1991 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).

Since common questions of law and facts have arisen in Appeals No.24(L)/1986 and 117(L)/1986 filed respectively by Muhammad Jehangir Shahzad and Muhammad Ashraf Qamar both of the Central Circle Income Tax Department, under section 4 of the Service Tribunals Act, 1973, they have been taken together for disposal in this judgment.

2. The facts are not in dispute. The method, qualifications and conditions for appointment of Inspectors in the Income Tax Department were laid down by the Central Board of Revenue, Government of Pakistan through S.R.O. 657(1)/82, dated 5-7-1982, issued in pursuance of the provisions of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. This Notification provided that LDCs, UDCs and Stenotypists of the Department will be eligible for appointment as Income Tax Inspector provided they qualify in the dapartmental promotion examination. It was further laid down that "mere qualifying the departmental examination will not entitle a candidate to have a right of promotion" and that "his fitness for promotion to the post of Inspector will be adjudged by the DPC and approved by the competent authority."

3. The details of Inspectors promotion examination prescribed in Schedule?1 of this Notification were as follows: "(a) The departmental examination will be held when vacancies occur. (b) There shall be 3 papers of 100 marks each consisting of the following subjects:- Paper I? Law and Assessment. Paper II Book-Keeping. Paper III Office Procedure (c) The minimum pass marks in each paper shall be 50%. (d) The examination shall have to be qualified in one attempt. (e) The seniority of the approved candidates of the same examination will be in order of grades held by them prior to their appointment to the post of Inspector."

4. Muhammad Jehangir Shahzad was serving in the Department as Stenotypist whereas Muhammad Ashraf Qamar appellant was a UDC at the relevant time. They both appeared alongwith others in the departmental promotion examination conducted by the Commissioner of Income Tax, Lahore Zone, Lahore. (respondent No. l) on 26-1-1985. After this examination, certain persons were promoted to officiate as Inspectors with the following order dated 30-1-1985: "No.-C-47(1)4016/Admn.?????????????????????????????????????????? Office of the ??????????? Commissioner of Income-Tax, Lahore Zone A, Lahore. ??????????? ??????????? Dated: 30-1-1985. ORDER ESTABLISHMENT-NON-GAZETTED PROMOTION TO THE POST OF INSPECTOR INCOME TAX--ORDERS REGARDING. The undermentioned officials of the Income Tax Department are promoted to officiate as Inspectors of Income-tax in Basic Pay Scale No. 11 (Rs.700-35-1,400) with effect from 2-2-1985 and until further orders: (1) Mr. Shahid Hassan, UDC, CCI, Zone A, Lahore. (2) Mr. Muhammad Shahid Saleem, UDC, Circle 10, Zone B, Lahore. (3) Mr. Muhammad Naeem Sialvi, UDC, Data Processing Centre. (4) Mr. Muhammad Ilyas Khan, UDC, Circle C, Zone-A, Lahore. (5) Mr. Muhammad Zafarullah Khan, UDC, Central Zone, Lahore. (6) Mr. Waheed-ud-Din, Stenotypist, CC-II, Zone A, Lahore.

2. The postings of the aforesaid newly promoted Inspectors are being ordered separately.

3. The order in which names have been indicated does not represent their inter se seniority which shall be determined in due course on the basis of existing rules and instructions. (Sd.) AA. ZUBERI Commissioner of Income Tax Lahore Zone A, Lahore"

5. These officials were promoted/appointed as Inspectors on the basis of marks obtained by them, by treating the departmental examination as competitive in nature. Others including the appellants, were ignored because the marks obtained by them were lesser than those who were selected for appointment, irrespective of the fact that the appellants were senior to some of them who have been impleaded as respondents in these appeals. There were only six vacancies of Inspectors and the appellants alongwith various others were excluded from consideration on the basis of surmise that the examination was competitive in nature and only the top six persons were to be taken.

6. Departmental representations having failed to produce any result, the appellants were led to the present appeal where the prayer is that order dated 30-1-1985 promoting respondents Nos.3 to 7 in Appeal No. 24(L) of 1986 and respondents Nos.4 and 5 in Appeal No. 117(L) of 1986 to their supersession may be set aside and they be considered by the DPC for promotion as Inspectors.

7. In rejoinder to the respondents pleadings it was prayed by the appellants that order dated 30-12-1985 in Appeal No. 24(L)/86 passed by the Regional Commissioner of Income Tax and orders dated 10-2-1986 and 27-4-1986 in Appeal No.117(1)/86 passed by the Regional Commissioner of Income Tax, Lahore Zone, may be set aside.

8. I feel obliged to say that the appellants' pleadings are somewhat confusing and mis-directed. Both have made much 'ado of the provisions of section 9(2)(b) of the Civil Servants Act, 1973 by repeated pleadings that the promotion of a civil servant in the case of non-selection post is to be made on the basis of seniority-cum-fitness and that these provisions have not been followed by respondents Nos. l and 2 in the selection of Inspectors. Section 9(2)(b) does provide that promotion to a non-selection post is to be made on the basis of seniority-cum-fitness, but this factor alone cannot advance the appellants' case, without a specific allegation to the effect that the post of Inspector in the present case is a non-selection post. Although, as already pointed out before, the appellants' reliance is mainly on the provisions of section 9(2)(b) of the Civil Servants Act, 1973, it is quite surprising that it has not been specifically alleged that the post in dispute is a non-selection post. In the absence of this allegation, their pleadings have become rather pointless. The result is that respondents have been made to address a point which is not relevant for decision of this matter.

9. Mention has also been made of section 8(4) of the Act which provides that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post, provided that civil servants selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post. I am at a loss to understand as to what is the relevancy of these provisions in so far as the present appeals are concerned. I feel that details of the pleadings of the parties need not be given and it will be enough to say that real controversy between the parties competitive as alleged by the appellants or only qualifying in nature as the appellants want us to conclude.

10. The contesting respondents have relied mainly on C.B.R. circular letter dated 19-9-1982 in support of the contention that the examination was competitive in nature and that the appellants were rightly excluded from consideration by the DPC on the ground that they did not figure amongst the top most six persons on the basis of the marks scored by them. Here again, the details of their pleadings are not necessary and it would be sufficient to say that in this circular the Board did hold that the examination was competitive. However, it is required to be seen whether the Board's interpretation of the provisions of Notification dated 5-7-1982 is correct and whether it can, by any means be possible for us to spell out that the examination was competitive and not qualifying in nature.

11. I have already made a mention of the relevant provisions of this t Notification. Rule 2 provides that LDCs, UDCs and Stenotypists of the Department are eligible to be promoted as Inspectors on regular basis provided they qualify in the departmental promotion examination. It further provides, as already seen, that mere qualifying departmental examination will not entitle a candidate to have a right of promotion and that his fitness for promotion to the post is to be adjudged by the DPC and approved by the competent authority. Nothing can be more clear to show that this examination is only qualifying in nature and by no means competitive as the respondents would want us to believe. I say so not only because the word "qualifying" has been used in the Rules, but also on the basis of provisions that mere passage in this examination does not entitle a candidate to have a right of promotion and that his fitness for this promotion depends upon the decision of the departmental promotion committee and approval of the competent authority. These provisions would not have been there in the rules, had the examination been competitive in nature, for in that case the candidates at the top, equal to the number of vacancies, would have had the right to claim exclusion of others with lesser marks. A closer applic4tion to the provisions of Notification dated 5-7-1982 would rather show that the examination could not possibly, be competitive in the case of departmental candidates considering that in their case only the factor of marks secured could not be material and 'that the departmental promotion committee could not have been possibly deprived of the right of examination as to what was their past record before selecting them for promotion. For instance, a stenotypist could not claim promotion as a material of right merely on the basis of the fact that he is senior to other candidates and has scored the highest number of marks. He could still be ignored by the selection committee or the competent authority on the basis of adverse entries in his record. This was so because in the case of' departmental candidate, it cannot be possible to ignore the service record of a candidate and rely merely on the number of marks secured by him. This is for the obvious reasons that marks factor alone cannot efface the disqualification or inability attached to such a candidate because of adverse service record.

12. These considerations incidentally explain arid justify the Establishment Divisions ruling given in their letter of 30-8-1987. It said that appointment by promotion to the post of Inspector is done on the basis of examination as well as recommendations of DPC and not merely on that of seniority-cum-fitness and that the post of Inspector is a selection post. Therefore, apart from what has already been said about the appellants' pleadings,. it may be added that they are redundant in so far as they have been based upon the provision of section 9(2)(b) of the Act. But this circumstance is obviously not enough to turn them -out of the Court for they will succeed on account of the finding that the examination was qualifying in nature and that they had the right to be considered for promotion irrespective of the marks obtained by them, which does not appear to have been done in this case. This conclusion is also supported by. Establishment Division's aforementioned ruling conveyed through letter dated 30-8-1987 where it has been laid down that since the examination provided in the Recruitment Rules is qualifying and not a competitive examination, there is no reason to select the officials for promotion only on the basis of its result. This letter provides that a final list will be prepared on the basis of 50% minimum pass marks in order of grade held by the successful candidates without any weight to higher marks obtained by their juniors. If an official who is senior in grade has passed the fitness test by securing 50% marks, his marks in the test are immaterial and he earns promotion by dint of his seniority in the grade or rank.

13. For these reasons, I hold that since departmental promotion examination was only qualifying in nature the appellants had the right to be, considered for promotion as Inspector regardless of the marks scored by them. There is no denial of the fact that they did obtain the qualifying marks.

14. A few other points require determination before lave of the matter is taken. The first is in respect of limitation. In case of Muhammad Jehangir Shahzad, he filed a representation against order dated 30-1-1985 to the Commissioner of Income Tax which was rejected on 5-2-1985. On 14-2-1985, he addressed another representation to the Regional Commissioner of Income Tax Central Zone, Lahore. This was also rejected through letter dated 23-12-1985 which was received by the appellant on 1-1-1986. He filed the present appeal on 29-1-1986 within 30 days of the communication of this letter to him.

15. In the case of Muhammad Ashraf Qamar, the first departmental representation/appeal was addressed to the Regional Commissioner of Income Tax on 27-2-1985 against the impugned order of 30-1-1985. It was rejected on 10-2-1986. The appellant then filed a representation to the Chairman' of the Central Board of Revenue Islamabad on 1-3-1986 which was followed by another representation dated 24-3-1986. These representations were finally rejected by the competent authority and the- order of rejection was conveyed by the Commissioner of Income Tax on 27-4-1986. The present appeal which is accompanied by an application for condonation of delay under section 5 of the Limitation Act was filed on 13-5-1986.

16. Under the aforementioned circumstances, we do not feel any hesitation in saying that there has been no deliberate delay in these cases which could have been made a basis for denying relief to the appellants on the ground of limitation. It cannot possibly be said that they have either been careless or sleeping over their right to an extent which could have given us a justification for believing that their indolence was deliberate in nature and that they were no longer entitled to the grant of requisite relief. We find that they have been pursuing the matter soon after the passage of the impugned order in good faith before the concerned authority and that there is no justification for turning them out of the court, particularly when such a course is not going to promote the ends of justice and in any case we condone the delay in filing these appeals.

17. We feel like saying that the written statements filed by respondents Nos. l and 2 in both the cases are rather perfunctory in character and they do not appear to have had any mind to contest the appeals. Apart from limitation, the other point raised by the contesting respondents is that the appeal is incompetent under section 4 (1)(b) of the Service Tribunals Act, 1973. It has been averred that the representations filed by the appellants were considered and rejected by the competent authority and that this rejection amounts to a decision of a departmental authority determining, the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade within the meaning of that section; which makes the appeals incompetent. I am afraid it is not possible to agree for there is nothing in these provisions to debar a person from claiming the right to be considered for promotion. In the present case, it neither appears from the written statements filed by respondents Nos. l and 2, nor from any other document on record that appeals were so considered. This being so, the order of promotion dated 30-1-1985, passed by the competent authority on a particular view of the provisions of Notification dated 5-7-1982 cannot be legally sustained. Nor for that matter, is their any substance in the contention that this Tribunal does not have the jurisdiction to decide the matter.

18. Another objection raised by the contesting respondents is that their promotion does not amount to an order relating to the terms and conditions of appellants' service within the meaning of section 4 of the Service Tribunals Act, 1973 and that their appeals for cancellation of order dated 30-1-1985 are not maintainable. Here again, it is not possible to agree because the impugned order will clearly be taken to have affected the terms and conditions of appellants' service on account of the competent authority's failure to consider them for promotion. The impugned order in this case is based on a denial of the appellants' right to be considered for promotion and there is no justification for holding that the terms and conditions of their service have not been affected.

19. It has also been contended that the promotion of contesting respondents is a past and closed transaction and that the impugned order cannot be set aside because it has been acted upon and certain rights have accrued to them. We feel no hesitation in holding that even this contention is without any force. The impugned order is the result of a situation, where the competent authority failed to consider the appellants for promotion because of incorrect view of the relevant rules. There can be no justification for upholding an order which is basically illegal.

20. For these reasons, both the appeals are accepted and the impugned orders passed by respondents Nos. l and 2 in Appeal No.24(L)/86 and respondents Nos. l to 3 in Appeal No. li7(L)/86 are set aside with the direction that the appellants shall be considered for promotion by the DPC concerned on the basis of their qualification in the departmental promotion examination held on 26-.1-1985. In case it comes to the conclusion that they ought to have been promoted on the basis of record, they shall be entitled to the consequential benefits including that of seniority. There will be no order as to costs.

21. Parties to be informed. M.Y.H./613/Sr.F???????????????????????????????????????????????????????????????????????????????? Appeals accepted.