1. NASIM HASAN SHAH, J.---This petition is directed against the order dated 25-1-1975 of a Division Bench (consisting of Zaki-ud-Din P.1 and Javed Iqbal, JJ) whereby a Letters Patent Appeal (L.PA.
2. 2/74/BWP) filed by the respondent was accepted and the order of the learned Single Judge dismissing the writ petition filed by him, namely, W.P. No.3-8-73/BWP, was set aside.
3. The relevant facts are that the respondent, who is an FA. Passed the departmental examination of Patwar and thereafter also the Zilledar Examination held in July, 1951 and successfully completed the prescribed training on 2-12-1951. He was registered and accepted as Zilledar candidate with effect from 1-4-1952 under rule 6 of the Bahawalpur State Zilledar Service Rules, 1934.
4. Rule 8(b) of the Bahawalpur State Zilledar Service Rules, 1934 provides as follows:- "8(b)-A candidate registered under rule 6(a) of these Rules, when registered as accepted candidate, shall state whether he is prepared to accept provisionally, appointment in the service of Munshis. If he so desires and if there is a vacancy in that service he will be appointed as Assistant Munshi on probation under rule 6 of the Bahawalpur State Munshis Service Rules, 1938. His name will, nevertheless, remain on the register of Director accepted Zilledar candidates until such time as he may be appointed to the service."
5. Since no vacancy of Zilledar existed at that time, the respondent applied under rule 8(b) for being appointed as a Munshi till such time as a regular vacancy of a Zilledar occurred. The respondent was, accordingly, appointed as Munshi (A.V.C.---Assistant Vernacular Clerk) by the order of the Superintending Engineer of Bahawalpur Circle dated 12-8-1952. The respondent thereafter officiated in leave vacancy as Zilledar during different periods from 1953 to 1955. He was appointed as officiating Zilledar against a regular vacancy with effect from 28-1-1956 in the time scale of Rs.120-10-220/10-300 by the Superintending Engineer, Bahawalpur Circle. On integration of the erstwhile Bahawalpur State into the Province of West Pakistan, the West Pakistan Irrigation Department Zilledar Service Rules, 1963 (hereinafter called the 1963 Rules) were promulgated. In the year 1964, when a substantive vacancy in the service arose, the respondent was appointed as a Zilledar on two years probation with effect from 1-10-1964. The case of the petitioner is that under sub-rule (1) of rule 8 of 1963 Rules, a member in the service is required to pass the departmental examination. The respondent did not pass the said examination; hence his period of probation was extended further upto 30-9-1908. This order was passed on 12-9-1968 by the Chief Engineer.
6. However, only 11 days later on 23-9-1964 his services were terminated by the Chief Engineer before the expiry of extended probation period on the ground that he had not been able to clear the departmental examination within the probation period. This order was to take effect from 1-10-1968.
7. The order of termination was challenged by the respondent by filing a civil suit for declaration that the said order was illegal, without lawful authority and of no legal effect. He also prayed for temporary injunction restraining the respondent from implementing the said order. The trial Court issued a stay order restraining the respondent from implementing the order passed against him.
8. This order was challenged by the appellant in appeal before the District Judge,"' who dismissed it on 17-12-1909. He, however, modified the order passed by the learned trial Court to the extent that the appellant was not to be deprived from his substantive post by the appellant till the disposal of the suit. In the course of the order, the learned Additional District Judge has observed that the respondent was holding a post of A.V.C. Substantively as per his service record. Consequently, on account of the ad interim injunction passed in his favour, the respondent did not hand over charge of the post. However, during the pendency of the suit, he filed an appeal before the Secretary to the Government, Irrigation Department (Petitioner No.1) herein against the order of his termination on 18-10-1971. This appeal has been described in the judgment of the learned Singe Judge as a representation on the ground that there being no provision of appeal in the relevant rules against an order of termination, the said appeal could not be described anything else but a representation.
9. It may be mentioned here that in the order dated 23-9-1908 not only the 'services of the respondent but also of one Muhammad Saadullah son of Ikramullah were terminated on the same ground that he had not cleared the departmental examination during the period of probation. The said Saadullah had appealed/represented against the said order of termination and he was reinstated into service although he had only passed the middle class and did not even possess requisite qualification to be appointed as Zilledar candidate. The respondent, therefore, in his appeal, had prayed that he should be accorded a similar treatment as his case stood on a better footing than that of Saadullah. With regard to this appeal, the respondent was given to, understand that if he withdrew his suit he would be reinstated like the aforesaid Saadullah. Accordingly, the respondent withdrew his civil suit on 29-2-1972 and informed the respondent about this fact. It appears that the Chief Engineer, Irrigation Department (Petitioner No.2 herein) recommended the case of the respondent to petitioner No.1 for reinstatement but this recommendation was not accepted and the appeal/representation by the respondent was rejected without issuing any notice and without hearing him. The factum of rejection of appeal/representation was intimated to the respondent vide order of petitioner No.2 dated 10-1-1973 according to which order the services of the respondent were terminated with retrospective effect, i.e. 29-2-1972, the date on which he withdrew the suit.
10. The petitioner challenged the impugned order passed against him by filing a writ petition (W.P.No.3/S/73) before Bahawalpur Circuit Bench, Lahore High Court, which was dismissed by a learned Single Judge holding that the respondent was not holding the substantive post of A.V.C.
11. And the question of his being reverted to the said post on his failure to clear the departmental examination, therefore, did not arise. As for the question that his appeal was dismissed without hearing him it was held that the petitioner had no right of appeal under the 1963 rules and hence it was not necessary to dispose it of after hearing him, as this was really a representation. However, the learned Judge made the following observations in the concluding paragraph of his judgment dated 8-12-1973:-- .
12. "The point about the arbitrary treatment of the petitioner (respondent herein) has considerable force. It is strange that a person who was not qualified to hold the post or to be appointed to the post either in regard to age or `educational qualification, is employed as a' Zilledar but a person who was qualified under the rules of 1963, has been thrown out of employment after almost 18 years service, ranging from 1964 to 1972. If M. Saadullah could be accommodated as an officiating Zilledar, I do not see why the petitioner cannot be treated at par with him. As the matter relates to the fresh appointment, this Court cannot interfere in the exercise of writ jurisdiction. I would, however, recommend for reconsideration of the case of the petitioner in the light of the orders passed in regard to M. Saadullah. With this observation this writ petition is dismissed."
13. Aggrieved by the dismissal of his writ petition, the respondent moved a Letters Patent Appeal which was heard by a Division Bench of the Circuit Bench of the Lahore High Court. The learned Judges of the Letters Patent Bench in an elaborate order found that the respondent had been shown in office orders passed by the Superintending Engineer or the Chief Engineer, Bahawalnagar Circle to be holding the substantive post of A.V.C., and that all such orders were passed on the expiry of the probation period. Although there were some other office orders wherein he was not shown to be holding the post of A.V.C. Substantively but it was considered that in these circumstances, the benefit of doubt should go to the respondent and he should be treated to be holding the appointment of A.V.C. Substantively. On the point of appeal, it was found that the case of respondent was that under rule 11 of the 1963 Rules, the Rules of 1934 were attracted and thereunder a right of appeal was available to the respondent against the order of his termination from service dated 23-9-1968. Hence having filed an appeal he was entitled to be afforded an opportunity of being heard before the said appeal was disposed of. The learned Judges also held that the respondent withdrew his civil suit on the assurance that his case would be considered sympathetically, on the same line as the case of Saadullah had been considered, but contrary to the said assurance given to him his appeal was summarily dismissed, even without hearing him.
14. Thus, not only was the assurance given to him not respected but even the principles of natural justice, namely, that no adverse order would be passed without hearing the person affected thereby was violated. In this connection reliance was placed on Chief Commissioner Karachi v.
15. Dina Sohrab Katrak (PLD 1959 SC 45).
16. The overall conclusion of the discussion was expressed in the following terms:-- "The relevant rules applicable to the case clearly indicate that in case of termination or dismissal of the appellant (respondent herein) he was obliged under the law to be issued show-cause notice and to put in his defence in writing if he so liked. He had also right of appeal and the same could not be dismissed summarily without hearing him."
17. The appeal was, therefore, allowed and the order dated 23-9-1968 passed by the Chief Engineer, Irrigation terminating the services of the respondent was declared illegal and without lawful authority and the judgment of the Single Judge set aside on 19-11-1974, The only 'contention raised before us by Mr. Muhammad Abdullah Bajwa, in support of this petition, was that no show-cause notice was necessary to be issued to the respondent who was a probationer because in law no such notice is necessary where no misconduct is alleged. In this connection, reliance was placed on Muhammad Siddiq Javaid Ch. v. Government of West Pakistan (PLD 1974 SC 393) and an earlier decision of this Court reported as The Province of the Punjab v.
18. Muhammad Sharif (PLD 1959 SC 61). We do not think that these Judgments are relevant because the learned Judges of the Letters Patent Bench hale found that the petitioner was at least a confirmed A.V.C. Therefore, his services could not be terminated without a show-cause notice.
19. Moreover, he has a right of appeal, which he exercised, and was entitled to be heard before the said appeal was disposed of. Nothing has also been shown to us why the treatment accorded to Saadullah was not followed in the case of the present respondent.
20. In all these circumstances, we do not think that this is a fit case for grant of leave to appeal which must fail and is hereby dismissed.