1998 PLP (C (PLC(CS))

WAJIHUDDIN AHMED, J.

In the memo. of petition, instituted on 29-4-1997, the petitioners had expressed an apprehension that pursuant to a news item, dated 6-4-1997, whereby 77 employees of the Police Department were reported to have been discharged from service, the petitioners themselves may have been terminated. Allegation was that such orders, if passed, would involve mala fides because while around 82 PSIs were appointed only four such appointees, hailing from Larkana Division were likely to have been removed/discharged, two of them being the petitioners here and the remaining two having filed Constitution Petition No.0-862 of 1997, This petition was entertained and notices were issued on 7-5-1997 together with ad interim orders. Meanwhile comments have been submitted and the respondents maintain that the petitioners were appointed on 28-11-1995 on probation for a period of three years. Since the petitioners were allegedly not performing their duties in an adequate and proficient manner, they were discharged under Police Rule 12.8 on 1-4-1997. Correspondingly, the petitioners have applied through C.M.A. No.4339 of 1997 for amendment of the petition so as to specifically challenge the said orders dated 1-4-1997. One such order is reproduced below:-- Perusal of report of S.S.P., Larkana bearing No. EO/Estt./10220, dated 1-4-1997, reveals that Officiating P.S.I. Mumtaz Ahmed son of Moula Bux Dahar of Larkana District has no knowledge of prosecution job and is not conducting the cases with dedication to get good results. He is also irregular in his Court duties and irresponsible Officer. In view of above, he is discharged from service under Police Rule 12.8 with immediate effect as he will not become a good Police Officer. (Sd.) (Muhammad Ejaz Akram) P.S.P., Deputy Inspector-General of Police, Larkana. No.E-1/6132-35/97, Larkana, dated 1-4-1997." It would seem from the above that the petitioners, during the course of their probation, were terminated solely on the ground of unsatisfactory performance of work and such was not a case of dismissal or removal from service but one of discharge only. The decision of the Supreme Court of Pakistan in the case of Muhammad Siddiqui Javed Chaudhry v. Government of Pakistan, PLD 1974 SC 393, cited at the bar, therefore, does not in any way advance the petitioners' case. Furthermore, the decided case pertained to a period where there were constitutional guarantees applicable to service matters, which is no longer the case now. The terms and conditions of service are currently governed by statutory law, as distinguished from the Constitutional law, which is the difference between then and now. At any event, the matter pertains to the fitness of the petitioners to hold specific posts. The competent Authority has found that the petitioners are not fit to hold such posts. In matters of this genus subjective as well as objective considerations come into play at the departmental level and it is for that reason that matters of the kind are not open to scrutiny before Courts as postulated in section 4(1), proviso (b) of the Service Tribunals Act. At the same time, even such a matter of fitness of a person to be appointed to or hold a particular post as also to be promoted to a higher post will remain within the purview of the departmental authorities to examine further and that can be done through an appeal or review, where expressly provided for, and a representation where no provision for appeal or review exists. That is the only remedy in such matters. There, if any manifest illegality is involved, an appropriate plea can be advanced. Against the final order, if violation of law is claimed, an aggrieved civil servant, and a probationer is, covered by the category, may move the Service Tribunal. Even so, in cases involving fitness to hold a post, the jurisdiction of the Tribunal should be confined only to the element of illegality, if any, and no more. However, the learned counsel for the petitioners also relies on Ikramullah Khan v. N.-W.F. Province, 1983 PLC (C.S.)

812. On the other hand Pakistan (Punjab Province) v. Riaz Ali Khan, 1982 SCMR 770, is to the effect that where -a probationer is terminated and the termination is on the ground of unsatisfactory performance of work, as distinguished from misconduct, the termination is not amenable to protection under Constitutional provisions (now applicable statutory law). In the circumstances, we do not see any merit in this petition and dismiss the same together with the applications pending in it. Office would ensure that Constitutional Petition No.D-862 of 1997, which was referred to at the time notices were ordered in this petition, is posted expeditiously and if it has not been posted so far to explain as to why such has not been done.