizen from the abuse of the power etc. by an appropriate Govt. or department etc. In our considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice of the selection, but be left to the executive to select the personnel as per law or procedure in this behalf. In Srikumar Prasad's case (AIR 1992 SC 1213), K. N. Srivastava, M. J. S., Legal Rememberance, Secretary to Law and Justice, Govt. of Mizoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art. 217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. Therefore, this court declared that he was not qualified to be appointed as a Judge of the High Court and quashed his appointment accordingly. The facts therein are clearly glaring and so the ratio is distinguishable.

75. Sri Harish Chander, admittedly was the Sr. Vice President at the relevant time. The contention of Sri Thakur of the need to evaluate the comparative merits of Mr. Harish Chander and Mr. Kalyansundaram a senior most Member for appointment as President would not be gone into in a public interest litigation. Only in a proceeding initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo-warranto. In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest 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 took. It is also expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be OA No.4283 and 4006/2012 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 be desired. We are not doubting the ability of the members or Vice-Chairmen (non-Judges) who may be experts in their regular service. But judicial adjudication is a special process and would efficiently be administered by advocate Judges. The remedy of appeal by special leave under Art. 136 to this Court also proved to be costly and prohibitive and far-flung distance too is working as constant constraint to litigant public who could ill afford to reach this court. An appeal to a Bench of two Judges of the respective High Courts over the orders of the tribunals within its territorial jurisdiction on. questions of law would assuage a growing feeling of injustice of those who can ill afford to approach the Supreme Court. Equally the need for recruitment of members of the Bar to man the Tribunals as well as the working system by the tribunals need fresh look and regular monitoring is necessary. Except body like the Law Commission of India would make an indepth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income-tax Appellate Tribunal and to make appropriate urgent recommendations to the Govt. of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious, inexpensive and satisfactory.. So when the applicant had shown confidence to seek clarification regarding applicability of Section 129 (6) of Customs Act, 1962 to those discharged in probation, it could not have been held against him. Nonetheless it has been held hereinabove, the phrase on ceasing to hold the office.member shall include only those members who acquired right to hold office after their confirmation and not a member who is discharged during probation. Besides, it is also noticed that in terms of Rule 3 (2) of Customs Excise and Service Tax Appellate Tribunal Members (Recruitment and Condition of Service) Rules, 1987, a Commissioner of Custom who has held such office at least for three years is qualified for appointment as Member (Tech). On not found fit for OA No.4283 and 4006/2012 being confirmed on said post, he is liable to be reverted back to his original post, i.e. Commissioner (Custom). It is quite possible that on reversion, such Commissioner may represent Revenue before CESTAT 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 12.09.2012 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 13.09.2012 and corrigendum dated 6.12.2012 cannot be countenanced or sustained and are quashed. OA stands allowed. Consequences would follow. ( A.K.Bhardwaj) ( Manjulika Gautam ) Member (J) Member (A)