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Petitioner: HAROON MUHAMMAD KHAN VS Respondent: RUKHSANA YASMEENHonorable Justice Anwar Zaheer JamaliAbdur Rahim Bhatti,Abdur Rehman Siddiqui
2014 P L C (C.S.) 665
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ
HAROON MUHAMMAD KHAN and others
Versus
RUKHSANA YASMEEN and others
Civil Appeals Nos.420 to 430 of 2012, decided on 18th February, 2013.
(On appeal from judgment of Federal Service Tribunal, Islamabad dated 2-12-2011 passed in Appeals Nos.1531(R)CS/2011, 1532(R)CS/2011, 1550(R)CS/2011, 1562(R)CS/2011, 1626(R)CS/2011, 1640(R)CS/2011 to 1642(R)CS/2011, 1658(R)CS/2011, 1807(R)CS/2011 and 312(P)/CS/2011.)
Civil Servants Act (LXXI of 1973)---
----Ss. 8 & 9---Civil Servants (Seniority) Rules, 1993, R.4 (b)---Service Tribunals Act (LXX of 1973), S.4 (1) proviso (b)---Tribunal Office Memorandum No.6/2/2009-CP-II, dated 12-9-2009 (O.M.), Establishment Division---Seniority list---Length of service---Creation of new group---Condemned unheard, principle of---Government created Inland Revenue Service by inducting officials by way of transfer from other service groups---Appellants were aggrieved of seniority list prepared in newly created service group and contended that seniority had not been fixed on the basis of length of service and they were condemned unheard---Appeal to Service Tribunal was dismissed and seniority list was maintained---Validity---Appellants were party to proceedings before Service Tribunal, notices were duly issued to them and there was strong presumption against appellants that they were well aware about such proceedings---Appellants were afforded full opportunity of hearing in appeals before Service Tribunal, wherein they had already agitated all their grievances, which had been discussed and were answered in judgment of Service Tribunal, therefore, due opportunity of hearing was provided to appellants before passing of judgment by Service Tribunal---Mere length of service was no criteria for determining seniority of a government servant---Promotion and seniority was not a vested right in line with the language of Ss.8 & 9 of Civil Servants Act, 1973, read with S.4(1) proviso (b) of Service Tribunals Act, 1973---Supreme Court declined to interfere in seniority list prepared by authorities and judgment passed by Service Tribunal---Appeal was dismissed in circumstances.
Muhammad Nadeem Arif v. Inspector-General of Police 2010 PLC (C.S.) 924 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 rel.
Abdur Rahim Bhatti, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 420 to 430 of 2012).
Appellant No.2 in person (in Civil Appeals Nos.420, 421 and 430 of 2012).
Abdur Rehman Siddiqui, Advocate Supreme Court for Respondent No. 1 (in Civil Appeals Nos. 421 to 423, 425 and 429 of 2012).
Athar Minallah, Advocate Supreme Court for Respondent No.1 (in Civil Appeals Nos.421, 422 and 427 of 2012).
Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Majid, Secretary, FBR for Respondent No.3 (in Civil Appeals Nos.420 to 429 of 2012) and for Respondent No.4 (in Civil Appeals Nos.425, 427 and 430 of 2012).
Nemo for other Respondents (in all cases).
Dates of hearing: 22nd, 23rd, 31st January and 1st February, 2013.
JUDGMENT
ANWAR ZAHEER JAMALI, J.---All the above titled civil appeals under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, with leave of the Court in terms of the order dated 27-3-2012, are directed against the common judgment dated 2-12-2011, passed by Federal Service Tribunal Islamabad ("Tribunal").
2. Earlier, the private respondents herein, through Service Appeal No.1531(R)CS/2011 and ten other connected appeals of similar nature, instituted before the Tribunal in the year 2011, had agitated their grievance regarding revised seniority list dated 2-6-2011 qua inter se seniority with the officers of the same grade from other Group after their appointment by way of transfer in the newly created Inland Revenue Service Group, established as per Office Memorandum No.6/2/2009-CP-II, dated 12-9-2009 (O.M.), which were decided/disposed of by the Tribunal in their favour in terms of paragraph 23 of the impugned judgment.
3. Since the controversy raised in these appeals mainly revolves around the terms of above referred O.M., and its interpretation/application, therefore, as a first step, before proceeding further it will be useful to reproduce the same as under:--
"Government of Pakistan Cabinet Secretariat Establishment Division
No.F.6/2/2009-CP-II Islamabad dated the 12th September, 2009
Office Memorandum
Subject:- TAX ADMINISTRATION REFORMS REORGANI-ZATION OF FEDERAL BOARD OF REVENUE - CREATION OF NEW OCCUPATIONAL SERVICE NAMELY INLAND REVENUE SERVICE.
In terms of S. No. 10.2.(i) of Schedule-II of Rules of Business, 1973 and in continuation of this Division's O.M. No.5/2/75-ARC dated 9-5-1975 and O.M. No.4/2/75-ARC dated 9-5-1975, the undersigned is directed to say that in view of the ongoing Tax Administration Reforms that include reorganization of Federal Board of Revenue, it has been decided to create a new Occupational Service namely Inland Revenue Service with immediate effect.
(2) All the business concerning Income Tax, Sales Tax and Federal Excise currently being done by the officers and staff of Income Tax and Customs and Excise Groups is transferred to the new Inland Revenue Service. Existing Customs and Excise Group will be renamed as Pakistan Customs Service.
(3) Federal Board of Revenue shall seek from each officer and staff of the existing Customs and Excise Group and Income Tax Group an irrevocable option for inclusion or otherwise into the new Inland Revenue Service. Such option once exercised shall be final. In order to facilitate the officers in this process, FBR shall apprise each officer (1) the number of posts which would form part of the new occupational service (2) upon option, the seniority in the new service shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time.
(4) Upon receipt of requisite options, Federal Board of Revenue shall proceed as under:---
(a) Scenario-I
In case, some officers from the Customs and Excise Group and some officers from the Income Tax Group opt for Inland Revenue Service, the shortage of the Inland Revenue Service shall be met by posting of officers of Customs Group and defunct Income Tax Group under section 10 of the Civil Servants Act, 1973.
Depending upon number of options to be exercised by the officers of Customs and Excise Group and Income Tax Group, the tentative cadre strength of new Inland Revenue Service and Pakistan Customs Service may be as under (i.e. equivalent to existing combined strength of the Income Tax and Customs and Excise Groups):-
New Inland Revenue Service
Functions Officers * Federal Excise 218 * Sales Tax * Income Tax 978 * Total 1196 * Pakistan Customs Service Functions Officers Customs 218
Upon completion of exercise of options, the exact cadre strength shall be finalized by the Establishment Division in consultation with Revenue Division.
(b) Scenario-II
In case all the officers of the Customs and Excise Group and Income Tax Group opt for new Service, the Service be renamed as "Pakistan Revenue Service" with common seniority and doing all the revenue and tax business. All officers would be part of one cadre.
The tentative cadre strength of new service may be as under (i.e. equivalent to existing combined strength of the Income Tax and Custom and Excise Groups):-
Functions Officers * Fed. Excise 218 * Sales Tax * Income Tax 978 * Customs 218 * Total 1414
Upon completion of exercise of options, the exact cadre strength shall be finalized by the Establishment Division in consultation with Revenue Division.
(5) In both the scenarios mentioned in para-4 above, the Income Tax Group officers not opting for the new service, will remain in the existing Income Tax Group which will be a defunct and dying cadre without any future intake.
(6) The inter se seniority of the officers of existing Income Tax and Customs and Excise Groups exercising options for inclusion in the new Pakistan Revenue Service or Inland Service, as the case may be, shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time.
(7) Other measures shall be taken as under:---
(a) All the existing posts currently forming part of Income Tax Group as well as those meant for federal excise business but currently forming part of Customs and Excise Group shall form part of the new Inland Revenue Service with immediate effect. The said posts will, however, be transferred to the new Service upon completion of exercise of option.
(b) Further recruitment to the existing Income Tax Group is stopped.
(c) Effective from 2009, fresh recruitment to the newly constituted Inland Revenue Service or Pakistan Revenue Service as the case may be, shall be initiated through Federal Public Service Commission.
(8) Establishment Division's O.M. No.5/2/75-ARC dated 9-5-1975 and O.M.No.4/2/75-ARC dated 9-5-1975 regarding constitution of existing Income Tax and Custom and Excise Groups shall be deemed to have been modified to the above extent. In case of inconsistency between the provisions of said O.M.s dated 9-5-1975 and this O.M., the provisions of this O.M. shall have the overriding effect.
(9) To overcome the difficulties and interpretation of the methodology an Anomaly Committee is constituted comprising Additional Secretary-II, Establishment Division, Chairman Federal Board of Revenue and Additional Secretary, Law and Justice Division whose interpretation shall be final subject to approval of Establishment Division.
(10) The Anomaly Committee and all others concerned shall ensure that the decisions contained in this O.M. do not create any administrative complications.
Sd/- (Munir Ahmed) Joint Secretary (CP-II)"
4. In the above background, other facts relevant for better understanding of the case of the present appellants relating to their seniority dispute with the officers of same grade appointed by way of transfer from other service group, in the Inland Revenue Service Group, are that in response to the voluntary option for joining the newly created Inland Revenue Service, in line with the O.M., about nine hundred and twenty officers from Grade 17 to Grade 21 from the Income Tax Group, and fifty seven officers of different grades from the Customs and Excise Group (renamed as Pakistan customs Service) had exercised their options for appointment in it through transfer. Upon their appointments in the Inland Revenue Service, provisional seniority list of officers was accordingly prepared on 10-11-2010, while final seniority list of these officers in Inland Revenue Service was prepared on 14-12-2010. The officers, including some of the appellants, aggrieved by this final seniority list made complaints/applications to the concerned quarters/establishment Division, which constituted a high-powered committee to entertain their objections and finalized the matter. The proceedings and recommendations of this High Powered Committee resulted in the preparation of revised seniority list dated 2-6-2011. This list was challenged by the private respondents, who were appointed in the Inland Revenue Service on transfer basis from the other group, before the Tribunal, inter alia, on the grounds that principles of natural justice were violated as no opportunity of hearing was afforded to them, the proceedings were without any statutory backing, arbitrary and suffered from many other legal infirmities. These appeals were heard and finally disposed of by the Tribunal in terms of paragraph 23 of the impugned judgment, which reads as follows:---
"(23) The upshot of findings above is:--
(i) that not only the misc. petitions filed by the appellants for stay order are decided, the appeals are also decided since all the questions/objections taken by the respective parties are resolved;
(ii) that no civil servant can claim seniority as of right under section 8 of the Civil Servants Act, 1973 nor can file appeal in the Federal Service Tribunal for promotion under proviso (b) to section 4(1) of the Service Tribunal Act, 1973;
(iii) that a civil servant can file an appeal in the FST that he be considered for seniority/promotion in accordance with rules/law.
(iv) That the appellants are justified in claiming that they are entitled to be considered for promotion/seniority on the basis of their present appointments;
(v) That the seniority list dated 2-6-2011 impugned in the present appeals, is not valid being against the rules and only provisional in nature whereas list dated 14-12-2010 is quite valid;
(vi) That rules are to be framed for seniority when the dates of promotion are the same, dates of birth are the same and even the qualifications are the same;
(vii) That applications for grant of stay order and applications for vacation of such orders are to be filed strictly in accordance with law;
(viii) That normally stay order cannot be issued without notice but there is no legal bar in that respect since FST has been established under Article 212 of the Constitution and its powers in that regard are 'co-extensive' in service matters with the powers of other constitutional courts;
(ix) That the Government/FBR is fully competent to decide this assertion of the appellants and respondents that some promotions have already been made in violation of seniority, rules and even the aggrieved parties can seek remedy in appropriate forum;
(x) that the stay order issued by the Tribunal shall not be operative against the appellants admittedly senior to the respondents and against the respondents admittedly senior to the appellants; and that the FBR/Government may make promotions on the principle of seniority discussed above and the embargo imposed by the FST in that regard is lifted."
5. To put it in few words, by this judgment the Tribunal rejected the revised seniority list dated 2-6-2011 and restored the earlier one dated 14-12-2010, with certain directions.
6. All the appellants before us, aggrieved by the above referred judgment of the Tribunal, have therefore, challenged it, inter alia, on the ground that the relevant provisions of Civil Servants (Seniority) Rules, 1993 ("the Rules of 1993") and Civil Servants Act, 1973 ("the Act of 1973") were not properly examined before being pressed into service, which resulted in great injustice with them and made them junior in the seniority list to many officers from the other occupational group, who had joined Government service in the subsequent years and were thus, much junior to them in length of service.
7. Before we proceed to record the arguments of the learned ASCs advanced before us, it will be advantageous to reproduce some relevant paragraphs of the impugned judgment, whereby the Tribunal addressed similar grievances of the appellants and repelled their claim and that of other officers of Income Tax Group of Grades-19 and 20 in similar position. The same read as under:--
"(8) The Federal Board of Revenue had laid down the rule governing the promotion of officers of both the cadres in its aforementioned Memorandum dated 12-9-2009. This rule is incorporated in paras 3 and 6 of the O.M. Both these paras are reproduced in verbatim:---
"3. Federal Board of Revenue shall seek from each officer and staff of the existing Customs and Excise Group and Income Tax Group an irrevocable option for inclusion or otherwise into the new Inland Revenue Service. Such option once exercised shall be final. In order to facilitate the officers in this process, FBR shall apprise each officer (1) the number of posts which would form part of the new occupational service (2) upon option, the seniority in the new service shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time."
"6. The inter se seniority of the officers of existing Income Tax and Customs and Excise Groups exercising options for inclusion in the new Pakistan Revenue Service or Inland Service, as the case may be, shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time."
(9) It shall be appreciated that the abovementioned rule is same as is incorporated in Civil Servants (Seniority) Rules, 1993. Rule-4 of the said Rules is also reproduced for the sake of convenience:--
"4. Seniority on appointment by transfer.--- Seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post:
Provided that
(a) xxx xxx xxx
(b) xxx xxx xxx
(Parenthesis is ours)
(10) It shall thus be seen that rule of promotion mentioned in the said Memorandum and rule-4 of 1993 Seniority Rules are the same. The dispute between the parties has to be decided on the basis of this rule and on no other rule.
(11) Mr. Saeed Ahmed Zaidi, Advocate and Mr. Asaf F. Vardag Advocates, counsel for the respondents, have argued that the paras mentioned in the O.M. dated 12-9-2009 cannot be treated as a rule governing the inter se seniority of the parties. Their submission is that Government is required to frame specific rules in that regard since Inland Revenue Service is a new service group. Their argument has not impressed us. The Inland Revenue Service Group comprises of the civil servants and for civil servants Seniority Rules have already been framed in 1993. The same rules shall apply to the parties also. The Government is not required to frame fresh rules in that regard. They are pleading rule of seniority on the basis of age and in the same breath they are taking a contradictory stand that rules of seniority for the new service are to be framed. This shows the fallacy of their argument.
(12) Even if this contention of Mr. Saeed Ahmed Zaidi, Advocate and Mr. Asaf F. Vardag Advocate that the induction of the parties in the new service group shall tantamount to initiate appointment is considered the respondents shall not get any benefit from it. In section 8(3) of Civil Servants Act, 1973 it is clearly stated that seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. In the O.M. dated 12-9-2009 the rule for fixation of seniority has been prescribed and the rule is that the parties who have entered into new service group are to be assigned seniority under the 1993 Seniority Rules. The paras mentioned in the O.M dated 12-9-2009 shall be treated as rules governing the seniority since they are verbatim reproduction of the Seniority Rules, 1993. They have to be applied in their letter and spirit as they fall within the ambit of section 8(13) ibid. But as observed above, the parties are governed by 1993 Seniority Rules as they continue to be civil servants.
(13) The aforementioned paras and rule 4 of the 1993 Rules provide for the methodology for determination of seniority in the new service on the basis of the dates of regular appointments of the parties in the grades in which they were working at the time of issuance of O.M. and not on the basis of their, dates of birth. The part of rule-4, underlined by us, is of prime importance. It clearly says that on transfer the seniority shall be reckoned from the date of regular appointment in service from which they are coming to new service.
(14) The appointments are made in Government service by transfer, by promotion or by direct recruitment. Whereas age factor may be relevant in cases of direct recruitment where the merit of the candidates is the same, it is not the criteria for determination of seniority of the officers, already in service, appointed to a certain grade by promotion. For example 'A' is an officer in BS-20 in Custom Service. He is 50 years of age and is promoted to that grade in 1996. He shall rank senior to 'B' an officer in Income Tax Service, promoted to BS-20 in 1997 even if he is 55 years of age and vice versa when both of them join the new service. Their seniority shall depend on the date of their promotion to BS-20 (or any other relevant grade) in their parent department.
(15) A situation may arise when officer are promoted from both services on the same date, have same dates of birth and same qualifications. To meet this situation no rules are available. The Establishment Division and the Federal Board of Revenue may look into this aspect of the case. However, this situation has not arisen in the present cases. As held above the inter se seniority of the appellants and the private respondents are to be fixed on the criteria laid down by rule 4 of the 1993 Seniority Rules and the abovementioned paras incorporated in the O.M.
(16) In this context we may also refer to proviso (b) to rule-4 of 1993 Rules which reads:--
"(b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the persons older in age shall rank senior."
Thus this proviso says that inter se seniority of members of two services is to be determined from the dates of their present appointment and not on any other criteria. Age will be relevant only when the promotion date/appointment date of the officers from different services is the same and qualifications are also the same. This principle is not attracted in this case as neither party has maintained before us that dates of promotion of some of the appellants and some of the respondents were the same.
(17) We find force in the contention of the appellants that their seniority is to be reckoned from the dates they were appointed in the posts at time the time they were taken in the new service. We also find that the list prepared on 14-12-2010 was based on this principle. Hence, it was valid. The impugned list was not valid, especially when it was only provisional. We are of the view that the official respondents could not make promotions on the basis of provisional seniority list. Such a list has no legal status.
(18) Promotion and seniority are definitely not vested rights. Sections 8 and 9 of the Civil Servants Act, 1973 read together with section 4(1) proviso (b) of the Service Tribunals Act, 1973 are very clear on that. However, to be considered for promotion and seniority is a vested right. A civil servant may not be able to file an appeal to get seniority or promotion but he can definitely file an appeal to get meaningful consideration for his seniority/ promotion. In the present case the appellants could not claim safeguard of their right to seniority and promotion. However, they could definitely make a prayer that they should have been considered correctly for their seniority/promotion."
It was on the basis of above discussion that the impugned judgment was passed in terms of paragraph No.23 (ibid).
8. Mr. Abdur Rahim Bhatti, learned Advocate Supreme Court for the appellants in these appeals argued with vehemence that as the appellants are from the earlier occupational group who had cleared the selection process through Federal Public Service Commission ("the Commission") in the year 1982 and accordingly joined their service in the Income Tax Group, Government of Pakistan, by no stretch of imagination, after their induction in Inland Revenue Service on transfer basis, they can be made junior to those officers who had joined Inland Revenue Service from the other occupational group and belong to the junior batches of occupational group for the subsequent years. In this regard, he made specific reference to paragraph No.5 of the O.M. reproduced above to show that joining of Inland Revenue Service by the Income Tax Group Officers in huge numbers was not a voluntarily and free exercise of discretion by them but due to the harsh language of this paragraph, as it was made abundantly clear to them that those who remained in the existing Income Tax Group, in other words, refused to exercise their option in the affirmation, will be retained in the Income Tax Group which will be a defunct and dying cadre without any future intake. He further argued that the very basis of the Tribunal's judgment regarding inter se seniority of the officials of two groups i.e. Income Tax Group and Customs and Excise Group, who had opted to join the Inland Revenue Service is unfounded as the Rules of 1993 were specifically excluded from its application in the case of occupational…
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