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Petitioner: IQBAL HUSSAIN SHEIKH and 2 others VS Respondent: CHAIRMAN, FEDERAL BOARD OF JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Muhammad Ather Saeed Title:IQBAL HUSSAIN SHEIKH and 2 others vs CHAIRMAN, FEDERAL BOARD OF
JUDGMENT
Reported As: 2013 SCMR 281 Result: Appeals allowed Judgment JUDGMENT ' MUHAMMAD ATHER SAEED, J.---These Civil Appeals are arising from the Civil Petitions for Leave to Appeal filed by the present appellants against the common judgment of the Federal Service Tribunal, Islamabad dated 1-2-2011 in Appeals Nos,153 to 155(K)CS of 2010 whereby the appeals filed by the present appellants against the Notification dated 11-8-2010 through which their seniority has been effected and against which their departmental appeal was rejected, were dismissed by the Federal Service Tribunal by the impugned judgment. 2. Leave to appeal was granted by this Court by the following order dated 29-9-2011:-- "Anwar Zeheer Jamali, J.---Mr. Rasheed A. Razvi, learned Advocate Supreme Court for the petitioners, inter alia, contends that in the impugned judgment, earlier decision in the case of petitioners i,e, the case of Abdul Hameed Anjum v. Federation of Pakistan (PLD 2010 SC 857) was misapplied for the purpose of deciding the issue of their seniority, as that judgment had only decided the issue of their absorption in the Income Tax Group. He further contends that as far as seniority of the petitioners in the Income Tax Group is concerned that was to be reckoned from the date of their transfer in the said department in the year 1994, as held in the case of Din Muhammad v. Director-General, Pakistan Post Office (2003 SCM R 333). 2. Contention raised needs consideration. Leave to appeal is accordingly granted." 3. Brief facts of the case are that the appellant in Civil Appeal No,189-K of 2011 qualified for CSS examination in the year 1985 and was allocated the postal group and joined Civil Services Academy Walton, Lahore for 14th CTP (Common Training Program) in the month of November, 1986.
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Appellant in Civil Appeal No,190-K of 2011 qualified SCC Examination in the year 1989 and was allocated the postal group and joined 18th CTP in the month of December, 1990 and appellant Abdul Hameed Anjum in Civil Appeal No,1991 qualified CSS Examination in the year 1990 and joined 19th STP in the month of December, 1990. 4. Further facts of the case as highlighted in the judgment of this Court in the case of same appellants titled Abdul Hameed Anjum v. Federation of Pakistan are reproduced from the judgment reported as PLD 2010. SC 857. "(9) 'In 1993 Central Board of Revenue (CBR) respondent No,2 declared 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-D2 (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 were 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's 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. (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.
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(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(I)/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 considering, 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 shoes 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 officers may be placed at the bottom of batch of inductees according to their year of appointment" (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 that 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." 5. Since the terms of Notification were not complied by the Federal Board of Revenue the present appellants filed constitutional petitions in Sindh High Court on 15-1-2002 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.)
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(b) Direct the respondent No,2 to issue notification(s) of induction of the petitioners in the Income Tax Department of the respondent 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. 6. This :petition was dismissed as not maintainable because according to the learned Sindh High Court it dealt with the terms of service of the appellants and was barred under Article 212 of the Constitution. Being aggrieved by the judgment of the learned High Court the appellants filed Petition for Leave to Appeal before this Court which was disposed of by the judgment in the case of Abdul Hameed Anjum (quoted supra) in the following manner:- "Accordingly; (i) This appeal is accepted on behalf of appellants Nos,.1, 2, 3 and 6; the appeal on behalf of other appellants is dismissed as not pressed. (ii) Appellants Nos,1, 2, 3 and 6 are declared to have been inducted w,e,f, 1-1-2001 in the Income Tax Group of CBR pursuant to the acceptance of offers by them under CBR's decision dated 21-7-2000; The appellants Nos,1, 2, 3 and 6 are also declared to, have been accordingly absorbed in the Income Tax Group. (iii) Establishment Division O.M. Dated 25-1-2001 is declared to have been issued without any lawful authority hence of no legal effect. (iv) For the purpose of record and for all. Other requirements, respondents shall issue necessary notifications, orders or memos in terms of the declaration above granted to appellants Nos,1, 2, 3 and 6. (v) Costs throughout shall be paid by the respondents to appellants Nos,1, 2, 3 and 6. 7. That after the judgment of this Court, the seniority of the appellant was fixed by FBR vide Notification dated 11-8-2010 without quoting any rules thereof, in terms whereof the appellant's absorption was to be reckoned from 1-1-2001 and thus their seniority was to follow from such date. Being aggrieved by the wrong fixing of their seniority the appellants preferred departmental representation dated 8-9:2010 which was summarily rejected on 8-10-2010 against which the appellants filed Service Appeal No,153 of 2010 before Federal Service Tribunal Karachi which was dismissed by the impugned order in the following manner:-- "(13) We are of the view that the judgment of apex Court had settled this issue on all account The judgment, inter alia, states; "(ii) Appellants Nos, 1, 2, 3 and 6 are declared to have been inducted w,e,f, 1-1-2001 in the Income Tax Group of CBR pursuant to the acceptance of offers by them under CBR's decision dated 21-7- 2000; The appellants Nos,1, 2, 3 and 6 are also declared to have been according absorbed in the Income Tax Group" ' The orders of the. Supreme Court, supra, clearly point out that the induction is pursuant to acceptance of offers by the appellants under CBR's decision dated 21-7-2000 and they are accordingly absorbed. This decision was conveyed through CBR's Letter No,17(2)/93-AIT. II which specifically lays down that the seniority of the inductees i,e, the appellants, in the Income Tax Group will be determined in terms of Rule 4 of Civil Servant (Seniority) Rules, 1993. 8. We have heard Mr. Rasheed A. Razvi learned Advocate Supreme Court for the appellants and Mr. Akhtar Ali Mahmood learned Advocate Supreme Court for the respondent No,l. 9. After narrating the facts of the case the learned Advocate Supreme Court for the appellants argued that the Tribunal has erred in holding that the matter of seniority had already been decided by this Court in its earlier judgment in the case of Abdul Hameed Anjum quoted supra and dismissed the case for that reason. He read out the prayers made in the earlier appeal and also
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the gist of the earlier judgment to point out that neither it was prayed in that appeal to determine the date from which the seniority of the appellant was to be reckoned nor did this Court in its judgment made any reference to the date from which the seniority of the appellants was to be reckoned. He submitted that the Tribunal erred in holding that the date of absorption was to be considered as the date from which seniority has to be reckoned and according to the Tribunal that had already been decided by the Court. He further submitted that the date of absorption and the date from which the seniority has to be reckoned are not necessarily the same date and its not a must that seniority should be determined from the date of absorption/induction in that particular department but can be reckoned from the earlier date when for all practical purposes the officer had been transferred and had started serving in the said department. In this connection he relied on the judgment of this Court in the case of DIN MUHAMMAD v. DIRECTOR-GENERAL, PAKISTAN POST OFFICE, ISLAMABAD and 20 others (2003 SCM R 333) and submitted that in this judgment, this Court has held that the seniority of the appellant in the department would be reckoned form the date of his transfer and not from the date of issue of order of absorption. He has also relied on a judgment of this Court in the case of MUHAMMAD ARSHAD SULTAN, SECTION OFFICER, CABINET DIVISION, ISLAMABAD and another v. PRIME MINISTER OF 'PAKISTAN ISLAMABAD and others (PLD 1996 SC 771) wherein this Court has held that the seniority has to be determined in relation to others in accordance with paragraph 6 of the instructions appearing at page 335 of the ESTACODE (Edition 1989) at serial No,30. His next reliance was on the judgment of this Court in the case of Mehr SHER MUHAMMAD v. FEDERATION OF PAKISTAN (1999 SCM R 185) wherein this Court held that the appellants in that case Will become entitled for adjustment of seniority from the date when they actually joined Federal Secretariat in OMG after transfer on deputation. The next case relied on by the learned Advocate Supreme Court was the case of FEDERATION OF PAKISTAN v RAIS KHAN (1993 SCMR 609). He also relied on the judgment of this Court in the case of MUHAMMAD ZAFAR KHAN v. SECRETARY ESTABLISHMENT DIVISION, ISLAMABAD and 155 others (1995 SCM R 1840) in which this Court held that the appellant was entitled to. Seniority from the date he joined the Federal Secretariat as Section Officer on deputation. He next quoted para 6 serial No,33 of Chapter 3 (TRANSFERS, POSTINGS and DEPUTATIONS) of ESTACODE and argued that he fell under clause (a) of this para which provides that when it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office fcom the date of his transfer to that office. On the basis of the above arguments the learned Advocate Supreme Court argued that the appellants' transfer to Income Tax Group was in March, 1994 and therefore prayed that their seniority should be reckoned from March, 1994 and not from the date of induction i:e. 1-1-2001 as denied by the FBR. 10. Mr. Akhtar Ali Mahmood learned Advocate Supreme Court for respondent No,1 strongly opposed the arguments of learned Advocate Supreme Court for the appellants and supported the impugned judgment. He argued that the Tribunal has rightly held that the matter of seniority stood finally decided by the judgment of this Court in the appellants own case i,e, Abdul Hameen Anjum quoted supra wherein this Court had fixed the date of absorption in the Income Tax Department w,e,f, 1-1-2001 and no question remains as to from which date the seniority of the appellant would be reckoned. He therefore argued that this appeal against the impugned judgment of the Tribunal is misconceived and should be dismissed. He referred to the following Paragraphs from the minutes of the meeting of the Board of Council of CBR. "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."
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11. He argued that the matter was accordingly referred to the Establishment Division and the Establishment Division in this respect informed the CBR that antedate seniority cannot be given to the appellant. He further argued that offer of induction in the Income Tax Group to the appellant was made vide letter No,17(2)/93-AIT. II dated 19th December, 2000 which was accepted by the appellants vide various letters dated last week of December, 2000. He argued that the acceptance of the letter of CBR was made in toto without any condition. And it was provided in the letter that once officers are inducted in the Income Tax Group against BS-17 posts they will not contest the seniority matters before any judicial forums. He therefore argued that the appellants on the basis of their conduct were barred from filing any appeal or Petition for Leave to Appeal on the issue of their seniority and therefore these appeals have to be dismissed. He also referred to Serial Nos,147, Rule 4 of the ESTACODE and rules 6 and 37 and also section 8, Rule 4 of Civil Seniority Rules, 1993 in support of his contention that since the appellants were transferred on deputation they continued to be on deputation under these rules. In support of his contentions he relied on MUHAMMAD ARSHAD SULTAN, SECTION OFFICER, CABINET DIVISION, ISLAMABAD and another v. PRIME MINISTER OF PAKISTAN, ISLAMABAD and others (PLD 1996 SC 771). He also argued that if the appellants are allowed seniority from March, 1994 a number of officers who have not been made parties to these appeals, may be prejudiced by any judgment of this Court and therefore they had to be made party. He therefore prayed that the petition be dismissed on the ground of non-joinder of parties also. On the basis of his above arguments the learned Advocate Supreme Court argued that the appeal being without merit be dismissed. 12. We have examined the case in the light, of the arguments of the learned ASCs and have carefully perused the records of the case and the judgments relied on by the learned counsel. 13. A perusal of the impugned judgment shows that the Tribunal has proceeded on assumption that the question of seniority of the appellants has been decided by this Court in our earlier judgment titled Abdul Hameed Anjum quoted supra and their seniority will also be determined in accordance with the letter/decision of the CBR. The Tribunal has not examined the legality and the validity of the CBR letter No,17(2)/93-AIT. II in which it has been laid down that the seniority of the inductees in the Income Tax Group will be determined under Rule 4 of Civil Servant Seniority Rules, 1993. The first point therefore which has to be examined is whether this Court in its earlier judgment quoted supra has also held that the seniority of the appellants will be reckoned from 1-1-2001. To determine this we have first perused the prayers made by the present appellants in the Constitutional Petition which was finally decided by this Court in the above judgment. For the sake of convenience the prayers are reproduced below:-- (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 respondent 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. (d) Any other relief which this honourable Court deems just and proper in the circumstances of the case. (e) Grant costs of the petition." We have also perused the gist of the judgment which is also reproduced below for the sake of convenience:-- "Accordingly;
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(vi) This appeal is accepted on behalf of appellants Nos,1, 2, 3 and 6; the appeal on behalf of other appellants is dismissed as not pressed. Ii) Appellants Nos,1, 2, 3 and 6 are declared to have been inducted w,e,f, 1-1-2001 in the Income Tax Group of CBR pursuant to the acceptance of offers by them under CBR's decision dated 21-7-2000. The appellants Nos,1, 2, 3 and 6 are also declared to have been accordingly absorbed in the Income Tax Group. (viii) Establishment Division O.M. Dated 25-1-2001 is declared to have been issued without any lawful authority hence of no legal effect. (ix) For the purpose of record and for all other requirements, respondents shall issue necessary notifications, orders or memos in terms of the declaration above granted to appellants Nos,1, 2. 3 and 6. (x) Costs throughout shall be paid by the respondents to appellants Nos,1, 2, 3 and 6. ' Perusal of these extracts leads to the conclusion that neither the appellants had specifically prayed that the date of their seniority may be reckoned nor did this Court in its judgment decide the case in this respect. However, we perused the entire judgment to see if any observations have been made in this judgment in respect of seniority and we have failed to come across any such observations in the judgment. We are, therefore, of the view that the judgment in question has not specifically decided the question of seniority of the appellants and therefore the Tribunal was not justified in basing its decision on the assumption that the question of seniority has already been decided in the earlier judgment of this Court. 14. The second point which has to be examined is whether the date of seniority has to be the same date as the date of absorption or induction in a particular service. In this respect we have examined the judgments relied on by the learned Advocate. Supreme Court for the appellants. 15. In the case of Din Mohammad quoted supra leave was grarted in the case to consider whether the civil servant transferred from his original post without his option was entitled to seniority in the department, where he was 'originally inducted and not in the department where he was transferred without his consent/option and this Court after examining the facts of the case and the law on the subject held that the seniority would be reckoned from the date of the induction of the appellant as UDC in the office of Post Master General, Northern Circle, Rawalpindi and not from the date of his regularization in the said post and in this connection relied on Rule 4 of Civil Servants (Seniority) Rules, 1993 which reads as under:-- "(4) Seniority on appointment by transfer.---Seniority in a service, cadre or post to which a civil servant is appointed…
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