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Appeal No. 92 (L) of 1980, decided on 18th April, 1983.

‑‑Lien‑Officer serving in Income‑tax Group as result of Central Service Examination‑Exercising right of re‑appearing in subsequent Examination so as to improve his merit and choice of service in other Group‑Allowed by Central Board of Revenue to retain lien with Income‑tax Group till allocation to a new Group‑Allocated to Accounts Group as a result of subsequent examination but unwillingly joining same after training at Academy and making representation to Establishment Division for being reverted to Income‑tax Group with original seniority therein‑Representation rejected‑Appeal before Service Tribunal resisted on grounds that (1) Central Board of Revenue was not competent to give protection and assurance of lien and (2) appeal before Tribunal was not competent because remedy of representation to President had not been availed of‑Government, held, could not renege on commit merit merit made by Central Board of Revenue whether or not same made by a competent authority‑Representation made by officer to Establishment Division, in circumstances, held, should have been treated as representation to President‑Appeal, in circumstances, accepted and appellate officer allowed to join Income‑tax Group with original seniority‑‑Service Tribunals Act (LXX of 1973), S. 4.

Mukhtar Ahmad and 37 others v. Government of West Pakistan etc. PLD1971SC846rel.

Masood Riaz for Appellant.

Hafiz Tariq Naseem, State Counsel for the State.

Date of hearing : 16th April, 1983.

.‑The appellant had been serving in the Income‑Tax Group in Grade‑17, as a result of 1974 cross‑examination. He exercised his right of reappearing in the said examination in the year 1977 so as to improve his merit and, of course, the choice of his Service. He qualified again. His position was 14th on the overall merit list and first to Baluchistan, the Province of his domicile.

2. Before joining the Academy for training, the appellant applied for retention of his lien in the Income‑Tax Group. This request was acceded to by the Central Board of Revenue vide their letter C. No. 103 (45)/77‑AIT. I dated December, 1978 which is reproduced,,:‑

"From: Mr. Abdul Aziz,

Second Secretary.

To: The Commissioner of Income‑Tax,

West Zone, Karachi.

Subject : RETENTION OF LIEN PENDING ALLOCATION

TO NEW OCCUPATIONAL GROUP, ON THE

BASIS OF C. B. R. COMPETITIVE EXAM. 77 (CSS EXAM).

I am directed to refer to your endorsement No. Admn‑I/PF (ITO)/W/ 78‑79/522, dated the 29th November, 1978 to the application of Mr. Abdul Samee Babar, Income‑Tax Officer and to say that the Officer is allowed to retain his lien with the Income‑tax Group till his allocation to a new occupational group.

Mr. Abdus Samee Babar, Income‑tax Officer, may at the appropriate time be relieved of his present post to join the Academy for Administrative Training, Lahore under intimation to the Board."

3. At the end of the training, the appellant was allocated the Accounts Group, a group which he was not keen to join. He had however no choice (despite C. B. R. commitment reproduced above) except to join the Accounts Group which he did, because the only other alternative was to go out of job which could not be considered.

4. The appellant preferred a departmental appeal to the Establish ment Secretary on 9‑3‑1980 on the ground that before joining the Academy for training he had applied and the Chairman, Central Board of Revenue had made a commitment to him that his lien would be retained in the Income‑tax Group and, that since he was not willing to join his new Group of Service viz. Accounts, he may be allowed to revert to the Income‑tax Group. His appeal was turned down vide Establishment Division letter No. 1/32/79‑T. III dated 24‑5‑1980 saying :

" .Mr. Abdus Samee Babar is hereby informed that it is not possible to allow him reversion to his parent department as the same is not permissible under the Rules."

5. After the rejection of his appeal, the appellant filed his present appeal with the Federal Service Tribunal on 25‑6‑1980 under section. 4 of the Service Tribunals ‑Act, 1973, on the ground that since the Accounts Group was not of his' choice, he may be allowed to revert to his previous cadre viz. Income‑Tax Group since he held an assurance from the, Central Board of Revenue to this effect.

6. The learned counsel for the appellant stated that if the Central Board of Revenue letter giving assurance of the protection of his lien had not been given, he would not have sgone to the Academy, at all, for training. In addition, para. 2 (viii) of the offer of appointment dated 28‑2‑1979 did give the appellant a right of reversion to his previous 'service provided he did so before joining the new Group. Both the learned counsel relied on sub‑para. (viii) of para. 2 for their respective purposes. We repro duce the said sub‑para;

"If you are already in Grade‑17 on the basis of a previous competitive examination, you will NOT be allowed to seek reversion to your former group during the common training or after you join the new Group to which you are reallocated. You will get seniority in the batch in which you avail the second chance under the rules."

A plain reading of this sub‑paragraph, on the basis of its present construc tion, should leave no doubt in any one's mind that those already in grade 17 (as was the appellant) could not revert to their former Group during the common training or after joining the new Group. This would clearly mean that after the training, but before joining the new Group, an individual would have the freedom of reverting to his former Group. We need hardly say that the impugned sub‑para. (viii) has not been properly worded when read together with quotation at paras. 4 and 6 above.

7. The learned counsel for the respondents drew our attention to our judgment in the case of Muhammad Ayaz Khan v. Establishment Division, Appeal No. 101 (P)/1980, wherein we had dismissed the appeal. We would however, like to mention that in the said case there was no commitment of protection of lien. 1 Also, the appellant had failed to convince us that he did hold a lien in is previous Group. In the present case, however, the appellant is in possession of t written assurance from the Central Board of Revenue and this makes it a clearly distinguishable case from the one cited by the said learned counsel.

8. The learned counsel for the respondents then raised the objection that the Central Board of Revenue letter, on which the case of the appellant hinged, had not been issued by the Establishment Division, and since the Central Board of Revenue had no authority to give such an assurance it would be deemed to be incompetent and of no legal effect The said assurance having been given by an Authority not competent to do so, the Central Board of Revenue letter shall not be a valid assurance, argued the learned counsel. We are not impressed by this reasoning. The fact of the matter is that the Central Board of Revenue letter is a commitment which is binding on the Government. If someone in the Central Board of Revenue has exceeded his authority in making this commitment, then the right course would be to take disciplinary action against him. Under no circumstances can the Government renege on this commitment whether or not it was made by a competent authority. In this connection, we would like to quote Mukhtar Ahmad and 37 others v. Government of West Pakistan etc, (PLD1971SC846) brought to our notice by the learned counsel for the appellant wherein it has been held;

"The offer of Government and its acceptance by the appellants constituted a valid agreement This agreement is capable of being enforced in law."

9. We would once again advert to the Central Board of Revenue letter at para. 2, and interpret it to mean that the appellant would continue holding his lien in the Income‑tax Group till he gains a lien in the Accounts Group. Once that happened then and only then the lien of the appellant would terminate in the Income‑tax Group..,

10. On the face of it the entire scheme of allowing an officer to re‑appear in the examination with a view to improving his position would appear absurd, when he is denied the right of reversion to his former service if he cannot get into a better service. Nobody would take the trouble of appearing in a competitive examination for a second time to get into a lower or less attractive service than the one he is in.

11. We have also gone through the written statement filed by the respondents. Two legal objections are worth dealing with. The respondents have said

III. That the appellant prays for seniority since 1974, but he did not make parties to the persons who will affect due to his prayer, so the appeal is not competent due to misjoinder of party." (Again, not a well‑constructed sentence).

To this objection we would say that we are laying down a principle on the facts and legal position of this case. The appellant would be deemed to hold his original seniority of 1974 in the Income‑tax and he would ‑be reverting to that position. No one's rights are going to be affected as a result of his reversion to the Income‑tax Group. This can be very easily done without impleading anyone. There is no misjoinder. The appeal is, therefore, competent.

12. The other objection reads

"III. That the appellant did not avail his departmental remedy while not filing representation to the President so this appeal is not maintainable. '

To the above objection, we shall begin by saying that if legal hairsplitting of the above type behind which the respondents are trying to take shelter, were allowed to succeed, then no one shall ever be able to get justice in service matters. All we would like to say in this case is that while rejecting the appeal (of the appellant) which they did vide their letter dated 24‑5‑1980, it was also the duty of the Establishment Division to guide the appellant to prefer an appeal to the President. They did no such thing although they are the "Keepers of Seal" in service matters. Alternatively, the Establishment Division, themselves, could have treated the appeal as meant for the President and dealt with it accordingly. They did not do this either.

13. We are also not impressed by respondents, para‑wise comments relating to para. 4. They have completely missed the point when they say ‑"As the appellant accepted the offer of appointment by joining the Academy, therefore, he had no right to seek reversion." We have already dealt with the Central Board of Revenue assurance of protecting the lien of the appellant. We have also analysed the ambiguity of sub‑para ‑ (viii) of para. 2 and the possibility of interpreting it in more ways than one. The quotation of the respondents becomes quite meaningless when viewed in the overall context.

14. To sum up the foregoing averments, we would hold that the Central Board of Revenue assurance at para. 2 is a valid document between the appellant and the Government. It has to be honoured. The Government cannot renege on it. On the basis of present construction of sub‑para, (viii) of para. 2, we would further hold that if the appellant had sought reversion to his former Group after the common service training but before joining, his new Service/Group he would have been entitled to it. But because he joined the Accounts Group, whether willingly or unwillingly, he had for feited any right of reversion to his former Group viz. Income‑tax but for the fact that he did have an assurance from the Central Board of Revenue to this effect. We would, therefore, accept this appeal and direct that the appellant would rejoin the Income‑Tax Group carrying with him his seniority of 1974 which shall remain undisturbed.

15. No order as to costs.

Appeal dismissed.

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