C.M. No,7 of 2013 ' SHEZADA MAZHAR, J.--- In Writ Petitions Nos.19428 to 19430 of 2012, Ahsan-ul-Haq Kayani, applicant/successful candidate has moved applications to become party in the proceedings on the ground that due to these petitions results for the remaining seven (7) seats have not been announced and therefore he is effected. These C.M. were dismissed on the ground that decision is to be made today and therefore results will be announced in due course.
MAIN CASE
2. By means of this single judgment, I intend to deal with the following five matters jointly as in all the matters ineligibility criteria has been challenged and arising out of almost similar facts as well as carrying similar questions of law to be determined here before this Court,
(i) W.P. No, 19428 of 2012, Muhammad Attiq-ur-Rehman v. Government of Pakistan and 4 others,
(ii) W.P. No, 19429 of 2012, Muhammad Tariq Maqsood v. Government of Pakistan and 4 others,
(iii) W.P. No, 19430 of 2012, Muhammad Sadiq v. Government of Pakistan and 4 others,
(iv) W.P. No 14450 of 2013, Muhammad Naeem Akhtar v. Chief Commissioner and another, and
(v) F.A.O. No, 400 of 2013 Altaf Hussain v. Federation of Pakistan and 3 others.
3. In Writ Petitions Nos.19428 to 19430 of 2012, the petitioners have challenged the ineligibility criteria for Section Officers Promotional Examination-2012 declared by the Federal Public Service Commission.
' Whereas in Writ Petition No,14450 of 2013, the petitioner has challenged the order dated 21-4-2011 issued by the Federal Board of Revenue, whereby it has been declared that the field offices of the Federal Board of Revenue are its subordinate offices and therefore employees working in Subordinate offices are not eligible to appear in Section Officers Promotional Examination-2012 declared by the Federal Public Service Commission.
' Similarly, in F.A.O. No,400 of 2013, the petitioner has called in question the order dated 18-7-2013 and 7-8-2013 passed by the Federal Public Service Commission, whereby the representation as well as the review petition of the petitioner has been rejected on the ground that the appellant is an employee of subordinate office.
4. Briefly the facts necessary for the disposal of the above captioned matter are that the Federal Public Service Commission published an advertisement in daily Jang calling for applications with regard to appearance in the Section Officers Promotional Examination-2012. In the said advertisement eligibility and ineligibility criteria was mentioned. In the ineligibility criteria it was mentioned that the government servants who are working in the following offices are ineligible and at Sr. No,1 it was mentioned that All Subordinate Offices such as Customs/Central Excise and Income Tax including Field Offices of the FBR". The said condition has been challenged in Writ Petitions Nos.19428 to 19430 of 2012. During the pendency of these writ petitions, the petitioners sought permission for appearance in the examination, which was allowed. Consequently, the writ petitioners of Writ Petitions Nos.19428 to 19430 of 2012 appeared in the examination on the basis of the order passed by this Court.
' Similarly, in Writ Petition No,14450 of 2013, the petitioner being employee of FBR applied, for appearance in the examination but his application was rejected on the ground that the petitioner is working in the field office, vide letter dated 21-4-201, FBR has declared all the field offices are its subordinate office, therefore, he challenged the said order of the FBR and, during pendency of the writ petition he also obtained permission of this Court which was allowed and he also appeared in the examination.
' In F.A.O. No,400 of 2013, the appellant being working at RTO Gujranwala applied for the examination and participated in the examination. However, his result was withheld and he was informed vide letter dated 3-5-2013, that the candidature has been rejected being employee of subordinate offices. The appellant moved representation against the said order dated 3-5-2013 under section 7(3)(a) of the Federal Public Service Commission Ordinance, 1977 which was rejected and against the said decision the appellant filed review application before the Federal Public Service Commission which too was rejected and therefore, the appellant has filed the present F.A.O. against the order dated 7-8-2013 and 18-7-2013.
5. The main controversy involved in all these cases is that whether the petitioners/appellants working in the Sales Tax Offices, Income Tax Offices or Federal Excise Departments are eligible to appear in the examination or they are excluded on the ground that they were working in the subordinate offices of the FBR.
6. Learned counsel for the petitioners submits that ineligibility criteria issued by the Federal Public Service Commission on the basis of letter dated 21-4-2011 is against the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 as on the one hand it was declared that FBR is the Attached Department of Revenue Division, but on the other hand, contrarily, without any lawful justification and without amendment in the Schedule III of the Rules of Business, excluded the petitioner/the employees of the field Offices of FBR from the category of the Attached Department which is not only arbitrary act of the respondents but also violates the provisions of section 24-A of the General Clauses Act, 1897. Further submits that ineligibility criteria/letter of FBR is beyond its lawful jurisdiction and on the same time is, an example of interference in the business of other ministries/departments. As per Serial No,10(23) of Schedule II of 'the Rules of Business, 1973 the function of "Determination of status of Federal Government offices" has been entrusted to the Establishment Division. It is also submitted that field offices are performing the functions assigned to the FBR under the Federal Board of Revenue Act, 2007. Therefore, ineligibility criteria/letter dated 21-4-2012 has been issued in violation of Rule 4(5) of the Rules of Business, 1973. Further submits that an employee who is working in the head office of FBR is eligible whereas the employee who is working in the field office is declared ineligible to appear in the examination is a glaring act of discrimination in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. It is next submitted that posts at headquarters and the field offices are inter transferable and on a particular day an employee working in the head office is eligible for the examination in the promotion exams, however, on the day he is transferred to field office he will become ineligible.
Further submits that joint seniority list of field offices and headquarter are maintained, therefore, it seems ridiculous when an employee of field office is transferred to Headquarter and vis-a-vis the employee of the Headquarter is transferred to field office and as such the first one will be eligible and the latter will be held ineligible, hence, the rational/interpretation adopted by the respondents regarding the issuance of impugned order is even not attracted to common sentence. Further submits that ineligibility criteria as well as letter dated 21-4-2012 offends the principle of locus potentiate as since the establishment of respondent Department, the employees of the field offices of FBR were extended the facility to appear in the examination, hence, a lawful right has been accrued in favour of the field staff which cannot be rescinded or recalled at this later stage. It is also submitted that keeping in view the, past practice the impugned ineligibility criteria/letter dated 21-4-2011 are liable to be set aside. Learned counsel relied upon "Nazir Ahmad v. Pakistan and 11 others" (PLD 1970 Supreme Court 453), "Pakistan, through the Secretary, Ministry of Finance v.
Muhammad Humayatullah Farukhi" (PLD 1969 Supreme Court 407), "Anjum Pervaiz and 2 others v.
General Manager (Operations), Pakistan Railways, Lahore and 4 others" (2010 PLC (C.S.) 1280), "Sher Muhammad Khan and others v. The Secretary, Establishment Division, Government of Pakistan, Islamabad and 3 others (2006 PLC (C.S.) 77), and "Riaz Hanif Rahi and others v. Registrar, Lahore High Court, Lahore and others" (2008 PLC (C.S.) 1175).
7. On the other hand, learned counsel for the respondents submits that the writ petitions have been filed prematurely as they have not exhausted alternate remedies available under section 7(3)(a) of the Federal Public Service Commission Ordinance, 1977. Further submits that ineligibility criteria was supported by the FBR vide its letter dated 21-4-2011, and therefore, these writ petitions are liable to be dismissed. It is next submitted that these petitions are involved factual controversy and therefore not entertainable. Further the ineligibility criteria has also been approved by the Establishment Division vide its letter dated 18-9-2012, therefore, the petitions are liable to be set aside. Learned counsel relied upon "Faiz Bakhsh and others v. Deputy Commissioner/ Land Acquisition Officer, Bahawalpur and others" (2006 SCMR 219) and also the order dated 13-10-2010 decided by this Court in Writ Petition No,15132 of 2010.
8. I have heard the learned counsel for the parties and also gone through documents attached with these petitions.
9. It is not disputed that the petitioners/appellants are working in the sales tax and income tax departments of the Federal Board of Revenue and these departments have been declared as subordinate office by the FBR in its letter dated 21-4-2011. The letter of Establishment ' Division and ineligibility criteria both are based on the letter dated 21-4-2011 the question which needs to be addressed, whether FBR on its own can amend The Rules of Business, 1973?
10. The answer to the above question is simple. FBR has no power or authority to amend The Rules of Business, 1973.
11. Under the said rules, subordinate office is defined under section 2(xx) which states that "Subordinate Office" mans a Federal Government office other than a Ministry, Division or an Attached Department." The above definition clearly show that any office of Federal Government other than a Ministry Division or ark Attached Department. Federal Board of Revenue is declared as an Attached Department of Revenue Division under Schedule III of The Rules of Business, 1973.
Perusal of the said Schedule III of The Rules of Business, 1973 also reveals that in case only head office of an Attached Department is to be considered "Attached" the same is clearly mentioned in the said Schedule-III. In case of Railway as well as Federal Investigating Agency it is clearly stated in Schedule III of the Rules of Business, 1973 that Pakistan Railways Headquarters office and Headquarters office of Federal Investigating Agency are attached departments only. Learned counsel for the respondents have not been able to show any amendment in the said rules.
However, reliance is placed on the letters of Establishment Division dated 18-9-2012. Perusal of the said letter reveals that the said letter is also based upon the letter of FBR dated 21-4-2012. No decision was made by the Establishment Division itself. Even otherwise, Rule 3(3) of The Rules of Business, 1973 states "the distribution of business or the constitution of the Division may be modified from time to time by the Prime Minister." Respondents have failed to produce any modification of Revenue Division approved by the Prime Minister. Therefore, declaring the petitioners/appellant ineligible to appear in the Section Officer Promotional Exams is illegal and unlawful.
12. Further the criteria laid down by the respondents is clearly discriminatory treatment meted out to the petitioners on the face of it because in a democratic dispensation a society believing in rule of law there should be no arbitrary policy, decisions/administrative orders which were discriminatory in nature. All persons placed similarly were entitled to be treated in the similar mariner. The ineligibility criteria declared by the Federal Public. Service Commission on the basis of letter dated 21-4-2011 is clearly discriminatory and as such cannot hold field.
13. The employees working in the headquarter are eligible as per criteria, however, the employees working in the field office are not eligible to appear in the Section Officers Promotional Examination. This is nothing but discriminatory and violation of Articles 25 and 27 of the Constitutional.
14. The ineligibility criteria/letter dated 21-4-2011 are also liable to be set aside on the principle of locus potentiate as the petitioners were employed by FBR and are working for FBR. Due to the ineligibility letter dated 21-4-2011, the petitioners have lost the opportunity of promotion. Moreover, all the employees of FBR were allowed to appear in the promotion examination since long without any objection of field offices and this long valid practice cannot he deviated or departed without any legal justification.
15. Consequently, all the writ petitions as well as the FAO are hereby accepted by declaring the ineligibility criteria mentioned at Sr. No,1 of the advertisement for Section Officer Promotional Examination-2012 that "All Subordinate Offices such as Customs/Central Excise and Income Tax including field offices of the FBR, as well as the letter/order dated 21-4-2011 as illegal and unlawful and the same are hereby set aside being against The Rules of Business, 1973 and the petitioners are declared eligible to appear in the Section Officers Promotional Examination by treating them at par with the other employees working in the FBR whether at headquarter or in the alleged field office.
Petitions/.