Full Judgment Text & Judicial Ruling

2003 P L C (C

2003 P L C (C.S.) 1418

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD RAFIQUE

Versus

DIRECTOR-GENERAL, PAKISTAN RANGERS (SINDH)

Civil Petition No.2467-L of 2000, decided on 2nd June, 2003.

(On appeal from the judgment dated 15-8-2000 of the Federal Service Tribunal, Lahore Bench passed in Appeal No.331/L of 1998),

Pakistan Rangers Recruitment Rules, 1968---

----R.13(3)(4), Explains. I & II---Constitution of Pakistan (1973), Art. 212(3)---Reversion to former rank on unsatisfactory performance after expiry of probation period---Such order was passed on 9-12-1997, while probation period of civil servant ended on 30-10-1997---Claim of civil servant was that he stood confirmed on the expiry of maximum period of probation---Departmental appeal and appeal filed before Service Tribunal were dismissed---Validity---Competent Authority, if considered performance of civil servant unsatisfactory, was required to pass order of reversion by day on which maximum period of probation expired---Consequence of non passing such order by 30-10-1997 was that civil servant stood confirmed by force of law- --Substantial question of law in shape of interpretation of R.13(3)(4) of Pakistan Rangers Recruitment Rules, 1968 being involved, Supreme Court allowed appeal and set aside the impugned judgment.

Hafiz Tariq Naseem, Advocate Supreme Court and Mahmoodul Islam, Advocate-on-Record for Petitioner.

Muhammad Nawaz Bhatti, D.A.G. for Respondent.

Date of hearing: 2nd June, 2003,

JUDGMENT

KARAMAT NAZIR BHANDARI, J.---The petitioner was promoted as Sub-Inspector in the Pakistan Rangers on 20-3-1995 vide Draft Routine Order Part-II No.5097/Estb/1183/95 (page 18 of the paper book). The order of promotion stated that the petitioner will remain on probation as per rule 13 of Pakistan Rangers Recruitment Rules, 1968 vide another Order No.125/Estab/1388 of 1997 dated 19-7-1997, the period of probation was extended upto 30-10-1997 (page 20 of the paper book). Vide Order No.CRO/E-9/P RS/984 of 1997 dated 9-12-1997 the petitioner was reverted to his former rank of Hav; Clerk with effect 6-12-1997, on the ground that his performance during the period of probation, in the opinion of competent authority has not been satisfactory Petitioner made departmental representation but without any success. He, thereafter, filed an appeal (Appeal No.331(L) of 1998) in the Federal Service Tribunal, Lahore Bench which was, dismissed on 15-8-2000, against which judgment the petitioner seeks leave to appeal.

2. It is contended by learned counsel that petitioner's performance during the probation period was satisfactory and even recommendations were at one time made for confirmation. He has also argued that the order of reversion dated 9-12-1997, is bad in law inasmuch as no order was made by the day on which the maximum period of probation expired and the petitioner stood confirmed. For this purpose he has relied on explanation-ii to rule 13(4) of the Pakistan Rangers Recruitment Rules, 1968.

3. Learned Deputy Attorney-General supported the impugned order by submitting that in the opinion of the Competent Authority the petitioner's performance was not satisfactory. According to him, such an opinion is subjective and cannot be examined by the Courts.

4. Relevant provisions comprising sub rules (3) (&) 4 alongwith explanations are reproduced for convenience of reference:

(3) On completion of the period of probation of a member of the Force, the Appointing Authority may, subject to the provisions of sub-rule (3) confirm him in his appointment or if his work or conduct has, in the opinion of the Appointing Authority not been satisfactory.

(a) In case he has been appointed by initial recruitment dispense with his services; or

(b) in case he has been appointed otherwise revert him to his former rank if there be not such rank, dispense with his service; or

(c) extend the period of probation by a period not exceeding two 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.

(4) No person shall be confirmed in a post in the Force unless he successfully completes such training and passes such departmental examination as may be prescribed by the Directors-General.

EXPLANATION-I. If no orders have been made by the day following the completion of the initial probationary period, the period of (sic)

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. "

It is not disputed that the petitioner's probation was extended upto 30-10-1997. 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 or law. The language employed in explanation-II is very clear and admits of no ambiguity. Somehow the provision of explanation-II was not brought to the notice of the learned Tribunal.

5. Substantial question of law as to interpretation of relevant provisions as noted above, is involved. We therefore, convert this petition into appeal and allow the same. The impugned judgment dated 15-8-2000 of the Federal Service Tribunal, Lahore Bench passed in Appeal No.331-L of 1998 is set aside. Parties are left to bear their own costs.

S.A.K./M-881/S Appeal allowed.

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