'SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine the following questions of law of public importance arising in the case:-- "(1) Whether the order dated 18-12-1980 communicating the termination of the service of the respondent as Intelligence Officer with immediate effect foreclosed any further inquiry into the manner, the authority and the full satisfaction of the jurisdictional requirements for the action taken though it appeared ex facie from the record made available to the Federal Service Tribunal hearing the appeal?
(2) Whether Rule 17(2) of the Defence Intelligence Service (Civilian Class I) Rules, 1962 was ultra vices Article 220 of the Interim Constitution and was consequently neither saved nor continued under section 25 of the Civil Servants Act nor was it available for taking action against the respondent?"
2. The facts of the case show that the respondent was recruited in the Ministry of Defence as a Civilian Gazetted Officer (CGO) by an Office Memorandum, dated 31st January, 1967. The terms of his appointment, the relevant ones for the purpose of this appeal, are reproduced as hereunder:--
(ii) Probation.--12 months, subject to extension by another 6 months, if necessary. If he is found unsuitable during the probationary period, his services will be terminated without notice and any reason being assigned.
(iii) If the appointment continues after the satisfactory completion of the period of probation, it will be treated as temporary and terminable on 14 days' notice on either side or 14 days' pay in lieu thereof.
(iv) Eligibility for confirmation.--He will be eligible for confirmation in the appointment in accordance with his seniority and subject to the usual satisfactory reports."
3. In 1967, when this appointment was made, the Constitution of 1962 was in force and Article 179 of that Constitution permitted the President in relation to the affairs of the Centre to authorise the temporary employment of persons in the service of Pakistan and make rules for their temporary employment. The preceding Articles which protected the civil servants and their employment were not made applicable to the temporary employees except for Article 174. There is nothing on the record to show that the respondent was ever confirmed. On the contrary, the learned counsel representing the appellant has contended that he continued to be in temporary employment.
4. In the year 1972, the rules of service known as the Defence Intelligence Services (Civilian Class I)
Rules, 1972, were promulgated. At that time the Interim Constitution of Pakistan was in force. Like the earlier Constitution, Article 222 of the Interim Constitution made the provision for the temporary employment of persons in connection with the affairs of the Centre and as under the Constitution of 1962 they did not enjoy the Constitutional protection otherwise enjoyed by the employees under Articles 178 of the Constitution 1962 and 220 of the Interim Constitution. The Rules framed in 1972 had a provision as hereunder which was numbered as Rule 17. It is reproduced as hereunder:-- "17. Termination of service of a probationer etc. ---(1) The service of a probationer may, at any time, be terminated without assigning any reason therefor, and shall be terminated if, in the opinion of the Government, the up-take, work or conduct of a probationer is unsatisfactory or the probationer is otherwise not likely to groom up as an efficient officer in the Service.
(2) The services of a member of the Service may be terminated without assigning any reason if, at any time, the Secretary, Ministry of Defence, and the Director General declare that, because the member can no longer be trusted with official secrets, his further retention in service would be prejudicial to the security of Pakistan."
' Rule 18 dealing with confirmation reads as hereunder:- "On the successful conclusion of the period of probation a probationer may be confirmed in his or her appointment in the service. If no permanent post is available in the grade his or her appointment shall be treated as temporary until further orders."
5. The respondent was found involved in a number of criminal cases and at one stage a charge- sheet and a show-cause notice was also served on him. Further proceedings were not taken after the respondent had filed his reply to the charge-sheet and the show-cause notice. Instead an order to the following effect was communicated to him on the 18th of December, 1980:- "The competent authority has approved your termination from service with immediate effect."
6. After exhausting the departmental remedies against the order and not succeedings, the respondent approached the Service Tribunal challenging the termination of his' service on various grounds. The Tribunal recorded the following findings of fact and law which are reproduced at seriatim in the language used by it in its judgment:- "(i) Rule 17(2), therefore, does not go in line with Article 220(2)(b) of 1972 Constitution, and provides for quite a different situation not contemplated under the Constitutional provision giving the guarantee to the civil servant to show cause against the proposed action. Rule 17(2), in these circumstances, is obviously ultra vices the 1972 Constitution, and continues to be so, as section 25(2) of the Civil Servants Act, 1973 shall be deemed to protect only those provisions which, at the time of making, were good law.
(ii) It is not disputed that, in the case of the appellant, who was an officer of Grade-17, the power of appointment and consequently the power of dismissal or removal, in view of section 16 of the General Clauses Act (X of 1897) and the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, vests either in the President or his delegatee, the Establishment Secretary. The Secretary, Ministry of Defence, or for that matter, any officer equivalent or lower in rank, cannot be entrusted with the power of termination which is wholly the prerogative of the President, who has delegated it to the Secretary, Establishment Division, in case of officers of Grades 17 to 19. When rule 17(2) ibid was made, it was only the President who was the competent authority. Since the rule gave power to a person other than the President, it was, ultra vires the 1972 Constitution.
(iii) As already stated, rule 17(2) of the Defence Intelligence Service (Civilian Class I) Rules, 1972, being ultra vires the 1972 Constitution, was not duly made, and was not, therefore, good law, when the Civil Servants Act, 1973 came into force. Section 25(2) of the said Act, therefore, does not protect this rule. We would go to the extent of saying that even if rule 17(2) ibid was good law, when it was made, it cannot be deemed to have been protected under section 25(2) of the Civil Servants Act, 1973, for the reason that it violates the rule of natural justice that no man shall be condemned unheard.
(iv) Rule 17(2) ibid, therefore, is ultra vires the Civil Servants Act, 1973, and cannot be deemed to have been protected. Consequently, the action taken thereunder is without lawful authority."
' The Tribunal set aside the termination order. While setting aside the order of termination of service, the Tribunal passed an operative order in the following words:-- "We are quite mindful that the ISI is a sensitive organisation and the slightest doubt about some person may render him a security risk. If the ISI wants the overall power of doing away with the service of persons under its employment, without notice, then a law made by the President only can help them. In the present case, if the appellant does not suit them, he should be accommodated in an equivalent grade elsewhere."
7. Maulvi Sirajul Haq, Senior Advocate, the learned counsel for the appellants has taken us through the record in order to demonstrate that the appointment of the respondent was temporary, continued to be temporary; that the rules framed, particularly the provisions of Rule 17(2) were ultra vires and the action taken was competently, taken and was well-protected under the law applicable to the respondent.
8. After examining the record of the Service Tribunal, we find that the material record was either ignored or was not examined in its true perspective. For example, the appointment letter of the respondent at page 68 of the Tribunal's file containing the terms of his appointment, was totally ignored though it showed that even after completing the period of probation, the employee was to be treated as temporary and his services were terminable on 14 days' notice on either side or 14 days' pay in lieu thereof. His confirmation was to await in accordance with seniority and subject to usual satisfactory reports. There was no suggestion that till the impugned action was taken against him he was ever confirmed.
9. As regards the action taken against the respondent, there was record on the file of the Tribunal, consisting of a summary submitted to the President by the Secretary General Defence on 1-7-1972 containing the following recital and this summary is at page 81 and also at page 99 of the Service Tribunal's file:-- "In view of the peculiar nature/conditions of the service and the requirements of security, it has been proposed by the Director-General, Inter Services Intelligence that recruitment, pasting, promotion and other allied matters concerning the officers in the cadre of the Defence Intelligence Service, may be excluded from the purview of the Federal Public Service Commission. The Commission has agreed to the proposal. The Establishment Division have also been consulted and they have also agreed. For the same reason, the Rules will not be published in the Gazette but distributed to all the concerned under a secret letter.
' This Ministry recommends adoption of the draft Rules as finalized above.
' As all the posts under the Defence Intelligence Service are Civilian Class I (Gazetted), approval of the President is solicited to the adoption of the Defence Intelligence Service (Civilian Class I) Rules 1972 and to the exclusion of the Service from the purview of the Federal Public Service Commission under Article 228(2) of the Interim Constitution of the Islamic Republic of Pakistan."
' The file was with the above summary submitted to the President and the Rules were approved on 5-7-1972 by the President.
10. It was in 1980 that a Summary (available on record of the Tribunal at page 76) was put up before the President by the Acting Secretary, Ministry of Defence, containing the following recital:- "15. The Dte Gen ISI have stated that their investigations over a period have revealed that Mr. Sajjad Haider Syed, Intelligence Officer, due to his personal conduct/attitude/display of dubious character qualities, as also because of the activities of his close relatives/friends has lost the trust and confidence reposed in him and he could no longer be trusted with any official secrets. His continued re-employment with the ISI Dte is considered gravely hazardous and prejudicial to the security requirements. His further retention in service would be prejudicial to the functioning of the department and security of Pakistan. The ISI Dte, therefore, consider him unsuitable for employment not only in their department but even in any other appointment where he could be exploited against the State.
(6) In view of the above, the DG ISI has recommended that the services of Mr. Sajjad Haider Syed, Intelligence Officer, may be terminated under paragraph 17(2) of Defence Intelligence Services Rules, which reads as under-- "The services of a member of the Service may be terminated without assigning any reason if, at any time, the Secretary, Ministry of Defence and the Director-General declare that, because the member can no longer be trusted with official secrets, his further retention in service would be prejudicial to the security of Pakistan."
(7) The recommendations of the DGI had been concurred in by the former Secretary-General Defence.
(8) The Minister for Defence has also agreed to the proposal.
(9) Approval of the President is solicited to the termination of services of Mr. Sajjad Haider Syed, Intelligence Officer, ISI Dte under paragraph 17(2) of the DIS Rules."
11. This Summary was sent by the President's Office to the Establishment Division and the Establishment Secretary made the following comments on it:--
(11) The summary submitted by the Ministry of Defence has been carefully examined in the Establishment. Division.
(12) The Establishment Division would support the proposal to terminate the services of Mr. Sajjad Haider, Intelligence Officer, Directorate General, I.S.I. On the following grounds:-- ' Under Paragraph 17(2) of the Defence Intelligence Services Rules, under which the services of Mr. Sajjad Haider were sought to be' terminated, the responsibility for taking decision rests jointly with the D.G. ISI and Secretary General Defence. In the instant case this responsibility has been unequivocally enunciated in the summary;
(ii) Even otherwise, a person who gives and then retracts a confessional statement or by his own showing had active political and factional tendencies is hardly the type of person for retention in ISI; and,
(iii) Since the D.G., 151 has lost confidence in the officer, the latter would not have any utility in the ISI.
(13) In view of the above consideration the proposal contained in para. 12 above may kindly be approved."
' The President of Pakistan personally accorded approval to the proposal on 22-9-1980. It was, thereafter, that the impugned order issued which aggrieved the respondent.
12. It is clear from this record that the President had approved the termination, that the employment was temporary and not protected under Articles of the Constitution or even under the Civil Servants Act, because subsection (3) of section 11 of the Civil Servants Act provides, "notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (2) the service of a civil servant in temporary employment or appointed adhoc, shall be liable to termination on 14 days notice or pay in lieu thereof. The appointment of the respondent being temporary, Constitutional protection against the termination of employment being not available earlier to the enactment of the Civil Servants Act and the Rules of Service applicable to him as a temporary servant being continued under the Civil Servants Act, the respondent could not take exception to the termination order because it happened to be in accordance with the rules applicable. At the most, he could lay a claim to 14 days pay in lieu of no ice.
13. In the circumstances and in view of the legal position enjoyed by the respondent, it is unnecessary to examine whether Rule 17 of the Defence Intelligence Service (Civilian Class I) Rules, 1972, was ultra vires the Constitutional provisions or not. The authority competent under the Rules had taken action and it was protected. Hence, this appeal is allowed. The judgment of the Service Tribunal is set aside and the appeal filed by the respondent before the Service Tribunal stands dismissed. No order as to costs.