1989PLC(C (PLP)

(a) Posting of a civil servant in any post provided in section 9 of Punjab Civil Servants Act, 1974. (b) Re‑employment as provided in section 13 ibid. (c) Appointment on acting charge basis in Rule 10‑A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. (d) Appointment on current charge basis in Rule 10‑B ibid. (e) Appointment by promotion on officiating basis as in Rule 13(1) ibid. (f) Ad hoc promotion as in Rule 13(2) ibid. (g) The deputation of an official of autonomous or semi‑autonomous body against a post in Government as in Rule 15(1) ibid. (h) Ad hoc appointment as in Rule 22(2) ibid. The other group is of appointments, which are likely to continue indefinitely and appointees become members of the service or cadre. Appointments by initial recruitment, promotion or transfer as provided in Rule 3 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 belong to this group. According to sub‑rule (1) of section 5 of the Punjab Civil Servants Act, 1974 initial appointment shall be on probation. The appointment by promotion or transfer according to subsection (2) of section 5 may also be on probation as may be prescribed and this has been prescribed as one year by Rule 7(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. There is, however, no requirement of probation for various forms of appointments in first group, which are basically short term arrangements whereas this is a requirement for long term appointments of second group. Before making a firm commitment with an individual, the Government wants to be sure that the person concerned is really fit for holding the post for which he has been tentatively selected. Such a person can only attain sure footing if he shows during this period of trial/probation that he is a fit person to be kept on that job. A probationer is taken into service subject to the final approval of the employee and the question as to whether he is or he is not to be employed for indefinite period remains to be finally decided on the basis of his performance during probation which may include training and tests. The absorption of a surplus officer in a service or cadre other than to which he belonged is also a long term arrangement and the employer cannot be deprived of the right of test checking for permanent retention/absorption‑‑a right which has been conferred on him in case of direct recruit, promotee or transferee. The question is what better claim has a surplus official as compared to the above three categories if for the sake of argument we treat this as a separate category. He does not have to face as strong a competition as a direct recruit has to or a transferee had to when he was selected, for his present post. He does not have the experience of the departmental functioning as ‑a promotee has. Why should then he be exempted from the trial? He may be very good in his original appointment before becoming surplus but this cannot be said about his appointment in new service or cadre. Only trial can establish this and he has been put to this test but he could not come upto the required standard. We, therefore, repel the arguments of the learned counsel for the appellant. We hold that the appellant was appointed by initial recruitment through the Punjab Public Service Commission and was placed on probation by the provision of appointment order and the application of Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as discussed above. We may mention that an amendment has been made in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 on 17‑2‑1988 and provisos have been added to sub‑rule (1) of Rule 3 thereof. The amended rule reads as follows and covers cases of absorption of surplus staff: ‑ 3. (1) Appointment to posts shall be made by promotion, transfer or initial recruitment as may be prescribed by the Government in rein to the posts in a grade from time to time: Provided that where as a result of retrenchment in or re‑organisation of a Government Department/office or an Autonomous or Semi autonomous Organisation set up by the Government, certain posts or cadres are abolished and Government decides by a special order, to absorb persons rendered surplus in consequence thereof, such persons maybe absorbed against such posts in such manner and on such terms and conditions as may be determine by the Government: Provided that absorption of such persons shall be made on the recommendations of the Punjab Public Service Commission in case of posts carrying BS‑16 and above and in case of other posts on the recommendations of the committee constituted by the Chief Minister or any officer authorised by him in that behalf. Provided further that for purposes of seniority, persons absorbed as above shall be treated as having been appointed by initial recruitment with effect from the date they take over charge in the absorbing functional unit/cadre. (2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part III of these rules. (3) The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time. Since this amendment had not been made when the appellant was appointed as D.F.C. or when his services were terminated the provisions of circular quoted in para. 4 will be applicable as held by Honourable‑ Supreme Court m case reported as 1986 S C M R 30.

6. The learned counsel for the appellant submitted that the appellant had not completed the necessary training and was not posted as D.F.C. by giving him independent charge. He was not the holder of the post of D.F.C. in terms of sub- rule (1) of Rule 8 of the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963 reproduced below: ‑‑

8. Probation.‑‑(1) A person appointed to a post against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment and for a period of one year, if appointed otherwise. His performance could, therefore, not have been judged rightfully because he was still in the process of getting training. The order of termination is, therefore, premature and against the rules. The learned District Attorney submitted that the appointment of the appellant from the very first day was as D.F.C. A training programme was chalked out in such a manner that he could shoulder the responsibilities of the post independently on its completion in a proper manner. His work and conduct was not satisfactory during the training period. The learned counsel for the appellant further submitted that the period of attachment with D.D.F. Gujranwala, on whose recommendations the services of the appellant have been terminated was only one month and a few days. Taking the analogy from writing of A.C.R. he submitted that the minimum period of forming the correct assessment of the officer's work and conduct is three months. He submitted that the D.D.F. Gujranwala could not form correct assessment in the short period of his attachment with him. A period of three months was necessary before he could form an opinion about the suitability or otherwise of the appellant's retention as D.F.C. The learned District Attorney on the other hand submitted that the competent authority had considered the entire record of the appellant for the period of 5 months during which he remained posted in the Food Department under training at various places and the opinion was based on his performance as a whole during this period. He further submitted that no minimum period for the purpose of termination of service during probation has been prescribed in the Punjab Civil Servants Act, 1974, Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 or the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963. We are of the view that he was holder of the post of D.F.C. the day he joined as such. He drew his salary as such and underwent training in that capacity. The arguments of the learned counsel for the appellant are, therefore, repelled. We are further of the view that a total period of five months as in the instant case is enough for judging the performance of an official.

7. The learned counsel for the appellant further submitted that in case the appellant was not considered fit for the post of D.F.C. he should have been sent back to the surplus pool of SGA & I Department for absorption in some other post or service. The learned District Attorney submitted that it was in cases of promotion that the official concerned is reverted to his former positions he is not found fit for the higher post. He further submitted that it was not a case of transfer because transfer is from one living cadre to other living cadre. In the instant case the post of the appellant had been abolished and it was a matter of grace that he was accommodated in the surplus pool of SGA & I Department for the purposes of drawal of pay till such time he could be given a suitable regular appointment against a sanctioned post. In the instant case the appellant was given the post of D.F.C. but he did not prove himself suitable for holding the same. There was, therefore, no question of his going back to the surplus pool. No violation of any law or rules has, therefore, taken place by terminating the services of the appellant. Reliance was placed on the judgment of the Honourable Supreme Court in case reported as P L D 1974 S C 393 and in re: Civil Petition 313 of 1986 Farrukh Amin v. Government of Punjab and others decided on 19‑10‑1986.

8. We have examined the issue in the light of the provisions of the Rules. Necessary provisions are contained in stab‑rule (1) of Rule 10 of the Punjab Civil Servants Act, 1974, which is reproduced below: ‑ 10(1) The services of a civil servant may be terminated without notice; (i) during the initial or extended period of his probation: Provided that where such civil servant is appointed by promotion on probation or as the case may be is transferred and promoted on probation from one service cadre or post to another service cadre or post his service shall not be terminated so long as he holds a lien against his former post, service cadre and he shall be reverted to his former service or as the case may be, cadre or post. (ii) If the appointment is made on ad hoc bass liable to termination on the appointment of a person on the recommendation of the Selection authority, on the appointment of such person. We have already held that this was a case of initial recruitment. The only course was dispensing with the services of the appellant. It was surely not a case of promotion where one could be reverted to his previous post. It was not a case of transfer as has already been discussed. Even if we consider it to be a case of transfer for the sake of argument, the post which he occupied prior to his appointment as D.F.C. no longer existed in the Punjab Sports Board. He could not be reverted to his former position. The surplus pool is not a permanent arrangement. It does not constitute a service or cadre. Posts in the pool are created as and when required for surplus officials for so long as they are not absorbed. Once they are absorbed they no longer have any place in the pool. There is, therefore, no question of the appellant going back to surplus pool in the present case. He has not become surplus m the Food Department. On the other hand he did not prove himself suitable for the appointment. Had he become surplus in the Food Department he could have been placed in surplus pool again.

9. The termination is not with a stigma or for misconduct. No show‑cause notice was, therefore, necessary. Moreover, no mala fides has been alleged. We, therefore, find no legal infirmity in the impugned orders.

10. The upshot of the above discussion is that the appeal has no merit and, therefore, is dismissed. There is no order as to costs. AA./239/Sr. P Appeal dismissed.