1989 PLP 1865 (SCMR)

SHAFIUR RAHMAN; J.‑‑The petitioner, a permanent civil servant of the Government of N.‑W.F.P., seeks leave to appeal against the judgment of the Peshawar High Court, dated 14‑5‑1989, whereby a Constitution Petition filed by him was dismissed.

2. The facts as provided and not in dispute are that the petitioner was working as Entomologist in the Agricultural, Forest and Cooperation Department of the Government of N.‑W.F.P. when he was selected for appointment as Associate Professor, N.‑W.F.P. Agricultural University, Peshawar. He was relieved of his post in the Government from 4‑7‑1984. While the petitioner was serving in the Agricultural University, an order, dated 2‑2‑1986 in the following terms was received by him:‑‑ "The Syndicate N.‑W.F.P. Agricultural University in its meeting held on 2‑2‑1986 decided to repatriate Mr. Bashir Muhammad Khan, temporary Associate Professor to his parent Department with immediate effect."

3. The petitioner challenged his repatriation to the parent Department by invoking Constitutional jurisdiction. The High Court rejected the claim of the petitioner by observing as follows:‑ "Firstly the petitioner being a permanent employee of the Government he was entitled to retain his lien against his post in the Government till he had acquired a permanent lien on any other post and he could not be permanently relieved by the Provincial Government to join his post under the Agricultural University. In this respect Fundamental Rules 12‑A, 13 and 14 are quite clear. Secondly, as he was appointed by initial recruitment he was liable, under statute 8 of the N.‑W.F.P. Agricultural University Peshawar Service Statutes, 1987, to be on a probation of one year extendable for a further period of two years. Since the petitioner was not confirmed in his post under the Agricultural University after the expiry of initial probationary period of one year, such period stood extended as provided in the aforesaid statute

8. Under the provisions of the aforesaid statute the University was entitled to dispense with his services during the probationary period and actually that is what the University has done. The petitioner was neither confirmed in his service under the Agricultural University nor he could claim any lien against that post. We, therefore, do not find any illegality or irregularity in the impugned order of the Agricultural University made on 2‑2‑1986."

4. Qazi Anwar, Advocate, the learned counsel for the petitioner contended that as the probation period of the petitioner was expressed to be only one year, he should be deemed to be confirmed thereafter and being employed permanently in the Agricultural University, he could not be repatriated to Government Service from where he had been relieved for all purposes.

5. It is not disputed by the learned counsel for the petitioner that the Statute of the University, though framed subsequently, but applicable to the petitioner in terms of the condition attaching to his appointment order, dated 17‑7‑1984, provided that if no order of confirmation was passed after the expiry of one year's probation, then the probation period automatically stood extended for two more years. If that were so, the repatriation of the petitioner had taken place while he was still on probation in the University. He would not be deemed either to be confirmed or to be permanently appointed in the University and while on probation he could be repatriated to his parent department where his lien would continue till such time he is not confirmed against the permanent post. The High Court has applied correct law and no ground is made out for our interference. Leave to appeal is, therefore, refused A.A./B‑117/S Leave refused.