' MUHAMMAD AYUB KHAN (MEMBER).---Arguments have been heard and record perused.
2. The question for consideration involved in this appeal is as to whether financial benefits can be allowed in a case wherein seniority as well as promotion has been restored but without financial benefits. It is a case of pro forma promotion. Before discussion of the factual and legal aspects it is advisable to reproduce below the impugned order dated 30-5-1997:-- "Subject: RESTORATION OF SENIORITY AND PLACEMENT IN PAY GROUP IX.
(1) We are pleased to inform you that Management has restored your seniority in pay group VIII effective 18th August, 1982 without financial benefits.
(2) By virtue of having restored your seniority as stated above, you are placed in pay group IX with effect from 23rd August, 1995 without financial benefits. You will, however, receive the financial benefits of pay group IX with effect from 17th November, 1996.
(3) Letter showing fixation of your salary in PG IX shall follow."
' The Pakistan International Airlines Employees (Service and Discipline) Regulations, 1985, govern the terms and conditions of its employees inclusive of pay and allowances. Regulation 23 relates to pay and allowances. A scrutiny of this regulation does not cover the question under consideration.
However, there is no such bar to allow pay and allowances or fringe benefits with retrospective effect. The Regulation 23(1) to 23(10) is silent over the issue. Ante-dation of promotion or other fringe benefits is governed not by any specific rules and regulations but the same is governed by a case law developed due to frequent pronouncements of the superior Courts specially the Honourable Supreme Court of Pakistan and now such pronouncement has assumed the status of law and wherever considered appropriate is readily adhered to due to Article 189 of the Constitution of the Islamic Republic of Pakistan which reads:-- "Decision of Supreme 189. Any decision of the Court binding on other Supreme Court shall, to the Courts.Extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
3. The Respondent-Corporation has hotly contested the appeal and denied the averments made by the appellant in his appeal so much so that many preliminary objections have also been raised with respect to the maintainability etc. Of the appeal. Most of these objections are devoid of substance/law and have been raised for the sake of objections. However, at para. 4, relating to pro forma promotion, it has been stated that:-- "the appeal is liable to be dismissed in the ex post facto promotion (pro forma) being subjective assessm ent of an individual by the Competent Authority does not create a vested right for past financial benefits."
' Simultaneously it has also been averred at para. 5 of the comments that the appellant has got no right to file the appeal due to the fact that the relationship between P.I.A.C. And its employees, inclusive of the appellant, is governed by the law of "Master and Servant" in which case an aggrieved employee can sue for damages before a civil forum. It is not a case of reinstatement in service. It will not be out of place to state that Regulation 89 provides a right of appeal to the Service Tribunal by an aggrieved employee of the Corporation which reads:- "An employee aggrieved by an order of retirement or removal or any other order passed by the competent Authority may prefer an appeal to the Service Tribunal established under the Service Tribunals Act, 1973 (Act No,LXX of 1973)."
3-A. It is not for the first time that the question of pro forma promotion etc. Has arisen but such matters have earlier also cropped up and adequately considered and disposed of. There exist rich case-law on the subject.
4. Payment of pay and allowances was considered to be bounty of the State which is no longer a case these days for the reason that much water has flown under the bridge due to enactment of the Service Tribunals Act, 1973, on the one hand, creating a competent forum for redressal of the grievances of the civil servants, and, simultaneously, baring jurisdiction of the civil forums under Article 212 of the Constitution of the Islamic Republic of Pakistan and also due to insertion of section 2-A in the Service Tribunals Act, 1973, with effect from 10th June, 1997, enabling all the employees of the State Corporations/Statutory Bodies etc. And declaring them "civil servants" for the purposes of availing remedies relating to terms and conditions of their service. The most important factor in determination of these statutory rights is case-law developed/enunciated by the Honourable Supreme Court of Pakistan which get due authenticity/status of law under Article 189 of the Constitution. In other words, now every matter needs to be considered perfectly in accordance with the enactments/under the relevant law in light of the case-law enunciated by the Honourable Supreme Court of Pakistan. It is an age of awareness and facility of even a small nature when allowed to one person, is taken notice of by similar other aggrieved persons, who claim the same before the competent forums. The principle that payment of pay and allowances was considered to be bounty of the State, as and when it was in vogue and arrears of pay were to be paid during the period when the incumbent actually held the post but this doctrine stood seriously affected by the decision of the Lahore High Court in the case of A.V. Issacs. v. Federation of Pakistan (PLD 1967 Lah. 159) and upheld, on appeal, by the Honourable Supreme Court of Pakistan contained in PLD 1970 SC 415 wherein it was observed that:-- "if a person is kept out of service for a period of time, for no fault of his own, and he is prevented from serving the State he is nevertheless entitled to the salary for the said period in the same manner as if he was actually rendering service."
' While following the said decision the Honourable Lahore High Court in the case reported as PLD 1973 Lah. 56 ruled:-- "Consequently the distinction made by the Respondent-Government in allowing the arrears of salary only for the period for which the petitioners actually performed duties in the higher post and disallowing arrears of salary for the remaining period runs counter to the enunciation of the law made by the Supreme Court of Pakistan.
' The result will be that petitioners will be entitled to the full arrears of pay to which they were entitled under the orders of the Respondent-Government granting pro forma promotion to them and not merely to the arrears of pay only for the actual periods of duty performed by them, in all the higher posts."
' In 1973 SCMR 304 it was held by the Honourable Supreme Court of Pakistan that a civil servant when for no fault of his own was wrongly prevented from rendering service to the State in higher post to which he was admittedly entitled, should be given arrears of pay of the higher post from the assumed date of appointment. In other words, the pro forma promotion was allowed while the earlier view for payment of pay against the higher post was from the date of assumption of the charge of the higher post but this judgment and the earlier one i,e, PLD 1973 Lah. 56 had exposed the hollowness of the theory regarding the payment of pay and allowances as bounty of the State.
Similarly in 1990 SCMR 1692, authored by Mr. Justice Shafiur Rahman, then adorning the Supreme Court of Pakistran, had observed:-- "We find that on the findings of the Tribunal the respondent's case was handled perversely and mala fide in a manner to deprive him of N.P.S. 19 though his junior was allowed. On this finding of fact we would rather allow the principle of next below rule to be applied to the case of the appellant and grant him the entitlement of N.P.S. 19 pay as from 7th of April, 1979 till his junior enjoyed it or the respondent himself retired from service. The Government having itself granted him the benefit from 1-4-1979 to 13-11-1979, he will be further entitled to the same benefits as from 14-11- 1979 till the date of his retirement or as long as his junior enjoyed it, whichever happened earlier."
' In 1993 PLC (CS)-FST 1057 while placing reliance on the earlier judgments contained in 1985 SCMR 1394 and PLD 1973 Lah. 56, it was held by the then Chairman of this Tribunal, Mr. Justice (Retd.) Syed Ally Madad Shah, that:- "Where a civil servant prevented from drawing pay consequent to an order of dismissal or removal from service or reduction in rank, will be entitled, on setting aside of that order, to such arrears of pay as the authority setting aside such order may determine, the appellant, who was denied promotion to higher post on account of late determination of his seniority and since his seniority was restored and he was allowed benefit of fixation of pay with increments for the intervening period, should not have been denied the benefit of arrears of pay and increments for the period he would have been entitled to consideration for promotion and earned promotion as claimed by him.
The appellant's case, therefore, falls under the dictum laid down by the Supreme Court of Pakistan in the case of Syed Sultan Shah v. Government of Baluchistan, reported in 1985 SCMR 1394, that a civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in higher post to which he is admittedly entitled, should be given salary for higher post and the civil servant was entitled to salary in spite of provision of FR-17."
' Mr. Muhammad Akhtar, Solicitor, Ministry of Law and Justice Division, (1998 PLC (CS) FST 980) was allowed, pro forma promotion in B-20 from the date when the post was vacated by his predecessor with effect from 1-7-1991 as no further extension was granted to him. In this case, relying on the judgments reported in 1973 SCMR 304, 1985 SCMR 1158 and 1993 PLC (CS) 1404, it was held that when a civil servant is prevented for no fault of his to work on a higher post he will be entitled to ante-dated promotion with retrospective effect. In 1998 SCMR 2237 it was held by the Honourable Supreme Court of Pakistan that:-- "after conversion of supersession into deferment the appellant's promotion may be strictly reconsidered on merits regarding antedation of his promotion alongwith other officers who were considered for promotion in February, 1995.
' In the judgment reported in PLD 1991 SC 1118, which is a record judgment and wherein all the relevant factors have been discussed in minutest details by Honourable Mr. Justice Shafiur Rahman, by observing that:-- "There are three things to be seen while considering a case of promotion:-- ' First was the rule of promotion. Was it of selection or of senioritycum-fitness or of seniority alone?
' The second was where the promotion was to take place by senioritycum-fitness, the question would necessarily be assignment of the correct seniority and proceedings to determine the entitlement of promotion on its basis.The third question necessarily would be of fitness for promotion.
' The first two questions, namely, the principle of promotion and the assignment of proper seniority for consideration for promotion were matters which did not stand excluded from the jurisdiction of the Service Tribunal because they did not involve the question of fitness which had been expressly reserved for the departmental authority and outside the jurisdiction of the Tribunal. The first two questions related to law and its application to the civil servants awaiting promotion."
' It was also observed that:-- "Pro forma promotion from a date in retrospect entitles the civil servant to claim pay for the period that he was improperly denied his legal right of promotion."
' Last but not the least in the series of judgments on the subject is contained in 1998 SCMR 736 wherein the Honourable Supreme Court of Pakistan has ruled that ante-dation of promotion etc. is legal even after retirement of an incumbent from service with all back benefits and this is the latest judgment Ain the series of nature. What is pro forma promotion has not been defined in any rule or regulation. However, it is a defective promotion wherein an incumbent not for any default on his part is denied promotion, inclusive of pendency of departmental proceedings, but subsequently if he is considered and found fit in all respects, he is allowed pro forma promotion, seniority etc. With all back benefits for no fault on his part which perfectly is in accordance with the principle of natural justice/good governance. In most of the cases, as per experience, indifferent approach on the part of departmental authorities, multifarious activities and ever increasing volume of work cause frequently delays for which a civil servant should not suffer and as such the case-law pursuant to consistent pronouncements of the Honourable Supreme Court of Pakistan have been developed which needs to be followed having full protection of law under Article 189 of the Constitution of the Islamic Republic of Pakistan and any deviation therefrom renders the authority concerned liable to legal and disciplinary action.
5. A perusal of the impugned order to repeat again, shows that the appellant has been allowed seniority as well as higher Pay Group but simultaneously he stands bereft of the financial benefits which does not stand to reason for the reason that theoretically the facility was extended to him but practically he was deprived of its benefit without which the benefit becomes meaningless.
Theory and practice must go together whereas in the instant appeal theoretically he was allowed the facility whereas he was denied when it comes to drawal of financial benefits.
6. Pursuant to the aforesaid discussion and the rich-case-law enunciated by the apex Court of the country getting due authenticity and rule of law under Article 189 of the Constitution of the Islamic Republic of Pakistan, we are inclined to accept the appeal as prayed for leaving the parties to bear their own costs. Parties to be informed accordingly.