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Petitioner: ABRAR HUSSAIN NAQVI VS Respondent: FEDERAL GOVERNMENT
1992 P L C (C
1992 P L C (C.S.) 1222
[Lahore High Court]
Before Manzoor Hussain Sial, J
ABRAR HUSSAIN NAQVI
Versus
THE FEDERAL GOVERNMENT and others
Writ Petition No. 5187 of 1991, decided on 23rd May, 1992.'
(a) Constitution of Pakistan (1973)---
----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4(1)-- Maintainability of Constitutional petition in view of bar of provision of Art. 212 of the Constitution as also proviso to subsection (1) of S.4, Service Tribunals Act, 1973---Upgradation of all posts of Members, Income-tax Appellate Tribunals from Grade 20 to Grade 21---Petitioner holding post in question, was however, not upgraded to Grade 21---Entitlement to promotion whether justiciable in Constitutional jurisdiction---No appeal would lie to Service Tribunal against order or decision of departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher post or grade---Petitioner's suitability to hold post of Member, Income-tax Appellate Tribunal in Grade 21, was subject to adjudication, which would clearly fall outside mischief of Art. 212 of the Constitution as also proviso to SA(1), Service Tribunals Act, 1973-- Constitutional petition was thus, maintainable.
Dr. Muhammad Sarfraz Khan Rana v. Government of the Punjab and others PLD 1990 Lah. 88 and Amanat Ali v. Syed Panah Ali Shah P L D 1973 Lah. 332 ref.
(b) Income Tax Ordinance (XXXI of 1979)---
----S.133---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.6---Upgradation of post---Petitioner's entitlement and qualification to be inducted into upgraded post---Petitioner. was holding and performing functions of that post which was upgraded ---Up gradation of post in question was general and not restricted to individuals ---Up gradation of post in question was sanctioned with effect from that date, when incumbent holding post was inducted in upgraded post according to rules on the subject---No other embargo was imposed on incumbent for the reason that he was selected to hold same post by Public Service Commission as also performing the same functions---Qualifications prescribed for incumbents under 5.133, Income Tax Ordinance, 1979 as also, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, were applicable at that time---Subsequent amendment in the second proviso to sub-rule (1-A) of the said Rules in respect of qualifications of Member, Income-tax Appellate Tribunal (which post petitioner was holding), holding office as such immediately before specified date would be appointed to Grade 21, on recommendations of Selection Board, provided incumbent possessed qualifications prescribed in Schedule and had rendered at least five years' service as such, could not bypass relevant statutory provisions of Income Tax Ordinance, 1979---Petitioner was, thus, deemed to be entitled to hold post of Member, Income-tax Appellate Tribunal, with effect from specified date in Grade 21, with all benefits accruing there from.
Saleem Ch. for Petitioner.
Sh. Maqbool Ahmad, Standing Counsel for Respondents.
Date of hearing: 1st April, 1992.