' IJAZ AHMAD CHAUDHRY, J.---This single judgment shall deal with two writ petitions i.e, Writ Petition No,24410 of 2009 "Syed Ali Abbas Gardezi, etc. v. Government of Pakistan, etc" and Writ Petition No,24451 of 2009 "Nisar Ahmad v. Federation of Pakistan, etc.." as both carry similar questions of facts and law.
2.. Precisely the facts are that petitioners in both the writ petitions who are employees of Customs and Excise Group, mainly challenge the vires of the Office Memorandum No,F 6-2-2009 CP-II dated 12-9-2009 (along with corresponding letters) as also the issuance of Finance (Amendment)
Ordinance, 2009, whereby options were called from the officers of Customs and Excise and Income Tax Groups for inclusion or otherwise in the new Inland Revenue Service.
3. Hafiz Tariq Nasim, Advocate representing petitioners in W.P. No,24410 of 2009 opened the case and by initiating arguments about the maintainability of these writ petitions, contended that stricto senso the terms and conditions of petitioners' services were not being infringed, as such, the jurisdiction of this Court was not barred within the meaning of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. However, it was contended that by means of impugned Office Memorandum, service structure as well as future prospects of the petitioners would be affected seriously endangering their seniority and other allied .Natters. The learned counsel next argued that impugned Office Memorandum and office letters were departure from the law laid down in the "Garton Industries Ltd. v. Government of Pakistan etc." 1999 SCM R 1072 as by creation of new Inland Revenue Service Group vested rights of the petitioners were put under jeopardy. Further with reference to the case law reported in 1998 SCM R 91 contended that if the action impugned is mala fide and coram non judice, the jurisdiction of the superior Courts is wide enough to cater the situation. Lastly, it was argued by the learned counsel that the persons like the petitioners were very skillful and qualified employees having lot of experience at their back, thus, creation or merger of three wings i.e, Sales Tax, Income Tax and Federal Excise in one proposed unit i.e, Inland Revenue Service was a mala fide attempt on the part of the Federal Board of Revenue to accommodate specific group, to the detriment of the others like the petitioners, and also, according to the learned counsel, the proposed action tantamount to causing huge financial loss to the national exchequer, as the Inland Revenue Service will never be in a position to collect the revenue as was/is being collected through old scheme. The learned counsel closed his arguments on the point that since Rawalpindi Bench of this Court has already dismissed similar kind of petitions, the matter being of wider national importance may be referred to a larger Bench, in the light of case reported in. PLD 1995 SC 423.
4. Mr. Muhammad Nawaz Cheema, Advocate while adopting the above arguments, contended that issuance of Office Memorandum was in violation of Article 4 of the Constitution of Islamic Republic of Pakistan; that by means of impugned Office Memorandum, the Customs Department has been made to last longer, whereas, Sales Tax Department is being abolished. Further that by creation of Inland Revenue service. Future prospects of petitioners' service would be badly affected, as there will hardly be any space left for their promotion, because of lack of vacancies in the Customs Department. Lastly, it was argued that impugned Office Memorandum would not benefit the tax payees, rather would add to their miseries.
5. Mr. Zafarullah Khan, Advocate representing writ petitioner in W.P.No,24451 of 2009 by adopting the above arguments added that all the mattes involving terms and conditions of civil servants are not immune from constitutional jurisdiction of this Court and that proposed induction of the writ petitioner in inland Revenue Service strictly speaking does not affect the terms and conditions of his service, this writ petition is maintainable. Learned counsel placed reliance on the case reported in 2006 PLC CS 131. On merits, the learned counsel endorsed the above argument of Hafiz Nasim Tariq, Advocate, learned counsel in the connected writ petition.
6. On the other, Mr. Mushtaq Ahmad, Commissioner Inland Revenue Service, while refuting the above assertions, contended that by creation of Inland Revenue Service, only intention is to bring the Federal Excise, Sales Tax and Income Tax collection mechanism under one roof; that so far as contention with regard to disturbance of seniority of the employees of Sales Tax or Customs Excise Group, was concerned, it was only apprehension with no basis thereto, as even after the creation of Inland Revenue Service, the employees opting for Inland Revenue Service maintain their actual original inter-se seniority; that even future promotion mechanism has been taken note of in the Office Memorandum and the Promotion Policy as in vogue at the present, would remain the same as is being adopted for other occupational groups and there would be no separate policy after creation of the Inland Revenue Service; that future service prospects have also been safeguarded by constituting a Committee for settling the in-service disputes; and that this all exercise was being done just to make the tax collection exercise centralized for the betterment and facilitation of the public, with no other ulterior motives.
7. Raja Muhammad Irshad, Advocate representing the respondent/ department, in addition to the arguments advanced by the Commissioner, contended that he would squarely rely upon the earlier judgment of this Court rendered at Rawalpindi Bench; that by means of creation of Inland Revenue Service none of the occupational Groups was about to be disturbed; that through the Office Memorandum, impugned herein, the option was always with the employees, either to avail or not and even if they did not opt, their service structure was not to be adversely affected and similarly the employees who opt, they would also retain their actual inter-se seniority; that for settlement of the disputes amongst the employees, Anomaly Committee had been constituted, which was equally efficacious and inexpensive remedy, therefore, the employees, if at all aggrieved could avail that forum alone. It was lastly argued that subsequently the Finance (Amendment)
Ordinance, 2009 has taken over the effect of Office Memorandum, whereas, nothing has been said during the course of arguments on behalf of the petitioners as to how the above Ordinance could not be promulgated or that it was in any way defective or illegal. Mr. Muhammad Ilyas Khan, Advocate added that petitioners are not aggrieved persons as even if they do not opt, their service mechanism would remain the same and furthermore, the option was not compulsory.
8. I have heard the arguments of learned counsel for the parties at considerable length and perused the available record with their able assistance.
9. After the above categorical statement of Mr. Mushtaq Ahmad, Commissioner Inland Revenue Service, a high rank representative of the respondents/department, to the effect that in any eventuality, the option under the impugned Office Memorandum was not all compulsory for the petitioners or others. Either they opt or abstain, their future service was not at all being affected by mere creation of Inland Revenue Service and even the persons giving their option, would retain their actual inter-se seniority. In this view of the matter, hardly any grievance is left with the petitioners, if at all they ever had. A similar and categorical statement was made by the same officer in, other similar writ petitions before this Court today, which statement is to the following effect:-- "At the very outset, Mr. Mushtaq Ahmad, Commissioner Inland Revenue Service, submitted that the officials of the Customs Group who would not opt as required by 0.M dated 12-9-2009, would remain in the same Customs Group and their seniority will not be affected anyway."
' It was pursuant to the above statement that other almost similar writ petitions were disposed of.
Further, as positively submitted by the above representative of the department that by creation of Inland Revenue Service Group the future promotion prospects of the petitioners or other similarly placed employees would not be affected and it was specifically argued by him that for future promotion mechanism/ Promotion Policy as in vogue at the present, would remain the same as is being adopted for other occupational groups and there would be no separate policy after creation of the Inland Revenue Service. Even afterwards for any service dispute arising amongst the employees of the Inland Revenue Service, the Office Memorandum and subsequently promulgated Ordinance take note of such a situation and fir the settlement of such future disputes, a high profile Committee has been constituted. Thus, so far as above contentions of learned counsel for the petitioners with regard to charge in their service mechanism or disturbance of seniority or allied matters including alleged violation of their vested rights are concerned, the same have sufficiently been protected by the respondents in writing as well as by their statement before this Court, therefore, firstly the petitioner's had no such enforceable vested rights and further, if at all they have, in view of the above explicit statement the same were not being infringed through the impugned Office Memorandum or office orders.
8.(sic) Although in Writ Petition No,24451 of 2009 the petitioner had also challenged the Finance (Amendment) Ordinance, 2009, but during the course of arguments not a single word was uttered on this point to challenge the competence of the authority for issuance of said Ordinance or any illegality in the vires thereof.
9. (sic) Apart from the above position, it is visibly reflected from the very wording of the Office Memorandum, impugned herein, and as argued by learned counsel for the respondents/department that by this process only the shattered tax collection process was intended to be centralized under one roof. So far as, contention of learned counsel for the petitioners on the other hand that since the petitioners and others were having quite sufficient length of service and were experienced in the field of collecting Sales Tax, etc. By merger of Sales Tax department along with Federal Excise and Income Tax would result in destruction of collection process and that a valuable source of income for the national exchequer would be destroyed, is concerned, suffice it to say that no doubt Income Tax, Sales Tax or the Federal Excise are all three main organs, fetching and generating valuable funds for the Government, but at the same time it cannot be said that only the present petitioners were competent to generate or collect such taxes.
If the petitioners, have brought these petitions bona fidely under genuine feeling that by creation of Inland Revenue Service and by merger of above three wings, in one would result in narrowing the tax net, they undoubtedly being the well wishers of the State, can very well opt to become members under the Inland Revenue Service and by doing so, they would not only retain their original seniority but would also be rendering their expert services for the betterment of the national exchequer. However, as discussed above, the option was always available to them, and it was never compulsory for them to really opt, they could maintain their present group and also retain their seniorities.
10. Irrespective of all above, to maintain a department, create a new one or merge any department into some other, was/is always a policy matter to be taken by the executive or the legislature, keeping in view the surrounding circumstances, as after all it is their primary function, rather duty, to make the Government effectively run and in doing so they definitely are within their right to make equilibrium amongst the departments. Any action by the Courts disturbing the policy matters in such like affairs would be excessive use of jurisdiction, if not beyond jurisdiction. Use of such a jurisdiction would also frustrate the trichotomy of powers delicately balanced in the Constitution of Islamic Republic of Pakistan, 1973 as it granted powers to each organ to decide the matters in its allotted sphere. Reliance in this respect can be placed on case Col. Subah Sadiq v. M.
Ashiq and others 2006 SCM R 276.
11. Even otherwise, the merger of Sales Tax, Federal Excise or the Income Tax into one group i.e, Inland Revenue Service, does not in any way reflect anything contrary to the fundamental right of the petitioners or derogatory to the settled principles in that respect. The only visible impression behind such exercise appears to bring different organs of tax collecting agencies into one, which exercise apparently would benefit the tax payers and would ultimately result in widening of the tax net.
12. The contention of learned counsel for the petitioners that by creation of Inland Revenue Service and merger of the other wings in this new group would adversely affect the tax collection, is merely an apprehension with no basis thereto and furthermore there is also no cavil to the proposition that no writ can be issued on mere apprehension or to block future eventualities.
13. For what has been discussed above, the petitioners have not been able to make out a case of infringement of any of their fundamental right to maintain these petitions, nor any illegality or defect could be pointed out in the impugned Office Memorandum or the Ordinance and as such both these petitions are dismissed.