MUHAMMAD AKRAM and others vs CHIEF EXECUTIVE and another
This matter arises from petitions seeking leave to appeal against the judgment of the Service Tribunal, which dismissed the petitioners' appeals regarding the withdrawal of their promotions and reversion to their substantive posts. The petitioners were initially promoted to the posts of O.T. Assistants, which rules mandated were to be filled solely through direct recruitment. Upon discovering that these promotional appointments were violative of the rules and void ab initio, the Competent Authority withdrew the promotion orders, reverted the petitioners to their substantive lower posts, and initially ordered the recovery of the higher pay drawn, though the Service Tribunal later waived the recovery. The core legal question is whether the withdrawal of promotions made contrary to recruitment rules constitutes an unlawful reduction in rank or a correction of void orders. The Supreme Court held that since the posts were exclusively for direct recruitment, the promotions were void ab initio and the petitioners never legally held those posts, meaning no reduction in rank occurred. The petitions were dismissed and leave to appeal was refused.
- Whether promotion to a post meant exclusively for direct recruitment is void ab initio?
- Does the withdrawal of an unlawful promotion and reversion to a substantive post constitute a reduction in rank as a penalty?
- Is a civil servant entitled to retain the pay of a higher post for duties performed during an irregular promotion when recovery is waived?
' MUNIR A. SHEIKH, J.---By this common judgment, we, propose to decide the titled petitons.
Involving identical questions of law and facts.
2. The petitioners were promoted to the posts of O.T. Assistants though the said posts according to the rules, were to be fulfilled through direct recruitment. On coming to know that the appointments through promotion of the petitioners against the said posts were violative of law and the rules, the Competent Authority withdrew those orders and petitioners were asked to perform functions on the lower posts from which they were promoted which were their substantive appointments.
' Alongwith this, an order was also passed for the recovery of the pay which the petitioners had been drawing against the promoted posts. They filed departmental representations against this order but having failed to receive any response, filed appeals before the Service Tribunal which have been dismissed through the impugned judgment dated 23-5-2002 against which leave is sought.
3. Learned counsel for the petitioner has not been able to satisfy as that the posts against which the petitioners were appointed through. Promotion were promotion posts whereas it has been concurrently held by all the Authorities as a matter of fact that the said posts under the rules were to be filled by direct recruitment, therefore, it was not a case of reduction in rank as penalty as it being argued by the learned counsel but a case where appointments through promotion were void, ab initio, therefore, the petitioners shall be deemed to have never been promoted.
4. The Service Tribunal has done justice in these cases by directing that recovery of difference of pay which the petitioners had drawn against the promoted posts shall not be made, for even otherwise, a civil servant who had performed functions against higher post, was held entitled to the pay of the said post during the said period.
5. No question of law of public importance is involved in this case. The impugned judgment does not suffer from any illegality, therefore, these petitions are dismissed and leave refused.