1. SAJJAD AHMAD, J.-This appeal, by special leave, has been brought by the University of Peshawar in the following circumstances:- On the 12th of February 1956, the respondent Mr. Bashir Ahmad was appointed by the University as a Reader in Law on probation for a period of one year, which expired on the 11th of February 1957, but was extended to the 31st of August 1957, by a decision taken by the Syndicate on the 28th of February 1957. After the expiry of the extended probationary period, the matter remained hanging until the 11th of October 1958, when the Syndicate took a decision to appoint the respondent as a Reader in the Department of Law on a contract basis for two years with effect from the 12th of October 1958. This decision was communicated to the respondent on the 28th of October 1958. The respondent protested that his employment on Am contract basis instead of his confirmation on the expiry of the probationary period which, under the relevant rules, could not last for more than two years in the maximum, was illegal and unfair. On the 3rd of May 1958, the Syndicate re- affirmed its decision of the 12th of October 1958, but proposed to re-examine the matter on the expiry of the contractual period. The respon--dent was at no time asked to execute any contract nor did he give assent to the new proposal. Curiously, the Syndicate thereafter, on the 5th of November 1960, unilaterally renewed the respon--dent's contract by another two years with effect from the 12th of October 1960, without obtaining the respondent's consent and without even informing him. It was not until the 19th of February 1961, that he was asked for the first time through the Principal of the Law College to execute ex post facto an agreement both for the initial period and the extended period of the contract. It is common ground that the respondent did not comply with this requisition. All the time he was protesting against the Syndicate's attitude in dealing with him. Nonetheless, the Syndicate took another decision on the 5th of December 1961, and this time it was resolved to remove him from the contractual service and to engage him as a Reader in Law on a regular basis with effect from the 5th of September 1961. The respondent filed an appeal to the Chancellor under section 41 of the Peshawar University Act (hereinafter referred to as `the Act'), pressing for his confirmation from since the time of the expiry of his probationary period, viz. The 31st of May 1957, but it was rejected.
2. Thereafter the respondent moved a petition in the High Court, Peshawar, under Article 98 of the 1962-Constitution (Writ Petition No. 106 of 1962) for a writ of mandamus to direct the University to confirm him in his service with effect from the 1st of June 1957. The High Court has accepted the writ petition holding that under rule 5 of the University of Peshawar (Recruitment, Discipline, Punishment and Appeal) Service Rules, the Syndicate was bound to either confirm the respondent or to remove him from service after the expiry of the probationary period of two years, but that it had no authority to extend the period of probation nor to unilaterally convert his service into a contractual service. The learned Judges in the High Court have derived support for this view from the contents of letter No. S. O. X II-SAGO-2-14360-SO/12 X7-S&GD-2-133363 from the Additional Chief Secretary to Government of West Pakistan, Services and General Administration Department, Lahore, to the Registrar, High Court of West Pakistan, on the subject of "confirmation of Government servants on expiry of probationary period". They have held, on their interpretation of rule 5 ibid, that on the 12th of September 1958, after the expiry of two years, which was the maximum period provided for probation, under the rules, the respondent should be deemed to have been confirmed in his service. Rule 5 is as follows :- "5(1) Members of the service who are appointed against permanent vacancies shall remain on probation for one year. If the work or conduct of any member of the service during his period of probation is in the opinion of appointing authority not satisfactory, the appointing authority may remove him from the service, if he had been recruited by direct appointment or may revert him to his former post if he has been recraited by promotion on transfer."
3. Mr. Manzur Qadir, the learned counsel for the University has contended that in construing rule 5, the learned Judges in the High Court have lost sight of section 45(1) of the Act which lays down that every salaried officer and University teacher has to be appointed by a written contract, and under subsection (2) of section 45, this contract has to be lodged with the Registrar of the University and a copy thereof has to be furnished to the officer or the teacher concerned.
4. It is pointed out that in view of this basic statutory provision, the respondent had to execute an agreement, and as none exists, the legal foundation for the respondent's service in the University is missing, and he cannot build up the structure of his rights without that foundation. The respondent in para. 22 of his concise statement in this Court, has accepted the position that the so-called appointments made in this case by the Syndicate were in contravention of the provisions of section 45 of the Act, and were, therefore, ineffective. If all the orders of the University relating to his appointment are illegal, obviously they will include also those which were passed in his favour.
5. Whether the University or the respondent is to blame for non-execution of this contract is immaterial in judging the matter. Without the fulfilment of the statutory requirement of a contract, the question of the respondent's confirmation after the expiry of the probation period did not arise.
6. It was contended that even in isolation, rule 5 does not provide for automatic confirmation which has been wrongly imported by the High Court into this rule probably influenced by the letter of the Additional Chief Secretary, mentioned above, which contained instructions for the Govern--ment Departments but has nothing to do with the University.
7. It was also brought to our notice by the learned counsel for the appellants that the Peshawar University Act of 1950 has since been repealed and replaced by the University of Peshawar Ordi-- nance XXIII of 1961, which m as enforced on the 18th of April 1961. This Ordinance has done away with the requirement of the execution of a contract by the University employees whose appointment and conditions of service have now been brought within the purview of the Ordinance.
8. During the arguments in the case, we felt inclined to bold that the High Court's interpretation of rule 5 was not correct and its finding of automatic confirmation in favour of the respondent was erroneous. However, we pointed out to Mr. Manzur Qadir, the learned counsel for the appellants the hardness and unreality of the attitude adopted by the University in dealing with the respondent.
9. Contract or no contract, the respondent has been allowed to serve the University for a period of sixteen years row and his services should not be permitted to vanish in thin air. We observed that as the respondent's service has now been brought on a regular basis since the 5th of September 1961; he should be confirmed from that date, and his suspense put to an end. Mr. Manzur Qadir undertook to advise the University on his own, and at his request, we adjourned the matter on the 23rd of April 1970. We also made the respondent to understand the futility of running a legal combat with the University. The Syndicate has now taken a decision, a copy of which has been forwarded to us. It reads: "The Syndicate considered the advice of the Supreme Court of Pakistan in the case of Mr. Bahir Ahmad, Reader, Law College, and agreed to confirm Mr. Bashir Ahmad as Reader in Law with effect from the 5th of September 1961, and to allow him all emoluments that may become due in consequence of his confirmation with effect from the 5th of September 1961.
10. The Syndicate also decided to allow Mr. Bashir Ahmad the benefit of Provident Fund in accordance with the rules with effect from the date of his confirmation". As the respondent has agreed, this regrettable litigation has been brought to a close.
11. The appeal is thus rendered infructuous, and is dismissed as such, without any order as to costs.