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Mallick KHAN MOHAMMAD‑Petitioner

versus

THE COMMISSIONER OF KARACHI AND ANOTHER --Respondents

Civil Petitions for Special Leave to Appeal Nos. K‑11 and K‑12 of 1970, decided on 22nd August 1970.

(On appeal from the judgment and order of the High Court Coy of West Pakistan, Karachi Bench, Karachi, dated the 19^th February 1970, in Writ Petition No. 87 of 1968 and Writ Petition No. 88 of 1968).

West Pakistan Tahsildari and Naib‑Tahsildari Service Rules, 1962,

r. 10, Expl. 1 Probationary Naib‑Tahsfldar‑No orders made on day following completion of initial probationary period of two years‑Probationary period deemed to be extended -Contention that after having satisfactorily completed probation period, employees must be deemed to have been confirmed, held, not tenable.

Akhtar Mahmud, Advocate Supreme Court instructed by K. A. Ghani, Advocate‑ on‑Record for Petitioners (in Civil Petitions Nos. K‑11 and K‑12 of 1970).

Nemo for Respondents (in Civil Petitions Nos. K‑11 and K‑12 of 1970).

Date of hearing : 22nd August 1970.

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.

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".

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.

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".

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.

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.

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.

Leave refused.

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