2012 PLP (C (PLC(CS))

ASAD MUNIR, J.

By this single judgment, I propose to dispose of Writ Petitions Nos. 2577 of 2009, 2576 of 2009,2664 of 2009, 2816 of 2009 and 2875 of 2009, all of whom involve common issues of law and fact. The petitioners, who are civil servants belonging to the Customs & Excise Group, are aggrieved by the Office Memorandum No.F.6/2/2009-CP-II, dated 12-9-2009, issued by Establishment Division, Cabinet Secretariat, Government of Pakistan ("Office Memorandum") whereby all the business concerning Income Tax, Sales Tax and Federal Excise has been transferred from the officers and staff of the Income Tax Group and Customs and Excise Group to a newly created occupational service called Inland Revenue Service and each officer and staff of the existing Customs & Excise Group and Income Tax Group has been called upon to exercise an irrevocable option for inclusion or otherwise into the new Inland Revenue Service. A perusal of impugned Office Memorandum shows that it aims to bring about a merger of the two occupational groups i.e. Income Tax Group and Customs and Excise Group as well as their services pertaining to income tax, sales tax, federal excise and customs by introducing a new service called Pakistan Revenue Service. However, each officer of the said occupational groups has the option but not the obligation to join the new service. All officers of the two groups upon joining the new service are to be given the seniority according to the dates of joining in their respective group. In case the required options are not received from the Customs & Excise group, the new service will be called Inland Revenue Service which will deal with income tax, sales tax and federal excise only. In such a case, as visualized by the impugned Office Memorandum, the Customs and Excise Group will remain intact but will be called the Customs Group and will comprise all those in the group who have not exercised their options in favour of joining the new service.

2. The petitioners seek a declaration that the impugned Office Memorandum, which creates a new civil service by abolishing the existing one, is unlawful and without lawful authority as it adversely affects the terms and conditions of their service as to the appointment, seniority and promotion in violation of the fundamental rights of the petitioners as well as Articles 240 and 268 of the Constitution, sections 3(2) and 23 of the Civil Servants Act, 1973, Rule 6(4) of the Civil Servants Confirmation Rules, 1993, Rules 7, 8 and 21(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rule 3(c) of the Civil Servants (Seniority) Rules, 1993. According to the petitioners, the impugned Office Memorandum is also against the principle of promissory estoppel and legitimate expectation as the creation of Inland Revenue Service would mean abolition of many posts for the Customs & Excise Group resulting in fewer posts available to them for promotion.

3. On the other hand, the respondents have raised a preliminary objection to the maintainability of the writ petition on the ground that the jurisdiction of this Court is barred under Article 212 of the Constitution as the grievance of the petitioners relates to the terms and conditions of their service. The respondents have also contended that the writ petition has no merit as the petitioners are not being forced to join the new Inland Revenue Service which has been lawfully created in terms of S.No.10.2.(i) of Schedule II of the Rules of Business, 1973.

4. According to Mr. Abdul Hafeez Pirzada, Senior Advocate and learned counsel for the respondents, the grievance of the petitioner is admittedly in respect of the terms and conditions of their service which is indicated by paras 8, 9, 11a, 11b, 11e, 11g, 11h and llv of the Writ Petition No.2577 of 2009, paras 7, 8B, 8C, 8E, 8G, 8H and 8T of Writ Petitions Nos.2816 and 2664 of 2009 and 2576 of 2009 and paras 8D, 8E, 8F, 8H and 8K of Writ Petition No.2875 of 2009, wherein it has been alleged that the creation of the new Inland Revenue Service is bound to adversely affect the terms and conditions of service of the petitioners. It is urged that this Court is barred from exercising any jurisdiction in view of Article 212 of the Constitution whereunder jurisdiction exclusively belongs to the Federal Services Tribunal. In support of his objection, reliance has been placed on Khalid Mehmood v. Collector of Customs, Lahore (1999 SCMR 1881).

5. Undoubtedly, the writ petition is barred under Article 212 of the Constitution if the grievance of the petitioners relates to or arises out of their terms and conditions of service which appears to be the case in view of the petitioners' unambiguous and repeated stand in the writ petition that the impugned Office Memorandum affects their terms and conditions of service. Faced with the respondents' objection to the maintainability of the writ petition, the petitioners have during arguments done a volte face to contend that their grievance has nothing to do with the terms and conditions of their service but it is only in respect of their prospects of promotion. I must say that the petitioners cannot be allowed to approbate and reprobate and orally plead a case altogether and entirely different from what they have so clearly stated in their pleadings.

6. This calls for a reference to paras Nos.8 and 9 of the Writ Petition No.2577 and the relevant paras of the other writ petitions where it has been stated in unequivocal terms that the impugned Office Memorandum affects the terms and conditions of service as well as the seniority and lien of the petitioners. According to grounds lla and llb in Writ Petition No.2577, the impugned Office Memorandum is illegal for being in contradiction with Articles 240 and 268 of the Constitution and of no effect to bring about a change in the terms and conditions of the Pakistan Customs and Excise Service to which the petitioners belong. Grounds lle and llf also assail the impugned Office Memorandum for being in clear violation of section 3(2) and section 23 of the Civil Servants Act, 1973, by adversely changing the terms and conditions of service which include appointment, confirmation, seniority, promotion et cetera. Similar is the position taken in grounds llg and 11h wherein the impugned Office Memorandum has been called in question as being violative of the Civil Servants (Confirmation) Rules, 1973 read with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 for failing to allow lien to the petitioners by asking them to exercise an irrevocable option. Again in around 11v, an exception is taken to the impugned Office Memorandum on the ground that it has been issued with the approval of the Prime Minister whereas it is only the President who has authority to determine the terms and conditions of the civil servants.

7. It is obvious from the above narration that the petitioners are aggrieved by the Impugned Office Memorandum only because it adversely affects their terms and conditions of service in violation of Articles 240 and 268 of the Constitution as well as the Civil Services Act, 1973 and the Rules framed thereunder. As such, the petitioners cannot invoke the constitutional jurisdiction of this Court as they can challenge the legality or vires of the impugned Office Memorandum before the Federal Services Tribunal upon whom exclusive jurisdiction has been conferred, under Article 212 of the Constitution, to adjudicate upon a grievance in respect of the terms and conditions of service. It would be of benefit to refer here to two judgments of the Honourable Supreme Court. In Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153), it was held that the remedy of an civil servant aggrieved in respect of his terms and conditions of service is barred before the High Court but is available before the Services Tribunal even if it involves the vires of a Rule or notification. Following PLD 1980 SC 153, it was observed in I.A. Sharwani v Government of Pakistan (1991 SCMR 1041) at page 1063 that "a civil servant cannot bypass the jurisdiction of the Services Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights". I may also refer to Muhammad Ahmed v. Pakistan (1990 PLC Service 185), where the Sindh High Court, in view of Article 212 of the Constitution, declined to exercise its constitutional jurisdiction when an existing cadre of civil servants was split into two cadres with officers of only one of them entitled to be considered for promotion. Another case of relevance is Rana Muhammad Sarwar v. Government of Punjab (1990 SCMR 999) wherein it was held that question of abolition of post relates to terms and conditions of service and must be raised before the Services Tribunal.

8. Contrary to their pleadings, the petitioners have argued that their grievance is only in respect of their prospects of promotion which do not form part of the terms and conditions of service. Reliance has been placed on Government of West Pakistan v. Fida Muhammad Khan (PLD 1960 SC 45), Government of West Pakistan v. Fateh Ullah Khan (PLD 1960 SC 105) and Muhammad Arshad Saeed v. Pakistan and others (1986 SCMR 1953) in support of the proposition that terms and conditions of service do not include the prospects of promotion. It may be noted that the first two cases were decided at a time when there were no Service Tribunals nor was any constitutional bar akin to Article 212 of the Constitution in place. These cases arose in 1956 after one unit was created and the interpretation of proviso to section 8(3) of Establishment of West Pakistan Act, 1955, was called for to examine if a civil servant upon joining the service of the Government of West Pakistan was given less favourable terms and conditions of service than those admissible to him when he was serving in the province. The grievance of the petitioners in both the cases was that they got less favourable terms and conditions because their prospects of promotion were much brighter if they had remained in the provinces where their seniority was much higher. However, the Honourable Supreme Court rejected their plea on the ground that prospects of promotion, being far-fetched, could not be included in the terms and conditions of service admissible to them at the time they were serving in the provinces. The third case, 1986 SCMR 1953, decided in appeal under Article 212(3) of the Constitution, follows the two earlier decisions of the Honourable Supreme Court. I think the first two cases are also authority for the proposition that consequent upon re-organisation or restructuring of services the prospects of promotion, being far-fetched, cannot be raised as a grievance in constitutional jurisdiction whereas the third case is of no help to the petitioners as it does not hold that a civil servant can be an aggrieved person in respect of his prospects of promotion.

9. In my view, the petitioners are against joining the new service as they apprehend that their seniority in the new service will affect their prospects of promotion. Thus, the primary grievance of the petitioners arises out of the question of their seniority which is no doubt included in the terms and conditions of their service. It is thus an over simplification to say that the prospects of promotion of the petitioners will be affected when obviously the promotion is dependant upon or is the direct result of their seniority as may be fixed if and when they join the Inland Revenue Service. It would also be relevant to refer to Muhammad Aslam Khokhar and 24 others v. Federation of Pakistan and others (2006 SCMR 1240) where the Auditor General through a circular varied the conditions with regard to the promotion of the members of the Accounts Group. The said circular was declared to be without lawful authority by the Federal Service Tribunal whose judgment was affirmed by the Honourable Supreme Court in appeal. The said case is an illustration of the Federal Services Tribunal exercising its exclusive jurisdiction by declaring a circular unlawful even though the matter in issue pertained to the conditions of promotion of the aggrieved civil servants.

10. Another grievance raised by the petitioners is that sales tax has been transferred from their sphere of responsibility and placed in the care and control of the newly-constituted Inland Revenue Service. According to the petitioners, this would reduce their scope of work which would mean fewer posts available for the Customs & Excise Group thereby affecting their promotion prospects. However, the petitioners did not put forward any convincing argument to support their right to retain the sales tax business. According to the respondents, the Federal Government has the absolute right to review the arrangement from time to time as may be in the interest of sales tax which was originally and until 1981 administered and collected by the Income Tax Group. I think the grievance here about the promotion prospects is far-fetched as it is unknown at this stage if all the officers in the Customs & Excise Group will not join the Inland Revenue Service.

11. In support of their stand that their grievance does not relate to their terms and conditions of service, the petitioners have also relied upon Syed Junaid Arshad v. Government of Pakistan (2006 PLC (C.S.) 131) and Fakhar-uz-Zaman Ali Cheema v. Government of Pakistan (2001 CLC 1277) where the High Court did not let the bar of Article 212 come in its way but exercised its constitutional jurisdiction to order re-allocation of the petitioners from one occupational group to another. I am afraid both the cases are distinguishable on their facts. In 2006 PLC (C.S.) 131, the High Court implemented the orders of the Prime Minister who had directed the re-allocation of a civil servant from one occupational group to another on the ground that the civil servant was being denied equality of treatment when similar orders for others were being implemented. In 2001 CLC 1277, a person selected in the Accounts Group, who was undergoing training at the Civil Services Academy, was found entitled to be re-allocated to the Income Tax Group by the High Court when a person selected for the Income Tax Group failed to join the Civil Services Academy. In the present case, no question of re-allocation is involved as neither the petitioners are seeking reallocation to another service nor are the respondents forcing the petitioners to join another service but are only giving them the option to do so which they are free to accept or reject.

12. The petitioners have also tried to justify the maintainability of the writ petition by pleading that the bar of Article 212 of the Constitution is not applicable as they are only seeking a writ of quo warranto by questioning the induction of other persons in the newly constituted Inland Revenue Service. Again, such a plea has not been taken by them in their detailed writ petition. In any case, such a plea runs counter to their writ petition wherein they only allege the adverse effects of the new service over their terms and conditions without challenging the inclusion of others in the Inland Revenue Service.

13. In view of the foregoing discussion, I have no option but to conclude that the grievance of the petitioners, by their own admission and even otherwise, relates to the terms and conditions of their service. In view thereof, the writ petition, being barred under Article 212 of the Constitution, is not maintainable. Accordingly, it is dismissed with no order as to costs. H.B.T./A-27/L Petition dismissed.