' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellants Messrs Ghulam Sarwar Chaudhry, Khadim Hussain Zahid and Muzaffar Ahmed Bajwa are Assistant Income-tax Officers (BPS-16). They have filed these appeals respectively for up gradation of the posts of Assistant Income-tax Officers to BPS-17. The appeals arc similar on facts and involve same questions of law. Therefore they have been heard together and are disposed of by this one consolidated judgment.
2. The appellants' case, in nutshell, is that Assistant Income-tax Officers and Income-tax Officers (hereinafter referred to as the AITOs and ITOs respectively) discharge same duties in the hierarchy of the Income-tax Authorities but there is discrimination in their emoluments as the AITOs are placed in BPS-16, whereas the ITOs draw emoluments in BPS-17. Their representations to the concerned authorities did not succeed, although they agitated their cause against the disparity in the grades of pay allowed to the AITOs and ITOs and cited identical cases of officers in the offices of the Accountant General/Auditor General, Police Department, Veterinary Department, Agriculture Department and the Customs Department, etc. After exhausting departmental remedies unsuccessfully, they preferred these appeals on 15-6-1986.
3. The facts stated in the memos. Of appeals do not furnish clear picture of the case of the appellants they have been fighting for. They were elaborated by the learned counsel appearing on their behalf at the hearing of the appeals. The facts outlined by the learned counsel are that the appellants were appointed as Assistant Income-tax Inspectors on different dates; the appellant Mr. Ghulam Sarwar Chaudhry having been appointed on 19-12-1967, while the appellant Mr. Khadim Hussain Zahid was appointed on 22-4-1969, and Mr. Muzaffar Ahmed Bajwa on 1-4-1971. The appellants M/s. Ghulam Sarwar Chaudhry and Khadim Hussain Zahid passed departmental examination in the year 1973, and the appellant Mr. Muzaffar Ahmed Bajwa in the year 1974. The appellants Mr. Ghulam Sarwar Chaudhry and Mr. Khadim Hussain Zahid were promoted as AITOs on 2-4-1981, while the appellant Mr. Muzaffar Ahmed Bajwa was promoted, as such, on 14-2-1982.
The AITOs and the ITOs held distinct identity under the Income-tax Act, 1922 (hereinafter mentioned as the Act), but that distinction was done away with under Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance), which repealed the Act. The appellants' case is based on the provisions of the Ordinance.
4. The learned counsel for the appellants chalked out comparison between the relevant provisions of the Act and the Ordinance to demonstrate that the rank of the Altos was distinctly lower than that of the ITOs under the Act, whereas both the AITOs and the ITOs stand at par under the Ordinance. To augment his argument, he has made pertinent reference to clause (3) of section 2 of the Act defining "Assistant Income-tax Officers"; section 5(dd) of the Act classifying the "Assistant Income-tax Officers etc. As a class of the income-tax authorities for the purposes of the Act"; section 5 (3-a) of the Act providing for the appointment of the "Assistant Income-tax Officers" etc. By an income-tax authority; and section 5 (5-a) of the Act envisaging the functions to be performed by the "Assistant Income-tax Officers" etc. And clause (25) of section 2 of the Ordinance containing definition of the term "Income-tax Officers". Lie next pointed out that "ALTO" stands merged in the definition of the term "ITO" as defined under the Ordinance and wherever the term "Income-tax Officers" is employed in the Ordinance, it includes "Assistant Income-tax Officers", particularly in sections 3, 4 and 5 of the Ordinance. Advancing his argument, the learned counsel for the appellants contended that there is absolutely no distinction in rank of and discharge of functions by the ALTOS and the ITOs, except the disparity in their pay and other monetary benefits.
According to the learned counsel, there could be no conceivable justification for maintaining disparity between the AITOs and the ITOs in respect of their pay etc. After removal of distinction in their respective ranks under the Ordinance and that distinction needed to be done away with as was done in the case of some other departments, referred to in the memo. Of appeal. He has placed reliance on the following authorities:-
(1) Postmaster General Eastern Circle, E.P. Dacca v. Muhammad Hashim PLD 1978 SC 61;
(2) Islamic Republic of Pakistan v. Qazi Abdul Karim 1978 SCMR 289 (291); (3)Province of Punjab v. Kamaluddin P 1. D 1983 SC 126.
' The learned counsel urged that even if the appellants are denied upgradation of their posts to BPS-17, they would be entitled to the pay for higher posts, the duties/responsibilities whereof they have been discharging and he has relied upon the following cases:
(1) Federation of Pakistan v. Shahzada Shahpur Jan 1986 SCMR 991;
(2) Imdad Ali v. Pakistan PLD 1986 SC 349 and
(3) Accountant General Pakistan Revenues v. Arbab Mukhtar Ahmad 1986 SCM R 1206.
5. The respondents have resisted the appeals and urged that there is marked distinction between the posts of AITOs and ITOs in recruitment to those posts in respect of qualifications and that distinction did not disappear by mere inclusion of the "Assistant Income-tax Officers" in the definition of the "Income-tax Officers". The learned counsel representing the respondents pointed out that the appellants were originally appointed as Income-tax Inspectors (B-11) and they became AITOs by way of promotion after creation of the new cadre of "Assistant Income-tax Officers" in December, 1962 by redesigning the posts of Examining Officers and making opening for the subordinate ranks including the Income-tax Inspectors to enter the cadre. He made reference to certain orders made in that behalf. He also made reference to the recruitment rules to the posts of AITOs of 1981 and also made mention of the Administrative Reforms in the Income Tax Group contained in Office Memorandum No, 4/2/75-ARC, dated the 9th .May, 1975 (at page 738 of the ESTACODE 1983 edition). He has, of course, disclosed that up gradation of the posts of the AITOs was recommended to the Pay Commission by the Central Board of Revenue but the recommendation was not accepted.
6. The issue for consideration is whether there is any distinction between the posts of AITOs and the ITOs after the promulgation of the Ordinance and there is justification for maintaining disparity in their pay etc. There can be no doubt that there is distinction in the dictionary meaning of the two terms viz. "Assistant Income-tax Officers" and the "Income-tax Officers", the former denoting lower/subordinate position. Of course, the connotation of the two terms is to be magnified in the context of the law they have been provided in. Reference may, therefore, be made to the provisions of the Act and the Ordinance. In the Act, the term "Assistant Income-tax Officers" was defined in clause (3) of section 2 to mean a person appointed to be an Assistant Income-tax Officer uncle) section 5; the term "Income-tax Officer" defined in clause (7) of section 2 meant a person appointed to be an Income-tax Officer under section 5. This definition was enlarged subsequently by amending laws as to include a person appointed as a Special Officer, a Tax Recovery Officer and Assistant Income-tax Officer and an Examining Officer. The term "Assistant Income-tax Officers" was included in the definition by Act No, XVI of 1963. In section 5 of the Act, as substituted by Act VII of 1939, the Income-tax authorities were classified as (a) the Central Board of Revenue;
(h) Commissioner of Income-tax; (c) Assistant Commissioner of Income-tax; and (d) Income-tax Officers. Subsequently, Directors of Inspection, Inspecting Assistant Commissioner of Income-tax, Special Officers, Tax Recovery Officers, Assistant Income-tax Officers, Examining Officers and Inspectors of Income-tax were added to the array of the income-tax authorities by different amending laws. "Assistant Income-tax Officers" were empanelled in the list of authorities by Act No, XVI of 1963. By the same Act No, XVI of 1963, the "Assistant Income-tax Officers" were included in subsection (3-a) of section 5, providing for their appointment by the income-tax authorities.
Subsection (5-a) of section 5 of the Act, as amended under Act No, XVI of 1963, provided that the Assistant Income-tax Officers would perform such functions in the execution of the Act as assigned to them by the income-tax authorities under whom they were appointed to work and would be subordinate to such authority. In the Ordinance, "Assistant Income-tax Officers" were included in the definition of the "Income-tax Officers" contained in clause (25) of section 2, and consequently they stood included in the term "Income-tax Officers", being amongst the income-tax authorities classified in section 3 of the Ordinance, and wherever the term "Income-tax Officer" is employed in the Ordinance, it includes the "Assistant Income-tax Officers".
The subtle distinction between the provisions of the Act and the Ordinance in respect of "Assistant Income-tax Officers" is that under the Act the functions of the AITOs were those as were assigned to them by the income-tax authorities under whom they were appointed to work, which included the ITOs, whereas under the Ordinance they are required to discharge the functions as arc to he performed by the ITOs and thus they stand at par with the ITOs as regards the performance of functions, of course, subject to tilt assignment of the functions by an income-tax authority above the ITOs.
7. However, it needs to be considered whether the AITOs and ITOs do stand at par in the rank in the hierarchy of the income-tax authorities. A new cadre of Assistant Income-tax Officers, Class-11, was added to the hierarchy of the income-tax authorities in the year 1962 vide Office Memorandum dated 28th December, 1962, reproduced below:- "No, 2/38/62-DI Government of Pakistan President's Secretariat (Establishment Division)
Karachi, the 28th December, 1962.
OFFICE MEMORANDUM ' Subject:--Creation of a new cadre of Assistant Income-tax Officers, Class H, in the Income-tax Department.
' The undersigned is directed to refer to the Central Board of Revenue Office Memorandum C. No, 129(3)AIT/1/62, dated Nil August, 1962, and the subsequent correspondence resting with their Office Memorandum of the same number dated the 13th November, 1962, on the above subject, and to say that this Division agrees to the creation of a new cadre of Assistant Income-tax Officers, Class II, in the Income-tax Departments subject to the following conditions:--
(0) The existing 33 Examining Officers may be redesignated as Assistant Income-tax Officers, Class II, as proposed by them;
(ii) Additional posts of 120 Officers may he created and filled up in three years time at the rate of 40 officers every year, by direct recruitment on an ad hoc basis through the Central Public Service Commission as proposed by them; and
(iii) thereafter, all future vacancies in the cadre should he filled up on the basis of 20% by departmental promotion and 80, by direct recruitment through the Central Public Service Commission.
(2) The Central Board of Revenue may kindly take necessary action accordingly. The C.B.R's files No, 51(9)-AIT/55 and No, (36)-A1T/56 are, returned herewith, receipt of which may kindly he acknowledged. Sd/- Sadat Hossain, Section Officer, Government of Pakistan.
' Central Board of Revenue, ' Karachi. (Mr. Nasir Hussain, S.0.).
' At that time, the other posts then existing in the hierarchy of the authorities stood upgraded to Class-I. The cadre of the AITOs is being maintained. The appointments to the cadre were being made in the manner laid down in the Office Memorandum dated 28th December, 1962. The method of appointment, qualification and other conditions applicable to the posts of Assistant Income-tax Officers (Grade-16) issued by the Central Board of Revenue were notified vide Gazette Notification No, SRO 905(i)/81, dated 13th August, 1981. The posts have been classified as non-selection posts to be filled in by promotion on senioritycum fitness basis from amongst income-tax Inspectors who meet the conditions laid down in Part II of the Rules. The appointments by promotion are to be approved by the Chairman, Central Board of Revenue as the appointing authority for Grade-16 officers. The posts of I.T.Os. Are borne in Grades 17 and 18. In pursuance of the Administrative Reforms, various Occupational Groups were constituted. A separate group for Income-tax Department was constituted under Office Memorandum No, 4/2/75-ARC, dated 9th May, 1975 to function within the broad frame work of rules and procedure laid down thereunder. The posts in Grades 1 to 16 were to be regulated/governed by the existing instructions. The posts in Grade-17 were to be filled in through competitive examination conducted by the Federal Public Service Commission to the extent of 75 per cent and the remaining 25 per cent posts were to be filled in by way of promotion. Competitive examination/departmental examination was provided for qualified persons in Grade-16 and below for securing entry in Grade-17. Promotions to the posts in Grade-18 and above were to be made in accordance with the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 subject to the length of service as prescribed in the Establishment Division Office Memorandum No, 3/7/74-AR.II, dated 20th May, 1974. Provision was also made for lateral entry and eligibility for service to the Secretariat Group in All-Pakistan Unified Grades and determination of inter sc seniority in various grades. Thus, the AITOs placed in Grade-16 have opening to enter Grade-17 by way of promotion to the extent of 25% posts after passing competitive examination and putting in at least two years' service. At the time of the creation of the cadre of the AITOs, there were no prospects for them to ascend to upper grade. They have, therefore, hardly a case to get themselves equated with the ITOs. Who are placed in Grades 17 and 18, as a matter of right. Of course, their case was recommended by the Central Board of Revenue for equating them with the ITOs but the Government did not agree and it was a question of policy within the sole discretion of the Government. The appellants have been claiming that they may be equated with the ITOs solely on the ground that the Income-tax Ordinance, 1979 does not make any distinction between the ITOs and AITOs particularly in the field of discharge of their duties and, therefore, there should not be discrimination by placing them in Grade-16, while the ITOs are enjoying Grades-17 and 18. As mentioned above that a special cadre of AITOs was established in Class service in the year 1962, the AITOs were included in the list of the income-tax authorities enumerated under section 5 of the Act, and the term "Assistant Income-tax Officer" was defined at clause (3) of section 2 of the Act and it was provided under section 5(a) of the Act that the AITOs were to perform such functions in the execution of the Act as were assigned to them by the income-tax authorities under whom they were appointed to work and were subordinate to such authorities. Under the Ordinance, Assistant Income-tax Officer (AITO) stands included in the definition of the Income-tax Officer (IT()) and the Income-tax Officers have to perform their functions as may be assigned to them by the Income-tax Commissioners to whom they are subordinate as provided under section 5 of the Ordinance. Of course, the AITOs have been categorised as Income-tax Officers amongst the income-tax authorities and their functions would be of the nature of those that may be assigned to the ITOs. By the concerned Commissioner of Income-tax; but assignment of the duties vests in the Commissioner of Income-tax. The nature of the main job of the ITOs. Is that of assessment of income liable to income-tax and their job may be entrusted to AITOs in Grade-16 or to an IT() in Grade-17 or even in Grade-18 resting on the discretion of the Commissioner of Income-tax. If the argument of the AITOs that they may be equated with ITO in the matter of emoluments etc. Were to prevail, the ITOs in Grade-17 would claim to be entitled to the emoluments etc. In Grade-18 on the plea that they all come within the definition of ITOs. There may he various considerations in assignment of the job to he performed under the Ordinance, such as the magnitude of the work and its importance, nature of the cases to he assessed, interpretation and applicability of various provisions of law, exercise of discretionary powers etc. Mere inclusion of AITOs in the definition of the ITOs under the Ordinance does not place them at par with the ITOs. There are also two categories of the ITOs, one placed in Grade-17 and another in Grade-18. There can be different considerations for assignment of duties in the same field such as qualifications and experience etc. There are different qualifications for the posts of ITOs and AITOs and the AITOs have to pass prescribed examination for seeking entry in the cadre of the ITOs. If the AITOs, who enter the service on lower qualifications, are equated with the ITOs possessing higher qualifications, as sought by the appellants, the better course to be adopted could be to close the cadre of AITOs altogether and creats the posts of ITOs. To have in service officers of higher qualifications. The claim of the appellants is, therefore, not tenable. The cases relied upon by the learned counsel for the appellants do not advance their case. In the case of Postmaster-General, Eastern Circle (E.P.), Dacca and another v. Muhammad Hashim, cited as D L R 1971 SC 49, also reported in PLD 1978 SC 61, pertained to payment of pay on officiating promotion to higher post involving assumption of duties and responsibilities of greater importance; but that is not the case here. Similar was the case cited as Islamic Republic of Pakistan v. Qazi Abdul Karim, reported in 1978 SCMR 289. Of course, the case of Kamaluddin and others was contested for upgradation of post of Readers in the Lahore High Court on the analogy of up gradation of the corresponding posts in other departments. The Punjab Service Tribunal gave decision in favour of the Readers. The Government of Punjab preferred appeal before the Supreme Court. It was submitted before the Supreme Court that the placement of posts in the grades was a matter of policy of the Government and the Service Tribunal could not go into it. It was observed by the Supreme Court that the decision of the Service Tribunal was just, fair and equitable and, therefore, it was not interfered with as such plea of the Government policy was not agitated before the Service Tribunal. The decision of the Supreme Court is reported in PLD 1983 SC 126. In the instant case, the posts of AITOs arc lower in rank to those of the ITOs and the question of up gradation of the posts of AITOs from Grade 16 to Grade 17 on the plea that AITOs are included in the definition of the ITOs under the Ordinance is altogether a different matter and the decision in the aforesaid Kamaluddin and others' case is not applicable. Thus, there is no merit in the appellant's case.
8. The learned counsel for the appellants advanced argument that even of the posts of AITOs are not upgraded to Grade-17, they may be allowed pay in Grade-17 as they have been discharging the functions of the post in Grade-17. This argument also is not sustainable as the job to be performed by the ITOs under the Income-tax Ordinance is discharged by the AITOs in Grade-16 and the ITOs in Grades-17 and 18. Thus, the job discharged by the AITOs is the job they had to do under the Act and have to do under the Ordinance and they are not required to discharge duties beyond the dimensions of the duty they are enjoined to do under law as AITOs. The cases cited by the learned counsel for the appellants are on the proposition that the officers required to hold higher posts involving duties of higher magnitude are entitled to the emoluments of the higher posts. In the case of the appellants they arc expected to discharge their duties as may be assigned to them by the Commissioner of Income-tax under the Ordinance and they are not required to discharge the functions of higher posts. Those cases, therefore, do not extend to the appellants' case.
9. Consequent to the reasons recorded above, the appellants do not have a case to succeed and their appeals are dismissed. No order is made for costs.