P L D 1957 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an appeal from the judgment of a Division Bench of the Karachi Section of the High Court of West Pakistan, by which a writ was issued directing the Federation of Pakistan to afford the respondent, Sirajul Islam, whose services had been terminated, an opportunity of showing cause against his removal from public service. The appeal is by the Federation and the sole ground on which it has been made is that by the terms and conditions of service the respondent was not entitled to the opportun ity which the High Court held he was. The respondent was appointed to the post of Technical Probationer in Radio Pakistan under an Office Memorandum, dated the 11th August 1950. The relevant terms and con ditions of his service were:‑ "(1) He will have to undergo training for a period of six to twelve months in the first instance. Initial training will be given at the Staff Training School, Radio Pakistan, Karachi; and subsequent training at other Units of Radio Pakistan in Karachi or outside. The period of training may be extended further; if found necessary in the light of the progress shown by him. (2) During the period of training he will be granted a fixed pay of Rs. 100 p.m. exclusive of all allowances as may be sanctioned by the Government of Pakistan from time to time. (3) On the successful completion of his training, and if found suitable, he will be appointed Technical Assistant in the scale of Rs. 175‑10‑225‑EB‑10‑275 in a temporary capacity. (4) His services may be terminated at any time by giving him one month's notice without cause assigned or one month's pay in lieu thereof. (5) If he wishes to resign he will be required to give a notice in writing for a period not less than one month or in default forfeit to Government such sum not exceeding his pay for one month. (6) (7) (8) He should clearly understand that his appointment and terms of service, including pay scale, are subject to such changes as Government of Pakistan may order from time to time and he will have no claim for any compensa tion in consequence of any such changes." After he had completed the training, the respondent was appointed Technical Assistant on the 25th March 1951, A few days later by another Memorandum the period of notice, if he intended to resign, was extended from one to three months. It seems that subsequently the respondent asked for permission to apply for the post of Commissioned Instructor Officer in the Royal Pakistan Navy, but this request was refused on the ground that he was likely to be confirmed in the post of Technical Assistant as and when his turn for confirmation came. By order of the Director‑General, Radio Pakistan, com municated to the respondent on the 21st May 1953 his services were terminated with immediate effect on payment to him of one month's salary in lieu of notice. In March 1956, the respondent applied to the High Court for a writ to direct the Government to confirm him as Technical Assistant with effect from the 16th February 1952, to appoint him as Radio Engineer with effect from the 14th April 1954, and to pay the arrears of salary and damages. This petition partially succeeded and the Division Bench ordered a mandamus to issue as stated above. The Bench took the view that clause (4) of the original Memorandum only applied to the respondent's employment as Technical Probationer and not as Technical Assistant and that, therefore, his removal from service was contrary to section 240 of the Government of India Act inasmuch as he was not given an opportunity to show cause against the removal. It is contended before us by the learned Attorney‑General that the learned Judges were not right in their construction of clause (4) of the Office Memorandum, and after hearing learned counsel for the respondent we are of the view that this contention must prevail. It seems to us to be perfectly clear that by the aforesaid 'Office Memorandum the respondent was initially appointed as a Technical Probationer and that he had to undergo training for a period of six to twelve months during which he was to get a fixed salary of Rs. 100 p. m. This period, if found necessary, could be extended. On completion of training he was to be appointed as Technical Assistant in the scale mentioned in clause (3) of the Memo randum in a temporary capacity. The 4th clause of the Office Memorandum which made his services terminable at any time on a month's notice without assigning any cause was applicable to his employment as a temporary Technical Assistant mentioned in clause (3). In other words it fixed the period of the notice which was to be given to him to terminate his temporary employment as Technical Assistant. It is not claimed that he had in fact been confirmed as a Technical Assistant. Section 240 of the Government of India Act was not, therefore, applicable to the case because the termination of services was in accordance with the conditions on which the respondent had been temporarily employed and was not dismissal within the meaning of section 240 of the Government, of India Act. We, therefore, allow this appeal, set aside the order of the High Court and dismiss the respondent's application to the High Court. In the circumstances of the case we direct the parties to bear their own costs through out. A.H. Appeal accepted.