GST Jamku AIPresident and members of Appellate Tribunal, their qualification, appointment, conditions of service, etc.
Section 110(1)
A person shall not be qualified for appointment as—
(a) the President, unless he has been a Judge of the Supreme Court or is or has been the Chief Justice of a High Court;
(b) a Judicial Member, unless he—
(i) has been a Judge of the High Court; or
(ii) has, for a combined period of ten years, been a District Judge or an Additional District Judge;
(c)a Technical Member (Centre), unless he is or has been a member of the Indian Revenue (Customs and Indirect Taxes) Service, Group A, or of the All India Service with at least three years of experience in the administration of an existing law or goods and services tax in the Central Government, and has completed at least twenty-five years of service in Group A;
(d) a Technical Member (State), unless he is or has been an officer of the State Government or an officer of 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.
A person's eligibility for appointment as the President or a member of the Appellate Tribunal is outlined in Section 110(1). The criteria for different positions are as follows:
President
To be eligible for the position of President, a person must have served as a Judge of the Supreme Court or currently holds or has held the position of Chief Justice of a High Court.
Judicial Member
For the role of a Judicial Member, the individual must meet one of the following criteria:
- (i) Former Judge of the High Court.
- (ii) Served as a District Judge or an Additional District Judge for a combined period of ten years.
Technical Member (Centre)
To qualify as a Technical Member (Centre), an individual must be a member of the Indian Revenue (Customs and Indirect Taxes) Service, Group A, or belong to the All India Service. Additionally, they should have a minimum of three years of experience in administering an existing law or goods and services tax in the Central Government, with a total of at least twenty-five years of service in Group A.
Technical Member (State)
For the position of Technical Member (State), the candidate must fulfill the following criteria:
- Must be an officer of the State Government or an officer of All India Service.
- Should hold a rank not lower than Additional Commissioner of Value Added Tax or the State goods and services tax, or an equivalent rank not lower than that of the First Appellate Authority, as specified by the State Government on the recommendations of the Council.
- Completed twenty-five years of service in Group A, or equivalent, with a minimum of three years of experience in administering an existing law or the goods and services tax or in the field of finance and taxation in the State Government.
Provisions for Relaxation
The State Government, based on the Council's recommendations, has the authority to relax the requirement of completing twenty-five years of service in Group A, or equivalent. This relaxation is applicable to officers in states where no individual has fulfilled the twenty-five years of service in Group A, or equivalent. The relaxation is subject to conditions specified in the notification and remains valid until the period mentioned in the notification.
Section 110(2)
The President, Judicial Member, Technical Member (Centre) and Technical Member (State) shall be appointed or re-appointed by the Government on the recommendations of a Search-cum-Selection Committee constituted under sub-section (4):
Provided that in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or otherwise, the Judicial Member or, in his absence, the senior-most Technical Member of the PrincipaI Bench shall act as the President until the date on which a new President, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office:
Provided further that where the President is unable to discharge his functions owing to absence, illness or any other cause, the Judicial Member or, in his absence, the senior-most Technical Member of the Principal Bench, shall discharge the functions of the President until the date on which the President resumes his duties.
The process of appointing and re-appointing the President, Judicial Member, Technical Member (Centre), and Technical Member (State) of the Appellate Tribunal is outlined in Section 110(2). This involves the government relying on the recommendations of a Search-cum-Selection Committee established under sub-section (4).
Appointment Procedure
When a vacancy arises in the office of the President due to death, resignation, or other reasons, the Judicial Member or, in the absence of the Judicial Member, the senior-most Technical Member of the Principal Bench steps in as the acting President. This temporary arrangement continues until a new President, appointed in accordance with the provisions of the Act, assumes office.
Temporary Presidential Responsibilities
In situations where the President is unable to fulfill their duties due to absence, illness, or any other cause, the Judicial Member or, in the absence of the Judicial Member, the most senior Technical Member of the Principal Bench takes on the responsibilities of the President. This interim arrangement persists until the President is able to resume their duties.
The structure of the appointment process ensures a smooth transition in leadership and the continuous functioning of the Appellate Tribunal even in the face of unforeseen circumstances.
Section 110(3)
While making selection for Technical Member (State) of a State Bench, first preference shall be given to officers who have worked in the State Government of the State to which the jurisdiction of the Bench extends.
When selecting a Technical Member (State) for a State Bench, priority should be given to individuals who have previously served in the State Government of the state to which the jurisdiction of the Bench extends.
Appointment Criteria
The appointment of members to the Appellate Tribunal, especially for the role of Technical Member (State), involves considering the professional background and experience within the State Government. This ensures that the selected individuals are well-acquainted with the nuances and intricacies of the specific state's governance.
Conditions of Service
Members appointed to the Appellate Tribunal, including the Technical Member (State), must adhere to specified conditions of service. These conditions are designed to uphold the integrity and efficiency of the Tribunal, fostering a work environment that is conducive to fair and just decision-making.
In conclusion, the selection and appointment process for the Technical Member (State) in the Appellate Tribunal prioritizes individuals with experience in the relevant State Government. This approach aims to enhance the Tribunal's effectiveness and ensure a deep understanding of the state-specific context among its members.
Section 110(4)
(a) The Search-cum-Selection Committee for Technical Member (State) of a State Bench shall consist of the following members, namely:—
- (i) the Chief Justice of the High Court in whose jurisdiction the State Bench is located, to be the Chairperson of the Committee;
- (ii) the senior-most JudiciaI Member in the State, and where no JudiciaI Member is available, a retired Judge of the High Court in whose jurisdiction the State Bench is located, as may be nominated by the Chief Justice of such High Court;
- (iii) Chief Secretary of the State in which the State Bench is located;
- (iv)one Additional Chief Secretary or Principal Secretary or Secretary of the State in which the State Bench is located, as may be nominated by such State Government, not in-charge of the Department responsible for administration of State tax; and
- (v) Additional Chief Secretary or Principal Secretary or Secretary of the Department responsible for administration of State tax, of the State in which the State Bench is located — Member Secretary; and
(b) the Search-cum-Selection Committee for all other cases shall consist of the following members, namely:—
- (i) The Chief Justice of India or a Judge of Supreme Court nominated by him, to be the Chairperson of the Committee;
- (ii) Secretary of the Central Government nominated by the Cabinet Secretary — Member;
- (iii) Chief Secretary of a State to be nominated by the Council — Member;
- (iv) one Member, who—
- (A) in case of appointment of a President of a Tribunal, shall be the outgoing President of the Tribunal; or
- (B) in case of appointment of a Member of a Tribunal, shall be the sitting President of the Tribunal; or
- (C) in case of the President of the Tribunal seeking re-appointment or where the outgoing President is unavailable or the removal of the President is being considered, shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India; and
- (v) Secretary of the Department of Revenue in the Ministry of Finance of the Central Government — Member Secretary.
Section 110(4)
The law outlines the composition of the Search-cum-Selection Committee for the appointment of Technical Members (State) in a State Bench. There are two categories of committees based on the nature of the cases.
Committee for Technical Member (State) of a State Bench:
The members of this committee are as follows:
- Chairperson: The Chief Justice of the High Court in whose jurisdiction the State Bench is located.
- Judicial Member: The senior-most Judicial Member in the State. If no Judicial Member is available, a retired Judge of the High Court in the jurisdiction, nominated by the Chief Justice.
- Chief Secretary: Chief Secretary of the State where the State Bench is located.
- Additional Chief Secretary/Principal Secretary/Secretary: One of these officials from the State, nominated by the State Government, not in charge of the Department responsible for the administration of State tax.
- Member Secretary: Additional Chief Secretary/Principal Secretary/Secretary of the Department responsible for the administration of State tax in the State where the Bench is located.
Committee for all other cases:
- Chairperson: The Chief Justice of India or a Judge of the Supreme Court nominated by him.
- Member: Secretary of the Central Government nominated by the Cabinet Secretary.
- Member: Chief Secretary of a State nominated by the Council.
- Member: In case of appointing a President of a Tribunal, the outgoing President of the Tribunal, or in case of appointing a Member of a Tribunal, the sitting President of the Tribunal. In case of re-appointment or unavailability of the outgoing President, a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India.
- Member Secretary: Secretary of the Department of Revenue in the Ministry of Finance of the Central Government.
Section 110(5)
The Chairperson shall have the casting vote and the Member Secretary shall not have a vote.
Section 110(6)
Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the Committee shall recommend a panel of two names for appointment or re-appointment to the post of the President or a Member, as the case may be.
Section 110(7)
No appointment or re-appointment of the Members of the Appellate Tribunal shall be invalid merely by reason of any vacancy or defect in the constitution of the Search-cum-Selection Committee.
In the legal framework surrounding the Appellate Tribunal, specific provisions dictate the qualifications, appointment procedures, and conditions of service for the President and members.
Casting Vote Authority
One notable provision in Section 110(5) outlines that the Chairperson holds the significant power of the casting vote. Additionally, the Member Secretary, while integral to the tribunal, is devoid of voting privileges.
Panel Recommendations
Section 110(6) establishes a crucial mandate for the Committee. Despite any existing judgments, orders, or decrees from courts, and irrespective of prevailing laws, the Committee is tasked with proposing a panel of two names for the appointment or re-appointment to the positions of President or Member.
Validity of Appointments
Addressing concerns regarding the Search-cum-Selection Committee, Section 110(7) asserts that no appointment or re-appointment of Appellate Tribunal members becomes invalid solely due to a vacancy or defect in the constitution of the said committee. This provision aims to ensure the continued efficacy of the appointment process despite any procedural gaps.
Section 110(8)
Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the salary of the President and the Members of the Appellate Tribunal shall be such as may be prescribed and their allowances and other terms and conditions of service shall be the same as applicable to Central Government officers carrying the same pay:
Provided that neither the salary and allowances nor other terms and conditions of service of the President of Members of the Appellate Tribunal shall be varied to their disadvantage after their appointment:
Provided further that, if the President or Member takes a house on rent, he may be reimbursed a house rent higher than the house rent allowance as are admissible to a Central Government officer holding the post carrying the same pay, subject to such limitations and conditions as may be prescribed.
In Section 110(8), it is specified that regardless of any court judgment, order, or existing law, the salary of the President and Members of the Appellate Tribunal will be determined as prescribed. Their allowances and other service conditions will mirror those applicable to Central Government officers with equivalent pay.
Preservation of Terms and Conditions
It is crucial to note that the salary, allowances, and terms of service for the President and Members of the Appellate Tribunal cannot be altered to their disadvantage after their appointment.
House Rent Reimbursement
In case the President or a Member opts to rent a house, they may be reimbursed with a higher amount than the house rent allowance granted to a Central Government officer holding a post with the same pay. However, this is subject to specific limitations and conditions as prescribed by relevant authorities.
Section 110(9)
Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the President of the Appellate Tribunal shall hold office for a term of four years from the date on which he enters upon his office, or until he attains the age of sixty-seven years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding two years.
Section 110(10)
Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the Judicial Member, Technical Member (Centre) or Technical Member (State) of the Appellate Tribunal shall hold office for a term of four years from the date on which he enters upon his office, or until he attains the age of sixty-five years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding two years.
Term of Office for the President of the Appellate Tribunal
In spite of anything mentioned in court judgments, orders, or decrees, or any existing laws, the President of the Appellate Tribunal is appointed for a fixed term of four years. This period starts from the date they assume office or until they reach the age of sixty-seven, whichever comes first. Additionally, they have the option of being re-appointed, but the re-appointment cannot extend beyond two years.
Appointment Duration and Age Limit
The President's tenure begins when they start their role and lasts for a specific period of four years. However, if they reach the age of sixty-seven before completing the four-year term, their term will end. This ensures a maximum age limit for the President of the Appellate Tribunal.
Re-Appointment Possibility
After completing the initial term, the President has the opportunity for re-appointment. The re-appointment, if opted for, cannot surpass a duration of two years. This provision allows for continuity if the authorities decide that the President should continue in the role beyond the initial term.
Section 110(11)
The President or any Member may, by notice in writing under his hand addressed to the Government, resign from his office:
Provided that the President or Member shall continue to hold office until the expiry of three months from the date of receipt of such notice by the Government or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
Both the President and any Member have the right to resign from their respective offices. This can be done through a written notice, signed by the individual, and addressed to the Government.
Resignation Notice Duration
Upon submission of the resignation notice, certain conditions come into play. The President or Member will continue to hold their office for a period of three months from the date the Government receives the notice. Alternatively, the tenure lasts until a duly appointed successor assumes the role or until the completion of the term of office, depending on whichever event occurs first. This ensures a smooth transition and continuity in the functioning of the office.
Implications of Resignation
The act of resignation triggers a series of events, with the individual in office remaining in their position for a specified timeframe. This provision allows for the government to make necessary arrangements for a replacement and ensures that the responsibilities associated with the office are not abruptly disrupted. It promotes a structured and organized transition process, maintaining the stability and effectiveness of the governmental system.
Flexibility in Transition Period
The flexibility provided in the resignation process allows for adaptability to various scenarios. Whether it be the prompt appointment of a successor or the completion of the term of office, the Section 110(11) resignation procedures provide a framework that accommodates different timelines. This flexibility is crucial in managing the dynamic nature of governmental positions and facilitates a seamless handover of responsibilities.
Section 110(12)
The Government may, on the recommendations of the Search-cum-Selection Committee, remove from the office President or a Member, who—
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which involves moral turpitude; or
(c) has become physically or mentally incapable of acting as such President or Member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as such President or Member; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest:
Provided that the President or the Member shall not be removed on any of the grounds specified in clauses (d) and (e), unless he has been informed of the charges against him and has been given an opportunity of being heard.
Removal of President or Member: Grounds and Procedures
The government, acting upon the recommendations of the Search-cum-Selection Committee, holds the authority to dismiss the President or a Member from their position under specific circumstances. These circumstances include:
Insolvency Adjudication (Clause a)
If the individual in question has been declared insolvent, they may be subject to removal from office.
Conviction for Offenses of Moral Turpitude (Clause b)
A conviction for an offense involving moral turpitude is grounds for potential removal of the President or Member.
Physical or Mental Incapacity (Clause c)
In the event that the President or Member becomes physically or mentally incapable of performing their duties, their removal may be considered.
Financial or Other Interests Affecting Functions (Clause d)
If the individual acquires financial or other interests that could adversely impact their role as President or Member, removal may be deemed necessary.
Abuse of Position (Clause e)
When an individual abuses their position in a manner that threatens public interest, their continuance in office becomes prejudicial, warranting potential removal.
It is crucial to note that removal on the grounds outlined in clauses (d) and (e) is contingent upon the affected individual being informed of the charges against them and given an opportunity to present their defense. The process ensures fairness and due consideration before any decision is made.
Section 110(13)
The Government, on the recommendations of the Search-cum-Selection Committee, may suspend from office, the President or a Judicial or Technical Member in respect of whom proceedings for removal have been initiated under sub-section (12).
Section 110(14)
Subject to the provisions of article 220 of the Constitution, the President or other Members, on ceasing to hold their office, shall not be eligible to appear, act or plead before the Principal Bench or the State Bench in which he was the President or, as the case may be, a Member.
Suspension of President or Members
The Government has the authority, based on the recommendations of the Search-cum-Selection Committee, to temporarily remove from duty the President or a Judicial or Technical Member when proceedings for their removal are initiated under sub-section (12).
Post-Termination Restrictions
Following the guidelines of article 220 of the Constitution, once the President or other Members conclude their tenure, they are prohibited from appearing, acting, or pleading before the Principal Bench or the State Bench where they previously held the position of President or Member, respectively.
In simpler terms, if there are proceedings to remove the President or a Member, the government can suspend them based on the committee's suggestions. After leaving office, the President and other Members cannot work or represent cases in the same Bench where they served. These rules are in line with the Constitution's provisions.