1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Federation of Pakistan under Article 212(3) of the Constitution, to examine the following questions of law of public importance arising in the appeal:- "(1) Whether eligibility of a civil servant for confirmation in a service after the expiry of the period of probation means his automatic confirmation or it requires an express order to that effect?
(2) Whether a civil servant who has not been confirmed by an express order becomes permanent in his appointment merely after the expiry of the period of probation?
(3) Whether an order of termination of a person in temporary employment under section 11(3) of the Civil Servants Act must be in the public interest as statutory requirement?
(4) Whether a civil servant who has been expressly appointed on temporary basis could be treated a permanent civil servant?"
2. The respondent Hashim Shah Qureshi was appointed as a Junior Clerk in the Office of the Assistant Director, Health, Kohat, with effect from the 9th of November, 1966. He applied and was selected and appointed as a Lower Division Clerk in the Ministry of Foreign Affairs, Government of Pakistan, Islamabad, on the 4th of July, 1975. The terms and conditions of his employment contained in the appointment letter were that he will be on probation for a period of one year and that on successful completion of probationary period, he will be treated in temporary employment until further orders. During the period of temporary employment his services could be terminated at any time without assigning any reason by either side on giving fourteen days notice or on payment of fourteen days basic pay in lieu thereof. It was given out to be his first appointment under the Ministry of Foreign Affairs. On 22nd of July, 1975, it was notified that he was appointed as a purely temporary Lower Division Clerk with effect from 12th of July, 1975 on which date he took over in the Foreign Affairs Ministry. His pay was fixed in terms of Fundamental Rule 22(b)(ii) on his appointment as Lower Division Clerk in the Ministry. In the year 1978 he was transferred to the Camp Office, Peshawar. He was arrested by the F.I.A. In an anti-corruption raid case and was placed under suspension with effect from 29th of September, 1981.
3. A charge-sheet dated 27-1-1982 issued to him and he replied to it but further proceedings were not taken as in the meantime, the criminal case registered against him, had gone to the Court. The criminal case resulted in his acquittal, the operative part of the order being in the following terms:- "Inadequate evidence produced by the prosecution and withholding of important witnesses as well as independent evidence which could be procured, the not conclusion opens for the Court the scope for extending doubt benefit to the accused and on this score only he is acquitted, although not absolutely innocent."
4. He was re-instated in service on 6th of October, 1983 and was shown in the seniority list which issued on 11-8-1983. On 3rd of November, 1983, the impugned order was passed in the following words:- "In accordance with the terms and conditions of his appointment vide para 1 (i) of theMinistry Memorandum No.Estt (l1I)-1/3/75, dated 4th July, 1975, Mr. Hashim Shah Qureshi son of Janab Shah Qureshi, a temporary Lower Division Clerk of this Ministry is hereby informed that his services have been terminated with effect from the forenoon of 5-11-1983. He will get his 14 days Basic Pay in lieu of notice period from 5-11-1983 to 18-11-1983. "
5. He represented against it but was unsuccessful. He appealed to the Service Tribunal and his appeal succeeded. The Tribunal held that an order of termination of service even of a temporary employee had to be judiciously passed and not arbitrarily, it had to be passed in public interest and not as in this case on account of respondents involvement in a criminal case, that it was a case of colorable exercise of power that the respondent was not shown to be a temporary employee and that after completion of the probation, he could not remain temporary. The exact words in which these findings were recorded are as hereunder:- "No doubt, the services of a temporary employee can be terminated on 14 days, notice or pay in lieu thereof in accordance with the provisions of section 11 (3) of the Civil Servants Act (LXXI of 1983) but the power of termination has to be exercised judiciously and not arbitrarily. The circumstances show that the appellant's services were terminated not in the public interest, but for the reason that he was involved in a criminal case. It is also admitted that he was served with a charge-sheet, but the departmental proceedings were not taken to logical end. If the appellant was being punished for the acts for which he was being prosecuted in the Criminal Court, then proper action should have been taken against him under the Government Servants (Efficiency and Discipline) Rules. The making of order under section 11(3) of the Civil Servants Act is a colorable exercise of jurisdiction and as such it does not create any obligation.
6. Apart from the facts stated above, it has not been established that the appellant was a temporary employee, under section 6 of the Civil Servants Act, 1973, it is other than ad hoc appointments which are made on probation. The order does not show that the appellant was appointed against a temporary post. Had it been so, then there was no point in placing him on probation. In the written statement also, it was indirectly admitted that the appellant's appointment was made in regular manner. The appellant has served the Ministry of Foreign Affairs for eight years and it never occurred to them previously that he was a temporary employee liable to termination of his service at any time. The very fact that the appellant was placed on probation shows that the appointment was made on regular basis against a regular vacancy. The insertion of the condition of the appellant being treated as a temporary employee after the period of probation is against the spirit of law and the rules."
7. Mr. Munir A. Shaikh, the learned Deputy Attorney-General, contended that from the terms and conditions of employment of the respondent, it was clearly established that he was a temporary employee and his service was terminable on fourteen days notice on either side. There was nothing on the record to hold otherwise. Even a temporary employee could be put on probation and could even after successfully completing the period of probation deemed to be a temporary employee. His confirmation depended on the availability of permanent post and it was not shown, not even alleged that the respondent was the senior most awaiting confirmation and a permanent post for his confirmation was available. He has referred to the decisions of this Court in Abdul Karim v. The West Pakistan Province PLD 1956 SC 298; The Federation of Pakistan v. Sirajul Islam PLD 1957 SC 77; The Secretary East Pakistan Industrial Development Corporation, Dacca 1970 SCMR 398, and Maulvi Ghulam Rasool v. Administrator Auqaf, Sind 1976 SCMR 73 to contend that where two powers are concurrently available; one of dismissal, removal or terminating the services with a stigma and the other of terminating the service without stigma in accordance with the terms and conditions of the employment, it is open for the employer to adopt either. It could not be claimed that necessarily the disciplinary proceedings resulting in his dismissal or removal should have been adopted.
8. Qazi Atiqur Rehman, Advocate, the learned counsel for the respondent, on the other hand indicated that in the Civil Servants Act though ad hoc appointment is defined but temporary appointment is not defined and as the respondent was placed on probation and had rendered over eight years of service, he could not but be treated to be a regular employee and his services could not be terminated by recourse to the notice clause. He has referred to the case of Jafar A.I Akhtar Yousaf zai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 for establishing the merits of his claim.
9. It is correct that the Civil Servants Act does not define temporary appointment. Nevertheless provision has been made in section 11(3) in the following words:- "(3) Notwithstanding the provisions of subsection but subject to the provisions of sub-section (2), the services of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof."
10. Section 25(2) provides as follows:- "(2)Any rules, orders or instructions in respect of terms and conditions or service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
11. There exists The Temporary Employment Rules, 1965 which was framed by the President in exercise of the powers conferred by clause (1) of Article 179 of the Constitution (1962). On the strength of section 25(2) it will be deemed to be a rule made under the Civil Servants Act. Sub-rule (2) of rule 2 and sub-rule 3 define 'temporary employment' and 'temporary employee' in the following words:- "(2) temporary employment' means employment by the Government of a person in a civil capacity otherwise than:-
(a) on a permanent basis; or
(b) as a probationer; or
(c) on probation; or
(d) on contract; or
(e) as a workman as defined in the Industrial Disputes Ordinance, 1959 (XVI of 1959); or
(f) on deputation from a Provincial Government; and
(3) temporary employee' means a person who is in temporary employment."
12. Rule 4(1) is in the words that follow:- ---4.(1)The Government may terminate the services of a temporary employee at any time, without assigning any reason, by giving a notice in writing for a sum equivalent to his pay for fourteen days or for the period by which the notice falls short of fourteen days."
13. "He has been serving continuously ever since his appointment from 12-7-1975 uptill the issue of the impugned order. He has thus, put in more than 8 years of service and his name appeared in the seniority list or Lower Division Clerks issued by the Ministry of Foreign Affairs, Islamabad. Under the circumstances, the appellant could not be treated as a temporary employee, nor could he be condemned unheard in such an arbitrary manner."
14. No rule or term and condition of appointment has been cited for claiming that continuation for eight years or more ipso facto converted the temporary appointment into permanent appointment. If the post against which his appointment was made was itself temporary he could not be made permanent nor could his posting on a permanent post make his appointment permanent. The decision in Yousafzai---s case is of no avail because prolonged officiating appointment where a permanent vacancy was available was deprecated. In this case there is no averment or material to show that there was a permanent post available and he was the senior most awaiting confirmation. Section 7, subsection (5) of the Civil Servants Act provides that confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy or post or from the date of continuous officiation, in such service or post, whichever is later. On satisfactory completion of probation a civil servant can only claim to have become eligible for confirmation and nothing more. In the case of Muhammad Naseem Ahmad v.
15. Miss Azra Feroz Bakht PLD 1968 SC 37 it was held that "it is not unusual furthermore for confirmation to be postponed as confirmation can be only made when a permanent post exists against which a new incumbent can be confirmed."
16. PLD 1984 SC 430 it was held that there is no cavil with the proposition that confirmation is not a legal right which can be enforced by the agency of the Tribunal or, indeed, any other legal agency.
17. There is, therefore, no concept of automatic confirmation and that it is in the discretion of the employer exercisable on the availability of permanent post and after the completion of the probationary period.
18. All public power has to be exercised for the purposes for which it is conferred. As the power of employing persons and terminating their, employment is given in public interest, it has to be exercised in public interest and there has to be no arbitrariness or malice in the exercise of it.
19. It follows, therefore, that the appointment of the respondent was expressed to be temporary and it was so. He did not become a permanent employee notwithstanding the completion of the probationary period. As the termination of his service was in accordance with the conditions of his employment, which were not violative of section 11(3) of the Civil Servants Act, or the Temporary Employment Rules, 1965--- the respondent could not seek redress against it. This appeal is allowed, the iitidgment of the Service Tribunal is set aside and the service appeal filed by the respondent stands dismissed. No order as to costs.