The petitioners are Ex-servicemen and after the termination of the Second World War joined the Ministerial Services under the Punjab Government. They submitted representations to the Government claiming benefits under the Punjab Government Services (War) Amendment Rules, 1943. Their claims were partially acknowledged and they were given all benefits for their war service, except seniority. The reasons for not granting them benefit of seniority were stated to be :-
(a) They were not appointed against "reserved vacancies".
(b) They were appointed after 1-1-46, and
(c) The rules of 1943, which were being relied upon, stood modified by the Punjab Government Services (War) Amendment Rules (West Pakistan Repeal) Ordinance XLI of 1963.
2. The petitioners filed the present writ petition wherein it was urged that the Ordinance (XLI of 1963) was not a valid piece of legislation and hence rule 6 of the Rules of 1943, under which they were eligible to the grant of seniority, was liable to be acted upon according to its original terms in disregard of the modification made in it by Ordinance XLI of 1963 and claimed consequential benefits, eligible to them, on account of the strict compliance with the provisions of rule 6 above-- mentioned.
3. During the pendency of the writ petition in this Court the matter was reconsidered by the respondent and S. Mazhar Hussain Rizvi, Emanual and R. D. Kaney, petitioners Nos. 1, 4 and 3 respectively were found to have been deemed to be appointed against "reserved vacancies" and thus eligible to the benefit of seniority, on account of their war service in accordance with the provisions of the Punjab Government Services (War) Amendment Rules, 1943 read with the Punjab Government Service (War) Amendment Rules (West Pakistan Repeal) Ordinance, 1963. In view of the above decision fresh orders were passed on 27-6-68 wherein the dates on which they would have been promoted to higher ranks, if their war service had been counted towards seniority from the very beginning, were indicated and the dates of pro forma promotion on that basis were also mentioned. Notwithstanding, it was decided that the said petitioners would not be entitled to arrears of pay as a result of the pro forma pro--motion because they did not actually perform the duties of the respective posts from the assumed dates of promotion. They were, however, held entitled to arrears of pay (representing the difference between the pay they were entitled to under these orders and the pay actually drawn by them) only for the actual periods of duty performed by them in all the posts.
4. The validity of the Punjab Government Services (War) Amendment Rules (West Pakistan Repeal)
Ordinance, 1963, was upheld by the Supreme Court in Muhammad Akhtar Hussain v. Government of West Pakistan (PLD 1970 SC 146), therefore, the contention that the amending Ordinance was not a valid piece of legislation has been abandoned and the learned counsel has frankly conceded that only those persons appointed to a "reserved vacancy" can be given credit for War Service under rule 6 of the rules. He has further submitted that is so far as the first three petitioners have been held to be persons appointed to "reserved vacancies" and given credit for their War Service, by the subsequent order passed by Government on 27-6-68, their grievances have been met subject to the rider that they ought to have been paid the full arrears of pay. Coming to the case of R. G. Gabriel (petitioner No. 2) who has been found not to have been appointed to a reserved vacancy, counsel states that permission to withdraw the petition on his behalf with permission to file a fresh petition be granted as the petitioner would like to satisfy himself whether the determination of the Provincial Government that he cannot be deemed to have been appointed against a "reserved vacancy" is correct. Petitioner No. 2 is allowed to withdraw from the petition, with permission to file a fresh petition if so advised.
5. The only question surviving for consideration, therefore, is that whether petitioners Nos. 1, 3 and 4 can be granted the full arrears of pay, as a result of pro forma promotion, despite the fact that they did not actually perform the duties of the respective posts from the assumed dates of promotion.
6. Raja Muhammad Muzafar, Advocate, learned counsel for the petitioners, has submitted that the petitioners were entitled to the full arrears of pay because they had been consistently agitating their claim for grant of seniority but the respondent was unjustifiably refusing to grant it, although they were entitled to its benefit, as ultimately found by the respondent Government itself. In these circumstances the petitioners have not been able to perform the duties of the higher posts from the dates from which they were entitled to hold them for no fault of theirs Hence the respondent cannot plead its default in its own favour. In support of his submission counsel has drawn my attention to the pronouncement of the Supreme Court in Pakistan v. Mrs. A. V. Issacs (PLD1970SC415), especially to the following observations occurring at page 438 of the report, namely :- "It seems to me that if the dismissal was wrongful, then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service,"
Counsel states that the petitioners have been held by the respondent to be eligible to the benefit of seniority, under the Rules of 1943, as amended by Ordinance 1963, and the dates on which they were eligible for promotion to the various higher posts on its basis have been worked out by the Government itself. It is submitted that the petitioners were prevented from holding the said posts on the due dates due to no fault of theirs. Consequently, being entitled to promotion on the dates specified by the competent authority there was no reason why they should not be given by way of consequential relief, the salary for the period that they were prevented from actually rendering service to the said posts.
7. Mr. Saeed-ur-Rehman Khan, Advocate, appearing for the respondent-Government states that the consistent practice followed by the Government has been that if a person is granted pro forma promotion he gets salary only if he actually performs the duties of the higher post and not otherwise. He has also drawn my attention to a decision, dated 4-12-62, of the Services and General Administration Department of the West Pakistan Government dealing with the question of how a Government servant is to be treated who was placed under suspension but subsequently acquitted honourably. The question that fell for decision and the decision taken may be quoted in extenso: " . . . . . A question arose whether a Government servant who was placed under suspension can, after honourable ac--quittal, be promoted retrospectively in a vacancy which occurred during his suspension and if so, whether he can be paid the salary of the higher post to which he is retrospectively promoted.
After careful consideration, Government have decided that if a Government servant would have been otherwise promoted but for suspension, then after honourable acquittal, he can be given pro forma promotion retrospectively against a vacancy which occurred during his suspension.
However, he cannot be given the pay of higher post retrospectively because pay of a higher post is given only when a Government servant actually works in the higher post."
He has further submitted that in this case the question involved in the case of the petitioners was in a state of flux and the matter remained under the active consideration of the Government for a long the and ultimately it was decided that the petitioners should be allowed the benefit of seniority, as well as the arrears of-pay, for the actual periods of the duty performed by them in the higher posts. In these circumstances the decision of the Government was quite fair and no exception to it could be taken.
8. It appears to me that exception could not be taken to the decision of the Services and General Administration Department dated 4-12-62, so also to the practice followed by the Government that higher salary should be granted for the period of duty I actually performed in the higher post so long as when the doctrine that salary payable to a Civil Servant was a bounty of a State ruled the field. However, this doctrine stands seriously affected by the decision of this Court in A. V. Issacs v.
Federation of Pakistan (PLD 1967 Lah 159) and upheld on appeal by the Supreme Court in Pakistan v. Mrs. A. V. Issacs. The highest Court in the country has now declared that if a person is kept out of service for a period of the, for no fault of his own and he is prevented from serving the State he is nevertheless entitles to the salary for the said period in the same manner as if he was actually rendering service. No doubt, this observation was made in the case of a Government servant who was dismissed and, therefore, kept completely out of service, but the principle enunciated above would appear to apply equally to the case of a servant who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled.
Consequently the distinction made by the respondent-Government in allowing the arrears of salary only for the period for which the petitioners actually performed duties in the higher post and disallowing arrears of salary for the remaining period runs counter to the enunciation of the law made by the Supreme Court of Pakistan. The result will be that the petitioners will be entitled to the full arrears of pay to which they were entitled under the orders of the respondent-Government granting pro forma promo--tions to them and not merely to the arrears of pay only for the actual periods of duty performed by them, in all the higher posts.
9. The upshot is that this writ petition succeeds, but there will be no order as to costs.