1990 PLP 1443 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑The petitioners who have been promoted to the post of Assistant Income‑tax Officers (AITOs), seek leave to appeal under Article 212(3) of the Constitution against the judgment of the Service Tribunal dated 10‑1‑1989, whereby their appeals were dismissed.

2. The Petitioners have been in service of the Federal Government in the Income‑tax Department since long. They were promoted as Assistant Income‑tax Officers (AITOs) from the posts of Inspectors. Their grievance was that on the enforcement of the Income‑tax Ordinance, 1979, the separate identity of the Assistant Income‑tax Officers (AITOs) was completely done away with and they were required for all practical purposes to perform all the duties of the Income tax Officers (ITOs). In this background, when the law did not visualise, the existence, the continuance and the separate identity of the Assistant Income‑tax Officers (AITOs) in the matter of discharge of duties, or in any other respect, they were entitled to the same grade and scale of pay as the Income‑tax Officers (ITOs) were entitled to. Hence, their claim was that the posts of Assistant Income‑tax Officers (AITOs) be upgraded from BPS 16 to BPS 17 and they should also be upgraded in their pay scale and grade, and not to grant them the relief on these grounds would amount to perpetuation of manifest discrimination without cause.

3. The Service Tribunal has examined the background in which the post and cadre of Assistant Income‑tax Officers (AITOs) came to be created, in the following words:‑‑ " ....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 Officers" was defined at clause (3) of section 2 of the Act and it was provided under section 5(a) of the Act that the ATTOs were to perform such functions in the execution of the Act as were assigned to them 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 function as may be assigned to them by the Income‑tax Commissioners to whom they are subordinate as provided under section 5 of the Ordinance:' The Tribunal distinguished the law as declared by this Court in the case of Kamaluddin and others P L D 1983 SC 126 to their case, and held as hereunder:‑‑ (i) "In the instant case, the posts of AITOs are lower in rank to those of the ITOs and the question of upgradation of the posts of AITOs from grade 16 to grade 17 on the plea that AITOs are included in the definition of the ITOs under the Ordinance is altogether a different matter and the decision in the aforesaid Kamaluddin & others' case is not applicable. (ii) "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." On these findings the Tribunal rejected their claim.

4. Mr. K.M.A. Samdani, Advocate, the learned counsel for the Petitioners submitted that as the Petitioners arc discharging the same responsibilities as arc the Income‑tax Officers (ITOs) and the law does not visualise their separate identity, it is more appropriate and necessary that they should be identified with the Income‑tax Officers (ITOs) in the matters of pay, scale and grade. Denial of such equation would be impermissible discrimination against them.

5. The Income‑tax Ordinance, 1979 by clause (25) of section 2, while defining "Income‑tax Officers" recognises the distinctive identity of Assistant Income‑tax Officers (AITOs) and by making the definition of "Income‑tax Officers" inclusive, brings them within the definition of "Income‑tax Officers". But for such an inclusive definition they would not have found the identity which they are now making the foundation for the claim to the pay, scale and the grade. The judgment of the Service Tribunal examined at great length the background in which this cadre came into existence and its place in the hierarchy of the Income tax Department's service. In the context, it was also examined as to how the Income‑tax Officers were a distinct group. The method of their promotion as Assistant Income‑tax Officers (AITOs) as reproduced hereunder from the circular/letter of the Government (Central Board of Revenue) dated 22nd January, 1975, would also reinforce such categorization, classification and distinction:‑‑ "I am directed to say that in supersession of all the rules/instructions issued previously for promotion of Inspectors to the post of Assistant Income‑tax Officers, the .Board has decided to make the following rules for promotion to the post of Assistant Income‑tax Officers:‑‑ (1) The Inspector must have passed the ITOs Departmental Examination completely by higher standard. (2) The Inspector must have been fund suitable for promotion by the Departmental Promotion Committee. (3) The Inspector must be senior on the basis of length of continuous service in the grade of Inspector: Provided that if a person fails to pass the Income‑tax Officers Departmental Examination by the higher standard within two years of his appointment to the grade of Inspector, his seniority in that grade shall, for purposes of promotion to the grade of Assistant Income‑tax Officers, be reckoned from the date on which he is declared to have qualified the aforesaid examination by the standard above‑mentioned. (2) These Orders will take effect from 1‑1‑1975."

6. An Inspector claiming promotion ac an Assistant Income‑tax Officer (AITO) need not be under these instructions even a graduate. The statutory background in which by Act XVI of 1903, Assistant Income‑tax Officers (AITOs) found a place in the Income‑tax Law and were brought into existence as a separate group and their continuance under the Income‑tax Ordinance, 1979, makes out a case of their classification and categorization based on permissible criteria and standards. Merely because in the definition of the Act they have been included in the category of Income‑tax Officers it does not follow that their earlier subordination in the service structure comes to an end and they can claim as of right the same pay, scale and grade as is available to the Income‑tax Officers.

7. On none of the grounds urged, a case is made out for leave to appeal under Article 212(3) of the Constitution and the same is refused. A.A./G‑271/5 Leave refused.