P L D 1961 Dacca 616 (PLP)

In the present suit the plaintiff has not prayed for setting aside any order of any officer of the Government. His prayer is for a declaration that his posting as an Income‑tax Officer, Class II, Grade III, in the circumstances stated in the plaint, was illegal, inoperative and not binding on him. Apparently it does not come within this Article 14 of the Limitation Act, nor Mr. Mesbahuddin has been able to point out any other Article applicable to the case. In such circumstances, the only Article applicable in the case is the residuary Article 120 of the Limitation Act which provides that for a suit for which no period of limitation is provided elsewhere in the schedule, the period of limitation is six years when the right to sue accrues. Even if we take that plaintiff's cause of action arose on the first date i.e., 9‑8‑51, then the suit filed on 4‑1‑57 is within six years and, therefore, not barred by limitation under Article 120 of the Limitation Act. Now as to the bar of section 42 of the Specific Relief Act, the learned Advocate for the appellant did not contend that the plaintiff's claim for relief was too late. What he contends is that it is not in the nature of the suit as contemplated by section 42 of the Specific Relief Act. This contention of Mr. Mesbahuddin is possible only because of prayer made in paragraphs (b), (c) & (d) of the plaint i.e., the prayer for restoration in his legitimate rank of service and, in the alternative, for placing him in a post in conformity with his status of service including his prayer for a declaration that all orders of appointment made in the depart ment since 1‑4‑52 are illegal, ultra vires and not binding on the plaintiff. We may point out that the suit has been described in the plaint as one for declaration with consequential relief and it has been valued as such and ad valorem Court‑fee has been paid on it. We are entirely in agreement with the learned Subordinate Judge that the plaintiff is not entitled to get those declarations under prayer (b) and (c) and so much of (d) as it relates to " all orders of appointment made in the department since 1‑4‑52 . . . . . . be declared illegal, ultra vires and not binding on the plaintiff", because the plaintiff was never appointed as an Assistant Commissioner of Income‑tax‑cum‑Sales Tax and was never replaced from that post. So no question of restoration comes in nor Civil Court is competent to restore any officer to his post if he is replaced or removed from that post. So also is the case as to prayer (d) so far as it relates to the declaration that all orders of appointment made in the department since 1‑4‑52, are illegal, ultra vires and not binding on the plaintiff. The plaintiff has not impleaded all those incumbents and cannot have any relief. Simply because of plaintiff's failure to succeed in his prayer for consequential relief, we do not think that his suit would be barred under section 42 of the Specific Relief Act, apart from the fact that the declaration sought for by the plaintiff is one in respect of his legal character though it was, couched in a negative form, namely, that the order posting him as Income‑tax Officer be declared illegal and inoperative. Mr. Pal, the learned Advocate for the plaintiff-respondent, in order to remove that defect has filed an application for amend ment of the prayer portion of the plaintiff praying that prayer (a) in the schedule of the application for amendment of the plaint be substituted in place of the prayer (a) of the plaint. Prayer (a) in the schedule of the said application for amendment of the plaint runs as follows :- " (a) That it be declared that the plaintiff was, on his transfer on 9‑8‑1951, to the Income‑tax Department, entitled to a post carrying a scale of pay not lower than the scale of pay on which the plaintiff had been as a confirmed officer and as such his appointment to the post of Income‑tax Officer Class II, Grade III which carried a lower scale of pay amounted to a reduction in rank and is illegal, void and inoperative and that he was entitled therefore to have been placed in a post which would not have amounted to a reduction in rank." Mr. Pal also relied on prayer (f) of the' original plaint, already quoted in the earlier portion of this Judgment and prayed for relief or reliefs as he may be found entitled to in the facts and circumstances of the case. We shall deal with this matter later on. At the present moment on the point of the bar of section 42 of the Specific Relief Act pressed before us by the learned Advocate for the appellant, we are of opinion that the suit as framed is not hit by section 42 of the Specific Relief Act. Now, before we come to the question of merit, we think it would be better to give a list of different scales of pay of different nature of services under Central Government and the Provincial Government relevant for the purpose of this appeal as well as a list of different posts held by the plaintiff‑respondent Md. Abdul Kuddus, for proper understanding of the cases of the parties :‑ Scales of Pay Commissioner of Income‑tax and Sales Tax. Rs. 2,000‑100‑2,

500. Assistant Commissioner of Income‑tax and Sales Tax. Rs. 1,000‑100‑1,500, Old Scale. Rs. 1,000‑50‑1,250 (Revised) Further Revised 1,

400. Income‑tax Officer Class I Grade I. Rs. 400‑25‑600‑‑35‑950‑50‑1,050, Old Scale. Rs. 600‑40‑1,000‑1,050‑50/2‑1,150, Revised Scale. Income‑tax Officer, Class I Grade II. Rs. 250‑275‑Prob.‑300‑25‑750, Old Scale. Rs. 300‑25‑500‑530‑E. B.‑560‑30‑770‑40-850, Revised Scale. Income‑tax Officer Class II Grade III. Rs. 200‑200‑Prob. 240‑20‑480‑15‑600, Old Scale. Rs. 250‑20‑450‑EB‑25‑600‑EB‑25‑750, Revised Scale. Appellate Officer for Sales Tax. Provincial Revised Scale as Rs. 300‑20‑500, Old Pro‑ below allowed to vincial Scale for Assistant Mr. Kuddus by Central Commissioner of Commer‑ Government with effect cial Tax. Rs. 250‑50/2‑ from 1‑4‑53, as per order 750. dated 15‑3‑54, Rs. 250 25‑550‑30‑

850. Assistant Sales Tax Officers. (Non‑Gazetted). Rs. 125‑10‑225‑EB‑10‑275‑25/2‑350‑plusv Special Pay of Rs. 25 p.m. Commercial Tax Officers. (Provincial Government). Rs. 125‑125‑150‑20/2‑350‑375‑400, Old Scale. Rs. 225‑10‑275-EB‑15‑500, Revised Scale. Assistant Commissioner of Commercial Tax. (Provincial Government.) Rs. 250‑50/2‑750, Old Scale. Rs. 250‑‑25‑550‑30‑850‑E.B. after 12th and 16th stage, Revised prescribed scale 1‑4‑

50. Post held by Mr. A. Kuddus Assistant Commissioner of Commercial Tax. (Provincial Government). Appellate Officer for Sales Tax from 7‑7‑50 to 13‑8‑

51. I. T. O., Class II, Grade III from 14‑8‑51 to 25‑5‑

56. I. T. O., Class I, Grade II from 25‑5‑56 to 30‑6‑58. (Junior Scale). I. T. O., Class I, Grade I from 1‑7‑58 onward. (Senior Scale). There are certain undisputed facts' which are necessary to be stated here. After the partition of the country the service of the plaintiff continued to be under the Provincial Government of East Bengal (Now East Pakistan). In 1948, the Central Government of Pakistan took over Sales Tax as Central subject for 2 years. The entire sales tax staff were placed at the disposal of the Central Government which appointed Commercial Tax Officers, subordinate in rank to the plaintiff; as Assistant Sales Tax Officer. There was a hue and cry but the Central Government refused to amend the position. The Provincial Government as a protest recalled the services of the entire staff and retained them in the Provincial Service. In 1950, when the Provincial sales tax staff were going to be taken over by the Central Government more or less on permanent basis, they again approached the Provincial Government for, proper utilisation of the employees of the Provincial Government. (Sales Tax Department) under them. The Provincial Government agreed to the proposal that their staff would be suitably provided. There was an agreement between the two Governments. It is Exh. (A) at page 15 of Part II of the paper book. In accordance with this agreement the services of the entire staff with the exception of the Commissioner were placed at the disposal of the Central Government in 1950. At that time the plaintiff was holding a post of Assistant Commissioner of Commercial Taxes under the Provincial Government on a scale of pay of Rs. 250‑50/2‑

750. He was appointed by the Central Government as an Appellate Officer for Sales Tax, but the scale of pay being Rs. 300‑20‑500 the post was upgraded and the scale of pay was raised to Rs. 250‑50/2‑750 vide Exh. D(7)., page 46 Part II of the paper- book, which speaks of "Pay fixed for the post of Appellate Officer for Sales Tax." The plaintiff continued to hold that post from 7‑7‑50 to 13‑8‑

51. It is the case of defendant No. 1 (appel lant) that the post of Appellate Officer of Sales Tax was abolished and that the plaintiff was appointed Income‑tax Officer, Class II, Grade III by an order dated 9‑8‑51, to which the plaintiff joined on 14‑8‑

51. Now the question is whether the placing of the plaintiff in the post of income‑tax Officer, Class II, Grade III with a scale of pay of Rs. 200‑220‑Prob.‑240‑20‑480‑15‑600, is a reduction in rank. Of course this scale of pay of Income‑tax Officer Class II, Grade III was subsequently revised in December 1951 ; but at the time when the plaintiff was posted to that post, certainly it was a lower post and also lower in status and time scale, because the upgraded scale of Appellate Officer for Sales Tax at the moment was Rs. 250‑50/2‑

750. It is contended by Mr. Mesbahuddin for the appellant that at the time when the plaintiff was posted as Income‑tax Officer Class II, Grade III in the scale of Rs. 200‑220‑Prob.‑240‑20‑480‑15‑600, he was drawing a pay In the scale of Rs. 250‑50/2‑750, so practically he is not affected either in rank or in pay scale. The post of Income‑tax Officer, Class II, Grade III is definitely lower in rank and pay scale within the meaning of rule 49 (iii) of the Civil Service (Classification; Control and Appeal) Rules, Government of Pakistan, then in force. The explanation to that rule shows that : "The discharge‑ (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under' contract to hold a temporary appointment, on the expiration of the period of appointment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dis missal within the meaning of this rule." We have already pointed out that he was a confirmed Officer as an Assistant Commissioner of Commercial Tax. While he was appointed as an Income‑tax Officer Class II, Grade III, he was appointed as probationer with the above disabilities though confirmed later on. Instruction 3 (i) under rule 49, at page 22 of the said Civil Services Rules provides : "(3) (i) While reduction of seniority as an .independent penalty is not provided for in Classification Rule 49 or Rule 3 of the Subordinate Services Rules and cannot be imposed as such, the loss of seniority as a result of an order of reduction to a lower post or time‑scale, being inherent in the order of reduc tion, cannot be avoided." Therefore, there is no doubt in the circumstances of the case that the plaintiff while appointed as an Income‑tax Officer Class II, Grade III, there has been a variation of the plaintiff's service condition and that variation has been to his detriment and it is definitely lowering down of the status of the plaintiff when the plaintiff, a confirmed Assistant Commissioner of Commercial Tax, was asked to join the post along with his subordinates whose appellate authority he was. It is contended on behalf of the Government that when the Government absorbed the plaintiff in the Central. Service there was no corresponding post in the Central Government to that of the Assistant Commissioner of Commercial Tax of the Provincial Government a new post as Appellate Officer had to be created to suit the requirement of the Gover nment and the plaintiff was appointed as such Appellate Officer and that thereafter when the post of Appellate Officer was abolished due to requirement of the Government the plaintiff had to be appointed as Income‑tax Officer, Class II Grade III on his existing scale of pay. Simply because there was no corresponding post cannot justify the posting of a man in a lower post with lower time scale to the detriment of the incumbent depriving him of all the benefits and advantages of a senior scale. It is further contended on behalf of the defendant‑appellant before the trial Court as well as before us that though the plaintiff was appointed on probation as Income‑tax Officer, Class II, Grade III but within a very short time in 1956 he was promoted to the rank of Income‑tax Officer Class I, Grade II and thereafter he was further promoted as Income‑tax Officer, Class 1, Grade I and as such no injury has been caused to the plaintiff and he has no cause of action for instituting the suit in 1957, as the wrong complained of was already remedied. The learned Subordinate Judge has rightly pointed out that the fact remains that in 1951, plaintiff was injured by order of the Central Government and, therefore, there was a wrong and that must be remedied. If he had been posted in a proper post with proper scale of pay he might have got further promotion by this time. Nothing extra ordinary has been done to remedy the grievance of the plaintiff. What has been done was in the normal course of the service i.e., after his passing of the departmental examination with credit .as admitted by the defendant. Further it appears from Exh. D that the Commissioner of Income‑tax, East Bengal, recommended; in accordance with the decision of the Board, that the two Assistant Commissioners of Commercial Taxes Messrs. Muhammad Abdul Quddus (plaintiff) a and Muhammad Ali Asghar should be given seniority over the Income‑tax Officers, who were appointed after the respective dates of their promotion as Assistant Commissioner of Commercial Taxes‑under the Provincial Government. But the list given at page 11 Part II of the Paper‑book Exh. 3(a) shows that the] plaintiff Md. Abdul Kuddus was not given even that seniority. Further we may point out that though certain documents were called for from the Government to establish certain allegations made by the plaintiff, the defendant refused to produce them and claimed privilege under section 123 of the Evidence Act. They can produce it for inspection of the Court though not in Court and Mr. Mesbahuddin frankly conceded that there was no bar in producing those documents for inspection of the Court. The list Exh. 3(a) at page 11, Part II of the Paper‑book shows that the plaintiff as placed at 10th .position of the Income‑tax Officers Class 11, Grade 11I4and it shows that the Board's decision has not been given effect to (vide Exh. D, page 57 Part II of the paper book, dated 6th October, 1955) though the list Exh. 3(a) is dated 15th December 1954. Mr. Mesbahuddin contends that the letter Exh. D, refers to the date of appointment of the Income‑tax Officers, but it is for him to prove when they were appointed, whether before or after "the dates of their promotion as Assistant Commissioner of Commercial Taxes under the Provincial Government," in Exh. D. We, therefore, have no doubt in our mind that the plaintiff was illegally posted in a lower post with lower time‑scale of pay and we find no substance in the appeal and it must fail. Now the question is what would be the form of declaration. The cross‑objection filed by the plaintiff cannot also be maintained, because the ground taken therein are all related to the reliefs which the Civil Court cannot grant. It seems to us that the declaration as it appears from the ordering portion of the judg ment of the learned Subordinate Judge should be modified and we think the plaintiff is entitled to a declaration that his appoint ment on the 9th of August 1951, as an Income‑tax Officer, Class II Grade III is illegal, void and inoperative. With the above modification we dismiss the appeal with costs and dismiss the cross‑objection without any order as to costs. In the circumstances no order is necessary on the application for amendment of the plaint and let the same be kept in the record. M. R. KHAN. J.‑I agree with my Lord the Chief Justice. A. H. Appeal dismissed with modification.