1. MUSHTAK ALI KAZI (CHAIRMAN). -This is an appeal under section 4 of the Sind Service Tribunals Act, 1973, against the order of the Government of Sind terminating his appointment to the post of a Mukhtiarkar and dlrecting him to report back for his subst anti, e appointment as a Head Munshi.
2. The facts as gathered from the pleadings of the pafties and the document parties filed by them are briefly as under :- The appellant after passing Matriculation examination, joined Revenue Department under the Government of Sind as a Clerk on 13th January, 1948. He then passed the Sub-Revenue Departmental Examination in 1953 and was promoted as an Assistant and latter on as a Head Munshi for having passed the departmental examination. The Government of Sind, Services and General Administration Department by notification dated 28th September, 1976 declared that 50 vacancies in the post of Mukhtiarkars shall be filled without reference to Sind Public Service Commission, on the recommendation of the Selection Committee, and persons holding a University Degree and not more than 35 years of age in any case would be eligible. By a subsequent order dated 18th October, 1976 appellant Muhammad Sadique Khoso was appointed on "ad hoc" basis as Mukhtiarkar pending recruitment on regular basis. Subsequently by order dated 20th April, 1977 the appellant was exempted from undergoing training as Mukhtiarkar and the Government also relaxed the condition as to age in his favour since he was over age by 16 years and 9 months. The appellant in spite of all these concessions did not take over as Mukhtiarkar and continued in his post as Head Munshi, because be was not satisfied with an ad hoc appointment. Thereafter a notification was issued by the Government dated 24th June, 1977 in respect of postings and transfers of Mukhtiarkars. In this notification the appellant was posted as Mukhtiarkar. Tando Allahyar on following terms :- "Mr. Muhammad Sadique Khoso directly recruited Mukhtiarkar is posted as Taluka Mukhtiarkar, Tando Allahyar Vice Mr. Ghulam Nabi Memon transferred. His appointment is subject to the condition that he will be on probation for two years and will not claim seniority over his seniors i,e, promotees who have already been appointed on regular basis earlier than the date of his selection i,e, 18th October, 1976, and also those direct Mukhtiarkars who have been selected earlier to him."
3. By a separate notification the appellant was invested with powers of Magistrate, First Class.
4. Thereafter the Government of Sind by notification dated 3rd October, 1977 rescinded its earlier notification dated 28th September, 1976 regarding appointment of Mukhtiarkars on the recommendation of the Selection Committee. The ad hoc Mukhtiarkars already appointed were required to apply to Sind Public Service Commission if they wished to continue in service.
5. Subsequently by a letter dated 8th October, 1977, the Secretary, Board of Revenue called upon all Mukhtiarkars appointed ad hoc or under training to apply to the Sind Public Service Commission. By another letter dated 7th November, 1977 appellant Muhammad Sadique Khoso was also informed that he had been directed by the Board of Revenue, Sind to appear before the Sind Public Service Commission if he wanted to continue as Mukhtiarkar. The Sind Public Service Commission had fixed a time table of written test for recruitment and according to this time table the examination was to take place on 4th January, 1978 consisting of English General and General Knowledge papers.
6. It is the case of the appellant that he had received the intimation from the Sind Public Service Commission i,e, the admission certificate, late on 5th January, 1978 a day after the examination ; but he had in the meanwhile filed a Constitutional Petition (No, D-45 of 1978) in the High Court of Sind, Karachi which came up for summary hearing on 24th January, 1978. His contention was that having been appointed on nrobation for a period of two years, he could not be called upon to appear for an interview or test by the Sind Public Service Commission. The petition was dismissed in limine as premature. Sine the appellant did not take the test as ordered, the Government by notification dated 2nd March, 1978 terminated his services as Mukhtiarkar under training and directed him to report for duty to his parent department (as Head Munshi).
7. Feeling aggrieved, the appellant filed another Constitutional Petition (No, D-407 of 1978) in the High Court of Sind, Karachi. It came up for regular hearing on 11th February, 1979. It was argued on behalf of the appellant that the petition was maintainable since no appeal would lie to Service Tribunal regarding the question of fitness of a person to hold a particular post. It was, however observed by the Court that the petition challenged termination of his service as Mukhtiarkar and the Service Tribunal had, therefore, the jurisdiction to hear the case and that the jurisdiction of the High Court to consider the order of termination was clearly barred.
8. On rejection of the Constitutional Petition the appellant filed his departmental appeal against the order dated 2nd March, 1978 terminating his services as Mukhtiarkar, before the Chief Secretary, Government of Sind on 21st February, 1979 after nearly one year. Pending the decision on his departmental appeal the appellant filed his service appeal before the Tribunal on 24th May, 1979 on expiry of 90 days.
9. It is the case of the appellant, that after his order for appointment as Mukhtiarkar on ad hoc basis, he had not accepted the job and he had joined as Mukhtiarkar only when the terms and conditions were stated in the subsequent order regarding his probation for two years and seniority. That since the Government orders passed subsequently were regarding "ad hoc" Mukhtiarkars, for appearing before the Sind Public Service Commission, the said orders did not apply to him as "Probationer"
10. Mukhtiarkar, and the Secretary Board of Revenue could not call upon him to appear before the Sind Public Service Commission. That in any case the intimation for taking the examination had not been received by him in time. The appellant alongwith the appeal had filed an application under section 5 of the Limitation Act for condoning the delay in filing the appeal stating that the appellant had in good faith filed the Constitutional Petition which remained pending from 5th March, 1978 to 11th February, 1979.
11. The respondents in their written statement have contended that the present appeal is barred as no departmental appeal was filed within the prescribed period of 30 days. That the appeal is also time barred as the impugned order was made on 2nd March, 1978 while the appeal before the Service Tribunal was filed on 24th May, 1979. It has then been contended on merits that the appellant was appointed as Mukhtiarkar on ad hoc basis under the orders of the then Chief Minister and the exemptions and relaxation etc. Were allowed on his orders. That the order dated 24th June, 1977 was a posting order and not one settling his terms and conditions of service. That the position of the appellant as "ad hoc" Mukhtiarkar remained and had not been altered. Regarding the intimation for the test having reached the appellant late, it has been stated that the appellant should have nirsued the matter himself knowing that the test had been fixed on 4th January, 1978.
12. That even assuming that the appointment of the appellant was on probation, he could still be called upon to take the prescribed examination.
13. It has hardly been denied, that the initial appointment order of the appellant dearly showed that his appointment was on "ad hoc" basis as a Mukhtiarkar. This notification dated 18th October, 1976 had at no time been rescinded or cancelled. It was stated in the notification that the terms and conditions of the appointment would be notified in due course. The posting order dated 24th June, 1977 however, strangely enough contained these terms and conditions also, that the appellant was to be on probation for two years and he would not be senior to the persons already appointed on regular basis before 18th October, 1976. This order containing the terms and conditions is irregular ; but it has been explained in the written statement that this and other orders containing exemptions and relaxations of Rules were all passed under directions of the Chief Minister. But if these terms and conditions are considered as applicable to the case of the appellant, then they would not be consistent with his initial appointment on ad hoc basis. For only an appointee on regular basis can be on probation and the question of seniority of an ad hoc appointee does not arise. The seniority in such cases is to be determined only from the date of regularisation of his appointment. The position of the appellant, therefore, remained anomalous. On the one hand he was according to his order of appointment an ad hoc appointee, while the terms and conditions of service included in the posting order were such as would be applicable to a regular appointment on probation. The terms "ad hoc" and on probation" would be inconsistent. Under section 6 of the Sind Civil Servants Act, 1973 an initial appointment not being an ad hoc appointment shall be on probation. Therefore, for all practical purposes the status of the appellant appears to have been altered to that of a probationer.
14. But even as a probationer the appointment of the appellant continues to be a tentative one subject to all the checks, examinations and tests that may be prescribed and subject to final satisfaction of his employer. Under section 6 (3) of the Sind Civil Servants Act, 1973 where the satisfactory completion of probation includes the passing of the prescribed examination, test or course then a person who has failed to pass such examination or test shall be discharged. It is true that the passing of the examination held by the Sind Public Service Commission had not been included' in the terms and conditions conveyed in the posting order but the appointment of the appellant being irregular, the terms and conditions were being prescribed from time to time. It was held in a similar case of Zahid Ali v. Pakistan Ordnance Factories Board that it is the established right of the Government to raise the efficiency of the services and for this purpose to devise was and means for selection of personnel from time to time in acordance with its views for assessing such efficiency and capability. That it cannot be laid down that an employee has a vested right in the mode of selection or that once having determined a particular mode the Government is1 powerless if it wants to change it for another method which it thinks to be more efficacious. That the prescription of a departmental examination for promotion does not amount to any variation in the terms and conditions of service.
15. In the case of Asad Ahmed Khan v. The Central Board of Revenue it was held : "In the absence of any fixed criterion in this behalf, it is open to the authorities to prescribe a written test as a qualifying examination, so that candidates are adjudged as having reached a certain standard of capability and efficiency."
16. In the above case the original basis of selection being seniority-cum-fitness, the Government had subsequently changed the rules to provide for examination as the basis for promotion. It was held that the Government was entitled to make rules in interest of efficiency in service. In case of Inspector General of Police, West Pakistan v. Muhammad Idris Khan an order for passing a training course from Sihala, in addition to the existing terms and conditions, was challenged on the ground that it was an additional term and condition. The High Court accepted the contention. On appeal the Supreme Court reversed the order of the ligh Court and held ; that only such conditions could not be varied which were provided for in the Constitution and there was no bar to the addition of other terms.
17. In view of the above decisions the position emerges, that even during the term of probation, a person selected can be called upon by the Government to appear for interview before the Public Service Commission or to take a prescribed test. If a candidate fails in this respect, then it is open to the employer to consider him as unsatisfactory for further retention in service. Under section 11(i) of the Sind Civil Servants Act, 1973, the service of a civil servant may be terminated without notice during the initial or extended period of his probation. The civil servant appointed by promotion on probation can be reverted to his former grade and post as has been done in the present case.
18. There is ho Constitutional guarantee or protection provided for probationers in the Constitution of 1973. Therefore, apart from the Sind Civil Servants Act, 1973, the appellant could not claim any inherent right or protection. The termination of service as Mukhtiarkar in the case of the appellant is not due to any misconduct or inefficiency by way of punishment. The order would, therefore, fall within the provision of section 11(1) (1) of the Sind Civil Servants Act, 1973. The appellant cannot, therefore, insist on continuing in his appointment as a Mukhtiarkar.
19. A preliminary objection had been raised regarding this service appeal being barred. The impugned order terminating the service of the appellant as Mukhtiarkar is dated 2nd March, 1978. Under section 4 of the Sind Service Tribunals Act, 1973, a civil servant aggrieved by the order could prefer an appeal to the Tribunal within 30 days of the communication of the order, but if an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, then no appeal shall lie to the Tribunal unless the period of 90 days had elapsed from the date on which such appeal, application or representation was so preferred. Under section 23 of the Sind Civil Servants Act, 1973 such appeal has to be preferred within 30 days of the date of such order. Even where no provision of appeal exists the civil servant aggrieved 'may within 30 days of communication of such order made a 'representation' against it to the authority next above the authority which made the order. Therefore, the present appeal should have been filed within 30 days of the impugned order or if an appeal is preferred then after 90 days from the date of such appeal had elapsed. In the present case the appeal or representation provided under section 23 of the Sind Civil Servants Act, 1973, bad not been preferred within 30 days. Therefore,-for all practical 'purposes' such appeal or representation had not been filed. For by 'appeal or representation' is meant 'an effective' appeal for representation made in accordance with rules within the prescribed period namely ; 3 days from the date of such order. Therefore, since the appeal o representation as provided under section 23 of the Sind Civil Servant Act, 1973, had not been preferred in time, it would amount to such appeal C not having been preferred at all and under section 4 proviso (a)2 3 no appeal shall lie to this Tribunal. Thus the present appeal is not maintainable for the reason that no appeal or representation within the prescribed period of 30 days was preferred before the department. The appeal would also be barred by time as the impugned order was made on 2nd March, 1978 and the present appeal was filed on 24th May, 1979, after 13 months and 22 days.
20. It is true that the appeal was accompanied by an application under section 5 of the Limitation Act and it was admitted on 6th October, 1980 by the then Tribunal under the Chairmanship of my learned predecessor, but no order appears to have been passed on the application under section 5 of the Limitation Act and even if any such order was passed it would be subject to objection by the other side, which could be considered at the time of the final arguments. The reason mentioned for condoning the delay is filing the constitutional petition in the High Court and pursuing of the remedy, from 5th March, 1978 to 11th February, 1979. However, the judgment of the High Court would show that Mr. Rasool Bux Unar, Advocate for the appellant was aware of the existence of this Tribunal and its jurisdiction in service matters where termination of service was involved. In this respect the observations of Sind High Court in Constitutional Petition of Sajjao Ahmed Khan v. Government of Sind might be reproduced as under :- "It is not easily understood how the petitioner could have been advised to avoid the prescribed legal procedure, by-pass the Service Tribunal and to invoke the discretionary jurisdiction of this Court under Article 199 which can only be invoked if there is not alternate remedy available under the law. It would amount to putting a premium on a blatant disregard of legal procedure, to hold that if a civil servant disregards the prerequisites for filing appeal in matters within the purview of a Service Tribunal, he can invoke the discretionary jurisdiction of this Court on the ground that he cannot seek remedy before the Tribunal."
21. ' Nothing prevented the appellant from making a representation to the departmental authority within 30 days even if he wanted to pursue the remedy before the High Court. The delay in filing the departmental appeal cannot, therefore, be excused for any reason and filing of this appeal before the Service Tribunal on 24th May, 1979 when the proceedings before the High Court ended on 11th February, 1979 would be clearly time barred knowing that the departmental appeal could not be preferred after 12 months of the impugned order. The question, therefore, of condoning the delay occasioned by persuing the remedy in the High Court does hardly arise. The appellant had not cared to file his departmental appeal or representation in time, and he had also not availed of his remedy before this Tribunal, knowing that the Tribunal had exclusive jurisdiction in matters relating to the terms and conditions of service. Any one, who knowingly tries to circumvent the law and prescribed procedure, by avoiding to seek redress before the Service Tribunal and to choose the forum of discretionary remedy of Constitutional Petition in the High Court, cannot claim indulgence of the Tribunal to condone the enormous delay caused thereby on the ground of bona fide mistake of law. Therefore, apart from the merits, the appeal would also be barred under section 4 of the Sind Service Tribunals Act, 1973.
22. As a result of the above discussion we find that the present appeal has no merit and is also not maintainable and it is accordingly dismissed. No order is however made as to costs under the circumstances of the case. PLD 1971 Lah. 229 PL D 1960 SC 81 PLD 1970 SC 279 1981 PLC (C. S.) 203 4 1 2 3 4