1991 PLP (C (PLC(CS))

Dastgir Ghazi for Appellant. Niaz Ahmad Khan, Standing Counsel alongwith Tahir Hussain, S.O., EAD for Respondent. Date of hearing: 30th August, 1990.- SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Ahmad Hussain, a retired Assistant of the Economic Affairs Division, preferred this appeal on 12-12-1985 for arrears of pay in pursuance of his promotion as an Assistant with effect from 25-4-1963 vide Office Order No.251/85, dated 21-7-1985.

2. The appellant had long-standing service. The question of his promotion as Assistant with effect from 25-4-1963 remained under consideration for pretty long time and it was finally decided in the year 1985 when he was given promotion with effect from the same date viz. 25-4-1963 as per Office Order No.251/85, dated 21-7-1985 but lie was denied arrears of pay. However, his pay fixation was made, as per office order No. 268/85, dated 8-8-1985. He made representation for getting arrears of pay, on 20-8-1985, followed by reminder dated 11-11-1985. Failing to get orders thereon, he preferred this appeal on 12-12-1985 for payment of arrears of pay on the basis of his promotion as an Assistant with effect from 25-4-1963,

3. The respondents have opposed the appeal and questioned its maintainability. On facts, they have stated in the written objections that preparation of seniority list was initiated in April, 1975 and it was revised several times for one reason or the other and final seniority fist was issued on 1-6-1982 and thereafter demotions and promotions were made in accordance therewith and the appellant was given promotion with retrospective effect from 25-4-1963 but he was not given benefit of arrears of pay, as he had already retired from service. They have further stated that the question of payment of arrears to the appellant was reconsidered on the precedent of the cases of two other persons, namely S. Iqbal Hussain and Shahzad, Muhammad Khan, and he Gas allowed monetary benefits with effect from .28-2-1973, on which date he was actually promoted as an Assistant and he actually discharged the functions of that post.

4. The appellant died during the pendency of the appeal. His wife Mst. Hashmat Begum made an application dated 4-11-1989 intimating that her husband had died on 4-4-1989. Later, she made an application 'dated 28-2-1990 through her Advocate that she may be allowed to be impleaded as the appellant. The question- of abatement of the appeal was considered along with some other appeals and it was held that where the, cause of action in the appeal filed by a civil servant survives under civil law to his/her legal representatives, the appeal can be continued by his/her legal representatives.

5. The appeal was heard on 30.-8-1990. The appellant's case was presented by Mr. Dastgir Ghazi, Advocate, while the respondents were represented by the Standing Counsel Mr. Niaz Ahmad Khan.

6. The learned counsel for the appellant has urged that since the appellant was given promotion with effect from 25-4-1963-there was no reason for denying him monetary benefits from that date as lie was given promotion without any reservations. He has placed reliance on the cases reported in P L D 1970 S C 415; P L D 1973 Lah. 42; 1973 S C M R 304 and 1985 S C M R 139-1. He has also made reference to the decision of this Tribunal in Appeal No. 35(K)/84, decided on 29-2-1985. The learned counsel for the respondents did not say much in the case but he referred to the facts stated in the written objections and stated that the matter may be decided in the light of the reported cases.

7. By virtue of the office order No. 251/85, dated 21-7-1985, the appellant was given pro forma promotion as an Assistant with M16 feet from 25-4-1963. Since his claim for promotion from 25-4-1963 was conceded to by the department, there was no reason for denying him monetary benefits, as it is not alleged that he was responsible for late decision of his promotion. His claim for arrears of pay with effect from 25-4-1963 is supported by the decision reported in P L D 1973 Lah 42, which was approved of by the Supreme Court as reported in 1973 S C M R 30.1, and the same view was reiterated by the Supreme Court in the case of Syed Sultan Shah v. Government of Balochistan, reported in 1985 S C M R 1394 relied upon by the learned counsel for the appellant. The appeal is allowed accordingly. M.Y.H./27/Sr.F Appeal allowed.