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Petitioner: ABDUL HAMEED ANJUM and others VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Sayed Zahid Hussain Title: ABDUL HAMEED ANJUM and others vs FEDERATION OF PAKISTAN and others Case No.: Civil Appeal No,1745 of 2002 Date of Judgment:2009-09-29 Reported As: PLD 2010 Supreme Court 857 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MUHAMMAD SAIR ALI, J.---The appellants through this appeal by leave have called in question judgment dated 10-5-2001 passed by a learned Division Bench of High Court of Sindh, Karachi dismissing their Constitution Petitions Nos.80 and 81 of 2002 in view of the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Through the impugned judgment it was held that Establishment Memo dated 25-1-2001 was an appealable order and matter to absorb the appellants in the Income Tax Group was a matter relating to the terms and conditions of the service of the appellants wherefor the High Court had no jurisdiction to entertain the constitutional petitions and the appropriate remedy, was to file an appeal before the Service Tribunal. 2. The case of the appellants is that on their deputation by transfer . To the Income Tax Department under a policy decision of the respondents, they till date continued to serve in the Income Tax Department since sixteen years. And that as positively promised, represented and assured throughout, it was decided through decision dated 21-7-2000 to induct the appellants in the Income Tax Department. And that the CBR accordingly made written offer to each officer who duly accepted the same in December, 2000. And that they thus became part of the service structure of the Income Tax Department and stood inducted and absorbed therein. Non-issuance of notifications by the respondents was therefore illegal hence their Constitutional petitions in the High Court should not have been declined. The appellants expressly stated that neither the issue of the appellants' seniority nor that of the terms and conditions of their service was the subject- matter of the Constitutional petitions or this appeal. The appellants had sought declaration of their legal character and status as the incumbents in the service structure of the Income Tax
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Department of CBR. And that without grant of such declaration, they would not have known the department they belonged to or-the terms and conditions they were regulated by. 3. Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court for the appellants contended that:-- (i) The honourable High Court erred in law in holding that O.M. Dated 25-1-2001 amounted to a final appealable order which was passed by a non-departmental authority and was neither relied upon nor discussed by the parties and that the same had been subsequently rejected by CBR. (ii) O.M. Dated 25-1-2001 was an internal departmental communication and was not a final order. It was neither served nor addressed to the appellants. On the question of finality of the order, reference was made to the case of S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612/615. (iii) The Establishment O.M. Dated 25-1-2001 came to the knowledge of the appellants only during proceedings in the constitutional petition before the High Court. And that as the establishment division, had abdicated its authority to CBR by nominating CBR as the Competent Authority of the appellants, wherefor memo dated 25-1-2001 was even otherwise incompetent. Reference was also made to Finance Minister's speech on Budget and Punjab Employees Social Security Institution and others v. Lyallpur Cotton Mills, Ltd. And others 2002 SCMR 729, para.23 for implementation of a Policy order in identical circumstances. (iv) The High Court had the jurisdiction. The appellants were only seeking implementation of the decision of their induction made by the Board in Council of the CBR and such a matter did not relate to the terms and conditions of service to attract bar of Article 212 of the Constitution. (v) The question of induction of the appellants in the Income Tax Department of the respondent No,2 had been decided in favour of the appellants by the Board in Council of the Respondent No,2, and the decision dated 27-7-2000 of the Board in Council was to be implemented by performing the ministerial act of issuing notifications for the induction of the appellants in Income Tax Group of the respondent No,2. (vi) The appellants had acquired vested rights and the respondent. No,2 could not withdraw or recall the decision of induction already taken by it. There was nothing left for the respondent No,2 to recall. The appellants had lawfully been inducted/absorbed in the Income Tax Department. Failure to issue consequential notification was violative of the fundamental rights of the appellants as guaranteed under Articles 18, 25 and 27 of the Constitution arbitrary. Further that CBR or Establishment Division having acted upon the decision were stopped to reverse their Policy of induction/absorption of the appellants in the Income Tax Department. (vii) That the appellants opted for deputation in the Income Tax Department on categorical promise that they were likely to be. Inducted in the Income Tax Department and that they would have a lien with their respective parent department for a period of five years only. Period of five years elapsed and the appellants continued to serve in the Income Tax Department. The appellants thus acquired vested right which could not be nullified or adversely affected by the respondents. (viii)That the appellants had invested prime years of their professional career in the service of the respondent No,2 and had gained experience in this particular area. 4. In the contrary arguments, the learned Advocate Supreme Court for the Federation and learned Deputy Attorney General conceded that CBR (respondent No,2) was the Competent Department/Appointing Authority in the case of appellants but stated that CBR functioned under the Establishment Division wherefor CBR was bound by the instructions of the Establishment Division. They are conceded that Establishment memo dated 25-1-2001 was never conveyed to the appellants and could not be considered to be a final order. They insisted that appellants had no vested right to stay in the Income Tax Department and that the matter related to the terms and
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conditions of the service, therefore, the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 was applicable. ' Adopting the same line of arguments, learned Advocate Supreme Court for CBR stated that Establishment Division did not agree with the Policy decision of the CBR to absorb the appellants wherefor CBR had no option but to agree to go along with the establishment's O.M. Dated 25-1- 2001. He however conceded that CBR by Memo dated 4-6-2001 disagreed with O.M. Dated 25-1- 2001. 5. The learned Advocate Supreme Court for the appellants stated that this appeal is only pressed for appellants Nos.1, 2, 3 and 6 as all other officers had gone back to their respective parent department. 6. Heard. Record examined. 7. We are of the opinion that Events and Proceedings sequentially stated would lead to the resolution of the tangled questions herein involved. 8. The appellants after qualifying the Central Superior Services competitive examination were allocated to different occupational groups in the service of Pakistan. 9. In 1993 Central Board of Revenue (CBR) respondent No,2 decided to expand Income Tax Administration. Help of the Establishment Division Government of Pakistan respondent No,1 for meeting the shortage of income tax assessing officers was sought. Establishment Division i,e, the respondent No,1 through letter No,13(123)/93-D-2 (PD) dated 18-12-1993 wrote to the Secretaries of all departments that on the expansion in Tax Administration, the officers from other occupational groups were to be "initially appointed on deputation under section 10 of the Civil Servant Act, 1973 and are likely to be considered for induction in the Income Tax Group". The concerned Secretaries were "accordingly" asked to furnish the names of BS-17 officers having "suitable experience" for placing before a Selection Committee and for consideration/approval by the competent authority. 10. The respective departments thus invited options from their officers, many of whom accepted this offer. Their names were submitted to the respondent No,1 for deputation and possible induction in the service of the respondent No,2. 11. A high powered Joint Committee comprising Members of CBR and Joint Secretary Establishment Division, selected 72 officers including the appellants on 19-2-1994 when the Committee also decided that the officers selected for appointment by transfer shall:-- (a) undergo intensive professional training at the Directorate of Training (Income Tax), Lahore, for a period of four to six months; (b) have to pass the departmental examinations within 2 years after completing the training. (c) continue to have lien with their parent department for a maximum period of five years. (d) shall rank lowest to the officers of the Income Tax Group in BS-17 but their original inter se seniority in their own cadre and group shall continue to be maintained in their parent departments. ' In this decision dated 19th February, 1994 the high powered committee also represented that "the officer at the time of joining Income Tax Department for professional training shall undertake that if subsequently at any time he is inducted in the Income Tax Group, then he will not contest seniority". ' Establishment Division (respondent No, 1) vide order dated 22-2-1994 approved the above terms of deputation as recommended by the Committee per its decision dated 19-2-1994. ' On 22-2-1994 Establishment division also recorded that "the terms of deputation at this stage will be standardized". And "as for terms and conditions including issues of seniority upon the proposed induction ("appointment by -transfer") into the Occupational Group, would be examined in the light of law/rules by the relevant Wing in Establishment Division and advice rendered subsequently to Central Board of Revenue". 12. The process of selection was thus completed.
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13. The respondent No,1 placed the services of the selected officers including the appellants at the disposal of the respondent No,2 who vide Notification No,67-ITE/94 dated 19-3-1994 posted them as Assistant Commissioners of Income Tax (under training) in the Directorate of Training, Lahore. These officers completed their training as Assistant Commissioners of Income Tax (under training) and also passed the examination. 14. By March, 1999 five years of these officers with the parent department under CBR memo dated 19-2-1994 lapsed. However as per the respondents, lien of these officers was not terminated in their parents department. 15. These officer had since served at numerous postings, positions and places on the orders of CBR i,e, respondent No,2. 16. Vide Government of Pakistan, Establishment Division S.R.O.276(1)/2000 dated 25-5-2000 Secretary of the Ministry or Division concerned i,e, CBR in this case, was notified as the Appointing Authority under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. 17. The appellants till date continued performing their functions in the Income Tax Group under the direct and effective administrative control of CBR. 18. The question of induction of these officers in the Income Tax Group was considered on numerous occasions. It was finally decided by the Board in Council on 21-7-2000 that the officers be inducted in the Income Tax Group as under:-- The question of their repatriation or induction in the Income Tax Group was considered by the Board in consultation with the Establishment Division. The latter informed that despite serving for more than 5 years on deputation, the lien of the officers in question in their parent departments has not yet been terminated. The Board was informed that the Department is still facing the shortage of assessing officers and at present 323 vacancies of assessing officers exist in Grades- 16, 17 and 18. It was further stated that except two officers who have been suspended recently on the charges of inefficiency and corruption, the other officers have been working satisfactorily and they have earned good reports. ' After consideration, it was decided by the Board that those officers who have shown good performance during the period of deputation and have good record may be inducted in the Income Tax Group in view of shortage of the assessing officers...." 19. Through Office memorandum dated 11-10-2000, CBR formally conveyed its above decision dated 21-7-2000 to the Establishment Division with whose consultation said decision had been made. Through this Memo CBR sought advice on the question of their seniority only after induction of these officers in the Income Tax Group. The relevant part of the memo. Read as under:- "The Central Board of Revenue is still facing the shortage at this level and has, therefore, decided that the officers, who have shown good performance during the period of deputation may be inducted in the Income Tax Group. ' The Establishment Division is requested to kindly advise on the question of their seniority on induction in the Income Tax Group. The following questions may please be clarified:-- (i) Whether the seniority of inductees will be determined from the date of joining in the Income Tax Department or from the date of induction in the Income Tax Group? (ii) Since the officers to be inducted in the Income Tax Group belong to various services/groups and different batches, what will be the principle or inter-se-seniority with the batch of inductees or otherwise? (iii) Out of 46 officers, seven officers belong to the Economists Group, as these officers are not CSS qualified, it may be advised whether these offices may be placed at the bottom of batch of inductees according to their year of appointment".
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20. On 19-12-2000, CBR made offer of induction in the Income Tax Group to each officer who accepted the same immediately by end December, 2000. 21. That despite the final decision of induction by the Board in Council of CBR and the acceptance of offers by the appellants, the decision was not formalized and the requisite notifications of appellants' induction/absorption in the Income Tax Group were not issued. 22. On 15-1-2002 the appellants filed constitutional petitions in the Sindh High Court with the following prayers:- "(a) Declare that the petitioners have been absorbed in the Income Tax Department of the Central Board of Revenue (respondent No,2). (b) Direct the respondent No,2 to issue notification(s) of induction of the petitioners in the Income Tax Department of the respondents No,2. (c) Grant permanent injunction prohibiting the respondents directly or indirectly or through their officers, employees, agents, subordinates or any other person, from taking any action against the petitioners which interferes with or adversely affects their status as officers inducted in the Income Tax Department of the respondent No,2. 23. During the proceedings of the writ petitions, appellants came to know of the Establishment Division Memo dated 15-1-2001 to CBR which was (placed as annexure 2 in CBR's parawise comments in the High Court). This Memo read as under:- "The undersigned is directed to refer to Central Board of Revenue's 0.M.No,17(2)/93-AIT.II, dated 19th December, 2000 on the subject noted above and to say:- (i) "that there is no provision in the O.M. Constituting the Income Tax Group for appointment to BS- 17 posts through transfer. The said O.M. Provides for direct recruitment 75% and promotion 25%. (ii) Establishment Division is, however, of the view that as a matter of general principle, regular appointment to BS-17 posts in a regularly constituted Occupational Group falling within the ambit of CSS Examination should not be made through transfer from other occupational groups, as that would militate against the prevalent system of allocation of occupational groups on merit. A wrong precedent (even with bona fide considerations) may pave the way for maneuvering by individuals to get occupational groups of their choice which they fail to get through FPSC based mechanism of selection". (No decision seems to have been made by the Establishment Division. ) 24. CBR disagreed with Establishment Division's above O.M. Dated 25-1-2001 and through its Memo. No, CN.17(2)/93-AIT-II, dated 4-6-2001, stated as under:-- "The Establishment Division has replied vide O.M.No,PF.38/90-OMG II, dated 25th January, 2001 that there is no provision in the O.M. Constituting the Income Tax Group for appointment to BS-17 posts through transfer. The said O.M. Provides for direct recruitment 75% and promotion, 25% reference para 1(i) of the said O.M. The O.M. Through which Income Tax Group was constituted clearly states that "in order to meet shortages of officers in this group or to meet specific requirements, appointments may be made to posts in the Group in any Grade by transfer from other Groups...." (Annex-I). Therefore, there is a provision for induction/appointment by transfer of officers of other services in the Income Tax Group. It may also be noted that there is a shortage of about 475 Assessing Officers in the Income Tax department, Officers of other Group also possess professional qualification and experience of about 7 years which provide reasonable justification for their induction in the Income Tax Group. These officers would be considered for induction against direct quota 75% in the Income Tax Group. ' With reference to Establishment Division's viewpoint mentioned in above para (2), it may kindly be noted that this observation is at variance with the Establishment Division's earlier stance contained in their letter No,13(123)/93-D.2-D(PD), dated 18th December, 1993 (Annex-II) which needs to be reconciled.
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' It may also be noted that Establishment Division has been pressing hard CBR for taking decision for the permanent induction/absorption of officers of other Occupational Groups in the Income Tax Group. In this regard, Establishment Division's O.M. No,1/43/94-E.4, dated 6th April, 2000 D.O. Letter No,1/43/94-E.4, dated 20th May, 2000 and 11th July, 2000 are enclosed as Annex III to V. After receipt of Establishment Division's said O.M. And D.O. Letters, the Board-in-Council (comprising all Members and Chairman) of CBR decided that those officers who have shown good performance during the period of deputation and have good record may be inducted in the Income Tax Group in view of shortage of the Assessing Officers (at present, there is a shortage of about 475 Assessing Officers in the Income Tax Department). After decision by the CBR for permanent induction/absorption of said offices in the Income Tax Group. Establishment Division was informed vide CBR's O.M. Of even number dated 19th December, 2000 and it was requested that NOC in respect of officers of OMG may be sent to the CBR. It is pertinent to mentioned here that after the decision of Board-in-Council the officers were issued Offer of Induction in the Income Tax Group which was accepted by them. After the issuance of offer of induction and acceptance thereof would encourage litigation if induction is refused". 25. Vide the impugned judgment dated 6-10-2006 the High Court of Sindh rejected appellants' constitutional petitions holding that the O.M. Dated 25-1-2001 of the respondent No,1 was an appealable order under the provisions of the Services Tribunal Act, and the matter related to the terms and conditions of the service of the appellants, wherefor High Court had no jurisdiction. 26. It was brought to our notice that the Lahore High Court had allowed such a petition through judgment dated 1-1-2002 where against I.-C.A. No,12 of 2002 was filed by the department. The officer concerned conceded the appeal and the judgment dated 1-1-2002 was set aside and officer by the option was repatriated to his parent department. 27. In the above perspective leave to appeal was granted by this Court vide order dated 27-11-2002 to consider the following questions:-- (a) Whether the appellants have acquired vested right and the respondent No,2 could not withdraw or recall the decision of their induction? (b) Whether High Court failed to exercise its jurisdiction? (c) Learned Lahore High Court and High Court of Sindh in respect of their jurisdiction in such matters have taken contrary views. In the impugned judgment learned High Court of Sindh dismissed the petitions holding that the bar of Article 212 of the Constitution was attracted, while learned Lahore High Court in the cases reported as Asjad Mahmood v. Federation of Pakistan through Ministry of Finance, Islamabad and 2 others 2002 PLC (C.S.) 1161 held that petition under Article 199 of the Constitution was maintainable and could be decided on merits. It is to be determined that which of two High Courts have correctly interpreted the legal points involved in these matters. (d) Whether Office memorandum dated 25-1-2001 was correctly appreciated by the High Court? 28. The above chronological recount of facts regulating appellants' service with Income Tax Department under CBR brings us to the representations, promises, assurances and policy orders of the respondents from time to time. 29. In the policy decision dated 8-12-1993, Establishment Division, Government of Pakistan "in view of the expansion in tax administration" offered these officers initial appointment on deputation with clear promise that they were "likely to be considered for induction in the Income Tax Group". In decision dated 19th February, 1994 the respondents required these officers to inter alia undertake that if they are subsequently inducted in the Income Tax Group, they will not contest their seniority. Also on 22-2-1994 Establishment Division recorded that the issues of the seniority upon the proposed induction of these officers, would be examined in the light of law/rules..................
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30. These representations, promises and statements were expressly admitted to have been so made, by the respondents i,e, the Establishment Division, Government of Pakistan and CBR. 31. In the above referred policy decision dated 18-12-1993 terms `Expansion' likely' and 'consideration' were used. The meaning and import as well as the impact of these terms on this case need to be discussed. 32. 'Expansion' means "enlargement, extension of business, increase in size, volume, quantity or scope; an expanse; development esp in the activities of a company; growth and spread". 33. The expansion plan of CBR's tax administration in view of the avowed shortage of trained and qualified manpower was dependent upon acceptance by said officers from other occupational groups, of the offer to initially be on deputation and then be considered for induction in the Income Tax Group. The planned expansion would not otherwise have come through. ' As admitted in various memos, the expansion so effected by CBR in its Income Tax Administration was in size, volume, quantity, scope and performance. CBR thus added to its structural strength and met the paucity in its professional manpower by enblock deputation of seventy two officers to CBR for an indefinite period. It was thus reorganization through enlargment. These officers were transferred from place to place and post to post in the Income Tax Administration and throughout remained under the functional, managemental and hierarchical control of CBR. 34. These deputationists were assured of the "likely consideration" for their induction in the Income Tax Group. The word 'Likely' as per dictionaries means "worthy of belief' probable; credible"; and "plausible, possible, reasonable, feasible, believable; no doubt, presumably, in all probability" and "having or giving reason to expect; followed by the infinitive; within the realm of credibility"; and "has a good chance of being the case or of coming about; expected to become or be in prospect; with considerable certainty; without much doubt". 35. Such representations or promises or assurances of the Government cannot be believed to be deceitful or meaningless. Such an assumption is also belied by the words "consider" or 'consideration' used in the said policy decision dated 18-12-1993. As per chambers Dictionary "consider" means "to look at attentively or carefully; to think or deliberate on; to take into account; to attend to, regard as; to think; hold the opinion to reward; to think seriously or carefully; to deliberate". ' The terms, 'consider', 'consideration' and 'due consideration' were discussed by Lahore High Court in two judgments as under:-- ' The word 'consideration' does not give a licence to respondent Bank to shift stands, commitments and duties…
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