' MUHAMMAD RAZA KHAN (MEMBER)--This judgment will also dispose of Appeal No, 152(k) of 1996 on the identical question of law in both these cases.
2. The appellant, Abdul Jabbar Memon, participated in the CSS Examination in 1989-90 and after success he was allocated in Railways Group. He again appeared in the competitive examination for 1991-92 and consequently, he was selected in the Foreign Service Group. The appellant, Khalid Hassan Memon participated in the competitive examination in 1987-88 and on success he was allocated the Foreign Service of Pakistan Group. Thus, both the appellants were working in the Ministry of Foreign Affairs when an offer was circulated on 23-12-1993, asking for the option of gazetted officers for posting in the Income-tax Group. Both of them opted for the said change of Group and consequently, the appellants and others were selected for posting to the Income Tax Department under certain terms and conditions notified on 19-2-1994. The appellants received the required training, joined as the Assistant Commissioner Income Tax at various station of posting.
However, vide an order dated 21-7-1996, the present two appellants alongwith 4 others were ordered to repatriated to the parent department i,e, Ministry of Foreign Affairs. This impugned order dated 21-7-1996 was challenged by the appellants through their departmental appeals filed on 22- 8-1996, they received no response from the department within a statutory period of 90 days. The present appeals have been filed on 19-12-1996.
' The respondents contested the appeals. Written objections have been filed. We have listened to the arguments and perused the record.
' Before discussing the merits of the case, the relevant extracts are useful to be reproduced for reference. Vide a letter dated 18-12-1993 from the Establishment Division, it was stated that:-- "In view of the expansion in tax administration a number of vacancies of Income Tax Officers (BPS- 17) are required to be filled up on urgent basis through posting of officers from other Occupational Groups. The officers shall initially be appointed on deputation under section 10 of the Civil Servants Act, 1973 and are likely to be considered for induction in the Income Tax Group subsequently if so decided by the Government.
2. You are accordingly requested to furnish a panel of names of ten (10) BPS-17 officers of (please see list on P.2) Group having suitable experience preferably related to accountancy and legal matters, as per the following pro forma:-- Name Inter se seniority.
Qualifications Age (Maximum 30 years)
Domicile.
Postings held (supported with job requirements of the post held)
ACR (Quantification: Yearwise supported with photo copies of the ACR).
Output Quality Integrity Pen Picture General Intellectual ' The panel of names shall be placed before a Selection Committee for consideration/approval of the competent Authority, Regional. Provincial quota shall be observed, while making final recommendations.
' The requisite information may please be furnished latest by 26th December, 1993."
' This letter of the Establishment Division was followed by a circular from the Ministry IV Foreign Affairs in these words:-- "Subject: Posting of Officers in BPS-17 in the Income Tax Group.
' In view of the expansion in tax administration a number of vacancies of Income Tax Officers (BPS- 17) are required to be filled up on urgent basis through posting of officers from other occupational Groups. The officers shall initially be appointed on deputation under section 10 of the Civil Servants Acts, 1973 and are likely to be considered for induction in the Income Tax Group subsequently, if so decided by the Government.
2. We have accordingly been requested by the Establishment Division to furnish a panel of names of ten (10) BPS-17 officers of Foreign Service of Pakistan having suitable experience preferably related to accountancy and legal matters. The maximum age limit is 30 years.
3. Interested officers may please convey their names to the SS(A) Directorate today repeat today (23-12-1993)"
' Vide a letter dated 19-2-1994, it was intimated that Selection Committee comprising of officers of the CBR and the Establishment Division met on 19-2-1994 to select officers under section 10 of the Civil Servants Act, 1973 out of panel forwarded by the Establishment Division to Revenue Division.
List of 69 officers, so selected, was also annexed and the Committee also decided the terms and conditions of the selectees as under:-- "2. The Committee also decided among other things that the officers selected on transfer shall; ' undergo intensive professional training at the Directorate of Training (Income Tax), Lahore for a period of four to six months; ' have to pass the departmental examination within 2 years after completing the said training; and ' continue to have lien with their parent department for a maximum period of five years.
3. The officers taken on transfer to the Income Tax Group shall rank at the lowest rung of the officers of Income Tax Group in (B-17) as on their dates of joining but their inter se seniority amongst their own Cadre/Group officers, shall continue as in accordance with the original seniority in their parent departments,
4. The officer at the time of joining Income Tax Department for professional training shall undertake that if subsequently at any time he is inducted in the Income Tax Group, then he will not contest seniority fixed as in para. 3 hereinabove, at any judicial or administrative forum."
' It also appears that the Foreign Office had certain reservations with regard to the release of the officers including the appellants which was conveyed to the Establishment Division by the Foreign Affairs Division on 10-3-1994. The doubts of the Foreign Affairs Division were clarified by the Establishment Division vide a letter dated 31-3-1994 as:-- "Reference Ministry of Foreign Affairs U.O. No, SS(A)-9/17/93/D.2-D(PD) dated 10-3-1994, on the above subject.
' The Ministry of Foreign Affairs are informed that in this Division's Circular No,13/123/93-D.2-D(PD) dated 18-12-1993 inviting recommendations, it was clearly stated that the officers would initially be appointed on deputation under section 10 of the Civil Servant Act, 1973 (copy enclosed). The Ministry of Foreign Affairs forwarded recommendations accordingly and the competent Authority approved the transfer order as has been done in the cases of all other occupational Groups. The officers of other groups have joined the departmental training and there are no reasons that the officers of Foreign Service of Pakistan should not be allowed to join.
' They may, therefore, be relieved to implement the orders already issued. As regards their induction in the Income-tax Group, this is a policy issue to be considered and applied to all in future and no exception can be made in their case at this stage. It may also be pointed out that all officers have to undergo intensive professional training for a period of 4 to 6 months and may be required to pass a departmental examination within 2 years after completing the said training, and therefore, any discussion about induction is pre-mature at the moment.
' In view of the above, Ministry of Foreign Affairs are advised to relieve the officers immediately enabling them to join their assignments in the Central Board of Revenue."
' Thus, from the above extracts the following salient features can be drawn:-- ' The officers were working in the. Foreign Affairs Division in 1993 with considerable length of service and experience.
' They and several others were invited for posting in the Income Tax Group, and thus, invitation was extended by the then Revenue Division through the Establishment Division to the Divisions relating to certain Occupational Groups.
' The appellants opted for joining the Income Tax Groups and they alongwith 67 others were selected. The selectees joined the training and after successful training they were posted against the various position in the Income Tax Group.
' It was intimated that the appointment of such selectees will be under section 10 of the Civil Servants Act, 1973 with the possibility of regular induction of such selectees in the said group.
However, it was clarified that they shall lose their seniority in the previous group and shall reckon their seniority from the date of joining in the said Income-tax Group.
' The said transfer was the result of the proper selection after evaluation of suitability of the candidate in the job and it was not merely an instant of deputation by finalisation of terms and conditions between the borrowing and the lending authority. The appellants and other officers of the Foreign Service Group were released after getting additional clarification from the Establishment Divisions that the officers of the said Division may be treated in the same manner as the other selectees from other Occupational Groups.
' The appellants have completed the required training successfully as required by the letter dated 19-2-1994 and some other letters also demonstrate the appreciation letters have been issued to them for the valuable service rendered by them as such.
' Despite all these factors and in violation of the commitment supported by re-confirmation of the identical terms and conditions of service, the appellants and 4 others have been ordered to be repatriated to their parent group discriminatively and in violation of their earlier commitment.
5. It is worth mentioning that the Establishment Division had put in appearance whereas the other respondents i,e, the Foreign Affairs Division, Finance Division and the Central Board of Revenue has not cared to contest the case at the time of regular hearing. The respondent No,5 has, however, submitted the comments/objections wherein they had justified the impugned order only on the ground that the appointments of the appellants in the said Division were merely on deputation under section 10 of the Civil Servants Act, 1973, and that there was no illegality in placing them at the disposal of the Foreign Affairs Division again. It was also alleged that the appellants had also sought Constitutional remedy from the High Court. These comments were filed by the respondent No, 5 while contesting the application of the appellants under Rule 1, Order. 39, C.P.C. For the grant of interim injunction. Since the High Court had already issued an injunction in favour of the appellants, therefore, another order of injunction was not justified and the application was, therefore, rejected. It is stated on behalf of the appellant that thereafter, they have withdrawn their Constitutional petition from the High Court and it was also argued that despite the grant of injunction they have not been allowed to perform duty whereas some of their colleagues have been allowed to rejoin under the orders of the High Court and one of them is still continuing to perform the functions in the Income Tax Group despite the fact that no injunction has been issued in his favour by any Court or Tribunal. Thus, it appears that it was an unusual case of discrimination where the two appellants have been singled out to be placed in a situation where their service prospects and terms and conditions of service are severely impaired. The terms offered to them for the prospects of possibility of induction into the new group have been violated. They have been kept away from their Occupational Group for a considerable length of time. Equal treatment has not been extended to them like other transferees despite the clear commitment and clarification by the Establishment Division vide their correspondence dated 31-3-1994 as reproduced hereinabove. The selectees of the other Occupational Groups have not been repatriated which repeals the contention of the respondent No,2 that for the adjustment of several surplus officers of a particular department, the repatriation was being ordered. In addition to all these facts there is no proof that the borrowing department i,e, respondents Nos, 1 and 2 and the lending department had agreed for the repatriation of the appellants and others. Hence in view of these grounds we are of the opinion that the impugned order dated 21-7-1996 was not a transfer simplicitor under section 10 of the Civil Servants Act, 1973, but it amounted to the violation of the agreed terms and conditions of service and was also discriminative in nature because all the transferees from other Occupational Group have not been repatriated and even the rest of the transferees of the Foreign Service Group have also not been dislocated. Therefore, the discriminative impugned order violating the agreed terms of 19-2-1994 coupled with the promising prospects for regular induction into group cannot be upheld.
6. Thus, we accept these appeals, set aside the impugned orders and direct that the appellants may be allowed to continue in the service of Income Tax Group like the rest of 69 selectees of the Occupational Groups and they should be subjected to equal treatment and policy decision as agreed to by the Establishment Division earlier.
7. No order as to costs.
8.Parties be informed.