' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of the case are that the appellant was appointed as Medical Officer (BPS-17) on ad hoc basis on 18-4-1978 and on clearance by the Federal Public Service Commission, his appointment was regularised with effect from 22-5-1978.
While he was serving in the Federal Government Services Hospital, he was selected for appointment as Medical Officer in Jeddah Dispensary and he was relieved from his duties with effect from 29-5-1985, vide order dated 7-7-1985. The appellant took up his assignment at Jeddah on 8-6-1985 and was designated as 3rd Secretary vide letter of appointment dated 13-5-1985. The appellant was promoted to BPS-18 against 40% quota vide Notification dated 28-5-1989 with effect from 20-5-1989 and the Ministry of Foreign Affairs accordingly granted the appellant status of 2nd Secretary vide their letter dated 11-10-1989. The appellant relinquished the charge at Jeddah on 27- 10-1990. He proceeded on three months leave and on return back resumed his duty at Federal Government Services Hospital on 2-2-1991. In the meantime the batchmates of the appellant who were junior to him were promoted to BPS-18 with effect from 26-7-1987 and subsequently the appellant was also promoted to BPS-18 vide Notification dated 31-5-1990 with effect from 26-7- 1987. The date from which his juniors were given promotion, but his promotion was without back benefits. The appellant made a representation on 10-1-1991 against the denial of payment of arrears. The Ministry of Health vide their letter dated 4-3-1992 informed the appellant that the Ministry of Finance had agreed to ante-date his promotion in BPS-18 to 26-7-1987 with the benefit of fixation of pay but without payment of arrears. The appellant made a departmental representation on 7-3-1992 for payment of arrears of pay and allowance etc. The Ministry of Health did not agree to the grant of payment of arrears and informed the appellant vide their letter dated 12-5-1993 addressed to the Medical Superintendent, Federal Government Service Hospital, which was communicated to the appellant on 16-5-1993. He then preferred this appeal.
2: The learned counsel for the appellant, Mr. Shah Abdur Rashid, argued that the case of the appellant for promotion was deferred due to no fault of his and thereafter he was granted promotion to BPS-18 retrospectively with seniority and denial of payment of arrears was not justified. He has relied on 1973 SCM R 304; 1985 SCM R 1394 and 1993 PLC (C.S.) 1017.
3. At the time of hearing, Mr. Zakaullah Jan, Section Officer appeared for the Establishment Division and Mrs. Farzana Shaheen, Section Officer on behalf of the Finance Division. Mr. Zakaullah Jan, submitted that in this case the main respondent is the Finance Division and the Establishment Division is only a pro forma party. Mrs. Farzana Shaheen requested for adjournment to file comments. She was allowed time and comments were filed on 4-11-1993. Their contention is that payment of arrears have been denied on the ground that the appellant had not physically taken over the charge of Grade-18 post as required under FR 26(c).
4. The appellant is senior and he had rightly been given antedation promotion to B-18 with seniority and fixation of pay, from that date. The contention of the respondent Finance Division is that since the appellant was not physically available here, to take the charge of the post, and that selection grade is not a promotion, has no basis, as the appellant under orders of the Government was deputed to Jeddah and not at his own volition. Furthermore, in the case reported in 1991 SCM R 696 (Government of the Punjab v. Muhammad Awais Shahid and others), the Supreme Court has held that change of grade or scale of pay amounts to promotion, and as such the appellant cannot be denied the benefit of payment of arrears for the period in question. The appellant has been granted ante-dated promotion with the benefit of fixation of pay in B-18 which clearly recognises his eligibility and entitlement to get the benefit of a higher post and the denial of payment of arrears is without sound reason. There is no gap in his service. His case was deferred for no fault of the appellant. He was not superseded. There are several authorities on this point and we only refer to 1985 SCM R 1394 wherein it has been held that when a civil servant is granted pro forma promotion, he is entitled to the monetary benefits also. We, therefore, allow the appeal and direct that the appellant be paid the payment of arrears of B-18 for the period from 26-7-1987 to 19-5- 1989.