The petitioner is a member of the Ministerial Services who had rendered "War Service" during the Second World War. He submitted several representations to the Authorities claiming Seniority and other benefits under the rules relating to concession of war service to Ex-servicemen and eventually the following , order was passed, on 7-8-65 by the respondent--Government :- " Syed Muhammad Ashraf Shah, Senior Clerk O & M Section S&GAD West Pakistan Civil Secretariat, is hereby assigned seniority over Mr. Feroze-ud-Din in the cadre of junior clerks in the former Punjab Civil Secretariat in consideration of his. War service rendered during the period from 16- 91942 to 31-3-1946 under the Army (Indian Signal Corps). The date of his appointment as junior clerk in the former Punjab Civil Secretariat shall be assumed as the 22nd October 1944. His name should, therefore, be presumed to have appeared at serial No. 181 among the junior clerks in the gradation list of Establishment of the Punjab Civil Secretariat as it stood on the 1-8-45 i.e., in place of Mr. Feroze-ud-Din, whose name should consequently appear next to that of Mr. Muhammad Ashraf Shah as serial No. 182 and the serial of the rest of the numbers following altered correspondingly.
PART II In consequence of the above fixation of the presumptive seniority of Syed Muhammad Ashraf Shah in the grade of junior clerks his date of promotion to the post of senior clerk would be assumed as 12-9-47 the date on which Mr. S. Mushtaq Shah next Junior to him was so promoted.
PART III 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.
PART IV 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 and 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 Nras confirmed as senior clerk with effect froth 14-1055. 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 3-8-60 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 for a promotions etc. Allowed in Parts 11 and III of the order dated the 7th August 1965, 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 posts on the due dates. In support of the above submission, to-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 Mahbub Rabbani v. Government of West Pakistan (PLD 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 ft was further decided to pay tae 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 cons 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 sub-sequently it is found that the civil servant was to 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.