' NOOR MUHAMMAD MAGSI (MEMBER).---The facts leading to this appeal are that the appellant was working as Lecturer (B-17) in the F.G. Degree College, Gilgit. Some Lecturers junior to him in B-17 were promoted as Assistant Professor (B-18) in the Education Department of Northern Area. On the appellant's representation for ante-dation of his promotion, he was given presumptive promotion as Assistant Professor (B-18) with effect from 15-6-1984, the date on which his juniors were promoted to that grade. Accordingly his pay was fixed and Salary Slip No, GAD/Edu/AR-22/91-92, dated 17-5-1992 was issued and he had also drawn the arrears. Strangely, however, on 24-5-1992, the Assistant Accountant-General, Gilgit, issued a telegram whereby the Salary Slip issued to the appellant fixing his pay in B-18 with effect from 15-6-1984, was cancelled and it was ordered that no payment should be made to him in pursuance of the said pay slip. He filed a departmental appeal against the said order and then came to this Tribunal in Appeal No,333-R/94, which came up for hearing on 25-10-1994. By its order, dated 25-10-1994, the Tribunal, however, directed the Secretary, KANA Division to decide the departmental appeal pending with that Division within thirty days, in accordance with law. It was also directed that no recovery shall be made from the appellant in the meantime.
2. In consequence of the above decision of the Federal Service Tribunal, the KANA Division, vide their O.M., dated 4th April, 1995, have turned down the appellant's request in view of Finance Division's O.M., dated 30th March, 1995 whereby arrears could not be allowed to the appellant under F.R.
26(c). Against this order, the appellant once again preferred this appeal before the Federal Service Tribunal on 3-5-1995.
3. We have heard the appellant who appeared in person and the Standing Counsel as well as Section Officer of the KANA Division, but nobody appeared on behalf of the Finance Division. The only question involved in this case is whether the appellant is entitled to the pay of the higher post, when cleared for pro forma promotion with effect from 15-6-1984. The case of the appellant is very simple. Admittedly, the appellant was given benefit of seniority and fixation of pay with accrual of increment in BPS-18 with effect from 15-6-1984 from which date his pay has also been fixed and he has also been granted increments but the only grievance of the appellant is that he has been deprived of the arrears. His pay was fixed by the A.G.P.R. Vide Pay Slip No, GAD/Edu/AR-22191-92, dated 17-5-1992 and he was also paid arrears but subsequently the pay slip allowing him arrears was withdrawn on 24-5-1992. The case of the appellant is similar and identical to the case of Mr. Muhammad Aftab Mahmood v. Secretary, Establishment Division reported in 1989 PLC (C.S.) 609, in which the appellant's appeal for monetary benefit of pay and allowances for higher grade from the date of promotion and fixation of pay was allowed and it was ordered that he was entitled to the arrears for the period of retrospective pro forma promotion. In that case reliance was also made on cases reported in 1985 SCMR 1394 and PLD 1986 SC 349 to reach the aforesaid conclusion by this Tribunal.
4. There appears to be no reason why the appellant, who has been given retrospective pro forma promotion with effect from 15-6-1984 should be deprived of the arrears for the intervening period.
Since his claim for promotion from 15-6-1984 was conceded by the Department by allowing him presumptive seniority with benefit of fixation of pay with accrual of increments in B-18 with effect from 15-6-1984, there is no reason for denying him the monetary benefits. This question also came under consideration of the Supreme Court of Pakistan in a case of Mrs. Aqeela Asghar Ali v. Miss Khalida Khatoon Malik and, others PLD 1991 SC 1118 wherein it was held that pro forma promotion from a date in retrospect would entitle civil servant to claim pay for the period that he was improperly denied his legal right of promotion. In the present case the claim of the appellant for arrears of pay with effect from 15-6-1984 could not be denied, as has been held in Syed Sultan Shah v. Government of Balochistan 1985 SCMR 1394 in which the appellant in that case was held entiteld to the arrears of pay in spite of provision of Fundamental Rule 17. We have closely studied the provisions of F.R. 26 but do not find that the same can deprive a civil servant from the arrears of pay after he has been given pro forma promotion, because the fact of pro forma promotion itself implies recognition of entitlement to be promoted from a date in past. Thus, a civil servant, who for no fault of his own is wrongly prevented from rendering service to the State in higher post to which he is admittedly entitled, must be paid salary of the said post.
5. In view of the above, the appeal is accepted and the appellant is held to be entitled to the arrears of pay also with effect from 15-6-1984 in accordance with salary slip issued to him vide No, GAD/Edu/AR-22/91-92, dated 17th May, 1992.
6. There will no order for costs, Parties be informed.