1. SAJJAD AHMAD, J.-This is an appeal, by special leave, by Pakistan (Government of Pakistan) which is aggrieved by a declaration obtained in a civil suit by the respondent, Mr. Abdul Quddus, who is serving .Under it as an officer of the Income-tax Department.
2. The respondent started his service career in the year 1941 under the Provincial Government of the undivided Bengal as a Commercial Taxation Officer and was later promoted as Assistant Commissioner of Commercial Taxes. On Partition of the country, he opted for East Pakistan where he was taken in the taxation service as Assistant Commissioner of Commercial Taxes and was confirmed in that capacity oil the 23rd of November 1949, in the time-scale salary of Rs. 250-50/2- 750.
3. The "sales tax" became a Central subject provisionally in 1948 and permanently in the year 1950, whereupon the respondent along with other officials of the East Pakistan Taxation Department, except the Commissioner, were transferred to the Centre under an "arrangement" between the representatives of the Central Government and the Government of East Pakistan (Exh. `A' oil record), which ensured that all the staff of the Commercial Tax Directorate would be protected as regards their tams of service, which expression included their status and scales of pay and promotion in due course. The respondent was taken in the Central Taxation Service as an Appellate Officer of Sales Tax, a specially-created extra-cadre post in the time-scale salary of Rs. 250-50/2- 750, the same which lie was having as the Assistant Commissioner of Commercial Taxes under the East Pakistan Provincial Government. The post of tile Appellate Officer of Sales-Tax was, however, abolished on the 9th of August 1951. Tile respondent was then absorbed in the regular cadre of the Income-tax Officers in Class II, Grade III, which carried a scale of pay of Rs. 200-220-prob.-240-20- -480-15-600. Nonetheless, lie was allowed to draw his own scale of pay to which lie was entitled as the Appellate Officer, Sales Tax. Tile respondent has since had his promotions. He was confirmed as I. T. O. Class II, Grade III , on the 31st of October 1953 and promoted oil tile 26th of May 1956, as I. T. O., Class I, Grade II and as Class I, Grade I, oil the 1st of July 1958. On tile 1st of January 1966, lie was appointed as Assistant Commissioner, Income-tax, in the time-scale salary of Rs. 1600-50-1700 and has already reached the maximum limit in that scale.
4. The respondent was not happy with the abolition of his post as the Appellate Officer of the Sales Tax and with his consequent absorption as Income-tax Officer, Class II, Grade III. He made repeated representations against it which were finally rejected in October 1955. Thereafter, lie brought a suit on the 4th of January 1957, in which lie claimed the following relief (a) that the decision of the Central Government in placing the plaintiff' in the position of Income-tax-cum-Sales Tax Officer be declared illegal, ultra vires and ineffective and not binding on the plaintiff ;
(b) that the plaintiff be restored in his legitimate rank of service, that is, Assistant Commissioner of Income-tax-cum --Sales Tax ;
(c) that, in the alternative, the plaintiff be placed in a post in conformity with his status ;
(d) that the appointment of the plaintiff as Grade III Officer and also all orders of appointment made in the Department since 1-4-52 without entering plaintiff's name in the Gradation List be declared illegal, ultra tires and not binding on the plaintiff ;
(e) that full costs of the suit be decreed against the respondent ;
(f) that the plaintiff be given such other relief or reliefs as lie may be found entitled to in the circumstances of the case.
5. The trial Court decreed the suit only to the extent of a declaration that the order of the Central Government appointing the plaintiff-respondent as Income-tax Officer in Class II, Grade III, was illegal, ultra vires and without jurisdiction and that he be deemed to continue in his post as the Appellate Officer with all the incidental benefits of seniority, Gradation List, promotion and other advantages appointed to the post. The Government preferred an appeal to the High Court of East Pakistan, praying for the dismissal of the respondent's suit and the latter filed cross-- objections claiming the grant of other reliefs that were sought by him in tile suit but refused by the trial Court.
6. During the proceedings in the High Court the respondent also moved an application for amendment of his prayer with regard to relief (a) by its substitution as follows: "(a) That it be declared that the plaintiff on his transfer on 9-8-1951 to the Income-tax Department was entitled to a post carrying a scale of pay not lower than the scale of pay which tire plaintiff was enjoying as a confirmed officer and as such his appointment to the post of Income-tax Officer, Class II. Grade III, which carried a lower scale of pay amounted to reduc--tion in rank and was illegal void and inoperative and that lie was entitled to be placed in a post which would not have amounted to a reduction in rank."
7. The High Court dismissed the Government's appeal holding: "We have no doubt in our mind that the plaintiff was illegally posted in a lower post with lower tinge-scale of pay". The learned Judges of the Division Bench who decided tile matter, however, posed a question as to what should be, the form of the declaration that may be made in favour of the respondent? Their answer was: "The cross-objections filed by tile respondent cannot also be maintained because the grounds taken therein are all related to tile reliefs which the civil Court cannot grant. It seems to us that the declaration as it appears from the operative portion of the judgment of the learned Subordinate Judge should be modified and we think the plaintiff is entitled to a declaration that his appointment on the 9th of August 1951, as an income-tax Officer, Class II, Grade III, is illegal, void and inoperative"- The Government's appeal and respondent's cross-objections were thus dismissed and in the circumstances it was not considered necessary to make any order with regard to the respondent's prayer for the substitution of relief (a) as described above.
8. Against the decision of the High Court, the Pakistan Government filed a petition for leave to appeal in this Court which was allowed on the 1st of December 1965, as it was considered necessary to examine the declaratory relief granted to the respondent by the High Court which had the effect of de-legalizing the order of his first appointment as Income-tax Officer, Class II, Grade III, which might, in turn, have the effect of nullifying all the benefits received by him in due course, including his confirmation and promotion and his present position to which he has been brought by stages which is markedly superior to his Provincial post. The trial Court has held that the civil Court was not the proper forum to give to the plaintiff --respondent-the relief claimed by him for his restoration to the post of Assistant Commissioner of Income-tax from 1950 to 1951 or for a declaration that he is to be appointed or restored to the post of Assistant Commissioner of Income-tax from 1950 to 1951. It was, however, observed that a great injustice had been done to the respondent who was holding the post of Assistant Commis--sioner of Commercial Taxes, by appointing him as Income- tax Officer, Class II, Grade III, thus equating him with his subordinates (i. e., Taxation Officers in the Provincial Government) who were at one time under his appellate jurisdiction. It was further observed that the respondent as Income-tax Officer, Class II, Grade III, was placed under the direct administrative control of Assistant Commissioner, Income-tax-cum-Sales Tax, while in his former capacity he was under the direct administrative control and appellate authority of the Commissioner of Income-tax-cum-- Sales-Tax.
9. The High Court concurred with the view of the learned trial Judge that the respondent was not entitled to the reliefs (b), (c) and (d) as claimed by-him, and modified the declaration which was granted to him by the trial Court by simply holding that his appointment on the 9th of August 1951, as an Income-tax Officer, Class II, Grade III, was illegal, void and inoperative.
10. With all respect, it seems to us that the High Court in granting this declaratory relief to the respondent was unmindful of its consequences. By making this declaration without any consequential relief the whole basis of the respondent's appointment to the Income-tax Department is removed and the 18 years of service spent by him thereafter during which he has earned promotions and has achieved his present position, would all go in vain. . Surely, this result was not and could not have been intended by the High Court. In our view, the entire suit of the respondent was misconceived having .Proceeded on the assumption that his appointment as Income-tax Officer, Class II, Grade III, amounted to a reduction in rank after the abolition of the post formerly held by him as the Appellate Officer of Sales Tax.
11. It may be recalled here that on his transfer from the Provincial Taxation Service the respondent was accommodated in the Central Taxation Service by his appointment to a specially-- created extra- cadre post of the Appellate Officer, Sales-Tax, on the same scale of salary which he drew in his former position tinder the Provincial Government as the Assistant Commissioner of Commercial Taxes. With the abolition of the post of the Appellate Officer, Sales Tax, by the Central Government, the respondent could not, as a matter of right, have claimed the revival or the continuity of that post nor could he have rightfully asked A for his appointment to an exactly equivalent job of the seine status and powers which may not have been available or which could not be provided for him without disturbing the administra--tive set-up and interfering with the service rights of other officers. In appointing him as Income-tax Officer, Class II, Grade III, the Government took care not to disturb his previous salary or his seniority in his own grade, thus safeguarding his prospects for future promotion in due course. His grievance that his new appointment had equated him with Taxation Officers in -respect of whom he had exercised appellate powers before their absorption in the Central Service as Taxation Officers, is more fanciful than real. As the Appellate Officer of Sales- Tax in the Central Government the respondent was exercising appellate jurisdiction over Assistant Sales Tax Officers and not the Sales Tax Officers, although when serving under the Provincial Government they were the Commercial Taxation Officers under the appellate jurisdic--tion of the respondent. It may be that in point of his time-scale salary and official status as the Appellate Officer, Sales Tax, it would have been more equitable if the respondent had been placed in Class I, Grade II of the Income-tax Department which was perhaps nearer and more in conformity with his former position than the grade in which he was taken. But the respondent could not have claimed that position as a matter of legal right. It was argued by his learned counsel that by putting him in Class I, Grade lI, the respondent's chances for promotion may have been improved and accelerated and he may have earned other benefits thereby. This may or may not have happened, but since the respondent did- not have any legal basis for that claim, it could not be enforced by a civil suit as was sought to be done. There was no question of his having been reduced in rank from the earlier post held by him which, in actual fact, was abolished. If the respondent felt dissatisfied with the new job offered to him as Income-tax Officer in Class II, Grade IIIhe could have asked for his reversion to the Provincial Government. We, however, do not see that by returning to his service in the Province he would have bettered his prospects in any manner.
12. Leave was granted to the appellant on the condition that the costs of the appeal will be borne by it regardless of 'the result of the appeal. Therefore, although the Government has succeeded in this appeal, it will bear the costs of the respondent.