MUHAMMAD ZAHOOR BHATTI Versus REGIONAL COMMISSIONER OF INCOME TAX/WEALTH TAX, NORTHERN REGION, ISLAMABAD , Nemo

MISBAH ULLAH KHAN (MEMBER).‑‑‑ This appeal by M. Zahoor Rhatti and Appeal No. 296(R)/1991 by Muhammad Yasin, both employees of Income‑tax Department, are being disposed of together as identical questions of law and facts are involved in both of them.

2. The Department of Income‑tax in Pakistan is administered in the field by Regional Commissioners. The office of Northern Region of the Regional Commissioner is located at Islamabad. Under him there are Commissioners of Income‑tax and Wealth Tax at Rawalpindi, Peshawar, Gujranwala, and Faisalabad. In Rawalpindi/Islamabad area, the following Commissioners of Income‑tax are functioning:

(a) Commissioner of Income‑tax, Rawalpindi Zone.

(b) Wealth Commissioner, Northern Region.

(c) Commissioner of Income‑tax, Survey and Registration.

(d) Commissioner of Income‑tax (Appeals).

3. The subordinate staff of these four Commissionerates and that of Regional Commissioner, Northern Zone constitute one joint cadre. The appointing authority in respect of these subordinate staff is Commissioner of Income‑Tax, Rawalpindi.

4. Both the appellants at the relevant time were serving as Supervisor in BPS‑10. Initially, Supervisors in BPS‑10 used to be promoted directly as Administrative Officer, BPS‑16 except those who passed the Departmental examination for Inspectors of Income‑tax and go to the executive cadre of Inspectors in BPS‑11. In February, 1990 another cadre of Superintendents BPS‑b was created with effect from 1‑2‑1990 after obtaining the clearance from the Finance Division and the decision was conveyed to all concerned by letter dated 22‑2‑1990. By another letter of the Central Board of Revenues, dated 14‑3‑1991 it was decided that these posts of Superintendent shall be filled in by promotion of Supervisors BPS‑10 on seniority‑cum‑fitness basis.

5. M. Zahoor Bhatti, appellant was at serial No. 9 in the seniority list of Supervisors while Muhammad Yasin, appellant was at No. 7. The former was working in the office of Income‑tax, Survey and Registration and the latter in the Wealth Tax Office, Rawalpindi. The persons above Muhammad Yasin, appellant in the list of Supervisors had either been promoted as Administrative Officers or had been selected as Inspectors on passing the requisite examination. The remaining persons above the two appellants have been cleared for promotion to the post of Superintendent BPS‑13 and the appellants have no grudge against them.

6. The Departmental Promotion Committee was constituted with the following Members for considering the promotion of Supervisors to the post of Superintendents:

(i) Commissioner of Income‑tax, Rawalpindi Zone.

(ii) Inspecting Assistant Commissioner, Rawalpindi Zone,

(iii) Inspecting Assistant Commissioner (The Second), Rawalpindi Zone.

7. The Departmental Promotion Committee examined the Annual Confidential Reports (ACRs) and also interviewed the candidates. The Committee evolved its own method of selection. It set 50 marks for the ACRs and 50 marks for interview. The decision taken was that whoever obtains 50 marks in aggregate will be promoted on the basis of seniority. The marks given to the two appellants were as under‑.‑‑

Name

ACR

Interview

Total

M. Zahoor Bhatti

38

5

= 43

M. Yasin

39

5

= 44

The result was that the total marks of the appellants fell short of 50 and they were not selected for promotion. Respondents Nos. 4 to 19 have been promoted. If the two appellants and one another Supervisor who have been dropped on the basis of aforesaid formula, had been promoted then respondents Nos. 17 to 19 would not have a chance of promotion.

8. The two appellants preferred departmental appeals against their supersession M. Zahoor Bhatti on 9-6‑1991 and Muhammad Yasin, on 25‑5‑1991. Their appeals were not responded to and they filed the present two appeals within 30 days after exhausting the statutory period of 90 days.

9. The learned counsel for the appellants has first of all objected to the very constitution of the Departmental Promotion Committee and has urged that the whole exercise taken by it was illegal and deserves to be quashed. He referred to Serial No. 174 at page 263 of ESTACODE 1989 wherein it is provided that the Departmental Promotion Committee, for promotion to the posts in BPS‑11 to 18 shall be constituted in consultation with the Establishment Division. He also referred to Rule 4(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which makes similar provision.

10. No doubt, the Departmental Promotion Committee cannot be constituted except after consultation of the Establishment Division, nevertheless, the appellants have never taken this objection in the grounds of appeal. The presumption of law is that if an official act has been performed it shall be presumed to have been properly performed unless otherwise proved. When we asked the learned counsel for the appellants to establish that the Departmental Promotion Committee was not constituted in consultation with the Establishment Division, he replied that the burden of establishing that the approval has been obtained is on the Government and that it is they who themselves should place on record the approval of the Establishment Division. We are not impressed by this argument. Had the appellants taken this plea specifically in the grounds of appeal then the Government could rebut the same. When the plea was not taken, the Government had been taken by surprise and its now too late to press this plea. As already stated that official ads are to be presumed to be properly performed and since the appellants have not taken the plea in the grounds of appeal nor have placed on record anything to substantiate the plea, we are not inclined to accept it. We, therefore, hold that the Departmental Promotion Committee shall be presumed to have been properly constituted.

11. The learned counsel for the appellants then referred to decision dated 4‑1‑1989 regarding the constitution of Departmental Promotion Committee. Item 4 of this decision reads as follows:

"(4) PROMOTION;

Promotions of staff of all the offices of the CITs will be centralised in the concerned Zonal CIT's office. But no promotion will be made without the concurrence of the CIT concerned. For this purpose, every Departmental Promotion Committee will have a representative of the CIT concerned."

The learned counsel urges that M. Zahoor Bhatti, appellant was serving in the office of Commissioner of Income‑tax Survey and Registration and Muhammad Yasin, appellant was serving in the office of the Commissioner of Wealth Tax but the representatives of these two Commissionerates were not associated while making the promotion. The learned counsel for the respondents urges that this decision is not binding on the Departmental Promotion Committee. We are unable to accept this contention. If the Departmental Promotion Committee was constituted properly then this decision should also have been taken as binding any: proper. We, therefore, accept the stand taken by the learned counsel for the appellants that the Departmental Promotion Committee, without participation of the representatives of the Commissionerates in whose Zones the appellants were working, was not representative as far as they were concerned. This stand of the learned counsel is fortified by the decision of the Supreme Court reported in Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 (relevant at page 622) confirming the decision of the Tribunal in Appeal No. 379(R)/1986.

12. It may also be pointed out that another stand taken by the appellants is that the Commissioner of Income‑Tax, Rawalpindi Zone, who was the Chairman of the Committee as well, did not participate at the stage of interview. This assertion was supported by affidavits filed by the two appellants. There being no counter‑affidavits, we have but to accept the stand taken in this respect. Consequently the marking in interview has not the backing of the properly constituted Departmental Promotion Committee and has to he taken out of consideration. It is pertinent to note that the two appellants were awarded 5 marks m the interview out of 50 which is not understandable in view of the marks obtained by them in the ACRs.

13. The learned counsel for the appellants also uged that the method of awarding the marks in the interview by the Departmental Promotion Committee was illegal. He categorically referred to the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and rule 10(d) of the Rules of Business which provide that no decision shall be taken in respect of terms and conditions of a civil servant unless consultation has been made with the Establishment Division. No doubt, the Establishment Division has allowed the holding of interview by the Departmental Promotion Committee and the decision is contained at serial No. 181 page 175 of ESTACODE 1983, nevertheless, the method of marking .has no sanction of the Establishment Division. It may be pointed out that posts in BPS‑18 and above only are assessed on the basis of marking and even there the marking is confined to ACRs only and no marks are reserved for interview. In view of this fact, therefore, we are of the firm view that the Departmental Promotion Committee has wrongly adopted the method of marking in the interview.

14. The learned counsel for the appellants also argued that the appellants have been excluded mala tide to accommodate respondents Nos. 17 to 19. It was stated that respondent No. 17 was attached to the Commissioner of Income‑Tax, Rawalpindi and was his favourite, therefore, he was selected in preference to the appellants and the others. Likewise about respondent No. 19, it was stated that his selection had the blessing of Regional Commissioner of Income‑tax under whom he was working. About respondent No. 18, it was contended that he was the Chairman of Association and had nuisance value which prompted the Departmental Promotion Committee to select him. The learned counsel contended that he had specifically urged mala fides in his appeal which is supported by affidavit and none of these respondents has come forward to deny this assertion and, therefore, the mala fides has been proved. We are unable to agree to this contention. It is easy to allege mala been proved but difficult to prove. No specific evidence is brought on record. The plea of mala fides cannot be said to have been proved. This finding has the backing of the following cases:

(a) Fateh Khan v. Sharaf Khan (PLD 1984 Lah. 106).

(b) Raja Muhammad Amir v. Province of Punjab (PLD 1983 Lah. 355).

(c) Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457).

(d) Fed of Pakistan v. Saeed Ahmad (PLD 1974 SC 151).

15. The learned counsel for the appellants then argued that there had been discrimination in adopting the method of marking. It is urged that neither for promotion to the post of UDC nor to the post of Supervisors the method of marking was adopted. Again it was asserted that in Peshawar, Gujranwala and Faisalabad Zones, method of marking was not resorted to. These allegations have been specifically taken in the grounds of appeal but not specifically denied. For these reasons we are inclined to hold that supersession of the appellants was bad being based on discrimination.

16. To sum up, the omission of the appellants from selection has not been proper. Firstly for the reason that despite having obtained very high marks in the ACRs they were awarded only 5 marks in the interview which conclusion does not appeal to common sense. Likewise the representatives of the Commissionerate under whom the two appellants were working were not associated by the Departmental Promotion Committee, contrary to the decision. Had they been associated they would have certainly supported the appellants as is evident from their remarks made while forwarding their departmental appeals. It was specifically stated in the forwarding remarks that the two appellants are fit for promotion and that unless there is anything specific against them, they deserved to be promoted.

17. The appellants were ignored in the interview which was not properly held. Firstly the Commissioner of Income‑tax, who was one of the Members of the Departmental Promotion Committee was not associated and secondly because the decision to award marks for interview has not blessing of the rules. Besides, the action was unlawful being discriminatory.

18. It is pertinent to point out that the appellants were given these marks in the interview which was held in April, 1991. However, in December, 1991 when another set of officials was promoted, the appellants have also been promoted. We are unable to understand as to what happened in these 8 months which promoted the Departmental Promotion Committee to clear the two appellants especially when during this period no fresh ACR was expected. If they were fit for promotion in December, 1991 then they were also fit for promotion in April, 1991.

19. Ordinarily we would have quashed the proceedings of the Departmental Promotion Committee to hold fresh DPC for promotions in which the appellants were omitted: However, this would adversely affect respondents Nos. 4 to 19 and may create some other problems. Now when the appellants having been found fit for promotion by the DPC, have been promoted, the only relief which they can be granted is that their promotion is to be ante‑dated to the date from which their next juniors were promoted on the basis of selection made in April, 1991. We, therefore, direct that the appellants shall be deemed to have been promoted alongwith respondents Nos. 4 to 19 and they carry their seniority as in the lower post.

20. No order as to costs.

21. Parties be informed.

A.A./755/Sr.F Order accordingly.