P L D 1973 Lahore 42 (PLP)

Mr. S. Muhammad Ashraf Shah shall similarly be promoted as an Assistant, with effect from 18‑8‑1955 the date on which S. Mushtaq Shah was so promoted. S. Mushtaq Shah was confirmed as junior clerk on 15‑8‑47 and he was not confirmed as senior clerk but Mr. Muhammad Ashraf Shah was confirmed as senior clerk w. e. f. 14‑10‑

55. Mr. S. Mushtaq Shah was confirmed as Assistant w. e. f. 3‑8‑

60. Consequently Syed Muhammad Ashraf Shah will also be treated as substantive permanent senior clerk from 14‑10‑55 and as Assistant from 3‑8‑60 respectively. His pay as Senior Clerk and Assistant shall be fixed from the date of his promotion an d he shall also be entitled to arrears of pay on this account."

2. It appears that despite the above order the petitioner was not granted the arrears of pay to which he was held entitled, on the basis of the assumed dates of promotion mentioned in the above‑mentioned order. He, therefore, filed the present writ petition for a direction that his arrears of pay amounting to Rs. 11,671.78 should be paid to him.

3. During the pendency of this writ petition the above mentioned order dated 7‑8‑65, was, however, amended by another order passed on 26‑3‑68 which is as follows: "Part IV of the order issued on 7‑8‑65 granting War Service Seniority to Syed Muhammad Ashraf Shah is hereby cancelled and substituted as follows :‑ (i) S. Mushtaq Shah was confirmed as junior clerk on 15‑8‑

47. He was not confirmed as senior clerk, but Mr. Muhammad Ashraf Shah was confirmed as senior clerk with effect from 1410‑

55. S. Mushtaq Shah was confirmed as Assistant with effect from 3‑8‑

60. Consequently S. Muhammad Ashraf Shah will also be treated as substantive permanent senior clerk from 14‑10‑55 and as Assistant with effect from 3‑8n60 respectively. (ii) As a result of his assumed date of appointment as junior clerk in the former Punjab Civil Secretariat assigned in Part I and the pro forma promotions etc. allowed in Parts 11 and III of the order dated the 7th August 1:965, S. Muhammad Ashraf Shah will not be entitled to arrears of pay, because he did not actually perform the duties of the higher posts from the assumed dates of promotion. He will, however, be entitled to arrears of pay for the actual periods of duty performed by him in all the posts (i.e. he will be allowed the difference of pay for the periods he actually performed the duties of the higher posts)." The effect of this order was that the petitioner was held entitled to arrears of pay only for the actual periods of duty performed on the higher posts. On this basis a part of the arrears of pay were paid to the petitioner.

4. The submission of the petitioner is that he is entitled to be paid the entire amount of Rs. 11,671.78 to which he was entitled if the respondent‑Government had not unlawfully deprived him the opportunity of serving on the higher post; on the due dates. In support of the above submission, two‑fold arguments were presented, firstly that the order passed on 7‑8‑65 could not be withdrawn, modified or cancelled by the subsequent order of 26‑3‑68 and, secondly, that the order dated 26‑3‑68 was itself illegal because the petitioner had a right to the arrears of salary on the basis of his pro forma promotions.

5. In support of the first argument reliance is placed on Mahboob Rabbani v. Government of West Pakistan (P L D 1963 Lah. 53) wherein it was held that if an order passed by the Government had already come into operation it could not be withdrawn or cancelled, subsequently.

6. Learned counsel for the respondent has, however, contended that the order dated 7‑8‑65 did not ever come into operation because the amount ordered to be paid under it was subject to verification by the pay fixation party of the Accountant General's Office and that the finance Department had advised against the payment of the amount. On the other hand, counsel for the petitioner contended that the amount payable to the petitioner, on the basis of the terms of the order dated 7‑8‑65 was duly calculated (at Rs. 11,671.78) and it was further decided to pay the amount from the contingencies item and the amount could not be paid immediately merely because it was not provided for in the budget. These circumstances according to the petitioner showed, that the order had become operative and could not, therefore, be recalled.

7. It is not necessary to decide as to whether the first argument raised on behalf of the petitioner is correct or not because in my opinion, the second argument must succeed. In P. W. No. 716/67 which has been heard along with this writ Petition It has been held that if a civil servant is deprived of serving on a higher post, for no fault of his own, but this occurs due to the fault or mistake of the Government and subsequently it is found that the civil servant was in fact entitled to serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own.

8. The result is that this writ petition must be accepted. The petitioner, is, therefore, entitled to payment of Rs. 11,671.78 minus the amount already paid towards arrears of salary. The respondent is therefore, directed to pay the arrears of salary in terms of the above finding. The petition succeeds but in the circumstances there shall be no order as to costs. K. B. A. Petition accepted.