Muhammad Javed Iqbal Kasi, Member.--Since facts of Appeals No, 1336 & 1337(R)CS/2015 are common and the questions of law in all the three appeals are same, therefore, we intend to decide these appeals through this consolidated judgment, in the following manner: ' APPEALS NO. 1336 & 1337(R)CS/2015: Appellants, namely, Waseem Hassan Akhtar and Ijaz Ahmed, who are working in Model Customs Collectorate (MCC), Faisalabad, have filed these appeals with the following prayer: "In view of above given position, it is most humbly prayed before this Hon'ble Tribunal that instant appeal may very graciously be allowed and the Respondent Nos. 1 & 2 be directed to take into consideration the recommendations of the DPC communicated to Respondent No, 2 vide letter dated 07.05.2013 by Respondent No, 3 and promote the appellant as Inspector (BS-16) from the date of vacancy or from the date of DPC whichever is earlier with all, back benefits, in the supreme interest of justice and fair play."
3. Concisely, the facts of the case are that the appellants, while working as Upper Division Clerks
(UDC) (BS-07), appeared in the Departmental Promotion Examination, along with others, for the post of Inspector (BS-14) held on 27.05.2002 and having qualified the examination, their names were entered in the waiting list for promotion to the post of Inspector. Later the appellants were promoted to the post of Head Clerk (BS-14) in MCC, Faisalabad. In view of availability of vacant posts of Inspectors in the said Collectorate, a meeting of the Departmental Promotion Committee
(DPC) was convened on 02.05.2013, headed by the Collector, MCC Faisalabad as Chairman, and two Additional Collectors as Members, which, after appraisal and scrutiny of service record of the appellants and finding them qualified and eligible, recommended them for promotion as Inspectors (BS-16) to the competent authority. However, the recommendations of the DPC were not approved by the Member (Admn) FBR i.e, Respondent No, 2 on the plea that the minutes of the DPC were against the rules and void ab initio. The Collector, Model Customs Collectorate, Faisalabad i.e, Respondent No, 3 was directed to submit complete proposal vide letter dated 27.05.2013. The matter of promotion of the appellants was being unnecessarily prolonged by Respondent No, 2, therefore, they were left with no option but to approach the Hon'ble Islamabad High Court, Islamabad through Writ Petition No, 1432/2014, which was finally disposed of with the direction to approach this Tribunal, vide order dated 22.01.2015. The appellants then filed representations to Respondent No, 1 on 27.02.2015 but the same remained un-responded despite lapse of statutory period, hence these appeals.
4. Along with the appeals, the appellants have filed Misc. Petitions No, 1209 & 1210/2015 with the prayer to restrain the respondents from filling the posts of Inspectors meant for promotion of ministerial staff who had qualified the Departmental Promotion Examination long ago i.e, in 2002 and for withdrawing at least two posts of Inspectors from the FPSC till the final decision of these appeals.
5. The prayer in Appeal No, 1607(R)CS/2015, filed by appellant, Raja Ishtiaq Ahmed, who is working at Model Customs Collectorate, (MCC) Islamabad, are as under: "In view of above given position, it is most humbly prayed before this Hon'ble Tribunal that instant appeal may very graciously be allowed and the inaction on the part of Respondent .Nos. 2 & 3 in the matter of promotion of the appellant to the post of Inspector Customs (BS-14/16) be declared as illegal and against the law laid down by the Hon'ble Supreme Court and this Hon'ble Tribunal in different cases and the respondents be directed to consider the case of promotion of the 'appellant to the post of Inspector Customs from the date when he was eligible for consideration against the post in MCC Islamabad on the basis of passing Departmental Promotion Examination- 1996 and in case no vacancy is available, either the junior most Inspector appointed by the method of transfer be reverted to his original office or a supernumerary post of Inspector Customs may be created in MCC Islamabad for accommodating the appellant. It is further prayed that all back benefits of the post of Inspector may also be extended to the appellant, in the supreme interest justice and fair play."
6. Briefly, the facts of this case are that the appellant was performing duties of Lower Division Clerk (BS-05) in the then Collectorate of Customs & Central Excise, Rawalpindi in December, 1996 when a Departmental Promotion Examination of ministerial staff to the post of Inspector was held and he, being eligible for appearing in said Examination, appeared which he qualified, as communicated to him by the department vide result card dated 29.01.1997 and as per the existing recruitment rules, his name was entered into the list of 101 qualified candidates and that as provided in rules of 1977, his name in the above referred list was to be kept intact till he is promoted to the post of Inspector. The appellant was on extraordinary leave. However, he cut short his sanctioned leave and joined back the MCC, Islamabad on 22.05.2012 and got cancelled his remaining leave. The appellant was surprised to know that during his absence from the department, many juniors to him in qualifying list of ministerial staff were promoted as Inspectors in the Collectorate either on regular basis or acting charge basis and also employees of other Collectorates were transferred to MCC, Islamabad and adjusted there as Inspectors. In the circumstances; soon after his rejoining the Collectorate, the appellant submitted an application to the department on the same day with a request to consider his case for promotion, which was followed by another application dated 23.04.2013. In the meantime on retirement of one Inspector and on the request of the appellant, a meeting of the DPC was held on 16.04.2012 to consider the cases of ministerial staff who had qualified the departmental promotion examination for the post of Inspector but meeting of the DPC was adjourned till further order and in the meantime the FBR in total violation of the rules of 1977 filled in the vacant posts of Inspector by transfer of some Inspectors from other Collectorates. In response to applications of the appellant, he was informed by Deputy Collector (HQ), MCC, Islamabad vide letter dated 17.05.2013 that the post of Inspector Customs had been upgraded to BS-16 since 01.01.2013 and fresh recruitment/promotion rules to that post were to be framed with the approval of Establishment Division, therefore, his request would be considered once the rules for the post were notified taking into consideration the sanctioned/working strength and availability of post in the departmental promotion quota at that point in time. During the years 2012 to 2014 five posts of Inspectors became vacant in MCC, Islamabad on account of retirement of M/s. Muhammad Ismail, Fazal Mehmood, Muhammad Asghar, Nawazish Shah and Muhammad Sadiq and instead of considering the case of promotion of three LDCs whose names were available on list of qualified ministerial staff to be promoted as Inspector, the FBR transferred 11 Inspectors from other Collectorates/Regional Tax Offices to MCC, Islamabad and in this way they permanently blocked the promotion of eligible candidates whose name were available in list of 1997. The appellant objected to illegal act of the authorities in FBR vide application dated 30.10.2014 but all in vain. Finally, the appellant decided to approach this Tribunal and in order to meet the mandatory requirement of filing departmental representation/appeal before the concerned authority, submitted a representation, which remained unresponded, as such, the appellant filed the subject before this Tribunal, along with Misc. Petition No, 1444/2015 with the prayer of restraining the respondents from filling in the posts of Inspectors meant for promotion of ministerial staff who had qualified the Departmental Promotion Examination long ago i.e, in 1996 and directing them to withdraw at least one post of Inspector from the FPSC till the final decision of the appeal filed before this Tribunal.
7. In nutshell, the grievance of the appellant in this appeal is that out of 101 qualified candidates of Examination-1996 to the post of Inspector Customs, 98 have already been promoted and adjusted as Inspectors but the present appellant, and other two appellants, namely, Sajjad Ahmed and Saleem Akhtar, are still running from pillars to post for their promotion and the respondents are bent upon to deprive them their due right of promotion on the pretext that new recruitment rules have been approved and notified, as such, they will have to qualify fresh Examination as and when it is held.
8. Since written objections have been filed by the respondents in Appeals No, 1336 & 1337(R)CS/2015 as well as replies to Misc. Petitions No, 1209 & 1210/2015 and the matter was of urgent nature, therefore, on the last date of hearing, it was agreed between the parties that on the next date of hearing viz. 19.10.2015, final arguments would be made by their learned counsels. Although written objections in Appeal No, 1607(R)CS/2015 have not been filed by Respondents No, 1 & 2 and only reply to Misc.
Petition No, 1444/2015 in this appeal are on the record but since the matter in all the three appeals is similar, therefore, the learned counsel for the parties have shown their readiness to argue the case on the basis of available record and accordingly, we have heard the arguments.
9. Learned counsel for the appellants, at the outset, referred to the recruitment rules of the post of Inspector notified by the then CBR vide S.R.O. 57(1)/77 dated 05.01.1977 and duly published in the Gazette; wherein it was provided that the ministerial officials having prescribed experience, who qualified the Departmental Promotion Examination, would be eligible for promotion to the post of Inspector of Central Excise & Land Customs and in these rules, a specific provision was also made that the list of successful candidates will continue to remain operative till all the selected candidates are absorbed". He contended that the appellants in Appeals No, 1336 & 1337(R)CS/2015 had qualified the prescribed departmental examination held in 2002 and their names were available in the seniority list dated 20.06.2002 and the appellant in Appeal No, 1607(R)CS/2015 did qualify the Examination in 1996 along with 100 others and that in view of legal cover provided in Rules of 1977, the respondents were required to promote them during the years 2012 & 2013 i.e, prior to notification of New Rules. He further contended that the DPC convened in MCC, Faisalabad on 02.05.2013 was in accordance with standing instructions (having the status of rules) of the Establishment Division produced at Sl. No, 162 at page 216 of ESTACODE, 2007. The next submission of the learned counsel was that the recruitment rules of the post notified by the FBR vide S.R.O.
202(1)/2015, dated 09.03.2015 being prospective in nature could not be applied in the cases of the qualified ministerial candidates, whose names were available in the seniority list dated 20.06.2002 issued by the department and in the circumstances; the acts of Respondent No, 2, not to approve the recommendations of the DPC and return their case to Respondent No, 3 with the direction to submit complete proposal regarding promotion of the qualified ministerial staff for their promotion against the post of Inspector (BS-16) and non-consideration of their case on resubmission of requisite proposal by Respondent No, 3 are sufficient to establish mala fide intention in the case of appellants in Appeal Nos. 1336 & 1337(R)CS/2015. While referring to the case of appellant in Appeal No, 1607(41)CS/2015, the learned counsel submitted that due to retirement of 05 Inspectors of MCC, Islamabad, vacancies became available where against the appellant and his two colleagues who were left from the qualified 101 candidates of 1996 departmental examination, could have been promoted/absorbed by the respondents but on the pretext that their case would be considered on notification of New Rules of the upgraded post of Inspector, ignored them and preferred to transfer 11 Inspectors from other Collectorates to MCC, Islamabad and by doing so they blocked the promotion of the appellant and his two colleagues, which act of the respondents being in violation of the recruitment rules of 1977 and infringing the vested right of the appellant to promotion as Inspector was also mala fide in terms of law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as 2011 SCMR 11 that "the manner of exercising power in violation of law is also termed as mala fide and while declaring so the Apex Court relied on law laid down in Agha Shorish Kashmiri's case reported as PLD 1969.SC 14". The learned counsel invited our attention to the alleged discriminatory treatment meted out to the appellants as in MCC Rawalpindi/ Islamabad, Respondent No, 2 had allowed to promote the qualified ministerial staff as Inspectors against vacant posts of Inspectors on acting charge basis and later they were regularized against their posts, but for unknown reasons this benefits was not extended to the appellants, which tantamount to violation of provisions of Article-25 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, he relied on the case reported as 1991 SCMR 1041 which is considered as leading case on the point of discrimination in Pakistani jurisdiction. The learned counsel vehemently argued that while sending 200 vacant posts of Inspectors (BS-16) i.e, all vacant posts to the Federal Public Service Commission for recruitment, Respondent No, 2 being the competent authority was, under legal obligation, to allocate these posts to promotion and initial appointment quotas in ratio of 50:50 i.e, half of the vacant posts to promotion quota and remaining half to initial appointment in accordance with Rules of 2015, have travelled beyond his jurisdiction which was not permissible under the law. In this regard, he further contended that the rules made in 2015 were prospective in nature and the same could not be applied with retrospective effect for taking away the right of the appellants i.e, to be promoted as Inspector on the basis of qualifying the departmental examination of 2002 and 1996 respectively by them in accordance with Rules of 1977.
10. While concluding his arguments, the learned counsel for the appellants placed reliance on the case law reported as 1982 SCMR 888, PLD 1973 SC 453, 2002 PLR (Lah.) 226, 1995 SCMR 1840, 1996 PLC (C.S.) 34, 2010 PLC (C.S.) 710 and prayed for acceptance of all the three appeals in terms of prayers made therein and issuance of a direction to Respondent No, 4 for making recruitment against 100 posts of Inspectors (BS-16) in FBR instead of 200 posts.
11. The learned counsel for the respondent department resisted the appeals. He referred to the objections raised in their written objections filed in the appeals regarding the maintainability of the appeals on the ground that no appeal lies in respect of matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade and cannot ask for , promotion as a matter of right, which is within the domain of the department-Authority.
Learned counsel contended that the post of Inspector has been upgraded from BS-14 to BS-16 with effect from 01.01.2013, as _such, the meeting of DPC held on 02.05.2013 in MCC, Faisalabad in the cases of appellants in Appeals No, 1336 & 1337(R)CS/2015 was not legal, therefore, the minutes of the meeting were not approved by Member, (Admn), FBR, as according to Rules of 2015, the DPC was required to be headed by Chief Management along with two Members of BS-19. The learned counsel further contended that mere passing of Departmental Promotion Examination does not qualify an official to be promoted automatically against the post of Inspector (BS-16) and he also disputed the claim of the above-referred appellants for promotion by stating that out of 59 posts of Inspectors in MCC Faisalabad, 56 had already been promoted in violation of quota of 50:50.
Rebutting the contention of discrimination, it was stated by the learned counsel that at this belated stage, it had no concern as the said acting charge promotions, made in the year 2008, which were subsequently regularized in the year 2009. Learned counsel, while concluding his arguments, placed reliance on a judgment reported as 1994 SCMR 1266 and requested for the dismissal of the appeals with heavy costs, being without any merit.
12. Respondent No, 4/FPSC, in their comments, have stated that they perform their function on receipt of reference for recruitment according to requirement of the department concerned and Recruitment Rules of the post in reference. They also confirmed that they had advertised 200 posts of Inspectors (BS-16) on the basis of requisition wherein the vacancies were shown to be fallen under direct initial appointment quota.
13. The learned counsel for Respondent No, 3 in Appeal ,No, 1607(R)CS/2015 adopted the arguments, advanced by the learned counsel for Respondents No, 1 & 2 in the appeals under reference.
14. We have heard the learned counsels for the parties, in addition to perusing the record carefully.
15. Before adverting to the merits of the cases, we will first take up the preliminary objection raised on behalf of the respondent-department that no appeal lies in respect of matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade and cannot ask for promotion as matter of right, which is within the domain of the department-Authority. We do agree that promotion cannot be claimed as a matter of right, but consideration for promotion, according to rules, is a vested right of a civil servant and as held in the case reported as 2009 PLC (CS) 40, the consideration for promotion means, a just and fair consideration and not as a matter of routine. In a cases reported as PLD 2003 SC 175; 1995 SCMR 650 and 2002 PLC (CS) 1071, the Hon'ble Supreme Court of Pakistan has held that where the rules, regulations and policy has been framed for regulating appointment and promotion, any breach or deviation from the same for mala fide reasons or to arbitrary act of the competent authority, would entitle an aggrieved civil servant to challenge the same before the Service Tribunal. In this view of the matter, we are of the firm opinion that the present appeals before this Tribunal are competent and maintainable.
16. Adverting to the merits of the case, after careful perusal of the record of the cases before us and analyzing the arguments advanced by the learned counsel for the parties, it emerged that under the recruitment rules of 1977 the ministerial officials having prescribed experience could have appeared in the departmental examination mentioned in the rules and after qualifying the same they were eligible for promotion to the post of Inspector of Central Excise & Land Customs and further emerged that it was specifically provided in above-referred rules that the list of successful candidates will continue to remain operative till all the selected candidates are absorbed. In pursuance of these rules of the respondent-department, the Examinations were held in Collectorate of Customs & Central Excise Faisalabad in 2002 and in Collectorate of Customs & Central Excise, Rawalpindi in 1996 and the appellants were amongst the officials, who qualified said examinations. It also emerged from the record that these rules remained in the field till S.R.0.202(1)/2015, dated 09.03.2015 was issued by the Federal Board of Revenue wherein the cadre of Deputy Superintendents of Customs was declared as dying cadre and all employees in BS-05 to 15 of Collectorates/Directorates of Customs having prescribed length of service in the respective basic scales were declared as eligible for promotion to the post of Inspector (BS-16) and the condition of passing departmental examination remained intact but the responsibility of holding such examination was entrusted to the Directorate of Training & Research under FBR. From the record, it has transpired that names of the appellants in present appeals were available in the respective lists of successful/qualified candidates waiting for promotion to the post of Inspector in their Collectorates and this crucial fact is proved from the record as well as arguments of the learned counsel for respondents that promotions against the post of Inspector were made during the period from 2004 to 2011 on regular as well as on acting charge basis and those who were promoted on acting charge basis were later regularized against their posts in their respective Collectorates.
17. We have noted that the main thrust of the learned counsel for the respondents in his arguments was on the point that in pursuance of Finance Division's Notification dated 04.01.2013, the post of Inspector along with its incumbents was upgraded from BS-14 to BS-16 by the Federal Board of Revenue vide notification dated 07.01.2013 with effect from 01.01.2013 and that it was requirement of the Establishment Division that necessary amendment be made in the recruitment rules of the Post. In order to comply with this condition, the FBR initiated the process of framing New Recruitment Rules, which culminated into issuance of SR0.202(1)/2015 dated 09.03.2015 and as per New Rules, the appellants were required to pass departmental examination to be held by the Directorate of Training & Research under FBR and that without passing that examination they could not be considered for promotion to the post of Inspector (BS-16). In this regard, we cannot ignore the fact that, had the case of the appellants for promotion considered when the post was in 138-14, then, of course, there could no objection that the DPC, which recommended the case of the appellants in Appeals No, 1336 & 1337(R)CS/2015, was illegal and void ab initio. For the sake of arguments, if we accept the stance of the respondent-department referred to above, then too, as per FBR letter dated 27.05.2013, in which, they advised Respondent No, 3 to forward complete proposal regarding promotion of the qualified ministerial staff for promotion against the Nit of Inspector (BS-16) and in reply thereto, the requisite information was submitted by him vide letter dated 10.07.2013, as such, it was incumbent upon the FBR to constitute another DPC, which they deemed appropriate for consideration, but it was not done, therefore, to get their due right, the appellants are running from pillars to post for the last two years.
18. The next argument of the learned counsel for the respondents was that since no post against the quota of promotion was available, therefore, the respondent-department forwarded all the vacant posts of Inspector (BS-16) to the FPSC for direct recruitment of 200 Inspectors for which the process is in progress.
19. The pivotal questions of law involved in these appeals are that (a) as to whether the rights accrued in favour of appellants on passing of departmental promotion examination under the rules of 1977 could be- taken away by the competent authority, (b) as to whether the Rules of 2015 could be applied with retrospective effect, (c) as to whether the department was not under legal obligation to apply the New Rules on the vacancies available on the date of issuance of SRO dated 09.03.2015, (d) as to whether it was not a mala fide attempt on the part of the respondents not to process and finalize the case of promotion of the appellants during the years 2012 to 2014 and waited for a long time to come new rules?
20. Since the questions of law pointed" out above are interlinked, therefore, we think it appropriate to take them together. We are of the considered view that on passing the departmental examination by the appellants under the Recruitment Rules of 1977, it was their vested right to be considered for promotion against he vacancies of Inspector available in their Collectorates at that time and if found fit, to be promoted against those posts and during arguments, it was not the case of the respondents that no vacancy prior to promulgation of Recruitment Rules of 2015 was available in MCC, Faisalabad and we have also noted that in other Collectorates and Regional Tax Offices under the FBR even the qualified candidates were allowed to be promoted against the posts of direct recruitment on acting charge basis and later on regular basis against those posts by the competent authority, as confirmed by the learned counsel for respondent-department.
Even, the appellant, in Appeal No, 1607(R)CS/2015 was given the officiating charge of the post of Inspector, which confirmed his stance that at that time a post of Inspector was vacant and he could have been promoted against the post on regular basis. It is important to take into consideration that at that time, the post of Inspector (BS-14) in MCCs was filled on, the basis of result of departmental examination held at the level of the Collectorates and in view of the established position that the list of successful/qualified candidates of an examination would remain intact till all of them were absorbed against the post of Inspector, we have no hesitation in holding that it was the vested right of the appellants to be considered and promoted as Inspectors in their Collectorate from the date of vacancies and in the case of appellants in Appeals No, 1336 & 1337(R)CS/2015, we have been provided two lists; one of Inspectors promoted and the other of Inspectors recruited through the process of initial appointment or by the method of transfer in MCC Faisalabad and after perusal of the lists, it is found that 03 posts of Inspectors were available in the Collectorate when meeting of the DPC was held on 02.05.2013 in the Collectorate under the chairmanship of Collector for considering the case of promotion of the appellants. As far as, composition of the DPC is concerned, the learned counsel for the appellants has rightly referred to the standing instructions of the Establishment Division available at Sl. No, 162, page 216 in ESTACODE, 2007 which provides constitution of separate DPCs for the posts in Grades 11 to 16 in Ministry/Division/Attached Departments/Subordinate Offices under the Ministry/Division and the composition of Committees has also been given in the instruction S and in the case of the appellants, the composition of the Committee in the MCC, Faisalabad was in accordance with above-referred instructions and in the circumstances; the competent authority i.e, Respondent No, 2 should have approved the recommendations of the DPC and if he had any reservation about the DPC, he should have pointed out the same and direct the Committee to reconsider the case of the appellants or get it reexamined by the DPC available in FBR for posts in BS-11 to BS-16 but the course of action adopted by Respondent No, 2 clearly speaks of his deliberate and mala fide intention to delay the promotion of the appellants till framing of New Rules. We are convinced that it was none of the fault of the appellants in getting lingered on their promotion case rather it was due to unfair and unjust conduct of the respondents and in the circumstances of the case, we find that inaction on the part of Respondents No, 1 & 2 in the case of the appellants was against all norms of justice and principles of equity and in view of the settled law that no one can be punished for the inaction or faults of public functionaries, we hold that the appellants succeeded in establishing the mala fide of the respondents in their cases.
21. As far as referring all the vacant posts of Inspector (BS-16) in the department to the FPSC on the plea that these were against the direct quota is concerned, we may refer to the instructions of the Establishment Division contained in their O.M. Dated 31.07.1991 which provide a clear method of allocation of vacancies to promotion, initial appointment and transfer methods and also about maintaining the roster of vacancies in the departments. We have gone through the letter dated 17.01.2000 of the CBR (now FBR) addressed to the Collector Customs & Central Excise, Rawalpindi wherein it was advised to calculate the quotas of promotion and initial appointment in the light of O.M. Of the Establishment Division referred to above. It is abundantly clear that had the respondents in the case of appellants followed the instructions of the Government available in O.M.
Referred to above in letter and spirit, never a dispute had arisen in the matter of allocation of quotas between promotion and initial appointment and here again, it was the fault of the respondents for which they could not be given premium under the well settled law on the point. In present case, on notification of New Recruitment Rules of 2015, which were prospective in nature, it was duty of the competent authority to allocate the available 200 vacancies of Inspector (BS-16) on that date in Customs Department under the FBR for promotion (50%) and initial appointment (50%) quotas in the ratio of 50:50, as also provided in the New Rules and accordingly send 100 vacancies of Inspectors to the FPSC for direct recruitment in the prescribed manner; and also to fill in the remaining 100 vacancies of Inspectors from among st the ministerial staff of different Collect orates who had already qualified the departmental examination held by their Collect orates and were waiting for their promotion under the 1977 Rules.
22. The learned counsel for the appellants referred to a decision of the Apex Court reported as 1982 SCMR 888, S. Abdul Ghaffar Wasti vs Collector of Central Excise & Land Customs and others, wherein the departmental view of the respondents that "those qualifying in earlier examination had a right to be promoted and that their vested right not impaired by new system of examination, held, correct and in recognizing qualification of respondents in that case arising out of result of earlier examination continuity of system kept, qualifications earned preserved, and basis for promotion not tampered with" (underlined for emphasis). In response to above, the learned counsel for the respondents referred to a decision of the Honorable Supreme Court of Pakistan in a case of Income Tax Department reported as 1994 SCMR 1266, wherein it was held that even the qualified persons not making grade would have to take examination whenever subsequently vacancies occurred and recruitment to them was envisaged. We have noticed a deciding factor between both the cases that in former case, it was specifically provided in the recruitment Rules of 1977 that the list of successful candidates of Departmental Promotion Examination will continue to remain operative till all the selected candidates were absorbed and when this position was confronted to the learned counsel for the respondents and inquired from him as to whether similar provision was available in the Recruitment Rules to the post of Inspector notified on 05.07.1982 by the Income Tax Department, he could not satisfy us about such provision in Recruitment Rules of the Income Tax Department. In view of our observations given above, we are fortified in our view that the case referred to by the learned counsel for the respondents being distinguishable does not support the case of the respondents.
23. Now, we come to the issue of effect of Recruitment Rules, 2015 on the vacancies of Inspector (BS-16) available on the date of notifying said rules and in this regard one thing is absolutely clear that as per decisions of the Apex Court in various cases the rules made under a statute, instructions and notifications issued by the Government and orders passed by the executive authorities could not be applied with retrospective effect and the vested rights accrued to civil servants under repealed rules would continue in force. In this regard, we may refer to a case reported as 2012 SCMR 965 wherein it has been held by the Apex Court that "Rules operate prospectively and if a right was created in favour of an employee under the old rule, it could not be taken away on the ground that the amended rule had allowed others to compete". In above- referred case, twenty six vacancies were available before the amendment of rule, and employees were entitled to be promoted against such vacancies under the seniority list, but the department did not consider them for promotion without offering any plausible explanation. It has been further held in the above case that "the amended rule did not permit the department to overlook the right of employees created under the law by applying the amended rule". In another case reported as 1998 PLC (CS) 132 wherein issue of determining seniority of the contesting civil servants was under adjudication, the Service Tribunal applied R. 8, Azad Jammu and Kashmir Civil Servants (Appointment, and Conditions of Service) Rules, 1977 to appointments made in 1975 when Kashmir Service Rules, Vol. II were applicable and when the matter came before the Hon'ble Supreme Court of AJ&K in appeal, it was held by it that "Service Tribunal committed patent' error without recording any reasons as to how Rules made in 1977 could have retrospective effect". It was further held by the learned Court that "where any law was repealed, rights accrued and liabilities incurred there- under would continue in force as if law had not been repealed".
24. We have taken note of the fact that the Recruitment Rules, 1977 were in the field till 2013 when vacancies of Inspector were available in MCC, Faisalabad and in presence of these rules, the competent authority could not have taken the plea for non-consideration of the case of promotion of the appellants in Appeals No, 1336 & 1337(R)CS/2015 that new rules were in process for approval and that their cases would be considered after notification of New Rules. This excuse of the competent authority was not in accordance with law laid down in the case reported as 2010 PLC
(CS) 710 wherein new rules were not framed by the concerned department and the old rules were repealed. In this case, it has been held that till framing of new rules, old rules would be deemed to be operative despite their implied repeal. Similar view has also been taken in the cases reported as PLD 1973 SC 453, 2002 PLR (Lah.) 226, wherein it has been held that practice of a department has a force of law. We are also aware of the law laid down in the cases reported as 1995 SCMR 1840 and 1996 PLC (CS) 34 that where no rules were framed, guidance to be sought from practice, administrative orders and precedents.
25. In accordance with provisions of Article-189 of the Constitution of Islamic Republic of Pakistan, 1973, we are bound to follow the law laid down by the Hon'ble Supreme Court of Pakistan in the cases referred to in different paragraphs of this judgment.
26. In view of deciding the main appeals by this consolidated judgment, the Misc. Petitions filed by the appellants in these appeals for grant of interim relief have become infructuous.
27. In view of what has been discussed above, we accept these appeals in terms of prayers made therein and as a consequence thereof, direct Respondents No, 1 & 2 to withdraw 100 vacancies of Inspectors (BS-16) from the FPSC and direct Respondent No, 4 not to recruit Inspectors against these posts. Respondent No, 2 is further directed to consider the appellants for promotion to three of vacancies ordered to be withdrawn from the FPSC in a meaningful manner and promote the appellants in Appeals No, 1336 & 1337(R)CS/2015 from the date their case for promotion to the post of Inspector was recommended by the DPC in MCC Faisalabad to the competent authority, with all consequential benefits. The case of appellant in Appeal No, 1607(R)CS/2015 be considered for promotion from the date his junior in the list of qualified ministerial staff of departmental promotion examination-1996 was promoted/absorbed as Inspector in any of the Collectorates under the FBR or an Inspector was transferred from another Collectorate to MCC, Islamabad. The appellant would also be entitled to all consequential benefits. We also direct the respondents that as a last resort, a post of Inspector may be transferred to or a supernumerary post of Inspector (BS-16) be created in MCC, Islamabad for accommodating the appellant in case of facing any difficulty. The process referred to above in all the cases shall be completed by the respondents within a period of two months from the date a copy of the judgment is received in their office.
28. No order as to costs. Parties be informed accordingly.