1. ' MUHAMMAD MOOSA K. LEGHARI, J.---The petitioner has invoked the constitutional jurisdiction of this Court seeking the following relief:--
(i) Direct the respondents to re-allocate the petitioner to the income tax group in the 21 common batch.
(ii) In view of (i) above direct the respondents to take consequential measure of seniority pay, benefits and other ancillaries retroactively as per entitlement.
2. ' Briefly stated the facts forming the background of the petition are as under:-- ' The petitioner appeared in the C.S.S. Examination in December 1992 which Batch is known as 21st Common. After having passed said Examination in August 1993, the petitioner was originally allocated the Group of Foreign Service of Pakistan. As per the rules relating to the Recruitment Policy for the year in issue, the Province of Sindh was allocated 19% of the total seats. 40% of the 19% being 7.6% was meant for Urban areas while 60% of the 19% which came to be 11.4% was meant for Rural areas. The petitioner was entitled to the said quota (Sindh-rural) and his position in his Batch vis-a-vis: the other qualified candidates, in order of merits was as under:-- ' Sr. No, Name of Qualified candidates & Merit Rating. For Sindh (Rural).
(i) Dr. Usman Chachar.
(ii) Muhammad Amin Yousifzai.
(iii) Abdul Hameed Memon.
(iv) Dr. Ghulam Mustafa Rahu.
(v) Yousuf Haider Shaikh.
(vi) Haider Ali Dharejo.
(vii) Farhat Ali Junejo.
(vii) Shamsuddin Qazi (the petitoner).
3. ' The allocation/reservations of services in the said Sindh Rural Quota for the year in issue i,e, 21st common were as follows:-- ' Name of Service/Group. Number of seats Allocated.
4. DMG 1 Police 1 Customs Income Tax 3 Audit/Accounts 2 Foreign Service 2 ' It is averred that Dr. Ghulam Mustafa Rahu who was at serial No,(iv) in the merit rating was already serving in the Income Tax Group having qualified earlier. In the Examination of 21st Common Batch he had reappeared primarily to improve upon his Group and to obtain a better re-allocation. Since he was listed at No,(iv) in the Merit List and the Services of D.M.G., Police and Customs being allotted one each in the Quota were given to first three candidates, the said Dr. Ghulam Mustafa Rahu abandoned his further allocation and did not join for training. Due to this reason the Merit List stood automatically reshuffled with candidates listed after Dr. Ghulam Mustafa Rahu climbing one ladder up in the Merit List. The candidates listed at Serial Nos.(v) and (vi) namely Yousuf Haider Shaikh and Haider Ali Dharejo were thus allocated the Income Tax Group. However, the third vacancy in the Income Tax Group which remained unfilled due to Dr. Ghulam Mustafa Rahu's non- joining, was filled by Farhat Ali Junejo listed at Serial No,(vii) in the Merit List, who was originally allocated the Audit and Accounts Group, upon re-allocation. However, some where in June 1994, said Farhat Ali Junejo secured further re-allocation in the Police Group with the result that one vacancy in the Income Tax Group from the Sindh Rural quota from the 21st Common Batch again became available, to which, the petitioner, became entitled in view of his Merit Rating as also his option already expressed. The petitioner in order to seek his right made number of representations to respondents Nos.1 and 2 but the same were not responded. The petitioner having qualified in the C.S.S. Examination of 1991, in the 20th Common Batch was assigned to Audit and Accounts Group.
5. However, after having completed requisite training and having passed all Departmental Examinations, the petitioner was transferred to the Central Board of Revenue under Section 10 of the Civil Servants Act,1973, and was posted as Assistant Commissioner Income Tax w,e,f, 5-5-1994.
6. That since the representation of the petitioner was not responded to, he having no other alternate or efficacious remedy filed this petition.
7. ' The grounds urged in support of the petition are that after availability of a vacancy in Income Tax Group the petitioner was entitled to be re-allocated to Income Tax Group, as in similar circumstances Dr. Abdul Sattar Abbassi was re-allocated the Income Tax Group, when after the re- allocation of Dr. Sanaullah in the Police Group, the reserved seat in the Sindh Rural Quota of Income Tax Group fell vacant. In the same 16th Common Batch Dr. Niaz Ahmed, Dr. Siraj Mustafa Jokhio and others found re-allocation but declining re-allocation to the petitioner was violative of the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, and against the persistent practice.
8. ' In response to the notices parawise comments were filed on behalf of respondent No,l. In the comments it was pleaded that the petition was not maintainable in law. In support of above legal pleas, it was pleaded that the petitioner has no locus standi, since the matter related to the terms and conditions of service of the petitioner, jurisdiction of this Court was barred under Article 212 of the Constitution as the matter fell within the exclusive jurisdiction of Service Tribunal. On merits it was pleaded that the claim of the petitioner was against Rule 6 of Appendix-III relating to the Competitive Examination, 1992 which read as under:-- "If any vacancies reserved in terms of Paragraph 1-2 above cannot be filled by reason of failure of candidates to pass the qualifying standard or otherwise, such vacancies will be carried over and filled in on the result of the next year's examination from among the candidates in whose quota the vacancies are so reserved."
9. ' It was pleaded that the left over vacancies are carried over and are filled in with the result of the next year's examination from among the candidates in whose quota the vacancies are so reserved. It was further pleaded that in the Merit Rating the name of the petitioner stood at No,(viii).
10. It was pleaded that the Merit List remained the same but the candidates below Mr. Ghulam Mustafa Rahu were allocated to the Group/posts available at that time. It was pleaded that as per existing policy any vacancy which is caused after the start of Common Training Program is carried over for the candidates of the next Batch. In the instant case vacancy of Mr. Farhat Ali Junejo was consumed by him as later he was re-allocated to the Police Service of Pakistan on the orders of Prime Minister. It was pleaded that when an officer joins a service group and later leaves the same for any other reason the vacancy released by him is treated as fresh vacancy and not given to the same quota to which it belongs. Mr. Farhat Ali Junejo joined Income Tax Group on 31-10-1993, and left it for PSP in 1994, upon his re-allocation. Therefore, his released vacancy of ITG was not offered to the next eligible candidate. It was pleaded that the vacancy which occurred subsequently in the year (1994) will ultimately go to the next examination and not to the one which was held two years earlier. The same method was followed for calculating the vacancies for the examination which fell vacant after the start of Academy on the basis of C.E. 1991 were carried forward and filled in on the basis of C.E.
11. 1992.
12. ' A rejoinder to the comments was filed on behalf of the petitioner whereby he annexed the Photostat copies of Certificate of Charge Assumption Report and Charge Relinquishment Report of Farhat Ali Junejo and the Establishment Division Memorandum dated 23rd August 1994, whereby Farhat Ali Junejo was re-allocated to the Police Service of Pakistan.
13. ' Vide order dated 17-2-1999 the petition was admitted to consider the following questions:--
(1) Whether the petitioner was qualified for re-allocation to Income Tax Group after it fell vacant in 21st Common on the results of C.S.S. Examination held in December 1992.
(2) Whether respondent No,1 failed to act fairly, justly and reasonably in entertaining the prayer of the petitioner which was apparently covered by the principle of "consistent practice" and "doctrine of legitimate expectancy"?
(3) Whether the questions involved in this petition fell within the exclusive domain of Federal Service Tribunal?
14. ' Mr. Faroogh Naseem, Advocate addressed arguments on behalf of the petitioner while Mr. Hakim Ali Siddiqui, Advocate/Standing Counsel represented D.A.G. For respondent No,1 assisted by Mr. Asghar Ali Shah, Section Officer, Establishment Division, Government of Pakistan, Islamabad and Mr. Syed Muhammad Iqbal Shah, Advocate for respondents Nos.2 and 3.
15. ' It is contended on behalf of the petitioner that due to the fact that Dr. Ghulam Mustafa Rahu abandoned his claim of joining the Income Tax Department for the simple reason that he was already working there, a vacancy was created with the result that besides Yousuf Haider Shaikh and Haider Ali Dharejo, Mr. Farhat Ali who was otherwise allocated Audit and Accounts Group was re-allocated the Income Tax Group, as he was placed one ladder up. After re-allocation of Mr. Farhat Ali Junejo from Income Tax Group to Police Service of Pakistan, a vacancy was created.
16. Thus, a vested right was created in favour of the petitioner to be re-allocated to the Income Tax Group.
17. ' It was thus contended that the petitioner was discriminated and was not treated equally, as such, the action of the respondent offended the provisions of Article 25 of the Constitution. It was contended that no terms and conditions of service of the petitioner were involved in the matter as it was a case of re-allocation of the Group for his induction into service. In such matters Service Tribunal has no jurisdiction. In support of his contentions learned counsel placed reliance upon the Judgments in the following cases:--
(1) Fakhar-uz-Zaman Ali Cheema v. Government of Pakistan through Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad and 2 others 2001 CLC 1277
(2) S. Irshad-ur-Rehman v. Government of Pakistan through Chairman, Central Board of Revenue, Islamabad and 3 others 1993 PLC (C.S) 39
(3) Amjad Latif v. C.B.R. And others 1996 CLC 1422
(4) Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik 2004 SCMR 158
(5) Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185
(6) Dr. Neelam Hussain v. Dr. Razia Parveen Qureshi and 2 others 2003 PLC (C.S.) 1222
(7) Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353.
(8) Muhammad Ismail Solangi v. Deputy Inspector-General, Pakistan Railways Police, HQS Office Lahore and another 2002 PLC (C.S.) 255 ' On the other hand the respondents took the same objections which they have taken in the parawise comments. It was contended that since the vacancy was caused after tbe start of the Common Training Program, therefore, it had to be carried over for the next year. The petitioner had no vested right to be re-allocated to the post in I.T.G. It was denied that any discrimination was caused to the petitioner. It was, however, admitted that Mr. Farhat Ali Junejo was re-allocated the Police Service of Pakistan but that was due to the orders passed by the Prime Minister.
18. ' We have considered the respective contentions raised on behalf of the parties and examined the material placed before us.
19. ' The facts averred by the petitioner in the petition have not been denied. Admittedly the petitioner appeared in the examination of Central Superior Services held in December 1992 and was allocated the Foreign Service of Pakistan Group. The petitioner in the order of merit was at Serial No,
(viii) in the Merit Rating while the names of Dr. Ghulam Mustafa Rahu, Mr. Yousuf Haider, Haider Ali and Farhat Ali Junejo were respectively placed at serials Nos.(iv), (v), (vi) and (vii). It is not denied that Dr. Ghulam Mustafa Rahu abandoned his further allocation as he was already working in the Income Tax Group. Due to that reason a vacancy was created against which Mr. Farhat Ali Junejo at Serial No,(vii) in the Merit Rating was accommodated. However, at a later stage Mr. Farhat Ali Junejo was further re-allocated the Police Service of Pakistan, as per the orders of Prime Minister of Pakistan vide Office Memorandum dated 23rd August 1994. Due to re-allocation of Dr. Farhat Ali Junejo, again a vacancy was caused in the Income Tax Group. In the Merit Rating the name of the petitioner Shamsuddin Qazi was immediately below the name of Mr. Farhat Ali Junejo as he was at serial No,(viii) of the Merit Rating. As per the practice the petitioner had secured a vested right to be re-allocated to the Income Tax Group. It will not be out of place to mention here that it is not the case of the respondents that the petitioner was not qualified to be inducted or allocated to the Income Tax Group which is evident from the fact that though he was allocated the Audit and Accounts Group in the 20th Common Batch but he was transferred by the respondents themselves to Central Board of Revenue under the provisions contained in section 10 of the Civil Servants Act, 1973. Such fact amply proves, that he was otherwise qualified to be reallocated to the Income Tax Group. In order to show that there was a consistent practice of re-allocating the groups, petitioner has submitted in his rejoinder that in the cases of Dr. Abdul Sattar Abbassi, Dr. Niaz Ahmed Shaikh, Dr. Siraj Mustafa Jokhio and many others the same practice was adopted. This fact has not been denied by the respondents.
20. ' So far as the objection with regard to the fact that any which is caused after the start of Common Training Program is ca over for the candidates of the next batch, is concerned no such regulation, policy or law has been placed on record to substantiat above objection except that a reference was made to rule Appendix-III of the Competitive Examination, 1992. We afraid, the conditions stipulated in the above rule are h applicable, for the simple reason that bare reading of above rule show that this will come into play, only in case where the vacancy not be filled by reasons of failure of candidates to pass the quali standard or otherwise. As a matter of fact, the seat fell vacant due to re-allocation of Mr. Farhat Ali Junejo to Police group and not by reason of failing to pass the qualifying standard. We have specifically asked Mr. Asghar Ali Shah Section Officer Establishment Division, to show us any law, policy rule or regulation to supplement the above contention raised by the respondents but he has frankly conceded that there was no such law or rules, regulation or policy to that effect. He has however, stated that Mr. Farhat Ali Junejo was re-allocated the Police Service of Pakistan on the orders of the then Prime Minister of Pakistan.
21. ' The next point which needs to be considered would be, if for the sake of arguments the contentions of the respondents be sustained for a moment, whether as a matter of fact, the vacancy caused due to reallocation of Mr. Farhat Ali Junejo was carried over and was filled in on the basis of the result of the next year's examination? No material to this effect was placed on the record by the respondents. Mr. Asghar Ali Shah, Section Officer, Establishment Division frankly conceded that nothing was available in the record of the Respondents to substantiate the above stand.
22. ' In view of the fact that the respondents have not been able to controvert the factual position that there was a consistent practice of reallocation of groups to the different candidates after the vacancies were caused, we are persuaded to hold that the petitioner was not treated at par with other incumbents and was discriminated upon on account of bureaucratic wrangling.
23. ' We may obseryed that during the arguments issued with regard to the jurisdiction of this Court was not raised on behalf of the respondents. Even otherwise we are of the firm view that the matter which is subjudice before us does not fall within the ambit of Service Tribunal as re-allocation to a specific service group is not covered by the terms and conditions of service. Consequently, the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan is not attracted in the instant case.
24. ' Upon the above discussion we have reached the conclusion that the petition merits to be allowed.
25. The same is accordingly allowed as prayed with no order as to costs.
26. ' After hearing the learned Advocates for the parties on 25-5-2005, the petition was allowed by a short order. These are the detailed reasons in support of the short order.