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Appeals Nos. 333(R) of 1985 and 459(L) of 1982, decided on 12th May, 1987.

‑‑‑R.4‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Civil servant's reversion to post in parent department, lien whereon was held by him, whether amounted to reversion‑‑Where appointment of civil servant remained on officiating basis 'in the transferred department and his lien previously acquired by him on a post in his parent department, was not only retained but was actually availed by him, conclusion drawn, held, would be that such civil servant still continued to hold his lien in his parent department‑‑Reversion to a civil servant's permanent post from a higher post whereat such civil servant was officiating for an indefinite period, would not amount to reduction in rank.

‑‑‑R.4‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Officiating appointment in B.P.S. 20, termination of‑‑Terminating authority‑ Authority competent to make appointment to a post in B.P.S. 20 or equivalent being President of Pakistan, officiating appointment held by a person in such grade, held, could be terminated by an order/with the approval of the President‑‑An order without such lawful authority would be nullity and non‑existent in the eye of law.

‑‑‑S.4‑‑Service Tribunals (Procedure) Rules, 1974, R.8‑‑Appeal before Service Tribunal‑‑Computation of limitation‑‑Appeal barred by nine days if limitation computed from representation by civil servant‑‑Such representation remaining unresponded till filing of appeal‑‑Communication conveyed to civil servant after his filing of appeal‑‑Fresh cause of action accruing to civil servant after such communication whereby his representation was turned down‑‑Such civil servant having already filed appeal before Service Tribunal, proper and fair course, held, would be to condone delay of his already filed appeal‑‑Order of reversion of civil servant to his parent department having been passed by an incompetent authority and being nullity in law was set aside in appellate jurisdiction of Service Tribunal.

Syed Jamshed Ali for Appellant.

Niaz Ali Shah and Hafiz Tariq Naseem for the Respondents.

Date of hearing: 27th February, 1986.

‑‑The relevant background giving rise to the present appeal, briefly speaking, is that the appellant having qualified the Central Superior Services Examination, joined the Government service in the Income‑tax Department an 5‑2‑1960. and ultimately in July 197;1, lie was promoted as Assistant Commissioner of Income‑tax in Grade‑19. While serving so, in 1974 he was selected by the Federal Public Service Commission for appointment as Accountant Member, Income‑tax Appellate Tribunal and accordingly vide Notification dated 27‑4‑1974 was appointed to officiate in Grade‑20 as Accountant Member in the said Tribunal. On 21‑2‑1979 he had conveyed his consent for termination of his lien in the Income‑tax Group but by his letter dated 21‑7‑1979 he clarified that he had conveyed his consent for termination of his lien in his parent organization provided he was confirmed as Member (Grade‑21) in the Income‑tax Appellate Tribunal. Reiterating that he had exercised the option under clause (b) of F.R. 14‑A under the impression that the post of Member had been upgraded, he categorically stated that he did not desire to be confirmed in the Income‑tax Appellate Tribunal on a Grade‑20 post, but for the present shall continue to serve the Tribunal on indefinite basis. A controversy appears to have arisen whether the Members of the Income‑tax Appellate Tribunal are transferable from one station to another by the President (now Chairman) of the Tribunal or by the Law Division, and the appellant addressed a letter in the matter, on 13‑6‑1981 to the Secretary, (Law Division), Government of Pakistan, with copies to the Secretary, Establishment Division, the Secretary, Central Board of Revenue and the Secretary, Federal Public Service Commission. It may be advantageous to reproduce below the last paragraph of the said letter which reads as follows:‑

"In the aforementioned illustrative circumstances I cannot reconcile myself to the position of practically being placed under the administrative control of the President‑ITAT (who is an equal Member on the Bench) and strongly feel that in the adjudication of appeals it would not be possible to be free from his official influence or to carry on judicial duties with a clear conscience. Therefore, if the Law Division is unable to prevail upon the President‑ITAT in the above matters, I would think it better to ask for return to my parent department (i.e. the CBR) where, by virtue of my lien in the Income‑tax Group, I am entitled to a Grade‑20 post. Appropriate steps may please be taken under intimation to me."

Thereafter, the Law Division (now Justice Division) by its order dated 23‑9‑1981 conveyed the sanction to upgradation of the posts of the Judicial Members and the Accountant Members of the Income‑tax Appellate Tribunal from RNPS‑20 to RNPS‑21. The relevant portion of the said sanction order reads as under:‑

"I am directed to convey the sanction of the President to the upgradation of the post of President, Income‑tax Appellate Tribunal from RNPS‑21 to RNPS‑22 and that of Judicial and Accountant Members of the said Tribunal from RNPS‑20 to RNPS‑21 with effect from the date on which the present incumbent of any of the said posts is inducted to the upgraded post according to rules on the subject. Till the induction, the President and Judicial and Accountant Members shall continue to draw their salaries in their existing scales of pay."

On the 10th of January, 1982, however, the following Notification was issued by the Establishment Division:‑

No.1/133/81‑E.4. On the abolition of Grade‑20 post of Accountant Member, Income‑tax Appellate Tribunal, Mr. A.A. Zuberi, Accountant Member, Income‑tax Appellate Tribunal is reverted, in his own grade, to the Income Tax Department under the Central Board of Revenue, Islamabad, with immediate effect.

Sd/‑ Asghar Ali

Deputy Secretary to the

Government of Pakistan."

The appellant was accordingly reverted to the Central Board of Revenue where by Notification dated the 16th February, 1982, he was promoted to the rank of Commissioner of Income‑tax (Grade‑20) and was posted as such.

2. By way of the present appeal the appellant seeks to challenge the aforesaid action of his reversion taken by the above Notification dated the 10th of January, 1982. The learned counsel for the appellant has raised a number of grounds of law and facts to assail the impugned order. His main emphasis was on the following submissions:‑

(i) That the impugned notification having been issued without obtaining any approval/order of the competent authority, is incompetent and inoperative.

(ii) That the impugned notification is unfounded as also mala fide in law and fact for the reason that the appellant was working in Grade‑20 post of a Member, Income‑tax Appellate Tribunal which, according to the Law Division's sanction order dated 23‑9‑1981, was to be upgraded only from the date on which the appellant was inducted to the upgraded post and till such induction he should have continued as Member in RNPS‑20. There was, therefore, no occasion or justification to remove the appellant from the post of Member, Income‑tax Appellate Tribunal, because no Grade‑20 post in the said Tribunal was abolished and, in fact, no other Member of the Tribunal except the appellant was removed from the Income‑tax Appellate Tribunal for this reason.

(iii) That the appellant being incumbent of the upgraded post of Accountant Member in the Income‑tax Appellate Tribunal, was to be inducted in Grade‑21 post as contemplated by the said sanction order of the Law Division dated 23‑9‑1981 read with relevant Recruitment Rules. The impugned notification has thus deprived the appellant of his right to be considered for induction to the upgraded post in RNPS‑21.

(iv) That the order of reversion contained in the impugned notification amounted to reduction in rank which could not be done except by a penal measure. '

(v) That the appellant having been selected by the Federal Public Service Commission, was holding a permanent post of Member, Income‑tax Appellate Tribunal, in a substantive capacity and, therefore, could not be legally reverted therefrom.

3. On the other hand, the stand taken by respondent No.2, Ministry of Law and Parliamentary Affairs (now Ministry of Justice and Parliamentary Affairs) is that the appellant had a lien in the Income‑tax Department under the Central Board of Revenue which asked for his reversion and the matter was still under consideration when on account of abolition of Grade‑20 post of the Accountant Member in the Income‑tax Appellate Tribunal, the impugned notification was issued by the Establishment Division, Government of Pakistan. It was asserted that as the appellant was appointed in Grade‑20 as Accountant Member in the Income‑tax Appellate Tribunal on officiating basis, he neither acquired a lien on the said post nor held any permanent post in the substantive capacity in the Income‑tax Appellate Tribunal. Therefore, his reversion to his parent Department did not attach any stigma to his conduct and consequently his such reversion was not at all, a penal measure and would not amount to reduction in rank. It was urged that, in the circumstances of the case, it was well within the competence of the Establishment Division to revert the appellant from his officiating appointment to his parent Department and as such the impugned order was competently and legally passed.

4. We have given our anxious thought to the submission made at the Bar and carefully perused the record made available to us. The contention of the appellant that he acquired a lien on the post Accountant Member in the Income‑tax Appellate Tribunal is found to be devoid of any substance for the obvious reason that his appointment remained on officiating basis in the Income‑tax Appellate Tribunal and his lien previously acquired by him on a post in his parent organization, was not only retained but was actually availed by him, which leads the only conclusion that the appellant still continued to hold his lien in his parent organization and at the time of his reversion, he was officiating for an indefinite period in the Income‑tax Appellate Tribunal. Again, the settled law on the point, is that reversion to a civil servant's permanent post from a higher post whereat such reverted civil servant was officiating for an indefinite period or until further order, did no amount to reduction in rank even if his juniors who were officiating similarly were continued in the higher post. In view of such settled legal position and in the circumstances of the case, the appellant, in our view, was liable to reversion to the post whereon he held a lien. However, a power conferred on a public authority has to be exercised for the purposes for which it is concerned. As the power of employing persons in the service of Pakistan and terminating their employment is given in public interest, it has to be exercised in public interest and there has to be no arbitrariness or malice in the exercise of it. It follows that the officiating appointment held by the appellant in the Income‑tax Appellate Tribunal, could be terminated but only by an authority who is competent to make appointment on that post. It is to be seen' that at the relevant time the authority competent to make appointment to a post in BPS‑20 or equivalent was the President of Pakistan. An irresistible conclusion would, therefore, be that officiating appointment held by the appellant could be terminated only by an order/with the approval of the President of Pakistan and if the exigencies of service so required. It, however, transpired that the Law Division (now Justice Division) vide its D.O. dated 19‑9‑1981 referred the matte to the Establishment Division with a request that the orders of the competent authority for reversion of the appellant may be obtained. The Establishment Division for the reasons best known to them, however, without submitting the case to the President of Pakistan without obtaining his approval, issued the impugned notification themselves. No rule or law was cited in support of the claim that the Establishment Division was competent to issue the impugned notification without the approval of the President, who alone was competent to pass such an order. Needless to say, that an order without lawful authority, is a nullity and non‑existent in the eye of law. There is thus no escape from the conclusion that the impugned notification having been issued without lawful authority, is incompetent, unlawful, inoperative and void.

5. A preliminary objection about the competence of the appeal was seriously taken on behalf of the respondents, by urging that the appeal is time-barred. The stand taken on behalf of the appellant, however, is that the impugned order dated 10‑1‑1982 was communicated to the appellant on 20‑1‑1982 and against the said order he filed a representation dated 3‑2‑1982 addressed to the Secretary, Establishment Division, and a representation dated 14‑2‑1982 to the Law Division, Government of Pakistan. The present appeal having been filed on 12‑6‑1982 i.e. within 120 days of the representation dated 14‑2‑1982 is in time but if the limitation is computed from the representation dated 3‑2‑1982 then it is barred by 9 days and in such a case the appellant through an application under rule 8 of the Service Tribunals (Procedure) Rules, 1974, has prayed for condonation of delay. We have noticed that though the departmental representations submitted by the appellant, remained unresponded till he filed the present appeal, it was conveyed to him by the Establishment Division's communication dated 5‑8‑1982 that hi representation had been examined and turned down. Therefore, a fresh cause of action has accrued to the appellant under the main provision of section 4(1) of the Service Tribunals Act, 1973, to file an appeal before this Tribunal within thirty days of the receipt of order passed on his representation, while, as stated above, the present appeal had already been filed prior thereto under the proviso to section 4(1) ibid. In such a position it may not only be unjust but also anomalous t dismiss the present appeal on the ground of limitation. Therefore, the delay of 9 days occurred in case the limitation is counted from the representation dated 3‑2‑1982, is excusable and is condoned in the interest of justice. The preliminary objection raised by the respondents is disposed of accordingly.

6. In view of the foregoing, the appeal is accepted and the impugned order is set aside. The appellant shall consequently be posted back as Accountant Member in the Income‑tax Appellate Tribunal and be dealt with in accordance with law.

7. No order as to costs

A.A./374/Sr.F.

Appeal accepted.

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