1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑The Central Board of Revenue (C. B. R) had been for some time, considering the possibility of introducing an examination so as to accelerate the promotion of outstanding Inspectors to the Grade of Deputy Superintendents because of the special significance of the latter rank in the hierarchy of the Central Excise and Land Customs (C E and L C).

2. The Central Board of Revenue, vide letter No. 35 (7)‑Estt/56, dated 5th December, 1956 addressed to various Collectors, laid down as under :‑ Subject:‑ Examination‑Promotion for Inspectors for Selection as Deputy Superintendents. "The Board had decided that henceforth the Inspectors of. C. E. and L. C. will be required to qualify in a promotion examination for selection as Deputy Superintendent‑‑. Promotion to the grade of Deputy Superintendents will be made henceforth, in the light of decision mentioned above."

3. The above directive was followed up vide Government of Pakistan Directorate of Training (Customs and Central Excise), Central Board of Revenue, which is reproduced below : "C. No. Ex. (I)‑DT/57 Karachi the 21st February, 1957. Subject : Promotion Examination for Inspector of Central Excise and Land Customs. The Board‑in‑Council have decided to introduce a promotion Exami nation for the Inspectors of Central Excise and Land Customs. Only those Inspectors who qualify at this Examination will be eligible for selection as Deputy Superintendents in the Department. (2) The Central Board of Revenue shall hold this Examination through the Agency of the Directorate of Training (Customs and Central Excise). (3) The written Examination shall consist of the following papers I, II, III and IV. (4) The maximum marks will be 100 and the minimum qualifying marks will be 60. (5) Those candidates who qualify in each of the written papers will be called up for viva voce test. (6) The maximum marks will be 100 and the minimum qualify marks for viva voce test will be 60. (7) All Inspectors of Central Excise and Land Customs, with a mini mum service of five years and who have passed their Departmental Examination or have been granted exemption there from, will be eligible to take that Promotion Examination. (8) All inspectors will be allowed two chances to appear at this examination. A third chance may be given by the Board in exceptional cases. (9) All inspectors who fail in one or more subjects or in the viva voce test shall be required to take the next examination in those papers or the viva voce test only. CALLING UP APPLICATIONS' (10) The Collectors of Central Excise and Land Customs will invite applications from the Inspectors of their Collectorate who wish to appear at the Inspectors Promotion Examination. (11) After scrutiny of eligibility, the Collectors will forward a list of the candidates showing their dates of appointment as Inspectors, date of birth and position of seniority in the Collectorate to the Director of Training (Customs and Central Excise) Karachi so as to reach by 15th May, 1957. (12) The Directorate of Training will allot a Roll Number to each candidate allowed to appear at the Examination and forward a list of candidates and their Roll Numbers to the Collectors by 30th May, 1957 for communication to the candidates. (13) Those candidates who have qualified at the written Examination will he asked to appear at a viva voce Test at the Centre con cerned between 7th and 21st September, 1957 (Exact date will be notified later). (14) The viva voce Test Board will consist of Director of Inspection (Chairman, the Deputy Director of Training and the Local Collector of Central Excise and Land Customs). (15) The Chairman of the viva voce Test Board will forward the result of the viva voce test to the Directorate of Training as soon as it is completed at each Centre. (Sd.) (F. A. MIRZA), Deputy Director (Training)."

4. The first promotion examination, for selection to the rank of Deputy Superintendent on the basis of the above‑quoted letters was held in the year 1957. A number of Inspectors, otherwise junior, were promo ted Deputy Superintendents solely on the basis of having qualified in the said examination. This system of selection on merit caused heart‑burning to those Inspectors who had previously reckoned with their promotion on the basis of seniority‑cum‑fitness and who had somehow not succeeded in qualifying the first promotion examination held in 1957 and were either superseded or were in danger of being superseded. Consequently, a writ petition (No. 683 of 1957) was filed by Inspector Asad Ahmad Khan and others v. The Government of Pakistan on the ground that as against the old system of seniority‑cum‑fitness, the newly‑introduced system of promotion examination for selection of Inspectors on merit alone was a change to the detriment of their terms and conditions of service. The writ petition was accepted and the learned West Pakistan High Court in their judgment, dated 29th January, 1958 held that the factor of seniority could not be ignored and that the examination should not be turned into a competi tive test "as a result of which those who secure the highest marks irrespective of their seniority get promoted." The learned High Court further rued that :‑ ‑‑‑from among those who have qualified by securing the fixed percentage of marks and whose records are also good and their interview is satisfactory, the senior man should be held entitled to promotion." And further : This order will not prejudice those who have already been promoted as a result of previous examination."

5. Obviously, influenced by the above‑quoted judgment of the High, Court and before their leave of appeal to the Supreme Court was granted (para. 6 below), the Central Board of Revenue issued their letter C. No. (14)‑R/59, dated 10th July, 1959 and without saying in so many words modified their original letters of promotion examinations, dated 5th December, 1956 and 21st February, 1957. The letter, dated 10th July, 1959 addressed to Collector, Karachi was endorsed to other Collectors as well and laid down (only relevant portion) are being quoted :‑ "(i) The D.P.C. should be held on 18th July, 1959 as promised in your letter under reference. (ii) Until further orders the promotion of the Inspector to the rank of Deputy Superintendents should be made on the basis of seniority- cum‑fitness, as distinct from pure selection, that test of fitness being passing the promotion examination, good confidential reports and satisfactory interview. An extract from the judgment of West Pakistan High Court on this subject is enclosed for your information. (iii) The Inspectors who have been promoted as Deputy Superinten dents without passing the promotion examination for the purpose should be replaced by the officers selected on the basis of senio rity‑cum‑fitness mentioned in para (ii) above."

6. The learned Supreme Court, while granting leave to appeal to the C. B. R. (in Civil Appeal No. 37 of 1959), set aside the order of High Court quoted at para. 4 above and, instead, in their judgment, dated 10th December, 1959, inter alia said :‑ "In the beginning of 1957, the Departmental Promotion Committees were abolished and selection for newly‑created post of Deputy Superintendent (Customs and Excise) was based solely on the result of competitive examination held by department which was open to all Inspectors of C. E. & L. C." " it cannot be said that any rights of the petitioners were infringed which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ."

7. On 17th February, 1961, the Central Board of Revenue issued letter No. C. 1 (24)‑SOR‑II/6t), addressed to the Collector of Central Excise and Land Customs, East Zone, Chittagong, in reply to one of his letters. Certains portions of this letter which are construed to be policy guidelines, by us, are reproduced below : (3) The basis for a promotion to the post of Deputy Superintendent should not be either "Pure Selection" or merely "Seniority‑cum -fitness". A qualifying examination has been made an essential condition for promotion from the post of Inspectors to that of Deputy Superintendents. Those who do not clear this qualifying examination will automatically be weeded out and to this extent the basis of promotion will be selection amongst those who are successful in the qualifying examination, the Departmental Promotion Committee would naturally take into consideration the claims of the senior Inspectors first and would go down of the list only if Inspectors higher in order of seniority are not found fit. (4) The result of the promotion examination cannot be the sole crite rion for determining the suitability of an Inspector for promotion. There are a number of other important factors to be taken into consideration, while considering these promotions the seniority and the record of service of the Inspectors concerned cannot be ignored. Moreover, the promotion examination is only a qualify ing examination and cannot be treated as a competitive examina tion. It will, therefore, not be right to promote the qualified Inspectors in order of the positions secured at the promotion examination. (5) ... ... ... (6) ... ... ... (7) The above instructions are in super-session of all the previous orders issued se far on the subject."

8. The above letter does not appear to have been circulated to all the Collectorates who should have been endorsed a copy thereof. We cannot, therefore, help pointing out this indifferent staff work of the Secretary concerned in the certain Board of Revenue.

9. With the simultaneous introduction of the competitive examina tions for promotion in 1957, the D. P. Cs. became extinct. The basis of promotion became the automatic selection after passing of the said examinations. As a result of the adverse judgment of the West Pakistan High Court, the Central Board of Revenue vide their letter of 10th July, 1959 modified this system of examination as already mentioned. Even after the Central Board of Revenue had succeeded in having the High Court judgment reversed through a subsequent judgment of the Supreme Court as brought out at para. 6, the Central Board of Revenue letter of 10th July, 1952 remained operative. This conclusion gives us a definite bracket of tame within which the promotion examinations on competitive basis remain ed operative and this bracket dates from the 5th of December, 1956 to the 10th of July, 1959. The Central Board of Revenue letter of 17th February, 1961 quoted at para. 7 above is only a further elaboration of the modified system of examination which had, actually, been introduced vide their letter dated 10th July, 1959. The latter communication (17th February, 1961) of the Central Board of Revenue cannot, by any chance, extend the time span beyond 10th July, 1959.

10. Vide letter No. 27 (8)‑ORG‑1 /62, dated 4th February, 1962, the Central Board of Revenue issued instructions relating to the confirmation and promotion examination. These instructions superseded all previous instructions with regard to various examinations. The portion of this letter relevant to our purpose and dealing with the Promotion Examination is reproduced below : "(b) Promotion Examination. ‑(i) All Inspectors whether directly recruited or promoted from the rank of Ministerial Cadre, will have to appear in a promotion examination before they are promoted to the rank of Deputy Superintendent as per syllabus prescribed in Annexure 'C'. This examination will be conducted by the D.I.T. every year for all the Collectorates to ensure uniformity standard and procedure."

11. The Central Board of Revenue, vide letter C. No. 27 t8)‑Org‑I/62, dated August, 1970 altogether abolished the system of examinations. As a further elaboration, the Central Board of Revenue vide letter No. C. 27 (S)‑Drg. 1/62, dated 22nd January, 1971 ruled " the list of those Inspectors who had qualified in the said examination should be done away with and all future promotions should be made from the general list of seniority of all the Inspectors qualified or otherwise. In the case of qualified Inspectors while they should be considered according to their position in the general list of seniority the fact that they had qualified in the promotion examination, can be given due consideration. In marginal cases of fitness, therefore, success in the promotion examination can be treated as a factor supporting fitness for promotion."

12. Based on the above policy letters, issued from time to time by the Central Board of Revenue, a seniority list of the Deputy Superin tendents was circulated in September, 1976 which had been challenged before the Federal Service Tribunal. In their judgment dated 19th December, 1978, the said Tribunal had ruled that unless the list was finalised, the appeals could not be entertained. Thereafter, the Lahore Collectorate circulated a combined seniority list of Deputy Superintendents, termed as "tentative". vide their letter, dated 22nd May, 1980 in which the appellant was placed at serial No.

10. This seniority list was withdrawn because it was, allegedly, not in conformity with the decision of the Establishment Division given at para. 14 below. A fresh combined seniority list, dated 13th November, 1980 was, resultantly, issued. The appellant represented against it on the plea that his name, which should have appeared at serial No. 10, had been relegated to serial No.

68. His plea was based on the ground that he had passed the competitive examina tion in the year 1959. He filed his present appeal on 31st December, 1980 against the seniority list of 13th November, 1980 wherein his seniority had been changed to his detriment. This list of 13th November, was followed by yet another one dated 15th January, 1981 which was termed as final and against which, according to the Central Board of Revenue, no representations were to be entertained, a rather strange approach when we know that appeals are tenable only against a final seniority list.

13. The main objection by the learned counsel for the respondents, at the very outset, was that the appellant had come in appeal against the seniority list of 13th November, 1980 which was a tentative list. He could not do so as he had to come in appeal against the final seniority list which was issued on 15th January, 1981. The learned counsel for the appellant that his rebuttal stated that as far back as 19th December, 1978 the Federal Service Tribunal had declined to interfere when appeals were lodged against the seniority list of September, 1976. The Tribunal had, then, ruled that an appeal could be preferred only against the final seniority list. The learned counsel further quoted section 8 of the Civil Servants Act, 1973 relating to seniority. He also quoted Section 'C' SENIORITY Estacode page 106 paras. 3‑4 which are reproduced below:‑ "

3. The first issue of the gradition list should be marked "provisional". It should be circulated to the officers concerned and objections or representations invited. Mistakes which may be brought to notice may be rectified by the Ministries and Divisions and any general point raised in the representations may be examined and disposed of in consultation with Establishment Division. Thereafter, the gradation list will be issued as final.

4. A copy of the provisional list may be sent to the Establishment Division also for record. Representations should be disposed of expeditiously and the gradation lists finalised as early as possible."

14. From the above rules, it is obvious that if the seniority list of September, 1976 was provisional then the one after that HAD to be FINAL argued the learned counsel. Taking the 22nd May, 1980 list, to have been withdrawn as null and void, the one issued on 13th November, 1980 had to be treated as FINAL. We find a good deal of substance in this reasoning and rule that the first list which comes out of a department after a provisional one shall ALWAYS be deemed to be FINAL whether or not the department concerned says so. There cannot be two or more issues of a provisional list. Such being the situation, we repeal the objection of the learned counsel for the respondents and accept the appeal to have been validly filed. We regard this appeal as valid also due to the fact that the appellant's grievance against the final list of 15th January, 1981 would have been exactly the same because it was a reproduction of the list of 13th November, 1980 in so far as the appellant was concerned.

15. We beard, at length, the learned counsel for the appellant as well as the respondents. The question for determination before us is What was the system of promotion when the appellant qualified and whether his claim to get emplacement No. 10 instead of 68 in the seniority list of 13th November, 1980 is tenable ? In the foregoing paragraphs, we have given a detailed background of this case by quoting relevant letters. This background leads us to unmistakable con clusion that those Inspec tors who had qualified in the promotion examinations between the years 1957 to 1959 had done so on the basis of such examinations being of a COMPETITIVE NATURE irrespective of their seniority because the B DPCs had ceased to exist between 1957 and 1959 and promotion was on SELECTION. Such qualified Inspectors had acquired a vested right to be promoted in the same year if the vacancies existed. If there were no vacancies in the same year then their names had to be carried forward to the subsequent years till they were promoted but without having to go through the DPCs even when the DPCs stood revived vide letter, dated 10th July, 1959.

16. In this connection we would like to quote Establishment Division advice, dated 26th February, 1980 as it has a direct bearing on this case :‑ "

13. The matter has been examined in the consultation with the Law Division. According to the C. B. R. the vacancies were required to be filled in from 1956 to 1961 on the results of a competitive examination ..The examinations were duly held but the eligible candidates were ignored. It has, therefore, been held that the candidates who qualified in the competitive examination down to the number of existing vacancies which were required to be filled in and for filling of which the respective examinations were held, were entitled to promotion and seniority. If anyone of _ them had not been promoted he should be promoted immediately. Those who qualified in the competitive examination but did not secure a merit position within the zone of promotion (i.e. within the number of available vacancies) would not naturally be entitled to promotion."

17. We, however, regret to point out that the Establishment Division in their above‑quoted note have tried to tender an advice which cannot be upheld. What they are suggesting is that the number of vacancies should be matched in each year with those who may have qualified among the top positions and the rest ignored. This is a belated attempt at a poor compromise. The Central Board of Revenue had, at no stage, made public this stipulation. 1n C. B. R. scheme of promotion examinations on competitive basis, those who got through were to be promoted subse quently by placing them on a separate list of qualified Inspectors and if in a certain year the number of vacancies were less than those who passed the examination, then such qualified Inspectors who could not be pro moted Deputy Superintendents in the year of passing the examination were to be promoted in the following years as and when the vacancies in the cadre of the Deputy Superintendents became available. Such being the purpose and meaning of the scheme, we set aside the Establishment Division note quoted above as inequitable and unjust. We would also like to point out that we have, nowhere, from the record found that the promotion examination on competitive basis lasted between 1956 to 1961. This is, palpably an incorrect feeding of information by Central Board of Revenue to the Establishment Division. A most careful perusal of the relevant record leaves us in no doubt whatever that the bracket relevant for such competitive examinations is between 1957 and 1959 and this con nection we have reproduced the necessary extracts from record which the Central Board of Revenue would be or should be aware of.

18. We would re‑emphasise that the examinations introduced by the Central Board of Revenue vide their letters of 5th December, 1956 and 21st February, 1957 though described as the "promotion" examinations had actually a "competitive" spirit and meaning for the simple reason that (otherwise departmentally qualified) Inspectors having minimum of 5 years' service irrespective of their seniority on the list were eligible to take this examination. Those who qualified were placed on a separate list of qualified Inspectors in the hope of promotion over the heads of their seniors who had not been lucky enough to qualify. As a result of this system, the DPCs had ceased to function as the promotion was based on pure selection after passing the examination. This was. a commitment which, once having been made, the Government could, under no circum stances, renege on so long as this system of promotion on the basis of selection remained in vogue. This was a bold policy intended to throw up the bright Inspectors and whatever its merits or demerits, it did need an equally bold execution. It is on the files that despite this clear cut policy, a number of Inspectors who had qualified through this system of competitive examinations did not get promoted even though a vested right bad accrued to them. On the other, hand, in certain Collectorates, Inspectors were promoted who had not passed this "competitive" exami nation. The Central Board of Revenue looked on merely as passive spectators in blind panic. This lack of determination on the part of Central Board of Revenue to implement its own laid down policy and while it lasted, has done a good deal of harm to the cadre of Inspectors and Deputy Superintendents of the period and the internecine warfare that was kindled as far back as 1957 has continued unabated. The responsibility for this chaos can be squarely apportioned to the Central Board of Revenue. Also as borne out by record, the Central Board of Revenue, due to its shoddy staff work, constantly fed incorrect informa tion to the Establishment Division in this case which confused the situation rather than clarifying it.

19. It is evident that the Central Board of Revenue vide its letters 35 (7)‑Estt 156, dated 5th December, 1956 and Ex. (I)‑DT/57, dated 21st February, 1957 (with :he approval of the Establishment Division) had laid down that then onwards only those Inspectors who had a minimum of 5 years of service and who had passed their departmental examination or were exempt there from would be promoted Deputy Superintendents once they had passed the promotion examination on competitive basis for which only two chances could be availed and the third chance could be allowed by Central Board of Revenue. This policy remained in force till done away with vide Central Board of Revenue letter No. 25(14)R/59 dated 10th July, 1959. There being, obviously, no time in the year 1954 after the issuance of Central Board of Revenue letter, dated 5th Decem ber, 1956 the first such examination was held in 1957 after the Central Board of Revenue letter, dated 21st February, 1957. In other words, all such Inspectors who had qualified in the promotion examinations held between 5th December, 1956 and 10th July, 1959 had acquired a vested right to be promoted Deputy Superintendents by virtue of their having passed the promotion examinations on competitive basis because the D. P. Cs. had ceased to exist. Their promotion was automatic and assured only if they had qualified the said examination. Even when promoted in the subsequent years, they were not to be approved by the D. P. Cs. which stood revived on 10th July, 1959 onwards. No such right shall, however, accrue to any Inspector who may have passed the promotion examination after 10th July, 1959 when the above‑mentioned system of pure selection had been modified to that of seniority‑cum‑fitness, D. P. Cs. revived and the promotion examination treated as qualifying examination against their previous concept of competitive examinations. In order to avoid any further confusion, we shall lay down that those Inspectors who qualified in the promotion examinations between the calendar years 1957, 1958 and 1959, shall be deemed to have done so on competitive basis ands shall be deemed to have earned a right of promotion as Deputy Superin tendents purely on selection without having to go through the D. P. Cs. which did not exist. If any D.P.C. meetings were held at any time in any Collectorate to approve/disapprove such Inspectors who may have qualified during 1957 to 1959, the proceedings of such D. P. Cs. shall be deemed to be irregular and are hereby set aside by virtue of this order. Those qualifying in the years 1960 and thereafter (till the abolition of promotion examinations in 1970) shall not be entitled to such promotion in view of the changed system introduced vide Central Board of Revenue letter of 10th July, 1959. In their case the promotion policy of seniority‑cum‑fitness through the D. P. Cs. shall reign supreme and the promotion examinations shall be regarded as an additional qualification.

20. As a result of the foregoing analysis we hold that those Inspec tors who qualified during the years 1957, 1958 and 1959 shall be deemed to have done so on the basis of competitive examinations. They shall have a vested right to promotion as Deputy Superintendents solely 'after having qualified in the competitive examination and without having to go through the D. P. Cs. which were extinct in their case. In their case, a separate list shall be drawn up and they shall be promoted either imme diately or from a subsequent date as and when the vacancies occurred (but without the formality of D.P.Cs.) and their seniority adjusted accor dingly.

21. As regards other Inspectors who qualified between the years 1960 to 1970, in their case the promotion shall be regulated in the light of the following letters issued by Central Board of Revenue and referred to in this judgment :‑ (a) letter, dated 10th July, 1959, (b) letter, dated 17th February, 1961, and (c) letter, dated 14th February, 1962.

22. We further direct that the impugned seniority list of 15th January, 1981 shall be redrawn after inviting fresh objections in the light of this order and finalised so as to bring this painful chapter to an early end. For this purpose a period of three months should suffice.

23. In this connection, we would like to add a reference to General Principles of Seniority given at pages 110 and 111 of the Estacode, rele vant portions of which are reproduced below for compliance in the case of the appellant :‑ "B. Departmental Promotions :‑(i) Officers who are approved by the Selection Board/D. P. C. for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that :‑ (a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch ; (b) when in a single reference, the Selection Board/D. P. C. are asked to recommend more than one person and the recommendation of the Selection Board/D. P. C. is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recom mendation of the Selection Board/D. P. C. in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made." On the analogy of the above principles and for the reasons given hereinbe fore, we have no hesitation in holding that the appellant will take his seniority as a Deputy Superintendent with the batch promoted immediately on the basis of competitive examination held in 1959.

24. As said above, the appellant qualified as an Inspector in the', promotion examination in the year 1959 when this examination was conducted on competitive basis. A right has accrued to him for promotion as Deputy Superintendent on pure selection and without having to go through the D. P. C. As such, .we accept this appeal and order that tee appellant shall be placed at serial No. 10 of the seniority list of 13th November, 1980 and this fact borne in mind while preparing a revises: seniority list as ordered.

25. Of the respondent officials, only M. M. Firoz, Muhammad Arjumand, Irfan Ali Shah, Nazir Ahmad, Haseen Ahmad Ansari and Niaz Ahmad Khan availed the opportunity of filing their replies. We have arrived at our present judgment despite taking their view points into consideration. The other respondent officials were proceeded ex parte as they had neither filed replies nor were represented before us.

26. No order as to costs. A. E. Appeal accepted,