Ijaz-ul-Hassan, J.--This petition for leave to appeal arises from the judgment dated 7.6.2008 rendered by learned Federal Service Tribunal, Islamabad accepting Appeal No, 980 of 2006 preferred by respondent Muhammad Azam Chaudhry, setting aside the impugned notifications dated 22.2.2006, 11.7.2006 and 23.8.2006 and treating the intervening period as the kind of leave due. The petitioner department was, however allowed to proceed against the respondent, if so advised, in accordance with law.
2. The facts which we have been able to gather from the record of the case are, that in pursuance .of advertisement dated 24.10.2003, appearing in daily `Jang' Rawalpindi, respondent-Muhammad Azam Chaudhry serving as Deputy Librarian (BS-18) in the Arid Agriculture University, Government of Punjab, Rawalpindi, applied and was appointed to the post of Director (BS-19) in the Department of Libraries, Ministry of Education, Islamabad through the Federal Public Service Commission with effect from 28.6.2004. The respondent was initially on probation for a period of one year. According to the respondent, the period of probation was not extended beyond the period of one year and as such respondent would be deemed to have been absorbed on 'regular basis' to the post of Director (BS-19). The respondent' feeling aggrieved of being deprived of certain privileges, filed Appeal No, 154/2006 before the Tribunal, which was dismissed on 6.7.2006 on the ground that respondent had not filed the departmental appeal. During the pendency of the earlier appeal, respondent applied for the grant of temporary injunction against apprehended adverse action, regarding service which stay order was granted. During the subsistence of the stay order, respondent was ordered to be revered to the post of Deputy Librarian (BS-18) in the Arid Agriculture University, Rawalpindi. The order of reversion was suspended by the Tribunal. Later, on the dismissal of the said appeal, petitioner-department passed the order vide Notification dated 11.7.2006 whereby respondent was reverted to his former post of Deputy Librarian (BS-18) and was ordered to be relieved from post of Director (BS-19). Vide further Notification dated 23.8.2006, the services of the respondent as Director (BS-19), Department of Libraries were terminated. Both the notifications were challenged in appeal.
3. Mr. Niaz Ahmed Rathore, learned Deputy Attorney General, representing the petitioner- department, challenged the impugned judgment on variety of grounds and contended, inter-alia, that Federal Service Tribunal in the facts, law and circumstances of the case had no justification to accept the appeal of the respondent; that Government servant on probation cannot be confirmed/absorbed on 'regular basis' without express notification to the post, that the probationer is taken into service subject to the final approval of the employer, that on appointment of a Government servant on probation, his lien to his parent department/post before confirmation/absorption is not terminated/and that there are no statutory rules providing confirmation, absorption of a probationer in his present post. The learned counsel also contended that according to Rule 6(4) of the Civil Servants Appointment, Promotion and Transfer Rules 1973, in case no order is issued regarding 'termination of probation, on the expiry of one year, the period of probation shall be deemed to have been extended under sub-rule (2) of the said Rules and that while the respondent was still in the extended period of probation, he was lawfully reverted to his former post of Deputy Librarian (BS-18) in the Arid Agriculture University vide notification dated 22.2.2006 and by subsequent notifications, respondent was relieved of his post to his parent department. The learned counsel further contended that termination of services of the respondent during the period of probation is termination simplicitor and no show cause notice was necessary.
Concluding the arguments, learned counsel submitted that the termination of respondent was on account of unsatisfactory performance and lack of interest in the work and no show-cause-notice or inquiry was necessary. The learned counsel reiterated that a probationer is a temporary employee and as such enjoys the protection which is given by the Constitution to Government servants. A probationer is taken into service subject to the final approval of the employer, and the question as to whether he is or he is not to be employed remains, to be finally decided. There is an implied condition in such an employment that the employer should be satisfied with the employee after trying him. It is in a sense a tentative appointment. In such a case it is not necessary that there should be any direct or indirect rescission of the contract, because satisfaction of the employer after trying the employee is a condition precedent to the final admittance of an employee into service. To supplement the contentions, learned counsel placed reliance on Tasnim Ali Mir versus The Federation of Pakistan and others, (PLD 1959 (W.P.) Karachi 62), Muhammad Afzal Khan versus Superintendent of Police, District Montgomery and others, (PLD 1961 (W.P.) Lahore 808), Mazhar Ali versus Federation of Pakistan/President, of Pakistan through the Secretary, Establishment Division, Cabinet Secretariat and 2 others, (1992 SCMR 435) and Dr. Muhammad Tahir Achakzai and others versus Government of Balochistan and others, (1999 SCMR 1680).
4. Mr. Shoaib Shaheen, learned Advocate, for respondent, on the contrary, repudiated the arguments of learned counsel for the petitioner-department and defended the impugned judgment more or less on the same grounds incorporated in the judgment itself. To substantiate the contentions, learned counsel placed reliance on Muhammad Siddiq Javaid versus The Government of West Pakistan and Abdul Rashid Abbasi versus Superintendent of Police, Muzaffargarh and 2 others and Mumtaz Hussain Malik versus The Government of West Pakistan, (PLD 1974 SC 393), Punjab Road Transport Board versus Muhammad Fazil Hussain and another, (PLD 1983 Lahore 531), Mazhar Ali versus Federation of Pakistan/President of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others, (1992 SCMR 435), Amir Ahmed versus Secretary, Finance Division, Islamabad and another, (1993 SCMR 114), Syed Sajjad Hussain versus Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others, (1996 SCMR 284), The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others versus Riaz-ul-Haq, (1997 SCMR 1552) and Ch. Muhammad Hussain Naqshbandi versus Government of the Punjab and others, (2003 PLC (C.S) 1421).
5. We have heard the arguments of learned counsel for the parties at considerable length in the light of the material on record and the case law cited at the bar.
6. The record of the case reveals that respondent was employed as Deputy Librarian (BS-18) in the Arid Agriculture, Rawalpindi. The Federal Public Service Commission advertised a permanent post of Director (BS-19) in the Department of Libraries, Ministry of Education, Islamabad. The respondent applied for the said post. He was selected/appointed vide letter of appointment dated 28.6.2004.
The appointment was made upon the recommendation of the Federal Public Service Commission.
In pursuance of the said offer of appointment, respondent joined the Department of Libraries, Ministry of Education, Islaniabad on 12.7.2004.
7. According to para-1(iv) of the letter of appointment, respondent was to be on probation initially for a period of one year. In case, the respondent did not successfully complete the probationary period, he was liable to be reverted or the period of probation extended.
Vide Notification dated 22.2.2006, respondent was reverted to his former post of Deputy Librarian (BS-18), University of Arid Agriculture, Rawalpindi with immediate effect. This was followed by the Notification dated 11.7.2006 whereby respondent was relieved from the post of Director (BS-19).
Through further Notification dated 23.8.2006 the service of respondent were terminated with effect from 22.2.2006.
8. Having considered the matter from all angles with reference to he material on file, we find that no reason whatsoever has been assigned for the termination of service of respondent. The respondent admittedly assumed the charge of the post of Director (BS-19) with effect from 12.7.2004. Even assuming that the period of probation stood extended by one more year, the same came to an end on 11.7.2006, where-after, the respondent became a permanent employee. The contention that the service of the respondent can be terminated without assigning any reason during his probationary period, is not tenable.
9. Secondly, the assumption of the petitioner-department that the probationary period stood extended, is also not apparent from the record. According to para-1(iv) of the letter of appointment, the respondent was on probation for a period of one year. If, however, in the opinion of the government, the work and conduct of the respondent during the probationary period was found unsatisfactory, the government may discharge/revert him forthwith or extend his probationary period for further one year as it may think fit. However, there is nothing on the record to show that the competent authority did form the opinion that the work of the respondent was unsatisfactory or that his probationary period was liable for extension for further one year. No specific extension in his probationary period is on the record. In this view of the matter the, order first of reversion and then of termination is without lawful authority. Needles to emphasise that the order of termination with retrospective effect is a nullity in the eye of law. There is no justification for termination of service of the respondent particularly with effect from 22.2.2006. It is also noticed that upon his appointment as Director (BS-19) Department of Libraries, Ministry of Education, Islamabad against which post he worked continuously, .his lien against the post of Deputy Librarian (BS-18) was terminated. The order of reversion was without legal efficacy on this ground as well. So far as objection raised on behalf of petitioner-department, regarding non filing of departmental appeal is concerned, para 18 of the impugned judgment furnishes complete answer to it. The said para is reproduced below for facility-sake.
"18. The learned counsel for the respondents have vehemently argued that as the appellant had not filed any departmental appeal against the Notification dated 23.8.2006, the present service appeal before the Tribunal was not competent. This stand of the respondents is completely devoid of force. As hereinbefore observed the grievance of the appellant is against the illegal act of the respondents of first reverting him and lastly substituting the reversion with termination of service through Notification dated 23.8.2006. Departmental appeals filed by the appellant against the said action are self contained and disclose in detail the nature of his grievance. When queried, the learned counsel for the respondents conceded that the departmental appeals filed by the appellant were not decided through a speaking order. Having not responded to the departmental appeals, it is idle for the respondents to contend that the appellant should have preferred a departmental appeal against the Notification dated 23.8.2006 before approaching this Tribunal.
The object and purpose of the departmental appeal is to provide a tangible forum to the appellant for redressal of his grievance before he was obliged to approach the Tribunal for adjudication of his claim. Obviously the requirement of filing a departmental appeal prior to approaching the Tribunal is not to create a hurdle in the way of a bona fide litigant but to facilitate him to avoid unnecessary expense and effort in pursuing his appeal in a legal forum. We observed that while much furore is raised for filing of the mandatory departmental appeal, a vast majority of Government departments do not take the departmental appeal with any seriousness. More often than not the departmental appeals remain inn-actioned. It can never be the intention of the legislature to make the filing of departmental appeal as a hurdle in the way of an appellant.
Invariably the requirement of the departmental appeal is used as stumbling block for the appellant rather than facilitating him in the pursuit of his relief. As observed hereinbefore, the appellant did file departmental appealis) against the Notification dated 22.2.2006 and 11.7.2006. According to the showing of the respondents themselves, the Notification dated 23.8.2006 was a mere continuation of the earlier Notifications. The objection that non-filing of a departmental appeal against the last Notification, is fatal and thus without merit"
10. In view of the above, we find that learned Tribunal has recorded a detailed and well reasoned judgment discussing all the aspects of the case, leaving no room for further consideration. We do not see any illegality or infirmity, legal or factual, in the impugned judgment, calling for interference of this Court in its Constitutional Jurisdiction. Further no misreading or non-reading of the record has been pointed out by learned counsel for the petitioner-department. The services of the respondent could not be terminated without assigning any reason/disciplinary action. The respondent should have been given a fair opportunity to clarify his position qua unsatisfactory performance attributed to him. The case law cited on behalf of the petitioner-department is distinguishable and proceeds on different facts. It does not advance the department's case in any manner. In the circumstances, we do not feel inclined to grant leave to appeal. The petition fails, which is hereby dismissed and leave refused accordingly.