SHAHID HASSAIN And 4 Other vs MUHAMMAD JAHANGIR SHAHZAD And 2
This appeal concerns the nature of the departmental examination for promotion to the post of Inspector in the Income Tax Department. The core legal question was whether this examination is a competitive examination, where appointments are based on merit, or merely a qualifying examination, where appointments are determined by the Departmental Promotion Committee based on seniority-cum-fitness. The Supreme Court held that the examination is strictly a qualifying examination, intended only to establish eligibility for promotion. The Court found that the Central Board of Revenue had created confusion by improperly using the term "competitive" in internal correspondence, which contradicted the formal service rules notified in 1982. The Court affirmed that once eligibility is established through the qualifying examination, candidates must still be considered by the Departmental Promotion Committee for selection. The key principle laid down is that where service rules define an examination as a qualifying mechanism, it cannot be treated as a competitive merit-based selection process, and the Departmental Promotion Committee retains the authority to select candidates from the pool of qualified individuals based on established promotion criteria.
- Is a departmental examination for promotion to the post of Inspector in the Income Tax Department a competitive examination or a qualifying examination?
- Does qualifying for a departmental promotion examination automatically entitle a candidate to promotion without consideration by the Departmental Promotion Committee?
- Can administrative correspondence override formal service rules regarding the nature of a promotion examination?
- Article 212(3), Constitution of Pakistan 1973
- Section 9, Civil Servants Act 1973
SHAFIUR RAHMAN, J: --Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the departmental examination conducted to fill the posts of Inspector in the Income Tax Department is of a competitive nature and the appointments are to be made on the basis of order of merit prepared on the result of examination, or is merely a qualifying examination and the appointments are to be made from those who qualified on the basis of seniority-cum- fitness rule.
2. On the subject of departmental promotion to the post of Inspector in the Income Tax Department two instruments were competently issued as they both had the concurrence of the Establishment Division with regard to the applicability of rule of promotion to the post of Inspector. The first is the formal rule notified on the 5th of July, 1982. It is in form and in substance a complete service rule competently framed. It clearly showed that the promotion examination was only a qualifying examination and the cases of qualified persons had in any case to go to the Departmental Promotion Committee for selection from - amongst the qualified persons. What created confusion in the mind every one dealing with the matter are the letters that issued from Central Board of Revenue particularly the one before us dated 13th of July, 1982 which referred to this examination as Zonal Competitive Examination for Promotion to the post of Inspector. Another such confusing document is the letter of the Administrative Officer dated 10-2-1986 which provides the clarification of the Rules as hereunder:-- "The matter was taken up with the Central Board of Revenue, Islamabad and it has been decided that the candidates for the post of Inspector i.e. Stenotypist, Upper Division Clerks, Lower Division Clerks etc. Who qualify the Inspector's Promotional Examination are required to be arranged in order of merit obtained in the examination and picked up for appointment from that list."
3. The confusion so created by the Central Board of Revenue and the Officers subordinate to it was, ultimately taken to the Establishment Division and a clarification was issued on 30-8-1987 with the approval of the Establishment Division. It clearly indicated as hereunder:-- "Since the examination of provided in the recruitment rules is a qualifying examination and not a competitive examination there is no reason to select the official for promotion on the basis of the result of the said examination."
It is really unfortunate that the Central Board of Revenue and the officers subordinate to it at the level of Commissioners should have been so loose in the use of words like "competitive" and "qualifying".
4. What happened was that, we are told, 51 subordinates took up the examination, 16 qualified, 9 at the top were promoted without consideration by the Departmental Promotion Commission of others. This aggrieved those who had qualified but were left out of consideration. They unsuccessfully represented before the Department and then challenged before the Tribunal and succeeded. The Service Tribunal has reproduced extensively from the rules and the clarifications with regard to it to demonstrate that the qualifying examination was to establish only the eligibility.
The selection had yet to be made by the Departmental Promotion Committee and the grades to be assigned by it. ,
5. Mr. D.M. Awan, Senior Advocate, the learned counsel for the appellants has relied on Aish Muhammad and 88 others v. Pakistan and 75 others (1985 SCM R 774) to establish that the qualifying list should be held to be a running list and subsequent vacancies should be filled up from there. His contention was also that those others who qualified had been considered by the Departmental Promotion Committee alongwith those promoted.
6. On the factual plane, the learned counsel had not been able to satisfy from any document that in fact those others who had qualified and were not. Promoted had been considered. For promotion by the Departmental Promotion Committee. There is no recital to that effect anywhere on the record, nor is it otherwise borne out from the view-the departmental officers have been taking of it.
7. As regards the decision in the case of Aish Muhammad (1985 SCM R 774), we find that the ratio of the case is against the appellants. It only holds in the light of section 9 of the Civil Servants Act that eligibility having been established, the consideration for promotion has to take place in the same selection or subsequently. In the present case rules promulgated clearly establish right of those qualifying in the examination to be considered again for the selection post alongwith all others who had qualified for the purposes of making the grade after clearance by the Departmental Promotion Committee against the vacancies. Once that exercise is undertaken there would be left nothing and even the qualified persons not making grade will have to take examination whenever subsequently the vacancies occurred and recruitment to them is envisaged.
8. No merit is found in the appeals and the same are dismissed, with no order as to costs.