' MUHAMMAD ISMAIL (MEMBER).---The appellant, Muhammad Ismail, A/XEN, B/R, NLC Headquarters, Rawalpindi, has preferred this appeal under section 4 of the Service Tribunals Act, 1973, against the order dated 3-10-1993, whereby he was allowed promotion in BPS-17 with effect from 27-5-1991 with presumptive seniority from 21-2-1986, alongwith the benefit of pay fixation but without arrears under FR-26(c).
2. The brief facts of the case are that the appellnt, while serving as Assistant Engineer (BPS-16), was approved alongwith others for promotion as A/XEN (BPS-17) with effect from 21-2-1986 vide Establishment Division's U.O. Dated 16-2-1986. Since the disciplinary proceedings were pending against the appellant his promotion orders were withheld but subsequently, when the proceedings concluded he was awarded the penalty of withholding of promotion for a period of two years. He challenged these orders before this Tribunal in Appeal No, 382(R) of 1987, which was accepted vide judgment dated 1-12-1991 with the following observations:- " That the appeal is allowed and the impugned order dated 5-5-1987 is set aside with the observation that the appellant shall be entitled to the consequential benefits he had been entitled to had he not been awarded the impugned punishment."
3. The appellant made an application for implementation of the above decision but it appears that the respondents had placed on record a copy of letter dated 3-10-1993 whereunder he had been allowed promotion to BPS-17 with effect from 27-5-1991, with presumptive seniority from 21-2-1986.
Since the appellant was given only the presumptive seniority with effect from 21-2-1986 and benefit of pay fixation without arrears, he filed another Appeal No,425 (R) of 1993 before this Tribunal which was disposed of with the following observations vide order dated 23--1-1994:- "The appellant had impugned in this appeal the order, dated 3rd October, 1993, whereby he has been declined payment of arrears and in fact, this has given the appellant a fresh cause of action.
The appellant has not filed any departmental appeal against this order and for the time being, this appeal is not competent in view of the provisions contained in section 4 (1) of the Service Tribunals Act, 1973. However, we dispose of this appeal with the observation that the appellant may first exhaust the departmental remedy by preferring a departmental appeal as provided under the rules and then come to the Tribunal for redressal of this remedy if so advised."
4. The appellant, in compliance with the above order of the Tribunal, submitted a departmental appeal on 25-1-1994 which remained unresponded and, after expiry of the statutory waiting period of 90 days, he has again approached this Tribunal with the present appeal filed on 5-54994 with the following prayer:- "It is, therefore, respectfully prayed that the appeal may kindly be accepted and the appellant may be ordered to be paid the arrears of pay w.e.f, 16-2-1986, like his junior Hashmat Ali and the impugned order may be ordered to be revised accordingly."
5. The learned counsel for the appellant has argued that the grant of presumptive seniority with the benefit of fixation of pay with effect from 21-2-1986 amounted to the appellant's pro forma promotion but he has been denied the arrears of pay. He contended that the appellant's case is covered by the Honourable Supreme Court's judgment reported in 1985 SCMR 1394 wherein it was held that the pro forma promotion is recognition of entitlement to be promoted from a date in the past. He pleaded that in view of the case-law relied on by him the appellant could not be deprived of pay to BPS-17 with effect from 21-2-1986 i.e, the date from which he had been given seniority and fixation of pay.
6. On the other hand, the main submission of the learned Standing Counsel is that the appellant was allowed presumptive seniority with effect from 21-2-1986 with benefit of pay fixation but without arrears under FR-26(c). Elaborating further he submitted that the appellant was not entitled to arrears of pay of BPS-17 post against which he had never worked.
7. We have heard the learned counsel for the parties and have also perused the record of the case.
It appears that the appellant has been made to suffer for no fault of his own. The grant of presumptive seniority with effect from 21-2-1986 alongwith the benefit of pay fixation without arrears, is indicative of the fact that the appellant's entitlement to promotion with effect from 21-2- 1986 has been accepted by the respondents but he has wrongly been deprived of pay of BPS-17 post from the said date. In support of this view we refer to PLD 1973 Lahore 42 wherein it has been held as under "If a civil servant is deprived of serving on a higher post, for no fault of his own, but this occurs due to the fact or mistake of the Government and subsequently it is found that the civil servant was in 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."
' The above view of the High Court is further supported by the decision of the Honourable Supreme Court in the case reported in 1985 SCMR 1394 and the relevant paragraph of the judgment reads as under:-- "(7) The law on the point has already been laid down by this Court in the Province of Punjab v. Syed Muhammad Ashraf (1973 SCMR 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 cases a civil servant, who for no fault of his own is wrongly prevented from rendering service to the State in the higher post of 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 Balochistan has from the 17th of May, 1981 recognised this principle and given effect to it. Clause (ii) of the circular prescribed 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 ifself implies recognition of entitlement to be promoted from a date in the past."
8. In view of the above authoritative pronouncements of the superior Courts, we accept this appeal and direct the respondents to pay the arrears of salary and allowances to the appellant with effect from 21-2-1986.
9. No order as to costs.
10. Parties to be informed accordingly.