1. ' KH. GHULAM QADIR (MEMBER).-This service appeal dated 24th May, 1980 by Sardar Muhammad Anwer Khan appellant is directed against Government Order dated 27th January, 198J issued under No, S & G/531-38/80 whereby he was discharged From the post of Project Manager, Local Government as his temporary appointment dated 12th June, 1975 was not confirmed by the Public Service Commission.
2. ' The facts leading to the appeal in hand are that on 12th June, 1975 the respondent Government ordered the appointment of appellant as Project Manager in the Local Government and People Works Programme Department in Grade 17 against a vacant post subject to confirmation by the Public Service Commission or the Selection Board, as the case may be, whereupon the appellant joined the post on 14th June, 1975. During the course of his temporary service the appellant was sent by the respondent for training in Pakistan National Institute for Rural Development, Islamabad, Pakistan Academy for Rural Development, Peshawar and Pakistan National Institute Public Administration, Karachi for various short courses which were successfully completed and passed by him.
3. ' After more than four years' service the appellant was required to appear before the Public Service Commission but unfortunately could not qualify in the examination held by the Commission whereupon the impugned order of discharge of the appellant followed. The appellant filed a review petition on 24th February, 1980 before the respondent which was rejected vide S. L. G. No, 2948- 49/80, dated 13th May, 1980. Finally, the appellant has now come up in appeal befote the Service Tribunal challenging the legality and validity of the impugned order on the following grounds :-
(1) That the appellant was retained in the temporary service for more than two years for which reason the appellant has now crossed the normal age limit prescribed for a Government service and has become ineligible for a Government service.
(2) That after having put in about 5 years temporary service the appellant has acquired a vested right to continue in service.
(3) That the appellant's service record during his temporary service was unblemished and full of merits but he was discharged from service against law and rules as his case was not sent to the Commission departmentally but he was directed to apply to and appear before the Commission directly.
4. ' The respondent filed written objections through its counsel contending that the impugned order was rightly passed by the Government respondent because the appointment of the appellant was temporary one subject to confirmation by the Public Service Commission which did not confirm him.
5. ' We have heard the learned counsel for the parties and have also gone through the record.
6. ' The learned counsel for the appellant has laid much stress on his two-fold arguments. Firstly, that discharge of the appellant from service after his having put in more than four years meritorious service and successful training at various institutes was illegal and unjust as by the lapse of time the appellant has now become ineligible for any Government service. Secondly that the case of the appellant should have been referred to the Public Service Commission departmentally alongwith his service record so that Public Service Commission could have an opportunity of fully judging the capability of the appellant to hold the post as was the spirit and purpose of the amended clause
(a) of section 9 of the Ordinance III of 1978 whereunder all the appointments made between 24th day of August, 1974 and coming into force of the Public Service Commission (Functions) Rules, 1978 were deemed to be on ad hoc basis and were also to be referred to Public Service commission for assessing the suitability of the ad hoc appointees. The direction by the department to the appellant to appear before the Commission as a direct candidate was improper and in clear disregard of very essence of law which ultimately resulted in great injustice to the appellant.
7. ' We have given our serious consideration to the contentions raised by the counsel for the appellant and now proceed to discuss the same one by one.
8. ' As regard the first contention the appointment of the appellant was definitely temporary one and on ad hoc basis subject to confirmation by the Public Service Commission as is crystal clear from the very order of appointment referred to herein earlier. The appellant accepted the conditions of his appointment by joining the post making his subject to appearance before the Commission for confirmation as and when required so to do. Under rule 6 of Azad .1 & K Public Service Commission (Functions) Rules, 1978 every temporary appointment is to continue for a period of six months only unless extended for another period of six months by the competent authority. This means that a temporary appointee can at best continue in service for a period of 12 months in maximum if the period is ordered to be extended by the competent authority prescribed by the law. In the case of appellant no such order extending the period of temporary service was ever made by the competent authority with the result that the period of temporary service after six months was absolutely unauthorised and illegal in the eye of law and the continuation in service by the appellant in such illegal character did not confer upon him any vested right enforceable in law to claim to continue in service as a permanent employee. Only a person who is duly qualified for a particular post and is appointed on regular basis by the competent authority under rules acquires a vested right as civil servant to remain in Government service after completing the probationary period of two years. In this view of the matter the appellant who was appointed purely on temporary basis and whose initial appointment was not even temporarily extended at any time lost his right to continue service after the lapse of six months from the date of his first recruitment and his continuation thereafter was absolutely and clearly at his own risk as could have been clear to him from the order of his appointment. His receiving of any training or undergoing any course at Government expense before his confirmation by the Public Service Commission was a sort of arrangement and understanding between him and the employer creating false and unfounded expectations in the mind of appellant to continue in service but this act and fact definitely did not confer upon or arm him with any legal right to continue in service on permanent basis. The condition of appearing before the Public Service Commission attached to his service all along without any change and in order to settle into service on permanent and regular basis he was to fulfil the condition of appearing before the Public Service Commission and to qualify the examination and test held by it. As such the first contention of the counsel for the appellant is repelled as without any force.
9. ' The second point that was emphatically canvassed by the learned counsel for the appellant is that the appellant should have been referred to Public Service Commission by the department itself whereas, to his detriment, he was directed to apply and appear as a direct candidate in violation of the provisions of clause (a) to section 2 of the amended Ordinance III of 1978 which enjoined that all persons recruited without reference to the Public Service Commission to the posts prescribed under section 7 at any time between 24th day of August, 1974 and coming into force of the Public Service Commission (Functions) Rules, 1978 shall be referred to the Commission for assessing their suitability and if in the opinion of the Commission a person recruited to such post is not found fit to hold that post he may be discharged from service. Developing his argument further the learned counsel for the appellant argued that the discharge of the appellant from service was illegal as he was not referred to the Public Service Commission in the light of clause (a) to section 2 of the Azad Jammu and Kashmir Public Service Commission (Amendment) Ordinance, 1978 for assessing his suitability to hold the post keeping in view his personal record and A. C.-Rs, but rather was directed to apply as a direct candidate and to complete with other candidates who may appear in the test and interview for the post before the Public Service Commission.
10. ' We have given our earnest thought and consideration to the argument submitted by the learned counsel for the appellant but we do not feel convinced as the argument has no substance and force. 'We have gone through the record and relevant file (Local Government file regarding the recommendations of the Public Service Commission) and have also studied deeply the relevant clause (a) of section 2 of the Azad Jammu and Kashmir Public Service Commission (Amendment)
11. Ordinance, 1978 upon which the appellant has based his argument. The factual position of the case is that the appellant was appointed as Project Manager in the Local Government and People Works Programme in grade 17 by the Azad Jammu and Kashmir Government on 12th June, 1975 subject to confirmation by the Public Service Commission. The appellant was thus bound to appear before the Public Service Commission and get himself confirmed after qualifying the test and interview held by the Commission. Meanwhile the Azad Jammu & Kashmir Public Service Commission (Amendment) Ordinance, 1978 came into force which was further amended by substituting clauses (a) and (b) in section 9 of the said Ordinance. For the purposes of the decision of the case of the appellant amended clause (a) is relevant which is reproduced below for the sake of convenience and appreciation:- ' Clause (a).-All persons recruited without reference to the Commission to the post prescribed under section 7, at any time between 24th day of August, 1974 and coming into force of the Public Service Commission (Functions) Rules, 1978 shall be referred to the Commission for assessing their suitability and if in the opinion of the Commission, a person recruited to any such post, is not fit to hold that post, be may be discharged from service.
12. ' As the appointment of the appellant was made subject to the confirmation by the Public Service Commission and thus was recruited without reference to the Commission his case was definitely covered by the above-mentioned clause (a) and his case must have been referred to the Commission as envisaced by the above quoted clause (a) of section 2 of the Azad Jammu & Kashmir Public Service Commission (Amendment) Ordinance, 1978. Now we have to examine in the light of the record whether the direction contained in the said clause was complied with in letter and spirit so far as the case of the appellant was concerned.
13. ' In the Local Government and Rural Development file No, AS.
14. 1.(113) there is a letter at page 70 written by Secretary, Public Service Commission and addressed to Secretary, Local Government (Sardar Rehmatullah Khan) issued under No, PSC/682/78, dated 9th October, 1978 regarding confirmation of the gazetted officers in the Local Government which reads to the effect that four officers namely Ghulam Mustafa Qureshi, Assistant Director Planning ; (2)
15. Sardar Muhammad Anwer, Khan ; (3) Muhammad Khalil Qadri and (4) Ch. Muhammad Azam Project Managers were recruited directly and their cases were submitted to the Public Service Commission for confirmation the Commission considered this matter in the meeting held on 15th September, 1978 and came to the conclusion that these appointments were made directly in Grade 17 without reference to Public Service Commission whereas these posts should normally have been advertised and filled through open competition but since under the amended law these posts cannot be advertised now' the Commission has decided to test their suitability through written test. The Commission further decided that as an examination is being held in the near future for recruiting officers directly in grade 17, so these officers shall also be asked to join in the examination and their suitability shall be determined and decided after the results of the examination. There is another letter at page 80 of this file from Secretary, Public Service Commission addressed to Secretary, Local Government received on 10th March, 1978 by the Local Government wherein it is mentioned that the matters of Assistant Director, Planning, Deputy Director and Project Managers shall be considered on 18th March, 1979 in the morning in Committee Room Civil Secretariat and that these departmental candidates may be directed to appear before the Commission. The Director, Local Government has made a note on this letter that the candidates shall be informed forthwith on page 82 of the same file there is a Wireless Message from Director, Local Government whereby appellant Sardar Muhammad Anwer Khan, Project Manager was directed to appear before the Commission on the fixed date. Besides, another letter from Public Service Commission addressed to Secretary, Local Government issued under No, PSC/16/80, dated 9th January, 1980 at page 61 of the personal file of the appellant Sardar Muhammad Anwer Khan reads that Commission considered the matters of Ch. Muhammad Azam.
16. Sardar Muhammad Anwer Khan and Mr. Muhammad Khalil Qadri, Project Managers on 18th March, 1979 but did not find any of them fit and suitable to hold the posts already held by them and thus did not confirm their appointments. This decision was taken in the presence of and in consultation with the Departmental Representative and it was further decided to advertise the posts and to select suitable persons and then submit recommendations of the Commission to the Government.
17. ' In para. 2 of this letter it is stated that the posts were advertised but meanwhile the Local Government sent requisition forms for 12 more posts to be filled directly which were also advertised consequently the written test was held and successful candidates were called for interview from 31st December, 1979 to 2nd January, 1980. In the 3rd para. Of this letter it is mentioned but decision of the Commission regarding non-confirmation of the appointments of Ch. Muhammad Azam, Sardar Muhammad Anwer Khan, and Mr. Muhammad Khalil Qadri, Project Managers and advertising of the said post was already conveyed to the department under No, PSC/306/79, dated 21st April,1979 and that appellant Sardar Muhammad Anwer Khan had again appeared in this test and interview as a direct candidate but again failed.
18. ' From the above-mentioned record and correspondence it is obvious and clear like the daylight that the Public Service Commission was very much alive to the newly framed legal provision under clause (a) of section 2 of the Azad Jammu and Kashmir Public Service Commission (Amendment)
19. Ordinance, 1978 and took care to examine the cases of officers recruited directly without reference to Commission during the period between 24th day August, 1974 and coming into force of the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, 1978 including the appellant keeping in view his personal record and A. C. Rs, These facts as established from the official record go a long way to disprove the stand and plea of the appellant that his suitability to hold the post was not determined in the manner and made as laid down under clause (a) to section 2 of the amended Ordinance referred to above. The appellant's case alongwith others directly recruited officers was examined and his suitability and fitness to hold the post was determined strictly in accordance with the direction contained in clause (a) to section 2 of the amended Ordinance having regard to his personal record and Annual Confidential Reports as is evident from the official record. No special mode of determining the fitness of such persons is prescribed under any law or rules and the matter is rather left to the discretion of Public Service Commission as to how it shall conduct the test and satisfy itself as to fitness of the persons appointed without reference to Public Service Commission to hold the post in question. Having once called such persons for any test and interview as deemed proper by the Commission its determination became final.
20. As already indicated above the appellant after having failed in the relevant test and interview again tried his luck as a direct candidate later but, as the luck would have it, he again proved unsuccessful. Although on the face of it the appellant's case is a hardship case as he was ousted after about five years temporary service but none can be blamed for that as ultimately the law and the rules must prevail and have their way.
21. ' The rulings cited by learned counsel for the appellant PLD 1978 SC (A J & K) 37 and PLD 1980 Lab.
22. 337 do not apply in this case and do not help the appellant.
23. ' In the light of above discussion the appeal of the appellant is dismissed with no order as to costs.
24. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN)-1 agree,