' QAZI MUHAMMAD FAROOQ, J.---This appeal, by leave of the Court, has arisen from the judgment dated 4-12-1998 of the Punjab Subordinate Judiciary Service Tribunal Lahore High Court, hereinafter referred to as the Tribunal, whereby the appellant's Service Appeal No,11 of 1996 was dismissed.
2. The relevant facts are that on the recommendations of the Punjab Public Service Commission the appellant was appointed as a Civil Judge, vide Notification No,1-26/89-SO(Admn-IV) dated 25- 8-1991. However, during the period of probation his services were terminated under section 10(1) of Punjab Civil Servants Act, 1974 by the Lahore High Court by virtue of Notification No,187/RHC/CJJ/B- 30 dated 8-10-1995. The departmental appeal/representation made by him remained unresponded for a period of 90 days, therefore, he invoked the jurisdiction of the Tribunal but his appeal was dismissed.
3. While dismissing the appeal the Tribunal observed that the appellant was posted as a Civil Judge on 12-10-1991 and having not been confirmed was under probation on 8-10-1995 when his services were dispensed with and even if the date of commencement of his probation is reckoned from 12-10-1991, when he had joined the training course, he would still be under probation in view of the Rules on the subject which provide that unless a Judicial Officer is earlier confirmed or made permanent the maximum period of probation would be four years. The argument that the services of the appellant were terminated while a complaint against him, made by the Registrar of the Lahore High Court to the District and Sessions Judge, Rawalpindi, was being looked into was repelled by the Tribunal by holding as under:- "As has been held in the case of Abdul Karim v. The West Pakistan Province (PLD 1956 SC 298) and by us in Service Appeal No,11 of 1993, even in cases where some enquiry is pending and there are allegations of misconduct, the Authority can still exercise the power of termination available during the probation period. This is so because a person under probation is strictly not in service, even though while on probation he is subjected to all incidents of service including disciplinary proceedings."
4. Leave was granted to consider, inter alia, the following contentions raised by the learned counsel for the appellant:-
(i) That the petitioner was appointed as Civil Judge by the orders of the Governor as is borne out by the Notification dated 25-8-1991 and, therefore, his services could not be dispensed with by the respondent High Court. In this context it was submitted that in the matter of probation, it was specifically directed in the order dated 25-8-1991 that the petitioner would be governed by the PCS(JB) Rules, 1962 and that under rule 8, thereof the power to dispense with the services of a probationer only vests with the Government in the absence of specific delegation of power under the said rule, the respondent High Court had no authority to terminate the services of the petitioner.
(ii) That meanwhile Judicial Service Rules, 1994 were enforced whereunder only the power of appointment was delegated to the High Court and that the power of termination/removal has not been specifically delegated to the. Respondent-High Court, therefore, other prevailing rules i,e, High Court of West Pakistan Delegation of Powers Rules, 1960 would be applicable whereunder only the Government was competent to remove a Civil Judge from the service. In this context, it has been canvassed that for the purpose of the interpretation of the rules of service governing the Judicial Officers, namely, West Pakistan Delegation of Powers Rules, 1960, the West Pakistan PCS (JB) Service Rules, 1962 and Punjab Judicial Service Rules, 1994 are to be read together.
(iii) That section 10(1) of the Punjab Servants Act, 1974 is un-Islamic and also violative of principle of natural justice enshrined in the maxim: "audi alteram partem."
(iv) That the services of the petitioner were terminated by a Committee headed by the then Acting Chief Justice which action is violative of the principle enunciated in the case of Al Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324)."
5. The learned counsel for the appellant did not press the contention listed at Serial No,iv of the leave granting order. He, however, reiterated the remaining contentions with vehemence and in support of contention No,(iii) cited Province of Sindh v. Public at Large (PLD 1988 SC 138) wherein it has been held that any provision of law whereunder someone can be harmed or condemned without affording such person an opportunity of defence against said action is against the Qur'anic commands as supplemented and interpreted by the Sunnah of the Holy Prophet (P.B.U.H). He also drew our attention to Serial No,2(g) of the Schedule to the High Court of West Pakistan Delegation of Powers Rules, 1960 under which the Provincial Government was the Competent Authority to dismiss or remove from service or retire compulsorily or reduce in rank or suspend Civil Judges. He also raised two additional arguments. First, that the order of termination of services of the appellant was liable to be struck down on the ground of discrimination inasmuch as on 8-10-1995 when services of the appellant were terminated a notification was issued in respect of his 18 batch mates to the effect that they had completed the period of probation in terms of the conditions laid down in their appointment Notification dated 25-8-1991. Secondly, that in the letter dated 31-10- 1992 addressed to the District and Sessions Judge, Rawalpindi by the Registrar Lahore High Court certain allegations with regard to the conduct of the appellant were made and the appellant had filed a reply also, therefore, there should have been an inquiry against him but instead of holding an inquiry his services were terminated on the technical ground of probation. In this context it was also contended that termination of his services without holding an enquiry had stigmatized the appellant as a result whereof he was, not selected in the recent selection and appointment of Additional District and Sessions Judges. Reliance was placed on Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 SC 393), The Secretary, Government of the Punjab v. Riaz-ulHaq (1997 SCMR 1552) and Karachi Port Trust v. Altaf Ahmed (1996 SCMR 1205).
6. Learned counsel for the respondent, on the other hand, submitted that action against the appellant had been validly taken under the Punjab Judicial Service Rules, 1994 which had repealed the Punjab Judicial Service (JB) Rules, 1962. He further submitted that vide Notification dated 22-4- 1970 issued by the' Services and General Administration Department the entry against Serial No,2(g) of the Schedule of High Court of West Pakistan Delegation of Powers Rules, 1960 was deleted and the expression 'Provincial Government' was substituted by the expression 'High Court'.
He went on to submit that inspite of that amendment the cases of the probationers used to be forwarded to the Governor but after the promulgation of the Punjab Judicial Service Rules, 1994 the High Court being the Appointing Authority was fully empowered to deal with the cases of the probationers. He also submitted that the contentions raised by the learned counsel for the appellant had already been settled in Rehan Saeed Khan and others v. Federation of Pakistan and others (2001 PLC (CS) 1275), Liaqat Ali Shahid v. Government of the Punjab (1999 PLC (CS) 334), and Muhammad Suleman v. Lahore High Court Lahore and another (Civil Petition No,1056-L of 1999)- decided on 21-5-2002.
7. The appellant was appointed as a Civil Judge alongwith 18 others on 25-8-1991 by the Governor of the Punjab on the recommendations of the Punjab Public Service Commission. In the Notification/appointment letter it was expressly mentioned that "the officers appointed shall remain on probation prescribed under rule 8 of PCS (JB) Rules, 1962, but have no right of confirmation till permanent vacancies became available, or in case they are rendered ineligible otherwise after expiry of the period of probation. They shall also be required to complete training and pass such Departmental Examination as prescribed in the rules or as may be prescribed from time to time. Their services shall be governed by the PCS (JB) Rules, 1962 and under other Rules, Regulations and instructions applicable to them as inforce hereinafter or issued in future".
8. The services of the appellant were terminated on 8-10-1995. The Notification issued in respect thereof is worded thus:- "The Acting Chief Justice and Judges are pleased to terminate the service of Mr. Muhammad Iqbal Khan Niazi, Civil Judge 3rd Class, Rawalpindi, on probation., under section 10(1) of the Punjab Civil Servants Act, 1974, with immediate effect."
9. Before proceeding further it is necessary to reproduce clause (i) of subsection (1) of section 10 of the Punjab Civil Servants Act, 1974 under which services of the petitioner were terminated. It reads as under: - "(1) The service of a civil servant may be terminated without notice-(i) during the initial or extended period of his probation: Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one service cadre or post to another service cadre or post his service shall not be terminated so long as he holds a lien against his former post, service or cadre, and he shall be reverted to this former service or as the case may, cadre or post;"
10. It will also be advantageous to reproduce rule 8 of the Punjab Civil Service (Judicial Branch)
Rules, 1962. It reads as under:- "8. Probation.---(1) A person appointed to the service against a substantive vacancy shall remain on probation for a period of two years.
' Explanation:---Officiating service and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation.
(2) If the work or conduct of a member of the Service during the period of probation has been unsatisfactory, Government may, notwithstanding that the period of probation has not expired, dispense with his services.
(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 services; 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 such orders as it could have passed during or on the expiry of the initial probationary period.
' Explanation I.---If no orders have been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended.
' Explanation II.---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 probation was last extended or may be deemed to have been so extended.
(4) No person shall be confirmed in the service unless he successfully completes such training and passes such departmental examinations as may be prescribed by Government from time to time.
(5) If a member of the Service fails to complete successfully any training or pass any departmental examination prescribed under sub-rule (4), within such period or in such number of attempts as may be prescribed by Government, Government may dispense with his services."
11. The appellant was appointed on 25-8-1991 and it was clearly provided in the Notification that his services shall remain on probation prescribed under rule 8 of PCS(JB) Rules, 1962. The record does not indicate that any order was passed by the day following the completion of the initial probationary period of two years envisaged by clause (1) of rule 8, therefore, the probationary period of the appellant stood extended by a period of two years in view of clause 3(b) and Explanation-I thereof. The services of the appellant were undoubtedly dispensed with before the expiry of the maximum period of probation and for that very reason he has not alleged that the order of termination of his services was passed before the expiry of the probationary period. The allegation that the order of termination of his services had put the appellant under the vestige of a stigma is more imaginary than real inasmuch as the order having been passed without assigning any reason for the action is simplicitor and harmless in nature. Stigma does not flow from an innocuous order of termination of services. Similarly, in the absence of the record of the selection and appointment of the Additional. District and Sessions Judges it is rather speculative to say that the appellant was sidelined on account of the fall out of the order of termination of his services.
There is also no force in the contention that an enquiry ought to have been held in respect of the allegations made in the letter dated 31-10-1992 addressed to the District and Sessions Judge Rawalpindi by the Registrar Lahore High Court instead of terminating the services of the appellant through the leverage of the probationary period. We have gone through the said letter as well as the explanation of the appellant. The letter does not contain any allegation of corruption and the matters mentioned therein are that the appellant was not punctual, had availed medical leave frequently, had not appeared before the Medical Board, had not written orders in two civil suits and responded to the advice of the District and Sessions Judge in an adamant and irresponsible manner. The explanation furnished by the appellant was to the effect that on account of serious illness he had applied for medical leave which was duly sanctioned by the High Court, he could not appear before the Medical Board due to rush of work but had appeared subsequently on the date fixed, the orders in two suits were dictated and announced by him on 30-7-1992 but could not be annexed with the file summoned by the District and Sessions Judge as the same had got mixed up with other files and being a beginner in service he could not even think of ignoring the advice of District and Sessions Judge. There can be two possible reasons for not holding an enquiry. Firstly, that the explanation furnished by the appellant was found plausible and secondly, the material with the Competent Authority was not sufficient to substantiate the allegations. Be that as it may, there is nothing on the record or in the order in question from which it could be gathered that the said letter had served as a springboard for terminating the services of the appellant. Even if the allegations reflected in the said letter are presumed to be instrumental in termination of services of the appellant the matter cannot be blown out of proportion in view of clause (2) of rule 8 of the Punjab Civil Service (Judicial Branch) Rides, 1962 which empowers the Competent Authority to ascertain whether the work or conduct of a member of the service during the period of probation has been satisfactory or otherwise. The contention also overlooks the time lag between the complaint and the action taken against the appellant. The letter of the Registrar Lahore High Court was issued on 31-10-1992 whereas services of the appellant were terminated on 8-10-1995. If services of the appellant were to be terminated on account of the allegations made in that letter by using the power to terminate services during the probationary period the action would have been taken promptly and not after three years. The delay goes a long way to suggest that the order in question is neither founded on the said letter nor is tainted with mala fide.
12. The discrimination-related contention is also untenable for the short reason that the appellant's batch-mates had successfully crossed the hurdle of the probationary period whereas he had bogged down and his services were dispensed with on the strength of the provisions of section 10(1) of the Punjab Civil Servants Act, 1974 read with rule 8 of the Punjab Civil Service (Judicial Branch) Rules, 1962. The question of discrimination would have arisen if the probationary period of a similarly placed batch-mate of the appellant would have been terminated.
13. This brings us to the first contention highlighted in the leave granting order that under Rule 8 of the Punjab Civil Service (Judicial Branch) Rules, 1962 the power to dispense with the services of a probationer only vested with the Government and the High Court had no authority to terminate the services of the appellant for want of specific delegation of power. The contention is misconceived.
The Schedule to the High Court of West Pakistan Delegation of Power Rules, 1960 was amended vide Notification No,SO.RI(S & GAD)-Integ.15-23-59 dated 22-4-1970, the entries against Serial No,2(d), (e), (f) and (g) were deleted and in column No,4 under caption 'Authority competent to dismiss or remove from service or retire compulsorily or reduce in rank or suspend, the entry "High Court" was inserted in place of the entry "In other cases, Provincial Government." The power to dismiss or remove from service etc. Of a Civil Judge was specifically delegated to the High Court and it is immaterial whether it was exercised or not.
14. We now advert to the second main contention that in the Punjab Judicial Service Rules, 1994 only the power of appointment has been delegated to the High Court and the power of termination/removal has not been specifically delegated, therefore, the High Court of West Pakistan Delegation of Power Rules, 1960 would be applicable whereunder only the Provincial Government is competent to remove a Civil Judge from service. The contention is not only devoid of substance but also offends the concept of independence of judiciary under which the power to appoint and remove judicial officers has been taken away from the Provincial Government and conferred on the High Court. It is clearly mentioned in the Notification of appointment of the appellant that his services shall be governed by the PCS (JB) Rules, 1962, and under other Rules, Regulations and instructions applicable to him as inforce hereinafter or issued in future. The West Pakistan Civil Service (Judicial Branch) Rules, 1962 were repealed by the Punjab Judicial Service Rules, 1994 and as mentioned earlier the Schedule to the High Court of West Pakistan Delegation of Power Rules, 1960 was amended vide Notification No,SORI (S&GAD)-Integ-15-23-59 dated 22-4- 1970, therefore, the High Court is competent to dismiss or remove from service or retire compulsorily or reduce in rank or suspend a Civil Judge. It is true that in the Punjab Judicial Service Rules, 1994 power of termination/removal is not specifically mentioned but the omission is immaterial. The requisite power already stands delegated through the aforementioned notification which holds the field in view of the provisions of rule 11 of the Punjab Judicial Service Rules, 1994 that in all matters not expressly provided for in the rules members of the service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them. Moreover, according to rule 4 of the Punjab Judicial Service Rules, 1994 the High Court is the 'Appointing Authority and it goes without saying that an Appointing Authority has inherent power to dismiss or remove from service an appointee unless a different intention appears in the enactment. The Punjab Judicial Service Rules, 1994 have not imposed any fetter on the powers of the Appointing Authority in this context. Needless to refer to section 15 of the West Pakistan General Clauses Act which clearly provides that the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other Authority in exercise of that power.
15. The contention that section 10(1) of the Punjab Civil Servants Act, 1974 is un-Islamic is bereft of substance as the same has not so far been declared to be repugnant to the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h). As regards the prinicple of natural justice enshrined in the maxim "Audi alteram partem" suffice it to say that it has been held in Rehan Saeed Khan and others v. Federation of Pakistan (2001 PLC (C.S.) 1275) that a probationer has not vested right to continue in service, therefore, his services can be terminated without a show-cause notice and the question of violation of the principles of audi alteram partem does not arise except in case of mala fides. It is scarcely necessary to mention that the impugned order cannot be termed as mala fide by any standard.
' For the reasons stated above, the appeal is dismissed with no order as to costs.