2017 PLP (C (PLC(CS)N)

QALANDAR ALI KHAN, J.

This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by Ejaz Ahmad Amjad, Senior Business Manager (BPS-19), PTCL, Abbottabad, petitioner, is aimed at seeking a declaration to the effect that promotion orders of respondents Nos.7 to 14, from BPS-19 to BPS-20, being junior to the petitioner, were based on an arbitrary, unfair and unauthorized method of 'pick and choose' against the criteria of promotion prescribed under the Civil Servant Act, 1973 read with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and Civil Servants Seniority Rules, 1993 and also violative of provisions of Articles 4, 27 and 189 of the Constitution of Islamic Republic of Pakistan, 1973, as also against the judgments of the Honourable Apex Court of Pakistan reported as 2012 SCMR 152, subsequently reaffirmed in Civil Petitions Nos.717 and 718/2013 therefore, the PTCL Management/respondents Nos.1 to 6 were bound to promote the petitioner from BPS-19 to BPS-20, with all back benefits with effect from the date respondents Nos.7 to 14 were promoted.

2. The perusal of writ petition would show that consequent upon his selection by the Federal Public Service Commission (FPSC) and approval of the same, the petitioner was appointed as Assistant Divisional Engineer (BPS-17) in the Telephone and Telegraph (T&T) Department on 02.05.1990, and was placed senior to respondents Nos.7 to 14 in the seniority list prepared and issued by FPSC and also in another seniority list circulated by the Management of PTCL on 05.06.2003. Thereafter, respondents Nos.7 to 14 were, allegedly, secretly and in a non-transparent manner promoted from BPS-18 to BPS-19, but the petitioner was also promoted to BPS-18 on 04.04.1995 and then to BPS-19 on 05.07.2010 and lastly posted as Senior Business Manager, Abbottabad, on 24.03.2010. The petitioner pointed out that being employee of the erstwhile T&T department, his terms and conditions of service were governed by the Civil Servants Act, 1973 and the rules framed thereunder, and further that by virtue of section 3 of the Pak Telecommunication Corporation Act, 1991, a new entity by the name of Telecommunication Corporation (PTC) was established and the employees of the T&T Department, including the petitioner, were considered to be "the departmental employees" and were so referred to in the definition under section 2(e) of the aforementioned Act, and their terms and conditions were protected under section 9 of the ibid Act, which were reaffirmed under the subsequent legislation by way of PTCL Reorganization Act, 1996 as subsection (2) of section 36 of the Act gave protection to the terms and conditions of service of the departmental employees having been transferred from the erstwhile corporation to the Pak Telecom Company Limited (PTCL) on 01.01.1996. The petitioner contended that in total disregard of the terms and conditions of service of the "transferred employees", the petitioner was bypassed and not considered for promotion, and without observing the criteria of promotion, the respondents were firstly promoted from Grade-18 to Grade-19 'secretly', 'privately' and 'arbitrarily' and then from Grade-19 to Grade-20 in the same manner vide order dated 31.12.2010. The petitioner claimed that he was unable to know about the clandestine promotion of respondents Nos.7 to 14 till such time he filed his departmental appeal on 25.06.2014. The petitioner, therefore, prayed for acceptance of the writ petition and declaration of the promotion orders dated 31.12.2010 and 28.03.2014 as illegal, without lawful authority and jurisdiction, void ab-initio, coram-non-judice, and as such, of no consequence, with further direction to the PTCL Management/ respondents Nos.1 to 6 to restore to the petitioner his right of promotion to BPS-20 with retrospective effect from the date his juniors were promoted and also with all the back benefits from such back date.

3. The writ petition was resisted by the PTCL/respondents Nos.1 to 6 on several grounds, including objection with regard to maintainability of the writ petition on the ground that there were no statutory rules in the establishment of respondent company which was incorporated under the Companies Ordinance, 1984, therefore, the law governing its employees was the law of 'Master and servant'. They questioned the claim of the petitioner for promotion as a matter of right. They also disputed the rest of the claims of the petitioner and pointed out that there was a distinction between "terms and conditions" of employment and "rules and regulations". They, however, admitted that when respondents were promoted from BS-18 to BS-19, the petitioner was not considered and thus he lost seniority to private respondents.

4. However, at the outset, the learned counsel for PTCL/ respondents Nos.1 to 6 stated at the bar that without prejudice to their stance with regard to the status of the petitioner governed by the law of 'Master and servant', he, on behalf of the PTCL, would like to make an offer to the petitioner to place his case for promotion before the Departmental Promotion Committee for consideration of his case and if found fit for promotion, to promote him from that date when the private respondents were promoted. For obvious reasons, the offer was not accepted by the petitioner, as consideration of his case for promotion was made conditional to his fitness for promotion by the Departmental Promotion Committee.

5. During his arguments on merits of the case, the learned counsel for the respondents focused on the status of the petitioner falling within the definition of 'Master and servant' on the ground that there were no statutory rules for employees of PTCL and that such employees were no longer governed under the terms and conditions of service prescribed in the Civil Servants Act, 1973 and the rules framed thereunder, as PTCL was a Company, incorporated under the Companies Ordinance, 1984.

6. The learned counsel for the petitioner, on the other hand, referred to the recent judgment/order dated 19.02.2016, of the august Apex Court in Civil Review Petitions pertaining to the same issue, whereby, it was held that:-- "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the Company under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the Company, they did not remain Civil Servants any more. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court. " The learned counsel also referred to the judgment of the august Supreme Court of Pakistan dated 24.08.2015 in Civil Appeal No.576 of 2007 titled 'Pakistan Telecommunication Company Limited and another v. Tariq Mehmood and others' whereby, the employees of PTCL were held entitled to the terms and conditions to which they were entitled as T&T employees and, consequently, PTCL was directed to consider their case for promotion within a week from the date on which their juniors were promoted. The learned counsel pointed out that in pursuance of the said judgment, Syed Hassan Haider, Nadeem Ahmad Baig and Muhammad Asif were promoted vide Notification dated 02.10.2015. In support of his arguments, learned counsel for the petitioner also referred to another judgment of the august Apex Court in Civil Petitions Nos.717 and 718 of 2013 in the case titled as 'the President PTCL and others v. Faiz-ur-Rehman and Ch. Muhammad Ashraf Qaiser'. In order to further augment his arguments, the learned counsel also made reference to PLJ 2005 SC 826 (Review Jurisdiction), 2009 SCMR 1, 2011 SCMR 389, and 2006 SCMR 1938.

7. The question of maintainability of writ in the High Court by a "transferred employee" of the PTCL and their terms and conditions of service fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996 having been laid at rest by the august Apex Court vide its recent judgment/order dated 19.02.2016, no question, as such, could be raised with regard to the jurisdiction of this Court in the matter of promotion of the petitioner. 7(sic) There was, as such, no denial of the contention of the petitioner with regard to his seniority vis- -vis private respondents Nos.7 to 14, and also non-consideration of his case at the time of promotion of the private respondents from BPS-19 to BPS-20, that too, for no apparent reason, much less justifiable reason. The offer made by the learned counsel for the respondents, albeit conditional, would also speak of the genuineness of the case of the petitioner, at least, to the extent of his right to have been considered for promotion. The admitted fact of non-consideration of case of the petitioner would, in other words, mean case of the private respondents was considered in a vacuum. The petitioner, being senior officer in BPS-19, had a vested right to be considered for promotion against the vacancy in BPS-20.

8. Consequently, on the partial acceptance of the instant writ petition, the PTCL Management/respondents Nos.1 to 6 are directed to promote, forthwith, the petitioner to BPS-20 with all back benefits with effect from the date his juniors/respondents were promoted. ZC/197/P Petition allowed.