P L D 1959 Supreme Court (Pak (PLP)

"What was the exact status of the plaintiff at the time of the order in dispute and what procedure was to be adopted, but was not adopted for passing the order in dispute and was the order illegal, void, unenforceable, without jurisdiction." The learned Civil Judge took up' all the issues together and recorded the finding that as it was admitted that the plaintiff was appointed an officiating Zilladar, `he was certainly on probation'. This he held on reference to Appendix B (d) of the Rules, where it is provided as follows:‑ "If finally accepted as `candidate Zilladars' they shall be appointed as officiating Zilladars or Zilladars 2nd grade, on probation or additional Munshis in the circle to which they are attached." He took the view that as no notice to show cause against the dismissal was given to the plaintiff under section 240 of the Government of India Act, his dismissal was wrongful, void and ineffective, and holding that the plaintiff no doubt retains the status of an officiating Zilladar on probation, decreed the plaintiff's suit with costs. On appeal by the Punjab Province, the District Judge of Sialkot reversed the findings of the Senior Civil Judge and held that the latter had wrongly assumed that the plaintiff was on probation as Zilladar at the time of his removal, and after discussing rule 14.10 of the Civil Service Rules and clause 3 of Appendix B of the P. W. D. Zilladars Service Rules, also held that under the rules of his service the Chief Engineer was perfectly competent to remove him from the list of accepted candidates. He definitely held on the facts of the case that the plaintiff had not been placed on probation. He further held that section 240 of the Government of India Act, 1935 was not applicable to the present case, as special rules were prepared for the candidates for the post of Zilladar. In that view of the case he dismissed the plaintiff's suit with costs throughout. The plaintiff‑respondent took a Second Appeal before the High Court, which was heard by a Judge sitting singly. The learned Judge held the view that after having been finally selected as candidate Zilladar the plaintiff on the 2nd of June 1950 ceased to be a mere candidate for the post of Zilladar according to clause (d) of Appendix B of. P. W. D. Zilladars' Service Rules and held without referring to any material on the record that he was actually appointed to the post of Zilladar subject to a period of two years probation. He further held that as the services of plaintiff were terminated, for giving proof of misconduct in copying or attempting to copy from an unauthorised document while taking the Departmental Revenue Examination, the removal of the plaintiff from service amounted to penalty, which was imposed without affording him an opportunity to show cause against the proposed action. He declared that in view of the provisions of section 240 sub -section (3) of the Government of India Act, 1935, the termination of his services was illegal and ultra vires. He, therefore, restored the decree passed by the trial Court. The Province of West Pakistan thereupon filed a petition for special leave to appeal and obtained the leave consequent on which the present appeal was filed and has come up before us. The position taken up by the respondent in his plaint was that he was appointed an officiating Zilladar on condition that he would be posted as a permanent Zilladar when he would pass the Departmental Revenue Examination. But in his concise state ment before this Court in paragraph 9 he has taken up a different position and has stated that he was officiating Zilladar Grade II on probation. The appellant (The Province of West Punjab) in its written statement in the first Court stated that the respondent was merely an `accepted candidate Zilladar', and the same statement was repeated in its concise statement before this Court. In view of the Rules governing the recruitment and appointment of Zilladars framed by the Governor of the Punjab under section 241 of the Government of India Act, 1935, (No. 242‑Z/526/1935, dated 6th January 1943) known as the Punjab P. W. D., Irrigation Branch Zilladars' Service Rules, 1943, it is evident that both the Senior Civil Judge and the High Court were in error in holding that the appointment of the respondent as an officiating Zilladar amounted to his appointment as a Zilladar on probation. Under Appendix B (d), which provides for appointment of an accepted candidate Zilladar', which has been quoted in an earlier part of this judgment, the word `or' appearing before Zilladars 2nd grade and additional Munshis, makes it clear, that the three A appointments named therein are separate and mutually exclusive. This gets further clarification‑from Part III, Rule 8 (1) of the said Rules, which provides that Zilladars of the 2nd Grade shall be appointed on probation for a period of two years in the first instance. To this is added an explanation as follows: "Officiating service, provided it is continuous and followed by appointment on probation, shall be reckoned towards the period of probation ; provided that the seniority according to the list of accepted candidates as laid down in Rule 10 (2) is not changed, that is to say, a candidate cannot be appointed on probation from a date prior to that from which his senior is so appointed." This also makes it clear that the appointments of officiating Zilladars and of Zilladars of the 2nd grade on probation ate not only two different appointments but that the officiating appoint ment precedes the appointment on probation. The only advantage given to a person appointed to officiate as Zilladar in case it is followed by appointment on probation, if he has a continuous officiating service as Zilladar to his credit, is that it shall be reckoned towards the period of probation for the purpose of later confirmation. Before a candidate is appointed to the grade of Zilladar 2nd grade he cannot be said to be appointed to the service. This is clear from Rule 7 (a), which provides as follows:‑ " (a) Initial appointments to the service shall be made to the grade of Zilladars, 2nd grade. (b) Prior to appointment, candidates for training shall be selected from among‑ (v) Applicants recommended and nominated for selection as direct candidates by Superintending Engineers or the Principal of the Agricultural College." It follows; therefore, that a person continues to be a candidate until he is appointed 2nd grade Zilladar, and the present respondent belongs to the former category. The argument of the learned Advocate‑General, who appeared on behalf of the appellant in this case, is that the last Personal Register of the respondent relating to the period 1st March to 26th July 1951, shows his rank as officiating Zilladar. He, therefore, argues that the respondent never went beyond the stage of being, an officiating Zilladar, which is the last stage of training of a candidate for the post of Zilladar and was, therefore, still a `candidate Zilladar'. The Chief Engineer not having found him satisfactory was within his rights in discharging him from service in the manner in which he did. The Advocate‑General relied on clause 3 of Appendix B, of the Zilladars' Service. Rules, 1943, which is as follows "If the work or conduct of any candidate during the period of training and prior to his being placed on probation, is, in the opinion of the Chief Engineer, not satisfactory, the Chief Engineer may at any time during this period, remove .his name from the list of accepted candidates." In the light of our observations made before there is much force in the contention of the learned Advocate‑General. Even if the respondent had gone a step further and been actually appointed a 2nd grade Zilladar on probation, he could still be liable to have his services dispensed with by the Chief Engineer in the same manner under rule 8 (2) of the above Rules, which is as follows:‑ " If the work or conduct of any member during his period of probation is in the opinion of the Chief Engineer, not satisfactory, the Chief Engineer may at any time during the period of probation or prior to his confirmation dispense with his services or revert him to his former post." It was argued on behalf of the respondent that either as proba tioner or officiating Zilladar he was entitled to the protection under section 240 of the Government of India Act, 1935, and could not be discharged without being given a notice to show cause. We are unable to accept this argument. In view of finding on the facts of this case that the respondent did not go beyond the stage of an accepted "candidate Zilladar" when was discharged, he cannot be said to be holding a civil post in Pakistan at the time of his discharge and was, therefore, entitled to protection under section 240, subsection (3) of the Government of India Act, 1935. Even if he were appointed probation, his discharge as provided by Rule 14.10 in Chapter XIV of the Civil Services Rules (Punjab), Volume I, would not amount to removal or dismissal from service and would not come under section 240, subsection (3) of the Government of India Act, 1935. It was next argued that having been appointed by the Engineer he could not be discharged by a lower authority. This ground is untenable, as the endorsement, dated the 24th July 1951, dispensing with his services, which was communicated to him by the Executive Engineer, was signed by him not in his own capacity but for Chief Engineer, Irrigation Works, Punjab, Lahore. Besides, in his plaint (paragraph E) the respondent admits he was informed that the Chief Engineer had discharged him from the service. The result is that this appeal is allowed the judgment and decree of the High Court are set aside and those of the District Judge, Sialkot, restored. The parties will, however, bear their own costs throughout. K.B.A. Appeal allowed.