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Appeal from Original Decree No. 31 of 1959 with Cross -objection, decided on Ist February 1961.
(a) Jurisdiction
-----
----‑Objection as to want of territorial jurisdic tion‑No consequent failure of justice‑Objection of little substance.
Bengal P & I Co. v. Kamini 22 C W N 517 ; Keshav v. Vinayak, 23 Bom. 22 and Gurdayal v. Sukhnandan A I R 1929 All. 236 ref.
(b) Limitation Act (IX of 1908)
-----
----- Arts. 14 & 120‑Suit for declaration that appointment of plaintiff to lower post is illegal and inoperative‑Does not fall under Art. 14‑Art. 120 applicable to such suit.
(c) Specific Relief Act (I of 1877)----
----- S. 42‑Government servant replaced or removed from post‑Civil Court cannot restore him to his post.
A Civil Court is not competent to restore any officer to his post if he is replaced or removed from that post.
(d) Specific Relief Act (I of 1877)-----
-----
S.42‑Suit for declara tion that appointment of plaintiff to lawer post is illegal and inopera tive with consequential reliefs‑Plain tiff not entitled to conse quential reliefs‑Suit cannot be dismissed merely on that ground.
(e) Civil Services (Classification, Control and Appeal) Rules-----
------
R. 49 (iii)‑Plaintiff confirmed Assistant Commissioner of Com mercial Tax appointed as Income‑tax Officer‑Reduction in rank -Order of appointment illegal.
The plaintiff while appointed as an Income‑tax Officer Class II, Grade III, there has been a variation of the plaintiff's service condition and that variation has been to his detriment and it is definitely lowering down of the status of the plaintiff when the plaintiff, a confirmed Assistant Commissioner of Commercial Tax, was asked to join the post along with his subordinates whose appellate authority he was. It was contended on behalf of the Government that when the Government absorbed the plaintiff in the Central Service there was no corresponding post in the Central Government to that of the Assistant Commissioner of Commercial Tax of the Provincial Government a new post as Appellate Officer had to be created to suit the requirement of the Government and the plaintiff was appointed as such Appellate Officer and that thereafter when the post of Appellate Officer was abolished due to requirement of the Government the plaintiff had to be appointed as Income‑tax Officer, Class II Grade III on his existing scale of pay. Simply because there was no corresponding post cannot justify the posting of a man in a lower post with lower time scale to the detriment of the incumbent depriving him of all the benefits and advantages of a senior scale.
The fact remains that in 1951, plaintiff was injured by order of the Central Government and, therefore, there was a wrong and that must be remedied. If he had been posted in a proper post with proper scale of pay he might have got further promotion by this time. Nothing extraordinary has been done to remedy the grievance of the plaintiff. What has been done was in the normal course of the service i.e., after his passing of the departmental examination with credit as admitted by the defendant.
Further it appears that the Commissioner of Income‑tax recommended, in accordance with the decision of the Board, that the two Assistant Commissioners of Commercial Taxes A. Q. (plaintiff) and M. A. should be given seniority over the Income‑tax Officers, who were appointed after the respective dates of their promotion as Assistant Commissioner of Commercial Taxes under the Provincial Government. But the list given shows that the plaintiff was not given even that seniority.
Held, that the plaintiff was illegally posted in a lower post with lower time‑scale of pay.
Held further, that the plaintiff was entitled to a declaration that his appointment as an Income‑tax Officer, Class II Grade III is illegal, void and inoperative.
(f) Evidence Act (I of 1872)------
------ S. 123‑Documents though privileged can be produced by Government for inspection of Court though not in Court.
A. F. M. Mesbahuddin and A. Matin Khan Chowdhury for Appellant.
H. H. Chowdhury, S. R. Pal and B. N. Chowdhury fox Respondent.
CHOWDHURY, C. J.‑
This appeal by the defendant No. 1, Government of Pakistan, arises out of a suit filed by the plaintiff for a declaration that the order of the Central Government placing the plaintiff in the position of Income‑tax Officer Class II Grade III is illegal, void, ultra vires and ineffective and for restoration of the plaintiff to his legitimate rank of service i.e., Assistant Commissioner of Income‑tax or, in the alternative, for being placed in a post of conformity with his status in service. There are other prayers which we need not state here.
The plaintiff's case, in substance, is as follows :-
He was employed under the Provincial Government in undivided Bengal as Commercial Tax Officer and just prior to the partition of the country he was raised to the position of Assistant Commissioner of Commercial Tax and in that capacity he used to deal with appellate and administrative matters relating to sale of goods. After partition, in 1948, however, the Central Government of Pakistan took over Sales Tax as Central subject for two years and the entire Sales Tax staff was placed at the disposal of the Central Government. At first the Sales tax staff were not satisfied and on their representation to the Provincial Government their services were recalled and they were retained in the Provincial Service. In 1950, the Central Government took over the Sales Tax as Central subject permanently and the plaintiff, Assistant Commissioner of Sales Tax, as he then was, appointed as an Appellate Officer for Sales Tax in the Central Government anti he was placed under the direct control of the Commissioner of Income‑tax. While holding such a post, he was an appellate authority over the decision of the Sales Tax Officer and served as such Appellate Officer for about a year when in the middle of June 1951, the post of Appellate Officer was abolished and the plaintiff was posted as Income‑tax Officer Class II Grade III. By this appointment the terms and conditions of the plaintiff's service have been varied and he has been degraded to the rank of his subordinates whose Appellate Officer once he was. This offending order of the Central Government is challenged in this suit as illegal, ultra vires and not binding on the plaintiff. The plaintiff sent representation after representation for reconsideration of the decision of the Central Government to various authorities and preferred appeal against the order appointing him as Income‑tax Officer, but failing to obtain any relief has come with this suit after due notice under section 80 of the Code of Civil Procedure.
The suit was contested by defendants Nos. 1, 2, 3 and 4 by a joint written statement. Defendant No. 1 is the Islamic Republic of Pakistan represented by the Secretary to the Ministry of Finance (Revenue Division), Central Government, Karachi ; defendant No. 2 is the Secretary, Central Board of Revenue, Karachi, defendant No. 3 is the Commissioner of Income‑tax. East Pakistan, Dacca, and defendant No. 4 is the Inspecting Assistant Commissioner of Income‑tax, Range II, Chittagong. They pleaded bar of territorial jurisdiction of the Court to entertain the suit and of section 42 of the Specific Relief Act, defect of party and maintainability of the suit and characterised the suit as frivolous inasmuch as there is no merit in the case.
Of the following reliefs prayed for by the plaintiff
"(a) That the decision of the Central Government in plac ing the plaintiff in the position of Income‑tax‑cum‑Sales Tax Officer be declared illegal, ultra vires and ineffective and clot binding on the plaintiff ;
(b) That the plaintiff be restored in his legitimate rank of service, i.e., Assistant Commissioner of Income‑tax- cum‑Sales Tax ;
(c) That in the alternative the plaintiff may be placed in a post in conformity with his status in service ;
(d) That the appointment of the plaintiff as Grade III Officer as also all orders of appointment made in the department since 1‑4‑52 without entering plaintiff's name in the gradation list be declared illegal, ultra vires and not binding on the plaintiff.
(e) That full cost of this suit be decreed against the defendants;
(f) That the plaintiff be given such other relief or reliefs as he may be found entitled to the circumstances of the case."
The trial Court decreed the suit granting relief only to the extent of the declaration that the order of the Central Government appointing him as Income‑tax Officer in the middle of 1951 is illegal, ultra vires without jurisdiction and not binding upon the plaintiff and further declared that the plaintiff be deemed to be still continuing in the post of Appellate Officer with all its consequential benefits of seniority, gradation list, promotion and other advantages appended to the post over the staff of Income- tax‑cum‑Sales Tax Officer, but refused to grant other reliefs prayed for by the plaintiff in the plaint.
In dealing with the question of maintainability of the suit in the 1st Court of the Subordinate Judge, Chittagong the learned Subordinate Judge found that though the order appointing the plaintiff as Income‑tax Officer Class II Grade III was passed from Karachi and served on the plaintiff while serving at Dacca in 1951, the cause of section not only arose at Karachi and Dacca but also at Chittagong whereat the plaintiff received the order of the Central Government dismissing his appeal and rejecting his representation and as such held that the suit was maintainable in the Court at Chittagong.
The plea of defect of 'party was pleaded because the reliefs sought for was against the defendant No. 1 alone and defendants No. 2‑4 were unnecessarily impleaded ; but the learned Subordi nate Judge held that that was no ground for vitiating the suit when the defendant No. 1 appears to be a proper party in the suit. The learned Subordinate Judge also held that though the plaintiff was originally an officer of the Provincial Government and had a lien on the service under Provincial Government, that lien has long been suspended and as such the Government of East Pakistan was not a necessary party and omission to implead the Government of East Pakistan was not a defect of party.
As to the point of limitation, the learned Subordinate Judge held that the suit is governed by six years' limitation. Though he has not referred to any particular Article of the Limitation Act, there is no doubt that the residuary Article 120 of the Limitation Act was in his contemplation as the defendants could not point out any appropriate Article of the Limitation Act applicable in the case.
Bar of section 42 of the Specific Relief Act was pleaded before the Subordinate Judge on 2 grounds. The 1st ground is that the relief contemplated under section 42 of the Specific Relief Act, is of an equitable nature and no equitable relief is to be granted where the application is too late in seeking the relief and the other is that the nature of relief sought for does not come within the purview of section 42 of the Specific Relief Act. As to the first point, the learned Subordinate Judge has pointed out that it is no doubt true that the plaintiff was posted as Income‑tax Officer Class II, Grade III by order dated 9‑8‑1951 and against that order he made a representation Exh. 3 (b) to the Secretary, Finance and Revenue, Ministry of Finance, Government of Pakistan Karachi, but he did not receive any reply. On the other hand, he got an order of his confirmation in the post of Income -tax Officer, Class II, Grade III with effect from 31st October 1953, (vide Exh. 3 (a) dated 15‑12‑54 at page 11 Part II of the Paper book). Thereafter, on 18‑5‑55 the plaintiff filed a petition of appeal under rule 58 of the Civil Services (Classification, Control and Appeal) Rules against the said order of confirmation to the Secretary, Central Board of Revenue, Government of Pakistan, Karachi (vide Exh. B (2) dated 18‑5‑55, page 32 Part II of the Paper‑book). On 18‑10‑55 the plaintiff was informed by the Commissioner of Income‑tax, East Pakistan, Dacca, that his petition of appeal dated 18‑5‑55 had been rejected (vide Exh. D (1) dated 18‑10‑55, page 61, Part II of the paper book). Thereafter the plaintiff filed the present suit on' 4‑1‑57. In the circum stances the learned Subordinate Judge held that the plaintiff was not too late in seeking equitable relief under section 42 of the Specific Relief Act.
As to the nature of the reliefs claimed by the plaintiff, it is apparent that it is a suit for a declaration as to his legal character though in his prayer portion the relief sought for was couched in a negative form. Therefore, the learned Subordinate Judge held that the suit was not barred under section 42 of the Specific Relief Act.
As to the merit, the learned Subordinate Judge though found that Civil Court was not the proper forum for giving the plaintiff the reliefs prayed for restoration of the plaintiff to the post of an Assistant Commissioner of Income‑tax from 1950‑51, or for a declaration that he is to be appointed or restored to the post of Assistant Commissioner of Income‑tax from 1950‑51 and as such those declarations could not be given, he found that great injustice had been done to the plaintiff, who was holding a post of Assistant Commissioner of Commercial Tax, by appointing him as Income‑tax Officer Class II Grade III,. along with his subordi nates whose appellate authority once he was and that the order was illegal and not binding on him. The learned Subordinate Judge was of the opinion as follows :‑
"He has become under the direct administrative control of Assistant Commissioner of Income‑tax‑cum‑Sales Tax while he was under the direct administrative control and appellate authority of the Commissioner of Income‑tax‑cum‑Sales Tax till before the new appointment. According to plaintiff's contention this new appointment has seriously affected his position and decision of the Central Government has varied his service condition to his detriment. He has been deprived of the prospect of promotion and he has been robbed of the advantage and prestige, he was so long enjoying. Not only so. By the new appointment the plaintiff has been affected in the seniority list and he has been put to a position carrying lower scale of pay. All these things cannot but be construed as a change over varying the plaintiff's service condition to his detriment lowering his future prospect of promotion, seniority etc. Accordingly the plaintiff claims that his appointment as Income‑tax‑cum‑Sales Tax Officer is illegal and cannot be allowed to stand."
Under section 241 of the Government of India Act, 1935 the service condition of an incumbent cannot be varied to his disadvantage without hearing him. The prevailing decision of several High Courts is also to the same effect. The same principle has been enunciated in Article 181 of our present Constitution and rule 55, C. S. R.
Now, whether the service condition of the plaintiff has been varied to his detriment in the present case is of course a question of fact and I have already discussed the circumstances and in my opinion three has been a variation of the plaintiff's service condition and that variation has been to his detriment.
Against this decision the present appeal has been filed by defendant No. 1. The plaintiff respondent has also filed a cross -objection as the other reliefs sought for in the plaint were refused by the trial Court.
Mr. Mesbahuddin, the learned Advocate for the appellant, reiterated the bar of section 42 of the Specific Relief Act, bar of jurisdiction of the Chittagong Court to entertain the suit and the bar of Limitation before us, besides his argument on merit, namely, that the, grievance of the plaintiff is more fanciful than real particularly in view of the fact that though the plaintiff who was holding a position of Assistant Commissioner of Commercial Tax, was appointed as Appellate Officer for Sales Tax and subsequently as Income‑tax Officer Class II, Grade III on proba tion ; but within a very short time when the plaintiff passed the departmental examination with credit he was promoted to the rank of Income‑tax Officer, Class I Grade II in 1956 and he was further promoted as Income‑tax Officer, Class I Grade I and as such no injury has been caused to the plaintiff and his case was never treated indifferently.
As to the bar of territorial jurisdiction of the Chittagong Court to entertain the suit, besides the fact that the result of the plaintiff's appeal was communicated to him at Chittagong where he was posted at the time and cause of action partly arose at Chittagong, we may point out the provision of section 21 of the Code of Civil Procedure‑which provides :‑
"No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlements and unless there has been a consequent failure of justice."
It is contended by Mesbahuddin for the appellant that objection as to the jurisdiction was taken in the Court of first instance and, therefore, the appellant is entitled to press the point of jurisdiction in the Court of appeal if the trial Court decided it wrongly. It has been held in the cases of Bengal P. & I Co. v. Kamini (22 C W N 517), Keshav v. Vinayak (23 Bom. 22) and Gurdayal v. Sukhnandan (A I R 1929 All. 236) that even if objection to the territorial jurisdiction is taken in the original Court and it is wrongly disallowed the appellate or revisional Court will not entertain the objection unless there has been a consequent failure of justice. Therefore, we consider that the objection as to the want of territorial jurisdiction is of little substance in the absence of consequent failure of justice.
As to the bar of limitation, the suit was filed on 4‑1‑57 and the plaintiff, a confirmed officer holding a post of Assistant Commissioner of Commercial Tax, was posted on 9‑8‑51 as Income‑tax Officer without stating any class or grade and on 1‑4‑53 he was appointed as Income-tax Officer, Class II, Grade III on probation. There, it appears that cause of action arose not only on 9‑8‑51 but also on 1‑4‑53 and lastly on 18‑10‑55 when he was informed of the decision rejecting his appeal. Mr. Mesbahuddin contends that the suit is barred as it will be governed by Article 14 of the Limitation Act. Article 14 provides as follows :‑
" 12. To set . . . . . .
" 14. To set aside any act or One Year The date of the
order of any officer of Govern‑ act or order."
ment in his official capacity, not
here‑in‑otherwise expressly pro
vided for.
In the present suit the plaintiff has not prayed for setting aside any order of any officer of the Government. His prayer is for a declaration that his posting as an Income‑tax Officer, Class II, Grade III, in the circumstances stated in the plaint, was illegal, inoperative and not binding on him. Apparently it does not come within this Article 14 of the Limitation Act, nor Mr. Mesbahuddin has been able to point out any other Article applicable to the case. In such circumstances, the only Article applicable in the case is the residuary Article 120 of the Limitation
Act which provides that for a suit for which no period of limitation is provided elsewhere in the schedule, the period of limitation is six years when the right to sue accrues. Even if we take that plaintiff's cause of action arose on the first date i.e., 9‑8‑51, then the suit filed on 4‑1‑57 is within six years and, therefore, not barred by limitation under Article 120 of the Limitation Act.
Now as to the bar of section 42 of the Specific Relief Act, the learned Advocate for the appellant did not contend that the plaintiff's claim for relief was too late. What he contends is that it is not in the nature of the suit as contemplated by section 42 of the Specific Relief Act. This contention of Mr. Mesbahuddin is possible only because of prayer made in paragraphs (b), (c) & (d) of the plaint i.e., the prayer for restoration in his legitimate rank of service and, in the alternative, for placing him in a post in conformity with his status of service including his prayer for a declaration that all orders of appointment made in the depart ment since 1‑4‑52 are illegal, ultra vires and not binding on the plaintiff. We may point out that the suit has been described in the plaint as one for declaration with consequential relief and it has been valued as such and ad valorem Court‑fee has been paid on it. We are entirely in agreement with the learned Subordinate Judge that the plaintiff is not entitled to get those declarations under prayer (b) and (c) and so much of (d) as it relates to " all orders of appointment made in the department since 1‑4‑52 . . . . . . be declared illegal, ultra vires and not binding on the plaintiff", because the plaintiff was never appointed as an Assistant Commissioner of Income‑tax‑cum‑Sales Tax and was never replaced from that post. So no question of restoration comes in nor Civil Court is competent to restore any officer to his post if he is replaced or removed from that post. So also is the case as to prayer (d) so far as it relates to the declaration that all orders of appointment made in the department since 1‑4‑52, are illegal, ultra vires and not binding on the plaintiff. The plaintiff has not impleaded all those incumbents and cannot have any relief. Simply because of plaintiff's failure to succeed in his prayer for consequential relief, we do not think that his suit would be barred under section 42 of the Specific Relief Act, apart from the fact that the declaration sought for by the plaintiff is one in respect of his legal character though it was, couched in a negative form, namely, that the order posting him as Income‑tax Officer be declared illegal and inoperative.
Mr. Pal, the learned Advocate for the plaintiff-respondent, in order to remove that defect has filed an application for amend ment of the prayer portion of the plaintiff praying that prayer (a) in the schedule of the application for amendment of the plaint be substituted in place of the prayer (a) of the plaint. Prayer (a) in the schedule of the said application for amendment of the plaint runs as follows :-
" (a) That it be declared that the plaintiff was, on his transfer on 9‑8‑1951, to the Income‑tax Department, entitled to a post carrying a scale of pay not lower than the scale of pay on which the plaintiff had been as a confirmed officer and as such his appointment to the post of Income‑tax Officer Class II, Grade III which carried a lower scale of pay amounted to a reduction in rank and is illegal, void and inoperative and that he was entitled therefore to have been placed in a post which would not have amounted to a reduction in rank."
Mr. Pal also relied on prayer (f) of the' original plaint, already quoted in the earlier portion of this Judgment and prayed for relief or reliefs as he may be found entitled to in the facts and circumstances of the case. We shall deal with this matter later on.
At the present moment on the point of the bar of section 42 of the Specific Relief Act pressed before us by the learned Advocate for the appellant, we are of opinion that the suit as framed is not hit by section 42 of the Specific Relief Act.
Now, before we come to the question of merit, we think it would be better to give a list of different scales of pay of different nature of services under Central Government and the Provincial Government relevant for the purpose of this appeal as well as a list of different posts held by the plaintiff‑respondent Md. Abdul Kuddus, for proper understanding of the cases of the parties :‑
Scales of Pay
Commissioner of Income‑tax and Sales Tax.
Rs. 2,000‑100‑2, 500.
Assistant Commissioner of Income‑tax and Sales Tax.
Rs. 1,000‑100‑1,500, Old Scale.
Rs. 1,000‑50‑1,250 (Revised) Further Revised 1,400.
Income‑tax Officer Class I Grade I.
Rs. 400‑25‑600‑‑35‑950‑50‑1,050, Old Scale.
Rs. 600‑40‑1,000‑1,050‑50/2‑1,150, Revised Scale.
Income‑tax Officer, Class I Grade II.
Rs. 250‑275‑Prob.‑300‑25‑750, Old Scale.
Rs. 300‑25‑500‑530‑E. B.‑560‑30‑770‑40-850, Revised Scale.
Income‑tax Officer Class II Grade III.
Rs. 200‑200‑Prob. 240‑20‑480‑15‑600, Old Scale.
Rs. 250‑20‑450‑EB‑25‑600‑EB‑25‑750, Revised Scale.
Appellate Officer for Sales Tax. Provincial Revised Scale as
Rs. 300‑20‑500, Old Pro‑ below allowed to
vincial Scale for Assistant Mr. Kuddus by Central
Commissioner of Commer‑ Government with effect
cial Tax. Rs. 250‑50/2‑ from 1‑4‑53, as per order
750. dated 15‑3‑54, Rs. 250
25‑550‑30‑850.
Assistant Sales Tax Officers. (Non‑Gazetted).
Rs. 125‑10‑225‑EB‑10‑275‑25/2‑350‑plusv Special Pay of Rs. 25 p.m.
Commercial Tax Officers. (Provincial Government).
Rs. 125‑125‑150‑20/2‑350‑375‑400, Old Scale.
Rs. 225‑10‑275-EB‑15‑500, Revised Scale.
Assistant Commissioner of Commercial Tax. (Provincial Government.)
Rs. 250‑50/2‑750, Old Scale.
Rs. 250‑‑25‑550‑30‑850‑E.B. after 12th and 16th stage, Revised prescribed scale 1‑4‑50.
Post held by Mr. A. Kuddus
Assistant Commissioner of Commercial Tax. (Provincial Government).
Appellate Officer for Sales Tax from 7‑7‑50 to 13‑8‑51.
I. T. O., Class II, Grade III from 14‑8‑51 to 25‑5‑56.
I. T. O., Class I, Grade II from 25‑5‑56 to 30‑6‑58. (Junior Scale).
I. T. O., Class I, Grade I from 1‑7‑58 onward. (Senior Scale).
There are certain undisputed facts' which are necessary to be stated here. After the partition of the country the service of the plaintiff continued to be under the Provincial Government of East Bengal (Now East Pakistan). In 1948, the Central Government of Pakistan took over Sales Tax as Central subject for 2 years. The entire sales tax staff were placed at the disposal of the Central Government which appointed Commercial Tax Officers, subordinate in rank to the plaintiff; as Assistant Sales Tax Officer. There was a hue and cry but the Central Government refused to amend the position. The Provincial Government as a protest recalled the services of the entire staff and retained them in the Provincial Service. In 1950, when the Provincial sales tax staff were going to be taken over by the Central Government more or less on permanent basis, they again approached the Provincial Government for, proper utilisation of the employees of the Provincial Government. (Sales Tax Department) under them. The Provincial Government agreed to the proposal that their staff would be suitably provided. There was an agreement between the two Governments. It is Exh. (A) at page 15 of Part II of the paper book. In accordance with this agreement the services of the entire staff with the exception of the Commissioner were placed at the disposal of the Central Government in 1950. At that time the plaintiff was holding a post of Assistant Commissioner of Commercial Taxes under the Provincial Government on a scale of pay of Rs. 250‑50/2‑750. He was appointed by the Central Government as an Appellate Officer for Sales Tax, but the scale of pay being Rs. 300‑20‑500 the post was upgraded and the scale of pay was raised to Rs. 250‑50/2‑750 vide Exh. D(7)., page 46 Part II of the paper- book, which speaks of "Pay fixed for the post of Appellate Officer for Sales Tax." The plaintiff continued to hold that post from 7‑7‑50 to 13‑8‑51. It is the case of defendant No. 1 (appel lant) that the post of Appellate Officer of Sales Tax was abolished and that the plaintiff was appointed Income‑tax Officer, Class II, Grade III by an order dated 9‑8‑51, to which the plaintiff joined on 14‑8‑51.
Now the question is whether the placing of the plaintiff in the post of income‑tax Officer, Class II, Grade III with a scale of pay of Rs. 200‑220‑Prob.‑240‑20‑480‑15‑600, is a reduction in rank. Of course this scale of pay of Income‑tax Officer Class II, Grade III was subsequently revised in December 1951 ; but at the time when the plaintiff was posted to that post, certainly it was a lower post and also lower in status and time scale, because the upgraded scale of Appellate Officer for Sales Tax at the moment was Rs. 250‑50/2‑750. It is contended by Mr. Mesbahuddin for the appellant that at the time when the plaintiff was posted as Income‑tax Officer Class II, Grade III in the scale of Rs. 200‑220‑Prob.‑240‑20‑480‑15‑600, he was drawing a pay In the scale of Rs. 250‑50/2‑750, so practically he is not affected either in rank or in pay scale. The post of Income‑tax Officer, Class II, Grade III is definitely lower in rank and pay scale within the meaning of rule 49 (iii) of the Civil Service (Classification; Control and Appeal) Rules, Government of Pakistan, then in force. The explanation to that rule shows that :
"The discharge‑
(a) of a person appointed on probation, during the period of probation,
(b) of a person appointed otherwise than under' contract to hold a temporary appointment, on the expiration of the period of appointment,
(c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dis missal within the meaning of this rule."
We have already pointed out that he was a confirmed Officer as an Assistant Commissioner of Commercial Tax. While he was appointed as an Income‑tax Officer Class II, Grade III, he was appointed as probationer with the above disabilities though confirmed later on. Instruction 3 (i) under rule 49, at page 22 of the said Civil Services Rules provides :
"(3) (i) While reduction of seniority as an .independent penalty is not provided for in Classification Rule 49 or Rule 3 of the Subordinate Services Rules and cannot be imposed as such, the loss of seniority as a result of an order of reduction to a lower post or time‑scale, being inherent in the order of reduc tion, cannot be avoided."
Therefore, there is no doubt in the circumstances of the case that the plaintiff while appointed as an Income‑tax Officer Class II, Grade III, there has been a variation of the plaintiff's service condition and that variation has been to his detriment and it is definitely lowering down of the status of the plaintiff when the plaintiff, a confirmed Assistant Commissioner of Commercial Tax, was asked to join the post along with his subordinates whose appellate authority he was. It is contended on behalf of the Government that when the Government absorbed the plaintiff in the Central. Service there was no corresponding post in the Central Government to that of the Assistant Commissioner of Commercial Tax of the Provincial Government a new post as Appellate Officer had to be created to suit the requirement of the Gover nment and the plaintiff was appointed as such Appellate Officer and that thereafter when the post of Appellate Officer was abolished due to requirement of the Government the plaintiff had to be appointed as Income‑tax Officer, Class II Grade III on his existing scale of pay. Simply because there was no corresponding post cannot justify the posting of a man in a lower post with lower time scale to the detriment of the incumbent depriving him of all the benefits and advantages of a senior scale.
It is further contended on behalf of the defendant‑appellant before the trial Court as well as before us that though the plaintiff was appointed on probation as Income‑tax Officer, Class II, Grade III but within a very short time in 1956 he was promoted to the rank of Income‑tax Officer Class I, Grade II and thereafter he was further promoted as Income‑tax Officer, Class 1, Grade I and as such no injury has been caused to the plaintiff and he has no cause of action for instituting the suit in 1957, as the wrong complained of was already remedied. The learned Subordinate Judge has rightly pointed out that the fact remains that in 1951, plaintiff was injured by order of the Central Government and, therefore, there was a wrong and that must be remedied. If he had been posted in a proper post with proper scale of pay he might have got further promotion by this time. Nothing extra ordinary has been done to remedy the grievance of the plaintiff. What has been done was in the normal course of the service i.e., after his passing of the departmental examination with credit .as admitted by the defendant.
Further it appears from Exh. D that the Commissioner of Income‑tax, East Bengal, recommended; in accordance with the decision of the Board, that the two Assistant Commissioners of Commercial Taxes Messrs. Muhammad Abdul Quddus (plaintiff) a and Muhammad Ali Asghar should be given seniority over the Income‑tax Officers, who were appointed after the respective dates of their promotion as Assistant Commissioner of Commercial Taxes‑under the Provincial Government. But the list given at page 11 Part II of the Paper‑book Exh. 3(a) shows that the] plaintiff Md. Abdul Kuddus was not given even that seniority. Further we may point out that though certain documents were called for from the Government to establish certain allegations made by the plaintiff, the defendant refused to produce them and claimed privilege under section 123 of the Evidence Act. They can produce it for inspection of the Court though not in Court and Mr. Mesbahuddin frankly conceded that there was no bar in producing those documents for inspection of the Court. The list Exh. 3(a) at page 11, Part II of the Paper‑book shows that the plaintiff as placed at 10th .position of the Income‑tax Officers Class 11, Grade 11I4and it shows that the Board's decision has not been given effect to (vide Exh. D, page 57 Part II of the paper book, dated 6th October, 1955) though the list Exh. 3(a) is dated 15th December 1954. Mr. Mesbahuddin contends that the letter Exh. D, refers to the date of appointment of the Income‑tax Officers, but it is for him to prove when they were appointed, whether before or after "the dates of their promotion as Assistant Commissioner of Commercial Taxes under the Provincial Government," in Exh. D. We, therefore, have no doubt in our mind that the plaintiff was illegally posted in a lower post with lower time‑scale of pay and we find no substance in the appeal and it must fail.
Now the question is what would be the form of declaration. The cross‑objection filed by the plaintiff cannot also be maintained, because the ground taken therein are all related to the reliefs which the Civil Court cannot grant. It seems to us that the declaration as it appears from the ordering portion of the judg ment of the learned Subordinate Judge should be modified and we think the plaintiff is entitled to a declaration that his appoint ment on the 9th of August 1951, as an Income‑tax Officer, Class II Grade III is illegal, void and inoperative.
With the above modification we dismiss the appeal with costs and dismiss the cross‑objection without any order as to costs.
In the circumstances no order is necessary on the application for amendment of the plaint and let the same be kept in the record.
M. R. KHAN. J.‑I agree with my Lord the Chief Justice.
A. H.
Appeal dismissed with modification.
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