1991 PLP (C (PLC(CS))

2. The relevant facts to be briefly stated are that the appellant was appointed as Statistical Officer, Muzaffarabad in Agriculture Department on the recommendation of Public Service Commission vide Order No.l-3(8)/386-13, dated 25-1-1988. He continued as such till on 5-7-19&S when under the impugned order, the order of his appointment was recalled on the ground that the appellant held the post on probation and respondent No.2 was appointed in his stead. Being aggrieved of the said order, the appellant filed a review petition before the respondent Government for setting aside the same but no decision was taken on his petition despite lapsing of a period of ninety days. Hence this appeal under section 4 of Service Tribunal Act, 1975 at this forum.

3. The appellant seeks reversal of the impugned order for the following reasons: (i) that the appellant's appointment was made on the recommendations of Public Service Commission. Among the candidates he stood first in test and interview held by Public Service Commission and the respondent Government was not justified to rescind the order of his appointment after a period of six months, (ii) that no show-cause notice was issued to the appellant before making the impugned order which is violative of principles of natural justice and is not maintainable in law. (iii) that the appellant rendered meritorious services to the Department and there was no complaint against him to justify his removal from his service. The action of respondent Government was also against fundamental principles of law which governs the matter of services. (iv) that the impugned order has been made at the back of the appellant with a mala fide intention to give undue benefits to the respondent No.2 who had obtained a lower position in order of merit in the test and interview held by the Public Service Commission as compared to the appellant. (v) that the appellant was selected and appointed without imposing any condition to remain on probation for any period. His selection was made by the Public Service Commission on the basis of open merit and the vacancies against quota of District Muzaffarabad were already filled up leaving no scope for the appointment of respondent No.2 on the basis of quota reserved for Muzaffarabad District.

4. In their written statements, it was submitted by the respondents that the present appeal was not maintainable for the appellant was never removed from office under any penal action. In fact the order of his appointment was made after the Public Service Commission withdrew its approval on the ground that it had earlier committed an error in allowing the post to be advertised and filled up on open merits. The mistake was also detected by the Department at a belated stage after the issue of the appointment order and so it was recalled under the impugned order. According to respondents, the post of Statistical Officer was available against the reserved quota of District Muzaffarabad and hence the appointment of respondent No.2 was ordered in stead of the appellant. It is further submitted by them that initially every appointment is deemed to be on probation irrespective of the fact that such a condition is incorporated in the order of appointment or not.

5. The arguments were addressed at the Bar by the learned counsel of each party and we have carefully examined the record as was maintained by the Services Department, Agriculture Branch. There is no denying the fact that the post of Statistical Officer in the Agriculture Department was ordered to be filled up through Public Service Commission on the basis of open merits. There is also nothing on the file to refute this claim of the appellant that he was appointed as Statistical Officer in the Agriculture Department on the basis of recommendations of the Public Service Commission which the latter had prepared in the light of results obtained after the test and interview of the candidates appearing for the post. The selection of appellant for his appointment against the post of Statistical Officer was no doubt, finalized by the Public Service Commission after the appellant was found to have topped the list of the examinees. On the face of record, there does not appear anything that the appointment of the appellant as Statistical Officer was made on probation for some period.

6. In the instant case the order of appointment of the appellant was made as earlier as 25-1-1988 and after an interval of about six months it was rescinded assigning this reason that it was made through a mistake and since the appointment was on probation, the Government held the power to rescind the same. With a view to having a correct appraisal of the order it seems essential that the relevant order should be reproduced below:--

7. A plain reading of this order shows that no condition whatsoever was incorporated therein to make provision for the appellant to remain on probation for some period. but under the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service), Rules, 1977 a person appointed in a grade against a substantive vacancy shall remain on probation for a period of two years if appointed by initial recruitment. Therefore, it shall have to be accepted that the appellant held the job of Statistical Officer on probation at the relevant time when he was removed from service. But the question that arises for determination before this Court is that whether the removal of the appellant has taken place in accordance with law.

8. We find sufficient material on the file that the post was once advertised to be filled up against the quota of District Muzaffarabad but nobody from Muzaffarabad District was found available by the Public Service Commission to fill up that vacancy and after that a second call was made by the Public Service Commission for the vacancy to be filled up on the basis of open merits. We do not find any truth in this argument also that it was the mistake of the Public Service Commission alone which had necessitated the recall of the order of the appellant. It is to be noted here that the advice of Public Service Commission is of a recommendatory nature and the respondent Government could make appointment of respondent No. 2 because of the fact that he was belonging to Muzaffarabad and the post was to be filled up against quota of Muzaffarabad District. The advice of Public Service Commission is, no doubt, to be respected by all the Departments of the Government but we have not come across any case like that where the Public Service Commission would have withdrawn its advice at a belated stage after the same was already implemented. We find that the decision of removing the appellant was taken long after the implementation of the order.

9. It is very true that the position of a person who has been taken on probation is that he is in service, but his service is subject to the condition that he will attain a sure footing only if during the period for which he is on probation he shows that he is a fit person to be retained in his service P L D 1961 Lah.

808. In other words it is to be explained in this way that in the cases wherein the work and conduct of an employee is regarded as unsatisfactory or where he has failed to pass the prescribed tests or courses which are prerequisite for appointment on regular basis, the probationer is to be discharged from service if he was appointed by initial recruitment and in case of his promotion he is to be reverted to his substantive post. In the instant case no test nor any course was prescribed for the appellant to pass before he was to be appointed on permanent basis. It was, no doubt, essential for him to prove his performance to the satisfaction of his superior Officer. But the unfortunate aspect of this case is that here the appellant was never removed from service for his unsatisfactory performance. He was removed considering him to be a temporary hand and because of a mistake in his selection by the Public Service Commission: It is not the case of the respondent Government that the appellant was removed from service on account of his unsatisfactory performance. We are afraid, we cannot contribute to this view that the respondent Government was legally competent to remove away the appellant without assigning him the reasons of his unsatisfactory performance. The mistake of fact stated to have taken place in the office of Public Service Commission is shrouded in doubts and it would not constitute bona tide exercise of the powers by the respondent Government. Next a person who is employed on probation is deemed to be in service just as much as a person who holds a permanent post and permanent post and as long as the law is as it is, an order of termination of his service cannot be made otherwise than in accordance with law because it has the same results as his removal from service. The appellant was duly approved for his appointment by the Public Service Commission against the existing vacancy and by his appointment he had almost acquired all the rights to serve in that capacity but for his unsatisfactory performance.

10. The result of the above findings is that the impugned order of the respondent Government must be held to be ultra vires and consequently the appellant must be declared not to have been validly removed from service. We, therefore, allow this appeal and set aside the impugned order. No order as to the costs. M.Y.H./93/Sr. A Appeal allowed.