1999 PLP 206 (SCMR)

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment dated 15-8-1996 of the learned Federal Service Tribunal (hereinafter referred to as the Tribunal) passed in Appeal No. 136(L) of 1996, filed by the appellant against the refusal to pay the difference of emoluments between B. P. S., 17 and B. P. S. - 18 with effect from 22-3-1988, when his juniors were promoted to B. P. S. - 18, dismissing the same. Leave to appeal was granted to consider, whether the appellant was entitled to the emoluments attached to the post of Executive Engineer in B.P.S.48 from the date on which he resumed duty, or was it to be effective from 22-3-1988, the date on which the promotion of the appellant was made effective.

2. The brief facts are that the appellant joined as Assistant Executive Engineer on 1-2-1983. He was sent on secondment abroad to Saudi Arabia on 6-1-1987, and was repatriated on. 6-1-1990., During his secondment to Saudi Arabia, his juniors were promoted on 22-3-1988 and 13-12-1989. The appellant after returning from Saudi Arabia, made representation for his promotion as Executive Engineer B.P.S.-18 with effect from 22-3-1988 when juniors to him were promoted, which ensued filing of an earlier appeal before the Tribunal. Eventually by order dated 4-1-1996, the appellant was granted above B.P.S.-18 with effect from 22-3-1988, but he was allowed emoluments of higher post only from the date of actual assumption of duty, which was 22-5-1996. The above matter was agitated by the appellant before the department through a departmental representation, and then before the Tribunal through the above appeal,, which was dismissed. After that he filed a petition for leave to appeal which was granted by this Court to consider the above question.

3. In support of the above appeal Hafiz Tariq Nasim, learned counsel for the appellant, has vehemently contended that since the appellant was promoted to B.P.S..-18 with effect from 22-3-1988, there was no justifiable reason to deny him the emoluments attached to the above pay scale. Reliance has been placed by him on the following judgments of this Couit: (i) The Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCMR 304). (ii) Syed Sultan Shah v. Government of Balochistan and another (1985 SCMR 1394). (iii) Mrs. Aqeela Asghar Ali and others v.'Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118). (iv) Federation of Pakistan v. M. SirJees Nagi (1996 SCMR 1334).

4. On the other hand, Maulvi Anwarul Ha'q, learned Deputy Attorney General, has urged that the appellant had gone on secondment on his own volition on the condition that he would not claim promotion or seniority during the period of secondment. His further submission was that as the appellant had not discharged the duty as an incumbent of B.P.S.18, he cannot claim the same for the period prior to 6-1-1990, when he resumed the duty after returning from Saudi Arabia. His further submission was that in any case the appellant could not have claimed emoluments of B.P.S.18 till the time he passed the departmental examination in February, 1993 and then cleared in December, 1995. 5.- The above-cited reports support the contention of Hafiz Tariq Nasim, particularly the case of Mrs. Aqeela Asghar Ali and Pthers v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118) (supra), in which this Court had held that civil servant, if granted pro forma promotion, would be entitled to claim pay for the period he was improperly denied his legal right of promotion. The relevant portion of the judgment reads as follows: "In the case of pro forma promotion, the question is entirely different. Pro forma promotions are of two kinds. One has been taken care of by instructions appearing at pages 208 to 211 of ESTACODE (1989 Edition). That type of pro forma promotion is not involved in the present case. The other specie of pro forma promotion is the one regulated by instructions more particularly by those dated 16th of October, 1973 which issued after the decision of the Supreme Court holding that pro forma promotion from a date in retrospect entities the civil servant to claim pay for the period that he was improperly denied his legal right of promotion. The relevant portions of these instructions are reproduced hereunder in order to emphasise the legal aspect of such a promotion and how far such a promotion can be allowed to interfere with the vested right of seniority of others adversely affected by it.

6. We may observe that the entitlement of a civil servant to emoluments of a post of higher grade is founded on the assumption that he was ready and willing to perform duties and functions of that post, but was illegally denied the same.. If a civil servant is not physically present in the country because of his being on secondment abroad, he cannot claim emoluments of a higher grade for the period during which he was not available in Pakistan, as he was not in a position, on his own volition, to discharge the duties and functions of the above post. In the instant case admittedly the appellant was sent on secondment on his own volition on 6-1-1987 and he returned to Pakistan and joined the department on 6-1-1990. In this view of the matter, on no principle the appellant can claim emoluments of BPS- 18 for the period prior to 6-1-1990.

7. As regards the submission of Maulvi Anwarul Haq, learned Deputy Attorney-General, that the appellant had not passed the requisite departmental examination for being entitled to draw the salary of B.P.S.-18, it has been pointed out by Hafiz Tariq Naseem, learned counsel, that two juniors to the. appellant, namely, Shahnawaz Bhatti and Ghularn Haider who were promoted and granted B.P.S.-18, had also not passed departmental examination, for the reason that no examination was held during the relevant period. Maulvi Anwarul Haq is unable to deny the above factual position, hence his above contention is not tenable.

8. The upshot of the above discussion is that the appeal is allowed. The judgment of the Tribunal is set aside to the extent that it is held that the appellant will be entitled to the difference of emoluments between B.P.S-17 and B.P.,S.-18 for the period commencing from 6-1-1990 up to the date when he started getting the emoluments of B.P.S.18. However, there will be no order as to costs. M.B.A./R-37/S Order accordingly