1989 PLP (C (PLC(CS))

(1) Federation of Pakistan v. Shahzada Shahpur Jan 1986 S C M R 991; (2) Imdad Ali v. Pakistan P L D 1986 S C 349 and (3) Accountant General Pakistan Revenues v. Arbab Mukhtar Ahmad SCMR1206.

5. The respondents have resisted the appeals and urged that there is marked distinction between the posts of AITOs and ITOs in recruitment to those posts in respect of qualifications and that distinction did not disappear by mere inclusion of the "Assistant Income-tax Officers" in the definition of the "Income?tax Officers". The learned counsel representing the respondents pointed out that the appellants were originally appointed as Income-tax Inspectors (B-11) and they became AITOs by way of promotion after creation of the new cadre of "Assistant Income-tax Officers" in December, 1962 by designating the posts of Examining officers and making opening for the subordinate ranks including the Income-tax Inspectors to enter the cadre. He made reference to certain orders made in that behalf. He also made reference to the recruitment rules to the posts of AITOs of 1981 and also made mention of the Administrative Reforms in the Income Tax Group contained in Office Memorandum No. 4/2/75-ARC, dated the May, 1975 (at page 738 of the ESTACODE 1983 edition) lie has, of course, disclosed that upgradation of the posts of the AITOs was recommended to the Pay Commission by the Central Board of Revenue but the recommendation was not accepted.

6. The issue for consideration is whether there is any distinction between the posts of AITOs and the ITOs after the promulgation of the Ordinance and there is justification for maintaining disparity in their pay etc. There can be no doubt that there is distinction in the dictionary meaning of the two terms viz. "Assistant Income-tax Officers" and the "Income-tax Officers", the former denoting lower/subordinate position. Of course, the connotation of the two terms is to be magnified in the context of the law they have been provided in. Reference may, therefore, be made to the provisions of the Act and the Ordinance. In the Act, the term "Assistant Income-tax Officers" was defined in clause (3) of section 2 to mean a person appointed to be an Assistant Income-tax Officer under section 5; the term "Income-tax Officer" defined in clause (7) of section 2 meant a person appointed to be an Income-tax Officer under section

5. This definition was enlarged subsequently by amending laws as to include a person appointed as a Special Officer, a Tax Recovery Officer and Assistant Income-tax Officer and an Examining Officer. The term "Assistant Income-tax Officers" Was included in the definition by Act No. XVI of 1963. In section 5 of the Act, as substituted by Act VII of 1939, the Income-tax authorities were classified its (a) the Central Board of Revenue; (b) Commissioner of Income-tax; (c) Assistant Commissioner of Income-tax; and (d) Income-tax Officers. Subsequently, Directors of Inspection, Inspecting Assistant Commissioner of Income-tax, Special Officers, Tax Recovery Officers, Assistant Income-tax Officers, Examining Officers and Inspectors of Income-tax were added to the array of the income-tax authorities by different amending laws. "Assistant Income-tax Officers" were empanelled in the list of authorities by Act No. XVI of 1963. By the same Act No. XVI of 1963, the "Assistant Income-tax Officers" were included in subsection (3-a) of section 5, providing for their appointment by the income-tax authorities. Subsection (5-a) of section 5 of the Act, as amended under Act No. XVI of 1963, provided that the Assistant Income-tax Officers would perform such functions in the execution of the Act as assigned to them by the income-tax authorities under which they were appointed to work and would be subordinate to such authority. In the Ordinance, Assistant Income-tax Officers' were included in the definition of the "Income-tax contained in clause (25) of section 2, and consequently they stood in the term "Income-tax Officers", being amongst the income-tax lassifed in section 3 of the Ordinance, and wherever the term "Income-tax Officer" is employed in the Ordinance, it includes the "Assistant Income-tax Officers". The subtle distinction however the provisions of the Act and the Ordinance in respect of "Assistant Income-tax Officers" is that under the Act the functions of the AITOs were those as were assigned to them by the income-tax it authorities under whom they were appointed to work, which included the ITOs, whereas under the Ordinance they arc required to discharge the functions as are to be performed by the ITOs and thus they stand at par with the? ITOs as regards the performance of functions, of course, subject to the assignment of the functions by an income-tax authority above the ITOs.

7. However, it needs to he considered whether the AITOs and ITOs do stand at par in the rank in the hierarchy of the income-tax authorities. A new cadre of Assistant Income-tax officers, Class-11, was added to the hierarchy of the income-tax authorities in the year 1962 vide office Memorandum dated 28th December, 1962, reproduced below:-_ No.2/38/62-DI Government of Pakistan President?s Secretariat (Establishment Division) Karachi, the 28th December, 1962. Subject:--Creation of a new cadre of Assistant Income-tax Officers Class II in the Income-tax Department. The undersigned is directed to refer to the Central Board of Revenue Office Memorandum C. No. 129(3)AIT/1/1)2, dated Nil August, 1962, and the subsequent correspondence resting with their Office Memorandum of the same number elated the 13th November, 1902, on the above subject, and to say that this Division agrees to the creation of a new cadre of Assistant Income-tax Officers, Class II, in the Income-tax Departments subject to the following conditions:-- (i) The existing 33 Examining Officers may he redesignated as Assistant Income-tax Officers, Class 4l, as proposed by them; (ii) Additional posts of 1211 Officers may he created and filled up in three years time at the rate of -1t) officers every year, by direct recruitment on an ad hoc basis through the Central Public Service Commission as proposed by them; and (iii) thereafter, all future vacancies in the cadre should be filled up on the basis of 20%. by departmental promotion and 80% by direct recruitment through the Central Public Service Commission. (2) The Central Board of Revenue may kindly take necessary action accordingly. The C.B.R's files No. 51(9)-AIT/55 and No. (36)--AIT/5G arc, returned herewith receipt of which may kindly be acknowledged. Section Officer Government Central Board of Revenue, Karachi. (Mr. Nasir Hussain, S.O.). At that time, the other posts then existing in the hierarchy of the authorities stood upgraded to Class-I. The cadre of the AITOs is being maintained. The appointments to the cadre were being made in the manner laid down in the Office Memorandum dated 28th December, 1962. The method of appointment, qualification and other conditions applicable to the posts of Assistant Income-tax Officer- (Grade-16) issued by the Central Board of Revenue were notified vide Gazette Notification No. SRO ()05(1)/81, dated 13th August, 1981. The posts have been classified as non-selection posts to be filled in by promotion on seniority? cum-fitness basis from amongst Income-tax Inspectors who meet the conditions laid down in Part 11 of the Rules. The appointments by promotion are to be approved by the Chairman, Central Board of Revenue as the appointing authority for Grade-16 officers. The posts of I.T.Os. are borne in Grades 17 and

18. In pursuance of the Administrative Reforms, various Occupational Groups were constituted. A separate group for Income-tax Department was constituted under Office Memorandum No. 4/2/75-ARC, dated 9th May, 1975 to function within the broad frame work of rules and procedure laid down thereunder. The posts in Grades 1 to 16 were to be regulated/governed by the existing instructions. The posts in Grade-17 were to be filled in through competitive examination conducted by the Federal Public Service Commission to the extent of 75 per cent and the remaining 25 per cent posts were to be filled in by way of promotion. Competitive examination/departmental examination was provided for qualified persons in Grade-16 and below for securing entry in Grade-17. Promotions to the posts in Grade-18 and above were to be made in accordance with the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 subject to the length of service as prescribed in the Establishment Division Office Memorandum No. 3/7/74-AR.11, dated 210111 N1ay, 1974. Provision was also made for lateral entry and eligibility for service to the Secretariat Group in All-Pakistan Unified Grades and determination of inter sc seniority in various grades. Thus, the AITOs placed in Grade-16 have opening to enter Grade-17 by way of promotion to the extent of 25';? posts after passing competitive examination and putting in at ]cast two years service. At the time of the creation of the cadre of the AITOs, there were no prospects for them to ascend to upper grade. They have, therefore, hardly a case to get themselves equated with the ITOs. who arc placed in Grades 17 and 18, as a matter of right. Of course, their case was recommended by the Central Board of Revenue for equating them with the ITOs but the Government did not agree and it wits a question of policy within the sole discretion of the Government. The appellants have been claiming that they may be equated with the ITOs solely on the ground that the Income-tax Ordinance, 1979 does not make any distinction between the ITOs and AITOs particularly in the field of discharge of their duties and, therefore, there should not be discrimination by placing them in Grade-16, while the ITOs arc enjoying Grades? 17 and

18. As mentioned above that a special cadre of AITOs was established in Class II service in the year 1902, the AITOs were included in the list of the income-tax authorities enumerated under section 5 of the Act, and the term Assistant Income-tax Officer" was defined at clause (3) of section 2 of the Act? was provided under section 5(a) of the Act that the AITOs were to perform such action in the execution of the Act as were assigned to by the? income-tax authorities under whom they were appointed to work and were subordinate to such authorities. Under the Ordinance, Assistant Income-tax Officer (AITO) stands included in the definition of the Income-tax Officer (ITO) and the Income-tax Officers have to perform their functions as may be assigned to them by the Income-tax Commissioners to whom they are subordinate as provided under section S of the Ordinance. Of course, the AITOs have been categoriser as Income-tax Officers amongst the income-tax authorities and their functions would be of the nature of those that may be assigned to the ITOs. by the concerned Commissioner of Income-tax; but assignment of the duties vests in the Commissioner of Income-tax. The nature of the main job of the ITOs.. is that of assessment of income liable to income-tax and their job may be entrusted to AITOs in Grade-16 or to an ITO in Grade-17 or even in Grade-18 resting on the discretion of the Commissioner of Income-tax. If the argument of the AITOs that they may be equated with ITO in the matter of emoluments etc. were to prevail, the ITOs in Grade-17 would claim to be entitled to the emolument; etc. in Grade-18 on the plea that they all come within the definition of ITOs. There may be various considerations in assignment of the job to be performed under the Ordinance, such as the magnitude of the work and its importance, nature of the cases to be assessed, interpretation and applicability of various provisions of law, exercise of discretionary powers etc. Mere inclusion of AITOs in the definition of the ITOs under the Ordnance does not place them at par with the ITOs. There are also two categories of the ITOs, one placed in Grade-1.7 and another in F Grade-18. There can be different considerations for assignment of duties in the same field such as qualifications and experience etc. There are different qualifications for the posts of ITOs and AITOs and the AITOs have to pass prescribed examination for seeking entry in the cadre of the ITOs. If the AITOs, who enter the service on lower qualifications, are equated with the ITOs possessing higher qualifications as sought by the appellants, the better course to be adopted could be to close the cadre of AITOs altogether and creates the posts of ITOs. to have in service officers of higher qualifications. The claim of the appellants is, therefore, not tenable. The cases relied upon by the learned counsel for the appellants do not advance their case. In the case of Postmaster-General, Eastern Circle (E.P.), Dacca and another v. Muhammad Hashim, cited as D L R 1971 S C 49, also reported in P L D 1978 S C 61, pertained to payment of pay on officiating promotion to higher post involving assumption of duties and responsibilities of greater importance; but that is not the case here. Similar was the case cited as Islamic Republic of Pakistan v. Qazi Abdul Karim, reported in 1978 S C M R

289. Of course, the case of Kamaluddin and others was contested for upgradation of post of Readers in the Lahore High Court on the analogy of upgradation of the corresponding posts in other departments. The Punjab Service Tribunal gave decision in favour of the Readers. The Government of Punjab preferred appeal before the Supreme Court. It was submitted before the Supreme Court that the placement of posts in the grades was a matter of policy of the Government and the Service Tribunal could not go into it. It was observed by the Supreme Court that the decision of the Service Tribunal was just, fair and equitable and, therefore, it was not interfered with as such plea of the Government policy was not agitated before the Service Tribunal. The decision of the Supreme Court is rep6rtcd in P L D 1983 S C 126. 1n the instant case, the posts of AITOs arc lower in rank to those of the ITOs and the question upgradation of the posts of AITOs from Grade 16 to Grade 17 on the pt? AITOs arc included in the d0mition of the ITOs under the Ordinance altogether a different matter and the decision in the aforesaid Kamaluddin and others case is not applicable. Thus, there is no merit in the appellant's case.

8. The learned counsel for the appellants advanced argument that even of the posts of AITOs are not upgraded to Grade-17, they may be allowed pay in Grade-17 as they have been discharging the functions of the post in Grade-17. This argument also is not sustainable as the job to be performed by the ITOs under the Income-tax Ordinance is discharged by the AITOs in Grade-16 and the ITOs in Grades-17 and

18. Thus, the job discharged by the AITOs is the job they had to do under the Act and have to do under the Ordinance and they are not required to discharge duties beyond the dimensions of the duty they are enjoined to do under law as AITOs. The cases cited by the learned counsel for the appellants are on the proposition that the officers required to hold higher posts involving duties of higher magnitude are entitled to the emoluments of the higher posts. In the case of the appellants they are expected to discharge their duties as may be assigned to them by the Commissioner of Income-tax under the Ordinance and they are not required to discharge the functions of higher posts. Those cases, therefore, do not extend to the appellants' case.

9. Consequent to the reasons recorded above, the appellants do not have a case to succeed and their appeals are dismissed. No order is made for costs. A.A./481/Sr. F ??????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.