P L D 1967 Lahore 1005 (PLP)

INAMULLAH KHAN, C. J.‑We purpose to dispose of Writ Petitions Nos. 2096 of 1964 (filed by Mr. Mumtaz Hussain Malik, hereinafter called Mr. Malik) and 1231 of 1965 (filed by Mr. Muhammad Siddiq Javid Chaudhri, hereinafter called Mr. Chaudhri) by this order as the points urged are common to both of them.

2. The petitioners were appointed to the West Pakistan Civil Service (Judicial Branch) on the 1st of September 1961 and 25th of September 1963, respectively. Under rule 8 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962, hereinafter to be referred to as the Rules, the services of Mr. Malik were dispensed with on 18th August 1964 on the ground that his services during the period of probation were found to be unsatisfactory, while those of Mr. Chaudhri were dispensed with on 19th June 1965 on the ground that his work and conduct was found to be unsatisfactory during the period of his probation. Mr. Malik filed his petition on 15‑12‑64 while Mr. Chaudhri filed his petition on 28‑6‑65, both under Article 98 of the Constitution.

3. The petition of Mr. Malik came before a Division Bench of this Court on 6‑1‑1965 for admission. Mr. Ijaz Hussain Batalvi, the learned Advocate for the applicant, it appears from the admitting note, raised two points before the Bench, namely, (1) that under clause (ix) (a) of the appointment letter, the services of the petitioner could be terminated during the period of probation only if his work or conduct was "proved to be unsatis factory". The submission was that the work or conduct of Mr. Malik cannot be said to have been "proved" to be unsatisfactory as he was not given any opportunity to meet the allegations against him, and (2) that rule 8 of the Rules is not applicable to the case of the petitioner. The petition of Mr. Chaudhri was admitted on 9‑7‑1965. It would appear from the admitting note (in Mr. Chaudhri's petition) that the only point urged on behalf of the petitioner by Mr. D. M. Awan was that his services, even during the period of probation, could not be terminated without a show‑cause notice. The learned Advocate also relied on the fact that the petition of Mr. Malik had been admitted by a Division Bench of this Court. The learned Judges ordered both these petitions to be heard together.

4. The learned Advocates for the petitioners have raised a number of points which we propose to dispose of separately.

5. It was contended by Mr. Batalvi, the learned Advocate for Mr. Malik, that it was not "proved" that the work and conduct of his client was unsatisfactory. In this connection reliance was placed on the letter of appointment dated the 27th of July 1961 (Annexure I to the petition of Mr. Malik). The relevant portion reads as under : "(ix) Termination of Service: Your services will be liable to be terminated: (a) during the period of probation or on its conclusion or even thereafter without notice if your work or conduct is proved to be unsatisfactory or if you fail to pass the Departmental examination within the prescribed period." The learned Advocate laid great emphasis on the word "proved". He submitted that in ordinary parlance what we generally understand from the word "proved" is that there should be evidence from both sides before the appointing authority can be said to have come to the conclusion that the work or conduct was proved to be unsatisfactory. There is not much force in this contention. The condition reproduced above has to be read as a whole. The word "proved" cannot be read devoid of the context in which it is used. The important words to note in the terms reproduced above are "without notice". If under the terms of service the appointing authority could terminate the services of the petitioner without notice, if his work was proved to be unsatisfactory, it would only mean this that the unsatisfactory nature of the work or conduct of the petitioner should be established to the satisfaction of the authority competent to terminate his services. If the services could be terminated without notice the question of taking evidence did not arise. It is the satisfaction of the authority competent to terminate the services of the petitioner that matters. The nature of his work has to be proved to the satisfaction of the appointing authority. How it has been proved to his satisfaction cannot be challenged by the petitioner.

6. In this connection, reliance was placed by Mr. Batalvi on Ridge v. Baldwin and others ((1963) 2 All E R 66). In that case the appellant, who was a Chief Constable, was dismissed by the Watch Committee from his service under section 191 of the Municipal Corporations Act, 1882. The appellant was not present at the meeting of the Committee nor was he charged or given notice of the proposal to dismiss him or the particulars of the grounds on which it was based or an opportunity of putting his case. It was held in that case that as the appellant could be dismissed on the ground of negligence, this should have been proved and, therefore, the Watch Committee was bound to observe the principles of natural justice. The case relied upon, to our mind, will have no applica tion to the circumstances of the present case. The Chief Constable was not discharged from his service in terms of his contract. He was dismissed from his service on ground of being negligent in the discharge of his duties. It was, therefore, necessary that the appel lant should have been given an opportunity to meet the allegations in respect of his negligence in the discharge of his duties. In the present case, the petitioners were only probationers. They were discharged from service by the relevant authority when their work was found to be unsatisfactory.

7. In the second place it was contended that the Rules were not applicable to the petitioners. It was submitted that the petitioners were taken in terms of Annexure I to Mr. Malik's petition and Annexure A to that of Mr. Chaudhri. There is no force in this contention. Paragraph 7 of both the annexures runs as under "Government Servants Conduct Rules.‑You will be governed by the Government Servants Conduct Rules and such other Rules as may have been or may be enforced by Government in this behalf." The language of the above term of the service of the petitioners is wide enough to make the Rules applicable to them.

8. In the third place it was submitted that the Rules cannot be given retrospective effect so as to be applicable to the cases of the petitioners. Reliance in this connection is placed on the following sentence in the Rules. "In pursuance of the Presidential proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to make the following rules regulating recruitment to the West Pakistan Civil Service (Judicial Branch) and prescribing conditions of service for the persons appointed thereto." The submission is that these Rules apply to persons appointed after the Rules came into force. In this connection emphasis is given on the word "thereto". There is not much force in this contention'. "Thereto" has reference to the recruitment to the West Pakistan Civil Service (Judicial Branch). It does not refer to persons appointed after the Rules have come into operation or under the Rules. The petitioners cannot deny that they are the members of tile West Pakistan Civil Service (Judicial Branch). Under the terms of their appointment, they are to be governed by the Rules that the Government may apply to them. The fact remains that they were probationers and their services could be terminated if their work was found to be unsatisfactory. The mere fact that they were on probation would imply that they had to prove their worth as judicial officers.

9. It was in the fourth place contended that the petitioners should be taken to have been confirmed after the period of their probation. The period of probation in the case of both the petitioners was two years. In the case of Mr. Malik his services were dispensed with after the expiry of two years while in the case of Mr. Chaudhri he was discharged during the period of his probation, i.e., within two years. In this connection, reference may be made to sub‑rule (3) of rule 8 of the Rules, which reads as under: "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) dispence 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 order as it could have passed during or on the expiry of the initial probationary period. Explanation L‑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 period of proba tion was last extended or may be deemed to have been so extended." It would appear from the above explanations that the period of probation could be in all four years. It was only after tae expiry of the period of four years that Mr. Malik could claim to have been confirmed. He was, however, discharged from service within the period of four years.

10. Lastly, it was submitted that even a probationer is entitled to a show‑cause notice. In this connection, the learned) Advocate for the petitioner very strenuously relied on the reported as Syed Nisar Ali v. Secretary, Ministry of Health, Government of Pakistan (1) in support of his contention that ever the services of a probationer could not be terminated without show‑cause notice. In the first place it has not been held in this case that a probationer is entitled to a show‑cause notice. It was no doubt urged before the learned Judge that the provisions of Article 181 of the late Constitution were applic able to probationers as well. The learned Judges, however, disposed of the matter only on the interpretation of rule 17 (b) of the Central Medical Service (Class 11) Recruitment Rules framed by the Governor‑General of Pakistan. The relevant portion reads as under: "We will not deal with the other points raised in this petition as it can be disposed of on the short ground whether the petitioner's services were terminated in accordance with the conditions of his service namely under Rule 17(b) of the Central Medical Service (Class 11) framed by the Governor General of Pakistan on 14‑12‑1953 under section 241(2) of the Government of India Act, 1935." In that case the services of the petitioner were terminated by the Assistant Secretary of the Health Department. The learned Judges held as under: "In these circumstances we are unable to hold that the Assistant Secretary was authorised under any provision of law to take action under Rule 17 and to dispense with the services of the petitioner. We accordingly hold that the notice of discharge dated 5th November 1956 is not in accordance with law. It is illegal and ultra vires and, therefore, the services of the petitioner were not properly terminated." The learned Advocate, however, relied on the following observa tions of the learned Judges in that case:‑ "Before parting with this case, we had the painful duty to observe that in this case the Department has not followed the principles of natural justice before terminating the service of the petitioner. If they purpose to take any such action in future, they must call upon the petitioner to answer any allegation made against him and thereafter, in accordance with Rule 17 they will be perfectly justified either to terminate his services without assigning any reason or take disciplinary action against him." We are unable to construe from the above observations that the learned Judges held that a probationer is also entitled to a show‑cause notice. We have already reproduced the observations of the learned Judges in the case that they disposed of the matter only on the interpretation of Rule

17. They came to the conclusion that the Assistant Secretary was not the competent authority to dispense with the services of the petitioner under that Rule.

11. On the other hand, there are two reported cases which specifically dealt with the point in issue. In Federation of Pakistan v. Riaz Ali Khan (P L D 1958 Lah. 22) in a very detailed examination of the question, if I may say so with respect, whether a show‑cause .notice was necessary in the case of a probationer, Kaikaus, J. held that the discharge of a probationer is not removal or dismissal from service within the meaning of section 240 of the Government of India Act and no show‑cause notice was necessary. Similarly, it was held in Tasnim Ali Mir v. Federation of Pakistan (P L D 1959 Kar. 62) following the case Federation of Pakistan v. Riaz Ali Khan, that a proba tioner is taken into service subject to the final approval of the employer and the question whether he has or has not to be employed remains to be finally decided. If his services are terminated during his probation he is not entitled to any show cause notice.

12. For the reasons given above, we would dismiss both the petitions but would make no order as to costs. A. H. Petition dismissed.