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 background of the following facts.
He was inducted in the Excise Department as Sub-Inspector in the year, 1971. On the recommendation of the Departmental Selection Committee, 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 per cent. Or more marks, therefore, in the wisdom of the department the petitioner has not qualified the examination. The petitioner, in this petition has assailed the decision of the department on the ground that the syllabus prescribed for the departmental examination has to parts. In order to qualify Part-A, the candidate is required to obtain 33 % marks in each paper and 40 % marks in aggregate whereas in Part B, the candidate must obtain 40% marks in each paper and 50 % marks in aggregate.
The case of the petitioner is that 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 aggregate-of Part-B but erroneously in the result sheet prepared by the Department, it was held that he did not qualify the departmental examination.
The respondents in their written statement 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 heard 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 Order. 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 Jummu 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 Sate 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-I Acts, Ordinances, Rules and Regulations AZAD JAMMU AND KASMIR COUNCIL SECRETARIAT (AZAD JAMMU AND KASHMIR NOTIFICATION Islamabad, the 2nd May, 1994 No. E:11-15/80-AJKC.---In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, 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, AJ&K under the Azad Jammu and Kashmir Council Secretariat:-- Designation BPS Commissioner Income Tax-Cum-Collector Excise and Taxation. 20 Inspecting Additional Commissioner, Income Tax (Range, Appellate Additional Commissioner, Income Tax, Inspecting Additional Commissioner, Income Tax (S&R)/,Deputy Collector, Excise/Sales Tax; Deputy Director, Excise and Taxation.19 Deputy Commissioner, Income-Tax-- cum-Assistant Collector Excise/ Excise and Taxation Officer.18 Assistant Commissioner, Income-Tax cum-Assistant Collector Excise/ Excise and Taxation Officer.17 Income-Tax Officer-cum-Superintendent, Excise Assistant, Excise and Taxation Officer. 16 METHOD OF APPOINTMENT S. No.Name and BPS of the posts.Method of appointment By promotion.By initial appointment 1.Commissioner Income Tax-cum Collector Excise and Taxation (BPS-20) 100% 2.Inspecting Additional Commissioner Income Tax (Range), Appellate Additional CommissionerIncome Tax, Inspecting Additional Commissioner100% Income Tax (S&R) Deputy Collector Central Excise/Sales Tax, Deputy Director Excise and Taxation. (BPS-19)
3.Deputy Commissioner Income Tax-- cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18)100% 4.Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-17).25% 75% 5.Income Tax Officer-cum--Superintendent Excise/ Assistant Excise and Taxation Officer (BPS-16).100% Provided that:--
(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 specialized 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:-- S. No.Name and BPS of the post Persons ligibleCondition of eligibility.
1.CommissionerIncome Tax-cum-Collector Exciseand Taxation(BPS-20)InspectingAdditional Commissioner,Income Tax (Badge)/Appellant Additional Commissioner, Income Tax/Inspecting Additional CommissionerIncome Tax (S&R)Deputy Collector, Central Excise/Sales Tax/Deputy Director, Excise and Taxation (BPS-19).17 years service in BPS-17 and above.
2.Inspecting AdditionalCommissioner, IncomeTax (Range)/Appellate Additional Commissioner Income Tax Inspecting Additional Commissioner, Income Tax (S&R)/Deputy Collector, Central Exercise/Sales Tax/Deputy Director Excise and Taxation (BPS-19).Deputy Commissioner Income Tax-cum-Assistant CollectorExcise/Excise and TaxationOfficer (BPS-18)12 years service in BPS-17 and above.
3.Deputy Commissioner Income Tax-cum- Assistant Collector Excise/Excise and Taxation Officer (BPS-18).Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise andTaxation Officer (BPS-17).5 years service in BPS-17.
4.Assistant Commissioner Income Tax-cum- Assistant Collector Excise/Excise andIncome Tax Officer-cum- Superintendent Excise/Assistant3 years service in BPS-16.
Taxation Officer(BPS-17). Excise and Taxation Officer(BPS- 16).
5.Income Tax Officer-cum-Superintendent Excise/Assistant Excise and Taxation Officer(BPS-16).Inspector Income Tax- Officer- cum-Excise and Taxation/Deputy Superintendent, Central Excise (BPS-14) the Departmental(i)5 years service in BPS-- 14; and
(ii) have passed the Departmental Examination.
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, provided that:
(i) 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.
(ii) 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.
(i.e) the maximum age limit in the case of released or retired commissioned officers personnal of the Armed Forces will be relaxed up to a maximum of ten years or by the number of years an 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 F.P.S.C.
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 F.P.S.C.
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 F.P.O. At the conclusion of specialized 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
9. Persons appointed by promotion or initial appointment shall be on probation for a period of one year. This period may be curtailed for good and 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 the of appointment. Appointment on probation shall be subject to the provision of section 6 of the Civil Servant 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 F.P.S.C's. Communication No. F. 12-12/92- S, dated 28-3-1994, respectively.
Jalees Ahmad 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 the Azad Kashmir Government under Order No. 193/62,' dated April 5, 1962 were 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 it must necessarily be observed in future till the the 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 the 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.