1. MUSHTAK ALI KAZI (CHAIRMAN).-The appellant was selected by the Sind Public Service Commission as a Civil Judge and he was appointed by the Government of Sind as Civil Judge and F. C. M., Dadu.
2. He was on probation for two years and this period was extended by one year more. Meanwhile by an order dated 17th November, 1980 passed by the Chief Secretary to the Government of Sind under section 11(1)(i) of the Sind Civil Servants Act, 1973, the services of the appellant were terminated. The appellant has accordingly preferred this appeal under section 4 of the Sind Service Tribunal Act, 1973, against the termination of his service.
3. It is the case of the appellant that one Mr. A. H. A. Ahmed, an Advocate of Dadu was not pleased with him as the appellant was strict with him and gave him no conveniences. That his clerk one Muhammad Khan had also misbehaved with him in the Court for which he had detained the Clerk under section 480, Cr. P. C. On that account the President of the Clerks Association had attempted to defame him by instigating a female litigant to go to the Civil Judge's residence at night. That he had reported the matter to the Police who had taken action against the accused under section 108, Cr. P. C. That due to these incidents the Local Bar Association of Dadu had also passed a resolution against him and forwarded it to the High Court.
4. The learned counsel for the appellant has admitted that the High Court had neither charge- sheeted the appellant for any misconduct nor had any enquiry been conducted against the appellant under the Efficiency and Discipline Rules, 1973. He had, however, contended that the work of the appellant was not considered satisfactory on account of the above incidents and that was the reason for termination of his service during the period of probation although these reasons were not mentioned in the order of termination. The learned counsel has, therefore, argued on the authority of Muhammad Siddiq Javed Chaudhary v. Government of West Pakistan that he was entitled to a show-cause notice before termination of his service, even during the period of probation. Admittedly that case was governed by Article 177 of the Constitution of 1962. It was observed in that ease by Waheeduddin Ahmad, J. As under :- "In my opinion if the service of the probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of the probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour.
5. In the last mentioned case, the probationer will be (sic) Constitution of 1962 and will be entitled to a show-cause notice and the proper enquiry against him must be made."
6. Admittedly the Constitutional protection under Article 177 of the 1962 Constitution is not available to the appellant. Under Article 177(1)(b) a person holding a civil post in connection with the affairs of the Province could not be removed from service unless he had been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him. The constitutional protection is no longer available to a probationer under the 1973 Constitution. Under Article 240, the appointments to and the conditions of service of persons in the case of the service of a Province and post in connection of the affairs of the Province shall be determined by or under the Act of the Provincial Assembly. Thus the constitutional guarantees has been substituted by a statutory guarantee. The Statute dealing with services is the Sind Civil Servants Act, 1973. Under section 11(1)(0, the service of a civil servant may be terminated without notice during the initial or extended period of his probation. Under Services and General Administration Department, Sind Civil Servants Probation, Confirmation and Seniority Rules 1975, a person appointed to a post by initial requirement shall be on probation for two years provided that if any orders are passed curtailing or extending the period of probation then the initial probationary period shall be deemed to have been extended by one year.
7. The position that emerges from the above discussion is that the appellant was a Civil Judge on probation. He had crossed the initial period of two years and was in the third year of probation.
8. There was no regular enquiry or any finding against the appellant regarding any misconduct but obviously the authorities were not fully satisfied with him. His services were therefore, terminated by an order mentioning no reasons and casting no stigma on his career. Under section 11(1)(0 of the Sind Civil Servants Act, 1973 referred to above, the appellant was therefore, not entitled to any show-cause notice for simple termination of his service.
9. In the result the present service appeal is not maintainable and is accordingly dismissed in limine. PLD 1974 SC 393