Thursday, 17 May 2012

Order 23 Rules 3 CPC

PLJ 2012 Lahore 149 (DB)
[Multan Bench Multan]

Present: Rauf Ahmad Shaikh and Syed Iftikhar Hussain Shah, JJ.

CHIEF COMMISSIONER INLAND REVENUE REGIONAL TAX OFFICE, MULTAN--Appellant

versus

MUHAMMAD BILAL and 7 others--Respondents

ICA No. 143 of 2010 in W.P. No. 85 of 2010, heard on 6.7.2011.

Civil Procedure Code, 1908 (V of 1908)--

----O. XXIII, R. 3--Order was passed due to consent by counsel for parties--By consenting to settlement of controversy--Right of appeal--All decrees and orders passed due to compromise become conclusive and could not be assailed by parties to compromise through an appeal or revision--If Court was satisfied that compromise or settlement was lawful, then it would pass the decree accordingly as provided under Order 23 Rule 3, CPC--Such decree or orders could not be called through an appeal.         [P. 151] A

Civil Procedure Code, 1908 (V of 1908)--

----S. 96(3)--Right of appeal--No appeal shall lie from a decree passed by Court with consent of the parties.            [P. 152] B

Civil Servants (Appointment, Promotion & Transfer) Rules, 1973--

----R. 8-13--Constitution of Pakistan, 1973, Art. 212(2)--Promotion of good conscience amongst litigant public--Mutual settlement and lawful compromise--An office might be appointed on acting charge basis on a higher post, if he was eligible and had been selected by after observing coddle formalities--Impugned order was against Art. 212(2) of Constitution, had no force as grievance voiced by petitioner was against discriminatory treatment given to them and questions pertaining to their entitlement to salary of the posts held by them under orders of competent authority--Government servant even if was not party to proceedings before Apex Court, was entitled to benefit of judgment, if he and person in whose favour judgment was passed were placed in exactly the same conditions--Parties could not legally or morally back out and deny consenting statement given in Court and avoid implementation of orders on lame excuses--Appeal was dismissed.          [P. 152] C, D & F

Constitution of Pakistan, 1973--

----Arts. 189 & 190--Presumption of correctness--Proceedings of the Court--Even if no consent was given in that regard, every Court including High Court judgment of Supreme Court and all executive authorities throughout Pakistan are to act as provided in Arts. 189-190 of Constitution.          [P. 152] E

Mr. Agha Muhammad Akmal & Mr. Tariq Manzoor Sial, Advocates for Appellant.

Ch. Abdul Sattar Goraya, Advocate for Respondents No. 1 to 4.

Date of hearing: 6.7.2011.

Judgment

Rauf Ahmad Shaikh, J.--The appellant has assailed the vires of the order dated 02.04.2010 passed by the learned Single Judge in Chamber in W.P. No. 85 of 2010 filed by Respondents No. 1 to 4 praying therein that an appropriate writ, order or direction be issued to the appellant and Respondents No. 5 to 8 (respondents in the writ petition) to promote the Respondents No. 1 to 4 (petitioners in the writ petition) in the rank of Inspectors in BPS-14 on the basis of examination held on 14/15.01.2004 and the inaction on their part be declared without lawful authority, without jurisdiction and of no legal effect. They further prayed that the Appellant/Respondents No. 5 to 8 be directed to pay the salary in BPS-14 from the date of their promotion on acting charge basis as Inspectors till the date.

2.  Respondents No. 1 to 4 had contended that they were appointed as LDC on 26.06.1987, 02.08.1994, 03.08.1994 and 07.08.1994 respectively in the Income Tax Department. Certain posts of Inspectors became available and the Respondents No. 1 to 4 along with others appeared in the Departmental Promotion Examination held on 14 &. 15.01.2004 and qualified the same so they were promoted on acting charge basis vide office order No. C-44(i)Admn/04-05/11403 dated 29.06.2005. It is contended that their counter parts in other Zones, who were also promoted on acting charge basis were paid salary in BPS-14 but in their case, it was ordered that they will work in their own pay and scale. It was thus contended that they were given discriminatory treatment and were denied of their rights. It was contended that all other officers, who were also promoted on acting charge basis, were given the salary of the Income Tax Inspectors (BPS-14).

3.  On 02.04.2010, the parties gave consent and the writ petition was decided with the following order:

"With the consent of the learned counsel for the parties it is directed that the petitioners shall be paid their emoluments according to their Pay Scales for officiating charge on which they are working. It is further directed that case regarding promotion of the petitioners shall be determined in accordance with the judgment rendered by the Hon'ble Supreme Court in The Commission Income Tax etc v. Khadim Hussain etc, Civil Petition No. 506-L to 508-L of 2008 passed on 02.06.2009 and they shall be promoted as and when vacancy occurs. With the above direction this writ petition is disposed of."

The appellant has assailed the above order. It is contended that the Officers, who had qualified the Departmental Promotion Examination were to be promoted against the promotion quota but the Respondents No. 1 to 4 could not be promoted due to non-availability of the seats in the said category and as such were promoted on acting charge basis against the 50% quota reserved for direct recruitment. It is urged that under the circular issued by the Board of Revenue, no waiting list could be maintained. It is further contended that this Court could have not passed the order for their promotion and payment of salary in view, of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.

4.  We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

5.  It is obvious that the impugned order was passed due to consent given by the learned counsel for the parties. By consenting to the settlement of the controversy, the parties to the proceedings impliedly give up the right of appeal. It is an established law that all decrees and orders passed due to compromise become conclusive and cannot be assailed by the parties to the compromise through an appeal or revision. If the Court is satisfied that the compromise/agreement or the settlement is lawful, then it would pass the decree accordingly as provided under Order XXIII, Rule 3 CPC. Such decree or orders cannot be   called  in  question  through  an  appeal.  Section  96(3)  CPC  clearly provides that no appear shall lie from a decree passed by the Court with consent of the parties. The intention of legislature in enacting this provision clearly appears to be the promotion of good conscience amongst the litigant public and to prompt them to abide by the mutual settlement and lawful compromises. Even otherwise, Rule 8-B of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 provides that an officer may be appointed on acting charge basis on a higher post, if he is otherwise eligible and has been selected by the competent authority after observing the coddle formalities. It is not denied that the respondents were promoted by the competent authority on acting charge basis/officiating basis, on the basis of the result of the Departmental Promotion Committee and have been continuously rendering the services against the higher posts. The contention that the impugned order is against the Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 has also no force as the grievance voiced by the petitioner was against the discriminatory treatment given to them and questions pertaining to their entitlement to the salary of the posts held by them under the orders of the competent authority. In this respect reliance is placed on 1998 PLC (C.S) 1362. Yet there is another very important and significant aspect of the matters, the Finance Division (Regulation Wing) Government of Pakistan in its Letter No. F.8(4)R-2/97-1204/09 dated 24.02.2009 has clearly provided guideline inter alia, clarifying that an officer fully qualified and appointed by the competent authority on the higher post is entitled to the pay of the higher post from the date, he assume the charge of said post. Even the appellant in Letter No. HRM/1127 dated 17.04.2010 had declared that in view of the letter of the Finance Division, circular of the Board and impugned judgment, the acting charge Inspectors are entitled to pay of BPS-14.

6.  The learned counsel for the appellant has contended that in fact the consent was given in respect of payment of salary in BPS-14 and no consent was given regarding their promotion in the light of judgment of the Supreme Court of Pakistan passed in Civil Petitions No. 506-L to 508-L of 2008. A presumption of correctness is attached to the duly recorded proceedings of the Court. Even if no consent was given in this regard, every Court including the High Court, Tribunal or Authority is bound to obey the judgment of August Supreme Court of Pakistan and all executive authorities throughout Pakistan are to act in aid of the Supreme Court of Pakistan as provided in Articles 189-190 of the Constitution of the Islamic Republic of Pakistan, 1973. It is an established law that a Government Servant even if was not a party to the proceedings before the Apex Court, is entitled to the benefit of the judgment, if he and the persons in whose favour the judgment is passed are placed in exactly the same conditions. The appellant and Respondents  No.  5  to 8 cannot legally or morally back out and deny the consenting statement given in the Court and avoid the implementation of the orders on lame excuses. The appeal is without merits and the same is hereby dismissed.

(R.A.)  Appeal dismissed.


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