' CHAUDHRY ABDUL RASHID (MEMBER).--This is an appeal der section 4 of the Punjab Service Tribunals Act, 1974 filed on 19-9-1987 by a Munawar Ahmed, Ex.-D.F.C. In which he has impugned the order dated -6-1987 of the Acting Secretary Food whereby the services of the appellant re terminated and the letter dated 20-8-1987 of the Government of the Punjab, Food Department, whereby the representation of the appellant for reinstatement was rejected. He has impleaded the Secretary Food as respondent. The appeal was admitted to regular hearing on 29-3-1988 and has been contested by the respondent.
2. The facts of the case are that the appellant was working as Public Relations Officer in the Punjab Sports Board in Grade-17. A wing of the said Board was abolished and the appellant was rendered surplus. He was placed in the Surplus Pool of the SGA & I Department. On the recommendations of the Punjab Public Service Commission, the appellant was absorbed as District Food Controller in BPS-16 against the direct quota on the following terms and conditions on 29-1-1987:
(1) He will be placed at the tail of the present seniority list of the District Food Controllers etc.
(2) He shall be governed by the Revis-d Leave Rules, 1981 as amended from time to time.
(3) He shall be governed by the provisions of the West Pakistan Food Department (Gazetted Posts)
Recruitment Rules, 1963.
' The appellant reported for duty to the Food Department on 29-1-1987 and was attached with the Lahore Region for undergoing training. He remained with the Lahore Region of the Food Department upto 14-4-1987. He underwent Civil , Defence Officers' Course Welfare for the period from 21-2-1987 to 4-3-1987. He was attached with the District Food Controller, Gujranwala to understand the wheat procurement operations vide Directorate of Food, Punjab Order dated 16-4- 1987. On 11-6-1987 the following Notification was issued by the Acting Secretary Food terminating the services of the appellant:- "The services of Rana Munawar Ahmad, District Food Controller (Under Training) attached with the District Food Controller, Gujranwala are hereby terminated with immediate effect under section 10(1) of the Punjab Civil Servants Act, 1974 read with rule 8(2) of the W.P. Food Department (Gazetted Posts) Recruitment Rules, 1963." The appellant submitted a representation on 9-7-1987 to the Chief Minister. The representation was rejected by the respondent on 20-8-1987. Hence the present appeal.
3. The learned counsel for the appellant submitted that the provisions of the rules under which termination order has been made are not applicable to the appellant because he was neither a direct recruit nor was he ever placed on probation. He further submitted that absorption from surplus pool is a special mode of appointment and the condition of probation does not apply to such cases. He further submitted that specific condition of probation is incorporated where candidates are appointed by initial recruitment as was done in the precedent case of Agha Shahid Majeed Khan vide Food Department Notification dated 29-8-1982. He further relied on judgments of the Honorable Supreme Court reported as 1988 SCMR 1458 and 1986 SCMR 30. The learned District Attorney submitted that the order of appointment of the appellant as D.F.C. Dated 29-1-1987 clearly lays down that he has been absorbed against direct quota on the recommendations of the Punjab Public Service Commission and that he shall be governed by the provisions of the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963. He submitted that according to section 4 of the Punjab Civil Servants Act, 1974 there are three methods by which an appointment can be made. These are by initial recruitment, by promotion and by transfer. There is no category by name of absorption from surplus pool. The appellant has rightly been treated as initially recruited appointee. He further submitted that consultation with the Punjab Public Service Commission according to the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and the Punjab Public Service Commission (Functions) Rules, 1978 is only necessary in the case of initial recruitment ainst direct recruitment quota and not in the cases of promotion or transfer. He further submitted that according to term No, 3 of his appointment provision of Rule 8 of the W.P. Food Department (Gazetted) Recruitment Rules, 1963 automatically applies which pertains to probation for a period of two years in the case of appointee by initial recruitment. According to sub-rule (2) of Rule 8 ibid if the work or conduct of the holder of a post during the period of probation has been unsatisfactory the appointing authority may notwithstanding that the period of probation has not expired, dispense with his services, if he has been appointed by initial recruitment. The learned District Attorney, therefore, submitted that since this is a case of initial recruitment his services have rightly been terminated under the said provisions.
4. We have given our anxious consideration to the arguments of both sides. The general instructions on the subject are contained in 0 & M Establishment Manual Volume II (Revised) page 614 in the following words:- "I am directed to say that the question how the seniority of the staff rendered surplus from various Departments of the Provincial Government on the eve of re-organization of 1962 and absorbed in different departments should be determined has been engaging the attention of Government for some time. It has now been decided that the permanent/temporary officials who were rendered surplus should be treated as direct recruits in the Departments in which they are absorbed and their seniority should be determined in accordance with the order of merit assigned by the Public Service Commission, Selection Board or the Appointing Authority as the case may be. The previous service rendered by them in the abolished Department will count only towards leave and pension.
Government realize that it will cause some hardship if a senior official is assigned a lower order of merit than a person who was junior to him in the original department. In such a case the Commission/Selection Board/Appointing Authority may ordinarily assign such a position to the senior official in the order of merit as would be in consonance with his seniority in the original department."
It is clear from the above that the officials rendered surplus have to be treated as direct recruits.
The appellant has been rightly treated as direct recruit and by virtue of condition No, 3 of his appointment, the provision of two years' probation automatically applies to him. The two authorities relied upon do not deal with probation and are, therefore, inapplicable to the present case.
5. We have also made analysis of various forms of appointments/posting provided in the Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and find that these fall in two distinct groups. One group is of temporary nature appointments conferring no right to continue in the post or service indefinitely. The following are such provisions:-
(a) Posting of a civil servant in any post provided in section 9 of Punjab Civil Servants Act, 1974.
(b) Re-employment as provided in section 13 ibid.
(c) Appointment on acting charge basis in Rule 10-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.
(d) Appointment on current charge basis in Rule 10-B ibid.
(e) Appointment by promotion on officiating basis as in Rule 13(1) ibid.
(f) Ad hoc promotion as in Rule 13(2) ibid.
(g) The deputation of an official of autonomous or semi-autonomous body against a post in Government as in Rule 15(1) ibid.
(h) Ad hoc appointment as in Rule 22(2) ibid. The other group is of appointments, which are likely to continue indefinitely and appointees become members of the service or cadre. Appointments by initial recruitment, promotion or transfer as provided in Rule 3 of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 belong to this I oup. According to sub-rule (1) of section 5 of the Punjab Civil Servants Act, 1974 initial appointment shall be on probation. The appointment by promotion or transfer according to subsection (2) of section 5 may also be on probation as may be prescribed and this has been prescribed as one year by Rule 7(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. There is, however, no requirement of probation for various forms of appointments in first group which are basically short term arrangements whereas this is a requirement for long term appointments of second group. Before making a firm commitment with an individual, the Government want to be sure that the person concerned is really fit for holding the post for which he has been tentatively selected. Such a person can only attain sure footing if he shows during this period of trial/probation that he is a fit person to be kept on that job. A probationer is taken into service subject to the final approval of the employee and the question as to whether he is or he is not to be employed for indefinite period remains to be finally decided on the basis of his performance during probation which may include training and tests. The absorption of a surplus officer in a service or cadre other than to which he belonged is also a long term arrangement and the employer cannot be deprived of the right of test checking for permanent retention/absorption--a right which has been conferred on him in case of direct recruit, promote or transferee. The question is what better claim has a surplus official as compared to the above three categories if for the sake of argument we treat this as a separate category. He does not have to face as strong a competition as a direct recruit has to or a transferee had to when he was selected, for his present post. He does not have the experience of the departmental functioning as a promote has. Why should then he be exempted from the trial? He may be very good in his original appointment before becoming surplus but this cannot be said about his appointment in new service or cadre. Only trial can establish this and he has been put to this test but he could not come up to the required standard. We, therefore, repel the arguments of the learned counsel for the appellant. We hold that the appellant was appointed by initial recruitment through the Punjab Public Service Commission and was placed on probation by the provision of appointment order and the application of Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as discussed above. We may mention that an amendment has been made in the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 on 17-2-1988 and provisos have been added to sub-rule (1) of Rule 3 thereof. The amended rule reads as follows and covers cases of absorption of surplus staff:- 3.(1) Appointment to posts shall be made by promotion, transfer or initial recruitment as may be prescribed by the Government in relation to the posts in a grade from time to time: ' Provided that where as a result of retrenchment in or re-organization of a Government Department/office or an Autonomous or Semiautonomous Organization set up by the Government, certain posts or cadres are abolished and Government decides by a special order, to absorb persons rendered surplus in consequence thereof, such persons may be absorbed against such posts in such manner and on such terms and conditions as may be determined by the Government: ' Provided that absorption of such persons shall be made on the recommendations of the Punjab Public Service Commission in case of posts carrying BS-16 and above and in case of other posts on the recommendations of the committee constituted by the Chief Minister or any officer authorized by him in that behalf: ' Provided further that for purposes of seniority, persons absorbed as above shall be treated as having been appointed by initial recruitment with effect from the date they take over charge in the absorbing functional unit/cadre.
(2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part III of these rules. The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time.
' Since this amendment had not been made when the appellant was appointed as D.F.C. Or when his services were terminated the provisions of circular quoted in para. 4 will be applicable as held by Honourable- Supreme Court in case reported as 1986 SCMR 30.
6. The learned counsel for the appellant submitted that the appellant had not completed the necessary training and was not posted as D.F.C. By giving him independent charge. He was not the holder of the post of D.F.C. In terms of sub-rule (1) of Rule 8 of the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963 reproduced below:--
8. Probation.--(1) A person appointed to a post against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment and for a period of one year, if appointed otherwise.
' His performance could, therefore, not have been judged rightfully because he was still in the process of getting training. The order of termination is, therefore, premature and against the rules.
The learned District Attorney submitted that the appointment of the appellant from the very first day was as D.F.C. A training programme was chalked out in such a manner that he could shoulder the Responsibilities of the post independently on its completion in a proper manner. His work and conduct was not satisfactory during the training period. The learned counsel for the appellant further submitted that the period of attachment with D.D.F. Gujranwala, on whose recommendations the services of the appellant have been terminated was only one month and a few days. Taking the analogy from writing of A.C.R. He submitted that the minimum period of forming the correct assessm ent of the officer's work and conduct is three months. He submitted that the D.D.F. Gujranwala could not form correct assessment in the short period of his attachment with him. A period of three months was necessary before he could form an opinion about the suitability or otherwise of the appellant's retention as D.F.C. The learned District Attorney on the other hand submitted that the competent authority had considered the entire record of the appellant for the period of 5 months during which he remained posted in the Food Department under training at various places and the opinion was based on his performance as a whole during this period. He further submitted that no minimum period for the purpose of termination of service during probation has been prescribed in the Punjab Civil Servants Act, 1974, Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 or the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963. We are of the view that he was holder of the post of D.F.C.
The day he joined as such. He drew his salary as such and underwent training in that capacity. The arguments of the learned counsel for the appellant are, therefore, repelled. We are further of the view that a total period of five months as in the instant case is enough for judging the performance of an official.
7. The learned counsel for the appellant further submitted that in case the appellant was not considered fit for the post of D.F.C. He should have been sent back to the surplus pool of SGA & I Department for absorption in some other post or service. The learned District Attorney submitted that it was in cases of promotion that the official concerned is reverted to his former position if he is not found fit for the higher post. He further submitted that it was not a case of transfer because transfer is from one living cadre to other living cadre. In the instant case the post of the appellant had been abolished and it was a matter of grace that he was accommodated in the surplus pool of SGA & I Department for the purposes of drawl of pay till such time he could be given a suitable regular appointment against a sanctioned post. In the instant case the appellant was given the post of D.F.C. But he did not prove himself suitable for holding the same. There was, therefore, no question of his going back to the surplus pool. No violation of any law or rules has, therefore, taken place by terminating the services of the appellant. Reliance was placed on the judgment of the Honorable Supreme Court in case reported as PLD 1974 SC 393 and in re: Civil Petition 313 of 1986 Farrukh Amin v. Government of Punjab and others decided on 19-10-1986.
8. We have examined the issue in the light of the provisions of the Rules. Necessary provisions are contained in sub-rule (1) of Rule 10 of the Punjab Civil Servants Act, 1974, which is reproduced below:- 10(1)The services of a civil servant may be terminated without notice;
(i) during the initial or extended period of his probation: ' Provided that where such civil servant is appointed by promotion on probation or as the case may be is transferred and promoted on probation from one service cadre or post to another service cadre or post his service shall not be terminated so long as he holds a lien against his former post, service cadre and he shall be reverted to his former service or as the case may be, cadre or post.
' If the appointment is made on ad hoc basis liable to termination on the appointment of a person on the recommendation of the Selection authority, on the appointment of such person.
We have already held that this was a case of initial recruitment. The only course was dispensing with the services of the appellant. It was surely not a case of promotion where one could be reverted to his previous post. It was not a case of transfer as has already been discussed. Even if we consider it to be a case of transfer for the sake of argument, the post which he occupied prior to his appointment as D.F.C. No longer existed in the Punjab Sports Board. He could not be reverted to his former position. The surplus pool is not a permanent arrangement. It does not constitute a service or cadre. Posts in the pool are created as and when required for surplus officials for so long as they are not absorbed. Once they are absorbed they no longer have any place in the pool. There is, therefore, no question of the appellant going back to surplus pool in the present case. He has not become surplus in the Food Department. On the other hand he did not prove himself suitable for the appointment. Had he become surplus in the Food Department he could have been placed in surplus pool again.
9. The termination is not with a stigma or for misconduct. No show-cause notice was, therefore, necessary. Moreover, no mala fides has been alleged. We, therefore, find no legal infirmity in the impugned orders.
10. The upshot of the above discussion is that the appeal has no merit and, therefore, is dismissed.
' There is no order as to costs.