P L D 1959 (W (PLP)

QADEERUDDIN AHMED, J.‑The petitioner was appointed as Advisiory Chemist in the office of the Director General, Health, Karachi, on the 14th March 1956. One of the conditions of his appointment was that he was to remain on probation for a period of 2 years. His services were terminated on the 21st of December 1957, within the period of his probation. He has, therefore, submitted the present writ petition with the object of getting the order of the termination of his service quashed, obtaining a declaration that he continues in service and for any other appropriate relief.

2. The petitioner has questioned the validity of the order on three grounds : Firstly, that according to the terms of his appoint ment, his service could not be terminated before the expiry of 2 years ; Secondly, that the termination is illegal, being without any genuine reason and, Thirdly, that it is the result of a grudge which respondent No. 3 bore against him, and which he satisfied with the help of respondent No. 2 by getting the petitioner's services terminated.

3. The first two grounds are misconceived because they are founded on the view that a probationer is a temporary employee and as such enjoys the protection which is given by the Constitu tion to Government servants, but as pointed out by Kaikaus, J., in Federation of Pakistan v. Riaz Ali Khan (P L D 1958 Lah. 22), a probationer is taken into service subject to the final approval of the employer, and the question as to whether he is or is not to be employed remains to be finally decided. There is, therefore, an implied condition in such an employment that the employer should be satisfied with the employee A after trying him. It is in a sense a tentative appointment, and the views expressed by the Supreme Court regarding the inconclusive ness of tentative appointments in Federation of Pakistan v. Raja Muhammad Afzal Khan (P L D 1958 S C (Pak) 258) are in principle applicable to it. In such a case it is not necessary that there should be any direct or indirect rescission of the contract, because satisfaction of the employer after trying the employee is a condition precedent to the final admittance of an employee into service. The learned counsel for the petitioner has laid emphasis on the words "your services are no longer required" which appear in the letter of the Government by which the petitioner's services have been terminated. He contended that it was a wrong statement of fact that the petitioner's services were not required any longer, because although the Department was in need of an Advisory Chemist and the petitioner was considered to be qualified for the job, yet the impression created by the letter was that the post of the Advisory Chemist was abolished. We do not think that this interpretation is correct, nor do we think that it was necessary for the Government to state any reasons. Actually the intention was not to give any reasons, but only to tell the petitioner that his services were terminated.

4. The third ground is a conclusion which the petitioner has drawn from a number of facts. He has pointed out in paragraph 8 of the petition that respondent No. 3 was himself performing the duties of an Advisory Chemist until the petitioner was appointed, and did not like to give up that work, because it provided opportunity to him for making recommendations for granting licences and approving the import of drugs. Moreover, respondent No. 3 used to indulge in malpractices like fraud and nepotism, and in perpetrating them, enjoyed the support of respondent No.

2. These two respondents, therefore, did not let the petitioner do his work, interfered with the performance of his duties, and ultimately managed to get rid of him.

5. In paragraphs 10, 11 and 12 of the writ petition, a number of allegations have been made to show that in the earnest performance of duty the petitioner had discovered several misdeeds of these two respondents which had displaces them, as a result of which, and not on the account of any inefficiency, his services were terminated. We did not go into the question as to what effect malice has on the exercise of the power to terminate service, because the learned counsel for the respondent conceded that mala fide exercise of the power would be invalid. He, however, offered to contest the truth of the allegations made by the petitioner and to establish that the order of the termination of the petitioner's service was not mala fide.

6. The learned counsel for the petitioner confined his address to the allegations which are contained in clauses (a), (b) and (f) of paragraph 10, and in paragraphs 11 and 12 of the petition. In clause (a) of paragraph 10 of the petition, the petitioner has alleged that his scale of pay was higher than that of respondent No. 3, that he held a higher rank too, but that he had been asked to make only recommendations to respondent No. 3, which meant that the petitioner was reduced to the status of a mere advisor to respondent No. 3.

7. It is admitted that the scale of pay of the petitioner was higher than that of respondent No. 3, but the petitioner was new to the work, and the mere fact that he was not given the power to make final recommendations does not appear to us to be sufficient for coming to the conclusion that the two respondents wanted dishonestly to deprive him of the chance to perform these duties.

8. In clause (b) of paragraph 10, the petitioner has alleged that a number of the relations of respondent No. 3 were engaged in the business of importing and selling drugs and that, therefore, he wanted to discharge the duties of making recommendations for granting licenses and for approving the import of drugs. Respondent No. 3 in his counter affidavit has admitted his connec tion with several firms but has stated that his relationship with their partners had been disclosed by him and was known to the Ministry of Health. He has denied the allegation of his connection with other firm.

9. Muhammad Ibrahim Dhamee on behalf of the Government has stated in his counter‑affidavit that the policy of the Government was that the Advisory Chemist should not have any interest in the firms which deal .with drugs and medicines and; therefore, the petitioner was asked at the time of his employment whether he had any such interest and he denied it, but it was discovered later on that he was a partner in a firm of Rawalpindi which was dealing in drugs and medicines.

10. The petitioner has explained in paragraph 12 of his rejoinder that his brother was running a factory at Rawalpindi since 1954, and that such an old connection could not be a good ground for terminating his service.

11. The allegations and counter‑allegations made by the three parties indicate that there were vast chances of misusing the position which they occupied, but that is not sufficient for coming to the' conclusion that any of the two respondents did actually indulge in malpractices or that they wanted to clear their way for doing misdeeds by getting rid of petitioner.

12. In clause (f) of paragraph 10 of the Writ Petition, the petitioner has given a specific instance. He has pointed out that Messrs Schazoo manufactured certain tablets and caused loss to the Government endangered the health of the public. He has stated that he discovered the wrong that was being done by them, reported the discovery and wanted to' take action against the manufacturers, but respondent No. 2 called him, gave him, verbal threats and told him not to make such reports.

13. Mr. Dhamee has denied these allegations in paragraph 12 of his counter‑affidavit and explained that it was the duty of the petitioner to take action but that he had failed to discharge it and that therefore, respondent No. 3 had to take action against the above named manufacturers. We have seen the original Mlle which was in Court and are satisfied that the record supports the respondents more than the petitioner.

14. In paragraph 11 of the Writ Petition, the, petitioner has alleged that he had ordered the Inspector, to prosecute certain firms in pursuance of which order prosecutions had commenced, but that respondent No. 3 requested the petitioner to withdraw the cases and on the refusal of the petitioner to do so, withdrew them himself with the approval of respondent No. 2.

15. Mr. Dhamee has denied 'these allegations and stated in paragraph 13 of his counter‑affidavit .that the complaints were lodged under the orders of respondent No. 2, and that they were withdrawn on the recommendation of the Public Prosecutor. We have seen the original letter from the Public Prosecutor and find that he had not recommended the withdrawal of the cases, but had only explained the procedure for withdrawing them. It is not clear how the prosecutions had commenced and why the question of withdrawing them arose, but counsel for the petitioner conceded that the petitioner did not have the final power to order prosecu tions, and that to this extent the allegations contained in paragraph 13 of Mr. Dhamee's joinder were correct. The mere fact that the cases were withdrawn does not prove whether anybody, or, if so, who was at fault, nor does it prose that respondents Nos. 2 and 3 gained anything by their withdrawal.

16. In paragraph 12 of the Writ Petition, the petitioner has alleged that respondent No. 3, with the approval of respondent No. 2, had issued bogus licences which were cancelled by him. He has referred to two Government files in this paragraph. We have seen the original files and without recounting the facts contained in them, can state that although it is possible to differ from the view taken by the respondents, it would be wrong to say that the view taken by them was either necessarily erroneous or indicative of bad faith.

17. On the whole, our reaction to the facts brought to our notice is that respondents Nos. 2 and 3 did not give a free hand to the petitioner in attending to the work which he considered to be his exclusive responsibility. The position which these parties occupied does appear to carry with it a certain amount of prestige and power in a section of the trade of the country. The petitioner was obviously impatient to exercise his powers and was frustrated in his attempts by the two respondents. There was plenty of unhappiness and annoyance on both sides, but we are not able to conclude that the respondents were bound to let the petitioner, who was comparatively a new entrant to the service exercise the powers and perform the duties which he thought he was entitled to exercise and perform.

18. In these circumstances the existence of difference amongst the three parties is understandable, but their existence and the consequent unhappiness does not necessarily prove malice or lack of bona fides. Our conclusion, therefore, is that so far as we can ascertain from the present affidavits and circumstances the services of the petitioner were not terminated on account of enmity, grudge or bad faith.

19. We, therefore, dismiss the petition with costs. K. B. A. Petition dismissed.