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Writ Petition No. 520 of 1956, decided on 11th March 1958.
, rr. 4 & 17 (b)‑Medical officer on probation‑Termination of service by an Assistant Secretary‑Illegal‑General Clauses Act (X of 1897), S. 16‑Inapplicable‑Constitution of Pakistan, Art. 181 (1).
According to Rule 4 of the Central Medical Service (Class II) Recruitment Rules, 1953, all appointments to the service borne in the cadre of the service were to be made by the Government, which, under rule 2 (a) meant the Governor‑General.
Petitioner's service was terminated by an order passed by an Assistant Secretary, without referring the matter either to the Secretary or to the Minister‑in‑charge.
Held, that the Assistant Secretary was not authorised under any provision of law to take action under Rule 17 and to dispense with the services of the petitioner.
The order, therefore, was illegal and ultra vires and petitioner's service was not rightly terminated.
Writ was granted directing that the petitioner's services were not rightly terminated and he was still in the service of the respondents as Medical Officer.
Held further that section 16, General Clauses Act (R of 1897), was not applicable in such a case, inasmuch as that section can be attracted only in those cases where under a relevant statute or rules a different intention does not appear.
‑Probationer‑Notice not given before termination of service‑Violation of natural justice.
S. M. Raza for Petitioner.
S. Nasiruddin for Respondents.
The petitioner has challenged the validity of the order of the termination of his service dated 3rd/5th November 1956 from the post of Medical Officer, School Health Services, Karachi, in the Central Medical Service (Class II).
Briefly, the facts leading to the present petition are that the petitioner is a qualified doctor having passed his M. B. B. S. Examination from the University of Karachi in October 1953. On 12th February 1955, the petitioner was appointed Medical Officer, School Health Services, Karachi on temporary basis.
Under this appointment order his services could be terminated oil 15 days' notice by either side without assigning any reason. The petitioner, however, was recruited in the Central Medical Service (Class II.) He was referred to the Federal Public Service Commission and was interviewed in February 1956. The Federal Public Service Commission selected him and on 150 August 1956 he was offered one of the posts of Medical Officer, School Health Services, Karachi on a regular basis in the Central Medical Services (Class II). It would be pertinent to mention here that on the 14th of December 1953 the Governor‑General, in exercise of the powers conferred by subsection (2) of section 241 of the Government of India Act, 1935, framed rules called "The Central Medical Service (Class 11) Recruitment Rules". In terms of these rules the petitioner in the first instance was to remain on probation for two years and his confirmation was subject to the successful completion of the period of probation. This offer was sent through letter dated 11th August 1956 and is reproduced below :‑
No. 8154 DH& Karachi, dated the 11th
August 1956.
To
(1) Dr. (Mrs.) Ismat Majid, Lady Medical Officer, Martin Road Dispensary, Karachi.
(2) Dr. (Miss) Talat Sultana Mufti, Medical Officer, School Health Services, Karachi.
(3) Dr. Syed Nisar Ali, Medical Officer, School Health Services, Karachi.
(4) Dr. Muhammad Iqbal Ghyur, Medical Officer, School Health Services, Karachi.
Sub:‑
In accordance with the Ministry of Health letter No. F‑2‑2/55‑P dated 25th July 1956, 1 am to inform you that on the recommendation of the Federal Public Service Commission, the Government of Pakistan have selected you for recruitment etc., the Central Medical Service Class II on a regular basis. They have decided to appoint you as Medical Officer School Health Services, Karachi.
You are however liable to be transferred to other posts on the cadre of the Central Medical Services, Class II.
The terms would be as follows :‑
(i) Pay scale ; Rs. 250‑20‑450‑EB‑25‑550.
(ii) Teaching allowance (for Demonstrators ..only) Rs. 100 p. m.
(iii) Anaesthesia allowance,: (for Assistant Anesthetists only) Rs. 100 p. m.
(iv) New practicing allowances (for all posts in the Cadre except Medical Officers, Central Government Dispensary, Medical Officer, Civil Surgeons Dispensary, Medical Officer, Police Hospital, Karachi, and Assistant Surgeon, Civil Dispensary, Karachi Air Port, Karachi) Rs. 75 p. m.
(v) Private practice (a) Limited Private Practice allowed in posts mentioned in (iv) above if it does not interfere in duties, will not be permitted to hire consulting/room/shop/ Clinic or maintaining a dispensing establishment Government reserve the right to withdraw the privilege of private practice without notice.
(b) No private practice permitted in other posts.
(vi) Probation. You/He will be on probation for a period of two years.
(vii) Physical fitness. The appointment is subject to production certificate of physical fitness from a Medical Board and antecedents being found satisfactory.
If the offer is acceptable to you, you should inform this Directorate to that effect by the 15th August 1956, positively.
(Sd.) Mahmud A. Shah.
Director of Health Services,
Karachi."
The offer was accepted by the petitioner on 13th August 1956. By Notification No. F. 2‑2/55‑P, Government of Pakistan, Ministry of Health, dated 24th October 1950, the petitioner's appointment was notified at item No. 2S with effect from 15th June 1956 'as Medical Officer, School Health Services, Karachi, and it was also mentioned that he N6ll be on probation for a period of two years with effect from the date of his appointment. This Notification was issued under the signature of Mr. Muhammad Ibrahim Dhamee, Assistant Secretary of the Health Department. On 3rd/5th November 1956 the petitioner's services were terminated under letter No. 9793 DHS on the ground that "they are no longer required by this Department", and was given one month's notice and informed that on the expiry of the said notice he will cease to be on the strength of the Department. The petitioner made an application to the Director of Health Services, Karachi for reconsideration of the matter on 14th November 1956 intimating that the above notice had been served on him without any charge being brought, that he has been working to the satisfaction of his superiors and requested that the notice of the termination of his services may be cancelled. The Director of Health Services, Karachi, however; on 3rd December 1956, forwarded to him a copy of the orders of Government No. F. 16‑2/56‑P, dated 30th November 1956, for his information. A copy of this letter is reproduced below:‑
"Sub :
With reference to your letter No. 257/Conf/DHS, dated the 19th November 1956, forwarding the appeal of Dr. Nisar Ali, Medical Officer, School Health Services, Karachi, against the notice of termination of his services, I am directed to say that Government of Pakistan has decided to terminate the services of Dr. Nisar Ali during the period of probation in accordance with rule 17 (b) of the Central Medical Service, Class II. He may be informed that it is not possible to revise the orders contained in this Ministry's letter No. F. 16‑2/56‑P, dated the 30th October 1956."
Being aggrieved from this order, the petitioner filed this writ petition on the 10th of December 1957. This petition was admitted by a Bench consisting of Bachal, J. and myself.
This writ petition was amended twice: The validity of the order terminating the petitioner's service was challenged inter alia on the ground that the provisions of Article 181 of the Constitution are applicable to probationers, that it was mala fide and made at the instance of one Dr. Muhammad Ilyas, the immediate senior Medical Officer, that the petitioner was charge-sheeted and the real reason for terminating his services was some allegation of misconduct but no inquiry was held, and lastly on the ground that the impugned order was alleged to have been passed under Rule 17 (2) of the Central Medical Service (Class II) Recruitment Rules of 1953, but the order was not passed by a competent officer or the Governor‑General or any other officer authorised to act on behalf of the Governor‑General.
The respondents have denied all the allegations made by the petitioner and in reply they submitted that the petitioner has neither been dismissed nor removed from service, his services have been terminated during probation. In accordance with Rule 49 of the Central Services (Classification, Control and Appeal) Rules "discharge of a person appointed on probation during the period of probation does not amount to removal or dismissal within the meaning of that Rule" and therefore does not attract Article 181 of the Constitution. It was also submitted that the action taken is bona fide and all allegations made by the petitioner are incorrect. It was also asserted that the omission to state the reasons for the termination of the service is not fatal inasmuch as the opinion is clearly expressed in the letter dated 30-11-1956 addressed to the petitioner. Besides, the appointment was made by the Assistant Secretary of the Health Department and in law he was competent to terminate the services of the petitioner during the probationary period.
We will not deal with the other points raised in this petition as it can be disposed of on the short ground whether the petitioner's services were terminated in accordance with the conditions of his service namely under Rule 17(b) of the Central Medical Service (Class II) framed by the Governor‑General of Pakistan on 14. 12. 1953 under section 241(2) of the Government of India Act, 1935.
We have already observed that the petitioner was appointed Medical Officer, School Health Service, Karachi on the recom mendation of the Public Service Commission under the Central Medical Service (Class 11) Recruitment Rules. These rules were framed by the Governor‑General under section 241(2) of the Government of India Act, 1935. These rules are still in force under Article 224 of the Constitution. Under Rule 2 Sub clause (a) Government means the Governor‑General. According to Rule 4 all appointments to the Service borne on the cadre of the service shall be made by the Government and under Rule 17 which is the relevant rule for the decision of this case it is provided :‑
"17(1) The Candidates appointed to the Service shall remain on probation for 2 years, and their confirmation shall be subject to their successful completion of the period of probation.
(2) If the work or conduct of an officer on probation is in the opinion of Government, unsatisfactory, or if Government consider that he is unlikely to improve, Government may discharge him forthwith or may extend his period of probation for a further period of not less than six months but the total probationary period shall, in no case, exceed three years.
(3) Before the expiry of the probationary period or the extended period of probation, as the case may be, Government shall take definite decision as to the confirmation or discharge of an officer on probation."
Rule 19 reads as under :‑
" Government may, by order, direct that all or any of their powers under these Rules shall, subject to such conditions, if any, as may be specified in the order, be exercised by an officer subordinate to them."
The language of Rule 17 makes it perfectly clear that if the work or conduct of an officer on probation is in the opinion of Government unsatisfactory or if Government consider that he is unlikely to improve, they may discharge him from service during the probationary period. The question for determination in this case is whether the order of termination of his services was passed by a competent officer authorised in this behalf. It was contended before us that under section 16 of the General Clauses Act the authority having for the time being power to make the appointment has also the power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. The appointment of the petitioner in this case was notified under the signature of the Assistant Secretary Mr. Muhammad Ibrahim Dhamee of the Ministry of Health and therefore he was competent to terminate the services of the petitioner. Section 16 of the General Clauses Act can be attracted only in those cases where under a relevant statute of rules a different intention does not appear. Under the Central Medical Service (Class II) Recruitment Rules; all appointments to the service are to be made by the Government and the officer on probation can be forthwith discharged if the work or conduct of such officer in the opinion of the Government is unsatisfactory or is not likely to improve. The Government under these Rules is defined as the Governor‑General and under Rule 19 the Governor‑General is entitled to delegate all or any of the powers under these rules to an officer subordinate to the Government.
The learned counsel for the respondents has not been able to point out any order passed by the Governor‑General under Rule 19 delegating the power of the Government to a subordinate officer for the purpose of exercising the power under Rule 17(2). He, however, contended that under Rule 34 of the Civil Services (Classification, Control and Appeal) Rules, all appointments to Central Services, Class II, shall be made by the Governor -General in Council or by an authority empowered by the Governor -General in Council in this behalf, and referred us to Appendix VIII page 71 of the book "Compilation of The Civil Services (Classification, Control and Appeal) Rules" published in 1934 by Rai Sahib Tara Chand. According to a Notification dated 9th January, 1934 referred to therein, the Governor‑General empowered certain authorities specified in column 2 of the annexed schedule to make first appointments to the services and posts specified in the corresponding entry in column 1 thereof. He further referred us to page 84 of the said book and pointed out that appointments in the Medical Department are made by the Director, Indian Medical Service, and therefore the corresponding officer in Pakistan the Director of Health Servicesh as the power to appoint and terminate the services of the Medical Officers. A perusal of this page will show that this power was conferred on the Director‑General, Indian Medical Service, with regard to particular officers appointed in the Medical Department, no general power was conferred on the Director of Indian Medical Services for the appointment of Medical Officers in the Medical Department. It further shows that the Medical Officers mentioned therein are Assistant Surgeons, Assistant Surgeons‑in‑charge at Simla and other places which have nothing to do with Medical Officers in Pakistan. With the exception of this Notification the earned counsel has not been able to point out any other Notification issued by the Governor‑General authorizing any subordinate officer to exercise the powers under the Central Medical Service Class II) Recruitment Rules. The learned counsel frankly admitted that under these circumstances we should fall back on the General Clauses Act, and as in this case the appointment of the petitioner was notified by Mr. Dhamee, he should also be taken to have the power to terminate the service of the petitioner under Rule 17. This argument is fallacious because it is entirely different to authorise an officer to notify the appointments in the official gazette, but that does not mean that such officer has also he power to make the first appointments under Rule 4 of these rules.
The learned counsel, therefore, as a last resort urged before us that in these circumstances the appointment of the petitioner was also not in accordance with law and therefore he has no legal right to come to this Court and cannot seek any relief.
We are not at all impressed by this argument as the respond ents have admitted that the petitioner was rightly appointed and the validity of his appointment was not challenged at i11 in the pleadings. We will, therefore, not take into consideration this contention of the learned counsel: Besides, the material placed at our disposal is not sufficient to decide as to which of the officers were empowered under the abovementioned rules to appoint officers recruited in the said service. It may be noted that the petitioner was not the only person appointed under the Notification dated the 15th of October 1956. There were about 38 other persons appointed to the Central Medical Service (Class II) by this Notification, and therefore it would be most undesirable to decide this important question without having all the material on the record.
In the absence of any delegation of power by the Governor -General to an officer subordinate to him, the only course open to the respondents' Department was to act according to Rule 5 of the Rules of Business framed under section 17 of the Government of India Act for the conduct of the business of the Central Government. According to this rule the business of the Division shall ordinarily be disposed of by or under the authority of the Minister in charge. It is further provided in these rules that the Secretary shall keep the Minister in charge generally informed of the working of the Division and of any important cases disposed of without reference to him or the Deputy Minister, if any. Subject to the provisions of these rules, the Secretary shall, with the approval of the Minister‑in‑Charge, issue standing orders laying down the manner of disposal of cases in the Division, including the distribution of work amongst his officers. Such orders may specify the cases or class of cases which may be disposed of by an officer subordinate to the Secretary. We repeatedly inquired from the learned counsel for the respondents whether under this rule there is any standing order entrusting any officer to exercise the power under Rule 17. He was unable to produce any such order. In fact, a perusal of the record placed at our disposal shows that the order of the termina tion of the service was passed by the Assistant Secretary without referring the matter either to the Secretary or to the Minister‑in‑Charge. In these circumstances we are unable to hold that the Assistant Secretary was authorised under any provision of law to take action under Rule 17 and to dispense with the services of 5 the petitioner.
We accordingly hold that the notice of discharge dated 5th November 1956 is not in accordance with law. It is illegal and ultra vires and therefore the services of the petitioner were not properly terminated.
Before parting with this case, we had the painful duty to observe that in this case the Department has not followed the principles of natural justice before terminating the service of the petitioner. If they propose to take any such action in future, they must call upon the petitioner to answer any allegation matter against him and thereafter, in accordance with Rule 17 they wit; be perfectly justified either to terminate his services without assigning any reason or to take disciplinary action against him.
We accordingly issue a writ directing that the petitioner' services were not rightly terminated and he is still in the service or the respondents as Medical Officer. The respondents are ordered t to pay the costs of this petition.
A. H. Petition accepted.
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