JUSTICE KARAMAT NAZIR BHANDARI (CHAIRMAN).---This judgment will dispose of Service Appeals Nos. 11 of 1993, 12 of 1993, 13 of 1993 and 14 of 1993, as similar questions of fact and law are involved and it is otherwise desirable to decide them together.
2. The facts common to all the four appeals are that vide Notification, dated 7th of September, 1989, issued by Government of the Punjab, Services General Administration and Information Department, the four appellants including others were appointed as Civil Judges in the Punjab with effect from the date they assume charge of the posts, on the terms and conditions stated in the notification.
These appointments were made on the recommendation of the Punjab Public Service Commission.
In terms of the conditions Contained in the notification, the appellants accepted the appointment on 17-9-1989. Vide Notification dated 1st of October, 1989, each of the appellant was posted in various districts. On 9-10-1989, each of the appellant assumed the charge of the posts and commenced performing their duties. Vide Notification dated 4th of October, 1993, the services of the four appellants were terminated, in exercise of the powers conferred under section 10 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as the Act). The notification/order of termination was issued in the name of Abdul Karim Lodhi, Chief Secretary. The above appeals have been preferred against the order/notification of termination.
3. In the case of Service Appeal No, 12 of 1993 brought by Muhammad Akram Klialid, the additional fact to be noted is that this appellant was already serving in the Postal Department when he successfully competed and was recommended by the Public Service Commission and was appointed as Civil Judge, as noted above. According to this appellant he did so with the permission of his department. On behalf of the appellants the main arguments have been addressed by Mian Dilawar Mahmood, Advocate, which are adopted and supplemented by M/s. Mr. Tallat Farooq Sheikh and Mr. Zafar Ali, Advocates. Mr. Muhammad Akram Khalid appellant also further argued his own appeal. Malik Azam Rasool, Advocate defended the appeals on behalf of the competent Authority while Mr. Ghulam Haider Alghazali, learned Additional Advocate-General represented the Punjab Government.
4. Mian Dilawar Mahmood, Advocate mainly raised the following points:--
(I) The, appointments having been made by Governor, could not have been terminated by the Chief Secretary without specific authority in this behalf. He has maintained that the said authority could only have been conferred by a notification and in the absence of the same the order of termination is invalid;
(II) that Mr. Qamar Ijaz, one of the batch mate of the appellants joined service on 2-10-1989 and in view of this, all the four appellants will also be deemed to have joined service on 2-10-1989. In this way the order of termination dated 4-10-1993 was passed beyond the four years period of probation, and therefore, was illegal. Reliance for this purpose is placed on explanation to Rule 8(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (hereinafter to referred to as the Rules); (III)that in fact and notwithstanding the above grounds, the termination has been made in view of the adverse service record of the appellants and allegations of inefficiency and corruption and termination could not have been taken place in these circumstances without notice and opportunity to show cause against the allegations; (IV)that no reliance could be placed on the entries made in the A.C.Rs, as they were not communicated to the appellants within time and were made in violation of the instructions on the subject; (V)that in the facts and circumstances of the case the appellants will be deemed to have become permanent employees as they fulfilled the conditions of section 5 of the Act., 1974 and the relevant rule made thereunder;
(VI) Mr. Muhammad Akram Khalid appellant in Service Appeal No,12 of 1993 made the point that he joined on 5-10-1989 and would be deemed to have completed probation on 3-10-1993, and therefore, the impugned order passed on 4-10-1993 treating him as officer on probation is illegal; and (VII)this appellant has further contended that .he could not have been thrown out of service. He could only have been sent back to his parent department, where he still maintains a lien.
5. Mr. Azam Rasool, Advocate on the other hand have refuted the above submissions and has asserted that the explanation in Rule 8(2) relied upon by Mian Dilawar Mahmood, Advocate is restricted to determining the question of inter se seniority of the batch mates and has nothing to do with the determination of the question as to when each of the appellant assumed the charge of the post. With reference to case-law he has argued that the Tribunal can only examine the termination order and cannot further go underneath the order to determine whether it amounts to a case of remota! or dismissal, in view of the allegations of reported corruption or other adverse entries in the service record. He has emphasized that it is a case of termination simplicitor and, nothing more. He has also refuted the argument that the Chief Secretary could not have terminated the service of the appellants by arguing that under Rule 6 of the Rules, 1974, authority for appointment to a post in pay scale 16/17 is the Administrative Secretary. The Chief Secretary also acts as Administrative Secretary of Services General Administration and Information Department. He has also relied on Rules of Business of Punjab Government, 1974, Schedule 3, Part Ito show what cases have to be sent to the Governor of the Province for obtaining orders.
According to him, cases of Civil Judges (BS-17) are not to be sent to the Governor for orders.
Administrative Secretary being appointing authority could have terminated the services of the appellant.
6. I proceed to determine above points one by one. Taking up the first point if is not in dispute that all appointments in the Punjab take: place under the Punjab Civil Servants Act, 1974 read with the relevant rules including Rules 1974. Under Rule 6 thereof, appointments to posts in BS. 16/17 are made by Administrative Secretary concerned except such post in BS-16 for which any other authority is prescribed as appointing authority in the A relevant Service/Recruitment Rules. It is equally correct that appointing authority by and large is the authority, which can terminate, dismiss and remove a civil servant. The appellants were all appointed to the posts of Civil Judges, which fall in Basic Scale No,17. The appointment could therefore, be legally made by the Administrative Secretary and the same authority could also dismiss, terminate and remove' the appellants. It has not been disputed that the Chief Secretary is the Administrative Secretary of Services General Administration and Information Department. In view of this reasoning the termination by Chief Secretary will be deemed to be valid. Mian Dilawar Mahmood, Advocate, however, has argued that because the appointments were made by the Governor as is mentioned in the Notification, dated 7th of September, 1989, therefore, the termination could only have been validly made by the Governor. He has also relied on section 4 of the Act to 'contend that the appointments can only be made, in the prescribed manner by the Governor or by a person authorised by him in that behalf. According to him "expression authorised by him in that behalf" would be satisfied only if the said person is conferred authority by a separate notification issued by the Governor, in an individual case or class of cases.
8. This last argument of Mian Dilawar Mahmood, Advocate cannot be accepted. Under Article 129 of the Constitution, the supreme law, the executive authority of the Province, has to be exercised in the name of the Governor. The Rules of Business made under Article 129 of the Constitution specify the manner in which the business of the Provincial Government is to be conducted. The rules lay down in specific, the cases which have to be put up to the Governor for obtaining his orders either in accordance with the advice of the Chief Minister/Provincial Cabinet or in case he has to act in his discretion, by himself, independent of the any advice. The Governor has to exercise the executive authority of the Province either directly or "through officers subordinate to him", in accordance with the Constitution. The mere mention of the name of the Governor in the Notification of appointment dated 7-9-1989 does not show that it is the Governor himself who ordered appointments. It is the form of notification because the executive authority of the Province has to be expressed to have been exercised in the name of the Governor. Appellants being appointed to a post in BS-17 could have been validly appointed by Administrative Secretary and use of the name of the Governor is to fulfil the requirement of Article 129 of the Constitution. On a factual plane the appellants have not been able to show that the appellants were in fact appointed by the Governor under his own signatures or that the relevant file was ever put up before the Governor. They want this Tribunal to infer that because the notification says that the Governor is pleased to appoint, it should be presumed that the relevant file was actually put up before him and his signatures obtained. No such inference is possible. Sending of file to Governor was not necessary in 1989 because the Rules of Business had taken over the conduct of the business of the Provincial Government and under those Rules it was not necessary that the file be put up before the Governor. The argument of Mian Dilawar Mahmood, Advocate is, therefore, without any force and is hereby rejected. The impugned notification remains valid on this ground.
8. Next I take up 'the question as to whether the appellants were still probationers on 4-10-1993, the date of termination. In this regard the parties agree that the initial period of probation stood extended in terms of the relevant rules for further two years and the only dispute in this regard is when these four years should be deemed to have been completed and further whether in view of one Mr. Qamar Ijaz having joined on 2-10-1989, the appellants should also be deemed to have joined on the said date.
9. The Notification dated 7th of September, 1989 states:-- "On the recommendation of the Punjab Public Service Commission the Governor of the Punjab is pleased to appoint following candidates as Civil Judges in the Punjab with effect from the date they assumed charge of the post, on the terms and conditions given in the subsequent paragraphs."
10. Subsequent paragraph No,2 stated that the officers appointed shall remain on probation prescribed under Rule 9 of the P.C.S. (Judicial Branch) Rules, 1962. They were also required to complete training and pass such departmental examination as prescribed under rules or as may be prescribed from time to time. Under subsequent para. No,3 it was stated that the employment is purely temporary and the service may be terminated on one month notice without any reason being assigned or the payment of one month salary in lieu of the notice. Under para. 4 the offer held good for a period of one month from the date of issue of notification.
11. The terms of the above notification, the relevant date is the date of assumption of charge of the post. Mian Dilawar Mahmood, Advocate gave the date of joining as 9-10-1989. He has, however, maintained that this date is not material and it should be the date of the acceptance viz. 17-9-1989 which is material. He has also relied on rule 8(2) of the Rules, 1974 to contend that because one of the batch mates namely Mr. Qamar Ijaz joined on 2-10-1989 all the appellants should be deemed to have joined on the said date. There is no force in either of the contentions. Date of acceptance is completely immaterial to determine the commencement of the period of probation. In terms of Notification dated 7-9-1989 it has to be the date of assumption of charge of the post, which according to Mian Dilawar Mahmood, Advocate is 9-10-1989. The impugned order having been passed within four years of this date, should therefore, be valid on this score as well.
12. The other argument of Mian Dilawar Mahmood, Advocate on the strength of explanation to rule 8(2) of the Rules, 1974 is also without force and has to be rejected. Rule 8 clearly deals with the seniority inter se of persons appointed to post in the same grade. The principle contained in explanation will, therefore, have to be confined to the subject-matter of the rule viz. seniority and not the question with which we are dealing, viz. the starting point of the period of probation. 'The argument otherwise does not make any sense. If a person does not assume the charge of post on account of personal reason like disability, sickness or being abroad and unable to come back in time, it cannot and should not be stated that he joined the service on a date when the other person joined. Further, this assumption can only be raised by doing violence to the express language of the notification of appointment dated 7-9-1989:-- "........with effect from the date they assume charge of the post."
If the argument be accepted, it will read somewhat like this:-- "..........with effect from the date they shall be deemed to have assumed the charge of the post."
13.Mr. Muhammad Akram Khalid appellant in Service Appeal No,12 of 1993 claims that he joined on 5-10-1989 and if a year is taken to be of 365 days then he would be completing four years on 3- 10-1993, and therefore, the impugned order treating him on probation on 4-10-1993 will have to be held as illegal. The argument may be ingenious but has no legal weight. A year in his case will be deemed to have commenced on 5-10-1989 and will end on 4-10-1990. He will, therefore, complete four years on 4-10-1993 while he was still a probationer. Definition of year given in section 2(7) of the West Pakistan General Clause Act, 1956 is pertinent and it says "year" shall mean a year reckoned according to the Gregorian calendar. This argument of Muhammad Akram Khalid, appellant is hereby rejected.
14.The next important question is whether it is a case of termination simplicitor during the period of probation or its a case of dismissal/removal as is contended by the appellants. The order of termination does not give any reason at all. It reads:-- "In exercise of powers conferred on him by section 10 of the Punjab Civil Servants Act, 1974 the Governor of the Punjab is pleased to terminate the services of the following Civil Judges on probation with immediate effect:--
(1) Mr. Muhammad Arshad Azhar, Civil Judge, Taunsa Sharif.
(2) Mr. Liaqat Ali Shahid, Civil Judge, Sahiwal.
(3) Mr. Muhammad Akram Khalid, Civil Judge, Multan.
(4) Mr. Muhammad Arif Javed Shah, Civil Judge, Sargodha. Abdul Karim Lodhi, Chief Secretary."
15.The perusal shows that it is nothing but a termination simplicity. I have already held that on 4- 10-1993 each of the appellant was on probation. The appellants claim that their services have been terminated on account of the adverse entries in their A.C.Rs, and it is asserted that the competent Authority could not have done so without asking the appellants to show cause against the adverse entries. In other words the argument is that the termination involves a latent sigma and, therefore, could not have been resorted to. In the same line it is argued that this amounts to colorable exercise of power of termination. However, no specific allegations of illwill or malice has been made against the competent Authority or for that matter the Reporting and Countersigning Officer.
It has, however, been argued that the adverse entries were made in violation of the relevant instructions. Mian Dilawar Mahmood Advocate has relied on the so described basic judgment reported as Muhammad Siddiq. Javaid Chaudhry v. Government of West Pakistan (PLD 1974 SC 393), which has been followed in Pakistan (Punjab Province) v. Riaz Ali Khan (1982 SCMR 770), The Deputy Registrar, Cooperative Societies, Peshawar Division and another v. Farman Ali (1991 SCMR 400), Karachi Port Trust through Chairman, Board of Trustee v. Altaf Ahmed and another (1996 SCMR 1205), The Secretary, Government of the Punjab through Secretary, Health Department, Lahore v. Riaz-ul-Haq (1997 SCMR 1552) and Iqbal Wasti v. Collector of Customs, Karachi (1987 PLC (C.S.) 758).
16.Mr. Azam Rasool, Advocate on the other hand has relied on Federation of Pakistan v. Riaz Ali Khan (PLD 1958 (W.P.) Lahore 22) reversed in Riaz Ali Khan v. Pakistan (PLD 1967 Lahore 491). He has placed reliance of Pakistan (Punjab Province) v. Riaz Ali Khan (1982 SCMR 770), which according to him improves upon the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393). He has also referred to and relied on Abdul Karim v. The West Pakistan Province (PLD 1956 SC (Pak.) 298), The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Hague (1970 SCMR 398), Syed Tahir Hussain Shirazi v. The Government of the Punjab and others (1990 SCMR 1510) and unreported judgments of the Supreme Court in C.P.S.L.A.
No,36-L of 1992, decided on 2-12-1992. C.P.S.L.A. No, 313-L of 1986, decided on 19-10-1986 and C.P.S.L.A. No,156-L of 1992, decided on 4-4-1993. He placed on record the photo copies of all these orders to show that all these cases related to terminated' Civil Judges/Additional District and Sessions Judges in similar circumstances and the Supreme Court refused to interfere in the matter.
17. The reading of the above precedent case shows that the prepondeant view seems to be that a termination order be taken on the face of it to be a termination order and the competent Authority cannot be restrained from exercising power of termination even if there are, charges or allegations of corruption, indifference to work and other adverse allegations. Way back in 1956 in the case of Abdul Karim (PLD 1956 SC (Pak.) 298), the Supreme Court held:-- "that the termination was not necessarily mala fide, inasmuch as, it is open to the dismissing authority not to have recourse to the power of dismissal which is a drastic step and which affects subsequent employability of public servant, but to terminate service on one month's notice in accordance with the condition of his employment."
The above law was laid down in the case of Abdul Karim petitioner, who was temporary employee of P.W.D. and whose services could be terminated on one month's notice. He was, however, served a list of charges of misconduct and was asked to show cause why he should not be dismissed, but no action was takenon the basis of that inquiry. He was, however, then served with a notice terminating his service on the expiry of one month after notice. If this principle is applied to the case of the appellants, their case is worse as the appellants are only alleging that under the cover of exercise of the power of termination, the competent Authority was in fact dismissing them on account of charges to which appellants have not been confronted. In other words they are raising presumption against the competent Authority and then asking the Tribunal to apply the relevant law on that presumption and declare the termination order illegal. The hollowness of the argument is apparent. Again in the case of Muhammad Seraj-ul-Haq (1970 SCMR 398) the Supreme Court examined the question and after noting the language of the termination orders held, at page 400:- - "These orders do not at all contain any charge or stigma against the respondents. By these orders, their services were simply terminated with an offer of one month's pay in lieu of.notice on the sole ground that, their services were no longer required by the Corporation. These orders cannot, therefore, be regarded as orders terminating the services of the respondents by way of penalty."
Their Lordship did not agree with the view of the High Court, which relied on the note of the Executive Officer to the effect that there were general deficiency in the work of the employee. They, therefore, went, on to hold "it is true that an allegation about the efficiency of the respondents was there in the said office note, but the orders terminating their services as they are, were not founded on the said allegation. When the impugned orders themselves do not contain any charge or stigma against the respondents, it cannot be said that their services are terminated by way of penalty merely because an allegation about their efficiency was made in the office note."
18. The orders passed by the Hon'ble Supreme Court in C.P.S.L.A. No,36-L of 1992, dated 2-12-1992 also support the conclusion that in case of termination simplicitor, the Court/Tribunal has to see the order itself and nothing more. However, in an exceptional case of patent mala fides or gross case of colorable exercise of power, the Court/Tribunal could go deeper and hold that the termination in fact amounts to dismissal/removal and could not have been passed without compliance with the procedure laid down in relevant Efficiency and Discipline Rules.
19.As has been noted in the earlier part of the judgment, there is no allegation of mala fide or illwill whatsoever against the competent Authority passing the termination order. In the circumstances, therefore, I hold that it is a case of termination simplicitor and the plea that it amounts to dismissal/removal in view of the adverse-entries in A.C.Rs, is rejected.
20.In view of the above conclusion, the question whether entries in the A.C.Rs, were made and conveyed not in accordance with the instructions has become irrelevant and need not be attended to.
21.A submission was also made to show that the petitioners having fulfilled the conditions laid down in section 5 of the Punjab Civil Servant Rules, 1974 the appellants should be deemed to have become permanent. However, during the course of elaborate address, learned Advocates failed to substantiate or precisely articulate the point much less to show it has any weight. Section 5(1) says that initial appointment -shall be on such probation and for such period as may be prescribed.
Prescription in the case of appellant is the Punjab Civil Services (Judicial Branch) Rules, 1962. As has been noted above the dispute between the parties is not on the period of probation viz. four years but the dispute is when this period commenced and when it ended. These disputes have already been determined in the above paragraphs.
22.It was also argued that the provisions of keeping a civil servant on probation and power of termination is un-Islamic. Number of Articles of the Constitution like 2A and some judgments have been relied upon. This argument, however, cannot be examined by this Tribunal as this will have to be raised before the Federal Shariat Court under Chapter 3-A of the Constitution as it is the said Court alone, which enjoys the exclusive jurisdiction to determine the validity of any law or a provision of law on the touchstone of Quran and Sunnah.
23.To the claim of Muhammad Akram appellant in Service Appeal No,12 of 1993 that his termination does not mean complete ouster from service but only means reversion to his parent department, as the appellant still enjoys lien in the same, Mr. Azam Rasool, Advocate reacted that the High Court (now the competent Authority) will have no objection if his previous employer is willing to examine his case or even take him back. This submission of Mr. Azam Rasool, Advocate should clarify this aspect of the case. If the appellant is holding lien as claimed, we expect that the same will be dealt with in accordance with law.
24. For the foregoing reasons, and subject to observation in para. 23, we find no merit in the appeals, which are hereby dismissed with no order as to costs.