' ROSHAN ALI MANGI (MEMBER).---Appellant, Mr. Muhammad Yousuf was working as Assistant Director (B-17) in the Intelligence Bureau when he was transferred to Ministry of Food and Agriculture under section 10 of the Civil Servants Act, 1973, vide Notification, dated 5-3-1989. The cases for promotion to B-18 were being considered by the Intelligence Bureau and accordingly the appellant was asked to give his option for repatriation which he did vide letter, dated 11-6-1991. In the meantime, one of his junior namely Mr. Makki was promoted to B-18 with effect from 28-5-1992 but the case of the appellant was deferred without any reason. The appellant came back to his parent department on 15-6-1992 and he was promoted to B-18 vide Establishment Division Notification, dated 20-10-1993. He made representation for ante-dated promotion with effect from 28-5-1992, and allowed the benefit of fixation of pay and accrual of increments but without arrears in B-18 for the period 28-5-1992 to 22-10-1993. Being aggrieved, the appellant filed departmental appeal to the Prime Minister on 30-10-1994, which remained unresponded, and after the expiry of 90 days waiting period, he preferred this appeal before the Tribunal.
2. Notices were sent to the respondents 1 to 3 and none of them has filed comments. There is also no appearance on their behalf. Under the rules, they were required to file objections 7 days before the date of regular hearing, which they failed to do in spite of the fact that they had sufficient time to comply with the provisions of law. As such, we have no alternative but to proceed ex parte against the respondents under Rule 19(2) of the Service Tribunal (Procedure) Rules, 1974 and proceed the appeal on merits.
3. The appellant has been given ante-dated promotion from the date when his junior was promoted and so also the benefit of fixation of pay and accrual of increments in B-18 for the period 28-5-1992 to 22-10-1993 but without arrears under the provisions of F.R. 26(c), and the relevant provisions read as under: "F.R.
26. The following provisions prescribe the conditions on which service counts for increments in a time-scale if a Government servant, while officiating in a post or holding a temporary post on a time-scale of pay, is appointed to officiate in another post or to hold another temporary post which does not carry less pay than the pay of his original post, his officiating or temporary service in that post shall, if he is re-appointed to his original post, count for increments in the time scale applicable to the original post. The period of officiation service in the other post to which the Government servant is appointed in an officiating or temporary capacity, which counts for increments in the original post, is, however, restricted to the period during which the Government servant would have officiated in the original post but for his appointment to the other post. This clause applies also to a Government servant who was not actually officiating in the original post at the time of his appointment to the other post, but who would have so officiated had he not been appointed to the other post.
(a) xx xx"
' We are sorry, we cannot subcribe to the view of the respondents that under F.R. 26(c) the appellant is not entitled to the benefit of arrears, whereas he had been given the benefit of pay and increments for the purpose of fixation of his pay, because the admitted position is that it, was not the fault of appellant that he was ignored or deferred for promotion, and the appellant Cannot be deprived of this benefit on the ground that he did not physically work on that post. The Hon'ble Supreme Court in the case reported in PLD 1991 SC 1118 (Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others), wherein it has been held that in such circumstances a civil servant was entitled to claim pay for the period that he was improperly denied his legal right of promotion. Therefore, we see no reason that when the appellant has been granted ante-dated promotion, pay for the purpose of fixation, and increments etc., how he can be denied the benefit of arrears. We accept the appeal and direct the respondents to pay the arrears for the period from 28-5-1992 to 22-10-1993, to the appellant. No order is made for costs.
Appeal allowed.