1995 PLP (C (PLC(CS))

Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118 ref. Appellant in person. Niaz Ahmed Khan, Standing Counsel for Respondents. Date of hearing: 21st May, 1995. ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑ Briefly, the facts of this appeal are that the appellant Mr. Alam Zeb Khan, is presently working as Superintending Engineer, E&M, Pak. PWD, Karachi. Prior to that, when he was working as Executive Engineer, being the senior most, his case was considered by the CSB‑II, for promotion as S.E. (B‑19) but was superseded, and his next junior MT. Muhammad Sadiq, was promoted in the meeting held on 11‑2‑1991. Being aggrieved with his supersession, the appellant brought his grievance before this Tribunal by filing Service Appeal No. 250 (R) of 1991. The Tribunal by its judgment dated 1‑11‑1992 directed the Establishment Division to arrange for the meeting of the Central Selection Board and place the case of the appellant before it for consideration on merits and quantified marks. Accordingly, his case was considered by the Central Selection Board‑.II on 25‑1‑1993 and his supersession of 1991 was converted into deferment. His case was again considered by CSB‑11 on 27‑5‑1993 and the appellant was approved for promotion as Superintending Engineer (B‑19), and accordingly his promotion was notified vide notification dated 31st May, 1993, from the date he assumes the charge of the post of S.E. (B‑19), which he took over on 16‑6‑1993. The appellant made a representation on 30‑9‑1993 for fixation of his pay in BPS‑19 with effect from 26‑3‑1991, the date when his next junior was so promoted. The Finance Division allowed the appellant the benefit of refixation of his pay under FR‑26 (c) without arrears with effect from 26‑3?1991, vide O.M. dated .15th June, 199‑1, and this decision was communicated to the appellant by the Works Division vide letter, dated 12th July, 1994, received by him on 2‑8‑1994. Being aggrieved, the appellant made departmental appeal on 29‑8‑1994 and failing to get any response thereto, he filed this appeal before the Tribunal on 26‑12‑1994 with the prayer to pay him the arrears of pay and allowances from 6‑3‑1991 to 15‑6‑1993.

2. The appellant at the time of regular hearing submitted that he has been denied the arrears for no fault of his, although he has been allowed fixation of pay etc., and there is discrimination.

3. The respondents have resisted the appeal on the ground that since the appellant did not physically work against the post of Superintending Engineer (B‑19), he is not entitled to payment of arrears under FR 26(c), and the same view was reiterated by the departmental representatives at the time of hearing. However, Mr. Niaz Ahmed Khan, the learned Standing Counsel frankly submitted that there are a number of authorities of superior Court to the effect that a civil servant when deprived for promotion to a higher post for no fault of his, is entitled to pay of the that post.

4. The admitted facts are that the appellant was superseded on the basis of wrong calculation of quantified score and misrepresentation of facts placed before the Board and the wrong done to him was subsequently rectified by converting his supersession into deferment and he was accordingly promoted as Superintending Engineer (B‑19) by the competent Authority vide Notification dated 31st May, 1993 on the basis of the approval accorded by the Establishment Division vide Office Memorandum, dated 25th January, 1993. The Office Memo, dated 27th March, 1994, after allowing the appellant ante?dated seniority over his junior, referred the matter to the Finance Division for fixation of his pay. His pay was refixed in B‑19 from 26‑3‑1991 but the Finance Division did not agree for payment of arrears from 26‑3‑1991 to 16‑6‑1993 and reliance is placed on FR‑26 (c). It thus follows that the appellant has been granted seniority as well as refixation of pay in (B‑19), but has been denied the arrears, and the ground taken is that the appellant did not physically work on the post of S.E. We do not subscribe to this view as the record shows it was not the appellant who misrepresented or miscalculated his quantification of score, but it was the fault of the department which led the appellant into the ravine of supersession, for no fault of his, and that wrong done to him was subsequently rectified by the competent Authority, and we see no reason to deprive him the benefit of payment of arrears for the intervening period, particularly when the appellant has been allowed the benefit of seniority over his junior, and also fixation of pay in BPS‑19 from 26‑3‑1991. Such a situation was taken note of by the Hon'ble Supreme Court and in the case reported inLDID91 SC 1118 (Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others, it was a tat in such circumstances a civil servant as entitled to claim pay for the period that he was improperly denied his legal right of promotion. Accordingly, we accept this appeal and direct that the appellant be paid the arrears of BPS‑19 from 6‑3‑19:91 to 15‑6‑1993. No order is made for costs. H.B.T./1073/Sr.F ??????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.