SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
 
 
 
Mr. Justice Gulzar Ahmed, CJ 
 
 
 
Mr. Justice Mazhar Alam Khan Miankhel  
 
 
 
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi 
 
Civil Petition No.18-P of 2021 
[Against the judgments dated 13.11.2020, passed by the Khyber Pakhtunkhwa 
Service Tribunal, Peshawar in Service Appeal No.880/2018] 
 
 
Government of Khyber Pakhtunkhwa through 
Chief Secretary, Peshawar and others. 
 
… Petitioner(s) 
 
 
Versus 
Hizbullah Khan and another. 
…Respondent(s) 
 
For the Petitioner(s) 
 
: Mr. Zahid Yousaf Qureshi, Additional 
Advocate General, KP 
Asad 
ud 
Din, 
Asif 
Jan, 
Superintendents 
Javaid 
Maqbool 
Butt, 
Incharge 
Litigation, Agriculture Department, KP 
 
 
 
For Respondent No.1 
: Mr. Mukhtar Ahmed Maneri, ASC 
 
 
 
Date of Hearing 
: 08.06.2021 
 
O R D E R 
 
 
Gulzar Ahmed, CJ.— Facts of the matter are that 
respondent No.1 (the respondent) was promoted to the post of 
Senior Scale Stenographer (BPS-16) on 25.05.2009 and his name 
appeared at Serial No.1 of the seniority list. The case of the 
respondent was twice submitted for promotion to the post of 
Superintendent (BPS-17) but he was not considered for promotion. 
The respondent filed departmental appeal, which was responded 
that his case is kept pending till finalization of new service rules, 
however, at the same time junior officials of the department were 
promoted to the post of Superintendent (BPS-17). The respondent 
filed service appeal before the Khyber Pakhtunkhwa Service 
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Tribunal, Peshawar (the Tribunal), which by the impugned 
judgment dated 13.11.2020 was allowed and the petitioners were 
directed to process the case of the respondent for ante-dated 
promotion from the date when his case was first considered for 
promotion with all back benefits accrued to him. 
2. 
 
We have heard the learned Additional Advocate 
General, KP (AAG) and have gone through the record of the case.  
4. 
 
Learned counsel appearing for the respondent has 
supported the impugned judgment.   
5. 
 
It is admitted that the respondent-Hizbullah’s case for 
promotion to the post of Superintendent (BPS-17) was put up twice 
through working-papers dated 16.08.2016 and 30.12.2016. In 
both the working-papers the name of respondent appeared at 
Serial No.1 on the basis of the final seniority list dated 06.01.2016 
of Senior Scale Stenographers (BPS-16), where his name appeared 
at Serial No.1. What we note is that respondent was not informed 
about the fate of his promotion by the department. It was only after 
he filed the departmental appeal dated 26.10.2017, which was 
replied vide letter dated 14.12.2017, the reason was given that his 
case has been kept pending till finalization of the new rules.  
6. 
 
In our view, this reason could not have been a valid 
and legal reason for not considering the case of promotion of 
respondent, for that, once an employee’s case is put up before the 
DPC, the same has to be decided by the DPC, either of allowing the 
promotion or not allowing the promotion and in the last mentioned 
eventuality, the employee has to be informed by giving reason of 
denial of promotion to him. Admittedly, the rules for promotion 
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dated 20.04.2012 were in the field and the method of promotion 
provided in the said rules for promotion of Senior Scale 
Stenographers (BPS-16) to the post of Superintendent (BPS-17) 
was 10% by promotion on the basis of seniority-cum-fitness from 
Senior Scale Stenographers with five years’ service as such. These 
rules were very much in force when the case of respondent was put 
up before the DPC.  
7. 
 
In presence of the rules, the department’s response 
that his case has been kept pending till finalization of new service 
rules, was ex facie illegal and also unjustified. When matter of 
promotion is placed before the DPC, the DPC is required by law to 
consider the case of the employee put up for promotion and in 
doing so, it has to consider the case of employee for promotion 
fairly, justly and honestly.  
8. 
 
The DPC’s action of not considering or taking decision 
for promotion of respondent was, thus, not sustainable in law. The 
Tribunal in the impugned judgment while accepting the service 
appeal of respondent has given direction to the petitioners to 
process the case of respondent for ante-dated promotion from the 
date when his case was first considered for promotion with all back 
benefits accrued to him.  
9. 
 
In our view, the using of the word process by the 
Tribunal in the impugned judgment was not justified as well as 
legal, in that, while considering the case of promotion on seniority-
cum-fitness, the question of eligibility and fitness has to be 
determined. While eligibility can be determined on the basis of 
terms and conditions of service, the question of fitness is always 
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based upon subjective evaluation on objective criteria, and such 
exercise has been left to be conducted by the competent authority 
in the department. It is, however, always expected that the 
competent authority while exercising its discretion in determining 
the case of fitness or otherwise of a government servant for being 
promoted to hold higher post shall not conduct itself arbitrarily or 
in colourable exercise but consider the question of fitness based 
upon reasons, fairly and justly. Therefore, the direction of the 
Tribunal of processing the case of respondent for ante-dated 
promotion from the date when his case was first considered for 
promotion with all back benefits accrued to him, appears to be an 
excess of jurisdiction and thus, is not sustainable.  
10. 
 
As two working-papers of respondent for his promotion 
to the post of Superintendent (BPS-17) have already been put up 
before the DPC, in our view, it will be just and fair to direct the 
DPC to consider the case of respondent for promotion to the post of 
Superintendent (BPS-17) and decide the same expeditiously, 
preferably, within a period of three months from today.  
11. 
 
In view of the above, the petition is converted into an 
appeal and is partly allowed to the extent noted above.     
 
 
CHIEF JUSTICE 
 
 
 
 
 
 
 
JUDGE 
Bench-I 
Islamabad  
08.06.2021 
APPROVED FOR REPORTING 
Rabbani*/ 
JUDGE 
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