Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ASJAD MAHMOOD VS Respondent: FEDERATION OF PAKISTAN
2002 P L C (C
2002 P L C (C.S.) 1161
[Lahore High Court]
Before Muhammad Nawaz Abbasi, J
ASJAD MAHMOOD
Versus
FEDERATION OF PAKISTAN through Ministry of Finance, Islamabad and 2 others
Writ Petition No. 3560 of 2001, heard on 1st January, 2002.
‑‑‑‑S. 10‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Transfer and posting of civil servant‑‑‑Matter relating to terms and conditions of service‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Member of Civil Service of Pakistan can be posted and transferred anywhere throughout Pakistan as provided under S.10 of the Civil Servants Act, 1973 read with rules on the subject‑‑‑Civil servant being aggrieved of his transfer or posting can invoke the jurisdiction of Service Tribunal under S.4 of the Civil Servants Act, 1973 within the meaning of Art.212 of the Constitution.
(b) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S. 10‑‑‑Civil Servants (Confirmation) Rules, 1993, Rr.2(b) & 6‑‑ Transfer and posting of civil servant‑‑‑Retaining of lien by civil servant‑‑ Scope‑‑‑Civil servant is supposed to serve anywhere inside or outside Pakistan under the provisions of S. f0 of the Civil Servant Act, 1973, unless he is appointed for a particular area/region‑‑‑If a civil servant is required to serve in a post outside his post and cadre, the terms and conditions of his service cannot be less favour-able to which, he has been entitled in his post‑‑ Civil servant is provided protection under S.10 of the Civil Servant Act, 1973, in respect of his terms and conditions of service unless he is out of his cadre or post either on deputation or on transfer‑‑‑If civil servant is transferred from one post to another post within the department or on deputation to another department, he is on temporary transfer and cannot claim any right to serve either at a particular place or against a particular post‑‑‑Provision of SAO of Civil Servants Act, 1973, is not only confined to the extent of temporary transfer of a civil servant from one post to another post or one cadre to another cadre but it also embodies the concept of permanent transfer from one post or cadre to another post or cadre and one group to another group in the Civil Service of Pakistan, subject to certain conditions‑‑‑Civil servant on such transfer retains lien on his previous post for some time.
(c) Service Tribunals Act (LXXI of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Civil Service Act (LXX of 1973), Chap. II [Ss.3 to 22]‑‑ Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑ Controversy was whether the civil servant was a member of Office Management Group or he was permanent member of Income Tax Group‑‑ Jurisdiction of High Court‑‑‑Contention of the authorities was that as the controversy related to terms and conditions of service, therefore, High Court could not entertain the petition under Art.199 of the Constitution‑‑ Validity‑‑‑Controversy did not relate to terms and conditions of service of civil Servant as envisaged under Chap. 2‑of the Civil Servants Act, 1973, therefore, remedy of appeal under S.4 of the Service Tribunals Act, 1973 before the Service Tribunal would not be available to the civil servant and consequently the bar of jurisdiction under Art. 212 of the Constitution would not restrain the High Court from exercising jurisdiction under Art. 199 of the Constitution in the matter‑‑‑Such dispute would neither fall within the ambit of Chap. 2 of Civil Servants Act, 1973, nor appeal under S. 4 of the Service Tribunals Act, 1973, was provided in such matter, as the present case would not fall within the category of those cases, which related to the terms and conditions of the service of civil servant to be adjudicated exclusively by the Service Tribunal established under the Service Tribunals Act, 1973 and consequently, High Court could competently exercise the power of judicial review available to it under Art. 199 of the Constitution to undo the injustice being done to a civil servant‑‑‑Constitutional petition was maintainable in circumstances.
Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 21295; Messers Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another (PLC 2001 Karachi (C.S.) 907) and Dr. Nighat Bilal v. Secretary, Ministry of Health and others ICA No.79 of 1997 ref.
(d) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Controversy was whether the civil servant was a member of Office Management Group or he Was permanent member of Income Tax Group‑‑‑Assuming of jurisdiction wrongly by Service Tribunal‑‑‑Contention of the authorities was that the Service Tribunal had entertained appeal of 'some other civil servants in a similar matter hence the jurisdiction of High Court under Art. 199 of the Constitution was barred in the present case‑‑ Validity‑‑‑Where Service Tribunal had no jurisdiction over the matter entertaining of appeal in such matter would neither take away the jurisdiction of High Court nor would create a right of appeal in favour of a civil servant under S.4 of the Service Tribunals Act, 1973‑‑‑Disposal of appeal by Service Tribunal on merits, would not effect the jurisdiction of High Court‑‑‑Petition was thus maintainable.
(e) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S. 10‑‑‑Civil Servants (Confirmation) Rules, ,1993, Rr.2(b) & 6‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Transfer and posting of civil servant from one department to other department‑‑ Repatriation of the civil servant to the previous department on the allegation of irregularities‑‑‑Retaining of lien by civil servant‑‑‑Civil servant after appointment was posted and confirmed in Office Management Group later on the civil servant was transferred to Income Tax Department vide notification issued by Establishment Division‑‑‑Due to certain departmental inquiry, the Central Board of Revenue desired repatriation of the civil servant to the Office Management Group and Notification in that respect was issued by Establishment Division‑‑‑Validity‑‑‑Civil servant with the understanding of ultimate induction in Income Tax Group, through the process of selection for transfer of his service to the said group on regular basis, had a legitimate expectancy of induction and. therefore, notwithstanding the formal order of his repatriation to Office Management Group, the civil servant would be deemed to have severed his connection with Office Management Group and was permanent member of Income Tax Group after lapse of period of five years‑‑‑Although appeal against order passed by a departmental authority in relation to the terms and conditions of service would lie under S.4 of the Service Tribunals Act. 1973, yet under SA(b) of the Service Tribunals Act, 1973, the review or appeal was specifically debarred in a case, which related to the question of determination of fitness or otherwise of a person to hold a particular post of grade and thus, the matter would not fall within the jurisdiction of the Service Tribunal‑‑‑Competent Authority in the present case after having assented to transfer and induction of the civil servant in Income Tax Department through the process of selection by a committee would not be in a position to retrace its steps and undo the act of induction of the civil servant in Income Tax Group‑‑‑Civil servant was a member of civil service of Pakistan and was qualified to be inducted in any group subject to the rules of allocation, therefore, there would be no bar for the Government in case of necessity to transfer the service of a person from one group to another group‑‑‑Where the service of the civil servant was transferred under the necessity, on the fulfillment of requisite conditions, the civil servant would be deemed to be member of Income Tax Group without any formal order to be passed by the competent Authority‑‑‑Civil servant for all intents and purpose was a permanent member of Income Tax Group and could not be repatriated to the Office Management Group‑‑‑Notification of repatriation of the civil servant issued by the Establishment Division was illegal and of no consequence‑‑‑Constitutional petition was allowed in circumstances.
Dr. M. Aslam Khaki and Mir Ahmad Ali for Appellant.
Nasir Saeed Shaikh and Qazi Ahmad Naeem Qureshi for Respondents.
Date of hearing: 1st January, 2002.
JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 involves a dispute relating to the status of the petitioner in occupational group of Civil Service of Pakistan. The petitioner having successfully passed C. S. S. examination was selected for appointment as member of Civil Service of Pakistan and on allocation of Office Management Group was posted and confirmed in the said group in the year 1989. In the year 1994, the Central Board of Revenue being in need of trained officers desired for the engagement of services of officer equivalent to the post of Income Tax Officer from other groups and in consequence thereto in consultation with Establishment Division selected officers from different occupational groups of Civil Service of Pakistan for Income Tax Department. The selection committee comprising Member (Admin) and (TP) and a Joint Secretary (E), Establishment Division having completed the process of selection recommended names of 73 officers of different occupational groups for transfer of their services to Income Tax Department under section 10 of Civil Servant Act, 1973. The selection made by the committee was approved by Chairman, Central Board of Revenue and Secretary Establishment Division on the conditions contained in para. 2 of the minutes of the meeting held on 19‑2‑1994 as under: ‑‑
"(i) Undergo intensive profession training at the Directorate of Training (Income Tax), Lahore for a period of four to six months.
(ii) have to pass the departmental examination within 2 years after completing the said training; and
(iii) continue to have lien with their parent department for a maximum period of five years.
(3) The officers taken on transfer to the Income Tax Group shall rank at the lowest rung of the officers of Income Tax Group in (BPS‑17) as on their dates of joining but their inter se seniority amongst their own cadre/Group Officers, shall continue as in accordance with the original seniority in their parent departments.
(4) 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 fixed as in para.3 hereinabove, at any judicial or administrative forum."
The Establishment Division vide letter dated 24‑4‑1994 approved the recommendations made by the above said committee and in pursuance thereto issued a notification dated 27‑4‑1994 which is read as under:‑‑
"The services of the following officers in BPS‑17 belonging to the Occupational Groups mentioned against their names are placed at the disposal of Revenue Division/C.B.R. for their posting under section 10 of the Civil Servants Act, 1973 with immediate effect and until further orders:
S. Nos.
Name of Officers
Occupational group
1.
Mr. Arshad Ali Khan
Postal Group
2.
Mr. Muhammad Yousaf Afridi
‑do -
3.
Mr. Hassan Akhtar
‑do -
4.
Mr. Khawaja Imran Raza
‑do -
5.
Mr. Khalid Khan Niazi
‑do -
6.
Mr. Asjad Mehmood
Office Management Group
7.
Mr. Tahir Siddiq
-do -
8.
Dr. M. Hashim Popalzai
‑do -
9.
Mr. Abdul Shakoor Abro
‑do -
10.
Mr. Niaz A. Sheikh
Accounts Group
11.
Mr. Sharnsuddin Qazi
‑do -
12.
Miss. Ambreen Jan
Information Group
13.
Mr. Qamar Bashir
‑do -
14.
Miss Sarnia Ali
‑do -
15.
Mr. Muhammad Tahir Hassan
‑do‑
16.
Mr. Khalid H. Memon
Foreign Service Group.
The Central Board of Revenue further in pursuance of the above referred notification of the Establishment Division vide notification dated 2‑5‑1994 posted the petitioner and other selectees as Assistant Commissioner of Income‑tax under training. The notification dated 2‑5‑1994 of Central Board of Revenue is as under: ‑‑
No.107‑ITC/94.‑‑In pursuance of Establishment Division Notification No.1/43/94‑E.4, dated 27‑4‑1994, the following B‑17 officers of various occupational groups, whose services have been placed at the disposal of the Revenue Division/Central Board of Revenue under section 10 of the Civil Servants Act, 1973, are posted as Assistant Commissioner of .Income‑tax, (under training) in the Directorate of Training (Income Tax), Lahore with immediate effect:‑‑
S. Nos.
Name of Officers
Occupational group
1.
Mr. Arshad Ali Khan
Postal Group
2.
Mr. Muhammad Yousaf Afridi
‑do -
3.
Mr. Hassan Akhtar
‑do -
4.
Mr. Khawaja Imran Raza
‑do -
5.
Mr. Khalid Khan Niazi
‑do -
6.
Mr. Asjad Mehmood
Office Management Group
7.
Mr. Tahir Siddiq
-do -
8.
Dr. M. Hashim Popalzai
‑do -
9.
Mr. Abdul Shakoor Abro
‑do -
10.
Mr. Niaz A. Sheikh
Accounts Group
11.
Mr. Sharnsuddin Qazi
‑do -
12.
Miss. Ambreen Jan
Information Group
13.
Mr. Qamar Bashir
‑do -
14.
Miss Sarnia Ali
‑do -
15.
Mr. Muhammad Tahir Hassan
‑do‑
16.
Mr. Khalid H. Memon
Foreign Service Group.
The services of the selectees including the present petitioner were transferred under section 10 of Civil Servants Act, 1973 on completion, of specialized training and were placed at the disposal of the Regional Commissioner of Income Tax vide notification dated 21‑9‑1994. This notification is reproduced as under:‑‑
No.248‑ITE/94. On completion of their Specialized Training at the Directorate of Training (Income Tax), Lahore, the services of the following Assistant Commissioner of Income Tax (BS‑17), transferred to Central Board of Revenue under section 10 of the Civil Servants Act. 1973, are placed at the disposal of Regional Commissioners of Income Tax, as mentioned below, with immediate effect and until further orders: ‑‑
Regional Commissioner Of Income Tax Southern Region Karachi:‑‑
1. Syed Masud Abbas Rizvi.
2. Mr. Niaz A. Sheikh.
3. Mr. Shamasuddin Qazi
4. Mr. Mujeeb Ahmed Khan.
5. Mr. Abdul Majeed Yousafani
6. Mr. Abu Bakar Bullo
7. Dr. Shah Zaman Abbasi.
8. Mr. S. Jaffer Raza Kazimi
9. Mr. Arsalan Haneef.
10. Miss. Amna Baloch.
11. Mr. Abdul Jabbar Memon
12. Mr Khalid H.Memon
13. Mr. Qamar Bashir.
14. Mr. Hassan Ali Khan Leghari Baloch.
15. Mr. Asad Rafi Chandna
16. Miss. Shazia Azhar Siddiqui.
17. Mr. Muhammad Ramzan Awan.
18. Mr. Abdul shakoor Abro.
19. Mr. Iqbal Hussian Shaikh,
20. Dr. S. Naveed ul Hassan.
21. Mr. Tahir Siddique Bhatti`
22. Mr. G. Hassan Baig.
23. Mian Sheraz Ali .
24. Mr. Azhar lqbal.
25. Mr. Muhammad Anwar
26. Ch. Mubarrak Ali.
27. Mr. Muhammad Salman
28. Mr. Zafar Zaman Ranjah
29. Mr. Abdul Latif.
30. Mr. Muhammad Ashraf Ali,
31. Mr. Abdul Hameed Anjum Arayn
Regional Commissioner of Income Tax, Central Region, Lahore: ----
1. Miss. Raheela Tajwar
2. Mr. Jamshed Fakhri Dahir
3. Mr. Yousuf Junaid
4. Mr. Rashid Ahmad
5. Syeda Naureen Zohra.
6. Mr. Ahmed Hasnain Haider Kureshi
7. Miss. Ambreen Jan.
8. Mr. Waqar Ali Khetran,
9. Mr. Aamir Mahmud Hussain
10. Mr. Muhammad Irfan Raza
11. Dr. M. Hashim popalzai
12. Mrs. Ghazala Imtiaz
13. Mr. Muhammad Imran Mirza
14. Mr. Muhammad Shahzad Zaheer
15. Mr. Muhammad Irfan Tarar
Regional Commissioner of Income Tax, Northern Region, Islamabad.
1. Mr. Shahzad Hassan
2. Mr. Maqbool Ahmad Gondal
3. Mrs. Ghazala Shoukat Randhawa
4. Hafiz Shahid Abbas
5. Mr. Irfan Aziz.
6. Mr. Muhammad Tahir Hassan
7. Sahibzada Siar Ahmed
8. Mr. Abdul Malik
9. Mr. Muhammad Tariq,
10. Miss. Tajamal Silquis
11. Mr. Muhammad Musa.
12. Miss. Saima Ali.
13. Mr. Zeenat Hussain Bangash.
14. Mr. Muhammad Yousaf Afridi.
15. Mr. Hassan Akhtar.
16. Mr. Khalid Khan Nizai.
17. Mr. Saleem Akhtar.
18. Khawaja Imran Raza.
19. Mr. Pervaiz Ahmed Jenejo.
20. Dr. Muhammad Asad Riaz.
21. Mr. Muhammad Zulfiqar Khan Nizai.
22. Mr. Naufil Naseer.
23. Mr. Arshad Ali Khan.
24. Mr. Sohail Ali Khan.
25. Mr. Zakir Hussain Khan.
26. Mr. Muhammad Arshad Mirza.
27. Mr. Asjad Mehmood.
The board in council of Central Board of Revenue in the meeting held on 26‑7‑2000 considering the matter relating to the induction of the Officers of other occupational groups BPS‑17 in Income Tax Department and made recommendations in the minutes of the meeting at Serial No.3 as under ‑‑-
"(3)(1). Induction of officers of other occupational Groups (BS‑17) in the Income Tax Department.
The Board was informed that in 1994, 72 Officers of different Occupational Groups were sent on deputation to the Income Tax Department under section 10 of the Civil Servants Act, 1973. After short training these officers were posted in different Regions of Income‑tax where they are posted ever-since. Some of the officers have been repatriated to their parent Groups and now about 47 officers are left working. They have served for more than 5 years in the Income Tax Department.
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. As to the seniority vis a vis the other colleagues, the matter may be referred to the Establishment Division for their advice and appropriate decision in the matter."
While the petitioner was serving in Income Tax Department its Assistant Commissioner, a departmental inquiry against him relating to the procedural irregularities was initiated. The Commissioner of Income Tax was appointed as Inquiry Officer of the petitioner and pending finalization of the inquiry in question the Central Board of Revenue desired the repatriation of the petitioner to the Office Management Group on the ground of irregularities for which, he was charge‑sheeted. Having considered the explanation of the petitioner to the charges in the light of the record, the Inquiry Officer recommended the penalty of sensure and the Secretary. Establishment being the competent Authority after providing personal hearing to the petitioner exonerated him from the charge vide order dated 20‑10‑2001 in the following manner:‑‑
"No.4/7/2001‑D.1: Consequent upon finalization of disciplinary proceedings initiated vide "Charge Sheet/Statement of Allegations" of even number dated 8‑1‑2001 under Removal from Service (Special Powers) Ordinance, 2000, Mr. Asjad Mahmood (OMG/BS‑17) Assistant Commissioner of Income Tax under section 10 of Civil Servants Act, 1973 is hereby exonerated from the charges/allegations levelled against hint."
Mr. Asjad Mahmood is however, warned be remain careful lit future.
Subsequent to the exoneration of the petitioner from the charges in question. Secretary Establishment Division vide notification dated 30‑11‑2001 directed the repatriation of the petitioner to the Establishment Division. The notification was issued in the following terms: ‑‑
"Mr. Asjad Mehmood. a BS‑17 Officer of Office Management Group, presently posted as Assistant Commissioner of Income Tax under section 10 of the Civil Servants Act. 1973 under the Central Board of Revenue is repatriated to Establishment Division with immediate effect."
The petitioner being aggrieved of his repatriation from Income Tax Group to the Office Management Group has filed this petition seeking a declaration that he was a permanent member of Income Tax Group and his repatriation to the Office Management Group was not legal and in consequence thereto, the notification dated 30‑9‑2001 relating to his repatriation was issued without lawful authority and was of no consequence. This petitioner was admitted to regular hearing to consider the question whether the petitioner was permanently inducted in Income Tax Group or he would be deemed to be on deputation with Income Tax Group on transfer under section IO of Civil Servants Act, 1973.
The Central Board of Revenue (respondent No.2 herein) has filed written reply to this petition in the form of para-wise comments. However, the Establishment Division has not tiled separate comments or reply to this petition and learned Federal counsel stated that the comments tiled on behalf of Central Board of Revenue would need no addition and shall sufficiently serve the purpose on behalf of all respondents. Section 10 of the Civil Servants Act, 1973 under which, the services of the petitioner from OMG Group to Income Tax Group were transferred is read as under:‑‑
"Section 10. Posting and transfer.‑‑-- Even civil servant shall be liable to serve anywhere or outside Pakistan, in any (equivalent) post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government:
Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region:
Provided further that, where a civil servant is required to serve in a post outside his service or cadre his terms and conditions of service as to his pay shall not be less fovour-able than those to which he would have been entitled it he had not been so required to serve.
The learned counsel for the petitioner has contended that as per conditions contained in the letter dated 19‑2‑1994 of the Government of Pakistan. Central Board of Revenue, the petitioner having undergone, specialized training required for income talc group in the relevant Directorate of Training (Income Tax), Lahore, was posted as Assistant Commissioner of Income Tax and upon fulfilling the requisite conditions of continuous service of five years in Income Tax Group would deem to have severed connection with OMG Group and would be permanently absorbed in Income Tax Group subject to the acceptance of remaining conditions contained therein. The learned counsel has submitted that even if the Establishment Division has not formally terminated the lien of the petitioner, in OMG, the petitioner would deem to be no more member of service of Office Management Group and in the light of the principle of locus poenitentiae, the Establishment Division
could not retrace its steps for repatriation of the petitioner to the Office Management Group. The learned counsel for the petitioner has added that the petitioner being member of Civil Service of Pakistan would need no other training for induction in Income Tax Group except the allocation by the Federal Public Service Commission and specialized training at departmental level and that petitioner was selectee of Public Service Commission in C. S. S. Examination and also undergone the specialized training for Income Tax Department, under the scheme of transfer of service on the basis of conditions contained in the letter dated 19‑2‑1994, the petitioner having undergone the specialized training as an officer of Income Tax Group served there for a period of about 7 years and would deemed to be the permanent member of Income Tax Occupational Group, therefore, his repatriation to the Office Management Group was illegal. The learned counsel with reference to the letter dated 19‑12‑2000 issued by the Central Board of Revenue contended that in similar situation the case of Muhammad Ramzan Awan, an officer of OMG group was under consideration for permanent induction in Income Tax Group for which the consent of the officer was also sought, whereas the petitioner while accepting the conditions contained in the letter dated 19‑2‑1994 already accepted such an offer. The learned counsel concluded that the concept of induction of a number of one occupational group to another occupational group was not foreign to the Civil Service of Pakistan.
The learned counsel representing the Central Board of Revenue and learned Federal counsel on the other hand, contended that the matter in issue related directly to the terms and conditions of service of petitioner as civil servant, therefore, this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 due to bar contained in Article 212 of the Constitution of the Islamic Republic of .Pakistan. 1973 is not maintainable before this…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.