' CH. HASAN NAWAZ (MEMBER).--On the recommendation of the Federal Public Service Commission made on 15-9-1983 (Annex. H) and having accepted the terms and conditions of service laid down by the Government of Pakistan (respondent No, 1), the appellant was appointed as Junior Instructor in BPS-17 in the Population Welfare Division by notification dated 25-1-1984 (Annex. B).
2. As borne out by this notification, he was to remain on probation for a period of one year extendable for a further period of one year with the approval of the competent authority.
3. In pursuance of the orders of his appointment dated 25-1-1984, he relinquished charge of the post of Statistical Assistant, which he was holding in the Tourism Division before his appointment, and assumed charge of the post of Junior Instructor, Regional Training Institute, Multan on 30-1- 1984. By memo. Dated 25-9-1984 (Annex. G) issued by the Ministry of Planning and Development, the appellant was informed "that in accordance with the terms and conditions of his appointment contained in the Population Welfare Division Memo. No, 6- 4/82-Admn.II(B), dated 5-12-1983, the competent authority has been pleased to terminate his services with effect from 9-10-1984 and he will stand reverted to the Tourism Division to the original post of Statistical Assistant (BPS-11) in his parent department." The memo. "said that it may please be treated as 14 days' notice".
4. Notification No, 17/82/MSG/Admn.II(B), issued on 9-10-1984 filed with the written statement by the Ministry of Planning and Development is also relevant. It said that "in continuation of this Division's Memo. Of even number dated 25-9-1984, the services of Mr. Samiullah Ghauri, Junior Instructor, Regional Training Institute, Population Welfare Division, Multan are hereby terminated with immediate effect".
5. We might as well take notice of Office Memo. Dated 9-10-1984 (Annex. H/I) addressed by the Ministry of Culture and Tourism (Tourism Division) to the Ministry of Planning and Development (Population Welfare Division), on the subject of appellant's reversion. A reference was made to memo. Dated 25-9-1984 (Annex. G) with the request that reasons for termination of the appellant's services may be intimated and that his reversion to the Tourism Division may be withheld pending this clarification.
6. Office Memo. Dated 16-10-1984 (Annex. H) was issued by the Population Welfare Division to inform that the performance of the appellant was not found satisfactory. This was obviously stated as reason for the termination of his services.
7. Reference may also be made to memo. Dated 3-12-1984 (Annex. III) filed with the written statement. It said that "consequent upon his reversion from the Ministry of Planning and Development (Population Welfare Division), Islamabad, Samiullah Ghauri (appellant) is hereby appointed as Assistant Engineer (BPS-11) on his original post in the Ministry of Culture and Tourism (Tourism Division), Islamabad, in the same basic pay scale viz. Rs,700-35-1400 plus other allowances as admissible under the rules with effect from 10-10-1984 (F.N.)".
8. On 24-10-1984, he addressed an appeal (Annex. I) to the President through the Secretary, Establishment Division for review of the orders of termination. From the record, we find another representation/appeal (Annex.I/1) for the same purpose to the Secretary, Population Welfare Division, and Government of Pakistan.
9. Having failed to receive any response from the respondents in respect of his departmental appeal, dated 24-10-1984, within the prescribed period of 90 days, the appellant came to this Tribunal on 12-2-1985 with the present appeal under section 4 of the Service Tribunals Act, 1973, to challenge the validity of order dated 25-9-1984 terminating his services.
10. As we see from the record, on 4-9-1984, Secretary, Population Welfare Division addressed a summary to the Secretary, Establishment wherein it was proposed that the services of the appellant may be terminated by giving him 14 days' notice and that he may be reverted to the Tourism Division to his original post of Statistical Assistant. It was stated that his parent department had allowed him to right of reversion for a period of one year. The ground in support of the proposal was that he had been indifferent towards the work assigned to him by the Principal Regional Training Institute Multan; that he is in disciplined, stubborn, irresponsible and even disobedient and that it appears that he had not been able to adjust himself to the changed situation with higher responsibilities attached with his new post. It was stated that "in any case he is not found fit for the post to which he has been appointed and that his continued presence in the Division will spoil the discipline in the office." This proposal was approved by the competent authority, as we can see from the Establishment Division U.0, No, 6/10/84-D-2, dated 17-9-1984 filed with the written statement.
11. It may also be mentioned as material fact with advantage, to complete the statement of facts, that on 23-5-1985, after the present appeal had been filed, the Secretary, Population Welfare Division addressed a summary to the Prime Minister on the appellant's departmental appeal with paradise comments, with a recommendation that the appeal may be rejected. While seeking the competent authority's orders, the grounds mentioned in the earlier summary to the Secretary, Establishment were repeated, with the additional observations that "in view of unsatisfactory work and conduct of Mr. Samiullah Ghauri, it was not advisable to let him continue and set a bad example for others in the Training Institute, especially where all the trainees are female para- medical workers and most of the staff members are also female." Certain documents were filed with the comments of the Division to show that the appellant's work had not been satisfactory and that he was not suitable for the job. These documents include orders/notices issued by the Principal of the Regional Training Institute, Multan calling the appellant's explanation. They bear out that she was not satisfied with his work.
12. We find from the Establishment Division U.O. No, 2/2/85-Rev./D-3, dated 1-10-1985 issued with reference to the Population Welfare Division's summary dated 23-5-1985 that the competent authority was pleased to reject the appellant's application for review.
13. Although in summary dated 4-9-1984 addressed to the Secretary, Establishment, it was mentioned that according to the terms and conditions of his appointment, the appellant is a temporary employee and his services could be terminated at any time without assigning any reason on 14 days' notice, it is clear from the facts of the case and the respondents' written statement that his services were in fact terminated without notice under section 11(1)(i) of the Civil Servants Act, 1973, during the period of probation and that he was reverted to his parent department with effect from 9-10-1984. The defence, in the main, is that he was appointed on probation for a period of one year against a temporary post and that his services could be terminated without notice and assigning any reason under section 11(1)(i) of the Act.
14. The main ground relied upon by the appellant is that his services were terminated on account of misconduct and inefficiency, as it appears from Annexures C to F and that he was entitled to a show-cause notice, which could have given him an opportunity of explaining his position and pleading against the proposed action. It was averred that the impugned order was given the colour of `termination simplicities' to get out of the obligation of giving him an opportunity to show cause against the proposed action. Reliance has been made in support of his case by the appellant on Muhammad Siddique Javed Choudhri v. Government of West Pakistan cited at the bar PLD 1974 SC 393.
15. In this case after examination of various authorities on the subject, it was observed that a probationer is a person who 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. While agreeing with the view expressed in Muhammad Afzal Khan v.
Superintendent of Police, Montgomery and Riaz Ali Khan v. Pakistan that a person who is on probation is subject to all checks to which a permanent servant is subject, it was held that if the service of a probationer is terminated on the ground of unsatisfactory work, it will not amount to dismissal or removal from service and that it will be in terms of the contract or the rules made by the Government. It was further held that if the service of a probationer is terminated on the ground of misconduct which amounts to removal or dismissal, he will be protected by provisions of Article 177 of the Constitution of 1%2 and entitled to a show-cause notice and proper enquiry.
16. While coming to these conclusions, reliance was also placed by the Supreme Court on the observations made by late Justice Hamoodur Rahman in the case of Muhammad Naseem Ahmad and others v. Miss Azra Feroze Bakht and others PLD 1968 SC 37. These are to the effect that there is no rule or practice of general application with regard to confirmations and the Government has reserved to itself the right to determine how, when, in what manner and with what effect from what date confirmations will be made. There is also no unreasonableness in this, for it is only the employer who can say when a probationer is to be considered to have become fit for permanent retention according to his requirements and until then he can have no lien to or right of retention in service.
17. The Supreme Court's dictum in this case was also followed in the case of Pakistan (Punjab Province) v. Riaz Ali Khan decided on 14-12-1981 (1982 SCMR 770). In that case, Riaz All (respondent) was employed as Senior Clerkcum Accountant in the Punjab Veterinary College, Lahore on probation for a period of two years and subject to passing the qualifying examination of Punjab Public Service Commission. Before the expiry of the probationary' period, however, his services were terminated on 17-8-1953 on the ground of unsatisfactory work. Before this order was passed, he was issued a notice to explain if he had to say anything against this ground which he attempted to explain in his written representation which was not accepted.
18. It was held that from the pleadings of the parties, it was clear that there was no latent stigma of misconduct but the sole ground of termination of service was the respondent's unsatisfactory work which was also apparent from the explanation submitted by him and that, therefore, the result of the appeal was concluded by a judgment of this Court reported as Muhammad Siddique Javed Choudhri v. Government of West Pakistan. Like in the previous case, the statement of law was that a person on probation has to attain sure footing and show during the period of his probation that he is fit to be retained in service and that if his services are terminated on the ground of unsatisfactory work, it will not amount to dismissal or removal from service and it will rather be in accordance with the terms of the contract or the Rules made by the Government in that behalf.
19. In view of these observations, the authority relied upon by the appellant rather supports the respondents' case. He was only on probation and was thus under an obligation to prove his worth and establish, to the satisfaction of the respondents that he was suitable for the job assigned to him. As it would appear from the documents filed by him with the appeal, and also relied upon by the respondents, his work was not satisfactory and rather to the disappointment of the Principal of the Training Institute under which he had been working.
20. Then, it may be emphasized that his services were not terminated in consequence of any misconduct as could have been made the subject of an enquiry. It in fact was a 'termination simplicity' and the appellant wants us to read something in the impugned order which is not there.
It is evident from the facts that termination of his services did not amount to either removal or dismissal from service and it was thus not a penal action, as could have legally necessitated the service of a show-cause notice, giving him an opportunity to say something against the proposed action.
21. There is another aspect of the matter. The provisions of section 11(1)(i) were placed on the Statute Book obviously to serve some purpose. They clearly laid down that the service of a civil servant may be terminated without notice during the initial or extended period of his probation. A probationer is thus evidently on trial and he has to prove his worth and establish himself to the satisfaction of his employer before claiming entitlement to confirmation. If it be held that the service of a notice is necessary in every case, these provisions would become a dead letter. In case of any other interpretation, it would no longer be possible to visualize a situation where the provisions of section 11(1)(i) of the Act can be pressed into service.
22. Reliance has been placed on proviso to section 11(1)(i) in support of the contention that the services of a civil servant appointed to a higher post cannot be terminated so long as he holds a lien against his former post and that his reversion can be ordered only after the issuance of a show-cause notice. It will be enough to say that the facts of the case did not attract these provisions, as the appellant was neither transferred from one service, cadre or post to another cadre or post, nor he was appointed to a higher post by promotion.
23. Other grounds regarding service of 14 days' notice, the provisions of rule 21(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, reduction in rank have also been relied upon by the appellant in support of his case. We feel that they do not deserve any detailed address, as they are ex facie fallacious and without any substance. It will be sufficient to say that they suffer from intrinsic infirmities and thus hardly capable of promoting the appellant's case.
24. For the foregoing reasons, the appeal is dismissed as being without any force. There will be no order as to costs in view of the nature of the question involved for determination.
25. Parties to be informed.