GULZAR AHMED, C.J.- --Respondent No.1 in both the listed appeals, i.e. Aijaz Ahmed and Syed Iftikhar ul Hassan were appointed as Director (M&E) in (NPG-4) by the petitioner-Departm ent vide letter dated 17.1.2014 respectively . In terms of clause 2(III) of their appointment letter , they were to remain on probation for a period of one year . Both the respondents joined service with the appellant Department.
Their performances were evaluated by the concerned officers of the appellant and in the evaluation reports, their services were found not to be satisfactory . The reports of the evaluation officers were placed before the Authority who considered such evaluation reports in its meeting dated 9.1.2015 and in the minutes of the said meeting, ultimately made the following decision:- "The Authority , after due deliberations and considering all aspects of the matter , decided that since performance of the two officers, Syed Iftikhar ul Hassan, Director (Generation) and Mr. Aijaz Ahmed Qazi, Director (T&D), were not up to the mark and they had been evaluated by their concerned reporting officer s as 'unsatisfactory' during their probation period, therefore, the services of the ,two officers may be terminated with immediate effect by giving them one month's salary in lieu thereof."
All the four persons representing the Authority have signed the minutes of the said meeting. The competency of the Authority or the minutes of the said meeting are not under challenge. Pursuant thereto, services of both the respondents were terminated vide letter dated 14.01.2015 on the ground that their performance was not satisfactory during the probationary period. Such termination was challenged by both the respondents by filing respective writ petitions before the Islama bad High Court, Islamabad. These Writ Petitions were heard and decided vide impugned order dated 27.10.2016, whereby , the writ petitions were allowed and termination orders of the respondents were set aside.
2. Learned counsel for the appellant has contended that the services of the respondents were terminated while they were on probation and such termination was approved by the Authority in its meeting dated 09.01.2015. Once a competent authority has taken a decision of termination of service during the probationary period, such decision cannot be challenged. The High Court, in writ jurisdiction, has entered into the factual controversy and come to an erroneous conclusion that the termination was not sustainable. In this regard, learned ASC for the appellant has relied upon the cases titled Kainal Din v. Settlement Commissione r and others (1982 SCMR 772), Ijaz Ahmed Dar v. Director-General, Pakistan Rangers (PLD 2003 SC 913), Rehan Saeed Khan and others v. Federation of Pakistan and others (2001 PLC (C.S.) 1275 ) and Muhammad Zaman and others v. Government of Pakistan through Secretary Finance Division (Regulation W ing), Islamabad and others ( 2017 SCMR 571 ).
3. On the other hand, learned counsel appearing for the private respondents have contended that the language of termination letter creates a stigma on the respondents in that the reason of their termination, that of non- satisfactory performance, is mentioned in the letter of termination. They further contend that the evaluation placed before the Authority could not have been relied upon. The evaluators were not competent to make evaluation of performance of the respondents, because they were themselves contract emplo yees. In terms of Rule 3(9) of NEPRA Service Rules for Regular . Employees, they being non-regular employees, could not be deputed to evaluate their performance. Learned counsel has further referred to Rule 16 thereof, dealing with the probation. It provides for extension of the period of probation. In case the service of the respondent was not found satisfactory their probation could have been extended on the basis of sub-Rule (2) of Rule 16 with counseling to improve their service in the second term.
4. The learned counsel for the respondents have also contended that the respondents in any case should be intimated about the action which the authority wished to take against them. Learned counsel appearing for the respondent in C.A.1577 of 2019 has relied upon the case titled Abdul Wahab v. Secretary Government of Balochistan and another (2009 SCMR 1354 ) to argue that the Respondents were condemned unheard and the High Court had correctly granted them relief.
5. We have heard learned counsel for the parties and have considered the record of the case with their assistance.
6. The facts of the case are simple. The appointment of the respondents on probation for a period of one year is an admitted fact. Further , the preparation of their evaluation report by the officials of the appellant-Department is also admitted. The contention that the officials of the appellant-department were not competent to make evaluation for the reason that they were not regular employees of the appellant, although raised but could not be substantiated by the learned counsel. More so, for the reason that even though they may not be regular employees of the appellant they have the technical capacity skill know how and competence to evaluate the performance of the respondents, Nothing has been shown to us indicating any restriction or bar on the power of the Authority or its officials from getting the performance of its officials who are on probation from any source. Such evaluation in our opinion could also be obtained by the appellant otherwise than its own employees by outside professional sources consultants.
The submission that termination letter(s) is a stigma on the respondents also does not have any substance as the letter(s) simply state that the respondent's services was found not satisfactory and the rules referred to above provide for termination of services during probation when their performance was found to be below far, what was expected by the employer or not satisfactory . The competence of the authority terminating the service is not disputed.
7. In our view, the High Court in the impugned order went altogether on different legal and factual plain. This has seemed to us without lawful basis in the facts and circumstances of the case. The case law relied upon by the learned counsel for the appellant clearly supports the case in hand. The judgment relied upon by the learned counsel for the respondents in the case of Abdul Wahab (supra) is altogether distinguishable from the present case. It was the case of a civil servant and also did not relate to termination from service during the probationary period.
8. In the case of Rehan Saeed Khan and others v. Federation of Pakistan and others (2001 PLC (C. S.) 1275) this Court has held that in case of a probationary employee the competent authority is possessed of powers to terminate his services at any time and it may do so for any reason relatable to the exigencies of service. No show cause notice is required in such cases. A probationer has no vested right to continue in service; therefore the question of violation of the principle of audi alteram partem does not arise except in case of mala fide. We find that the law laid down in the said case is fully attracted to the facts and circumstances of the present case.
9. In the case of Pakistan (Punjab Province). v. Riaz Ali Khan (1982 SCMR 770) this Court while dealing with the question of termination of service of a probationer came to the conclusion that if the sole ground of termination of service is his unsatisfactory work it was held that a probationer is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service; and if the service of a probationer is terminated on the ground of unsatisfactory work, it will not amount to dismissal or removal from service. Such termination will be in accordance with the terms of the contract or the Rules made by the Government in that behalf. However , a distinction was drawn that if such termination was on the ground of misconduct only then it will be subject to the constitutional protection. It may be noted that the Respondents have neither alleged nor do their termination letters state that their services have been terminated on account of misconduct. Consequently , neither a constitutional protection nor issua nce of show cause notice or an opportunity to respond to the same is available to them. In this context, this Court also cited with approval the judgment reported as Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393 ) in which a finding to the same ef fect was recorded.
10. In the case of Ejaz Ahmed Dar v. Director General Pakistan Rangers (PLD 2003 SC 913) it was held that services of an employee could be terminated by the competent authority during his probationary period without issuing a show cause notice. We, therefore do not find any merit in the arguments of the learned counsel for the Respondents that their rights have in any manner been prejudiced by termination of their services without issuing a show cause notice or giving them an opportunity of personal hearing during the period when they were under probation. The only ground on the basis of which their services were dispensed with was their unsatisfactory performance which does not constitute stigma as determined by this Court in the judgments discussed above.
11. This being the position on the record, we find that the impugned judgment dated 27,10.2016 is not sustainable in law. The appeals are, therefore, allowed with no order as to costs. Consequently , the impugned order is set aside and the writ petitions filed by the respondents are dismissed.