Syed ZAHIRUL HASNAIN Mallick KHAN MOHAMMAD vs THE COMMISSIONER OF KARACHI AND ANOTHER THE COMMISSIONER OF KARACHI AND ANOTHER
The petitioners, appointed as Naib-Tehsildars in the Lasbela district by the Commissioner of Karachi, challenged the termination of their services. Although the petitioners argued that their appointments were valid under the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962, and that they had completed their probation, the Supreme Court held that the petitions were bound to fail. The Court determined that under Explanation I to Rule 10 of the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962, the petitioners' probationary period was deemed extended because no confirmation orders were issued upon the completion of the initial two-year period. Consequently, as probationers, the petitioners had not acquired a vested right to a substantive appointment, rendering their termination unchallengeable under Article 98 of the late Constitution. The Court dismissed the petitions, noting that while the petitioners' arguments regarding the validity of their initial appointments had merit, they lacked the legal status of confirmed employees to enforce their retention.
- Does the completion of a probationary period automatically result in confirmation if no express order is passed?
- Can a probationer enforce a right to appointment in a substantive capacity under Article 98 of the Constitution?
- What is the effect of the failure to issue confirmation orders upon the expiry of an initial probationary period under the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962?
- Rule 4, West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962
- Rule 5(3), West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962
- Rule 10, Explanation I, West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962
- Article 98, Constitution of Pakistan 1962
1. HAMOODUR RAHMAN, C. J.-The petitioners in these two cases, who are permanent residents of Karachi, had, in pursuance to an advertisement published in the Daily Dawn on the 14th of January 1966, inviting applications from persons domiciled in the Karachi Division for two posts of Naib- Tehsildars (Revenue) in the district of Lasbela, applied for the same. They were selected by a Selection Board presided over by the Commissioner of Karachi and were issued letters of appointment on the 2nd of February 1966. As directed by this letter, they reported for duty on 4th of February 1966, and had since then been continuously working, it is said, to the satisfaction of the superior authorities as such Naib-Tehsildars. There was no condition in the letter of appointment for terminating their services on 15 days' notice.
2. The West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962, actually provided by rule 5(3) that "vacancies in the posts of Naib-Tehsildars shall be reserved for bona fide residents of the Division where they occur".
3. Notwithstanding this, the petitioners were, on the 13th of February 1968, served with notices terminating their services on the expiry of 15 days from the date of receipt of the notices, as the Board of Revenue, it appears, took the view that even in the case of Naib-Tehsildars the initial appointments have to be made from amongst persons resident in the district, in spite of the representation of the Commissioner that under the rules there is a clear provision that such appointments can be made from amongst residents within the Division.
4. The petitioners sought to challenge the orders terminating their services by constitutional petitions filed in the High Court of West Pakistan, Karachi Seat. The High Court took the view that under the rules the Commissioner of Karachi had no power to make appointments in respect of vacancies in Lasbela district. It is, however, pointed out that rule 4 of the above-mentioned Rules clearly states that "recruitment to the service shall be made (a) in the case of appointments to the posts of Naib- Tehsildars, by the Commissioner in charge of the Division where the vacancies in such posts occur".
5. Be that as it may, there is another reason for which these petitions were; in our opinion, bound to fail. It is admitted that the petitioners were never confirmed. The contention that after they had satisfactorily completed the period of probation they must be deemed to have been confirmed is not tenable in view of the provisions of Explanation I to rule 10 of the above-mentioned West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962. This Explanation says that "If no orders have been made on the day following the completion of the initial probationary period (which was two years) the period of probation shall be deemed to have been extended." The petitioners, therefore, were still on probation when their services were terminated. As such proba--tioners they had acquired no vested right to appointment in a substantive capacity, which they could enforce by a proceeding under Article 98 of the late Constitution.
6. It is unfortunate that they were bound to fail on this ground, for, it -does appear that on merits their contentions were not altogether without substance.
7. In the circumstances, we are compelled to dismiss both these petitions. We, however, hope that their cases will receive the sympathetic consideration of the Commissioner, who has through--out been supporting their cases, and they might be given some other suitable appointment.