FEDERATION OF PAKISTAN Versus AZIZULLAH CHOUDHRY

SHAFIUR RAHMAN, J.- -Leave to appeal was granted to the Federation of Pakistan under Article 212(3) of the Constitution to examine the correctness of the decisions of the Service Tribunal dated 4-4-1981 and 27-1-1982 whereby the removal of the two respondents in accordance with the terms and conditions of their appointment i.e. on 30 days' notice, was declared to be without lawful authority and of no legal effect.

2. The two respondents were commissioned in the Army in 1942. In response to an advertisement appearing in the press, the two respondents were released from the Army on being selected for appointment under the Director-General of Resettlement and Employment (India) as Manager Sub-Regional Employment Exchange, on the following terms and conditions:-

"(a) On selection he was to undergo training. He was to be appointed on six months probation. The appointment was to be for a period of 5 years (including the period of probation) on a temporary basis.

(b) His services might be terminated without notice during the period of training and probation and thereafter on one month's notice . "

The two respondents were confirmed on their posts, on 5-3-1946 vide Gazette of India Notification, dated 8-10-1946 (in the case of Mr. Azizullah Choudhry). They were shown as substantive temporary holders of their respective posts. By an order, dated 13-2-1952, their appointment was terminated, one of the orders (in the case of Mr. Choudhry) is reproduced hereunder:----

"MEMORANDUM

I am directed to give you Mr. A. U . Chowdhry this notice that your services will be terminated on the expiry of 30 days from your receipt of this notice.

You are also dispensed from further attendance to official duties."

3 Aggrieved by these orders of termination of their employment, both the respondents instituted civil suits challenging the termination of their services. The suit of Mr. Choudhry was decreed by the Civil Judges 1st Class on 25-9-1965 and the appeal against that decision was also dismissed on 19-7-1970. The suit filed by the other respondent Mr. Abdullah Bajwa was dismissed on 19-1-1965, but an appeal against the dismissal was allowed on 17-3-1969. The result was that termination of services of the two respondents was held to be without lawful authority and of no legal effect. The Federation of Pakistan went in second appeal which was held to have abated on 21-12-1973 on account of the Civil Servants Act and the establishment of the Service Tribunals having exclusive jurisdiction in such matters. The proceedings were taken up before the Service Tribunal where at first the Service Tribunal held that these appeals were not competent as they related to an order passed before July, 1969. However, this Court set aside the judgment of the Service Tribunal holding that the Service Tribunal had the jurisdiction in the matter and could proceed to decide. It was thereafter that the Service Tribunal by its impugned judgments dated 27-1-1982 (in the case of Mr. Abdullah Bajwa) and 4-4-1981 (in the case of Mr. Azizullah Choudhry) held that notwithstanding their initial appointment being temporary as they held posts which were of indefinite duration and were soon afterwards made permanent, their services were not terminable by 30 days' notice. In the case of Mr. Choudhry, it was held that he was confirmed in the said post on 5-3-1946. The Service Tribunal upheld the earlier orders holding that the termination of their services was without lawful authority and of no legal effect.

4. Mr. Sajjad Ahmad Sipra, the learned Deputy Attorney-General has contended that on the date the services of the two respondents were terminated not only was the department in which they were employed, a temporary one, the posts they were holding were also temporary in nature and their appointment was also expressed to be temporary terminable on 30 days' notice. In the face of these three factors, the finding of fact recorded by the Service Tribunal that for various reasons the nature of their appointment was permanent and protected under section 240 of the Government of India Act, 1935 is patently erroneous and untenable, He has also drawn our attention to the fact though mala fide was alleged in the notice served under section 80, C.P.C., but when an amendment in the pleadings was sought to incorporate it, it was refused by the trial Curt and that order was upheld in revision by the High Court in Civil Revision Application No. 298 of 1964. None of the authorities have, therefore, adverted to it in the case of any of the respondents.

The termination of their services being in accordance with the terms of their appointment, it could not be declared to be without lawful authority as it was not in violation of any requirement of law.

5. Mr. Aziz Ahmad Bajwa, the learned counsel for the respondents has contended that the finding of fact recorded by the Service Tribunal, with regard to the nature of appointment held by the two respondents is based on record and admissions of the appellant itself. It is not open to interference. Once, according to the learned counsel for the respondents, the respondents are held to be holder of posts which were to continue indefinitely against which they were made substantive and confirmed, the protection under section 240 of the Government of India Act, 1935 was available to them in view of the decisions of this Court in Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R. Lahore P L D 1962 SC 142 and Abdul Majid Sheikh v. Mushaffe Ahmad and another P L D 1965 SC 208.

6. In recording the finding of fact that the two respondents held posts which were to continue indefinitely, were likely to be made permanent and in fact were soon after the termination of their services made permanent the Tribunal relied on a number of factors. The claim of Mr. Choudhry to have been confirmed on his post as Manager Sub-Regional Employment Exchange by Gazette of India Notification dated 12th October, 1946, was admitted by the appellant in its written statement, para 2, by the remarks that:

"The confirmation referred to by the plaintiff in para 1 of the plaint only meant successful completion of the said probationary period within the stipulated terms."

The confirmation has a legal connotation and this was explained in Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakhtar and others P L D 1968 S C 37 in the following words-

"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 .............

There appears to be a great deal of force in this contention, for where conditions are prescribed for confirmation an officer remains a 'probationer' until he has fulfilled those conditions and cannot be treated as a person substantively appointed to a permanent post. Nor has he any right to be confirmed from the date of his original appointment, no matter when he qualifies for confirmation. Although in the normal course, if there is nothing against the officer concerned, the general rule followed appears to be that he is confirmed from the date of his original appointment provided a permanent post is available. But it would appear from the Establishment Manual, Government of Pakistan, Volume I, that this is in the discretion of Government and that it has on occasions laid down a different rule or procedure."

7. The other factor noted by the Service Tribunal in recording a finding of fact is the certificate of the Deputy Secretary dated 2nd October, 1947, showing Mr. Choudhry to be holding substantive appointment of Manager Sub-Regional Employment Exchange which fact got support from the history of the services referred to and extract place on record. While defining temporary posts, a Government decision in the following terms is noted in Compilation of Fundamental Rules and Supplementary Rules, entry relevant being F.R. 9(30);--

The Government have decided in consultation with the Auditor General that substantive appointments to temporary posts should be made in a limited number of cases only as e.g., when posts are to all intents and purposes quasi-permanent or when they have been sanctioned for a period of not less than, or there is reason to believe that they will not terminate within a period of, three years. In all other cases, appointments to temporary posts should be made in an officiating capacity only. "

Yet another factor noted by the Service Tribunal was that not only specified period of the temporary appointment of both the respondents was over, the department which was temporary alongwith the posts, was continued for an indefinite period and was soon made permanent. All these three factors could reasonably lead the Service Tribunal to hold as did the Civil Court that their appointment, though expressed to be temporary was on posts of indefinite duration. There is no other material placed on the record by the appellant which may displace the evidentiary value of these factors as were taken note of by the Service Tribunal and at this level it would be difficult to interfere with such a finding of fact.

8. Once this finding of fact is found established as beyond contest, the law laid down by this Court in Khawaja Ghulam Sarwar v. Pakistan through the General Manager P L D 1962 S C 142 and Abdul Majid Sheikh v. Mushaffe Ahmed and another P L D 1965 S C 208 takes over. In the case of Kh. Ghulam Sarwar the following was the law laid down:--

"I am, therefore, unable to agree with the learned Attorney- General that wherever there is a contract of employment providing for the termination of service on one month's notice or less the employment is by its nature temporary. To accept this contention would amount to rendering nugatory the protection given by subsection (3) of section 240, for, then it would be open, notwithstanding those provisions, for the appointment authority to obtain from every person recruited to the civil service or appointed to a civil post under the Government his signature to a contract providing for the termination of his service on one month's notice, and thus defeat the object of subsection (3) of section 240."

In the case of Abdul Majid Sheikh, the law was laid down in the following words:--

"The reliance of the appellant is upon the interpretation placed on these earlier provisions by the Courts in Pakistan in relation to temporary posts held without limitation of time. It is claimed on his behalf that it is settled by a number of decisions of the Supreme Courts in Pakistan that the protection given by section 240, subsection (3) of the Government of India Act, 1935, i.e., that a holder of a civil post may not be removed from service otherwise than after being given a reasonable opportunity to show cause against such removal, extends also to persons in temporary service of indefinite duration."

9. In view of the finding of fact recorded by the Service Tribunal which we consider immune from interference, the material before us and the law laid down by this Court, the judgment of the Service Tribunal is unexceptionable and the two appeals are dismissed with costs.

S. Q. /F-27/S Appeals dismissed.