1993 PLP (C (PLC(CS))

Writ Petition No: 5192 of 1990 was brought by Shawas Waseef Choudhri, a U.D.C., claiming himself to be the General Secretary of Income tax Employees Association, Gujranwala Zone (petitioner No. 1) and by Muhammad Aslam, a Daftri, claiming himself to be the Member of Executive Committee of Income‑Tax Employees Association (Class III), Gujranwala. Zone, Gujranwala (petitioner No. 2) against Income‑Tax Commission Gujranwala Zone (respondent No. 1), Secretary (DTA), Central hoard Revenue, Islamabad (respondent No. 2) and Ehsan Muhammad Bokhri Inspector, Income‑tax/President, Income‑tax Employees Association Gujranwala Zone, Gujranwala (respondent No. 3), for seeking a declaration from this Court that the act of respondent No. 3 debarring Class IV members of the Association from contesting election and casting their votes as without lawful authority. They also sought a direction of the Court to him to allow all the members of the Association to exercise their right to vote and to contest Association's election. They also challenged the vires of the letter dated 28‑3‑1991 of respondent No. 2 and finally requested for a direction to (respondent No. 1) for the appointment of an impartial body to announce the schedule for election of the Association and arrange its election.

2. The allegations in the writ petition were the petitioner No. 1 being a U.D.C. and petitioner No. 2 being a Daftri in the Income‑tax Department in Gujranwala, represented Insaf Group of Income‑tax Employees Association of Income‑tax employees from Grades 1 to 15 (non‑gazetted). This Association of (Class III) employee of the said department had come into existence after the establishment of Gujranwala Zone and respondent No. 3 was nominated as its President on 20‑3‑1989 for a period of two years. The total number of non -gazetted employees of this Zone were about 600 and out of them, 200 were from Class IV and the office‑bearers of the Associations were from all the non -gazetted grades. Every employee of these grades could become its member by paying a monthly fee of Rs.5 and every member had a right of vote and could contest election for any office of the Association. The schedule for general election of the Association was announced by respondent No. 3 on 25‑7‑1989 and the election was to be held on 7‑8‑1989 and accordingly nomination papers were filed, but respondent No. 3 raised a dispute to the effect that employees of Class IV were not eligible to vote, nor to contest election of the Association and through a letter dated 8‑8‑1989 the election schedule already announced was withdrawn and it was declared that the office‑bearers already nominated were to continue for two years w.e.f. 20‑3‑1989. The petitioners protested to respondent No. 3 for his illegal act and then represented to respondent No. 1 on behalf of Insaf Group of the Association and also demanded a change in the nomenclature of the Association from that of Employees Class‑III to that of Employees Grade I to 15 on account of abolition of classes in 1973. Respondent No. 1, after considering the demands of the petitioners, appointed Mr. Muhammad Aslam, IA.C. of Income‑tax Department as Enquiry Officer to probe into their grievances and in his report, dated 3‑8‑1989, he recommended for the inclusion of Class IV employees in the Association as usual and granting them right of vote and contest for office‑bearer-ship. However, the report could not resolve the issue and respondent No. 1 referred the matter to respondent No. 2 (C.B.R.) which, in its letter dated 3‑5‑1990 addressed to Muhammad Nazir Rizvi, Chairman, All Pakistan Income‑tax Employees Action Committee, Lahore, and its copy endorsed to respondent No: 1, held that Income‑tax Employees Association (Class III) was a separate entity from Income‑tax Employees Association (Class IV). This decision of respondent No‑2, according to the petitioners, was wrong and action of respondent No. 3 unlawful as the classes of employees had been abolished in 1973 and all employees from Grades 1 to 15 could jointly form an Association and every one had a right to vote and contest. Hence this writ petition with the above prayers.

3. Respondents were called at the stage of motion hearing and after hearing both the parties, the writ petition was dismissed in limine vide order, dated 1‑4‑1991, in the following terms:‑ "Admittedly, the nomenclature of the service association in question is income‑tax Employees Association (Class III). Though various classes of civil servants were abolished by the Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1973. due to the introduction of different grades in the context of N.P.S. and those classes can still be identified yet since they stand abolished with effect from 3‑11‑1973, any reference to the Government civil servants in terms of classes is in apt and against law. To be a little more precise, rule 7 of the aforesaid rule shows that the former Class IV is now Grade 1 and Grade 2 and the former Class III is now Grade 3 to Grade 10 and former non‑gazetted Class II is now Grades 11 to Grade

15. Thus it is obvious that due to the abolition of various classes of civil servants, the association known as Income‑tax Employees Association (Class III) as such does not exist and its existence is against law. This being so, the petitioners, one of whom belongs to the former Class III and the other to Class IV, cannot claim themselves to be the members of that association having right to vote or contest election for its offices as the association itself does not exist by virtue of provision of rule 6 of the aforesaid 1973 rules which had abolished all classes and classification of services or posts as gazetted and non gazetted. Employees of Income‑tax Department, however, can now form service association with reference only to the grade, either jointly or severally, in consonance with the provisions of rule 28 of Government Servants (Conduct) Rules, 1964, if they so like. As a result, the writ petition is dismissed in limine. Aggrieved by this order, Income‑tax Employees Association (Class III) Income‑tax Department (Regd.), Lahore, through Muhammad Nazir Rizvi, its President, brought Review Petition No. 83 of 1991; Income‑tax Employees Association Class III, Gujranwala Zone, represented by Ehsan Muhammad its President (who was respondent No. 3 in the main writ petition) brought Review Petition No. 84 of 1991; and Income‑tax Servants Association Class IV (Regd.) Income‑tax Department, Lahore, through its President Hafiz Nazir Hussain, instituted Review Petition No. 85 of 1991. Another Association with the name and style of Income‑tai Employees Association Grades 3 to 15) a duly recognised Association of Central Government Employees with its Head Office situated at Income‑tax Complex, Nabha Road, Lahore., through its authorised representative (whose identity is not ascertainable due to lack of necessary particulars) brought Writ Petition No. 588 of 1992. All the matters are almost identical and they are being disposed of by this judgment.

4. To be a little more precise, the respondents in all these matters are Income‑tax Authorities of various levels, to which Government of Pakistan in the Establishment Division was added under the order of this Court because the interpretation of certain circular letters issued by it on the subject, amplifying various provisions of Civil Servant (Change of Nomenclature of Service and Abolition of Classes) Rules, 1973 (hereinafter called 1973 Rues) was involved and its assistance was considered desirable. No doubt, the interpretation of rules so made by this Division has no binding effect on this Court because it is to make its own independent assessment irrespective of what has been said by them, yet in view of the fact that they being the authors of those rules and responsible for their implementation, have a long and valuable experience, their opinion can be of sufficient assistance to this Court for coming to a correct conclusion for the resolution of controversy between the parties.

5. The main grouse common to all the petitioners appears to be some adverse action taken by the Income‑tax Authorities of different levels against them and their office‑bearers on the basis of limine decision, dated 1‑4‑1991, of this Bench in Writ Petition No. 5192 of 1990. They contended that this order did not take notice of certain circular letters of the Establishment Division issued from time to time in the form of D.O. letters and O. Ms. duly published in ESTACODE, which revived various service associations and allowed them to function as usual with necessary construed nomenclatures in the light of the 1973 Rules. Some of the petitioners also insist to retain their original nomenclatures with reference to their service classes such as Class III and Class IV and contend that under the law they are allowed to function as such but the respondents, on the basis of the aforesaid decision of this Bench, are not permitting them to function. However, some other petitioners appear to have adopted the stance that on account of the abovementioned 1973 Rules, after the abolition of classes in service, they are to be construed in accordance with their corresponding grades set out in those rules.

6. The review petitions as also the writ petition have been contested by the respondents in their written statements as also in the oral address of their counsel.

7. During the course of arguments there has been a good deal of controversy between the learned counsel representing the parties regarding the maintainability or otherwise of the review petitions and the writ petition and they have referred to a number of precedents in support of their respective contentions but eventually they seem to have come down to the main issues for their decision on merits and perhaps very rightly so because in the limine decision, which was mainly based on the limited efforts and research of this Bench itself, notice of certain circular letters of Establishment Division, amplifying applicability of various provisions of the 1973 Rules, could not be taken.

8. Thus, the main questions for decision before this Court are: (1) Whether the old service associations of Class III and Class IV employees of Income‑tax Department still exist and if so, whether they are to function under their old nomenclature or they are to function with reference to their corresponding grades/basic scales and what are those grades/basic scales? (2) If aforesaid service associations by virtue of the 1973 Rules have ceased to exist, whether they require fresh registration/recognition by the concerned authorities with reference to their corresponding grades/basic scales now in vogue?

9. Learned counsel representing the petitioners with reference to Rules 3 and 7 of the 1973 Rules read with Establishment Division's D.O. letter No.16/17/73‑F.l, dated 3‑11‑1973 reproduced in Slip No. 66 and its subsequent letter of even number dated 30‑1‑1974 reproduced in Sr. No. 67 published at page 483 of ESTACODE (1989 Edition), contends that service associations of Classes III and IV employees of Income‑tax Department, which stand duly notified as recognised associations, still exist and can function but in view of the impugned order, dated 1‑4‑1991, passed by this Court in Writ Petition No.5192 of 1990, the respondents are not allowing them to function. He submits that these two Associations by necessary construction can now work as a joint association of the employees of Income‑tax Department from Grade 1 to

15. In this connection he refers to para 1(i) of the letter, dated 28‑3‑1991 of Central Board of Revenue addressed by Secretary (DTA) to the Commissioners of Income‑tax which includes Qasids, Naib‑Qasids, Malis, Chowkidars, Armed Guards, Frashs etc. in Class IV employees, and Despatch Riders, Drivers, Clerks, U.D.Cs Inspectors, Supervisors, Office Superintendent, Stenographers and Steno‑typists in Class III employees of Income‑tax Department. In the alternate he suggests that Qasid and other junior employees, who are now in Grade/Basic Scales 1 and 2, can group themselves in one association equivalent to former Class IV and Despatch Riders and others employees, who are now in Grade/Basic Scales 3 to 15, under the construed modification can group themselves into another association equivalent to former Class III.

10. On the contrary, the learned counsel for the respondents is of the view that service associations of Class III and Class IV employees of the Income‑tax Department stood disbanded under the 1973 Rules and the only course for their revival is that the employees of corresponding Grades/Basic Scales, as given in Rule 7 of the said rule, if they so desire, can apply to the concerned Authorities for re‑registration or fresh recognition of their respective associations and it was for this reason that in view of the decision of this Bench Dated 1‑4‑1991 in Writ Petition No. 5192 of 1990, the old associations of income‑tax employees, were restrained by the respondents from functioning under their old labels. He contends that former Class IV employees, whose corresponding Grades by virtue of rule 7 of the said rules are now Grades 1 and 2, and former Class III employees, whose corresponding Grades under the Aid rule are now Grade 3 to 10, cannot form a joint association so as to also include employees of Grade 11 to 15 which fall in the category of old Class II (Non‑Gazetted). In his opinion, the C.B.R. in its letter dated 28‑3‑1991 in tiara. 1(i) happened to inadvertently include certain categories of employees, such as Superintendents and Stenographers, who may be in Grade 11 to 15, in the old Class III and this letter cannot override the statutory law contained in the 1973 Rules.

11. It appears that classes and categories of Government servants have consistently been changing ever-since the introduction of Administrative Reforms in 1973. The 1973 Rules abolished various Services and Classes of government employees and merged them into Grades. Rule 7 ibid provided corresponding Grades for old Classes. This rule still remains un-amended despite the fact that even the Grades have been abolished by the amendment Of Civil Servant Act, 1973 by the Civil Servant (Amendment) Ordinance, 1984, and now the Basic Pay Scales are in vogue.

12. Seen in the cronological order, it appears that the National Pay Scales And Grades, which were introduced in the year 1973 after the abolition of various regularly constituted services and classes of Government employees, with the recent amendment of the Civil Servants Act, 1973, have been substituted by Basic Pay Scales and posts and under the amended law various 1tegories of Government servants are now to be referred to accordingly but despite this change, the Grades are still being mentioned, may be due to the omission to bring about consequential amendments in 1973 Rules. By this time co-sequential amendments appear to have been made only in Civil Servants appointment, Promotion and Transfer) Rules, 1.973 and Federal Public service Commissions (Functions) Rules, 1978. In any case, it is more a matter of form than of substance so far as the case in hand is concerned because different categories of employees of Income‑tax Department can now be conveniently referred to by means of Basic Pay Scales and nomenclature of posts instead of Grades.

13. It is an admitted position that Class III Employees Association of Income‑tax Department, Lahore, and Class IV Servants Association of income‑tax Department, Lahore, are amongst the recognised service associations mentioned at Sr. Nos. 38 and 39, respectively, of the list of Recognised Associations of the Central Government Employees, as it stood on 2-2-1965 published at pages 444 to 447, Chapter XXVIII of Establishment Manual Vol. III. All these Associations were first declared to have ceased to exist by the Establishment Secretary's D.O. letter No. 16/17/73‑F.1, dated 3‑11‑1973 but in a subsequent letter of even date, dated 30‑1‑1974, all associations, other than those of regularly constituted services, were allowed to function till further order. This letter is said to be still m force. In this letter the first D.O. letter was interpreted to be applicable only to the associations of the employees of the erstwhile regularly constituted services, and the service associations of other employees, mostly of lower and middle rung, were allowed to function as usual.

14. So in view of various provisions of 1973 Rules, especially rules 3 and 7 read with rule 28 of Government Servants (Conduct) Rules, 1964, the Service Associations of Class III and Class IV employees of Income‑tax Department are still in existence and they do not require re‑registration or fresh recognition by the competent authorities. The only thing to be done by them is that their nomenclature is to be modified with reference to the Grades (now Basic Scales and Posts) in accordance with the provisions of rule 7 ibid. For instance, the original Class III Employees Association of Income‑tax Department, Lahore, can now be called `BPS Nos. 3 to 10 Employees Association of Income‑tax Department, Lahore Zone, Lahore". Similarly, old `Class IV Servant Association Income‑tax Department', Lahore can now be called Income‑tax Employees Association (BPS‑1 and 2) "Lahore Zone, Lahore" or "BPS 1 and 2 Servants Associations Income‑tax Department, Lahore Zone, Lahore", as their respective bodies wish to call their respective Associations. To this extent, I agree with the contention of the learned counsel for the petitioners. However, I have not been able to persuade myself to see eye to eye with them that the new Association can include the income‑tax employees of Grade or BPS 1 to

15. They can jointly form a new Association if they so wish but m that case they will have to seek re‑registration or fresh recognition from the concerned authorities because construction clauses of the 1973 Rules shall remain confined only to the old associations. In their letter, dated 19‑3‑1991, the C.B.R. has included certain employees, such as Stenographers and Superintendents who may be in BPS 11 to 15, but since this categorisation runs counter to the provisions of rule 7 ibid, it does not take effect. The old association of Class IV employees shall be construed to be the association of the Income‑tax employees of BPS 1 and 2 by whatever new name called and the old association of Class III employees shall be deemed to be the association of the employees of that Department in BPS 3 to 10, by whatever new name called.

15. It may be mentioned here that Lahore Zone of Income‑tax Department was previously comprised of the Province of the Punjab and N: W.F.P. as it appears from the letter of Mr. Muhammad Nazir Rizvi, one of the petitioners, dated 9‑5‑1991. It now stands split into Rawalpindi, Peshawar, Faisalabad, Multan, Gujranwala and Lahore Zones. Therefore, the area of the operation or jurisdiction of the aforesaid‑ two old associations under their modified nomenclature shall henceforth remain confined to the territorial 9imits of Lahore Zone and the employees of other Zones will have to form fresh service associations or) their pattern if they so like. 16; Before parting with this judgment, I would like to observe that during the course of hearing, which has remained spreaded try many dates of hearing, both the parties have been complaining against each other, the petitioners counsel against the excesses and overbearing attitude of their officers representing the opposite party, particularly those posted at Lahore, in the form of their taking disciplinary action against them, while the respondents' counsel has been complaining about certain acts of misbehaviour and misconduct of certain members of the petitioners' associations, especially the office‑bearers at Lahore. Whosoever is at fault, these things are not conducive to discipline and good order in public service as they tarnish image of the Department as also of the Government and ultimately the public, with which they are to deal with, suffers a lot. Both the parties are under a well‑defined discipline and code of conduct. Where the respondents are to listen to the I genuine grievance of their subordinates through their chosen representatives and try to solve their difficulties, the petitioners associations, their members as well as office‑bearers are duty bound to maintain discipline and order and to faithfully carry out the lawful commands of their superiors in day‑to‑day working. A distinction is to be kept by all concerned between a service association and a trade union. The petitioners should know that they are service associations governed by Rule 28 of the Government Servant (Conduct) Rules, 1964 and they are not trade unions governed by labour laws. They have therefore, no right of strike. demonstration, agitation, procession or to display similar unruly conduct in and outside the office. Any breach of discipline on their part, or on the part of their office‑bears or members, must entail necessary legal consequences.

17. In view of the above, question No. 1 is answered in affirmative but to the extent indicated in paragraphs Nos. 14 and 15 above, while question No. 2 is answered in negative. Resultantly Review Petition No. 83 of 1991, Review Petition No. 84 of 1991 and Review Petition No. 85 of 1991 are accepted and the impugned order, dated 1‑4‑1991, passed by this Bench in Writ Petition No‑5192 of 1990 consequently stands modified to the extent indicated above. It may be clarified that the membership of first two associations shall remain confined to the employees of BPS‑3 to 10 and that of the third only to the employees of BPS 1 and 2.

18. Since Review Petition No. 83 of 1991 brought by Class III Income‑tax employees Association through its President has already been accepted and the reemployed of the old Class III have obtained the requisite relief therein and there no already recognised association by the name of Income‑tax employees association (Grade 3 to 15), which has brought Writ Petition No.588 of 1992, and it is also not ascertainable as who is the authorised representatives through whom it has been instituted, this writ petition is dismissed for lack of locus and due to vagueness.

19. Parties are, however, left to bear their own costs in all the matters. A.A./1‑71/L Order accordingly.