MUHAMMAD AKBAR KHAN vs GOVERNMENT OF BALUCHISTAN And Another
This appeal concerns the termination of a probationary civil servant, Muhammad Akbar Khan, who was appointed to the P.C.S. (Judicial Branch) in 1979. The core legal question was whether the appellant had attained the status of a confirmed employee by operation of law upon the expiry of his maximum probationary period, thereby rendering his subsequent termination unlawful, despite retrospective legislative amendments. The Supreme Court held that the appeal must fail. The Court analyzed the relevant statutory framework, including the Baluchistan Civil Servants Act 1974 and the West Pakistan Civil Service (Judicial Branch) Rules 1962. It determined that under the applicable rules, the appellant’s probationary period was deemed extended due to the absence of confirmation orders. Crucially, the Court found that the appellant’s services were dispensed with prior to the expiry of the maximum permissible extended probationary period. Consequently, the termination was lawful. The principle laid down is that where a probationary period is deemed extended by operation of law, a probationer does not acquire the status of a confirmed employee until the maximum extended period has fully expired without intervention.
- Does a probationer automatically acquire the status of a confirmed employee if no orders are passed by the expiry of the initial probationary period?
- Can a civil servant's services be dispensed with during the deemed extended period of probation?
- What is the legal effect of the absence of confirmation orders upon the expiry of the initial probationary period under the West Pakistan Civil Service (Judicial Branch) Rules 1962?
- Section 6, Baluchistan Civil Servants Act 1974
- Section 7, Baluchistan Civil Servants Act 1974
- Rule 8, West Pakistan Civil Service (Judicial Branch) Rules 1962
- Baluchistan Civil Servants (Amendment) Ordinance 1982
- Baluchistan Civil Servants (Amendment) Ordinance 1983
1. NASIM HASAN SHAH, J.--The appellant was appointed to the cadre of P. C.S. (Judicial Branch) on probation on 5-8-1979. On the expiry of to years of the probation, no order was passed for his confirmation or for extension of the period of probation. On 10-8-1982, however, his services were dispensed with in exercise of the powers under section 6 of the Baluchistan Civil Servant Act (IX of 1974) read with rule 8(2) of the West Pakistan Civil Service (Judicial Branch) Rules, 1962. His appeal before the Tribunal was dismissed by the impugned order dated 29-9-1984.
2. Under the proviso to section 6(1) of the Act, as in force at the relevant the, "the period of probation shall not extend beyond a period of to years from the date of initial appointment in a service or post". Section 7(1) of the Act laid down that:- "A person appointed on probation shall, on satisfactory completion of his probation, be eligible for confirmation in a service or, as the case may be, a post as may be prescribed and shall be deemed to have been confirmed after the expiry of a period of to years from the date of initial appointment to service or post, unless earlier removed or reverted from the service or post as the case may be".
3. Rule 8(2) of the West Pakistan Civil Service (Judicial Branch) Rules, 1962, also is to the effect that if no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment.
4. The appellant's case was that on the expiry of the maximum period of to years probation he had stood confirmed in the service and as such the order dispensing with his services was without lawful authority. The Tribunal, however, rejected the plea in the light of the amendments to the Act.
5. By these amendments, the first made by the Baluchistan Civil Servants (Amendment) Ordinance (IV of 1982) on 31-8-1982, the proviso to section 6 which prescribed the maximum period of probation to be to years, was deleted. By another amendment brought about by the Baluchistan Civil Servants (Amendment) Ordinance (III of 1983), the words in section 7 "and shall be deemed to have been confirmed after the expiry of a period of to years from the date of initial appointment to service or post, unless earlier removed or reverted from the service or post as the case may be" were deleted. Both the amendments were to operate retrospectively with effect from 19-6-1974. It was on account of this retrospectively of the amendment that the Tribunal rejected the appellant's contention that on 10-6-1982 he stood confirmed in accordance with the law as then in force and that the amendments could not take away his vested right. This appeal, by leave of this Court, is before us with a view to examine the correctness of the view taken by the Tribunal.
6. Section 6 of the Baluchistan Civil Servants Act, 1974, before its amendment by Ordinance IV of 1982, to the extent relevant, was in the following terms.:-- "S. 6. Probation.--(1) An initial appointment to a service or post referred to section 5, not being an ad hoc appointment, shall be on probation as may be prescribed: Provided that the period of probation shall not extend beyond a period of to years from the date of initial appointment in a service or post."
7. Section 6, after passing of the amending Ordinance IV of 1982 laid as follows:-- "S. 6. Probation.--(1) An initial appointment to a service or post referred to in section 5 not being an ad-hoc appointment, shall be on probation as may be prescribed."
8. Thus, the effect was that the proviso of section 6 as originally enacted stood deleted.
9. Subsection (1) of section 7 of the Baluchistan Civil Servants Act 1974 in its original shape was in the following terms:-- "S. 7. Confirmation.--(1) A person appointed on probation shall, on satisfactory completion of his probation, be eligible for confirmation in a service or, as the case may be, a post as may be prescribed and shall be deemed to have been confirmed after the expiry of a period of to years from the date o initial a ointment to service or post, unless earlier removed or reverted from the service or post as the case may."
10. After its amendment, subsection (1) of section 7 was as follows:-- "S. 7. Confirmation.--(1) A person appointed on probation shall, on satisfactory completion of his probation, be eligible for confirmation in a service, or, as the case may be, a post as may be prescribed."
11. Thus, the effect was that the portion of the original subsection (1) underlined above was omitted.
12. The rules relating to the period of probation of persons appointed to the service are prescribed in the West Pakistan Civil Service (Judicial Branch) Rules, 1962, of which Rule 8 is relevant and the pertinent part of it may be reproduced below:-- "8. Probation.--(1) A person appointed to the service against a substantive vacancy shall remain on probation for a period of to years.
13. Explanation.--Officiating service and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation.
(2) If the work or conduct of a member of the Service during the period of probation has been unsatisfactory, Government may, notwithstanding that the period of probation has not expired, dispense with his services.
(3) On completion of the period of probation of a member of the Services, Government may subject to the provisions of sub-rule (4), confirm him in his appointment, or if his work or conduct has in the opinion of Government, not been satisfactory.
(a) dispense with his services; or
(b) extend the period of the probation by a period not exceeding to years in all, and during or on the expiry of such period pass such orders as it could have passed during or on the expiry of the initial probationary period.
14. Explanation-I: If no orders have been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended.
15. Explanation-II: If no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended."
16. A close reading of the explanation I of the above rules indicates that if no orders have been made by the day following completion of the initial probationary period, the period of probation shall be deemed to have been extended.
17. In this case no orders were made by the day following completion of the initial probationary period of the appellant. Thus, the period of probation was to be deemed to have been extended.
18. Explanation II deals with the extended period. According to this explanation if no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. In this case, the period of probation must be deemed to have been extended. It has not been specified as to what this extended period was to be but as the extended period of probation cannot exceed to years in all we think that in those cases where the extended period of probation is not specified it will be deemed that unless n probationer is confirmed within the said period of to years, he will be considered to be on probation until the expiry of this extended period of to years; where after he shall be deemed to have been confirmed. In this case the appellant was not confirmed until the expiry of the aforesaid extended period and his services were dispensed with during the said period. Insofar as in this case the services of the appellant were dispensed with within this period, no exception can be taken to the action, in law.
19. The result is that this appeal must fail and is dismissed hereby.
Cited by 1 case
- ABDUL GHAFFAR MALIK vs GOVERNMENT OF BALOCHISTAN through Chief 1995 PLC (C.S.) 165