Syed Hamid Ali Bukhari, Member.--Succinctly the facts leading to the filing of instant appeal are that the Federal Board of Revenue issued an advertisement on its official web and in the National Press, whereby options were asked from Officers, Custom & Excise Group and Income Tax Group by 18th January, 2010 to join the needy establishment, Inland Revenue Service, which was created in pursuance to the Establishment Division's O.M. dated 12.09.2009. The aforesaid option was irrevocable. However, it was clarified in this policy O.M. that posts will be transferred to the new service upon completion of exercise of option. Appellant, Ghulam Sarwar Shah, who was a BS-18 Officer of Custom & Excise Group exercised his option on 18.01.2010 to join Inland Revenue Service and accordingly he was transferred to Inland Revenue vide FBR Notification dated 25.01.201.
Subsequently the appellant made a representation for withdrawal of his option on 11.09.2010 but no decisimi was taken by the departmental authorities on it. However upon completion of exercise of option, the FBR vide Notification dated 15.11.2010 issued the list of Officers of defunct Custom & Excise Group, who were appointed on transfer to Inland Revenue Service (IRS) with immediate effect in terms of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 with the approval of competent authority. The name of the appellant was shown at Serial No, 8 amongst the Officers in BS-18.. It was followed by a final seniority list of officers of Inland Revenue Service in BS-17 to BS-18.
The name of the appellant was shown at Serial No, 267. The Appellant submitted a detailed representation on 28.01.2011, wherein he clarified that he has already withdrawn the option for joining Inland-Revenue Service on 11.08.2010, as such, there is no justification for showing his.name in Inland Revenue Service. The representation of appellant was not responded to within the statutory period and consequently he filed the present appeal on 24.05.2011.
2. The learned counsel for the appellant Mr. Abdul Rahim Bhatti, argued that the appellant had withdrawn his option on 11.08.2010 much prior to the completion of exercise of option Which was completed on 15.11.2010. Thus he was legally entitled to withdraw his option. The learned counsel placed reliance upon the following judgments of the Hon'ble Supreme Court of Pakistan by laying down the law:-- 2000 SCMR 1964 ----Art. 212(3)--Retirement from service or request--Withdrawal of such request by civil servant, after notification of retirement had been issued by the Government--Parent department of civil servant recommended for withdrawal of the requested of civil servant, but the Government declined to accept the withdrawal request and civil servant was retired from service--Service Tribunal, on appeal decided the same in favour of the civil servant and order of the Government was set aside--Government contended that option once exercised and assuming finality could not, be withdrawn--Validity--Where the parent department had strongly recommended the retention of the services of the civil servant, as the department was short of experienced staff, it would have been discreet exercise of power and authority to allow the civil servant to continue in service rather than regretting a reasonable request on untenable grounds--Encashment of leave for leave for 180 days by the civil servant could not operate as bar to the reconsideration of his request--View taken by the Service Tribunal was neither. improper nor arbitrary or contrary to law. No inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstances--Government in circumstances bad acted unreasonably, unconsciously and in ,a manner which was neither fair nor reasonable, just and equitable as expected of public functionaries.'
2005 SCMR 97 ----Art 212(3)--Reinstatement in Service--Principle of consistency Applicability--Employees opted for voluntary retirement but before any order was passed by the authorities, employees withdrew their options--Authorities enforced the option already given by the employees and retired them-- Service Tribunals, on challenging such order by employees, reinstated the employees in service-- Validity Judgment of Service Tribunal was in consonance with the law--Principle of equity, fair play and justice required that since employees in earliest appeals were reinstated in service by Service Tribunal, the case of present employees being on the same footings should also be accepted-- Supreme Court decline to interfere with the judgment passed by Service Tribunal--Leave to appeal was refused.'
3. The learned counsel for the appellant heavily relied upon the judgment of Federal Service Tribunal passed in Appeal No, 1379(R)CS/2010 whereby Mr. Aftab Anwar Baloch, an officer of Customs & Excise Group who also withdrew his option for joining Inland Revenue Service. His appeal was accepted by FST vide judgment dated 19.01.2012 and the appeal of the appellant also merits acceptance on this score alone. The learned counsel for the appellant vehemently argued that the appellant has been subjected to severe discrimination as two of his colleagues namely Ms. Tayyeba Kayani and Mr. Muhammad Masood Sabir of Custom & Excise Group who had also exercised option for joining Inland Revenue Service and accordingly were transferred to Inland Revenue Service vide Notification 25.01.2010 alongwith the appellant clearly indicating therein the exercise of options but subsequently their requests for withdrawal of option was accepted.
4. On 'the contrary, the learned counsel for respondent Mr. Saeed Ahmad Zaidi vehemently opposed the appeal by stressing that the option once exercised was irrevocable and cannot be withdrawn under any circumstance, He further submitted that the appeal is hit, on the point of limitation. According to him the appellant was required to file appeal before this Tribunal within 120 days of his request for withdrawal of option. The appellant has neither approached the Federal Service Tribunal nor filed application for condonation of delay. As such the appeal should be dismissed as barred by time. The leirned counsel for the respondents further argued that the judgment dated 19.1.2012 though not challenged in the Hon'ble Supreme Court of Pakistan yet the same is per incur am and, as such, appeal of the appellant merits dismissal.
5. We have heard the learned counsel for the parties and have also perused the record. It is established law that option could be withdrawn prior to its acceptance. In this particular case, the exercise of option was completed on 15.11.2010 whereas the appellant, in fact, withdrew his option on 11.08.2010 much prior to the completion of exercise., Therefore, keeping in view the principle of consistency, the withdrawal of option of the appellant was quite lawful as already held by this Tribunal in case of Mr.Aftab Anwar Baloch. Moreover, the appellant cannot be denied the relief especially when he has been discriminated by the respondents by retaining two of his colleagues in the Custom & Excise Group which is evident from their posting order by referring their exercise of options vide Notification dated 25.1.2010 and subsequent order did not clearly mention about non- exercise of such options. It is well settled principle of law that a man can tell a lie but the document cannot. Even the applications of the said officers denying such exercise of option in favour of Inland Revenue Service have not been placed on record. We are constrained to hold that the appellant has been discriminated.
6. As regards the point of limitation, the service appeal of the appellant is within time as the same has been filed within 120 days of the departmental appeal preferred against his placement in the final seniority list of Officers of BPS-18 in the newly constituted Inland Revenue Service circulated vide letter dated 28.12.2010 by referring to .his withdrawal of option vide application dated 11.8.2010 before completion of process and acceptance by the competent authority vide Notification dated 15.11.2010. Even otherwise, we are in agreement with the learned counsel for the appellant who have heavily, relied upon the judgment of the Hon'ble Supreme Court of Pakistan as reported in 2003 PLC
(CS) 396 SC, which has been delivered by 5 members Bench enunciating the principle of law as follows: "Administration of justice--Decision of the cases on merits always to be encouraged instead of non-suiting the litigants for technical reasons including on limitation, [p.841]V."
7. The respondents despite receipt of application for withdrawal. of option from the appellant has not decided the same and they cannot claim premium over their inaction and subsequent departmental appeal against his placement in the final seniority list of officers in. Inland Revenue.
Service also met the same fate which is sorrow state of affairs on their part. The learned counsel for the appellant also relied upon the judgment of Hon'ble Supreme Court of. Pakistan as reported in 1991 SCMR - 1765, wherein, it has been held that the Service Tribunal can condone limitation on verbal request and prayed for condonation of delay, if any. Keeping in view peculiar circumstances of the case, the delay, if any is condoned accordingly. Lastly, the contention of the learned counsel for the respondents regarding per incur am of the judgment dated 19.01.2010 of this Tribunal accepting the appeal of the appellant of Aftab Anwar Baloch an officer of Custom Group exercising the option in favour of newly constituted Inland Revenue Service but withdrew the same before acceptance, without citing any law, is also without substance and is repelled. The reasons .given in the said judgment are equally applicable in the case of the appellant and, therefore, the law declared by the Hon'ble Supreme Court in the case of Hameed Akhtar Niazi reported as 1996 SCMR 1185 is fully attracted. This principle of law was confirmed in a number of subsequent cases and in this regard reference is made to cases reported as 2003 SCMR 1030, 2005 PLC (CS) 341, 2005 PLC
(CS) 368, 2006 PLC (CS) 11, 2007 PLC (CS) 152 and 2009 SCMR,
1. In view of this law, the respondents were duty bound under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 to act in accordance with above-referred law in the case of appellant. In view of provisions of Article 25 of the C Constitution, the respondents could not be allowed to use different yardsticks in the cases of civil servants placed in similar position and that once the judgment of this Tribunal was implemented by the respondents, they were left with no option but to apply the said decision in the case of appellant and allow him to withdraw his option.
8. In the circumstances, we accept the appeal and set aside the Notification dated 15.11.2010 to the extent of appellant. Consequently the appellant shall remain in Custom & Excise Group and maintain his seniority on that Group.
9. There shall the no order as to costs.
10. Parties be informed accordingly.