Case: Balbir Singh Negi Vs. U O I

SLP is filed against the order of the Central Administrative Tribunal, Chandigarh Bench, Circuit at Shimla made on 17.11.1995 in O.A No. 758/HP/91. The petitioner, admittedly, after completing his 33 years of qualifying service submitted, on February 18, 1991, an application for voluntary retirement under Section 48A of Pension Rules which came to be accepted on May 2, 1991 w.e.f. June 30, 1991 as requested by him. After the receipt of this letter and acceptance on the even date, namely, May 2, 1991 and of another letter dated May 23, 1991, he sought to withdraw his application for voluntary retirement which he had submitted but was not accepted by the authorities. Thereafter, he filed O.A. in the Tribunal contending that he is entitled to withdraw his application before the relationship of master and servant becomes operative, i.e. July 1, 1991. Acceptance of his resignation before that date, i.e., 30.6.1991 is not valid in law. Under Ruleof the Pension Rules, a Government servant, on completion of required period of service, is entitled to make a request for voluntary retirement. Admittedly, that request was acceded to and resignation wascounsel for the petitioner sought to rely upon the judgment of this Court in Balram Gupta v. Union of India [(1987) Supp. SCC 228] in which this Court had held that a Government servant after making the application but before it becomes effective and the relationship of master and the servant ceases to operate, is entitled to withdraw the resignation.In that case, on the facts and circumstances, it was held that he was pressurised in the first instance to voluntarily retire. With a view to get it over he had submitted his application for voluntary retirement. Subsequently, he reconciled. The entitlement to withdraw the application for voluntary retirement was accepted by this Court. It is seen that in this case, admittedly, the petitioner has stated that he was on leave for one year prior to the date of seeking voluntary retirement on medical grounds and he was unable to discharge the duties and that, therefore, he had sought to voluntarily retire from service. It would appear that when he was transferred from Shimla to Faridabad, he had submitted his application in a huff for voluntary retirement and that thereafter he came forward with the application for withdrawal. It is true that the petitioner was entitled to withdraw the resignation. But in view of the fact that he has already attained the superannuation in normal circumstances on February 28, 1994, no useful purpose will be served by giving direction to permit him to withdraw his application.

Court's reasoning:
5. It clearly appears that a distinction has been drawn between a legal practitioner and a sales tax practitioner in Section 71. Both may appear before an authority in connection with sales tax cases. That will not turn a sales tax practitioner into a legal practitioner. Even a relative or an employee of an assessee may appear on his behalf before a sales tax authority. He does not require to have any special qualification for doing that. If an employee appears regularly for his employer in connection with sales tax cases of his employer before a sales tax authority, he cannot be treated to be a legal practitioner or entitled otherwise to practise the profession of law by virtue of Section 71 of the Bombay Sales Tax Act.6. The second category of persons, who are entitled to appear before sales tax authorities under clause (b) of Section 71, are professionally qualified persons. A legal practitioner or a chartered accountant or a cost accountant may appear before a sales tax authority on behalf of his client. Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It cannot be said that an accountant carries on the profession of law when he appears before the sales tax authority, nor can it be said that a lawyer carries on the profession of an accountant when he appears before a sales tax authority.7. The third category, to which the appellant claims to belong, is the category of sales tax practitioners, who possess the prescribed qualifications. Assuming that the appellant, who is stated to be only a Matriculate, has acquired the prescribed qualifications and has been included in the list of persons qualified to appear before the sales tax authorities, he cannot be treated as a person entitled to practise either the profession of law or the profession of accountancy. A large number of persons have been permitted to appear before sales tax authorities on behalf of the dealers. The list includes an employee, relative, a sales tax practitioner and also professionally qualified people like lawyers and accountants. The right to appear before a sales tax authority is not confined to lawyers only. We are unable to uphold the contention that merely because the appellant has been permitted to appear before the sales tax authority he falls within the category of persons entitled to practise the profession of law by virtue of the provisions of the Bombay Sales Tax Act.8. Moreover, appearance before the sales tax authority may only be for the purpose of filing a return and producing documents in support of the return. A relative or an employee or an accountant or a sales tax practitioner can be asked to do this job by an assessee for and on his behalf. That does not mean that any one of the aforesaid persons is practising the profession of law when he appears before the statutory authority and produces the accounts. He may even be called upon to explain the accounts or justify the entries made in the accounts books. There may be problems only ofand accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straight away that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.9. There is also another aspect of the matter. The exact qualification of the appellant and the nature of his work has not been set out in the petition under Article 226 of the Constitution before the Nagpur Bench of the Bombay High Court. It was stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar Council of Maharashtra, by a letter dated 27th December, 1978 called upon the appellant to produce the application made by him to the Sales Tax Officer initially for registration as sales tax practitioner.The question asked by the Secretary, Bar Council of Maharashtra, is also important for the purpose of this case. This sales tax practitioner is required to be conversant with accountancy principles and practice. He may not be a qualified chartered accountant or a cost accountant, but he must have some familiarity with accountancy practice.The requirements of Rule 66 go to show that sales tax practitioner, who has not got a degree in law or is not a qualified chartered or cost accountant, will have to acquire some knowledge of accountancy. Even Section 288 of the Income Tax Act and the Rules framed thereunder, lays down that an Authorised Representative who is not a legal practitioner entitled to practise in any civil court in India or a Chartered Accountant or a person qualified to be an auditor of a company may be allowed to appear before an Income Tax Authority, if he has passed any of the accountancy examinations recognised by the Central Board of Revenue or has acquired a degree in commerce from a recognised University. These rules go to show that apart from lawyers and chartered or cost accountants, other persons are allowed to practise in the Sales Tax Department as Sales Tax practitioners provided they have acquired some knowledge of accountancy. They will have to pass one of the many recognised accountancy courses for this purpose. This goes to show that the sales tax practitioner does not carry on the profession of law when he appears before a Sales Tax Officer. His practice is more in the nature of that of an accountant. Therefore, we are unable to uphold the contention that merely because the appellant was allowed to practise as a sales tax practitioner, he is entitled to be enrolled as an advocate by virtue of the provisions of clause (aa) of(3) of Section 24 of the Act.12. It may also be pointed out that the construction suggested by the appellant will lead to anomaly and must be avoided. After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase `practice the profession of law is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force. Not only that, if the contention of the appellant is accepted, after the appointed date the sales tax practitioner who does not have a degree in law will not be entitled to be enrolled as an advocate, will not be able to practise the profession of law and consequently will not be able appear before any Sales tax authority notwithstanding the provisions of Section 71 of the Bombay Sales Tax Act.