1987 PLP 156 (SCMR)

"No doubt, the services of a temporary employee can be terminated on 14 days, notice or pay in lieu thereof in accordance with the provisions of section 11 (3) of the Civil Servants Act (LXXI of 1983) but the power of termination has to be exercised judiciously and not arbitrarily. The circumstances show that the appellant's services were terminated not in the public interest, but for the reason that he was involved in a criminal case. It is also admitted that he was served with a charge‑sheet, but the departmental proceedings were not taken to logical end. If the appellant was being punished for the acts for which he was being prosecuted in the Criminal Court, then proper action should have been taken against him under the Government Servants (Efficiency and Discipline) Rules. The making of order under section 11(3) of the Civil Servants Act is a colorable exercise of jurisdiction and as such it does not create any obligation. Apart from the facts stated above, it has not been established that the appellant was a temporary employee, under section 6 of the Civil Servants Act, 1973, it is other than ad hoc appointments which are made on probation. The order does not show that the appellant was appointed against a temporary post. Had it been so, then there was no point in placing him on probation. In the written statement also, it was indirectly admitted that the appellant's appointment was made in regular manner. The appellant has served the Ministry of Foreign Affairs for eight years and it never occurred to them previously that he was a temporary employee liable to termination of his service at any time. The very fact that the appellant was placed on probation shows that the appointment was made on regular basis against a regular vacancy. The insertion of the condition of the appellant being treated as a temporary employee after the period of probation is against the spirit of law and the rules." Mr. Munir A. Shaikh, the learned Deputy Attorney‑General, contended that from the terms and conditions of employment of the respondent, it was clearly established that he was a temporary employee and his service was terminable on fourteen days notice on either side. There was nothing on the record to hold otherwise. Even a temporary employee could be put on probation and could even after successfully completing the period of probation deemed to be a temporary employee. His confirmation depended on the availability of permanent post and it was not shown, not even alleged that the respondent was the senior most awaiting confirmation and a permanent post for his confirmation was available. He has referred to the decisions of this Court in Abdul Karim v. The West Pakistan Province P L D 1956 S C 298; The Federation of Pakistan v. Sirajul Islam P L D 1957 S C 77; The Secretary East Pakistan Industrial Development Corporation, Dacca 1970 S C M R 398, and Maulvi Ghulam Rasool v. Administrator Auqaf, Sind 1976 S C M R 73 to contend that where two powers are concurrently available; one of dismissal, removal or terminating the services with a stigma and the other of terminating the service without stigma in accordance with the terms and conditions of the employment, it is open for the employer to adopt either. It could not be claimed that necessarily the disciplinary proceedings resulting in his dismissal or removal should have been adopted. Qazi Atiqur Rehman, Advocate, the learned counsel for the respondent, on the other hand indicated that in the Civil Servants Act though ad hoc appointment is defined but temporary appointment is not defined and as the respondent was placed on probation and had rendered over eight years of service, he could not but be treated to be a regular employee and his services could not be terminated by recourse to the notice clause. He has referred to the case of Jafar Ali Akhtar Yousaf zai v. Islamic Republic of Pakistan P L D 1970 Quetta 115 for establishing the merits of his claim. It is correct that the Civil Servants Act does not define temporary appointment. Nevertheless provision has been made in section 11(3) in the following words:‑ "(3) Notwithstanding the provisions of subsection but subject to the provisions of sub‑section (2), the services of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof." Section 25(2) provides as follows:‑ "(2) Any rules, orders or instructions in respect of terms and conditions or service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." There exists The Temporary Employment Rules, 1965 which was framed by the President in exercise of the powers conferred by clause (1) of Article 179 of the Constitution (1962). On the strength of section 25(2) it will be deemed to be a rule made under the Civil Servants Act. Sub‑rule (2) of rule 2 and sub‑rule 3 define 'temporary employment' and 'temporary employee' in the following words:‑ "(2) temporary employment' means employment by the Government of a person in a civil capacity otherwise than:‑ (a) on a permanent basis; or (b) as a probationer; or (c) on probation; or (d) on contract; or (e) as a workman as defined in the Industrial Disputes Ordinance, 1959 (XVI of 1959); or (f) on deputation from a Provincial Government; and (3) temporary employee' means a person who is in temporary employment." Rule 4(1) is in the words that follow:‑ 4.(1) The Government may terminate the services of a temporary employee at any time, without assigning any reason, by giving a notice in writing for a sum equivalent to his pay for fourteen days or for the period by which the notice falls short of fourteen days." In view of these provisions of law, the termination of service of the respondent was strictly in accordance with the rules and the terms and conditions of his employment. The respondent based his claim on the following facts and grounds:‑ "He has been serving continuously ever since his appointment from 12‑7‑1975 uptil the issue of the impugned order. He has thus, put in more than 8 years of service and his name appeared in the seniority list or Lower Division Clerks issued by the Ministry of Foreign Affairs, Islamabad. Under the circumstances, the appellant could not be treated as a temporary employee, nor could he be condemned unheard in such an arbitrary manner." No rule or term and condition of appointment has been cited for claiming that continuation for eight years or more ipso facto converted the temporary appointment into permanent appointment. If the post against which his appointment was made was itself temporary he could not be made permanent nor could his posting on a permanent post make his appointment permanent. The decision in Yousafzai s case is of no avail because prolonged officiating appointment where a permanent vacancy was available was deprecated. In this case there is no averment or material to show that there was a permanent post available and he was the senior most awaiting confirmation. Section 7, subsection (5) of the Civil Servants Act provides that confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy or post or from the date of continuous officiation, in such service or post, whichever is later. On satisfactory completion of probation a civil servant can only claim to have become eligible for confirmation and nothing more. In the case of Muhammad Naseem Ahmad v. Miss Azra Feroz Bakht P L D 1968 S C 37 it was held that "it is not unusual furthermore for confirmation to be postponed as confirmation can be only made when a permanent post exists against which a new incumbent can be confirmed." In the case of Shahzada Shahpur Jan v. The Auditor‑General of Pakistan P L D 1984 S C 430 it was held that there is no cavil with the proposition that confirmation is not a legal right which can be enforced by the agency of the Tribunal or, indeed, any other legal agency. There is, therefore, no concept of automatic confirmation and that it is in the discretion of the employer exercisable on the availability of permanent post and after the completion of the probationary period. All public power has to be exercised for the purposes for which it is conferred. As the power of employing persons and terminating their, employment is given in public interest, it has to be exercised in public interest and there has to be no arbitrariness or malice in the exercise of it. In the case of Abdul Karim a departmental inquiry had been initiated but was not pursued to the end and instead termination by notice was resorted to. It was held that "it is easy to conceive of cases where the authority competent to dismiss a public servant employed on Ole same conditions as the petitioner comes after an enquiry to the conclusion that the drastic step of dismissal which would affect his employability in service is not called for though his further continuance in service is not desirable in the public interest. There is nothing on record before us to show that this was not one of such cases. From the mere fact that no action was taken on the enquiry held against the petitioner, it cannot be reasonably concluded that the action of the Superintending Engineer Thal area was mala fide". In the case of Sirajul Islam it was held that termination in accordance with the terms of employment did not amount to dismissal or removal requiring an elaborate procedure. The same principle was affirmed in the case of Sirajul Haq. It follows, therefore, that the appointment of the respondent was expressed to be temporary and it was so. He did not become a permanent employee notwithstanding the completion of the probationary period. As the termination of his service was in accordance with the conditions of his employment, which were not violative of section 11(3) of the Civil Servants Act, or the Temporary Employment Rules, 1965 the respondent could not seek redress against it. This appeal is allowed, the iitidgment of the Service Tribunal is set aside and the service appeal filed by the respondent stands dismissed. No order as to costs. S. Q. Appeal allowed.