2008 PLP 948 (SCMR)

SH. HAKIM ALI, J.

When the case of respondent, Muhammad Saleem, who was posted as Deputy Commissioner of Income Tax in BS-18, was ignored by the Income Tax Department to be placed before the Central Selection Board for promotion to the post of Additional Commissioner of Income Tax in BS-19, on the basis of fetish technicalities, in such an event, respondent approached the door of Lahore High Court, Lahore through Writ Petition No.1087 of 2006 (Muhammad Saleem v. Secretary, Revenue Division and others), to obtain the direction as noted below, wherefrom an order, dated 4-7-2006 was passed by learned Single Judge of that Court. The aforementioned order has been assailed by Secretary, Revenue Division etc., through the instant civil appeal.

2. Determinative facts of the case are that respondent was serving the income Tax Department as Deputy Commissioner of Income Tax in BS-18 when his case for promotion to the post of Additional Commissioner Income Tax (BS-19) was withheld and his case, was passed over on the ground that PERs of Muhammad Saleem for the periods from 1-7-2000 to 16-3-2001; 17-3-2001 to 30-6-2001 and 15-9-2001 to 30-6-2002 were not genuine. In these circumstances, respondent having no legal remedy to his end, filed the case before the learned Lahore High Court, Lahore against the department. After hearing both the parties, the learned Single Judge of the Lahore High Court came to the conclusion that the Reporting Officer as well as Countersigning Officer were biased as they were at daggers drawn against each other due to criminal proceedings therefore, PERs of these periods of the writ petitioner to be impartial, honest and fair was not possible to be delivered by those officers. It was, therefore, the duty of the Department to get the PERs of the officers concerned to be completed by its own efforts and thereafter it should have been kept and maintained by the Department itself, so that the case of promotion of the official of the department could be submitted before the Central Selection Board, at the proper and relevant time, which would be constituted for the purpose of promotion of the Officers. To find that solution, the learned Judge directed the C.B.R. to get the reports of PERs from Mr. Ehsan-ul-Haq, Member, C.B.R., Ex-Regional Commissioner, Central Region, Multan, who had been sometime superior Officer of Muhammad Saleem, respondent. In case, it was not possible, it was then directed that reports of those periods were to be ignored by the Central Selection Board. It is noteworthy that D.A.-G., who appeared on behalf of the Department, had candidly made a statement on 13-6-2006 that Selection Board would consider the case of the respondent on merits when record of the respondent was completed and submitted before it.

3. Learned counsel appearing on behalf of the appellant-Department submits that the learned Lahore High Court had got no jurisdiction to interfere into the case of the respondent, as the powers and jurisdiction was prohibited to be exercised by any Court/Tribunal in matters of Terms and Conditions of service of a civil servant under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

4. We have considered the arguments and have perused the record. We are not in agreement with the arguments of the learned counsel because there was no prohibition contained with regard to the direction made by the learned Judge of the Lahore High Court. Before the application of this Article, the terms and conditions of person in the Service of Pakistan, are to be displayed which would prohibit that exercise of power and jurisdiction. It may be observed that each and every order/direction issued by the Superior Courts cannot be presumed and assumed to be in contravention of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, because the inherent and other powers and jurisdictions, conferred by law and Constitution, can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition. The jurisdictions vested with the apex and Superior Courts are general, wider in scope and extent while the constraints/prohibitions are narrower in their applications and dimensions. Jurisdiction of Superior Courts are to be stretched to take into its fold all the disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to the minimum extent and length. This is what we can call the rule of interpretation of jurisdiction, scope and limitations of Superior Courts in Pakistan. Viewed with this view, the learned counsel for the Department has not been able to display as to how this direction, which has been issued by the learned Judge of the aforementioned High Court, has come within the realm of prohibited exercise of jurisdiction or it can be found in the powers or jurisdiction of Administrative Courts or Tribunals constituted under the Civil Servants Act of 1973.

5. We have also not found that the case in hand involves any substantial question of law of public importance as according to the facts of the present case, only a direction has been issued to get PERs of the respondent's case completed from another officer, with whom respondent had been working as subordinate, because the case of the respondent was of a special and an exceptional nature. As the Senior of the respondents were admittedly biased and not independent to evaluate his performance due to commencement of criminal proceedings amongst them, therefore, this direction was apt in the circumstances of the case. The law has provided it the duty of the department to get prepared the PERs of an officer, to keep it and to maintain it, so that the same could be used for the other prescribed purposes and at the time of promotion of an official. At the relevant juncture, as the department was neglectful of its duty to get fulfilled the PERs of respondent, therefore, respondent having no alternate and remedy was right to beseech the indulgence of the learned High Court through its writ jurisdiction as the department was bent upon to deprive the right of its own officer, due to its own inaction. Accordingly, the direction issued by the Lahore High Court cannot be considered to be in violation of the provisions of the above noted Article 212 of the Constitution of Islamic Republic of Pakistan. Therefore, the appeal is dismissed with no order as to costs. M.H./S-12/SC Petition dismissed.