The Himachal Pradesh High Court has Dismissefdthe Retired IAS Officer, Amit Kashyap’s peition challenging notification relaxing eligibility for Goods and Service Tax Appellate Tribunal (CESTAT) technical member appointment.
The bench of Justice Tarlok Singh Chauhan and Justice Sushil Kukreja has observed 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.
Its worthwhile to note that as per the earlier provisions, officers of All-India Service were not even eligible as would be evident from the un-amended sub-section 1(d) of Section 110 which states that 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.
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. 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.
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.
Principal Secretary and Commissioner, Sales Tax and Excise raised the objections 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. The 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’.
The department contended 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.
The Additional Secretary, GST Council and Joint Secretary, Department of Revenue 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.
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.
The court noted that 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”.
The court while dismissing the petition held that 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. This assumes importance because similar and rather identical relaxations have been given to the officers of the State Governments in 10 other States.
Case Details
Case Title: Amit Kashyap Versus Principal Secretary, State Taxes and Excise, Govt. of H.P. & Ors.
Case No.: CWP No. 15550 of 2024
Date: 03.04.2025
Counsel For Petitioner: Ishan Kashyap
Counsel For Respondent: AG Anup Rattan
