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Petitioner: CHIEF COMMISSIONER INLAND REVENUE, MULTAN VS Respondent: MUHAMMAD BILALHonorable Justice Rauf Ahmad SheikhAgha Muhammad Akmal and Tariq Manzoor Sial,Ch Abdul Sattar Goraya
2012 P L C (C.S.) 112
[Lahore High Court]
Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ
CHIEF COMMISSIONER INLAND REVENUE, MULTAN
Versus
MUHAMMAD BILAL and 7 others
I.C.A. No.143 of 2010 in Writ Petition No.85 of 2010, heard on 6th July, 2011.
(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----R. 8-B---Constitution of Pakistan, Arts. 25, 189, 190 199 & 212(2)---Civil Procedure Code (V of 1908), O.XXIII, R.3---Qanun-e- Shahadat (10 of 1984), Art.129(e)---Law Reforms Ordinance (XII of 1972), S.3---Intro-court appeal---Promotion of petitioners as Inspectors (BPS-14) of Income Tax Department on acting charge/officiating basis after having qualified Departmental Promotion Examination=--Non payment of salary in BPS-14 to petitioners though working as officiating Inspectors---Order of High Court accepting petitioner's constitutional petition with consent of counsel for both parties directing the Federal Board of Revenue to pay them salary in BPS-14 and promote them in terms of judgment of Supreme Court (Civil Petitions Nos.506 to 508-L of 2008) against vacancy, if occurred---Board's pleas were that High Court in view of Art.212(2) of the Constitution hud-no jurisdiction to pass impugned order; that promotion of petitioners on acting charge basis was against quota reserved for direct recruitment, and they could not be promoted due to non-availability of seats and that Board had given. consent in respect of payment of salary in BPS-14, but had not given consent regarding promotion in light of judgment of Supreme Court---Validity---Finance Division in its letter also adopted by the Board had clarified that an officer fully qualified and appointed by competent authority on higher post would be entitled to pay of higher post from date of assumption of its charge---Grievance of petitioners was against discriminatory treatment given to them and questions involved in such petition pertained to their entitlement to salary of higher posts held by them under orders of competent authority---Even in absence of consent of parties, every court including High Court/Tribunal/Authority was bound to follow judgment of Supreme Court---All executive authorities were bound to act in aid of Supreme Court---Presumption of correctness would be attached to duly recorded proceedings of court---Government servant, even though not party to proceedings before Supreme Court, would be entitled to benefit of its judgment, if he and persons in whose favour same was passed, were placed exactly in same conditions---Parties by consenting to settlement of controversy had impliedly given up right of appeal---Board could not legally or morally back out and deny consenting statement given in High Court and avoid implementation of impugned order on lame excuses---Inter-court appeal was dismissed in circumstances.
Commission Income Tax and others v. Khadim Hussain and others Civil Petitions Nos.506-L to 508-L of 2008 and 1998 PLC (C.S.) 1362 rel.
(b) Civil Procedure Code (V of 1908)---
----Ss. 96(3), 115 & O. XXIII, R. 3---Appeal---Scope---Decree/order passed due to compromise between parties to proceedings---Validity--Such decree/order would become conclusive and could not be challenged in revision or appeal by such parties---Principles.
By consenting to the settlement of the controversy, the parties to the proceedings impliedly give up the right of appeal. All decrees or orders passed due to compromise become conclusive and cannot be assailed by the parties to the compromise through an appeal or revision. If the court is satisfied that the compromise/agreement or the settlement is lawful, then it would pass the decree accordingly as provided under Order XXIII, Rule 3, C.P.C. Such decrees or orders cannot be called in question through an appeal. Section 96(3), C.P.C., clearly provides that no appeal shall lie from a decree passed by the court with consent of the parties. The intention of legislature in enacting this provision clearly appears to be the promotion .. of good conscience amongst the litigant public and to prompt them to abide by the mutual settlement and lawful compromises.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(e)-Duly recorded proceedings of court---Validity---Presumption of correctness would be attached to such proceedings.
(d) Constitution of Pakistan---
----Art. 189---Benefit of judgment of Supreme Court---Entitlement---Scope---Government servant, even though not party to proceedings before Supreme Court, would be entitled to benefit of such judgment, if he and persons in whose favour same was passed were placed exactly in same conditions.
Agha Muhammad Akmal and Tariq Manzoor Sial for Appellant. .
Ch Abdul Sattar Goraya for Respondents Nos.1 to 4.
Date of hearing: 6th July, 2011.
JUDGMENT
RAUF AHMAD SHEIKH, J.--- The appellant has assailed the vires of the order dated 2-4-2010 passed by the learned Single Judge in Chamber in W.P No.85 of 2010 filed by respondents Nos.1 to 4 praying therein that .an appropriate writ, order or direction be issued to the appellant and respondents Nos.5 to 8 (respondents in the writ petition) to promote the respondents Nos.l to 4 (petitioners in the writ petition) in the rank of Inspectors in BPS-14 on the basis of examination held on 14/15-1-2004 and the inaction on their part be declared without lawfulauthority, without jurisdiction and of no legal effect. They further prayed that the appellant/respondents Nos.5 to 8 be directed to pay the salary in BPS-14 from the date of theft promotion on acting charge basis as Inspectors till the date.
2. Respondents Nos. 1 to 4 had contended that they were appointed as LDC on 26-6-1987, 2-8-1994, 3-8-1994 and 7-8-1994 respectively in the Income Tax Department. Certain posts of Inspectors became available and th'e respondents Nos.1 to 4 along with others appeared in the Departmental Promotion Examination held on 14 and 15-1-2004 and qualified the same so they were promoted on acting charge basis vide office order No.C-44(i)Admn/04-05/11403 dated 29-6-2005. It is contended that their counter parts in other Zones, who were also promoted on acting charge 'basis were paid salary in BPS-14 but in their case, it was ordered that they will work in their own pay and scale. It was thus contended that they were given discriminatory treatment and were denied of their rights. It was contended that all other officers, who were also promoted on acting charge basis, were given the salary of the Income Tax Inspectors (BPS-14).
3. On 2-4-2010, the parties gave consent and the writ petition was decided with the following order:---
"With the consent of the learned counsel for the parties it is directed that the petitioners shall be paid their emoluments according to their Pay Scales for officiating charge on which they are working. It is further directed that case regarding A promotion of the petitioners shall be determined in accordance with the judgment rendered by the Hon'ble Supreme Court in The Commission Income Tax and others v. Khadim Hussain and others, Civil Petitions Nos.506-L to 508-L of 2008 passed on 2-6-2009 and they shall be promoted as and when vacancy occurs. With the above direction this writ petition is disposed of." The appellant has assailed the above order. It is contended that the Officers, who had qualified the Departmental Promotion Examination were to be promoted against the promotion quota but the respondents Nos.1 to 4 could not, be promoted due to non availability of the seats in the said category and as such were promoted on acting charge basis against the 50% quota reserved for direct recruitment. It is urged that under the circular issued by the Board of Revenue, no waiting list could be maintained. It is further contended that this Court could have not passed the order for their promotion and payment of salary in view of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.
4. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
5. It is obvious that the impugned order was passed due to consent given by the learned counsel for the parties. By consenting to the (I settlement of the controversy,. the parties to the proceedings irnpliedly I( give up the right of appeal. It is an established law that all decrees and orders passed due to compromise become conclusive and cannot be assailed by the parties to the compromise through an appeal or revision, If the Court is satisfied that the compromise/agreement or the settlement is lawful, then it would pass the decree accordingly as provided under, Order XXIII, Rule 3, C.P.C. Such decree or orders cannot be called in question through an appeal. Section 96(3), C.P.C. clearly provides that no appeal shall lie from a decree passed by the Court with consent of the parties. The intention of legislature in enacting this provision clearly appears to be the promotion of good conscience amongst the litigant public and to prompt them to abide by the mutual settlement and lawful compromises. Even otherwise, Rule 8-B of .Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provides that an officer may be appointed on acting charge basis on a higher post, if he is otherwise eligible and has been selected by the competent authority after observing the codle formalities. It is not denied that the respondents were promoted by the competent authority on acting charge basis/officiating basis, on the basis of the result of the Departmental Promotion Committee and have been continuously rendering the services against the higher posts. The, contention that the impugned order is against the Article 212(2) of the Constitution 'of Islamic Republic of Pakistan, 1973 has also no force as the grievance voiced by the petitioner was against the discriminatory treatment given to them and questions pertaining to their entitlement to the salary of the posts held by them under the orders of the competent authority. In this respect reliance is placed on 1998 PLC (C.S.) 1362. Yet there is another very important and significant aspect of the matters, the Finance Division (Regulation Wing) Government of Pakistan in its letter No.F.8(4)R-2/97-1204/09 dated 24-2-2009 has clearly provided guideline inter alia, clarifying that an officer fully qualified and appointed by the competent authority on the higher post is entitled to the pay of the higher post from the date, he assume the charge of said post. Even the appellant in letter No.HRM/1127 dated 17-4-2010 had declared that in view of the letter of the Finance Division, circular of the Board and impugned judgment, the acting charge Inspectors are entitled to' pay of BPS-14.
6. The learned counsel for the appellant has contended that in fact the consent was given in respect of payment of salary in BPS-14 and no I consent was given regarding their promotion in the light of judgment ofthe Supreme Court of Pakistan passed in Civil Petitions Nos.506-L to 508-L of 2008. A presumption of correctness is attached to the duly' recorded proceedings of the Court. Even if no consent was given in this', regard, every court including the High Court, Tribunal or Authority is bound to obey the judgment of august Supreme Court of Pakistan and all executive authorities throughout Pakistan are to act in.aid of the Supreme Court of Pakistan as provided in Articles 189-190 of the Constitution of the Islamic Republic of Pakistan, 1973. It is an established law that Government Servant even if was not a party to the proceedings before the apex Court, is entitled to the benefit of the judgment, if he and the persons in whose favour the judgment is passed are placed in exactly the same conditions. The appellant and respondents Nos.5 to 8 cannot legally or morally back out and deny the consenting statement given in the Court and avoid the implementation of the orders on lame excuses. The appeal is without merits and the same is hereby dismissed. S.A.K./C-12/L Appeal dismissed.