' FAKHRUDDIN H. SHAIKH (CHAIRMAN).-The appellant has filed this appeal against the order dated 30th April, 1976 whereby the respondent discharged him from service who was serving as Budget and Accounts Officer in that Department on purely temporary and ad hoc basis. The impugned order was purportedly passed under clause (a) of sub-clause (3) of section 6 of the Baluchistan Civil Servants Act, 1974.
2. Originally the appellant was serving as Audit and Accounts Officer in the Industries Department since 24-9-1974. In May, 1975 a post of Regional Audit Officer in Grade 18 fell vacant in the Food Department. The appellant applied for the post. He was selected for the post vide letter of the Food Department dated 19th July, 1975 in which it was specifically mentioned that the appointment will be temporary and terminable on one month's notice on either side except in the case of misconduct, inefficiency, negligence or failure of duty in which case the service could be terminated without any notice. It was further stated the appointment shall be on probation for a period of one year. By the above quoted letter of 19th July 1975 which is Annexure C" with the appeal the appellant was asked to give his acceptance to the appointment on the above terms and conditions. The appellant agreed to accept the appointment where after appointment order was issued on 23rd July, 1975 which is Annexure 'D'. In this order to it was specifically clarified that the appointment shall be purely temporary and on ad hoc basis and subject to the conditions contained in the letter dated 19th July, 1975 (which has been referred to a already as Annexure 'C').
3. It transpires that the Government was not satisfied with the performance of the appellant as Regional Audit Officer therefore, by the impugned order dated 13th April, 1976 he was discharged- from service in terms of his appointment order.
4. The appellant has challenged the above order, by this appeal on the following grounds :-
(a) That section 6(3)(a) of the Baluchistan Civil Servants Act, 1974, which has been applied to him, was not attracted because it applied to those probationers who were required to pass any examination or test and had failed to clear the same. The appellant was not required to pass any such test or examination.
(b) That the appellant could not be treated as a temporary or ad hoc appointee because he was selected regularly and substantively to the post.
(c) That even as a temporary employee he could not have been discharged from service without charge-sheet or disciplinary proceeding under the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974.
5. In support of the last-mentioned ground the appellant has produced a confidential letter (Annexure 'K') addressed by ex-Secretary, Food Department to the Chief Secretary, Baluchistan.
This letter is dated 4th February, 1976 in which it has been stated that the appellant who had served under the ex-Secretary, Food as Audit Officer, was in the habit of extorting money from the people.
The impugned order of discharge from service, was passed above 2 months of this letter. The appellant claims that his service was terminated because there were allegations of corruption against him as stated in the above letter.
6. Written objections to the appeal have been filed on behalf of the respondent in which it has been alleged that the appellant was a temporary and ad hoc appointee and was on probation for one year and therefore the Government was fully competent to discharge him from service under the Baluchistan Civil Servants Act, 1974.
7. Learned counsel for the appellant has laid much emphasis on ground 'C' seated above and has argued that the letter of the ex-Secretary had in fact actuated the Government to past the impugned order. He further submits that as there were allegations of corruption and misconduct in the above letter (Annexure 'K'), hence the discharge order in fact amounts to an order of removal from service by way of penalty, which could not have been made without charge-sheet or show- cause notice as provided by rules 5 and 6 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974. In support of this argument he has placed reliance on a Supreme Court authority reported in PLD 1974 SC 393. In this case their Lordships of the Supreme Court have held that if the service of a probationer is terminated on the grounds of misconduct that will amount to removal or dismissal from service and that in such case he shall be entitled to a show-cause notice. There is nothing on the record to suggest that the present appellant was discharged from service on account of the allegations mentioned in the letter (Annexure 'K'). In fact the letter was not even mentioned by the appellant in his original appeal which was filed before this Tribunal in January, 1977. It was at a later stage on 25th June, 1977 when the appellant moved an application for permission to produce photostat copy of this letter. There is nothing on the record to suggest that the Government had accepted as true the allegations mentioned in this letter. From the perusal of this letter it transpires that the appellant himself had levelled some allegations against the ex-Secretary who had, in reply, written the above confidential letter to the Chief Secretary levelling counter allegations against the appellant. Thus the appellant and the ex-Secretary have levelled allegation against each other. But even much before this letter in October, 1975 the then Food Secretary had written a D. O. Letter Annexure 'F' with the appeal to the appellant warning him that he should work properly because it was found that he was not maintaining proper accounts. It therefore appears that the main ground which has resulted in the impugned order was that the superior officers were not satisfied with the performance of the appellant as Audit Officer. Hence in terms of the appointment order, the Government was fully competent to terminate the appointment or discharge, the appellant from service even if he was a probationer because the action was taken within one year of the period of probation.
' It may be stated that even the Supreme Court case cited by learned counsel for the appellant does not support him. The relevant observations in the judgment, which were conveniently omitted by the learned counsel, are that the service of a probationer can be terminated on the ground of unsatisfactory work that and such termination shall not amount to dismissal or removal from service but shall be within the domain of contract made by the Government. In the present case the appellant as not removed or dismissed from service nor was any allegation of misconduct levelled against him by the Government. He was temporary and ad hoc appointee and as such he had no right to claim absorption in the service. Even if he was a probationer, his service could be terminated within the period of probation under section 11 of the Baluchistan Civil Servants Act, 1974. The impugned action was taken against him before the expiry of the period of probation.
8. The next ground urged in support of the appeal is that section 6(3)(a) of the Civil Servants Act, 1974 was not attracted. This is correct because section 6 applied only to those probationers who were required to pass any test or examination and had failed to pass the same. However the appropriate provision which is applicable in the present case is section 11 of the Act and not section
6. Section 11 fully empowers the Government to terminate the appointment of a probationer during the period of probation on one month's notice or even without such notice. If a wrong section of the Act has been quoted in the impugned order, it would not render the order ineffective or illegal. The substance of the order shows that it was passed in exercise of the powers under section 11 of the Act and not under section 6 and that the discharge from service was in fact termination of service.
The fact that a wrong section of the Act was quoted in the impugned order, would not entitle the appellant to be re-instated in service particularly when the action was taken by the competent authority within domain of its competence. Reference in this connection may also be made to PLD 1971 SC 234 in which it has been held that the substance of an order and not its phraseology is to be considered in order to determine its validity or legality. The substance of the impugned order when read in the content of the terms and conditions of service of the appellant, would boil down to this that appellant was on probation for one year and that within this period his service was terminated which was within the competence of the Government according to section 11 of the Act of 1974. The fact that the phrase "discharge from service" has been used instead of "termination of service", would not render the action of the Government a void or illegal.
9. The next ground that the appellant was not temporary nor ad hoc appointee, is also not sustainable. The appellant cannot go beyond the appointment letter (Annexure D) which he has himself produced in order to establish the nature of his appointment. This letter says that the appointment shall be temporary and on probation for one year. The appellant was specifically asked by the letter dated July, 1975 (Annexure whether he was prepared to accept the appointment on these terms and conditions. It was on his acceptance that the appointment order (Annexure was issued. He therefore cannot go beyond the contents of the letter to claim that he was appointed substantively or regularly.
10. In view of the above position the impugned order cannot be set aside. The appellant, however, can only claim one month's pay in lieu of the notice as provided in section 11 of the Act of 1974.
Moreover if he at all any lien on his former post in the Industries Department, the Government may then consider his reversion to that post instead of terminating the service. With these observations the appeal is dismissed.