' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 involves a dispute relating to the status of the petitioner in occupational group of Civil Service of Pakistan. The petitioner having successfully passed C.S.S. Examination was selected for appointment as member of Civil Service of Pakistan and on allocation of Office Management Group was posted and confirmed in the said group in the year 1989. In the year 1994, the Central Board of Revenue being in need of trained officers desired for the engagement of services of officer equivalent to the post of Income Tax Officer from other groups and in consequence thereto in consultation with Establishment Division selected officers from different occupational groups of Civil Service of Pakistan for Income Tax Department. The selection committee comprising Member (Admin) and
(TP) and a Joint Secretary (E), Establishment Division having completed the process of selection recommended names of 73 officers of different occupational groups for transfer of their services to Income Tax Department under section 10 of Civil Servant Act, 1973. The selection made by the committee was approved by Chairman, Central Board of Revenue and Secretary Establishment Division on the conditions contained in para. 2 of the minutes of the meeting held on 19-2-1994 as under:-- "(i) Undergo intensive profession training at the Directorate of Training (Income Tax), Lahore for a period of four to six months.
(ii) have to pass the departmental examination within 2 years after completing the said training; and
(iii) 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 (BPS-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."
' The Establishment Division vide letter dated 24-4-1994 approved the recommendations made by the above said committee and in pursuance thereto issued a notification dated 27-4-1994 which is read as under:-- "The services of the following officers in BPS-17 belonging to the-Occupational Groups mentioned against their names are placed at the disposal of Revenue Division/C.B.R. For their posting under section 10 of the Civil Servants Act, 1973 with immediate effect and until further orders: S. Nos.Name of Officers Occupational group
1. Mr. Arshad Ali Khan Postal Group
2. Mr. Muhammad Yousaf Afridi-do---
3. Mr. Hassan Akhtar -do---
4. Mr. Khawaja Imran Raza -do---
5. Mr. Khalid Khan Niazi -do---
6. Mr. Asjad Mehmood Office Management Group
7. Mr. Tahir Siddiq -do---
8. Dr. M. Hashim Popalzai -do---
9. Mr. Abdul Shakoor Abro -do---
10. Mr. Niaz A. Sheikh Accounts Group
11. Mr. Sharnsuddin Qazi -do---
12. Miss. Ambreen Jan Information Group
13. Mr. Qamar Bashir -do---
14. Miss Sarnia Ali -do---
15. Mr. Muhammad Tahir Hassan-do-
16. Mr. Khalid H. Memon Foreign Service Group.
' The Central Board of Revenue further in pursuance of the above referred notification of the Establishment Division vide notification dated 2-5-1994 posted the petitioner and other selectees as Assistant Commissioner of Income-tax under training. The notification dated 2-5-1994 of Central Board of Revenue is as under:-- ' No,107-ITC/94.--In pursuance of Establishment Division Notification No . 1 /43/94-E .4 , dated 27-4- 1994, the following B-17 officers of various occupational groups, whose services have been placed at the disposal of the Revenue Division/Central Board of Revenue under section 10 of the Civil Servants Act, 1973, are posted. As Assistant Commissioner of Income-tax, (under training) in the Directorate of Training (Income Tax), Lahore with immediate effect:-- S. Nos.Name of Officers Occupational group
1. Mr. Arshad Ali Khan Postal Group
2. Mr. Muhammad Yousaf Afridi-do---
3. Mr. Hassan Akhtar -do---
4. Mr. Khawaja Imran Raza -do---
5. Mr. Khalid Khan Niazi -do---
6. Mr. Asjad Mehmood Office Management Group
7. Mr. Tahir Siddiq -do---
8. Dr. M. Hashim Popalzai -do---
9. Mr. Abdul Shakoor Abro -do---
10. Mr. Niaz A. Sheikh Accounts Group
11. Mr. Sharnsuddin Qazi -do---
12. Miss. Ambreen Jan Information Group
13. Mr. Qamar Bashir -do---
14. Miss Sarnia Ali -do---
15. Mr. Muhammad Tahir Hassan-do-
16. Mr. Khalid H. Memon Foreign Service Group.
' The services of the selectees including the present petitioner were transferred under section 10 of Civil Servants Act, 1973 on completion of specialized training and were placed at the disposal of the Regional Commissioner of Income Tax vide notification dated 21-9-1994. This notification is reproduced as under:- ' No,248-ITE/94. On completion of their Specialized Training at the Directorate of Training (Income Tax),Lahore, the services of the following Assistant Commissioner of Income Tax (BS-17), transferred to Central Board of Revenue under section 10 of the Civil Servants Act, 1973, are placed at the disposal of Regional Commissioners of Income Tax, as mentioned below, with immediate effect and until further orders:--
1. Syed Masud Abbas Rizvi.
2. Mr. Niaz A. Sheikh.
3. Mr. Shamasuddin Qazi
4. Mr. Mujeeb Ahmed Khan.
5. Mr. Abdul Majeed Yousafani
6. Mr. Abu Bakar Bullo
7. Dr. Shah Zaman Abbasi.
8. Mr. S. Jaffer Raza Kazimi
9. Mr. Arsalan Haneef.
10. Miss. Amna Baloch.
11. Mr. Abdul Jabbar Memon
12. Mr Khalid H.Memon
13. Mr. Qamar Bashir.
14. Mr. Hassan Ali Khan Leghari Baloch.
15. Mr. Asad Rafi Chandna
16. Miss. Shazia Azhar Siddiqui.
17. Mr. Muhammad Ramzan Awan.
18. Mr. Abdul shakoor Abro.
19. Mr. Iqbal Hussian Shaikh,
20. Dr. S. Naveed ul Hassan.
21. Mr. Tahir Siddique Bhatti`
22. Mr. G. Hassan Baig.
23. Mian Sheraz Ali .
24. Mr. Azhar lqbal.
25. Mr. Muhammad Anwar
26. Ch. Mubarrak Ali.
27. Mr. Muhammad Salman
28. Mr. Zafar Zaman Ranjah
29. Mr. Abdul Latif.
30. Mr. Muhammad Ashraf Ali,
31. Mr. Abdul Hameed Anjum Arayn ' Regional Commissioner of Income Tax, Central Region. Lahore:-
1. Miss. Raheela Tajwar
2. Mr. Jamshed Fakhri Dahir
3. Mr. Yousuf Junaid
4. Mr. Rashid Ahmad
5. Syeda Naureen Zohra.
6. Mr. Ahmed Hasnain Haider Kureshi
7. Miss. Ambreen Jan.
8. Mr. Waqar Ali Khetran,
9. Mr. Aamir Mahmud Hussain
10. Mr. Muhammad Irfan Raza
11. Dr. M. Hashim popalzai
12. Mrs. Ghazala Imtiaz
13. Mr. Muhammad Imran Mirza
14. Mr. Muhammad Shahzad Zaheer
15. Mr. Muhammad Irfan Tarar ' Regional Commissioner or Income Tax, Northern Region, Islamabad,
1. Mr. Shahzad Hassan
2. Mr. Maqbool Ahmad Gondal
3. Mrs. Ghazala Shoukat Randhawa
4. Hafiz Shahid Abbas
5. Mr. Irfan Aziz.
6. Mr. Muhammad Tahir Hassan
7. Sahibzada Siar Ahmed
8. Mr. Abdul Malik
9. Mr. Muhammad Tariq,
10. Miss. Tajamal Silquis
11. Mr. Muhammad Musa.
12. Miss. Saima Ali.
13. Mr. Zeenat Hussain Bangash.
14. Mr. Muhammad Yousaf Afridi.
15. Mr. Hassan Akhtar.
16. Mr. Khalid Khan Nizai.
17. Mr. Saleem Akhtar.
18. Khawaja Imran Raza.
19. Mr. Pervaiz Ahmed Jenejo.
20. Dr. Muhammad Asad Riaz.
21. Mr. Muhammad Zulfiqar Khan Nizai.
22. Mr. Naufil Naseer.
23. Mr. Arshad Ali Khan.
24. Mr. Sohail Ali Khan.
25. Mr. Zakir Hussain Khan.
26. Mr. Muhammad Arshad Mirza.
27. Mr. Asjad Mehmood.
' The board in council of Central Board of Revenue in the meeting held on 26-7-2000 considering the matter relating to the induction of the officers of other occupational groups BPS-17 in Income Tax Department and made recommendations in the minutes of the meeting at Serial No,3 as under:- "(3)(11. Induction of officers of other occupational Groups (BS-17) in the Income Tax Department.
' The Board was informed that in 1994. 72 Officers of different Occupational Groups were sent on deputation to the Income Tax Department under section 10 of the Civil Servants Act, 1973. After short training these officers were posted in different Regions of Income-tax where they are posted eversince. Some of the officers have been repatriated to their parent Groups and now about 47 officers are left working. They have served for more than 5 years in the Income Tax Department.
' The question of their repatriation or induction in the Income Tax Group was considered by the Board in consultation with the Establishment Division. The latter informed that despite serving for more than 5 years on deputation. The lien of the officers in question in their parent departments has not yet been terminated. The Board was informed that the Department is still facing the shortage of assessing officers and at present 323 vacancies of assessing Officers exist in Grades- 16, 17 and 18. It was further stated that except two officers who have been suspended recently on the charges of inefficiency and corruption, the other officers have been working satisfactorily and they have earned good reports.
' After consideration. It was decided by the Board that those officers who have shown good performance during the period of deputation and have good record may be inducted in the Income Tax Group in view of shortage of the Assessing Officers. As to the seniority vis a vis the other colleagues. The matter may be referred to the Establishment Division for their advice and appropriate decision in the matter."
' While the petitioner was serving in Income Tax Department as Assistant Commissioner, a departmental inquiry against him relating to the procedural irregularities was initiated. The Commissioner of Income Tax was appointed as Inquiry Officer of the petitioner and pending finalization of the inquiry in question, the Central Board of Revenue desired the repatriation of the petitioner to the Office Management Group on' the ground of irregularities for which, he was charge-sheeted. Having considered the explanation of the petitioner to the charges in the light of the record, the Inquiry Officer recommended the penalty of sensure and the Secretary Establishment being the competent Authority after providing personal hearing to the petitioner exonerated him from the charge vide order dated 20-10-2001 in the following manner:- "No,4/7/2001-D. I: Consequent upon finalization of _disciplinary proceedings initiated vide "Charge Sheet/Statement of Allegations" of even number dated 8-1-2001 under Removal from Service (Special Powers) Ordinance, 2000, Mr. Asiad Mahmood (OMG/BS-17) Assistant Commissioner of Income Tax under section 10 of Civil Servants Act, 1973 is hereby 'exonerated from the charges/allegations levelled against him."
' Mr. Asiad Mahmood is. However, warned be remain careful in future.
' Subsequent to the exoneration of the petitioner from the charges in question, Secretary Establishment Division vide notification dated 30-11.2001 directed the repatriation of the petitioner to the Establishment Division. The notification was issued in the following terms:-- "Mr. Asiad Mehmood, a BS-17 Officer of Office Management Group, presently posted as Assistant Commissioner of Income Tax under section 10 of the Civil Servants Act. 1973 under the Central Board of Revenue is repatriated to Establishment Division with immediate effect."
' The petitioner being aggrieved of his repatriation from Income Tax Group to the Office Management Group has tiled this petition seeking a declaration that he was a permanent member of Income Tax Group and his repatriation to the Office Management Group was not legal and in consequence thereto, the notification dated 30-9-2001 relating to his repatriation was issued without lawful authority and was of no consequence. This petitioner was admitted to regular hearing to consider the question whether the petitioner was permanently inducted in Income Tax Group or he would be deemed to be on deputation with Income Tax Group on transfer under section 10 of Civil Servants Act, 1973.
' The Central Board of Revenue (respondent. No,2 herein) has filed written reply to this petition in the form of parawise comments. However, the Establishment Division has not filed separate comments or reply to this petition and learned Federal counsel stated that the comments filed on behalf of Central Board of Revenue would need no addition and shall sufficiently serve the purpose on behalf of all respondents. Section 10 of the Civil Servants Act, 1973 under which, the services of the petitioner from OMG Group to Income Tax Group were transferred is read as under:-- "Section 10. Posting and transfer.--Even civil servant shall be liable to serve anywhere or outside Pakistan, in any (equivalent) post under the Federal Government. Or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: ' Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: ' Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall, not he less' fovourable than those to which he would have been entitled if he had licit been so required to serve.
' The learned counsel for the petitioner has contended that as per conditions contained in the letter dated 19-2-1994 of the Government of Pakistan, Central Board of Revenue, the petitioner having.
Undergone specialized training required for income tax group in the relevant Directorate of Training (Income Tax), Lahore, was posted as Assistant Commissioner of Income Tax and upon fulfilling the requisite conditions of continuous service of five years in Income Tax Group would deem to have severed connection with OMG Group and would be permanently absorbed in Income Tax Group subject to the acceptance of remaining conditions contained therein. The learned counsel has submitted that even if the Establishment Division has not formally terminated the lien of the petitioner, in OMG, the petitioner would deem to be no more member of service of Office Management Group and in the light of the principle of locus poenitentiae, the Establishment Division could not retrace its steps for repatriation of the petitioner to the Office Management Group. The learned counsel for the petitioner has added that the petitioner being member of Civil Service of Pakistan would need no other training for induction in Income Tax Group except the allocation by the Federal Public Service Commission and specialized training at departmental level and that petitioner was selectee of Public Service Commission in C.S.S. Examination and also undergone the specialized training for Income Tax Department, under the scheme of transfer of service on the basis of conditions contained in the letter dated 19-2-1994, the petitioner having undergone the specialized training as an officer of Income Tax Group served there for a period of about 7 years and would deemed to be the permanent member of Income Tax Occupational Group, therefore, his repatriation to the Office Management Group was illegal. The learned counsel with reference to the letter dated 19-12-2000 issued by the Central Board of Revenue contended that in similar situation the case of Muhammad Ramzan Awan, an officer of OMG group was under consideration for permanent induction in Income Tax Group for which the consent of the officer was also sought, whereas the petitioner while accepting the conditions contained in the letter dated 19-2-1994 already accepted such an offer. The learned counsel concluded that the concept of induction of a number of one occupational group to another occupational group was not foreign to the Civil Service of Pakistan.
' The learned counsel representing the Central Board of Revenue and learned Federal counsel on the other hand, contended that the matter in issue related directly to the terms and conditions of service of petitioner as civil servant, therefore, this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 due to bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. 1973 is not maintainable before this Court and that the order of repatriation of the petitioner issued by Establishment Division being related to the service of the petitioner is not adjudicateable by this Court due to the Constitutional bar. The learned counsel with reference to judgment dated 19-6-1997 delivered by the Federal Service Tribunal in the case of Abdul Jabbar Memon contended that in similar circumstance Services Tribunal entertained the appeal of civil servants and set aside the order of repatriation and that the petitioner can conveniently invoke the jurisdiction of the Service Tribunal for the redressal of his grievance. The learned counsel contended that the matter relating to the posting and transfer of civil servants falling under section 3 (Chapter 2) of the Civil Servant Act, 1973 read with Appointment, Transfer and Promotion Rules, 1973 cannot be entertained by this Court in its Constitutional jurisdiction and in support thereof placed reliance on Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCM R 2129) and Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another (PLC 2001 Karachi (C.S.) 907). It was next argued on behalf of the respondents that the petitioner was still holding lien in OMG Occupational Group and that both lending and borrowing Departments with consultation to each other repatriated the petitioner to his original group, therefore, the petitioner cannot claim permanent absorption in Income Tax Group as of right. He with reference to Office Memorandum dated 25-1-2001 of Establishment Division submitted that the permanent absorption was not possible. The Office Memorandum is reproduced herein as under:-- "The undersigned is directed to refer to Central Board of Revenue's O.M.No,17(2)/93-AIT.II, dated 19th December, 2000 on the subject noted above and to say:-
(i) that there is no provision in the O.M. Constituting the Income Tax Group for appointment to IIS-17 posts through transfer. The said 0.M. Provides for direct recruitment (75% ) and promotion (25% ):
(ii) Establishment Division is. However, of the view that as a matter of general principle, regular appointment to BS-17 posts in a regularly constituted Occupational Group failing within the ambit of C.S.S. Examination should not be made through transfer from other occupational groups, as that would militate against the prevalent system of allocation of occupational groups on merit. A wrong precedent (even with bona fide considerations) may pave the way for manoeuvring by individuals to get occupational groups of their choice which they fail to get through FPSC based mechanism of selection.
' This issues with the approval of Secretary Establishment Division."
' The issue in the present case confines only to the extent of the status of the petitioner as to whether he was still a member of Office Management Group or by efflux of time and operation of Law, he would deem to be absorbed permanently in the Income Tax Occupational Group. There is no cavil to the proposition that a member of Civil Service of Pakistan can be posted and transferred anywhere throughout Pakistan as provided under section 10 of the Civil Servants Act.
1973 read with Rules on the subject.
' This may be observed that a civil servant being aggrieved of his transfer or posting can invoke the jurisdiction of Service Tribunal under section 4 of the Civil Servants Act, 1973 within the meaning of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner in the present case on recommendation of Federal Public Service Commission was initially appointed as an officer in Office Management Group in BPS-17 and subsequently was selected for transfer to Income Tax Department under section 10 of the Civil Servants Act, 1973 against equivalent post of Assistant Commissioner Income Tax in BPS-1-7. The selection of the petitioner was made by a committee consisting upon Member of Central Board of Revenue and Establishment Division and in the light of the recommendation, the Establishment Division in consultation with Central Board of Revenue transferred the services of the petitioner and other selectees to income Tax Department.
The 'petitioner having undergone special training in Income Tax Department and fulfilled the conditions contained in the recommendations made by the selection committee vide letter dated 19-2-1994 claimed that he having 'been transferred on permanent basis was a regular member of Income Tax Group. The method and process of selection for a post in Office Management Group by the Federal Public Service Commissioner is same through which the selection for a post of Income Tax Officer BPS-17 is made and if the service of a person belonging to one group can be transferred to another group temporarily under section 10 of the Civil Servants Act, 1973 under the same principle, the service of such person can be transferred permanently subject to the fulfillment of the required condition. The case of a member of civil service like petitioner would be distinguishable to that of a person, who is not member of civil service of Pakistan. The service of the petitioner was bonded by the Establishment Division and borrowed by Central Board of Revenue on, regular basis with his consent for indefinite period with the understanding of permanent induction in Income Tax Group subject to the fulfillment of conditions contained in letter dated 19- 2-1994. The petitioner having fulfilled the requisite condition was entitled to permanent absorption and the respondent had no power of rescinding the order of permanent transfer of the petitioner from Office Management Group to Income Tax Group in the light of principle of locus poenitentiae or to treat him a member of Office Management Group. Under section 10 of Civil Servants Act, 1973, a civil servant is supposed to serve anywhere inside or outside Pakistan unless he is appointed for a particular area/region and in case a civil servant is required to serve in a post outside his post and cadre, the terms and conditions of his service cannot be less, favourable to which, he was entitled in his post and thus a civil servant is provided protection under said section in respect of his terms and conditions of service unless he is out of his cadre or post either on deputation or on transfer. If a civil servant is transferred from one post to another post within the department or on deputation to another department, he shall definitely be on temporary transfer and cannot claim any right to be serve either at a particular place or against a particular post. The provisions of section 10 of Civil Servants Act, 1973 is not only confined to the extent of temporary transfer of a civil servant from one post to another post or one cadre to another cadre rather this section also embodied the concept of permanent transfer from one post or cadre to another post or cadre and one group to another group in the civil service of Pakistan, subject to the certain condition and a Civil Servant on such transfer would retain lien on his previous post for some time. The lien has been defined under rule 2(b) of the Civil Servants (Confirmation) Rules, 1993 and the lien of Civil Servant is deemed to be terminated under rule 6 of ibid Rules. The above referred rules are reproduced hereinunder:-
6. "Termination of lien.--(1) The lien of a civil servant who is reduced in rank or reverted to a lower post as a consequence of action taken against him under the Government Servants (Efficiency and Discipline) Rules, 1973 shall be terminated against the post from which he is reduced in rank or as the case may be reverted to a lower post: ' Provided that such civil servant shall acquire a lien against the lower post.
(2) A civil servant shall cease to hold lien against a post if he takes up an appointment on selection in an autonomous body under the control of Federal Government. Provincial Government, local authority or private organization.
(3) Notwithstanding the consent of a civil servant, his lien on a post under the Federal Government shall not be terminated until he acquires lien on any other post.
(4) A confirmed civil servant who, of his own accord, joins some other service, post or cadre on regular basis shall have, after being selected through a regular selection process, the right of reversion to the previous post against which he shall hold lien only during the period of his probation on his new service, post or cadre."
' The petitioner undoubtedly was holding lien in Office Management Group as confirmed member of. Said Group and his lien would not be terminated before his completion of five years in Office Management Group as per condition contained in the letter dated 19-8-1994. On transfer of service of the petitioner through selection to Income Tax Department, he would be entitled to retain the lien in Office Management Group till he Would not complete the terms of service in Income Tax Department as provided under the Civil Servants (Confirmation) Rules, 1993. The confirmation of petitioner in OMG Group and his lien in said Group would neither effect, his right or present absorption in Income Tax Department nor It would be a ground to take away his right to remain in the Income Tax Group as a permanent member of said Group. The controversy whether the petitioner was a member of OMG Group or he was permanent member of Income Tax Group would not as such relate to his terms and conditions of service as envisaged under chapter 2 of the Civil Servants Act, 1973 and therefore, remedy of appeal under section 4 of the Service Tribunal Act, 1973 before the Service Tribunal would not be available to the petitioner and consequently the bar of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 would not restrain this Court from exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in the matter. The dispute in the present case would neither fall within the ambit of Chapter 2 of Civil Servants Act, 1973 nor an appeal under section 4 of the Service Tribunal Act, 1973 is provided in such matter, as the present case would not fall within the category of those cases, which relate to the terms and conditions of the service of civil servant to be adjudicated exclusively by the Service Tribunal established under the Services Tribunal Act, 1973 and consequently, this Court can competently exercise the power of judicial review available to it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to undo the injustice being done to a civil servant.
' In the similar circumstances in the case of Dr. Nighat Bilal v. Secretary, Ministry of Health and others, a Division Bench of this Court in I.C.A. No,79 of 1997 held as under:-- "We have anxiously considered the arguments advanced by the learned counsel for the parties.
The sole question for determination in the writ petition was that of the status of the appellant "whether an employee of the Federal Government or Provincial Government" and the matter relating to the grant of Grade-19 to her out of turn and against the rule was not under dispute in the writ petition. This is not denied that after the termination of the lien of the appellant with the Provincial Government at the time of her permanent absorption in the Federal Government, she would be deemed a permanent employee of the Federal Government and her repatriation as such was not possible. The deputation being not included in terms and conditions of the service of a person the same cannot be claimed as of right, therefore, a deputationist cannot resist repatriation to his parent department in the normal circumstance but once a person is permanently absorbed in the borrowing department or Government and served all his connections with the parent department in the lending Government and is awarded the status of a permanent employee of the borrowing Government, he cannot be sent back to the lending Government without his consent and acceptance of lending Government. In the present case neither the appellant desired to be sent back nor Provincial Government was taken into confidence and thus the appellant before passing the order of her repatriation while treating an employee of the Federal Government could not be ipso facto repatriated to the Provincial Government after her permanent absorption in the Federal Government which had taken effect about five years ago. This is noticeable that the order of permanent absorption of the appellant having become final and given effect had created a vested right in favour of the appellant to serve in the Federal Government and the infringement of the said right being not as such challengeable through an appeal before the Service Tribunal, the objection of jurisdictional bars to entertain the writ petition on the subject by virtue of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, was not proper and legal. The Executive Director as well as the learned Standing counsel having conceded permanent absorption of the appellant in the Federal Government and termination of her lien with the Provincial Government have not denied her status of a permanent employee of PIMS, a Federal Government Hospital.
Since the appellant was enjoying the status of a permanent employee of the Federal Government, therefore, the controlling Ministry in view of principle laid down by the apex Court in Hadayat Ullah's case PLD 1969. Supreme Court 607, could not disturb her by rescinding the order of her permanent absorption, which had taken effect five years ago. However, the matter relating to the entitlement of the appellant to the grant of Grade-19 could be examined without disturbing her status as permanent employee of the Federal Government.
This may be observed that entertainment of an appeal by the tribunal in the case of Abdul Jabbar Memon in similar situation would neither take away the jurisdiction of this Court nor create a right of appeal in favour of a civil servant under section 4 of the Service Tribunal Act, 1973, therefore, notwithstanding the disposal of the above said appeal by the Services Tribunal on merits, the jurisdiction of this Court would not be effected and consequently the objection relating to the maintainability of this petition and the jurisdiction of this Court is not entertainable.
' There is no cavil to the proposition that the posts (BPS-17) in Income Tax Group are filled through direct recruitment and by promotion and in view of Establishment Division that as a matter of general principle, the posts in BPS-17 in an occupational group should not be filled in departure of process of selection through C,S.S. Examination but there is no legal bar for present absorption of a member of one occupational group to another occupational group in the civil service of petitioner as the member of all groups are selected through the same process. The perusal of the recommendations of selection committee contained in letter dated 19-2-1994 would show that the selectees were being taken for Income Tax Department on regular basis, as the notifications issued in consequence thereto would show that they were designated as Assistant Commissioner Income Tax. The Board in Council in Central Board . Of Revenue in its Meeting also recommended for permanent induction of the selectees including the present petitioner in terms of Metter. Dated 19- 2-1994, therefore. The transfer of the petitioner under section 10 of the Civil Servant Act, 1973 for all purposes and intends would deem to be on the regular basis and he ultimately would be deemed to be permanently inducted in Income Tax Group. The concept of transfer of services of a person belonging to one occupational group to another occupational group under section 10 of the Civil Servant Act, 1973 and his permanent induction is also mentioned at page 1171, Serial Nos.9, 10 and 11 of the ESTACODE 2000 under the headings of lateral entry, exposure to other Ministries and Secretariat Officers working in Foreign Office, which reads as under:-- "9. Lateral entry.---In view of our expanding requirements to man posts abroad and the need for greater circulation of Officers of the Foreign Affairs Group to other Ministries, the cadre strength of the Foreign Affairs Group will be kept constantly under review and lateral entry resorted to whenever and in whichever Grade there is shortage. But apart form the need to meet such shortages, there would be regular lateral entry each year at 1st Secretary/Director and Minister/Director-General levels for continuous enrichment of the Foreign Affairs Group by induction of fresh blood from the private sector as well as other occupational groups. For the next few years the Ministry of Foreign Affairs would submit a report every three months as to how the lateral system is working. On this report, the comments, of the Establishment Division would be obtained before submission of the Prime Minister.
10. Exposure to other Ministries.---In order to equip them better for diplomatic work Officers of the Foreign Affairs Group, in the course of their assignment in Pakistan, would be exposed to the work relating to Trade and Commerce. Planning, Public Relations and Publicity and Economic matters.
They would be posted, on short term secondments, to Ministries/Organizations/Corporations etc., dealing with these and allied subjects.
11. Secretariat Officer working in Foreign Office.---There are at present a large number of Grade-17 and Grade-18 Officers belonging to the former Central Secretariat Service who are working in the Foreign Ministry and in Missions abroad. Some of them who are suitable would be permanently inducted into the Foreign Affairs Group and the rest would be withdrawn in a phased program.
' Similarly there is a concept of lateral entry against Secretariat posts at Serial Nos.6 and 7 at page 1174 ESTACODE, 2000, which reads as under:--
6. Secretariat Posts.---Officers of this group will be eligible for Secretariat posts in All Pakistan United Grades in Grade-19 and above in accordance with the procedure prescribed for appointment to Secretariat posts of Deputy Secretary and above.
7. Leteral Entry.--In order to meet shortages of Officers in this group or to meet specific requirements, appointments may be made to posts in the Group in any Grade by transfer from other Groups, or by recruitment through lateral entry of persons engaged in a profession or in the service of a corporation or private organization, who possess such professional qualifications and experience as may be prescribed from time to time. Similarly Officers of this Group may be posted to appropriate posts in corporations and other organizations under Government management and control.'
The petitioner with the undertaking of ultimate induction in Income Tax Group, through the process of selection for transfer of his service to the said group on regular basis had a legitimate expectancy of induction and therefore, notwithstanding the formal order of his repatriation to OMG Group, he would be deemed to sever his connection in OMG Group and was permanent member of income tax group after lapse of period of five years. The appeal against the Order passed by a departmental authority in relation to the terms and conditions of service would lie under section 4 of ibid Act and under clause (b) of section 4 of the said Act, the review or appeal has specifically been debarred in a case, which relate to the question of determination of fitness or otherwise of a person to hold a particular post or grade and thus, the matter would not fall within the jurisdiction of the tribunal. The competent Authority in the present case after having assented his consent for transfer and induction of the petitioner in Income Tax through the process of selection by a committee would not be in a position to retrace its steps and undo the act of induction of the petitioner in Income Tax Group. It may be observed that the petitioner was a member of civil service of Pakistan and was qualified to be inducted in any group subject to the rules of allocation, therefore, there would be no bar for the Government in case of necessity to transfer the service of a person from one group to another group and the service of the petitioner was transferred under the necessity, therefore, on the fulfillment of requisite conditions referred above, the petitioner would deem to be member of Income Tax Group without any formal Order to be passed by the Competent Authority.
' For the foregoing reason, it is declared that the petitioner for all intends and purposes is a permanent member of Income Tax Group and cannot be repatriated to the Office Management Group. The notification dated 30-11-2001 of his repatriation issued by the Establishment Division is accordingly declared as illegal and of no consequence. This petition stands stands allowed with no order as to costs.