i upreme Court (Appellate Jurisdiction) Present: ‘Mr. Justice Anwar Zaheer Jamali, HCJ Mr. Justice Amir Hani Muslim Mr. Justice Ijaz-ul-Ahsan f 2016. (on appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 19.4.2016, passed in Writ Petition No.566-A/2014) President/CEO Pakistan Telecommunication Company Ltd Appellant Versus Ejaz Ahmed Amjad, ete Respondents For the appellant: ‘Mr. Shahid Anwar Bajwa, ASC. ‘Mr. M.S. Khattak, AOR. For respondent No.1: _ Raja M. Ibrahim Satti, Sr. ASC. Syed Rifagat Hussain Shah, AOR. Date of hearing: 10.11.2016 SUDGMENT Anwar Zaheer Jamali, CJ.- This Civil Appeal, with leave of the Court, is preferred by Pakistan ‘Telecommunication Company Limited against the judgment dated 19.4.2016, in Writ Petition No.566-A/2014, passed by the learned Single Judge in chambers of Peshawar High Court, Abbottabad Bench, whereby the said petition by respondent No.a, agitating his grievance against the appellant and other respondents for his non-promotion from BPS-19 to BPS-20, was upheld and consequently the management of appellant Company was directed to promote him forthwith to BPS-20, with back benefits w.e-t. the date his juniors were so promoted. 2 Before the Peshawar High Court, the appellant filed their parawise comments, raising therein number of legal objections about = maintainability of the petition. Furthermore, with regard to the ~ ATTESTED Le) Court Associate Supreme £owirt of Pakiotan J IslamabedCANo 177716 2 facts, claim of the respondent No.1 about any injustice or discrimination towards him in the matter of promotion was denied. 3. After hearing the arguments of learned ASCs for both the parties, deciding the issue of maintainability of the petition in the light of a recent judgment of this Court dated 19.2.2016 in Civil Review Petition No.247/2011 and other connected cases (2016 SCMR 1362), the learned single Judge in chambers of the Peshawar High Court also granted requisite relief of promotion to respondent No.1 in. BPS-20, inter alia, for the reason that his case was not presented for consideration before the Departmental Promotion Committee (DPC), while some other officers junior to him were promoted, therefore, he had vested right to be considered for promotion. Not only this but an order to this effect was also passed in favour of respondent No.1, directing the appellant's Management to promote him in BPS-20 forthwith with all back benefits with effect from the date when his juniors were promoted. i Mr. Shahid Anwar Bajwa, learned ASC for the appellant, conceding to the issue of maintainability of petition before the High Court in view of the ratio of recent judgment, as referred to above, strongly contended that the batch mates of respondent No.t were promoted from BPS-18 to BPS-19 in the year 2008, while because of his ineompetency and inefficiency, respondent No.1 was dropped and then promoted to BPS-19 on 05.7.2010, which had made him junior to his batch mates in BPS-19. Moreover, the case of respondent No.1 was considered for promotion, but he was not found fit and thus, his promotion was deferred. Not only this, but again in terms of the orders passed by this Court in these proceedings on 07.6.2016, de ATTESTED =~ Le Court Associate Supreme Court of Pakister i ‘slamabedNo.177; a another departmental promotion committee was constituted, which interviewed respondent No.1 and found him ineligible for promotion in BPS-20. In this regard he also placed on record some documents to show that in the column of remarks, the Committee has observed that “he is very weak in technical skills, leadership role, and lacks requisite exposure for higher post”. His further submission was that earlier too the respondent No. was dropped/deferred for valid and cogent reasons, but this fact was not taken into consideration by the High Court, while passing the impugned judgment, which is based on wrong premise that respondent No. was not considered for promotion at all. 5s Conversely, Raja M. Ibrahim Satti, learned Sr. ASC for respondent Noa has argued that policy of pick and choose was adopted by the appellants as a result whereof respondent No.1 was discriminated and dropped/deferred from promotion at the time when his other batch mates were promoted from BPS-18 to BPS-19 and again from BPS-19 to BPS-20 and it was in this background that, respondent No.1 knocked the door of the High Court for redress of his, grievance by challenging the promotion orders dated 31.12.2010 and 28.3.2014, which were prejudicial to his interest. However, when we confronted the learned ASC to a pointed question as to whether the High Court, while passing the order like the one under challenge, can assume the role of DPC on behalf of the appellant to order promotion of respondent No.1 to BPS-20, learned ASC could not respond with any plausible or convincing arguments except that in exceptional circumstances, such powers could be exercised by the High Court under Article 199 of the Constitution. We, however, do not endorse ATTESTED ~ } Court Associate Suurwane Court of Pakista? 7 ‘wlaatadCANo 17771) 4 this view of learned ASC for respondent No.1, being not applicable to the present case. 6. Admittedly, at the time of promotion from BPS-18 to BPS-19, many batch mates of respondent No.1, who are now senior to him in BPS-19, were promoted in the year 2008, while he was promoted in the year 2010, which is, inter alia, reflective of the fact that the performance of respondent No.1, even at that time, was not up to mark, In such circumstances, mere allegations of respondent No.1 that he was discriminated or the poliey of pick and choose was followed by the appellant, have no force. Once respondent No.1 was, superseded by his batch mates in BPS-19, his case for the purpose of promotion was not to be considered with them at the time of his appointment, but as per his own seniority in BPS-19. Thus, his contention that he should have been considered for promotion to BPS-20 alongwith his batch mates seems to be ill-founded. 7 ‘The perusal of the order passed in these proceedings on 07.6.2016 reveals that the appellant came forward before the Court with the proposal to place the case of respondent No.1 before the DPC during the pendency of this petition, so that he may once again be considered for promotion, which exercise was thereafter undertaken on 29,6.2016, but all the members of DPC instead of recommending, unanimously deferred his case for promotion as General Manager (BPS-20). In our opinion, in this background, assumption of authority by the High Court for ordering promotion of respondent No.1 without the recommendation of DPC was without jurisdiction, thus such judgment in favour of respondent No.1 cannot be sustained. & ATTESTED Court Associate Court of P alamabad tenCAN 1777016 5 8. For the foregoing reasons, this appeal is allowed and the impugned judgment of the High Court is set aside. However, with the observation that respondent No.1 will be again considered for promotion as General Manager (BS-20) in the forthcoming meeting of, DPC, but as per his seniority and in accordance with law. Sa/- Anwar Zaheer Jamali,CJ Sd/-Amir Hani Muslim,] Sd/- [jaz-ul-Ahsan,J Certified to be True “oe Islamabad, 10% November, 2016. La oun “Fry Supreme Co [4 Baristan a ei as