ORDER KHAWAJA MUHAMMAD SAEED, CJ. - The petitioner has invoked the Constitutional jurisdiction of this Court under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in the back-ground of the following facts.
He was inducted in the Excise Department Sub-Inspector in the year, 1971. On the recommendation of the Departmental Selection Committed, the petitioner was promoted as Inspector Income Tax on April, 20, 1993. In this capacity, the petitioner appeared in the 22nd Departmental Examination held in December, 1995 under Roll No. 1/14 and secured 334 out of 700 marks. He secured the required percentage prescribed for each paper but as he had not obtained 50 percent or more marks, therefore, in the wisdom of the department the petitioner >sas not qualified the examination. The petitioner, in this petition has ass^ied the decision of the department on the ground that the syllabus prescriU.i for the departmental examination has two parts, In order to qualify Part A the candidate is required the obtain 33% marks in each paper and 40% m;.< k.s in aggregate whereas in Part-B, the candidate must obtain 40% marks in .- ich paper and 50% marks in aggregate.
The case of the petitioner is tli.i> he had obtained 40% marks in each paper and 43.05% marks in aggregate in Part-A whereas 40% marks in each paper and 53.33% marks in aggregau was held that he did not qualify the departmental examination.
The respondents in their written suoement dated 21.12.1996 have pleaded that the standard mentioned by the petitioner is already holding and not for the purpose of further promotion.
According to the respondents- Department, the petitioner was required to attain the minimum aggregate marks of 50% in Part-A which deals with the Income Tax Laws and also in Part-B which deals with the Excise Laws. The petitioner, therefore, was required to obtain 350 marks out of 700 to be declared as qualified.
I have heal'd the learned Counsel for the parties and perused the entire record with care.
The case of the department is that the petitioner is not fit for promotion as he has not passed the departmental examination by obtaining at least 50% marks. . The learned Counsel for the petitioner has seriously controverted this proposition in the light of the different Government Orders. He has rightly pointed out that prior to the promulgation of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Income Tax Department was a part of the Azad Government of the State of Jammu and Kashmir. After the enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Income Tax Department was given in the legislative and executive control of the Azad Jammu and Kashmir Council. The Azad Government of the State of Jammu and Kashmir vide its order No. 193/62, dated April 5> 1962 had prescribed the syllabus for departmental examination of Inspectors; Wherein it was laid down that percentage in each paper of the said examination shall be 33% and 40% in aggregate. Only such an Inspector was held entitled for further promotion who had obtained 50% or more marks in the Departmental Examination. After 32 years in 1994, the Azad Jammu and Kashmir Council vide its Notification dated May 2, 1994 changed the terms and conditions for appointment to the posts in the Taxation Group carrying BPS-16 and above. This Notification being relevant is reproduced below in extenso:- PART-1 "Acts, Ordinance, Rules and Regulations K.L.R. C.C.
AZAD JAMMU AND KASHMIR COUNCIL SECRETARIAT (AZAD JAMMU AND KASHMIR COUNCIL, BOARD OF REVENUE) * NOTIFICATION Islamabad, the 2nd May, 1994.
No. E.Ll-15/80-AJKC.-In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appel I ament, Promotion and Transfer Rules, 1973, as adopted, the following method of appointment, qualifications, experience, age limits and other conditions are laid down for appointment to the under mentioned posts in BPS-16 and above in the Taxation Group (Income Tax-cum-Central Excise) Excise and Taxation Department A J & K under the Azad Jammu and Kashmir Council Secretariat- Designation BPS Commissioner Income Tax-cum-Collector Excise 20 and Taxation.
Inspecting Additional Commissioner Income Tax 19 (Range, Appellate Additional Commissioner Income Tax, Inspecting Additional Commissioner Income Tax (S&R)/Deputy Director Excise/Sales Tax, Deputy Director Excise and Taxation.
Designation BPS Deputy Commissioner Income Tax-cum-Assistant 18 Collector Excise/Excise and Taxation Officer.
Assistant Commissioner Income Tax-cum- 17 Assistant Collector Excise/Excise and Taxation Officer.
Income Tax Officer-cum-Superintendent, Excise I6 Assistant, Excise and Taxation Officer.
METHOD OF APPOINTMENT.
2. The above posts shall be filled in as follows:- S. No. Name and BPS of the posts. Method of appointment By By initial promotion, appointment #tbs 100% #to #tbs 25% 75% #to #tbs 100% #to #tbs 100% #to #tbs 100% #to #tbs Commissioner Income Tax-cum-Collector Excise and Taxation (BPS-20)
Inspecting Additional Commissioner Income Tax(Range), Appellate Additional Commissioner Income Tax, Inspecting Additional Commissioner Income Tax (S&R) Deputy Collector Ceii uni Excise/Sales Tax, Deputy Director Excite and Taxation. (BPS- 19).
Deputy Commissioner Income Tax-cum- Assistant Collector Excise/Excise and Taxation Officer (BPS-18).
Assistant Commissioner Income Tax-cum- Assistant Excise/Excise and Taxation Officer (BPS-17).
Income Tax Officer-cum-Superintendent Excise/Assistant Excise and Taxation Officer (BPS-16). #to Provided as:-
(a) Against 25% promotion quota the officers promoted to the posts of Assistant Commissioner Income Tax-cum- Assistant Collector Excise/Excise and Taxation Officer BPS 17 will be required to undergo the specialised training at the Directorate of Training (Income Tax), Lahore and (Customs and Central Excise) Karachi or such other departmental training as the Azad Jammu and Kashmir Council Board of Revenue may prescribe.
(b) 75% of the posts of Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer BPS-17 reserved for initial appointment shall be filled on the basis of Competitive Examination conducted by the Azad Jammu and Kashmir Council Public Service Commission i.e. Federal Public Service Commission.
(c) If no suitable person is available for promotion, the post or posts reserved for promotion shall be filled by initial appointment and failing that by transfer.
CONDITION FOR PROMOTION.
3. Promotion to posts in column 2 below shall be made by selection from amongst the persons who hold the posts specified in Column 3 on a regular basis:- #tbs S.No. Name and BPS of eligibility. Persoi ss' eligible. Condition of the post
1. Commissioner Inspecting 17 years Income Tax-cum- Additional service in Collector Excise 'Commissioner . BPS-17 and and Taxation Income above. (BPS-20).' Tax(Range)/Appella te Additional Commissioner Income Tax/Inspecting Additional Commissioner Income Tax (S&R) Deputy Collector Central Excise/Sales Tax/Deputy Director Excise and Taxation (BPS-19).
2. Inspecting Deputy l2 Additional Commissioner years Commissioner Income Tax-cum- service in Income Tax Assistant Collector RPS-17 and (Range)/Appellat Excise/Excise and above. e Additional Taxation Officer Commissioner (BPS-18), #to Income Tax Inspecting .
Additional Commissioner Income Tax (S&R)/Deputy Collector Central Excise/Sales Tax/Deputy Director Excise . , and Taxation (BPS-19)
Asstt.Commissioner 5 years #tbs
3. Deputy Commissioner Income Tax-cum- Assistant Collector Excise/Excise and Taxation Officer (BPS-18)
Assistant Commissioner Income Tax-cum- Assistant Collector Excise/Excise & Taxation Officer (BPS-17)
Income Tax Officer-cum- Superintendent Excise/Assistant Excise and Taxation Officer (BPS-16) #to Income Tax-cum- service in Assistant Collector fePS-17 Excise/Excise and Taxation Officer ((BPS-17)
Income Tax Officer- 3 years cum-Superintendent service in Exdse/Assistant BPS-16.
Excise and Taxation Officer (BPS-16)
Inspector Income (i) 5 years Tax Officer -cum- service in Excise and BPS-14; and Taxation/Deputy (ii) have Superintendent passed the Central Excise Department (BPS-14) al Examinatio n.
QUALIFICATIONS, EXPERIENCE AND AGE LIMITS AND OTHER CONDITIONS.
A. For Appointment to the posts by interview only.
4. A candidate must possess the educational qualifications and experience and must be within the age limits mentioned against the post concerned in the Schedule to this Notification that:-
(a) the maximum age limit will be relaxed by 3 years in the case of candidates belonging to the Azad Jammu and Kashmir and State Subjects settled in Pakistan in accordance with the instructions issued by the Government of Pakistan. ^
(b) For Government servants who have completed at least 2 years continuous permanent service, the maximum age limit will be relaxed by no more than 10 years up to the age of 55 years wherever applicable.
(c) the maxim am age limit in the case of released or retired commissioned "odicers personal of the Armed Forces will be relaxed up to a maximum of ten years or by the number of years on officers/ personnel has actually served in the Armed Forces, whichever is less.
B. For appointment through competitive examination.
5. A candidate must possess the age, educational and fulfil the other conditions prescribed in the rules for the Competitive Examination conducted by the FPSC. **
6. A candidate must be of Azad Jammu and Kashmir and State subject settled in Pakistan.
SYLLABI
7. Syllabi as prescribed for Competitive Examination conducted by the FPSC.
TRAINING
8. The persons selected for appointment on the basis of the Competitive Examination and allocated to Taxation Group would first undergo combined training at the Academy for Administrative Training and will pass FPO at the conclusion of specialised training at the Directorate of Training (Income Tax), Lahore and Directorate of Training (Customs and Central Excise) Karachi; followed by departmental and on the job training.
PROBATION. v
9. Persons appointed by promotion or initial appointment shall be on probation for a period of one year. This period may be curtained for good sufficient reasons to be recorded or it considered necessary, it may be extended for a period not exceeding one year as may be prescribed at the time of appointment. Appointment on probation shall be subject to the provision of Section 6 of the Civil Servants Act, 1973 as adopted.
10. This Notification issued with the concurrence of the Azad Jammu and Kashmir Council Secretariat and the. Federal Public Service Commission as contained in the Council Secretariat's letter No. E.11-15/80-AJKC, dated the 10th August, 1992 and FPSC's communication No. F.12-12/92-S, dated 28.3.1994, respectively.
Jalees Ahmed Siddiqi, Joint Secretary.
The mere reading of the above Notification makes it clear that all incumbents in BPS-14 will be eligible for further promotion, if they have got five years service to their credit and passed the departmental examination. The earlier conditions laid down by (.Be Azad Kashmir Government under order No. 193/62, dated April 5, 1962 vfere'not repeated in this Notification. Therefore, it would be safe to lay down that now it is not condition precedent for further promotion for an Inspector in BPS-14 to obtain at least 50% marks in the Departmental Examination. This Notification is a formal pronouncement of will of competent authority, i.e. Council. The legal rights and obligations prescribed under iiiii ust necessarily be observed in future till the time any change is effected in it.
I fully agree with the learned counsel for the petitioner that this Notification is to be followed as it has superseded the previous order of the Government issued in 1962.
In view of the above, by allowing this writ petition, the remarks shown in the result-sheet of the petitioner 'did not qualify' being derogatory to the law of the subject, are held without lawful authority and of no legal effect so far as the petitioner is concerned. These remarks appearing in to result- sheet are, therefore, expunged to the extent of the present-petitioner from the result-sheet of 22nd Departmental Examination of the Income Tax .And Excise and Taxation Department held in 1995. Consequently, the petitioner who appeared under Roll. No. 1/14, is held qualified by the prescribed standard and eligible to be considered for further promotion.