CWP No. 13577 of 2011 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 13577 of 2011 Date of Decision: 29.07.2011 Pankaj Midha ..Petitioner Versus Union of India ..Respondent CORAM: HON'BLE MR. JUSTICE M.M.KUMAR, HON'BLE MR. JUSTICE GURDEV SINGH, Present : Mr. Jagmohan Bansal, Advocate, for the petitioner. 1. Whether to be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest? **** M.M.KUMAR, .J. 1. The petitioner has sought declaration that Rule 3(3) of the Customs, Excise & Service Tax Appellate Tribunal Members (Recruitment & Conditions of Service) Rules, 1987 ( for brevity 'the Rules') prescribing minimum age of 45 years for appointment as judicial member of the Custom, Excise & Service Tax Appellate Tribunal ( for brevity ' the Tribunal') is arbitrary and is liable to be declared ultra-vires of the Constitution. The aforesaid Rule has been enacted w.e.f. 14.05.1997. 2. According to the averments made by the petitioner, the Tribunal is required to be constituted which may comprise as many Judicial and Technical Members as the Government may think fit. As CWP No. 13577 of 2011 [2] per sub section (2) of Section 129 of the Customs Act, 1962, ( for brevity '1962 Act') the educational qualification of a member (Judicial) has been prescribed. According to the assertions made by the petitioner, there is no minimum age limit fixed under Section 129 of the 1962 Act. Likewise, the Rules framed under proviso to Article 309 do not prescribe any such minimum age of 45 years. However, an amendment was made in the Rules on 26.02.1987 inserting Clause (3) in Rule 3 stipulating that no person is to be appointed as a member of the Appellate Tribunal unless he has attained the age of 45 years (Annexure P-2). 3. We have heard learned counsel for the petitioner at some length and are of the view that the conditions for recruitment in service for a Member(Judicial) of the Tribunal can be regulated by providing in the Rules the minimum age of entry in the service. It is purely a legislative act. Such a piece of sub-ordinate legislation can be challenged by showing that the rule is arbitrary and discriminatory on the basis of well known nexus theory. The other argument could be want of competence of the body which has framed the rules. There is no issue because the authority has competence under proviso to Article 309 of the Constitution to frame the Rule. The other question that a person should be 45 years of age would also not suffer from any illegality because the Tribunal needs a person of standing at the bar and mature enough to man the 'Tribunal'. 4. Such a person is required to have held either judicial office for ten years or should have practiced law. To say that a person could achieve such an experience by the age of 35 years after practice CWP No. 13577 of 2011 [3] of ten years would not necessarily lead to conclusion that he should be appointed at that age. If the Rule making authority has in mind that only mature people of standing be appointed then it is a relevant factor for prescribing higher age of 45 years. The age related issues have been decided by Hon'ble Courts by upholding the views of the employer. In the case titled as K.Nagraj V. State of A.P. AIR 1985 (SC) 551, Hon'ble the Supreme Court had considered the question with regard to fixation of age of retirement. It was opined that the fixation of age and other service conditions are left to the legislative authorities of the Government. Likewise, in Nagaland Senior Government Employees Welfare Association Vs. State of Nagaland (2010) 7 SCC 643, a similar view has been reiterated. There is nothing placed before us which may lead to conclusion that it is unreasonable and arbitrary to prescribe the minimum age of 45 years for entry into service as member (judicial) of the Tribunal. The Courts cannot adjudicate on the reasons for fixing a particular date. Therefore, there is no merit in the petition. The Rule do not suffer from any legal infirmity and the same cannot be declared as ultra- vires of Articles 14 and 16(2) of the Constitution. We find no merit in the petition and the same is hereby dismissed. (M.M.KUMAR) JUDGE (GURDEV SINGH) 29.07.2011 JUDGE 'ravinder'