' CH. MUHAMMAD ARIF, J.---The background in which this appeal by the Federation of Pakistan and two others against judgment, dated 23rd April, 1994 of the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, has arisen is that respondent No,1 retired from the Pakistan Army. The Federal Public Service Commission Selected him as System Analyst (B-18) and he was appointed as such in the MES, Ministry of Defence w,e,f, 21-7-1991. He passed the departmental test for retention in service and had completed the probation period of 2 years on 20-7-1993 (AN) as per rule 21(4)(2) of Appointment, Promotion and Transfer Rules, 1973, which reads as under:-- "Provided that, subject to the provisions of proviso to subsection (2) of section 6 of the Civil Servants Act, 1973 in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2), be deemed to have successfully been completed."
' He was not conveyed any adverse remarks during the period of his 2 years' service. His services were terminated vide letter, dated 20-7-1993, which was on account of the efforts of her separated wife for which they (appellants) had gone out of the way to terminate his services under section 11(1)(1) of the Civil Servants Act, 1973 under the misconception that the probation period of 2 years had not been completed by him. Having joined the service on 21-7-1991 (FN) he had completed the probationary period up to 20-7-1993 (AN), under rule 21(4)(2) of Appointment, Promotion and Transfer Rules, 1973, for which no separate order was required. As the appellant was detained in the office for some urgent work on 20-7-1993, his services could not be terminated "..After the closing hours".
2. Respondent No,1 succeeded in his Appeal No,401(R) of 1993 vide the impugned judgment, dated 23-4-1994, para. 5 whereof reads thus:- "After hearing the parties and examination of the relevant record, it is established that the impugned letter of termination, dated 20-7-1993 had been delivered to the appellant after closing hours and this virtually meant that he had completed the probation period of two years under section 21(4)(2) of the A.P.T. Rules, 1973. The A.C.Rs, for the period from 21-7-1991 to 20-7-1993 had been initiated on 6-7-1993 by the Reporting Officer. This was also not according to rules and showed victimisation by respondent-Department. Accordingly we find that since no adverse remark had been conveyed to the appellant during this period, the termination of his services was through an act of victimisation and mala fide, as it did not have any support of rules. We, therefore, accept the appeal, set aside the impugned termination letter, dated 20-7-1993, reinstate the appellant into service w,e,f, the same date and direct the respondent-Deptt/Ministry to settle the period of his absence under relevant leave rules. However, the respondent-Department will be at liberty to initiate disciplinary proceedings for bad performance and misconduct against the appellant within next 4 months, if it is intended..."
3. Para. 2 of the Leave Grant Order, dated 9-8-1994 reads thus:-- "Leave to appeal is granted inter alia to consider whether or not the service of respondent No,1 was terminated before the expiry of the extended period of probation in accordance with the provisions of relevant law/rules."
4. We have heard Mr. Mian Tariq Mahmood, learned Deputy Attorney-General and Mr. Tanvir Bashir Ansari, learned Advocate Supreme Court for the appellants and respondent No,1, respectively. The learned Deputy Attorney-General for Pakistan has referred to Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others (1990 SCM R 1510), in which this Court, while referring to Muhammad Saddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), held that the termination of services of an employee during the period of probation could be successfully gone ahead by the Competent Authority, to contend that even in the case of respondent No,1 the ratio of the case of Muhammad Siddiq Javaid Chaudhry and others (supra) was attracted and, therefore, the appeal of the respondent should have been dismissed, by the Tribunal. According to him, the initial period of probation was extended by another year and the order, dated 20-7-1993 could lawfully put an end to the services of respondent No,1, within the contemplation of the law and the rules on the subject.
5. Contrarily, Mr. Tanvir Bashir Ansari, learned counsel representing respondent No,1, has supported the impugned judgment with the arguments that his client having completed 2 years' probation, the same could not be put an end to, thereafter. The plea was that by the time the working hours on 20-7-1993 came to an end, no order of termination of his client's services had been made and, therefore, the findings of the Tribunal, in the impugned judgment, cannot be reversed. It was further contended that even the findings that the termination of his client's services was tainted with mala fide, clearly fall in the same category. Mr. Tanvir Bashir Ansari, also argued that Serial Nos.112 and 115 of ESTACODE 1989 and 1983 Editions, respectively, go a long way in support of the case of respondent No, 1 .
6. We have thoroughly examined the available record with the help of the learned Law Officer as also the learned counsel appearing for respondent No,1. There is no cavil with the proposition urged by the learned Law Officer, on the strength of the cases of Muhammad Siddiq Javaid Chaudhry and Syed Tahir Hussain Shirazi (supra). However, the resolution of the dispute in this case by the Tribunal cannot be considered as going against the law declared by this Court in the afore- referred precedent cases. The period of probation in the said precedents came to an end during the currency thereof and the Competent Authority was not even so much as alleged by the civil servants concerned, to have any grudge or malice against them. Here, the findings by the Tribunal on these aspects are that the period of probation i,e, 2 years, had been successfully completed by respondent No,1 and the termination order, dated 20-7-1993 could not be served upon respondent No,1. After closing hours on 20-7-1993. Similarly, it was also found that since no adverse remarks had been conveyed to respondent No,1 during the period of probation, the termination of his services "... Was through an act of victimisation and mala fide, as it did not have any support of rules".
7. Serial Nos.112 and 115 respectively detailed in ESTACODE, 1989 and 1983 Editions, read thus:-- "Serial No,112. Probationary period to be judiciously fixed.- Where the appointment is on probation, this should be clearly stated in the order, alongwith the probationary period in clear terms. This period will vary according to the nature of the posts, and should be judiciously fixed, but once fixed, it should be rigidly adhered to. In other words, the question whether the probationer's services are to be terminated, or his period of probation is to be extended in accordance with the order of appointment, or he is to be confirmed in his appointment should be examined and decided sufficiently in advance of the completion of the current period of probation. This will avoid creating false impression that, if the period of probation is completed without any orders being passed, the probationer's service must necessarily have been accepted as satisfactory and justifying confirmation. (............ Omit ) The retention of such persons on probation after the completion of the maximum terms of probation provided in the appointment order is most undesirable, and will be tolerated only in the most exceptional circumstances, _e.g., where it is absolutely essential to keep the post filled and a substitute is not available.
"Serial.No,115: "Confirmation.----(1) A person appointed on probation shall, on satisfactory completion of his probation, be eligible for confirmation in a service or, as the case may be, a post as may be prescribed.
(2) A civil servant promoted to a post or grade on regular basis shall be eligible for confirmation after rendering satisfactory service for the period prescribed for confirmation therein. There shall be no confirmation against any temporary post.
(4) A civil servant who, during the period of his service, was eligible to be confirmed in any service or against any post retires from service before being confirmed shall not merely by reason of such retirement, be refused confirmation in such service or post or any benefits accruing therefrom.
(5) Confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation, in such service or post, whichever is later."
' It is not the case of the appellants that they had put an end to the period of probation in accord with the provisions of the law applicable in that behalf. The learned Deputy Attorney-General only half-heartedly made a reference to the date of the termination order i,e, 20-7-1993 to contend that any order could be made by the Competent Authority in relation to respondent No,1 by midnight.
The argument is sans merit. The minute the working hours come to a close on any given day, the status of an employee has to be governed, thereafter, by the position on the basis of continuity in his period of employment; according to law. If the services of respondent No,1 had not been terminated up to AN of 20-7-1993 then the same were to be treated as without taint up to midnight on the said date and beyond. Moreover, findings of fact by the Tribunal that the services of respondent No,1 had not been terminated during the office hours on 20-7-1993, muchless at any earlier date, in terms of Serial Nos.112 and 115 (supra), have not been shown to be suffering from any legal taint whatsoever. What was not done by the appellants during the working hours on 20-7- 1993, cannot be achieved by them between 'afternoon' of 20-7-1993 and midnight hour on that day, for the obvious reason that respondent No,1 had made progress, according to law and rules applicable to his case, by successfully completing the probation period of 2 years, by then. These peculiarities of the case of respondent No,1 before the Tribunal were duly noticed in the impugned judgment and the same were resolved in his favour, after considering the entire record in the, presence of the parties.
8. No other point was urged.
9. Resultantly, this appeal fails and is hereby dismissed with no order as to costs.