AMIRUL MULK MENGAL, J.- This is an appeal under section 5 of the .Balochistan Subordinate Judiciary Services Tribunal Ordinance, 1988 (Ordinance, XIII of 1988) challenging the order dated 22.10.1988 whereby the services of the appellant have been terminated.
2. Facts briefly stated are that appellant was appointed as Civil Judge (B-17) vide Notification No. S-II.3 (l)/79 S&GAD dated 19.7.1984 on the condition that he would remain on probation and his services were placed at the disposal of the High Court of Balochistan for posting. The appellant was posted as Civil Judge Loralai at Quetta and assumed his charge on 22.7.1984. The appellant started working as Civil Judge and was conferred the powers of Civil Judge IInd Class vide Notification No. 1088 dated 9.10.1987. It is the case of the appellant that he passed departmental examination as prescribed in the Rules. However, adverse remarks were passed against 'the appellant pertaining to the year 1985 which were communicated to him vide letter No. 34/PF/RHC on 12.5.1988. The appellant filed a representation vide No. 90 dated 12.5.1988. Similarly adverse remarks were passed against appellant pertaining to the year 1986 vide letter No. 130/34/PF/RHC dated 9.6.1988. As regards 1987 again adverse remarks were passed against the appellant. In these remarks there was allegation of corruption against the appellant.
3. It is the case of appellant that Respondent No. 3 did not forward his representations to the Chief Minister which he had filed regarding expunction of. Adverse remarks. It is also on record that the appellant failed to earn requisite units for disposal of cases per month. He was issued a letter No. 5447/22/RETN/INS dated 23.5.1988 by District and Sessions Judge (Inspection) whereby the appellant was asked to furnish explanation for not earning requisite units. With this background the services of the appellant were terminated vide Notification No. S-II.3 (74)/88 S&GAD dated 22.10.1988.
Feeling aggrieved and dis-satisfied with the order of termination the appellant firstly submitted a review petition to respondent No. 1 and after receiving no reply filed the present appeal.
4. We heard appellant Mr. Abdul Ghaffar Malik in person and learned Additional Advocate General Balochistan for respondents.
5. Mr. Malik firstly contended that since he had completed maximum probationary period on 19.7.1988 (in all four years), therefore, he was deemed to have been confirmed as Civil Judge. As such his services could not have been terminated without show-cause notice or enquiry and without adopting the procedure as laid down under Efficiency and Discipline Rules, 1983. It was secondly contended by the appellant that his services have been terminated under section 6 of Balochistan Civil Servants Act, 1974 read with Rule 8(2) of Balochistan Civil Judges Service Rules, 1984 despite the fact that he attained substantive footings and was no more a probationer after passage of four years. His case is that he received no show cause notice and that principles of natural justice have not been followed while'terminating his services.
6. Learned Additional Advocate General Balochistan Mr. Ejaz Yousuf Chaudhary however vehemently opposed the contentions so raised. According to him, appellant was appointed on the basis of probation and from the A.C.R. Of the .Appellant it has become clear that the appellant did not earq a good repute during his service although his probation period has been extended for another two years which in fact has been done to give him a chance to mend his ways but as is evident from the A.C.Rs. Of the appellant his conduct as far as disposal of cases or concerning his integrity were both doubtful. Learned Addl. A.G. Further contended that mere afflux of time' would not bestow a right upon a probationer to become a permanent employee or in other words his services would not be regularised if he failed to satisfy the appointing authority about.His efficiency'and' integrity during the period of probation. Our attention was drawn to the proviso to section 6 of Balochistan Civil Servants Act, 1974 which stipulates- that in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointing authority. Learned Additional A.G. Further argued that although Explanation in the Rules contemplates that if no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment but this is always subject to parent law ie. Balochistan Civil Servants Act, 1974.
7. We have considered the contentions raised by the appellant and learned Additional A.G. We have also gone through the record.
8. The appellant was appointed as Civil Judge on 19.7.1984 subject to the condition that he shall remain on probation under rule 8 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962 and will be required to complete such training and pass such departmental examination as may be prescribed from time to time.
9., This period of probation-was extended for two years. The main . Contention of the appellant is that after expiry of extended period of two years (in aggregate 4 years) his services are deemed to have been confirmed in view of Explanation to Rule 8 (3) of Baluchistan Civil Judges Service Rules, 1984.
10. Adverting now to this pertinent question we would like to reproduce - section 6 of Baluchistan Civil Servants Act, 1974 which reads as under:- "6. Probation: (1)........................... Proviso. Deleted by the Baluchistan Civil Servants (Amendment)
Ordinance IV of 1982.
(2).........................
(3).........................
(a) -.......................
(b) ........................
Provided that, in the case of initial appointment to a service or post, a qivil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointing authority".
The question for determination, therefore, would be whether after expiry of 4 years on probation the services of appellant have automatically been confirmed. In this regard reliance has been placed on Rule 8(3), Explanation II of the Baluchistan Civil Judges Service Rules, 1984 which are reproduced hereunder:-
8. Probation:- (1).................................................. 1 Explanation :-...........................
(2)..............................
(3) On completion of the period of probation of a member of the Service Government may subject to the provisions' of sub-rule (4) confirm him in his appointment, or if his work or conduct has, in the opinion of Government, not been satisfactory:-
(a) dispense with his sendees; or (b) extend the period of the probation by a period not exceeding two years in all, and during or on the expiry of such period pass the orders as it could have passed during or on the expiry of the initial probationery period.
Explanation-I: If no orders have been made by the day following the completion of the initial probationery period, the period of probation shall be deemed to have been extended.
Explanation-11: If no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended.
(4) -..'.....................
(5) ..........................
From careful perusal of the proviso to section 6 of Balochistan Civil Servants Act, 1974 it becomes clear that in case of initial appointment (as is the case in hand), to a service or post,, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedent have been - verified as satisfactory in the opinion of the appointing authority". It is a settled principle of law that the Rules of a statute or an Act are in the aid of the parent Act and the courts while interpreting it, shall read the rules with the provisions of the Act. It is clearly laid down that the services of a probationer shall only be deemed to have been confirmed if the character and antecedents of the civil servant have been verified as satisfactory. We find much strength and force in the contention of learned Additional A.G. Balochistan that the proviso to section 6 of . The Balochistan Civil Servants Act contemplates and puts a clear bar on automatic confirmation which is always subject to satisfactory completion of probation period of the civil servant in the opinion of the appointing authority, in order that it becomes confirmed. Although as shall be discussed in a latter part of the judgment that Explanation II of Rule 8(3) of Balochistan Civil Judges Service Rilles, 1984 are not in conflict with section 6 but still if that be so, then such Rules in deviation of the main section of the Statute could not be relied upon as it would be void on account of being repugnant to main Statute. Reliance if any can be made to 1986 PLC (C.S.) 81 and 1986 CLC 2892.
11. Viewing the case of present appellant in the light of what has been . Stated hereinabove, the learned Additional A.G. Pointed out that, as is evident from the A.C. Rs. Of the appellant, he earned a bad reputation which have been incorporated in his A.C.Rs by the then Acting Chief Justice as well as the then Chief Justice of Balochistan. It is also evident from the record that on account of aforementioned reason, the Government of Balochistan terminated the services of the appellant. In other words although the appellant has completed the period of probation but he has not completed it as satisfactory as was required by the proviso to section 6 of the Balochistan Civil Servants Act, therefore, the natural corollary of the aforementioned discussion would be that the services of the appellant carl not be deemed to. Have been confirmed and he was oh mere probation when his services were terminated for which no inquiry was needed or required under the Act.
12. It is thus clear that the appellant being a probationer while his services were terminated on ground of un-satisfactory work, therefore, the same ' does not amount to dismissal from service or removal from service, as such the question of issuing notice, appointing an inquiry officer etc. Do not arise. In this regard benefit may be taken from 1982 S.C.M.R. 770.
13. From careful perusal of Explanation II to Rule 8(3) it becomes clear that the legislature has added "or may be deemed to have been so extended" after the words "if no orders have been made by the day oh which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was extended". It means that even Explanation II does not make it obligatory or absolute that services of a probationer shall be automatically confirmed after expiry of extended period, if no Orders for extension are passed because had that been the intention of the legislature then, the word "or, may be deemed to have been so extended" should not have been incorporated in Explanation II. Thus from plain reading of Explanation n, after expiry of extended period, two conclusions can be visualized, firstly, that the probationer's services are deemed to have been confirmed, and secondly; his services are deemed to have been extended after expiry of the probation period if no express orders have been passed. The first conclusion is subject to proviso to section 6 of the Balochistan Civil Servants Act that the probationer must complete period of his probation satisfactorily in the opinion of the appointing authority.
14. The appellant, as pointed out earlier, got adverse remarks as regards his reputation and antecendants by the Chief Justice, therefore, the appointing authority ultimately terminated his services.
Even otherwise if this proposition is seen from another angle that an Explanation to a Rule or Sub- rule would not create a liability or vest a right independently which is not so created or vested by the main rule or parent law. Because Explanation to a statutory instrument is merely to clarify or to facilitate proper understanding of a provision and to serve as a guide but it never completes function and object of a provision. To supplement the above principle reference can be made to PLD 1981 S.C.-1 and PLD 1984 S.C. Page 92. The conclusion, therefore, would be that after expiry of extended period of to years the services of appellant were deemed to have been extended but during this period the Chief Justice communicated the adverse remarks to the appointing authority which was pleased to terminate the services of the appellant vide impugned order dated 22.10.1988. The contention of the appellant that an inquiry should have been conducted as provided under Rule 6 of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983 and subsequent procedure should have been adopted becomes irrelevant as the appellant was just a probationer. A. Probationer is always inducted in service to the condition that it will attain a firm footing only if he succeeds in establishing that he is a fit person to be retained in service. Hence a probationer is not dismissed or removed from service but his services are tenninated, therefore, no show-cause notice is required. This view is fortified by PLD 1974 S.C. 393,and 1985 S.C.M.R. 1978.
15. As to the proposition that the service of a probationer after expiry of 4 years period is automatically deemed to have been confirmed, it may be noted that neither the law nor the rules so provide. The condition precedent being that he should pass this period with a dean record and to the satisfaction of the appointing authority, there can be no automatic confirmation. The Full Bench of .Allahabad High Court in case of Chief Conservator of Forests vs. DA. Lyall, ' (AIR 1961 Allahabad 450) held as under:- " "A Government servant on probation is not to be deemed to be confirmed on the expiry of the period of his probation, if no orders confirming him in his substantive post or extending his period of probation are passed by the competent authority.
The orders confirming the officer, terminating his appointment, or extending the period of probation may be passed even after the expiry of the period of probation provided the decision is leased on the work and conduct during the period of probation".
It was further observed as under:- He acquires the status of a confirmed Government servant on that post only as a result of an affirmative order passed in that behalf by the competent authority".
16. It is thus established from the aforementioned discussion that the appointing authority after coming to know the adverse remarks on the reputation of the appellant by the Chief Justice terminated the services of the appellant and rightly so as the appellant was a probationer, therefore, his services were terminated and . He was neither removed nor dismissed from the service. Therefore, questions relating to show-cause notice,' inquiry etc. Do not arise. Thus we find no force in this appeal which merits dismissal. We . However, we leave the parties to bear, their on costs.