1994 PLP (C (PLC(CS))

‑‑‑‑Appointment‑‑‑Civil servant had challenged notification issued by Government whereby opposing civil servant was appointed as Acting Chairman, Income‑tax Appellate Tribunal in place of civil servant with immediate effect‑‑‑High Court in its judgment passed in Intra‑Court Appeal had held civil servant not qualified to be appointed as Member/Chairman of Income‑Tax Appellate Tribunal‑‑‑When civil servant had been declared not to be qualified to be Member/Chairman on date of his very appointment by order of High Court, Service Tribunal could not proceed with appeal filed by civil servant as civil servant had been declared not to be "civil servant" from date of his appointment. Appellant in person. Niaz Ahmed Khan, Standing Counsel for Respondent No.

1. Respondent No. 2 (absent). ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑The facts of this appeal are that Mr. Farhat Ali Khan, the then Chairman, Income‑tax Appellate Tribunal filed appeal under section 4 of the Service Tribunals Act, 1973 on 11‑10‑1993 wherein he has challenged the Notification No. F.23(5)/93‑A.II(A), dated the 15th July, 1993, issued by the Law and Justice Division, whereby Mr. Abrar Hussain Naqvi, Judicial Member, Income Tax Appellate Tribunal, was appointed as Acting Chairman of the said Tribunal in his own pay and scale with immediate effect, until further orders in place of appellant. The appeal was admitted and comments were filed by Law and Justice Division. The appeal came up for regular hearing on 17‑4‑1994 when the appellant requested for adjournment. The same was granted. In the meanwhile, the Law and Justice Division vide their letter, dated 23rd December, 1993, in continuation of earlier comments, filed copy of judgment of Lahore High Court in ICA No. 24 of 1989 in Writ Petition No. 537 of 1989 (Muhammad Siddiq v. Farhat Ali Khan) for information and necessary action. In view of the judgment of the Lahore High Court, Mr. Farhat Ali Khan, the appellant, was not qualified to be appointed as Member/Chairman of the Income Tax Appellate Tribunal and the relevant paragraph of judgment reads as under:‑‑ "In view of what has been stated above, the appeal is allowed, the impugned order is set aside and it is held that respondent No. 1 was not qualified to be appointed as a Member/Chairman of the Income Tax Appellate Tribunal. He shall cease to hold that office forthwith. " The position that emerges is that the appellant has been declared not to be qualified to be appointed as Member/Chairman of the Income Tax Appellate Tribunal. As we understand his very appointment had been challenged in the Lahore High Court. Mr. Farhat Ali Khan has filed appeal in Supreme Court which is pending. In the circumstances when the appellant has been declared not to be qualified to be Member/Chairman on the date of his appointment,' this Tribunal, in our view, as position stands today, cannot proceed with this appeal as appellant has been declared not to be `civil servant' from the date of his appointment, in the eyes of law, in view of Lahore High Court Judgment. However, the appellant vehemently argued that his status as Member/Chairman and the cause of action accrued to him at the time of his appointment, be determined. We are sorry, we cannot subscribe to this view as the moot point is that the judgment of the Lahore High Court is in his way and his basic appointment as Member/Chairman was challenged. As such, at this stage, we cannot go into details and determine these factors and the appeal is disposed of in the terms indicated above. H.B.T./968/Sr.F?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.