1998 PLP (C (PLC(CS))

WAJIHUDDIN AHMED, C.J.

The petitioner alongwith several other Inspectors (BPS-16) was promoted to the rank of Deputy Superintendent of Police (BPS-17) per Notification dated 16-2-1997. However, on 21-7-1997 through a notification of even date, the petitioner's promotion was recalled "with immediate effect till the finalisation of the Anti-corruption case". This petition was brought on 28-7-1997 and notices were ordered to the respondents as also to the Advocate-General, Sindh. The case has been date posted from time to time and comments have been submitted. Till the last of hearing, viz. 27-1-1997, the Advocate-General, Sindh was represented in these proceedings, but none has appeared today. Let, a notice be issued to the Advocate-General for clarifying the position in writing. As to the merits of, the controversy, the learned counsel for the petitioner has relied on Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539, to urge that matters of promotion do not fall within the pale of jurisdiction of the service Tribunal and consequently the petition is entertainable here. The fact of the matter, however, is that such precedent case itself comes in the way of the petitioner. A distinction has been drawn there between eligibility of a person to hold or to be promoted to a particular post and his fitness or suitability for the same. On questions touching eligibility the criteria adopted is objective and, thus, capable of being tested on the scales of reasons or logic. The field covered by the concepts of fitness or suitability, necessarily, involves elements of subjective consideration and, therefore, such matters are not routinely open for judicial scrutiny. Where, however, matters of eligibility are involved or a person otherwise fit to be promoted is not duly considered to be promoted then, if he is a civil servant, the jurisdiction for review except for well-defined savings is exclusively that of the Service Tribunal and such emerges from the Constitutional bar introduced by Article 212 of the Constitution. The jurisdiction of this Court in those matters is very limited and even where it extends such has to be exercised with a great deal of care and caution. Having said as much, we do not intend to probe into the merits of the controversy because the petitioner in such context has maintained that the withholding of his promotion, which is what the exercise comes to, does not have the sanction of rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority; Rules, 1975 the only relevant aspect in which could have been pendency of disciplinary proceedings against him under clause (iii) of the said rule. The department has explained the position saying that the petitioner's conduct in the relevant aspect did not come to its notice but then as soon as it was reported that Anti-corruption proceedings had been initiated against him the aforesaid order, impugned in this petition, was passed. Be that as it may, the jurisdiction to examine the validity of such order would remain with the Service Tribunal and no circumstances have been pleaded nor otherwise urged before us which would bring this case in the narrow campus of the jurisdiction of this Court in such-like disputes, Even so, it would remain for the. Law Department to examine whether there is a lacuna in rule 13 aforesaid which requires to be filled through a legislative exercise. Plainly the pendency of disciplinary proceedings against a civil servant should be at a lesser level of seriousness than the pendency of Anti-corruption proceedings and in this case, as admitted by the petitioner an Anti-Corruption case, where even the challan has been submitted. Surely, such pendencies having criminal implications and attracting possible moral turpitude may require attention of the rule making authority for appropriate insertion in rule 13 aforesaid in one or another form. While the petition is dismissed for the reasons that we have recorded above, we may note here the contention from the side of Mr. Naamatullah Qureshi that the petitioner is being precluded to approach the Service Tribunal because the petitioner's departmental appeal continues to remain pending without passing of the final order thereon. Let, the required order be passed within a month's time. Copy be forwarded to the Law Department. H.B.T./G-60/K Petition dismissed.