Imtiaz Ahmad Khan, Member. Vide 'instant appeals; the appellants have assailed the impugned order 07.05.2018 rejecting their, representations for grant of arrears on account of their proforma promotion w.e.f 27.11.2014.
2. Briefly stated, facts of the case are that in compliance of FST judgment dated 09.12.2016 (Appeal Nos. 113, 114 & 144(L) CS/2011) the respondent department granted proforma promotion to the appellants vide order dated 22.02.2018 but did not pay the arrears for the post of Budget and Accounts Officer and the representations filed by them were rejected, hence these appeals.
3. Vide the memo. of appeals the learned counsel for the appellant has inter alia contended:--
(a) that the FR-17 is curative and beneficial aiming to remove the general miseries and agonies and the Honourable Supreme Court of Pakistan in the case reported 2016 SCMR 646 has held: "As a general rule, Courts look with favour upon remedial and curative enactments, which were beneficial in nature and were interpreted in the context of the evil to be cured and the mischief to be remedied,"
(b) that in terms of Article 189 of the Constitution of Pakistan 1973, the judgments declaring a law are binding upon all the organs of the State. Admittedly, WAPDA falls within the definition of "civil savants" are governed by the law framed by the Federal Legislature. In the case reported as PLD 1990 SC 666. it was held that Fundamental Rules have statutory existence to the touchstone of Section 25 of Civil Servants Act, 1973 and while denying the lawful claim of the appellants no reasoning has been assigned by the appellate authority which is against the spirit of law reported as PLD 2017 Islamabad 19.
(c) that the Honourable Supreme Court of Pakistan in the case reported PLD 1991 SC 1118 has held:- "That pro forma promotion from a date in retrospect would entitle civil servant to claim pay of the period that he was improperly denied his legal right of promotion."
(d) it is a settle principle of law that the executive action cannot nullify the legal mandate and judgments of the Courts. Reliance is placed upon the judgment of Honourable Supreme Court of Pakistan in the case reported as PLD 1969 SC 430. In the present case the department has not executed the applicable legal provisions to the disadvantage of the appellants without realizing the fact that respondents have no independent power except conferred by law.
(e) that in FST in identical cases titled Liaqat Ali vs WAPDA (Appeal No. 299(L)CS/2000 decided on 09.02.2004) and Fazal-e-Subhan vs. WAPDA (Appeal No. 205(P)CS/2003 decided on 26.04.2007) has granted arrears to the appellants from the sale of their proforma promotion.
In view of the above submission, the learned counsel for the appellants has prayed for the acceptance of the appeals by setting aside the impugned order dated 07.05.2015 and for release of arrears of Pay and Allowances admissible to the post of Budget & Accounts Officer from the date of their proforma promotion i.e. 27.11.2014.
4. The learned counsel for the respondent department on the other hand has resisted the appeals primarily on the ground that WAPDA has not been impleaded as party in the instant appeals hence are the appeals are not maintainable. On merits, the learned counsel for the respondents has contended that the department has rightly denied the arrears to the appellants on the basis of O.M. dated 13.04.1987 which stipulates that"-- ".......the concerned employees will be entitled to benefit of re-fixation of pay on account of revision of seniority by the competent authority from a back date but would not be entitled to arrears of pay and allowances of the higher pay."
Learned counsel for the respondents has further pointed out that FR-17 does not apply on the employees of WAPDA as WAPDA has its own Rules and Regulations. In view of the aforesaid arguments the respondent department has requested for dismissal of the appeals being misconceived/ devoid of any merits.
5. We have carefully gone through the case record and considered the arguments advanced by the learned counsel for both the parties. The admitted position is that in compliance with judgment of this Tribunal judgment dated 09.12.2016 in Appeal Nos. 113, 114 & 144(L) CS/2011 the appellants were granted proforma promotion as Budget & Accounts Officer vide order dated 22.02.2018. The above said order, however stipulated that the officers granted proforma promotion as Budget & Accounts Officer will be entitled to the benefits of refixation of pay form back date but would not be entitled to the arrears and allowances of the higher post in terms of Office Memorandum No. AD (E.I.B) 07012/24021-980 dated 13 04.1987.
6. The respondents' contention regarding none maintainability of the appeals on the ground that WAPDA has not been impleaded as party in the instant appeals is not found tenable. Reliance is placed on 2017 CLC 495 wherein it has been held that plaintiff cannot be denied relief on the ground of misjoinder or non-joinder of a party. "The duty of the Court was to do justice and not to knockout the parties on technical grounds". It would be relevant to point out that Additional Director General Finance (Admin & Regulations) WAPDA who passed the impugned order dated 07.05.2018 has been impleaded as necessary party (Respondent No. 1) in the instant appeals.
7. It would be pertinent to point out that in an identical Appeal No. 299(L)CS/2000 decided on 09.02.2004 the Tribunal accepted the appeal and directed the respondent department to pay arrears of pay/allowances to the appellant for the period in question. The above case was discussed by the department for filing or otherwise of the CPLA in the Honourable Supreme Court of Pakistan, however, the department decided not to file CPLA in view of the opinion of the Legal Advisor of WAPDA Mr. Justice (R) Dr. Munir Ahmad Mughal, dated 20.03.2004 which is reproduced below: "I have given due consideration to the whole matter and of the considered opinion that it is not a fit case for appeal to. Honourable Supreme Court of Pakistan for the reasons that there is a clear discrimination on the part of the department as one employee was given seniority who was junior to appellant and this was done without any fault of the appellant and the mistake was admitted by the department and later on rectified from the date he was entitled. So far as not actually working on higher post during the period in question is concerned it was also not due to any fault of the appellant but the fault of the department. The term "Proforma" was concocted in service diction as a legal term to meet such situation where a person had not actually and factually worked on a post and the law consider or deems it that he has worked. Still further, the question of limitation is irrelevant in this case as the fault was on the part of the department. The position of the department will be much embarrassed if we go further. The best course is to implement the order of FST without further-delay."
Since the respondent department did not file any CPLA, the above said judgment of the Tribunal dated 09.02.2004 has attained finality and has to be followed for the sake of consistency.
8. The sole question of determination before us is as to whether the appellants are entitled to arrears of pay and allowances. The respondent department has placed it reliance on O.M. dated 13.04.1987 in which it is specifically mentioned that an employee of WAPDA will be entitled to benefits of refixation of pay on account of revision of seniority by the competent authority from a back date but would not be entitled to arrears of pay and allowances of the higher post. It is argued by the learned counsel for the respondents that this Office Memo. has a statutory force as it was issue by WAPDA in exercise of power conferred on it by Section 18 of WAPDA Act, 1958. On the other hand the learned counsel for the appellants has argued that this office memo. is violative of the principles of natural justice and fair play. According to the learned counsel, the appellants were deprived of their promotion for no fault on their part and the respondents were not justified in protecting their own mistake by refusing payment of arrears of pay to them. In our view this circular is not very comprehensive. It does not cover cases in which seniority/ promotion is denied to an employee by an intentional or unintentional mistake on the part of administration. It covers cases in which the employer had himself contributed towards his delayed promotion. In such like case proforma promotion is granted on application. In cases, like the one before us, no such application is needed. The employer is c under a legal obligation to rectify his own mistake without waiting for any application from the aggrieved employee. The process has to be automatic. We accordingly hold that the respondents cannot be permitted to protect their won mistake by taking shelter behind this Circular. The present cases are of a very peculiar nature. The respondents cannot be allowed to benefit from their fault and the appellants cannot be made to suffer for no fault on their part.
9. The above discussion leads us to conclude that the impugned order dated 07.05.2018 is not sustainable in the eyes of law. We accordingly set aside the impugned order dated 07.05.2018 and direct the respondent department to pay the arrears to the appellants for the post of Budget & Accounts Officer w.e.f. 27.11.2014, the date of their proforma promotion i.e. 27.11.2014. The appeals are disposed of in the above terms.
10. No order as to costs. Parties be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.