Muhammad Nasser Janjua & others (Plaintiff) VS Federation of Pakistan & another (Defendant)

IN THE HIGH COURT OF SINDH AT KARACHI

Suit -1049 of 2024 : Muhammad Nasser Janjua & Others vs. Federation of Pakistan & Another

For the Plaintiff/s : Mr. Khalid Jawed Khan, Advocate Mr. Ozair Qadir Shoro, Advocate

For the Defendants/s : Mr. Zia-ul-Haq Makhdoom, (Additional Attorney General) Ms. Rabia Khalid (Assistant Attorney General)

Mr. Altaf Hussain, Advocate Mr. Asadullah Jan, Advocate

Date/s of hearing : 08.08.2024

Date of announcement : 08.08.2024

ORDER

Agha Faisal, J. The Government of Pakistan (Revenue Division) Federal Board of Revenue issued two notifications dated 03.07.20241; prima facie for the transfer of officers of the Inland Revenue Service, admittedly civil servants. Twelve serving officers of the IRS have preferred this suit seeking to have their transfers deemed to be akin to OSD2 and quashed. The office has raised the objection of maintainability inter alia as to how a matter pertaining to terms and conditions of service of civil servants may be agitated in a civil suit; in view of the bar contained in Article 212 of the Constitution as appreciated by the Supreme Court in Ali Azhar Baloch3. It is this question of maintainability that is to be determined herein.

General principles of the law

1.Article 2124 of the Constitution confers exclusive jurisdiction upon the service tribunals for adjudication of matters relating to terms and conditions of service of civil servants.

1 Copies whereof are annexed herewith in Schedule “A” and the same may read as an integral constituent hereof (“Impugned Notifications”).

2 As pleaded in paragraph 9 of the memorandum of plaint.

3 Per Amir Hani Muslim J in Ali Azhar Khan Baloch vs. Province of Sindh reported as 2015 SCMR 456; reference is also made to Contempt Proceedings against Chief Secretary Sindh reported as 2013 SCMR 1752.

4 212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;

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2.The superior courts have deprecated the assumption of such exclusive jurisdiction by other juridical fora; especially civil courts including a Judge of the High Court of Sindh exercising jurisdiction on the original side as a civil court per the CPC5. Ali Azhar Baloch makes specific reference to transfers and postings and includes the same squarely within the remit of terms and conditions of service6. The august Court concluded that the exercise of jurisdiction by way of suit filed by a civil servant with regard to terms and conditions of service was violative of Articles 175, 212 and 240 of the Constitution7.

3.At this juncture, it is considered imperative to mention that the respective learned counsel are in unison in so far as the law, so cited, is concerned. Mr. Khalid Jawed Khan seeks to pivot his case for maintainability on the premise that the plaintiffs’ predicament is unrelated to the terms and conditions of service, in respect whereof the bar in Article 212 applies.

Respective arguments

4.Mr. Khalid Jawed Khan articulated that the Impugned Notifications render the plaintiffs as OSD8 and the same is impermissible per the law9. He placed reliance of section 4(1)(b) of the Service Tribunals Act 1973 to enunciate that transfers under scrutiny were covered in the proviso therein contained, hence, not amenable to adjudication before the tribunal.

5.Mr. Zia ul Haq Makhdoom and Mr. Malik Altaf Hussain insisted that the action under scrutiny was a simple transfer and not amenable for adjudication in a civil suit. It was stated that the Impugned Notifications make no mention of OSD, are relative to transfer orders of PAS officers to the Establishment Division between postings; and that under no circumstances could the Impugned Orders be imputed to be read as decisions of a departmental authority determining the fitness of a person to hold a post or be promoted therefrom. Mr. Malik Altaf Hussain unequivocally stated that the Impugned 5 Reference is made to paragraph 148 of Ali Azhar Baloch – “In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under C.P.C. cannot entertain a civil suit of a civil servant relating to the terms and conditions of his service...”

6 Reference is made to paragraph 150 of Ali Azhar Baloch – “The expression 'Terms and Conditions' includes transfer, posting...”

7 Reference is made to paragraph 151 of Ali Azhar Baloch – “We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil Servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law.”

8 Officer on special duty.

9 Reliance is placed on 2001 PLC CS 223 @ pages 233 & 235; 2024 PLC CS 833; 2024 PLC CS 65; 2015 SCMR 1006 @ paragraph 13; 2013 SCMR 1150 @ page 1395; and 2021 SCMR 1390 @ paragraph 5 on page 1395.

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Notifications were appealable per section 4 of the Service Tribunals Act 1973 and the proviso cited was inapplicable in the instant case.

Mr. Zia ul Haq Makhdoom raised the specter of another jurisdictional defect and stated that since the defendants were impleaded as being in Islamabad, the Impugned Notifications were ostensibly issued in Islamabad; and even plaintiff numbers 2, 6, 8, 11 and 12 were stated in the plaint to be from or transferred from outside the territorial remit of this Court, therefore, the suit was also barred on account of manifest absence of territorial jurisdiction.

Scope of determination

6.Heard and perused. The matter of territorial jurisdiction is well settled in our jurisdiction; as may be denoted from the Sandalbar case10 and recently expounded by Syed Mansoor Ali Shah J in the A F Furguson case11. However, no further dilation in this respect is merited at this juncture since the matter is clichéd on the objection in so far as the bar in Article 212 of the Constitution is concerned.

7.The sole determinant issue before this Court is whether the present grievance of the plaintiffs could be adjudicated in a civil suit; in view of Article 212 of the Constitution, as interpreted by the Supreme Court from time to time including in Ali Azhar Baloch.

8.It is paramount to denote that the present determination is entirely with respect to the forum for adjudication of grievances of the plaintiffs and not with respect to the merit, or otherwise, thereof.

Rejection of plaint

9.Since this is a civil suit, therefore, a negative finding with regard to maintainability would give cause for rejection of the plaint. It is settled law that the question of whether a suit was likely to succeed or not was irrespective of whether or not the plaint ought to have been rejected12. It is often seen that while a plaint could not have been rejected, however, a suit was dismissed eventually for a variety of reasons. The seminal edict with respect to the 10 Sandalbar Enterprises Pvt. Ltd. vs. Central Board of Revenue reported as PLD 1997 Supreme Court 334.

11 Order dated 27.02.2024 in CIR LTO Karachi vs. A F Furgoson & Company & Others (Civil Petition 52 of 2024) and connected matters.

Al Meezan Investment Management Company Limited & Others vs. WAPDA First Sukuk Company Limited & Others reported as PLD 2017 Supreme Court 1.

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evolution of law of rejection of plaints is perhaps the Florida Builders case13 wherein the Supreme Court demarcated the anvil upon which the decisions in such matters ought to be rested. The guidelines distilled by the Court in such regard are reproduced below:

“Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision.

Secondly, it is also equally clear, by necessary inference that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.

Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint.”

10.The Supreme Court concluded that the rejection of the plaint was merited inter alia when the suit appeared to be barred by law and the import of the word appear was deciphered to mean that if prima facie the court considered that it appears from the statements in the plaint that the suit was barred, then it should be terminated forthwith. The plaint, coupled with the submissions of the learned counsel, shall be subjected to the anvil so illumined by the Supreme Court.

13 Per Saqib Nisar J in Haji Abdul Karim & Others vs. Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247.

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Contents of the plaint

11.There is absolutely no cavil to the fact that the plaintiffs are civil servants. The Impugned Notifications clearly explicate that merely a transfer is contemplated therein, governed inter alia per section 10 of the Civil Servants Act 1973. Paragraph 9 of the memorandum of plaint unequivocally expresses that the Impugned Notifications pertain to transfer, however, such transfers may be considered to be akin to being made OSD.

12.At the very onset, it is imperative to record that there is no mention of OSD in the Impugned Notifications and nothing has been articulated before this Court to give the notifications any other meaning than that apparent from the plain verbiage thereof. It may also be a notable mention that the prayer clause is devoid of any constituent seeking a declaration that the impugned transfers be declared as being equivalent to having been rendered as OSD.

Service Tribunals Act 1974

13.Section 414 of the Services Tribunals Act 1974 mandates that any civil servant aggrieved by an order made by a departmental authority in respect of any of the terms and conditions of his service, may appeal to the tribunal. Mr. Malik Altaf Hussain has categorically stated that the Impugned Notifications fall squarely within the remit thereof.

14.The proviso contained in section 4(1)(b)15 prima facie pertains to decisions of a departmental authority determining fitness of a person to be appointed to or hold a particular post or to be promoted to a higher grade. Respectfully, no such determination is discernible from the Impugned Notifications, hence, reliance upon the proviso by the plaintiffs appears to be misconceived.

Conclusion

15.In view of the foregoing, it is the deliberated view of this Court that the present grievance of the plaintiffs could not be adjudicated in a civil suit; in 14 Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal , whichever is later, prefer an appeal to the Tribunal...

15 no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade;

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view of the bar contained in Article 212 of the Constitution, as interpreted by the Supreme Court from time to time; including in Ali Azhar Baloch16. It may suffice to conclude the requirements to be borne in mind for rejection of a plaint have been satisfied. Therefore, the plaint is hereby rejected per Order VII rule 11(d) CPC17.

Judge

16 Per Amir Hani Muslim J in Ali Azhar Khan Baloch vs. Province of Sindh reported as 2015 SCMR 456; reference is also made to Contempt Proceedings against Chief Secretary Sindh reported as 2013 SCMR 1752.

17 11. Rejection of plaint. The plaint shall be rejected in the following cases:

(d)where the suit appears from the statement in the plaint to be barred by any law.

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Schedule “A”

(TO BE PUBLISHED IN THE GAZETTE OF PAKISTAN PART-1)

GOVERNMENT OF PAKISTAN

(REVENUE DIVISION)

FEDERAL BOARD OF REVENUE

Islamabad 3-07-2024

NOTIFICATION

Transfer and Posting

No. 1653-IR-1/2024: Transfers/Postings of the following BS-20 officers of Inland Revenue Service are made with immediate effect and until further orders:-

S. # NAME FROM TO

1.Mr. Kazi Afzal (Inland Commissioner, (Rahim Yar Chief (Admin Pool), Federal Board Revenue Service/BS-20) Khan Zone) Regional Tax of Revenue (Hq), Islamabad Office, Bahawalpur (stationed at Bahawalpur)

2.Mr. Mohammed Nasser Commissioner, (Zone-V) Chief (Admin Pool), Federal Board Janjua (Inland Revenue Medium Taxpayers office, of Revenue (Hq), Islamabad Service/BS-20) Karachi (stationed at Karachi)

3.Mr. Zahoor Ahmad Panwar Commissioner, (Zone-III) Chief (Admin Pool), Federal Board (Inland Revenue Regional Tax Office I, Karachi of Revenue (Hq), Islamabad Service/BS-20) (stationed at Karachi)

4.Dr. Tariq Ghani (Inland Director-II, Directorate of Law, Chief (Admin Pool), Federal Board Revenue Service/BS-20) Karachi of Revenue (Hq), Islamabad (stationed at Karachi).

5.Mr. Muhammad Abid Commissioner, (Zone-1) Chief (Admin Pool), Federal Board (Inland Revenue Regional Tax Office, of Revenue (Hq), Islamabad Service/BS-20) Sargodha (stationed at Sargodha).

6.Ms. Humaira Maryam Commissioner, (WHT) Chief (Admin Pool), Federal Board (Inland Revenue Regional Tax Office, Lahore of Revenue (Hq), Islamabad Service/BS-20) (stationed at Lahore)

7.Muhammad Naveed Commissioner, (Zone-I) Chief (Admn Pool), Federal Board Akhtar Regional Tax Office, Lahore of Revenue (Hq), Islamabad Inland Revenue (stationed at Lahore) Service/BS-20)

8.Mr. Muhammad Ali (Inland Director, Directorate of Chief (Admn Pool), Federal Board Revenue Service/BS-20) Internal Audit (Inland of Revenue (Hq), Islamabad Revenue), Karachi (stationed at Karachi)

9.Mr. Naeem Babar (Inland Commissioner Inland Chief (Admin Pool), Federal Board Revenue Service/BS-20) Revenue (Appeals-III), Lahore af Revenue (Hq), Islamabad (stationed at Lahore)

10.Mr. Zulqarnain Ali Commissioner, (Zone-II) Chief (Admin Pool), Federal Board Shaheen Haral (Inland Regional Tax Office, of Revenue (Hq), Islamabad Revenue Service/BS-20) Gujranwala (stationed at Gujranwala)

11.Mr. Abdul Qadir Shaikh Commissioner, (Zone-IV) Chief (Admin Pool), Federal Board (Inland Revenue Regional Tax Office II, Karachi of Revenue (Hq), Service/BS-20) Islamabad (stationed at Karachi)

12.Pir Khalid Ahmed Qureshi Commissioner, Inland Chief (Admin Pool), Federal Board (Inland Revenue) Revenue Appeals-I Multan of Revenue (Hq), Service/BS-20 Islamabad (stationed at Multan)

13.Mr. Muhammad Asim Commissioner (Zone-IV) Chief (Admin Pool), Federal Board Khattak Inland Revenue Corporate Tax Office, Karachi of Revenue (Hq), Service/B8-20) Islamabad (stationed at Karachi)

14.Dr. Razi-ur-Rehman Khan Commissioner Inland Chief (Admin Pool), Federal Board (Inland Revenue Revenue (Appeals) Sialkkot of Revenue (Hq), Service/B5-20) Islamabad (stationed at Sialkot)

15.Barrister Nowsherwan Commissioner, (Special Zone Chief (Admin Pool), Federal Board Khan (Inland Revenue for Builders & Developers) of Revenue (Hq), Service/BS-20 Regional Tax Office, Islamabad Islamabad

16.Mr. Fazli Malik (Inland Commissioner, (Corporate Chief (Admin Pool), Federal Board Revenue Service/BS-20) Zone), Regional Tax Office, of Revenue (Hq), Peshawar Islamabad (stationed at Peshawar)

All the above officers are hereby stand relieved from their duties with immediate effect and they will continue to draw their salaries from their previous office.

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(TO BE PUBLISHED IN THE GAZETTE OF PAKISTAN PART-1)

GOVERNMENT OF PAKISTAN

(REVENUE DIVISION)

FEDERAL BOARD OF REVENUE

Islamabad 3-07-2024

NOTIFICATION

Transfer and Posting

No. 1654-C-1/2024; Transfers/Postings of the following officers of the Pakistan Customs Service (BS-20) are made with immediate effect and until further orders:-

S# NAME FROM TO

1.Dr. Akhtar Hussain Collector, Collectorate of Chief (Admin Pool), Federal (Pakistan Customs Customs, (Appeals), Board of Revenue (HQ), Service/BS-20) Islamabad Islamabad.

2.Mr. Muhammad Adnan Director, Directorate of Transit Chief (Admin Pool), Federal Akram (Pakistan Trade, Lahore Board of Revenue (HQ), Customs Service/BS-20) Islamabad

3.Ms. Iram Maqbool Aamir Director General, (OPS) Chief (Admin Pool), Federal (Pakistan Customs Directorate General of Law & Board of Revenue (HQ), Service/BS-20) Prosecution, Islamabad Islamabad

4.Mr. Malik Kamran Azam Chief, Federal Board of Chief (Admin Pool), Federal Khan Rajar (Pakistan Revenue (Hq), Islamabad Board of Revenue (HQ), Customs Service/BS-20) Islamabad

5.Mr. Khalid Hussain Chief (PAC-Customs), Federal Chief (Admin Pool), Federal Jamali (Pakistan Board of Revenue (Hq). Board of Revenue (HQ), Customs Islamabad Islamabad Service/BS-20)

6.Mr. Raza (Pakistan Collector, Collectorate of Chief (Admin Pool), Federal Customs Service/BS-20) Customs (Adjudication-1), Board of Revenue (HQ), Karachi Islamabad

7.Mr. Sami-ul-Haq Director, Directorate of Post Chief (Admin Pool), Federal (Pakistan Customs Clearance Audit (North), Board of Revenue (HQ), Service/BS-20) Islamabad Islamabad

8.Ms. Ambreen Ahmad Chief (DRD & Exemptions), Chief (Admin Pool), Federal Tarar (Pakistan Federal Board of Revenue Board of Revenue (HQ), Customs Service/BS-20) (Hq). Islamabad Islamabad

9.Mr. Amer Rashid Sheikh Chief, Federal Board of Chief (Admin Pool), Federal (Pakistan Customs Revenue (Hq), Islamabad Board of Revenue (HQ), Service/BS-20) Islamabad

10.Mr. Naveed Iiqbal Director, Directorate of Transit Chief (Admin Pool), Federal (Pakistan Trade, Gwadar Board of Revenue (HQ), Customs Service/BS-20) Islamabad

11.Mr. Muhammad Ahsan Collector, Collectorate of Chief (Admin Pool), Federal Khan (Pakistan Customs (Adjudication), Board of Revenue (HQ), Customs Service/BS-20) Quetta Islamabad

2.The above named officers stand relieved with immediate effect and are requested to send charge Relinquishment / Assumption to FBR immediately after Relinquishment / Assumption of charge for record and further necessary action

3.They will continue to draw their pay against supernumerary posts in their previous offices.