' TARIQ PARVEZ, J.---Briefly stated facts of the case are that the petitioner who is presently posted ,at Women Study Centre was appointed vide Order No,1742(Estt:), dated 18-11-1993 as a Lecturer in the History Department, University of Peshawar.
' The petitioner had earlier been a student of the History Department and she or he obtaining .Gold Medal in the session she appeared in the examination and being an outstanding student of the Department, was offered initially ad hoc appointment as Lecturer in the History Department, (hereinafter refer to as Department). The Chairman of the Department, Ghulam Taqi Bangash, had been her teacher and both of them had reciprocal respects for each other as teacher and pupil.
However, after the induction of petitioner as Lecturer in the Department, the relations between the two became strained and they went to an extent that both of them started hatred against each other. Consequently, it became impossible for the two to work in the same Department and the University authorities were constrained to transfer the services of the petitioner from Department to Women Study Centre.
2. As mentioned above, office order. Dated 18-11-1993 regarding appointment of Miss Razia Sultana (the petitioner) was issued where she was appointed as Lecturer in BPS-17 but the said order was to take effect from 28-10-1993 or from the date, the joining of the duty. This was so because the petitioner was already employed on ad hoc basis in the Department. The appointment order contained that she will be placed on usual probation period of one year.
3. The respondent No,2 (hereinafter refer to as Chairman) who was ' initially more satisfied with the working of the petitioner, wrote a letter to the Registrar on 1-12-1993 regarding the confirmation of the fact that the petitioner has been appointed as Lecturer and also communicated her medical fitness certificate. On the same date, letter Annexure 'B' was addressed from the Chairman to the Vice-Chancellor requesting for condonation of the period of probation of the petitioner on the ground that she has already put in satisfactory teaching for three years. It was desired and deemed proper to adjust her teaching experience towards her one year probation and the confirmation be effected with retrospective date i,e, 29-10-1992. Reference in this regard was made to Chapter 2 of the Calendar of University of Peshawar Section 15' for such condonation. It appears that the above letter was replied in negative on 3-1-1994 as appears from a letter addressed from Registrar of the University to the Chairman recording that ad hoc service is not countable towards the probation period. As such pre-mature confirmation of Miss Razia Sultana petitioner was declined.
4. From this junction story of the two sides runs parallel but on two different directions, on one hand when some correspondence started between the petitioner and the Chairman and on the other between the University administration and the Chairman, As such correspondence has great bearing on the disposal of this writ petition, the resume of the two is but relevant.
5. We will pick up first the part of the story that was going on between the petitioner and the Chairman. It was on 19-4-1994 that a letter was addressed to the petitioner by the Chairman regarding her negligence in performance of her duty as Controller of Examination and also taking strong exception as to her causal leave dated 18-4-1994. On 23-4-1994 the petitioner replied .To the Chairman regarding her absence on 18-4-1994 and also explained the so-called negligence in duty as Controller of Examination. On 23-4-1994 another letter was written by the Chairman with regard to her casual leave which was termed to be absence from the Department on 24-3-1994.
Again on 16-5-1994 a letter in the shape of warning was communicated by Chairman to the petitioner recalling that she shall be careful as still she was performing duties on probation. The relation appears to gone tense when in this letter she was advised not to address communication to respondent No,2 by name but through his official designation. On 15-9-1994, exception is again taken to the absence of the petitioner on 15-9-1994. On 25-1-1995, under the subject "Examination Duty", explanation was solicited from the petitioner as to why she 'left the examination hall while on duty. Consequently, on the same dated i,e, 25-1-1995 she was 'directed by the Chairman to hand- over the charge of Controllership of Examination. A detailed communication is addressed on 29-1- 1995 by the petitioner to the Chairman, copy of which was sent to the Registrar of the University wherein on one hand the petitioner has full regard and has praised the conduct of respondent No,2 i,e, Chairman but on the other had alleged biasness and mala fide against the Chairman. One sentence from this letter would reflect as to what was the extent of hatred relationship between the two:-- "But I am at a loss to grasp the abrupt change in your state of mind."
6. On 29-1-1995, petitioner writes to the Chairman referring to his letter dated 1-12-1993 where the Chairman has asked the University for the condonation of period of probation on the ground of her previous service as ad hoc teacher. Letter dated 9-2-1995 from the petitioner to the Vice- Chancellor contains details of the rift and differences between the petitioner and the Chairman. In the next letter of February 16, 1995 the petitioner has requested the Registrar of the University to pass an order regarding her confirmation as by then she has completed one year probation period and read with the recommendations of the Chairman dated 1-12-1993 she was entitled to be confirmed from the previous date. There are many other documents attached with the writ petition and with the amended writ petition which gives the mind of the petitioner on her apprehension about the conduct of respondent No,2 and where she suspects that respondent No,1 i,e, Vice Chancellor has also connived with respondent No,2 in the case of confirmation of her services.
7. It was, however, on 5-3-1996 that the Vice-Chancellor was pleased to confirm the petitioner as 'Lecturer in the History Department w,e,f, 28-10-1995 whereunder period of probation was extended to one year i,e, from 28-10-1994 to 27-10-1995. Reference was made to Section 11(c) of the University of Peshawar Services Statute 1977.
8. On the other hand, the case of the petitioner regarding probation and her confirmation in the service was being corresponded, because the requirement of section 11 of the terms and conditions of service of the employees of the University of Peshawar (University of Peshawar Service Statutes 1977) is as under:-- "11. On completion of the period of probation of a University employee, the appointing authority may, subject to the provisions of section 13, confirm him in his appointment, or if his work or conduct has, in the opinion of such authority, not been satisfactory:
(a) in case of initial appointment dispense with his services; or
(b) in case he has been appointed otherwise, revert him to his former post, and if there be no such post, dispense with his services; or
(c) extend the period of probation by a period not exceeding two years, and during or on the expiry of such period pass such orders as it could have passed during or the expiry of the initial probationary period."
' It was, therefore, that the confirmation was subject to satisfactory completion of period of probation which satisfaction according to the submissions that we will be taking up later but made by the learned counsel for the respondents (University) were subject to correspondence made between the Chairman and the University as the Chairman was the immediate supervising boss of the petitioner.
' In that, a letter of 5th May 1994 from Registrar of the University to the Chairman indicates that the incumbent Miss Razia Sultana shall remain on probation scruiting as her carelessness in conduct has raised eyebrows of senior staff of the Department. Similarly, on 4-9-1994 the Registrar again asks for the comments of respondent No,2, the Chairman, to keep the University upto date as to the behaviour of Miss Razia Sultana. In the same sequence on 15-12-1994 little after the initial probation period finished, the Registrar has asked the Chairman to furnish confidential report regarding petitioner as to teaching work assigned to her, alongwith character roll and A.C.R. So, was the case vide Letter No,2796, dated 6-2-1995. It was on 25-2-1995 that Chairman of the Department wrote to the Registrar that it would be in the best interest of the University if the petitioner is no longer retained in the History/Department and is sent and appointed as Lecturer in Jinnah College for Women. It is this letter which depicts that the Chairman was not satisfied with the teaching, duty and conduct of the petitioner. A detail of the behaviour of petitioner was communicated by the Chairman to the Registrar on 12-4-1995. It appears from letter dated 26-6-1995 that even the Vice Chancellor having learnt about the irreconcilable behaviour of the two employees of the Department when he requested the Dean Faculty of Arts to discuss the matter with the Vice- Chancellor. It was with intention to find out some ways and means to bring about harmony in the Department and amicably settle the tense behaviour of the two employees. Finally on 24-12-1995, the Registrar wrote to the Chairman .Of the Department regarding confirmation and first annual increment of the petitioner which has ultimately merged in the confirmation order dated 5-3-1996.
However, the first increment was released vide order dated 15-8-1997 and was given effect from 1- 12-1995, the date on which the incumbent was confirmed as Lecturer in the History Department.
With this background of the case now we have to give the grievances which have been agitated in the present writ petition by the petitioner and the relief that has been asked for.
' The first grievance of the petitioner is that under section 11 of the University of Peshawar Service Statute, 1977 the University authorities were bound to confirm the services of the petitioner on the completion of period of probation i,e, on 28-10-1994 and instead they have extended the period of probation by one year which was never communicated to the petitioner hence, the confirmation shall be deemed to have taken effect not from 28-10-1995 but from 28-10-1994.
' Second grievance is that during the tussle of the Chairman and the petitioner a disciplinary committee consisting of respondents 3 to 5 was constituted which was asked to enquire about the allegation and counter-allegations and as such Enquiry Committee consisting of the person of the rank of Professors equivalent to the rank of respondent No,2, the petitioner apprehends that she will not be given proper justice.
' Third grievance is that petitioner being a confirmed Lecturer in the History Department, her transfer to the Women Study Centre is against the provisions of section 23 of the University Services Statute; 1977 as it would tantamount to reduce her chances of promotion and that her prospects of promotion are being minimised.
9. We have heard learned counsel for the petitioner in support of his above grievances. Contention was about the mala fide conduct on part of respondent No,2 and in the same breath bias was attributed to respondent No,1, the Vice-Chancellor. It was argued that petitioner has served the Department for two and a half year and her appointment on 18-11-1993 in the Department was given effect from a back date i,e, 28-10-1993 and such is from the date her period of probation started, therefore, in view of statutory provision, the probation should come to an end on 28-10- 1994 and simultaneously from the said date her services are to be confirmed. Challenge is made to letter dated 5-3-1996 where though the services of the petitioner are confirmed but w,e,f, 28-10- 1995 and in the same letter the period of probation which had ended long before on 28-10-1994 has been extended to 27-10-1995. It is argued that such office order of confirmation being bad in law should be struck down and shall be deemed to have taken effect by confirming the petitioner as lecturer from 28-10-1994. The stress of the arguments was that after the completion of first probation there was no order of further extension of the time nor it was ever communicated but except on 5-3-1996. Hence, the order is illegal.
10. With regard to holding of inquiry, it was stated that the finding of the inquiry have no binding effect as the Enquiry Committee was wrongly constituted and the petitioner has never associated with such inquiry and whatever the result would be, cannot be used against her. Referring towards transfer from the Department to Women Study Centre, it was argued that in the Department she was delivering lectures whereas in the Centre there was only research work and as required under clause (b) of section 11 of the University of Peshawar Teachers National Scales of Pay Statutes, 1975 she cannot be promoted as Assistant Professor being out of the teaching profession.
11. Learned counsel appearing for the respondent No,1, Mr. M. Sardar Khan, vehemently opposed the contentions of the learned counsel for the petitioner and submitted that section 1.1 of the Statute of 1977 read with section 12 requires that there should be satisfactory and successful completion of the probation period and only thereafter the confirmation is ordered and the same is hot automatic. He referred to clause (c) of section 11 and stated that it is within the power of competent Authority to extend the period of probation by a period up to two years and during such extension at any stage, the confirmation can be ordered. He referred to different letters of the Registrar of Peshawar University including letter dated 4-9-1994 which was in the following language:-- "Reference your letter No,420/Hist: dated 5-5-1994.
' I am directed to request you to convey your observations with regard to work and behaviour of Miss. Razia Sultana, lecturer, after expiry of her probationary period when her confirmation becomes due."
' He also referred to letter dated 15-12-1994 which reads as under:-- "Reference this Office Order No,1742/Estt:, dated 18-11-1993.
' The Confirmation/First. Annual Increment of Miss. Razia Sultana, lecturer of your department falls due on 28-10-1994 and 1-12-1994.
' You are requested to kindly furnish this office a confidential report about her teaching work assigned to her, alongwith her character rool and A.C.R. Duly completed for necessary action."
' Similarly he referred to letter dated 6-2-1995, the language of which is reproduced:-- ' ....Kindly refer to this Office Memo: No,9650/A-III/Estt: dated 15-12-1994 and furnish this office C.R.
And A.C.R. Of Miss Razia Sultana and also report about her teaching work at your earliest convenience."
' In the same breath, he pointed out letter dated 25-2-1995, a letter from the Chairman of the Department to the Registrar of the University showing certain reservations about the confirmation of the petitioner and extension of probation period. Reference was also made to letter dated 12-4- 1995. It was argued that in view of enabling provisions under clause (c) of the section 12 the University Authorities were within their power and have rightly extended the period of probation and thus there is no illegality in the order of confirmation dated 5-3-1996.
12. With regard to constitution of Enquiry Committee consisting of respondents 3 to 5, it was brought to our notice that the very object of formalation of this committee was not to hold a disciplinary action or probe into any such matter but its object was to bring about reconciliation and create atmosphere of harmony by looking into the allegations and counter-allegations of the sides. It was stated at the bar that after the petitioner shown her unwillingness to associate with the proceedings, the Committee itself has dropped the proceedings, if any, and no step pursuant thereto has been taken. Thus, nothing is left for the petitioner to have any grievance on that matter.
13. With regard to transfer of the petitioner from the Department to Women Study Centre, it was submitted that under section 23 of the University Employees Service Statute, 1977, the Vice- Chancellor is authorized to make such transfers. Section 23 is reproduced for convenience:-- "23. The Vice-Chancellor, may, in consultation with the Head of the Department concerned, transfer any University employee from one related post to another provided that such employee does not suffer loss in salary by such transfer."
' Learned counsel for the respondent No,1 has pointed out that at page 256 of the Calendar of University of Peshawary for the year 1995 under section 2 in clause (g) University teacher has been defined "means a whole time teacher paid by the University or recognized by the University as such and a person borne on research establishment of the University." It was, therefore, maintained that notwithstanding the transfer of the petitioner to the Women Study Centre her stay thereon being related to research work, she would continue to be University teacher and when any Assistant Professor is appointed/promoted she will be accordingly considered. It was argued that till now i,e, from the date of the induction of the petitioner upto date no Assistant Professor has been appointed in the Department and, therefore, the petitioner cannot raise any grievance in this regard as no step adverse to her has so far been taken.
14. Respondent No,2 appeared in person and he denied any mala fide on his part and reiterated that he being Chairman of the Department was competent to look into the daily working of the petitioner regarding her lecturership in the Department and that' being administrative head was also concerned with sanction of casual leave etc. He maintained that whatever he has done and whatsoever correspondence were made between the petitioner and him and the correspondence addressed to the Registrar or the Vice-Chancellor by him was in the capacity of Chairman of the Department. He has denied mala fide on his part and submitted that he has never maligned the position of the petitioner rather he has respect towards her to be an outstanding student when she was in the Department. He has, however, condemned the attitude of the petitioner whereby she would write direct letters to the Vice-Chancellor, Chancellor and to the Chief Executive of the Province and the Federation where he was by-passed. He maintained that whatever has happened between the two was not based on personal objectives but Was for the betterment of the Department.
15. After having heard learned counsel for the parties and after we have gone through the contents of the petition, the documents annexed therewith followed by written comments, in particular, filed by respondent No,2, we feel sorry to say that the state of affairs that was prevailing or have been prevailing in the Department are not healthy both for the teaching 'Raft University Administration as well for the students who have come and joined the Department for their post-graduation studies.
Before referring to the legal propositions that were addressed at the bar, we reiterate that we were really shocked to read the contents of some of the letters communicated between the petitioner and replied to by respondent No,2. The personal ego has prevailed on both sides to an extent that they have foregotten their real duty for which they have been appointed in the Department. We are constrained, to observe that if on one hand respondent No,2 deserves maximum respect from his subordinate including the petitioner, on the other it was expected ' of respondent No,2 to have behaved towards the petitioner in similar manner. The averments made by the parties before us as well as in a case which was filed in the Court of Civil Judge for damages by the petitioner against the respondents, the language used by either side is such that it appeared that two of them have created hatered of a degree against each other that it has become impossible for the two to work together in the same Department, probably it was, therefore, that the University Authorities were well-advised to transfer the petitioner from the Department to the Women Study Centre. This Court, however, takes very strong exception to such conduct of the Chairman and also of the petitioner who were responsible to educate the students devoid of their personal feelings of hatred against each other. It is well-presumed that in the circumstances prevailing in the Department, it must have deteriorated the education standard of the Department.
16. The main contention that was argued and which carries some substance is whether in terms of section 11 of the Terms and Conditions of the Service of the Employees of the University of Peshawar, The University of Peshawar Service Statutes, 1977, the period of probation to which the petitioner was initially put on one year's probation could be extended and if so, it was rightly extended and its effect regarding its date from which the confirmation of the petitioner would take effect. The petitioner was appointed as Lecturer in BPS-17 on 18-11-1993 with effect from 28-10-1993 or the date that she would join her duties and from such date she was to be on usual probation for a period of one year. In this case, as admitted by the respondents, the petitioner was serving the History Department even earlier for 2-1/2 year on ad hoc basis, it was, therefore, on 1-12-1993 that vide Annexure- 'B' respondent No,2 wrote to the Vice-Chancellor (respondent No,1) that "as she has already put in satisfactory teaching for three years, it will be proper to adjust her teaching experience towards her one-year probation period and confirm her as lecturer in the Department of History, with retrospective effect from 29-10-1992. This letter was replied in negative vide letter dated 3-1-1994 addressed to respondent No,2 by the Registrar of the University in the following language:- "It is regretted to state that ad hoc service is not countable towards probation period under the rules,, as such pre-mature confirmation of Miss. Razia Sultana, lecturer of your Department cannot be made."
' However, leaving aside the above correspondence, the petitioner and respondent No,1 or Registrarof .The University on his behalf has been making correspondence with respondent No,2 regarding confirmation of the services of the petitioner. It appears that for one reason or the other the services of the .Petitioner were not confirmed until 28-10-1995 when vide letter dated 5-3-1996 it was so 'communicated. In the said letter, the period of probation was also extended from 28-10- 1994 to 27-10-1995, obviously with retrospective effect.
17. The language of section 11 of the University of Peshawar Service Statutes, 1977, page 165, Edition 1993 has been reproduced in the earlier part of this judgment and it is held that it contemplates that on initial appointment an employee of the ,University would be on probation for a period of one year and on completion of such probation and subject to provisions of section 13 of the Act (ibid), his services are to be confirmed, provided, however, his work or conduct has, in the opinion of such authority was satisfactory. Under clause (c) of section. 11 of the Act (ibid), the University Authorities are, however, empowered to extend the period of probation by a period not exceeding two years and during such extended period or on the expiry of such period, it may pass an order which could have been passed during or on expiry of first probation period i,e, confirmation or reversion to a formal post or to dispense with the services. In a case where period of probation" on the first Completion or immediately thereafter was not extended nor it was ever communicated to the incunibent employee and no order of confirmation was passed and in absence of any adverse communication to the incumbent it has to be presumed that the period of initial probation was satisfactorily completed and the confirmation A of the employee should thus follow.
' Therefore, while interpreting section 11 of the Statutes of 1977 we hold that as no formal or informal communication adverse or as to the no satisfaction of the concerned authority was ever communicated to, the petitioner, safe would be to presume that the probation was successfully completed. We also hold that clause (c) of section 11 of the University of Peshawar Service Statutes, 1977 though empowers the University Authorities to extend the period of probation to a further period of two years; but such extension is bound to take effect immediately on 'the completion of first probation period. There is no provision in the Statutes to extend the period Of probation by giving it retrospective effect, more particularly, when it was not adversely communicated. It is, therefore, held that any such extension at a belated stage would be a nullity in law and would not effect the right of the petitioner who has already completed her first probation period.
' The upshot of the above discussion is that, we Would declare the order dated 5-3-1996 partially void and without jurisdiction to the extent of extending the period of probation retrospectively from 2840-1994 to 27-10-1995. We also hold that the confirmation date incorporated therein to be 28-10- 1995, is. Nullity in, law and it has to take effect from 28-10-1994 when the petitioner has apparently successfully completed her first span of probation period.
18. As a necessary corollary to-our-- above finding, now comes the question as to from which date the petitioner would be entitled to her first annual increment which in the instant- case was extended to her from 1-12-1995 i,e, a month after her so-called confirmation on 28-10-1995., As we have already held that her confirmation shall be deemed to be due and duly confirmed on 28-10- 1994, she would, as a necessary consequent, be entitled to the first annual increment ,from. 1-12- 1994 and not from 1-12-1995, her such back benefits are her legal entitlement and shall be paid to her as in accordance with law..
19. Another grievance of the petitioner is regarding the constitution of Enquiry Committee consisting of respondents Nos,3 -to 5. Much has been said in the writ petition about the constitution of such Enquiry Committee. We are of the firm view that the grievance of the petitioner is not only ill-founded but is baseless. Respondents 3 to 5 were not constituted to probe into some disciplinary matter nor they were looking into a show-cause notice communicated to the petitioner as to any charge of misconduct. As we are told at the bar by M. Sardar Khan, learned counsel for respondent No,1 'who is backed, by the documents that the very object of this Committee was only to find out facts regarding allegations and counter-allegations made by the petitioner, as against respondent NO.2 and vice versa and their domain of enquiry was limited to that extent. It was not an 'Enquiry Committee constituted under the University Statutes but was body formulated to amicably bring about settlement between the two employees of the University.
Where any such Enquiry Committee or a body, is constituted not to give its finding regarding guilt or innocence of an mployee but was restricted about the facts finding mission, its -reports are mere recommendations and no disciplinary action is ever taken against the person against whom such Enquiry Committee is constituted. In this case, though the Enquiry Committee was- constituted but when the petitioner disassociate herself for one reason or other, no proceedings were held by respondents 3 to 5. In absence of any enquiry being conducted and in absence. Of any proceedings being carried out, the very formation or constitution of Enquiry Committee cannot be assailed.
20. Finally, we take up the grievance voice that is raised by the petitioner regarding her transfer from the History Department to the Women Study Centre, a reference in this regard is necessary to be made to section 23 of the Statutes of 1977, whereunder the Vice Chancellor may, in consultation with the Head 'of Department concerned transfer any University employee from one related post to another, provided that such employee does not suffer loss in salary by such transfer. In this case, what is agitated before us is that the petitioner was primarily lecturer in the Department and her duty was to give lectures to her students Wand in view of University of Peshawar Teachers National Scales of Pay Statutes 1975, section 11 clause (b), a lecturer can be promoted to the post of Assistant Professor if he or she had six years teaching experience in a recognized University or Master Degree plus four years' experience in a recognized University as a lecturer. It was argued that in view of her transfer in the year 1996 from the Department to the Women Study Centre, she has lost prospects of her promotion as Assistant Professor.
Learned counsel for respondent No,l. Has referred us to section 2 clause (g) page 256 of the University Calendar 1995 whereunder "University teacher" has been defined which means "a whole time teacher paid by the University or recognized by the University as such and includes a person borne on research establishment of the University." It was asserted that in view of this definition read with clause (b) of section 11 of the Statutes, 1975, the petitioner has not lost her chance of promotion because she falls well within the definition "University teacher" notwithstanding the fact that for the time being she is transferred to the Women Study Centre.
21. Women Study Centre is constituted for research work on the related subject where seminars are arranged and we are told that lectures are also delivered on much higher pedestal. Learned counsel for the petitioner also conceded that while posted in Women Study Centre, the petitioner has sufficient time to complete her Ph.D course as well. This appears to be right for the petitioner who has been put to an advantageous position where she could complete her Ph.D and was away from the tense atmosphere of the Department. We, therefore, hold that keeping in view the powers of Vice-Chancellor, as envisaged under section 23 of the Statutes of 1977 read with section 11, clause (b) of Statutes 1977 and relying on definition of "University teachers", the petitioner has not lost any prospective chance of her promotion as Assistant Professor. She by virtue of transfer from lectureship to an institute which is research based and which acknowledges such employee to continue to be a University teacher within the contemplation of section 2, clause (g), retain her status as Lecturer and is entitled to be considered as Assistant Professor when a post falls vacant in the Department. Even otherwise, as has been several times, mere prospects of promotion of a particular incumbent holding a particular position does not provide a. Substantial right to the incumbent, as promotion is always subject to seniority-cum-fitness which is the discretion of the concerned authorities.
' The result of our above finding on different grievances of the petitioner is that this writ petition succeeds to the extent that office order dated 5-3-1996 shall be deemed to confirm the petitioner from 2810-1994 and she shall be entitled to hers first increment with effect from 1-12-1994 instead of 28-10-1995. This writ petition is partially allowed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.