P L D 1981 Lahore 596 (PLP)

GUL MUHAMMAD KHAN, J .-The appellant was selected and appointed, as a lecturer in the Law College, against a permanent post, by the Syndicate, on the recommendation of the Selection Board of the Punjab University, vide order dated 30th September, 1976. He joined his assignment on 29th of September, 1976. It was subject to two years probation.

2. On 23rd August, 1979 the respondent No. 1 sent a letter to the appellant informing him that his probation had been extended by one year. On 27th August, 1979 he was given one month's salary and asked to relinquish charge as his work and conduct was not satisfactory.

3. The appellant challenged the above order in Writ Petition No. 4984/79 but the same was dismissed on 9th of October, 1979. He challenges that order through this Intra-Court Appeal.

4. It is contended by the learned counsel that; (i) the two years probation having concluded on 28th of September, 1978 and no order of extention having been made prior to that, the appellant stood confirmed in his appointment and his service could not be terminated on the basis of unsatisfactory work and conduct, without resorting to the procedure, as laid down in the University of the Punjab Employees (Efficiency and Discipline) University Ordinances, 1961 (hereinafter called Efficiency and Discipline Ordinances), (ii) the Syndicate being the appointing authority, the Vice-Chancellor has no jurisdiction to terminate the services of the appellant. (iii) In any case, the jurisdiction exercised by the Vice-Chancellor was colourable and mala fide as he extended probation on 23rd August, 1979 and passed the order of termination only four days thereafter.

5. The provision about probation and confirmation is contained in Chapter II (Terms and Conditions of 'Service) of University Ordinance, 1971. Its clause 3(v) reads as under : Probation and confirmation : (page 373).-Unless otherwise decided by the Syndicate, the members of the Teaching Staff appointed to permanent vacancies shall ordinarily remain on probation for a period of (two years) which may be extended by another year. The total period of probation shall not exceed three years. The period spent on leave, other than casual leave, may be excluded for reckoning the period of probation. An employee who proceeds abroad for higher studies during the period of his probation shall be considered for. confirmation only after he has completed the remaining part of the prescribed period of his probation after return from abroad. Notwithstanding anything hereinbefore contained, the period of probation in such cases would be deem-.d to have been extended proportionately."

6. It will thus be seen that the original period of probation is two years, but the competent authority can extend the same by another year and no more. The second part of the above provision, however, shows that there will be an automatic extension of probation period in the case of employees who had gone abroad for higher studies. The contention of the learned counsel for the appellant is that if automatic extension was intended for other employees too, it could have been likewise provided in the first part as well, so that passing of a separate order for the purpose would not be required. He further stated that the word `extension' will be used only if an order was passed within the period of probation. The learned counsel also compared the above provision with some of the recent provisions made with regard to civil servants. A departure is made therein from the previous position by providing that a servant shall be eligible to confirmation after the period. of probation has expired or that if no confirmation is made, the period of probation shall stand automatically extended. The learned counsel for the respondent, on the other hand, stated that not only there had to be passed an express order of confirmation by the competent authority but even the period could be extended, at any time, within the total period of three years. This contention, however, is not supported from the first part of the above provision, as no express order of confirmation is required to be passed therein even after the expiry of the total prescribed period of three years. Further, the second part does show that in the case of an employee who had gone abroad, the question of confirmation is to be considered after he has completed the remaining part of the prescribed period of probation. Had the intention been so in the case of other employees also the Legislature would have made a similar definite provision about the point of time for consideration of his confirmation and passing an order there-about.

7. In view of the above, we think that the question of confirmation under first part must be considered within the period of probation and no express order of confirmation is required to be passed in case no order of extension or termination of service is passed within the period of probation. Consequently, t we hold that the appellant stood confirmed as a lecturer on the expiry of the original two years probation period.

8. The next point to be considered is whether the Vice-Chancellor was the competent authority to extend the period of probation. Admittedly, the Syndicate, on the recommendation of the Selection Board, is the appointing authority of the appellant, under section 26(2)(s) of the 1973 Act. The Syndicate could delegate its powers under section 26(2)(cc). It is nowhere stated and has not even been claimed that the Syndicate had delegated its authority to determine the service of such a teacher on the Vice-Chancellor. Reliance has rather been placed on section 15(iii) of the University of Punjab Act, 1973 which reads :- "The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action for approval to the Officer, Authority or other body which in the ordinary course would have dealt with the matter."

9. It is argued that as it was not in the interest of the University to continue the service of the appellant, it was a case of emergency to terminate the same and, therefore, the Vice-Chancellor rightly acted under section 15(iii) to do so. Firstly, it is not shown, if at all, it was such an emergent matter. In any case, the learned counsel has not been able to show if the Vice-Chancellor had at any time, thereafter reported his action for approval to the Syndicate. In fact the learned counsel had promised to inform us about it after looking into the record but it has not bone so far. We, therefore, presume that no such approval had been sought from or given by the Syndicate. In this view of the matter, the very order, extending the probation or terminating the services of the petitioner, is without lawful authority on this short score.

10. The last contention of the learned counsel also appears to be correct one as informed by the learned counsel for the appellant that the Syndicate had been functioning till after the expiration of period of probation. If the work and conduct of the petitioner was not satisfactory for the first two years of probation, an action would have been taken by the Syndicate. The same was not done even in the other 11 months. We are, therefore, constrained to hold that what the Syndicate did not want to or did not do was done by the Vice-Chancellor without lawful authority.

11. In any case the term "unsatisfactory conduct" casts a slur or stigma on an employee as held by the Supreme Court in Hassan and others v. Fancy Foundation PLD1975SCI. The appellant, therefore, had a right to an opportunity of being heard in accordance with the Efficiency -and Discipline Ordinance, read with section 26(2)(w) of the 1973 Act, by the Syndicate before any such order could be passed. In view of the above, the impugned order is declared to be without lawful authority and of no legal effect. The result is that the appellant continues to be in the service of the respondent. The parties shall bear their own costs. M. y. M. Appeal accepted.