1. ' ABDUL QADEER CHAUDHRY (CHAIRMAN).-- This judgment would dispose of two appeals as common question of facts and law arise in these appeals.
2. ' Appeal No, 13/82.-- The appellant was appointed as NaibTehsildar on 17-4-1963. He was promoted as Tehsildar on 27-1-1977.
3. ' Appeal No, 14/82.-- The appellant was appointed as Tehsildar on 26-6-1975.
4. ' At the time of their appointment they were subject to the West Pakistan Tehsildari and Naib- Tehsildari Service Rules, 1962. The respondent No, 2 framed fresh service rules which are called the Baluchistan Service Rules, 1980. The case of the appellants is that they had completed the maximum period of probation period of 3 years before the enforcement of these rules. The appellants have since become eligible for confirmation under rule 10(3) of the West Pakistan Tehsildari and Naib-Tehsildari Rules, 1962 (hereinafter called the Rules of 1962). The appellants have now been directed to take the departmental examination to ,be conducted by respondent No, 3 for the purpose of confirmation. The appellants made representation to the respondent No, 2 claiming therein that they could not be required to take departmental examination. During the pendency of these appeals, the appellants have appeared in the examination conducted by the Public Service Commission. The appellants have not stated about the result of such examination; but it has been stated at the bar by the Advocate-General that the appellant Raja Naved could not clear two papers and the appellant Mohammad Hayat has passed the examination. The appellants have placed reliance on Explanation II of rule 10 of 1962 Rules which provides that if no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. Such provision is also found in the Rules of 1980 (hereinafter referred to Rules of 1980). Under rule 8 of Rules 1962 a person selected for appointment to the service shall, before his appointment to the service, be required to complete successfully such training and pass such departmental examination and produce such certificates within such period or in such number of attempts as may be prescribed by Government from time to time. Rule 8 of Rules 1980 is identical to Rules of 1962. Similarly rule 10(4) of Rules 1962 is that no person shall be confirmed in the service unless he successfully completes such training and passes such departmental examination as may be prescribed by the Government from time to time. Now the appellants are governed by the Baluchistan Civil Servants Act and the rules framed thereunder. Under section 6(1) of the Civil Servants Act, 1974 an initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed. There is no force in the contention of the appellants that there is no provision in the service rules to hold the departmental examination of Tehsildars. The West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969 clearly describe that departmental examination shall be held twice a year on the dates and places notified by the Central Examination Committee. Now the Government has authorised the Public Service Commission to hold such examination in place of Central Examination Committee. Again emphasis has been placed by the appellants that after the expiry of 3 years from 21-7-1977 the appellants have been confirmed with effect from 27-1-1980. The period of probation had expired on that date. The Government by Ordinance-III of 1983 had made amendment in section 7 of the Baluchistan Civil Servants Act, 1974 (Act IX of 1974) the section and the amendment reads as under:- "Amendment in section 7 of Act IX of 1974.-- In the Baluchistan Civil Servants Act, 1974, in subsection
(1) of section 7, after the words "a post as may be prescribed" a full-stop shall be added, and thereafter the words "and shall be deemed to have been confirmed after the expiry of a period of two years from the date of initial appointment to service or post, unless earlier removed or reverted from the service or post as the case may be" shall be omitted."
5. ' The learned counsel for the appellants has taken objection to this amendment and stated that this amendment does not apply to the case of the appellants as this amendment is not procedural but it takes away a vested right of the appellants. This contention has no force. The appellants have not been confirmed by the Government and they had been directed to appear in the examination for their confirmation and in fact they had appeared. The direction of the Government to the appellants to appear in the examination would show that they have not been confirmed. It has been observed in Mohammad Akhtar Hussain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 454 others PLD 1970 SC 146 as under:- "It is well-settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the' Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute. There are express words in the ordinance XLI of 1963 giving it retrospective effect. By saying that the rules of 1943 shall be deemed to have been repealed "with effect on and from the first day of January, 1946" the Ordinance made its intention abundantly clear and there could be no room for doubt that the repeal was being made with retrospective effect. It is difficult to construe Article 2 of the Constitution as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests."
6. ' In The United Industrial Bank Ltd. v. Mohan Bashi Saha and another PLD 1959 SC 296 it was observed that a judgment of the High Court delivered after the 23rd March, 1956, but in relation to a case which was instituted before that date is to be excluded from the meaning of the expression "any judgment". The right of the appeal was derived from the Constitution, and not as an incidental of the suit. It was 'argued in the reported case that the suit was instituted in 1949 was governed by two respective laws as it existed on that date. This contention was referred by the High Court in Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 it has beers observed that a vested right cannot be taken away save by express words or necessary intendment. The Legislature, however, which is competent to make a law, has full and plenary powers in that behalf and can even legislate retrospectively or retroactively. There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take away a vested right yet the Courts must hold, that such a legislation is ineffective or strike down the legislation on the ground that it has retrospectively taken away a vested right. In view of authorities quoted above the vested rights of the appellants if any have been taken away by Ordinance III of 1983. As such on this ground alone the present appeals must fail. Even on merits the appellants have no case. The emphasis have been made by the appellants on explanation No, II of rule 10 of the Rules, 1962 which has been quoted above. This has to be read alongwith rule 10(4) which contemplates that no person shall be confirmed in the service unless he successfully passes such departmental examination as prescribed by the Government from time to time. In Colony Sarhad Textile Mills Ltd. v. Collector, Central Excise and Land Customs and another PLD 1969 Lah. 228 it has been held that the object of adding an Explanation to a statutory provision is only to facilitate its proper interpretation and to remove any possible confusion or misunderstanding. It does not per se create or extinguish a liability which is to be spelt out only from the main. Provision sought to be interpreted with the assistance of the Explanation. In other words, an Explanation is to be relied upon only as a useful guide or an aid to the construction of The main .Provision which in this case is the charging provision contained in section 3 of the Act read with Item 15-A of the Schedule I. The rule 10 is to be read as a whole and explanation does not make sub-rule (4) of rule 10 as redundant. Explanation is only a guide to the main provision and it cannot be interpreted so as to cease the other provisions of law. Much emphasis has been made on the words "probationer shall be deemed to have been confirmed". Deeming clause has been interpreted in Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore and another PLD 1965 W.P. Lah. 445 as under:- "To us it appears that the Court in looking at the deeming clause has to be given effect to the real scope of the legal fiction without any prejudice. In the first instance, the Court has got to determine the limits within which and the purposes for which the Legislature has created the fiction. This has to be determined by reference to the words used in the statute creating the fiction and full effect must be given to their natural meanings unless by doing so the very purpose of creating the fiction is defeated. We have to consider the fiction and not the facts. In doing so, unless the context prohibits, all the necessary consequences and incidents which naturally flow as corollaries from the fiction are to be recognised and carried to their logical conclusions. We cannot lose sight of the following classic observations of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Barough Council (2) in this connection: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if inevitably have floated from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
7. In Begum B.H. Sayed v. Afzal Jahan Begum and another PLD 1966 Lah. 967 it has been held that the important thing in this respect is not the meaning of _the word "deemed" but the effect of it as used in the statute. In considering the effect of deeming clause a Court has to give effect to the near intention of the legislature. As the intention is clear from the rules, therefore, the words "shall be deemed to have been confirmed" does not mean that the confirmation is an automatic process and the Government had no authority after the expiry of period of probation to call upon the person to appear in the departmental examination. The appellants have not been reverted to their former position. They are still in service. Their appearance in the examination has not adversely affected their rights. It is the discretion of the employer to confirm an employee keeping in view his work, conduct and performance. It is laid down in Muhammad Naseem Ahmad and 18 others v.
8. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37. It is held in Muhammad Naseem Ahmad v.
9. Central Board of Revenue and another 1975 SCMR 505 it is for the Government, therefore, to decide as to whether it will confirm then if so from which date. It is not for the Courts to lay down any rule with regard to the confirmation of officers. This has of necessity to depend upon various considerations of which the employer alone can be the best judge.
10. ' There is another hurdle in the way of the appellant. By the order impugned in these appeals they were called upon to qualify the departmental examination. This is not the final order. It is only direction to appear in the examination and after the result of the examination the Government would consider the confirmation of the appellants. The Government has to consider various factors while confirming a civil servant. In the absence of final order the appeals are not competent as provided under section 4 of the Baluchistan Service Tribunals Act.
11. ' In the result there is no force in these appeals the same are dismissed with no order as to costs.