MANZOOR HUSSAIN SIAL, J.- Ibrar Hussain Naqvi, Member (Judicial) Income Tax Appellate Tribunal has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan for a declaration that he is entitled to privileges and salary in BPS.21, from the date, the post held by him stood upgraded.
2. The facts, in brief, giving rise to this petition are that the petitioner was appointed on 15.8.1976 as Legal Adviser in Grade-20, in the Federal Land Commission. While working as such, he was selected as Member (Judicial) Income Tax Appellate Tribunal in the same grade by the Federal Public Service Commission. He joined in that capacity on 1.7.1978 and was confirmed on 17.1.1980.
It is significant to mention that the President of Pakistan on 23.9.1981 upgraded all posts of Members Income Tax Appellate Tribunals from Grade-20 to Grade-21.
3. The petitioner claims that with the upgradation of all the posts of Members, Income Tax Appellate Tribunals the incumbents possessing qualifications as provided by Section 133 of the Income Tax Ordinance, 1979, stood inducted in Grade-21 automatically. The President of Pakistan in upgrading the posts of Members of the Income Tax Appellate Tribunals made no distinction in the eligibility of the incumbents for induction therein. The respondent No.2 (The Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad), however, amended the earlier SR0.296((((I))))/75 dated 5.3.1975 under sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, prescribing the method and qualification for the appointment to the post of Judicial Member, A proviso relating to the sitting Members was added to the effect, that they would be appointed on the recommendation of the Central Selection Board if they possessed the qualifications given in the schedule and had rendered at least 5 years service as such. By that time the petitioner had earned to his credit 6 years service in Grade-20, out of which he served for a period of 4 years as Member (Judicial) Income Tax Appellate Tribunal. The petitioner challenged the amendment in the rules through representation on the ground that the same was ultra vires of the provisions of the Income Tax Ordinance but that did not find favour with the respondents.
Nevertheless his case was forwarded to the Central Selection Board for promotion in Grade-21. The Central Selection Board opined that his case was not strictly that of promotion rather it was a case of induction in Grade-21. The Selection Board approved his case and recommended for his induction in Grade-21. The President, however, did not approve his case for promotion in Grade-21 vide order dated 21.3.1983. The petitioner maintains that the order of the President was never communicated to him. It is worth mentioning that the Central Selection Board again approved his case on 25.2.1989 and recommended for his induction in Grade-21 but the case was returned to the Central Selection Board for reconsideration. In the year 1991 his case once again came up for consideration before the Central Selection Board but it was not approved for submission to the President. Hence this petition.
4. Learned counsel for petitioner contended that on 23.9.1981 the post of the Judicial Member Income tax Appellate Tribunal was upgraded from Grade-20 to Grade-21, the competent authority imposed no condition for the Members already holding the posts for their induction in Grade-21 as they were qualified to hold the posts having been selected by the Public Service Commission and possessed qualification prescribed under. Section 133 of the Income Tax Ordinance, 1979. The petitioner's case wa erroneously considered as that of promotion and despite having been recommended twice by the Selection Board he was not considered to be entitled to hold the post of Judicial Member in Grade-21 although be had been performing functions ever-since his appointment as Judicial Member. The subsequent amendment made in the relevant rules imposing condition for the sitting Judicial Members to hold the post for 5 years so as to make them eligible for promotion/induction in Grade-21 was ultra vires of the substantive provisions of Section 133 of the Income Tax Ordinance, 1979. In support of his submission he relied on Dr. Muhammad Sarfraz Khan Rana Vs. Government of the Punjab and others (PLD 1990 Lahore 88(98) wherein it was held that if all the ex-cadre posts are upgraded the holders of those posts would be placed in the higher grade. Learned counsel argued that the post held by the petitioner was ex-cadre and all posts were upgraded, the incumbents were inducted in those posts with the upgradation thereof and no process of selection was involved therein. The rules of promotion could not be applied, as the petitioner's case was of induction and not promotion. The petitioner held the post which was upgraded. The qualification of the incumbents who had already been holding the posts remained the same. The amendment in the rules could not override the statutory provisions embodied in the Income Tax Ordinance, 1979.
5. Sh. Mqbool Ahmad, Advocate, appearing on behalf of the respondents, on the other hand, stated that when petitioner's case was first approved by the Selection Board for promotion in Grade-21, he was short of requisite experience of 5 years as such the competent authority did not approve his promotion. He also argued that the petitioner was holding the post in Grade- 20 which was later on upgraded to 21 and he was not inducted in Grade-21. He cited Amanat Ali vs. Syed Panah Ali Shah (PLD 1973 Lahore 332) in support of his submission, wherein it was held that when a post is upgraded the incumbent remains the same and he is not promoted from a lower post to a higher post. It was also submitted by him that petitioner's case for promotion was rejected by the competent authority therefore, he was not qualified to hold the, upgraded post in Grade-21.
6. The first question which needs consideration in this case is whether this petition is maintainable owing to the provisions of Article 212 of the Constitution which creates bar for maintainability of constitutional petition in matters arising from the terms and conditions of the service of Civil Servants exclusively entertainable by Services Tribunals. Learned counsel for respondents rightly did not agitate this point as no appeal lies to a Service Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade as envisaged under sub-section (1) of section 4 of the Service Tribunals Act LXX of 1973. In the instant case the petitioner's suitability to hold the post of Member (Judicial) Income Tax Appellate Tribunal in Grade-21 is subject to adjudication which dearly falls outside the mischief of Article 212 of the Constitution read with proviso to sub-section (1) of section 4 of the Service Tribunals Act, 1973.
The next and the most important question which falls for determination in this case is whether the petitioner was entitled to, and qualified to be inducted in the upgraded post in Grade-21. It is significant to point out that before the post of Member (Judicial) Income Tax Appellate Tribunal, was upgraded from Grade-20 to Grade-21 on 23.9.1981 by the President of Pakistan the petitioner was holding the post and performing the same judicial functions. The upgradation of the posts of Members (Judicial) Income Tax Appellate Tribunals was general and not restricted to individuals.
The President of Pakistan sanctioned upgradation of the post of Member (Judicial) Income Tax Appellate Tribunal with effect from the date the incumbent holding the post was inducted in the upgraded post according to the rules on the subject. No other embargo was imposed on the incumbent obviously for the reason, that he was selected to hold the same post by the Public Service Commission as well as performing the same judicial functions. Learned counsel for the parties were unable to cite any rule for induction of incumbents to upgraded posts, therefore, the qualifications prescribed for the incumbents under section 133 of the Income Tax Ordinance read with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 were applicable at that time. The subsequent amendment made in the notification No.SRO.296(I)75 dated 5.3.1975, in the second proviso to Sub-Rule 1-A thereof in respect of the qualification of Member (Judicial) Income Tax Appellate Tribunal holding office as such immediately before 22.9.1981 would be appointed to Grade-21 on the recommendation of the Central Selection Board provided he possessed the qualification prescribed in the schedule and had rendered at least 5 years' service as such, could not bye-pass the relevant statutory provisions of Income Tax Ordinance, 1979. It is, however, established on the record that although by then the petitioner did not complete 5 years service as Member (Judicial) Income Tax Appellate Tribunal, nevertheless, on the basis of his qualification and service record the Central Selection Board's recommendation for his promotion entitled him to be inducted in Grade-21. The recommendation of the Central Selection Board was endorsed by the Establishment Division but the President of Pakistan on 21.3.1983 did not promote him, considering it a case of promotion and not that of his induction in the upgraded post. The petitioner was again selected by the Central Selection Board and his case recommended on 16.1.1989 for his promotion as by then he had already served for more than 5 years as Member (Judicial) Income Tax Appellate Tribunal but it appears that his case was not favourably considered by the competent authority.
It is apparent from the record produced by Mr. Muhammad Akram Janjua, Section Officer, Establishment Division, Government of Pakistan, Islamabad that petitioner's case was always considered to be that of promotion and not of induction in Grade-21 despite this fact was highlighted by the Central Selection Board in its recommendation to the President of Pakistan. Had his case been considered in its correct perspective the petitioner being qualified to hold the post of Member (Judicial) Income Tax Appellate Tribunal on the basis of his experience, knowledge and integrity he would have been held entitled to hold the upgraded post. Even if it is assumed that the qualifications prescribed for induction of an incumbent in Grade-21 are supplementary and do not run contrary to those prescribed under section 133 of the Income Tax Ordinance, 1979, the petitioner's case when second time was approved by the Central Selection Board as well as the Establishment Division as by then he had already served as Member (Judicial) Income Tax Appellate Tribunal for a period of over five years there could be no legally valid reason, not to induct him in Grade-21 post or to ignore the recommendation of the Central Selection Board headed by Mr. Ghulam Ishaq Khan as its Chairman, and now the President of Pakistan. I am therefore of the view, that the case of the petitioner was not considered in its correct perspective.
He was qualified to hold the post of Member (Judicial) Income Tax Appellate Tribunal in Grade-21 at least with effect from 1.7.1983.
The upshot of the above discussion is that, this petition is allowed, and the petitioner is declared entitled to hold the post of Member (Judicial) Income Tax Appellate Tribunal, with effect from 1.7.1983. In Grade-21 with all benefits accruing therefrom.
There shall however, be no order as to costs.