COMMISSIONER, INLAND REVENUE and another vs MUHAMMAD AFZAL KHAN
The respondents, Senior Auditors (BPS-16) in the Sales Tax Department, sought upgradation to BPS-18, claiming parity with Audit Officers in other government departments like the Auditor General of Pakistan. The Islamabad High Court allowed their constitutional petition, citing discrimination and relying on Paragraph 2(a) of the Office Memorandum dated 20-1-2001, which mandates uniformity in upgradation. The Commissioner, Inland Revenue, challenged this decision through an Intra Court Appeal, which was dismissed. Upon further appeal to the Supreme Court, leave was granted to examine the maintainability of the writ petition under Article 199 of the Constitution of Pakistan 1973, specifically whether the matter fell within the exclusive jurisdiction of the Service Tribunal regarding terms and conditions of service. The Supreme Court also sought to determine whether Paragraph 2(a) of the Office Memorandum dated 20-1-2001 permits automatic upgradation based on parity with other departments, or if it requires administrative rationalization. Furthermore, the Court is to consider potential administrative anomalies and the impact of a subsequent upgradation to BPS-17 on the respondents' claims. The operation of the High Court's judgment was suspended pending final adjudication.
- Is a writ petition under Article 199 of the Constitution of Pakistan 1973 maintainable regarding the terms and conditions of service of government employees?
- Does Paragraph 2(a) of the Office Memorandum dated 20-1-2001 mandate the upgradation of posts in one department solely based on the upgradation of similar posts in other departments?
- Does the exclusive jurisdiction of the Service Tribunal bar constitutional petitions concerning the service terms of civil servants?
- Article 199, Constitution of Pakistan 1973
NASIR-UL-MULK, C.J.---Respondents Nos. 1 to 39 were appointed as Senior Auditors (BPS-16) in the Sales Tax Department and after reconfiguration of the Tax Department were re-designated as Inland Revenue Audit Officers. They filed Constitution Petition before the Islamabad High Court in the year 2010 for upgradation of their posts on the analogy of upgradation of posts to BPS-18 of Audit Officers in other departments like Auditor General of Pakistan, Accountant General Punjab and Controller General of Accounts, Accountant General, Punjab. Their Constitution Petition was allowed on the ground that since they perform similar functions as the Audit Officer in the said Departments, refusal to grant them BPS-18 would amount to discrimination. Apart from certain case-law, the Court referred to Paragraph 2(a) of the Office Memorandum dated 20-1-2001 providing for uniformity in the upgradation of similar posts in different similar departments. The Chief Commissioner Inland Revenue filed Intra Court Appeal before the High Court, which was dismissed by the impugned judgment.
2. After hearing the learned counsel for the parties, leave to appeal is granted to consider, inter alia, whether:--
(i) the Writ Petition filed by the respondents under Article 199 of the Constitution was maintainable, as its subject matter related to the terms and condition of service of the respondents and thus within the exclusive jurisdiction of the Service Tribunal;
(ii) Paragraph No.2(a) of the Memorandum dated 20-1-2001 can be construed in a manner that the upgradation of a post in one department of the Government would furnish a ground to the officers performing similar job in other departments for upgradation of the post, as the said provision provides that upgradation can only be made if it is considered to be necessary for bringing about rationalism in the administrative structure;
(iii) that maintaining the impugned judgment would bring about anomalies within the Inland Revenue Department as the respondents may as a result rank senior to other officers to whom they were subordinate;
(iv) the respondents could have been granted upgradation from BPS-16 to BPS-18 when in the meanwhile their posts have already been upgraded to BPS-17 on 14-4-2012.
3. The appeal be fixed for hearing after Summer Vacations, 2014.
C.M.A. No.3131 of 2014 ' The application is allowed and operation of the impugned judgment is suspended.