Amit Kashyap Vs Principal Secretary (Himachal Pradesh High Court)

FULL TEXT OF THE JUDGMENT/ORDER OF HIMACHAL PRADESH HIGH COURT

The instant petition has been filed for grant of the following substantive reliefs:-

“(a) Quash Notification No. EXN-F(10)-42/2017-Vol.-II dated 19.10.2024 (Annexure P-8) issued by respondent No. 1 as being premature and ultra vires of the CGST Act, 2017 since Group ‘A’ officers are available in the State of Himachal Pradesh.

(b) Quash Corrigendum No. EXN-F(10) 14/2024 dated 21.11.2024 (Annexure P-11 colly) as ultra vires of the CGST Act, 2017.

(c) Quash Revised Vacancy Circular No. EXN-F(10) 14/2024, dated 13.11.2024 (but actually published on 21.11.2024 after accounting for the Corrigendum dated 21.11.2024) (Annexure P-11 colly) ultra vires of the CGST Act, 2017.

(d) Direct the respondents No. 1 and 2 to issue a fresh vacancy circular providing that criteria as mentioned in Section 110(d) of the CGST Act will prevail and only officers having twenty-five years of experience in Group A will be eligible to be considered for the post of Technical Member (State).”

2. The petitioner is a retired IAS Officer and possesses the requisite qualification of 25 years of service in Group ‘A’ or equivalent as mentioned under Section 110(1)(d) of the GST Act, 2017 (for short the ‘Act’). Further the petitioner has held the rank of Additional Commissioner, Excise and Taxation for more than three years and has been involved in the administration of taxation/revenue/finance related laws, which further makes him eligible for the post of Technical Member.

3. According to the petitioner, once Group ‘A’ Officers were available in the State, Notification dated 19.10.2024, whereby the officer of the Commercial Tax Department of the Himachal Pradesh i.e. Sales Tax and Excise Department, who has completed at least 25 years of service in the State of Himachal Pradesh as Gazetted Officer, having held to be eligible for appointment as Technical Member (State) in the State Bench is premature and ultra vires to the CGST Act, 2017 and likewise the Corrigendum/Addendum dated 21.11.2024, whereby it has been provided that an officer of the Commercial Tax Department of the Himachal Pradesh i.e. State Tax and Excise Department, who has completed 25 years of service in Himachal Pradesh Government as Gazetted Officer to be eligible for appointment as Technical Member of the State.

4. Respondents No. 1 and 2 (i.e. Principal Secretary and Commissioner, Sales Tax and Excise, respectively), have filed their joint reply wherein certain preliminary objections have been raised regarding the maintainability of the petition on the ground that the GST Council has given its approval qua the relaxation in eligibility criteria of Technical Members (State) GSTAT. It is averred that the present petition is just an abuse of the process of law and is liable to be dismissed, the petitioner has not approached the Court with clean hands as he has concealed the material facts and even the locus standi of the petitioner has been assailed on the ground that he is a Member of All India Service and that no officer of the State/Department of Sales Tax and Excises is eligible in Group ‘A’.

5. However, the main thrust of the respondents is that since there was no person in the State service, who had completed 25 years of service in Group ‘A’ or equivalent, therefore, the State Government has proposed that the condition of completion of 25 years of service in Group ‘A’ or equivalent may be replaced with completion of 25 years of service in Class-I Gazetted position and accordingly, the case was sent to the GST Council.

6. As regards respondents No. 3 and 4, (i.e. the Additional Secretary, GST Council and Joint Secretary, Department of Revenue), have jointly filed their short reply, wherein it has been averred that it was pursuant to the recommendations made by the State Government to relax the eligibility conditions for appointment for the post of Technical Member (State) in the Shimla Bench of the GSTAT, vide letter dated 11.03.2024 that the relaxation was granted by the GST Council leading to the issuance of subsequent notification dated 19.10.2024 and 21.11.2024, respectively as assailed in this petition.

7. In order to decide this petition, we would firstly refer to Section 110(d) of the GST Act, which reads as under:-

“(d) a Technical Member (State), unless he is or has been an officer of the State Government or an officer of the All India Service, not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank, not lower than that of the First Appellate Authority, as may be notified by the concerned State Government, on the recommendations of the Council and has completed twenty-five years of service in Group A, or equivalent, with at least three years of experience in the administration of an existing law or the goods and services tax or in the field of finance and taxation in the State Government:

Provided that the State Government may, on the recommendations of the Council, by notification, relax the requirement of completion of twenty-five years of service in Group A, or equivalent, in respect of officers of such State where no person has completed twenty-five years of service in Group A, or equivalent, but has completed twenty five years of service in the Government, subject to such conditions, and till such period, as may be specified in the notification.

[Provided that a person who has not completed the age of fifty years shall not be eligible for appointment as the President or Member.]”

8. It would be noticed that proviso to Section 110(d) clearly provides that the State Government, may on the recommendation of the Council by notification, relax the requirement of completion of 25 years of service in Group ‘A’ or equivalent, in respect of officer of such State where no person has completed 25 years of service in Group ‘A’ or equivalent but has completed 25 years of service in the Government, subject to such condition at a such period, as may be specified in the notification.

9. A combine reading of sub-section (d) of Section 110 and the proviso appended thereto clearly draws out a distinction between “Officers of the State Government” and “Officers of the All-India Service”. The proviso clearly provides that such relaxation of the requirement of completion of 25 years of service in Group ‘A’ or equivalent is only available in respect of the officers of such State, who have not completed 25 years of service in Group ‘A’ or equivalent but have completed 25 years of service in the Government. This proviso is not at all applicable to the “officers of the All-India Service”.

10. Now adverting to the grounds of the petitioner stating that the impugned notification, corrigendum and circular enabling relaxation under the proviso of Section 110(d) is ultra vires, we simply find no force in such contention, as the contention of the petitioner is based on complete misreading of Section 110(d), when he strongly urges that the recruitment rules could have only been relaxed when officers possessing 25 years of service in Group ‘A’ or equivalent was not available and since the petitioner was available such relaxation could not have been conferred.

11. As already observed above, this proviso regarding relaxation is only available to the officers of the State Government falling in Group ‘A’ and not to the officers of All-India Service. Therefore, it is irrelevant and rather inconsequential that since the officer is available from All-India Service, the relaxation cannot be made qua the category of the officers belonging to the State.

12. This assumes importance because similar and rather identical relaxations have been given to the officers of the State Governments in 10 other States.

13. The other contention of the petitioner that the relaxation granted dilutes the criteria of selection is also not tenable as the petitioner himself has placed on record the extract of the 49^thGST Council meeting, wherein the issue of Technical Members was considered and only thereafter a conscious decision was taken. The relevant portion whereof is extracted below:-

“Technical Members

7.1 The GoM considered the qualification of Technical Members (State) in great detail. The GoM took note that the minimum qualification that Hon’ble Supreme Court has laid down in R. Gandhi case is that of Additional Secretary/ Secretary in Central Government. It acknowledged that the requirement of experience of 25 years in Group ‘A’ posts in Central Government for Technical Member (Centre) would be in line with that judgment but officers of the same rank in State Government would not be available. The GoM concluded that keeping the spirit of the judgments of Apex Court on this matter, it would be advisable to mirror the same requirement for State officers as well, i.e. experience of 25 years in Group ‘A’ posts in State Government Officers of the level of Additional Commissioner and above in the State are highly skilled and knowledgeable. They have spent considerable time in tax administration and have extensive experience and are fit for appointment in Tribunals.

7.2 However, the GoM also took note of the fact that in many States, the recruitment is not at Group’A’ level and even the senior most officer in the State hierarchy would not have spent 25 years in Group ‘A’. The GoM concluded that, in such cases, the States should have flexibility to reduce this requirement of 25 years in Group ‘A’ on the recommendations of the Council. This would enable every State to offer their most experienced and competent officers for appointment as Technical Member (State). However, GoM concluded that while the experience in Group ‘A’ post could be reduced depending on the situation in a State, the officers should have total 25 years of Government service.

7.3 The GoM also noted that some flexibility may be required in fixing the rank as some States do not have the rank of Additional Commissioner altogether or may not have officers in the rank of Additional Commissioner due to various reasons. However, Finance Minister, Andhra Pradesh highlighted that there should be some limit below which the rank should not be allowed to be reduced . In this regard, GoM felt that the rank should be such that the officers are, at least one level senior to the First Appellate level as they would be hearing appeals against their orders.

7.4 The GoM is of the opinion that every State would ensure that the best and most experienced officers of their State are made available for appointment to the Tribunal and every State would ensure that the qualification is not diluted beyond what is required to meet this objective.. Since, these actions will be taken after seeking necessary recommendation of the Council based on proposal of the State concerned, it would ensure that undue dilution of qualification does not happen.”

14. Adverting to the contention of the petitioner that the notification altering eligibility criteria is without proper reasoning and adherence to statutory provisions and appears to be designed to favour a specific group. This contention too is not tenable because identical relaxation, as observed above, has already been granted to the officers of the State Governments in ten other States.

15. It needs to be observed here that it is only by virtue of amendment in the CGST that officers of All-India Service have been made eligible subject to certain qualifications for being considered for the post of Member Technical. As per the earlier provisions, they were not even eligible as would be evident from the un-amended sub-section 1(d) of Section 110, which reads as under:-

“110(1)(d) a Technical Member (State) unless he is or has been an officer of the State Government not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank as may be notified by the concerned State Government on the recommendations of the Council with at least three years of experience in the administration of an existing law or the State Goods and Services Tax Act or in the field of finance and taxation.”

16. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending applications, if any, also stand disposed of.