P L D 1959 (W (PLP)

The plaintiff in this case examined himself as a witness. According to him he was selected, in undivided India, as Deputy Assistant Director‑General (Resettlement) on a pay of Rs. 800 plus Rs. 240 as special pay for a period of three months, and before the expiry of this period he was again interviewed by the Selection Board and was recommended for permanent retention in the office of the Director General, I. M. S. He was then promoted to the post of Assistant Director General, I. M. S., Resettlement. This order was not implemented as the Partition Council decided to keep in abeyance all the orders till the creation of Pakistan. Accordingly he was posted as Deputy Assistant Director‑General, I. M. S. (Records). This post was on a perma nent cadre of the Department. He opted for Pakistan and was appointed as Transfer Officer and brought all the documents and papers connected with the medical service from New Delhi to Karachi. He was appointed in Pakistan to the post of Deputy Assistant Director‑General, Medical Service, Pakistan, a perma nent post in Pakistan. The plaintiff further stated that in April 1948 the Pakistan Government appointed Departmental Committees to find out the strength of surplus officers and he was not declared as surplus but was promoted on 8th April 1948 as Assistant Director General, Medical Services, Stores. He continued to work on this post for about 34 months. He was told at the time of his appointment that he would have to appear before the Public Service Commission for confirmation, but after 22 months of the interview was suddenly informed on the 5th of December 1950 that he was not selected by the Public Service Commission. His services were also terminated by that latter. According to him he was appointed to the post of D. A. D. G., Medical Services, Pakistan on a permanent basis. The defendants examined Mr. Muhammad Ibrahim Ghani, Deputy Secretary, Ministry of Health and Social Welfare as a witness on their behalf. According to this witness the plaintiff was employed in the office of the Director‑General. I. M. S. in a temporary capacity. He stated that the information received by the Department from India showed that the plaintiff was appointed as Deputy A. D. G., I. M. S., Resettlement and D. A. D. G., I. M. S., Records, in undivided India on a purely temporary basis. According to this witness the plaintiff was appointed to the post of D. A. D. G., Medical Services in Pakistan purely on a temporary basis. This witness further stated that in April 1948 the plaintiff was given a new appointment of A. D. G., Medical Services Stores, and he was never given any substantive appoint ment in the defendant department and had no lien on any such post. Unfortunately in this case the original letter of appointment of the plaintiff to the post in India has not been produced. The Department also did not possess any official record about the service of the plaintiff. No formal service book of the plaintiff was received from India after partition. I therefore directed the defendants on 12th December 1958 to summon the service record of the plaintiff from the office of the A. G. P. R. This record has been received and has been marked, with the consent of the parties, as Exh.

11. A perusal of this record shows that the Government of Pakistan received the statement of service of Major A. A. Khan from the Assistant Accounts Officer, Central Revenues Government of India. It is at page 33 of the above mentioned file, and clearly shows that the plaintiff was appointed both as Deputy' Assistant Director‑General, I. M. S. (Resettlement) and Deputy Assistant Director‑General I. M. S. (Records)on a tem porary basis. The relevant entries disclose that both the above mentioned appointments were acting appointments and the plaintiff was drawing Rs. 800 monthly pay in an officiating capacity plus Rs. 240 as special pay. There is thus no doubt in my mind that the plaintiff was appointed in India to the post of Deputy Assistant Director‑General, I. M. S. (Resettlement) and D. A. D. G., I. M. S. (Records) in a temporary capacity. This fact is further confirmed by Exh. 6/1, the form submitted by the plaintiff while opting for Pakistan. In the column of substantive appointment, the plaintiff did not mention anything and it is blank, which shows that he held no substantive appointment in India before coming over to Pakistan. In a letter dated 3rd January 1951 (Exh. 6/13) the plaintiff stated as under: "A perusal of these papers will show that I was appointed by the D. G., I. M. S. and the approval of the Pakistan Public Service Commission was not contemplated at any stage after appointment, if the post continued. Soon after, Pakistan came into being and I finally opted for Pakistan on the clear understanding in my mind that I would be confirmed in due course". This statement further strengthens the defendant's case that the plaintiff was employed in India on a temporary basis and he was still to be confirmed when he opted for Pakistan. On this evidence I am satisfied that the plaintiff was holding the post of D. A. D. G., I. M. S. (Records) in undivided India, purely on a temporary basis and he was not appointed permanently to this post. In Pakistan the plaintiff, after opting, was posted as D.A. D.G Medical Services and he held this post till the 7th of April 1948. The plaintiff has failed to produce any document to show that he was confirmed at any time in this particular post. In view of this, there is no doubt that the plaintiff was holding this post till the 7th of April, 1948 purely on a temporary basis. According to the documents produced on the record it appears that during this period the question of the plaintiff's appointment to a suitable post in the office of the Director‑General, Medical Services, Pakistan was under active consideration. The defendants ultimately decided that he should be appointed to the post of A. D. G. Medical Services (Stores) Pakistan for a period upto the 30th of September, 1948, vide letter dated 8th April, 1948 from the Government of Pakistan to the Director‑General, Medical Services (Exh. 6/7). This letter further shows that if, however, the post is extended beyond that date it would be filled in the ordinary way by advertisement through the Pakistan Public Service Commission and the plaintiff may then take his chance along with other candidates. The notification dated 23rd April 1948 (Exh. 6/2) also shows that the plaintiff was appointed as A. D. G., Medical Services (Stores) with effect from the. 8th of April 1948 on temporary basis upto the 30th of September 1948. As already stated, the plaintiff continued to hold this post for a pretty long time but on 5th December 1950, vide Exh. 6/6, the plaintiff was informed by the Director‑General of Health as under:‑ "Reference Government of Pakistan, Ministry of Food, Agriculture and Health (Health Division letter No. F.10‑5/48‑M dated the 8th April, 1948, copy enclosed for ready reference and which has already been shown to you. The Pakistan Public Service Commission has not recommended your name for appointment as Assistant Director-General of Health (Stores) in this office. You are, therefore, informed that with effect from the date that Major G. H. K. Niazi reports here for duty your services will not be required. Please acknowledge receipt of this communication." The plaintiff continued to work in the post till the 11th of February 1951 when the new incumbent assumed charge. There is no dispute so far as the termination of the services of the plaintiff from the post of A. D. G., Medical Services is concerned. But the learned counsel for the plaintiff strenuously argued that the plaintiff had a lien on the post of D. A. D. G. Medical Services and if he was not selected by the P. P. S. C. for the post of A. D. G., the Government should have reverted him to his parent post and was not entitled to terminate his services. The learned counsel for the plaintiff further contended that it is not a case of afresh appointment but the plaintiff was promoted from the post of D. A. D. G., to the post of A. D. G., and therefore in this case the question of termination of his service did not arise. I have given serious consideration to these contentions. The learned counsel for the plaintiff has not been able to point out or to refer to any service rules that the holder of a temporary post has any lien on it after he is promoted or appointed to another job. In fact the Fundamental Rules clearly show that it is only the permanent holder of a post who has got such a lien, whit means that a temporary employees is not entitled to any lien or ,q the post held b5 him. I have already held that the plaintiff was appointed on a temporary basis in India. There is ample evidence on the record to show that till the 7th of April 1948 he was holding the post of A. D. G., Medical Services on a temporary basis. On the material placed on the record I do .not consider that the plaintiff was promoted from the post of D. A. D. G., Medical Services to the post of A. D. G., Medical Services. Although the departmental notes show that they treated it as a case of promotion, but the letter of the Health Ministry to the D. G., Medical Services and the notification of the appointment of the plaintiff to the post of A. D. G., Medical Services clearly prove that it was a fresh appointment with specific conditions and for a definite duration. It seems to me that the termination of the service of the temporary employees at the expiry of the period B fixed for employment or by means of notice served in accordance with the terms of the contract arc lawful methods and they do not amount in law to removal and dismissal. In my opinion, therefore, the defendant Government was perfectly justified to terminate the service of the plaintiff in accordance with the terms of the contract, after he was not approved of by the P. P. S. C. for the post of A. D. G. It further appears to me that under these circumstances, the defendant Government was not bound to re-appoint the plaintiff to the post of D. A. D. G., Medical Services, to which post he bad no lien, It was next urged by the learned counsel for the plaintiff that the notice in this case terminating the services of the plaintiff was not valid as he was not given one month's notice. This contention is without any force. The plaintiff was appointed for a definite period as A. D. G., Medical Services and the Government was entitled to terminate his services without giving one month's C notice. The period of one month was not a part of his contract or the condition of his service. I therefore see no ground to interfere in this matter on this ground. It was also urged by the learned counsel for the plaintiff that the termination of the services of the plaintiff was in direct contravention of the provisions of section 240 of the Government of India Act. It was urged that it amounted to removal and therefore the defendant Government was bound to proceed in accordance with the conditions laid down in the above mentioned constitutional provision of law. This question need not detain me because as already observed, in my opinion the termination of the service of a temporary employee by the defendant Government in pursuance of the terms of the contract is not a removal or punishment under the Civil Services (Classification Control and Appeal) Rules. The explanation of Rule 49 clearly says that the discharge of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, does not amount to removal or dismissal within the meaning of this rule. There is no evidence on the record to show that the plaintiff' has been removed on account of any disciplinary action. In the present case. the plaintiff's services have been terminated because he was not found suitable for the job by the P. S. C. I will, therefore, hold that the order of the termination of the services of the plaintiff is not in contravention of the provisions of section 240 of the Government of India Act. On these findings my answers to the issues framed in this case are as under:- Issue No. 1.

The plaintiff was holding the appointment on .temporary basis. Issue No. 2.

(a) On the same terms on which he was holding the post in India viz., on a temporary basis. (b) On temporary basis. (c) Yes, but without any particular effect. Issue No. 3.

(a) Negative. (b) Affirmative and his service could be terminated in terms of the contract. (c) Affirmative. Issue No. 4

As an independent candidate. Issue No. 5.

Negative. No evidence was led by the parties on this issue. Issue No 6.

Negative. Issue No. 7.

(a) Negative. (b) Negative. (c) Affirmative. Issue No. 8.‑(a) The plaintiff's services were terminated. (b) Negative. Issue No. 9.‑Negative. The plaintiff's service was properly terminated. Issue No. 10.--‑(a) Negative. Issue No. 11. ‑--Does not arise as the defendants did not press for it. Issue No. 12.--‑Does not arise as the defendants did not press for it. Issue No. 13.‑--In view of the findings given above does not arise. For the reasons given above, I will dismiss the plaintiff's suit but will leave the parties to bear their own costs. K. M. A. Suit dismissed.