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Official Citation: 2024 PLJ 322
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-07-01
Parties: Munir Ahmed vs Ministry Of Science And Technology and another
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-07-01, officially reported as 2024 PLJ 322. In this matter between Munir Ahmed and Ministry Of Science And Technology and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 Islamabad 322
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title: Munir Ahmed vs Ministry Of Science And Technology and another Case No.: Writ Petition No. 467 Of 2023 Date of Judgment:2024-07-01 Reported As: 2024 IHC 146, 2024 PLC (C.S.) 1284, PLJ 2024 Islamabad 322 Result: Petition Dismissed
JUDGMENT
JUDGMENT SAMAN RAFAT IMTIAZ, J.- 1. Through the instant petition the Petitioner [Munir Ahmed] seeks setting aside of the (i) Letter dated 20-1-2023 ("Impugned Letter") issued by the Respondent No.2 [National Energy Efficiency and Conservation Authority (NEECA)] whereby the Petitioner s service has been terminated and (ii) the Minutes of the 9th Meeting along with decision of the Board of Respondent No.2. Facts: 2. The brief facts as per the Memo of Petition are that the post of Director General-Planning, Policy, Innovation, Program and Research ("PPIP&R") was advertised by the Respondent No.2 in the newspaper in the month of June, 2021. The Petitioner was appointment as Director General, PPIP&R after fulfillment of all codal formalities vide Appointment Letter dated 22-12-2021 wherein the terms and conditions of appointment were stipulated including that the period of probation would be one year. The Petitioner joined service on 28-12-2021. However, to his utter surprise the Petitioner received the Impugned Letter of termination on 24-02-2023. Being aggrieved, the Petitioner filed the instant writ petition. Arguments on behalf of the Petitioner: 3. The learned counsel for the Petitioner read out the contents of the Impugned Letter wherein it has been stated that the Petitioner was appointed and placed on probation for one year but that the Board of the Respondent No. 2 was of the opinion that the performance of the Petitioner remained unsatisfactory during the probation period and therefore decided to terminate his services with immediate effect. The learned counsel for the Petitioner highlighted that the Impugned Letter is
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dated 20-01-2023 whereas, the probation period had already expired on 22-12-2022 as appointment was made vide Appointment Letter dated 22-12-2021. He argued that it is well-settled law that once the probation period has ended the employee is automatically considered a regular employee and a regular employee cannot be removed summarily. 4. The Court referred the learned counsel of the Petitioner to clause (g) of the Appointment Letter which provides that the appointment is on contract that shall be liable to termination on one month's notice or payment of one month's pay in lieu thereof by either side without assigning any reason and inquired whether the instant writ is maintainable given that in case of breach by the Respondent No. 2 the Petitioner's remedy would be a suit for damages as per settled law. However, the learned counsel of the Petitioner denied that the appointment of the Petitioner was contractual despite what has been mentioned in clause (g) of the Appointment Letter. He referred to clause (d) of the Appointment Letter whereby it has been certified that the Petitioner is a regular employee of the Respondent No. 2 and to clause (c) which provides that he will be entitled to terminal benefits, which according to the learned counsel also indicates regular appointment. The learned counsel highlighted that the post of Director General, PPIP&R is a regular post as per the Appendix-3 to the NEECA Service Regulations, 2021 ("NEECA Service Regulations"). He also referred to the advertisement for the positions of, inter-alia, the Director General and highlighted that it does not state that the appointment would be on contractual basis. 5. The learned counsel further submitted that according to Regulation 14 of the Service Regulations, the appointments to various posts shall generally be made on regular basis and that appointments on contract and contingency basis may be made if deemed expedient and for reasons to be recorded in writing. He, therefore, argued that upon successful completion of the probation period the Petitioner became a regular employee who could only be terminated in case of unsatisfactory performance in accordance with Regulations 89, 91, 92, and 93, which provide for procedure for inquiry and disciplinary proceedings and as such the Impugned Letter is in violation of the NEECA Service Regulations and also against the terms of the Appointment Letter. 6. He submitted that the allegation of unsatisfactory performance is belied by the Office Order dated 06-01-2022 whereby the Petitioner was given additional charge of the Post of the Director General (Legal and Enforcement). The learned counsel pointed out that that the decision to terminate the services of the Petitioner was taken in the 9th Board meeting held on 13.01.2024 whereas the performance evaluation of the Director Generals was not on the agenda and that it was done under the garb of "Approval of the revised budget and recommendation of FRM Committee and HR Committee of the Board". 7. Lastly, he submitted that the Respondent No. 2 has now decided to abolish the post of the Director General which is evident from the Minutes of the 9th Board Meeting of Respondent No.2 which have been attached by the Respondent No. 2 with its comments. He pointed out that the Board first abolished the positions of the Director General citing financial constraints in paragraph 6 of the meeting minutes then in the 7th paragraph discussed the performance of all three Director Generals, resulting in their removal from service. He argued that the process documented in the meeting minutes as aforesaid is apparently based on mala fide intentions. 8. He also submitted that the post has not been abolished till date as it is a post provided by way of Service Regulations which have not been amended till date. He submits that pursuant to Section 21 of the National Energy Efficiency and Conservation Act, 2016 no effect can be given to any act in the absence of gazette notification. He contended that the Board decision to abolish the post is not sufficient by itself as there has never been an approved amendment in the Service Regulations nor does a Gazette Notification exist regarding any amendment in the Service Regulations as mandated by Section 21 of NEECA Act. The learned counsel for the Petitioner relied upon Prof. Dr. Qazi Tahir Uddin Vs. The Secretary, Pakistan Medical Commission, Islamabad, 2022 PLC (C.S.)
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805; Adnan Ahmed Vs. Province of Sindh through Chief Secretary to the Government of Sindh, PLD 2022 Sindh 542; Metropolitan Corporation, Islamabad through Mayor Vs. Chairman, C.D.A., PLD 2021 Islamabad 144; Bashir Ahmad Vs. The Director General, Lahore Development Authority, Lahore, 2020 SCMR 471; Muhammad Zakir Bandhani Vs. Muhammad Amir Bandhani, 2019 MLD 1861; Aamir Tufail Chaudhary Vs. Government of Punjab, 2018 PLC (C.S.) 493; Roshan Ali Siddiqui Vs. Federation of Pakistan through Secretary, 2017 PLC (C.S.) Note 57; Muhammad Rafi Vs. Federation of Pakistan, 2016 SCMR 2146; Gul Hassan Jatoi Vs. Faqir Muhammad Jatoi, 2016 SCMR 1254; Muhammad Ashraf Tiwana Vs. Pakistan, 2013 SCMR 1159; Secretary, Ministry of Education, Government of Pakistan Vs. Muhammad Azam Ch., 2009 SCMR 194; Muhammad Rafique Vs. Director-General, Pakistan Rangers, Sindh, 2004 SCMR 23; Major (R) Nisar Ali Vs. Pakistan Atomic Energy Commission, 2004 PLC (C.S.) 758; Mrs. M.N. Arshad Vs. Miss Naeema Khan, PLD 1990 SC 612; and Muhammad Suleman Vs. Abdul Ghani, PLD 1978 SC 190. Arguments on behalf of the Respondents: 9. The learned Additional Attorney General referred to the Appointment Letter dated 22-12-2021 and particularly highlighted Clause 1 (d), (e), and (g) which provide that probation period of one year begins from the date of joining and that the employment would be subject to Rules and Regulations of Respondent No.2 and would be liable to termination on one month's notice or payment of salary in lieu thereof and without notice in case of dishonesty, misconduct, negligence, indiscipline, or breach of trust. He pointed out that it is an undisputed fact that the date of joining of the Petitioner was 28-12-2021. He relied upon Regulation 16 (2) of the NEECA Service Regulations and argued that probation does not come to an end automatically rather it ends on intimation of confirmation or otherwise. In this case the Petitioner's appointment was not confirmed on expiry of one year period from joining i.e. 28-12-2022 therefore, the Petitioner cannot claim to have become a regular employee. He contended that had the Petitioner been issued any letter for confirmation at the end of the probation period the Petitioner would have had a case. However, there is no evidence nor it has been alleged that the Petitioner's services were ever confirmed. 10. He also relied upon Regulation 32 (1) and (5) of the Service Regulations and contended that annual assessm ent of employees who have served with the authority for three months or more without any break during that year is to be prepared in the first month of the following year and that performance evaluation is to be initiated in December of the relevant year and completed by January of next year. In this regard he referred to the letter dated 23-12-2022 issued by Respondent No.2 to the Petitioner informing him that performance evaluation process had been initiated. He also referred to the Respondent No.2's Performance Management System whereby appraisal period of the Petitioner is given as 28-12-2021 till 28-12-2022. As such, he argued that had the performance appraisal been conducted prior to 28-12-2022the Petitioner would have objected that his performance for the entire probation period was not considered. He explained that the performance evaluation requires time and as such the Impugned Letter could not be termed as being beyond the probation period or issued with unreasonable delay. 11. He also highlighted that this Court cannot sit in judgment of whether the Petitioner's performance was satisfactory or not considering the Board of Respondent No.2 has unanimously decided that his performance was not satisfactory. He also rebutted the argument that the additional charge given to the Petitioner was a reflection of the Petitioner's performance as such additional charge was given within the first month of his appointment. 12. However, the Additional Attorney General did not deny that the post the Petitioner occupied was a regular post. He, however, contended that the Petitioner was employed on contract basis to the regular post. He relied upon National Electric Power Regulatory Authority (NEPRA) through Chairman Vs. Aijaz Ahmed, 2022 SCMR 611; and Qazi Tehmid Ahmed Vs. Secretary Ministry of
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Petroleum, 2015 PLC (C.S.) 449. He confirmed that no notification has been made regarding abolishment of the post of the Director General-PPIP&R. 13. The learned counsel for the Respondent No.2 adopted the arguments advanced on behalf of Respondent No.1. 14. The matter was reserved on 04-03-2024 but the learned Additional Attorney General was permitted to file his written submissions regarding the effect of non-issuance of Gazette notification for amendment in the NEECA Service Regulations to effect the abolishment of the post of Director General- PPIP&R. Subsequently, the learned Additional Attorney General filed a statement confirming that notification has been published in the Official Gazette on 05-03-2024 and as such the post of PPIP&R has been abolished. Arguments in rebuttal on behalf of the Petitioner: 15. In rebuttal, the learned counsel for the Petitioner argued that it is only after this case was argued before this Honorable Court at length and this anomaly was pointed out up that Respondent No.2 got the Gazette Notification published on 05.03.2024. In this regard he contended that the amendment in the Respondent No.2's Regulations have not been approved by the Board till date as such the Gazette Notification is a nullity in the eyes of law as its contents are without approval of the Board. Even otherwise he argued that the Gazette Notification is to be applied prospectively and not retrospectively from the date of publication. Such decision does not affect the Petitioner's rights on account of vested right, legitimate expectation, and locus poenitentiae and that the Petitioner should be granted alternate post after restoring his appointment. He argued that a post cannot be abolished while a regular employee is occupying the same. 16. I have heard the learned counsels for the parties and have also perused the record. Maintainability 17. Historically writ petitions were held not maintainable if filed by employees by alleging violation of service rules or regulations lacking government approval or statutory sanction. However, exceptions did exist based on which the Supreme Court in the case of Pakistan Defence Officers" Housing Authority Vs. Lt. Col. Syed Jawaid Ahmed, 2013 SCMR 1707 laid down the principles of law that contained the test for when Constitutional jurisdiction can be invoked despite non-statutory service rules as follows: "50. The principles of law which can be deduced from the foregoing survey of the precedent case- law can be summarized as under:- (i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction. (ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'. (iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings. (iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction. (v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said
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law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution." [Emphasis added]. 18. In the instant case the Respondent No.2 is a statutory body created under the NEECA Act. The NEECA Act by way of Section 3 establishes a Board to be known as the Pakistan Energy Efficiency Conversation Board and by way of Section 6 empowers the Federal Government to establish an authority to be called the National Energy Efficiency and Conservation Authority. Section 21 of the NEECA Act empowers the Board to make regulations in consultation with the Authority by notification in the official gazette including regulations providing for the powers and modes of appointments and determination of the terms and conditions of the employees. The Board in exercise of the powers conferred upon it under Section 21 has made the NEECA Service Regulations. Thus the NEECA Service Regulations are regulations framed by a statutory body exercising powers derived from the NEECA Act. 19. The Petitioner claims to be a regular employee as defined in the NEECA Service Regulations and alleges that his employment has been terminated by the Respondent No.2 in violation of and without following the procedure provided for such purpose in the NEECA Service Regulations. While the Respondents deny that the Petitioner was a regular employee it is not denied that his appointment and termination was pursuant to NEECA Service Regulations which is evident from the Impugned Termination Letter that refers to Regulation 16(3) of the NEECA Service Regulations as well as terms and conditions of Appointment Letter. 20. Therefore, I am of the view that the controversy involved in this case is squarely covered by paragraph 50 of Pakistan Defence Officers" Housing Authority (Supra) as the Respondent No.2 is a statutory/public body against whom the Petitioner has alleged that the action taken by it in a service matter is in disregard of procedural requirements. In case the Petitioner is found to be a regular employee whose employment was terminated in violation of procedural requirements he would not have any adequate, efficacious, alternate remedy and as such he can invoke the Constitutional jurisdiction of this Court despite non-statutory rules. Reliance is placed upon Muhammad Rafi and another v. Federation of Pakistan and others, 2016 SCMR 2146; and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others, 2017 SCMR 2010. Whether the Petitioner is a Contractual Employee? 21. The Letter of Appointment by way of which the Petitioner was appointed provides in clause (g) that the appointment is on contract liable to termination on one months' notice or payment in lieu thereof without assigning reason. At the same the Letter of Appointment also provides that the employment shall be subject to rules and regulations of Respondent No.2. 22. Under Regulation 14 of the NEECA Service Regulations the method of appointment to various posts shall generally be made on regular basis by initial appointment in accordance with these Regulations but if deemed expedient and for reasons recorded in writing the Authority may appoint persons on contract or contingency basis. Under Regulation 20 of the NEECA Service Regulations the Respondent No.2 may employ through contract a Consultant or Advisor for carrying out specific assignment or a job under special circumstances. 23. The post of Director General-Planning, Policy, Innovation and Research to which the Petitioner was appointed is admittedly a regular post as per Appendix 3 to the NEECA Service Regulations and not as Consultant or Advisor for carrying out specific assignment or a job under special circumstances. Yet the Petitioner's Letter of Appointment does not record any reasons for appointment on contract basis as opposed to regular basis. The Respondents have not placed any other document on the record recording reasons for the appointment of the Petitioner as Director General-Planning, Policy, Innovation and Research on contract basis. Therefore, the Petitioner's appointment cannot be regarded as contractual notwithstanding the provision of the Letter of
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Appointment describing it as such. I find that the Petitioner's appointment as Director General- Planning, Policy, Innovation and Research was a regular appointment and not contractual. Whether the Impugned Termination Letter was issued during probation? 24. Regulation 16 is reproduced herein below: "16. Probation, Extension & Termination of Probation (1) A person appointed to a regular post by initial appointment, shall be on probation for a period of one year. (2) On successful completion of the period of probation or otherwise, whichever the case may be, the employee will be informed accordingly. (3) Where, in the opinion of the Authority, the performance or conduct of a person on probation has been unsatisfactory or where he/she has failed to pass such examination or test or to complete successfully any mandatory course or training, the services of the employee shall be terminated." [Emphasis added]. 25. It is noteworthy that although the title of this Regulation includes extension' but the provisions thereof do not provide for any mechanism of extension of probation nor period thereof. The period of probation is one year under Regulation 16(1) and Regulation 16(2) requires that the employee be informed of whether the period of probation was successfully completed or otherwise whichever the case may be. Regulation 16(3) of the NEECA Service Regulations provides that in case of unsatisfactory performance or conduct during probation, etc. the services of the employee shall be terminated. Thus, successful completion would entail intimation thereof whereas in the alterative the employee will not only be informed that he has not been successful during his probation period but his employment will also be terminated. 26. The next important thing to be noted from Regulation 16 of the NEECA Service Regulations is that the employee is to be informed of success or otherwise "on completion of the period of probation" which as per Regulation 16(1) is one year. In the instant case the probation period of one year undisputedly ended on 28-12-2022. The Petitioner would like this Court to interpret the Respondent No.2's Regulations to imply that failure to inform the employee that his services were unsatisfactory by 28 12-2022 resulted in automatic confirmation. Whereas, the learned Additional Attorney General argued that the decision to confirm or not is based on the entire probation period including 28-12-2022 and such decision requires deliberation which in turn requires time, as such the decision cannot be communicated on the last date of probation and is to be communicated after the completion of the probation period. 27. I have examined Regulation 32 pertaining to Annual Assessment Reports of Employees particularly clauses (1) and (5) which are reproduced herein below for convenience: "32. Annual Assessment Reports (1) Annual Assessment Report of each employee who has served the Authority for three months or more without any break during that year, shall be prepared, on a calendar year basis. In the first month of the following year, on the prescribed form to be approved by the Authority, attached as Appendix-7. ... (5) The calendar year based performance procedure should be initiated in December of the relevant year and completed and countersigned by January of the next year. Any special assessment should be initiated immediately after the event necessitating such reporting and completed and countersigned within one month." [Emphasis added]. 28. It may be noted that the said Regulation 32 pertains to 'employees'. The term employee' means a regular employee of the Respondent No. 2 as per the definition provided in Regulation 2(9). As such Regulation 32 does not apply to employees on probation.
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29. Even otherwise, the Respondent No. 2's reliance upon Regulation 32 in the case of employees on probation could lead to absurd situations. For instance, pursuant to Regulation 32 the performance of any person appointed by the Respondent No. 2 at any time after the first of October in any given year would not be appraised till December of the following year which would be completed and countersigned in January of the subsequent year with the result that even if the person has not successfully completed his/her probation period the Respondent No. 2 would not be able to terminate their employment till January of the year after the year of appointment. 30. Now coming to the argument raised by the learned Additional Attorney General that the decision to confirm or terminate employment would necessarily be communicated after expiry of the probation period otherwise the decision would not be based on evaluation of the employee's performance over the entire period of probation and that in such circumstances failure to communicate the decision upon completion of the probation period cannot be deemed to result in confirmation of employment. 31. The issue of confirmation ipso facto upon completion of probation period has come up in numerous cases the relevant portions of which I feel are beneficial to reproduce as follows: (i) Muhammad Rafique vs. Director-General, Pakistan Rangers, Sindh, 2004 SCMR 23: The petitioner in this case was promoted on 20.03.1995 and the order of promotion required him to stay on probation which was extended up to 30-10-1997. The Pakistan Rangers Recruitment Rules, 1968 provide for confirmation of appointment on completion of probation period or where work is not satisfactory dispensation of services; or reversion to former rank; or extension of period of probation for a maximum of 2 years. Since the petitioner's probation was extended for the maximum period of 2 years the Supreme Court held that "if the competent authority considered his performance unsatisfactory, it was required to pass an order by the day on which the maximum period of probation expired. The order of reversion or refusal to confirm the petitioner to the post of Sub-Inspector could take place on or before 30th of October, 1997. The consequence of not passing such an order by 30th of October, 1997 is that the petitioner stood confirmed by force of law". [Emphasis added]. (ii) Punjab Workers' Welfare Board, Government of…
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