MUHAMMAD AYAZ KHAN vs GOVERNMENT OF SINDH and others

ORDER

1. ' Learned counsel for the petitioner submits that vide the impugned order, dated 1-2-2005 the case of the petitioner for promotion was deferred due to the pendency of the NAB enquiry against him.

2. According to learned counsel, this issue cannot be pended indefinitely since though promotion may not be a vested right at least consideration for promotion is a vested right which has been deferred. Learned counsel has, therefore, prayed that although reference has been filed against the petitioner, the matter is yet to go to trial and it is to be determined whether or not he is guilty of the charge levelled against him i,e, of possession of assets which are not proportionate to known source of income and that too subject to final appeal to Honourable Supreme Court. With regard to the jurisdictional issue which was raised on the last date of hearing the learned counsel has relied upon the case of Habib-ur-Rehman v. Defence Secretary, Government of Sindh and others 2003 PLC (C.S.) 56 for the proposition that the fitness of a civil servant vis.-a-vis promotion etc., does not fall within the domain of the Service Tribunal and hence this Court has jurisdiction. He has also relied upon the case of I.A. Sherwani and other v. Government of Pakistan 1991 SCMR 1041. Learned counsel has, therefore, prayed that appropriate directions be issued to the Department for considering the case of the petitioner on merits, alone, and that the pending proceedings against him before the NAB Court should not come in his way.

3. ' To this submission, learned Additional Advocate-General has stated that the matter be referred back to the Department in terms of letter dated 17th August, 2004 written by NAB Authorities to the Provincial Government whereby the promotions/postings of the Officers are not be linked to the investigation or enquiry but governed under the Departmental Rules. Learned counsel appearing for respondent No,3 has also supported the arguments of the learned Additional Advocate- General.

4. ' We have heard both the learned counsel as well as learned Additional Advocate-General.

5. ' We are satisfied that as the matter concerns the fitness of the petitioner for promotion etc., hence the jurisdiction of the Service Tribunal would not be attracted in terms of the cited cases. Insofar as the Department's view that the petitioner's case is to be deferred till such time the enquiry is finalized, in our opinion this cannot be substantiated because it is settled law that r person is presumed innocent until found guilty. Hence the petitioner cannot be punished departmentally for a crime which, ultimately, he may not be found guilty of. Consequently, we would allow this petition to the extent that the matter is remanded back to the Department with directions to decide the petitioner's case of promotion etc., solely on merit and the Rules without taking into consideration the pendency of the NAB case against him.

6. ' This exercise should be done within one month from today.