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Civil Appeal No. 243 of 1978, decided on 20th March, 1985.

(On appeal from the judgment and order of the Baluchistan Service Tribunal, Quetta, dated 18‑8‑1977).

‑‑‑Art. 212(3)‑‑Leave granted to examine whether after granting pro forma promotion to appellant, he was not wrongfully denied pay for period of pro forma promotion and whether Service Tribunal had not correctly decided his entitlement to arrears of pay for that period.

‑‑‑Ss.9 & 17‑‑Civil service‑‑Fundamental Rule, 17‑‑Pro forma promotion‑ Arrears of pay‑‑Entitlement for‑‑Appellant subjected to disciplinary proceedings resulting in punishment‑‑Successfully challenged in Civil Court‑‑Restored to office, awarded pro forma promotion but denied arrears of pay under provision of Fundamental Rule 17‑‑Order impugned‑‑Held: Fact of pro forma promotion itself implies recognition of entitlement to be promoted from a date in post‑‑Civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in higher post to which he is admittedly entitled, should be given salary for higher post‑‑Appellant, held, was entitled to salary in spite of provision of Fundamental Rule‑17. ‑‑[Civil service],

Postmaster ‑ General v. Muhammad Hasham P L D 1978 S C 61 and The Province of the Punjab v. Syed Muhammad Ashraf 1973 S CMR 304 ref.

Muhammad Bilal, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Munnawar Ahmad Mirza, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing: 20th March, 1985.

Leave to appeal was granted under Article 212(3) of the Constitution to examine whether after granting pro forma promotion to the appellant as Tehsildar from 26‑10‑1968 the appellant was not wrongfully denied the pay of the post of the Tehsildar far the period of pro forma promotion and whether the Service Tribunal Baluchistan had not correctly decided his entitlement to arrears of pay for that period.

2. The appellant was, holding the post of Naib‑Tehsildar when he was subjected to disciplinary proceedings resulting in punishment awarded to him. He challenged it in the Civil Court and succeeded. Thereafter he was restored to office and his claim to pro forma promotion was also recognised in the following terms by Board of Revenue:‑

"In view of the facts narrated above and taking into consideration the advice of Services and General Admn: Deptt: the Member, Board of Revenue, Balochistan is pleased to order restoration of seniority to Mr. Sultan Shah as Tehsildar w.e.f. 26‑10‑1968 and place his name at S. No. 52‑A i.e. between the names of Messrs Mohabat Khan Jogazai and Abdur Rehman Shah in the tentative seniority List of Tehsidars as it stood on 28‑2‑1975. The above‑named Tehsildar will not be entitled for arrear of pay etc. as a result of this pro forma promotion under F.R. 17 11

3. It is the last sentence in the order of the Board of Revenue which aggrieved the appellant who appealed to the Baluchistan Service Tribunal. The Service Tribunal dismissed his claim observing as follows:‑--

"In view, of above facts so narrated I would say in the nutshell that as defined under rule 17 of F.R. the appellant would not be entitled to arrears of pay etc. from 26‑10‑1968 in his capacity as Tehsildar. For the convenience of parties it would be seen that the rule 17 say that unless any exceptions specifically made in these rules sub‑rule (2) an officer shall begin to draw the pay and allowances attached to his tenure of post from the date when he assumes the duties of that post.

In conclusion I would direct in my capacity as member of this Tribunal that appellant is not entitled to his claim under rule 17(i), Fundamental rule unless any exceptions specifically made in the rule/rules. I do not accept the claim on basis of above rule."

4. The learned counsel for the appellant contended that the order of pro forma promotion of the appellant was in fact a recognition of the assertion of the appellant that he was in all respects eligible for promotion and that he was wrongfully kept back and not promoted when he was due to be promoted. In such a situation after ordering pro forma promotion the appellant could not be denied the remuneration to which he was otherwise entitled. He has relied on Postmaster‑General v. Muhammad Hasham P L D 1978 S C 61.

5. The learned Advocate‑General, Baluchistan, has relied in support of the judgment of Service Tribunal entirely on the provisions of Fundamental Rule 17.

6. Fundamental Rule 17 invoked by the respondent and upheld by the Service Tribunal provides as follows:‑---

"F.R. 17.‑‑(1) Subject to any exceptions specifically made in these rules and to the provisions of sub‑rule (2), and officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumed the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties.

(2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed."

Undoubtedly, this is the general law which must prevail in most of the ordinary cases. However, it cannot be invoked or pressed into service for justifying or partly justifying a wrongful act. The Courts will not permit the denial of the benefit, if it is found or is traceable to the wrongful act of the party itself. The effect of promotion is to recognize the fact that the official concerned was entitled to be promoted from a date in the past, that he was wrongfully deprived of it that the wrong must be redressed by giving him pro forma promotion and his due seniority a date in the past. The logical consequence of it is that all the ancillary benefits which follow the ante‑dating of the promotion and seniority must be allowed to the official concerned unless, of course, there appears ex officio some justification for denying him such a benefit.

The impugned order passed by the Board of Revenue does not disclose any such justification or basis for depriving him of his remuneration in the higher grade. None is discernible from the record either.

7. The law on the point has already been laid down by this Court in The Province of Punjab v. Syed Muhammad Ashraf 1973 S C M R 304 and other connected cases in which pro forma promotion had been ordered and the pay was being denied. The argument advanced by the Provincial Government in those cases was also that the officials concerned were not entitled to arrears of salary in the grade against which they had never worked. This Court approved the view taken by the High Court that in case a civil 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 he should be given salary for the higher post. The decision fully governs the case in hand and the appellant was entitled to the salary in spite of Fundamental Rule 17.

8. It has been brought to our notice that the Government of Baluchistan has from the 17th of May, 1981 recognised this principle and given effect to it. Clause (ii) of the circular prescribes that when an official was under suspension or facing departmental enquiry on serious charges and his promotion had been deferred, eventually was exonerated of the charges and was given promotion from the date on which he would have otherwise been promoted, the Government servant may be granted pro forma promotion with financial benefit provided it could be held on the basis of his service record and performance that he would have been promoted on the due date but of the circumstances he was incorrectly treated as junior or was facing a departmental enquiry or was overlooked. The fact of pro forma promotion itself implies recognition of entitlement to be promoted from a date in the past.

9. In the circumstances and for the reasons we accept the appeal set aside the judgment of the Service Tribunal and allow the claim of the appellant to arrears of pay from the date of his pro forma promotion as Tehsildar. No order as to costs.

M. I. Appeal accepted.

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