Probation

2020 PLC(CS) 1537 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 17 & 25Pakistan Institute of Fashion and Employees (Efficiency and Discipline) Statutes, 2012, S. 10Constitution of Pakistan, Art.199ProbationRegularization of servicePowers and authority of Senate of "Pakistan Institute of Fashion and Design"Scope

Petitioner, an employee of Pakistan Institute of Fashion and Design, impugned order whereby probationary period of his employment was extended, and he was not considered for regularization of service, and subsequently his services were dispensed with

Validity

Per Pakistan Institute of Fashion and Employees (Efficiency and Discipline) Statutes 2012; petitioner had already completed the probationary period

While a competent authority considering confirmation / regularization of an employee could gauge his / her output during probationary period but said authority could not be given unbridled powers by cherry-picking some employees, whose probationary period was terminated, while depriving others, like petitioner, from confirmation despite passage of three years

High Court held that mala fide on part of Pakistan Institute of Fashion and Design vis-à-vis with matter of confirmation of service of petitioner was floating on surface, and impugned orders were set aside

High Court directed Pakistan Institute of Fashion and Design Act to put up matter of petitioner's confirmation with Senate of "Pakistan Institute of Fashion and Design" with direction to decide same afresh with specific reference to the defects apparent in Annual Confidential Report

Constitutional petition was allowed, accordingly.

2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 10(1)(i), 5, 4 & 6Punjab Judicial Service Rules, 1974, R.7AConstitution of Pakistan, Arts.10A, 4, 9, 14 & 25Constitutional petitionCivil serviceJudicial OfficersProbationTermination of service during the initial or extended period of probationConstitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974

Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons

Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution

Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation

Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations

Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process

One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein "performance evaluation" was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer

Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect

Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a "discharge" from service

Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority

High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice

Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant

While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down

High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice, but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order

Constitutional petitions were allowed, accordingly.

2015 CLC 1509 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 10(1)(i), 5, 4 & 6Punjab Judicial Service Rules, 1974 R.7AConstitution of Pakistan, Arts.10A, 4, 9, 14 & 25Constitutional petitionCivil serviceJudicial OfficersProbationTermination of service during the initial or extended period of probationConstitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974

Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons

Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution

Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation

Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations

Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process

One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein "performance evaluation" was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer

Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect

Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a "discharge" from service

Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority

High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice

Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant

While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down

High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice, but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order

Constitutional petitions were allowed, accordingly.

2002 PLD 728 SUPREME-COURT Judicial Precedent

ProbationNon-extension of period of probationEffect

If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period, would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended.

1985 SCMR 1978 SUPREME-COURT Judicial Precedent

S. 6West Pakistan Civil Service (Judicial Branch) Rules,1962, rr.6, 7 & 8(2) & 8(3), Explanation IIProbationRemoval from service

No order made by day following completion of initial probationary period of two years of appellant and his period of probation deemed to have been extended

Appellant not confirmed until expiry of aforesaid period and his services dispensed with within said extended period

No exception, held, could be taken to orders of his removal from service in circumstances.

1984 SCMR 834 SUPREME-COURT Judicial Precedent

Art. 212 (3)-Punjab Civil Servants Act (VIII of 1974), Ss. 9 & 10 read with Punjab Service Tribunals Act (IX of 1974), S. 4-Civil service-Probation

Leave to appeal granted to consider (i) whether petitioner A.S.I. Police was a "probationer" or held temporary appointment, and (ii) whether he was condemned unheard by competent authority.

1981 SCMR 523 SUPREME-COURT Judicial Precedent

S. 10-Probation-Reversion-Animus revertendi or loco poenitentiae, principle of Petitioner appointed by competent authority after , relaxing relevant rule competently and appointment made subject to certain conditions and such conditions fulfilled by appointee-Sub- r, sequent reversion of petitioner to a lower post, held, not justifiable. on plea of petitioner having been appointed on probation and services of probationer could be terminated competently-Case, held further not a case of termination of service but one pertaining to domain of principle of animus revertendi, i.e. recall of basic order of appointment, and required to be decided with reference to such principle alone and not on basis of S. 10, Punjab Civil Servants Act, 1974

[Civil services].

1963 PLD 179 SUPREME-COURT Judicial Precedent

Probation Probation-Bye-laws of Co-operative Society providing for confirmation by "Appellate Board" after expiry of period of probation-Confirmation not made for considerable time after expiry of such period-Later, confirmation approved "separately", by two members of Board, but one of such members approving confirmation from a date subsequent to elate of expiry of probation Two approvals held, (1) constituted approval in terms of bye-law; (2) Approval was not on any "extended probation" but one on "completion" of probation.

1963 PLC 477 SUPREME-COURT Judicial Precedent

Probation Probation

Bye-laws of Co-operative Society providing for confirmation of employee by "Appellate Board" after expiry of period of probation -Confirmation not made for considerable time after expiry of such period-Later, confirmation approved "separately", by each of two members of Board, but one of such members approving confirmation from a date subsequent to date of expiry of probation-Two approvals, held, (1) constituted approval in terms of bye-law; (2) Approval was not on any "extended probation" but one on "completion" of probation.