' MUHAMMAD RAZA KHAN (MEMBER).---Mr. Muhammad Bashir Baloch is working as Income-tax Inspector since 25-3-1982. His initial appointment was in Karachi Zone. However, in 1986, as a result of mutual transfer on the inter zonal basis, he was posted at Multan. The appellant alleges that on his said transfer to Multan he was verbally informed that he would be placed at the junior-most position in the seniority list of Income-tax Inspectors in Multan Zone and that he would lose his seniority position with effect from the date of his initial appointment. The appellant promptly moved an application to the concerned authorities asking for the verification of the said rumours and requested the authorities that in case of apprehended loss of seniority he was ready to go back to Karachi Zone to retain his seniority position from the initial appointment. Allegedly the said representation and further reminders were not responded. Rather he was reportedly told that since the undertaking for loss of seniority has not been obtained from him at the time of his consent for mutual transfer, therefore, the seniority cannot be disturbed without such undertaking. Lately respondents Nos. 5 and 6, were promoted on 5-10-1994 (their dates of initial appointment was 22- 6-1982 and 23-6-1982 respectively). The appellant was ignored on the ground that his seniority has been reckoned with effect from 20-7-1986. The appellant filed a departmental representation against the said order of promotion of junior officers. No response has been received within the statutory period of ninety days. Hence this appeal.
2. Respondents Nos. 1 and 2 have not filed any written objections. Respondents Nos. 3 and 4 being the Regional Commissioner, Lahore and Commissioner of Income-tax, Multan have filed the objections wherein it has been alleged that in accordance with the CBR's Letter No, 41/1/AIT/77, dated 9-6-1979 which reads "in the event of a transfer of an officer from one Zon another, the transfer being on his own option, he shall be treated as the junior-most person in that zone", the seniority of the appellant has been regulated with effect from the date of his joining at Multan Zone and therefore he was placed at a junior position and so he was not considered for promotion when the cases for promotion of respondents Nos. 5 and 6 were considered.
3. Respondents Nos. 5 and 6 have contested the case on several legal and factual issues, inter alia, alleging that they have been promoted against a selection post of special officers as per discretionary powers of the authorities and it was not a regular promotion. They have also alleged that the authorities have already informed the appellant on 5-8-1986 that the appellant will have to be placed at the bottom of the seniority list of Multan Zone and this letter was duly received by the appellant on the same date. Moreover, they. Have contended that the matters of the service are controlled by the rules and instructions on the subject and not on the undertakings, wishes and whims.
4. The case was fixed for regular hearing and was adjourned several times simply on the ground of providing opportunities to the learned Standing Counsel for the respondents Nos. 1 and 2 to produce the relevant rules/instructions for determination of seniority of the Inspectors. On one occasion it was specifically mentioned that the concerned Secretary, AIT of the CBR should depute an officer well-conversant with the issued involved and also to produce the relevant record in the matter. However, it is regretted to mention that the CBR failed to assist the Standing Counsel by providing rules or instructions on the subject and they also failed to produce the relevant record.
Learned Standing Counsel has produced certain extracts from the instructions which are self- contradictory and the issue is thereby further confused to the extent of ambiguity. For example the learned Standing Counsel for the Federal Government relied on a request of the employees of Income-tax Department dated 5-12-1990, a circular from the Inspecting Assistant Commissioner, HQ dated 11-11-1987, a circular dated 178-1987 issued by the Secretary AIT, a letter dated 8-2-1989 from the Secretary AIT dated 18-2-1986. The above list will amply demonstrate the state of affairs in the CBR--- an organisation said to be well-equipped and responsible for earning billions of revenues for the State Exchequer. They are not in a position to comprehend the point in issue. A civil servant was transferred under legal orders of the Competent Authority from Karachi Zone to Multan Zone in 1986 and the documents produced in support of the case against the appellant are issued much after the said incident of transfer. Apparently these letters cannot operate retrospectively.
The only letter that can be relevant is dated 18-2-1986 which says that "in the circumstances, mutual transfer of a person to a Region in which he is not domiciled seems to be irregular", which seems that the specific instructions of the CBR issued in 1986 were not in favour of mutual transfer.
Even then the Commissioners of Income Tax were allowed and they practised the mutual transfers despite being declared as irregular and they also deprive numbness of the benefits of their vested rights of seniority on a supposed directive of the CBR issued somewhere in 1979 (which will also be analysed hereinafter). Similarly there is another contradiction that by circular of 8-2-1989 the CBR informed the Regional Commissioners that "it has been decided that the Regional Commissioners of Income Tax may consider the cases of mutual transfers, if any, of the incumbents domiciled of the intending zone. Such transfer orders should be made clearly specifying that the incumbents would have no claim of seniority and no financial benefits etc.". This means that in the year 1989 the CBR for the first time regularised the earlier "irregular" mode of mutual transfer and prescribed a condition that the transfer orders should contain clear provisions about the loss of seniority. Thus, an order not containing such provisions about the loss of seniority will not affect a civil servant to relegate his position to a lower level. But just after four months of the said, circular another letter dated 17-8-1987 was issued to the effect that "inter-Regional transfers" of officials of BPS-1 to BPS-16 even on mutual basis are not permissible under the rules. Therefore, the Board's above-referred circular is withdrawn herewith. The result of this circular is that the "irregular" mode of mutual transfer that was "regularised" in February, 1987 was withdrawn after four months. Three months thereafter another circular was issued stating that "no request for inter-Regional transfer of officials of BPS-1 to BPS-15, even on mutual consent basis may please be sent to this office". The last "authority" on which respondents Nos. 1 and 2 rely in support of their cases is a charter of demand from the employees of Income Tax Department of Faisalabad Zone dated 5-12-1990 wherein they have reminded the authorities in terms of their own circulars referred to above, that officials recruited in their respective zones on the basis of domicile may not be transferred elsewhere "against" their consent. This was all the defence placed on record to show that whatever has happened to the appellant was just, equitable and suited to the norms of service. All the above documents are not at all relevant to the case in hand. They are confusing and ambiguous. It shows the level of understanding of the Regional set-up of Income Tax and the Head of Department being the C.B.R.
5. Under the Statute governing establishment of Income Tax, the authorities have been described as, the Central Board of Revenue, the Directors of Inspection, the Commissioners of Income Tax, Assistant Commissioners of Income Tax and the Inspectors of Income Tax. The C.B.R. Is the authority at the helm of affairs and the Inspectors of Income Tax is the junior-most authority in the same ladder. Thus the authorities of Income Tax put together make a joint group and the C.B.R.
Being the top supervisory authority cannot be absolved from the responsibilities to regulate the situation of the entire group as a whole. As stated earlier there is no set of regulations or instructions to govern the matters relating to the Inspectors and those which exist, are ambiguous.
The learned counsel for the Federal Government was confused when confronted to the situation that Income Tax Inspectors being the feeding cadre for the Income Tax Officers cannot be placed disjointly at the discretion of the Regional Commissionerates. The learned Standing Counsel simply stated that there were two categories of Income Tax Inspectors. The list of one category was maintained at the Regional level and the list of the other category was maintained centrally as a unified group, however, he was not able to produce any instructions or rules for the bifurcation of the same statutory post of Inspector of Income Tax into two categories of Regional and Central level.
6. The letter, on the basis of which the seniority of the appellant from the date of his posting in Multan Zone, is dated 9-6-1979 with the subject "seniority of Ministerial Staff Grade-5 to 15 of Income Tax Department" which is reproduced as under:-- "C. No, 4/1/AIT-2/77, Islamabad , the 9th June, 1979.
' From: Mr. Bashir Ahmed Wani, Second Secretary.
' To
1. All Commissioners of Income Tax.
2. Director of Inspection (Taxes), Islamabad,
3. Director of Training (Income Tax), Lahore.
4. Controller of Estate Duty, Lahore.
' Subject: Seniority of Ministerial Ste Grade 5 = 15 Income Tax Department, ' I am directed to forward herewith an extract from the minutes of the Commissioners Conference held on 24th and 26th May, 1979 relating to the decision taken regarding seniority of Ministerial Staff (Grade 5 =15) of Income Tax Department for favour Information and necessary action:- "(VIII). SENIORITY OF MINISTERIAL STAFF GRADE 545.-It was decided that whereas in case of Zones at Lahore and Karachi the seniority of Ministerial Staff shall be determined at one centralized place, in all other cases it shall be determined Zonewise.
The seniority list at Karachi and Lahore shall be maintained by CIT, East Zone, Karachi and CIT, Lahore Zone A, respectively. The staff of the Commissioner of Income Tax (Revision) and Appellate Assistant Commissioners shall form part of the staff of the Zonal Commissioners for seniority purpose. In the event of a transfer of an official from one Zone to another, the transfer being on his own option, he shall be treated as the junior-most person in that Zone".
' The perusal of the above circular shows that:--
(a) The circular relates to the Ministerial Staff of Grade-5 to 15 whereas the appellant as well as the respondents Nos. 5 and 6 cannot be termed as Ministerial Staff. They are Field Officers.
(b) The circular relates to Ministerial Staff of Grade-5 to 15 who derived their authority from the Executive Order and are liable to be appointed on Regional basis and promoted from Grade 5 to 15.
The Inspectors of Income-Tax, on the other hand, derived their authority from the Statute of Income Tax and therefore they hold the statutory appointment and cannot be bracketed with the other "Ministerial Staff".
(c) The said circular has not been implemented by the Income Tax Authorities themselves because when the learned counsel was asked to produce the seniority list of the Inspectors as maintained in accordance with the said Circular of 1979, he failed to give a logical reply. He was of the opinion.
That seniority of the Inspectors is based partly on Regional basis and partly on Centralised basis which forms a feeding cadre for the promotion to the higher posts.
7. While examining the issue purely from legal point of view, we are at difficulty to comprehend why a person in the same service is deprived of his vested rights of seniority on the incident of transfer, though with his own consent. If a civil servant applies for his appointment in another department which is alien to his parent department, he definitely loses his seniority because both the services are different inter se, but in case of transfer to another station, the service structure is not changed and the seniority should not be disturbed. The establishment Division has provided in the ESTACODE that if a civil servant is transferred in the interest of public service to another department, he will retain his seniority from the date of initial appointment. If the seniority is not disturbed even on transfer to another department, how the seniority is affected by transfer within the department.
8. Supposing the Circular of 1979 is applicable to the present appellant, he was neither asked to give an undertaking of loss of seniority, as directed by the C.B.R. In the above referred circular, nor this fact of loss of seniority was mentioned in the order of transfer. The appellant moved the authorities within the minimum possible time of his knowledge about the apprehension of loss of seniority and expressed his willingness to be sent back to Karachi. At least this offer should have been accepted. In any case he cannot be deprived of the benefits of his four years of service.
Although there are no rules for the maintenance of seniority and for the establishment of proper feeding cadre for the next higher jobs, the appellant definitely deserves to retain his seniority at least in Karachi Zone from the date of his initial appointment. The question of promotion of respondents Nos. 5 and 6 whether on regular basis or against selection post cannot be touched at this stage because if the seniority of the appellant is to be reckoned from the date of his initial appointment in Karachi, the promotion of respondents Nos. 5 and 6 at Multan will not be affected.
Otherwise, the appellant will be senior to respondents Nos. 5 and 6 if the seniority list is prepared on centralized basis from the date of appointment.
9. The result of the above discussion is that we partially accept this appeal and direct that the seniority of the appellant should be reckoned with effect from his initial appointment at Karachi in the seniority list of Karachi Zone and for this purpose he may be treated on temporary transfer to Multan Zone while his parent office (where his seniority is maintained) may be considered to be Karachi Zone or otherwise, if necessary, he may be posted back to Karachi to redress his grievance of seniority. Respondents Nos. 1 and 2 are directed to streamline the issue of maintenance of seniority of Inspectors in accordance with the spirit of law as discussed hereinabove.
10. No order as to costs.
11. Parties be informed.