Can Retired Officers be appointed as CESTAT Members?
ADVOCATE Gururaj from Bangalore raised this issue in our Message Board yesterday. The process of selection is so mazy that even a young officer may retire by the time he gets the appointment order. But that is another matter. Coming to the question at hand, the answer seems to be in the affirmative.
As per Rule 3(2) of the ‘Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987',
(2) A person shall not be qualified for appointment as a technical member unless he has been a member of the Indian Customs and Central Excise Service Group 'A' and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years .
So, it is enough if he has been an IRS officer and a Commissioner for three years; it is not required that he should be holding the post.
Even Section 129 (2A) of the Customs Act stipulates:
(2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Principal Commissioner or Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years.
In fact,the Ministry while calling for applications clarified this. The Ministry in the Vacancy Circular stated:
"As per the opinion given by the Ministry of Law and Justice (Department of Legal Affairs), all serving/ retired officers who otherwise fulfil the eligibility criteria for the post of Member (Technical) as stipulated under Rule 3(2) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and conditions of Service) Rules, 1987 are also eligible."
Interestingly there is a slight difference in the case of Settlement Commission where a Member has to be selected from serving Chief Commissioners/Pr.Chief Commissioners/Principal Commissioners.
Then what happens if a selected officer retires by the time he is selected? The Rule provides a solution for the wise babu. Rule 3 of the Customs and Central Excise Settlement Commission (Recruitment and Conditions of Service of Chairman and Members) Rules, 2015 stipulates, “ The officer should be in service on the date of occurrence of the vacancy .”
But strangely this does not apply to the Authority for Advance Rulings (AAR). As per Section 28F of the Customs Act, a Member should be an officer of the Indian Customs and Central Excise Service, who is qualified to be a Member of the Board.
So only working officers can be appointed to the AAR. Here there was a controversy recently. What is the meaning of who is qualified to be a Member of the Board ? In this case a Chief Commissioner was selected for the post of Member in AAR and a sitting Board Member was not selected. The Board Member approached the CAT that she should have been selected, as she was already a Member of the Board. The CAT was not impressed.