1996 PLP (C (PLC(CS))

To

1. All Commissioners of Income Tax

2. Director of Inspection (Taxes), Islamabad.

3. Director of Training (Income Tax), Lahore.

4. Controller of Estate Duty, Lahore. Subject: Seniority of Ministerial Staff Grade 5 ‑ 15 Income Tax Department. I am directed to forward herewith an extract from the minutes of the Commissioners Conference held on 24th and 26th May, 1979 relating to the decision taken regarding seniority of Ministerial Staff (Grade 5 ‑15) of Income Tax Department for favour information and necessary action:‑‑ "(VIII). SENIORITY OF MINISTERIAL STAFF GRADE 5‑15.‑‑‑It was decided that whereas in case of Zones at Lahore and Karachi the seniority of Ministerial Staff shall be determined at one centralized place, in all other cases it shall be determined Zonewise. The seniority list at Karachi and Lahore shall be maintained by CIT, East Zone, Karachi and CIT, Lahore Zone A, respectively. The staff of the Commissioner of Income Tax (Revision) and Appellate Assistant Commissioners shall form part of the staff of the Zonal Commissioners for seniority purpose. In the event of a transfer of an official from one Zone to another, the transfer being on his own option, he shall be treated as the junior‑most person in that Zone". The perusal of the above circular shows that: (a) The circular relates to the Ministerial Staff of Grade‑5 to 15 whereas the appellant as well as the respondents Nos. 5 and 6 cannot be termed as Ministerial Staff. They are Field Officers. (b) The circular relates to Ministerial Staff of Grade‑5 to 15 who derived their authority from the Executive Order and are liable to be appointed on Regional basis and promoted from Grade 5 to

15. The Inspectors of Income‑Tax, on the other hand, derived their authority from the Statute of Income Tax and therefore they hold the statutory appointment and cannot be bracketed with the other "Ministerial Staff". (c) The said circular has not been implemented by the Income Tax Authorities themselves because when the learned counsel was asked to produce the seniority list of the Inspectors as maintained in accordance with the said Circular of 1979, he failed to give a logical reply. He was of the opinion, that seniority of the Inspectors is based partly on Regional basis and partly on Centralised basis which forms a feeding cadre for the promotion to the higher posts.

7. While examining the issue purely from legal point of view, we are at difficulty to comprehend why a person in the same service is deprived of his vested rights of seniority on the incident of transfer, though with his own consent. If a civil servant applies for his appointment in another department which is alien to his parent department, he definitely loses his seniority because both the services are different inter se, but in case of transfer to another station, the service structure is not changed and the seniority should not be disturbed . The Establishment Division has provided in the ESTACODE that if a civil servant is transferred in the interest of public service to another department, he will retain his seniority from the date of initial appointment. If the seniority is not disturbed even on transfer to another department, how the seniority is affected by transfer within the department.

8. Supposing the Circular of 1979 is applicable to the present appellant, he was neither asked to give an undertaking of loss of seniority, as directed by the C.B.R. in the above‑referred circular, nor this fact of loss of seniority was mentioned in the order of transfer. The appellant moved the authorities within the minimum possible time of his knowledge about the apprehension of loss of seniority and expressed his willingness to be sent back to Karachi. At least this offer should have been accepted. In any case he cannot be deprived of the benefits of his four years of service. Although there are no rules for the maintenance of seniority 'and for the establishment of proper feeding cadre for the next higher jobs, the appellant definitely deserves to retain his seniority at least in Karachi Zone from the date of his initial appointment. The question of promotion of respondents Nos. 5 and 6 whether on regular basis or against selection post cannot be touched at this stage because if the seniority of the appellant is to be reckoned from the date of his initial appointment in Karachi, the promotion of respondents Nos. 5 and 6 at Multan will not be affected. Otherwise, the appellant will be senior to respondents Nos. 5 and 6 if the seniority list is prepared on centralized basis from the date of appointment.

9. The result of the above discussion is that we partially accept this appeal and direct that the seniority of the appellant should be reckoned with effect from his initial appointment at Karachi in the seniority list of Karachi Zone and for this purpose he may be treated on temporary transfer to Multan Zone whine his parent office (where his seniority is maintained) may be considered to be Karachi Zone or otherwise, if necessary, he may be posted back to Karachi to redress his grievance of seniority. Respondents Nos. 1 and 2 are directed to streamline the issue of maintenance of seniority of Inspectors in accordance with the spirit of law as discussed hereinabove.

10. No order as to costs.

11. Parties be informed. H.B.T./24/Sr.F Order accordingly.