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Civil Petition No. 577 of 1984, decided on 29th October, 1984.

(From the judgment of the Punjab Service Tribunal, dated 12‑3‑1984, passed in Appeal No. 550/423 of 1983).

‑‑‑Art. 212(3)‑‑Punjab Civil Servants Act (VIII of 1974), S. 10‑ Termination of service‑‑Appointment made on ad hoc basis‑‑Subsequently clarified that employee was to be treated as temporary against leave vacancy till same existed‑‑Service terminated after more than two years for said reason‑‑Petitioner having accepted offer made in first order and having acquiesced in second order and there being no material to support his stand that his appointment had been against substantive vacancy or on probation, order of termination upheld by Supreme Court‑‑Petition for leave to appeal converted into appeal and allowed.

S.M. Zubair, Assistant Advocate‑General, instructed by Ijaz Ali Sheikh, Advocate‑on‑Record (absent) for Petitioner.

M.M. Saeed Beg, Advocate Supreme Court instructed by S. Inayat Hussain, Advocate‑on‑Record for Respondent.

Date of hearing: 29th October, 1984.

The Government of the Punjab has filed this petition for leave to appeal from the order of the Punjab Service Tribunal dated 12‑3‑1984, setting aside the order of termination of service of respondent Ghulam Rasool Zahid.

2. The respondent had been appointed "on ad hoc basis" to the Punjab Local Counsel Service (Administration Branch) in Grade 16 on 26‑11‑1976 and had been posted as Chief Officer, Municipal Committee, Sadiqabad. By a subsequent order dated 28‑8‑1977 it was clarified that his appointment was to be treated as temporary against a leave vacancy. His services were terminated on 29‑1‑1979. The respondent first challenged the order of termination by filing a civil suit in which a temporary injunction was also granted in his favour but in revision, the High Court held that the civil Court had no jurisdiction. He then moved an appeal before the Service Tribunal, where his case was t at his appointment in the Local Council Service was against a substantive vacancy and as such on the expiry of the period of probation of two years he was entitled to confirmation in that Service under rule '13 of the West Pakistan Local Councils and Municipal Committee Service Rules, 1963 and that he thus stood confirmed in the appointment a6d his services could not be terminated except in accordance with the said Rules. The plea of the Provincial Government on the other had, was that the appeal was time‑barred and that his appointment having been against, a leave vacancy, the same had to be terminated hen the vacancy no longer existed.

3. The Tribunal condoned the delay. On merits, it found that neither the letter for interview sent to the respondent nor his appointment letter made any mention that the appointment was against a leave vacancy, that under the 1963 Rules the appointment was on probation and after the expiry of the period of probation, he was deemed confirmed in his appointment and thus he had acquired a vested right; that his terms and conditions of service could not have been varied by the subsequent letter dated 28‑8‑1977 without affording him an opportunity of personal hearing; that even if his appointment was on ad hoc basis, the case should have been reviewed under Martial Law Instruction No. 21. The Tribunal, therefore, by its impugned order set aside the order of termination.

4. In response to notice sent by this Court, Mr. M.M. Saeed Beg has appeared for the respondent. On examination of the record with the help of counsel present, we find that the initial order of appointment dated 26‑11‑1976 clearly stated that the appointment was "on ad hoc basis". The subsequent order dated 28‑8‑1977, which was in partial modification of the said order, clarified that the appointment of the respondent was to be treated as temporary against a leave vacancy till the same exists." The termination order also gives the same reason for termination, that is, the temporary appointment was against a leave vacancy. The respondent had accepted the offer made in the first order and had acquiesced in the second order, copy of which had been duly endorsed to him. There is no material to support his stand that his appointment had been against a substantive vacancy or on probation. The Tribunal has apparently not given due consideration to the terms of his appointment and has fallen into error in arriving at the conclusion that he had been "regularly appointed" and "after serving in 2 years probation period, stood automatically confirmed in the said service".

5. We, therefore, convert this petition into appeal and allow it. The impugned order of the Tribunal is set aside. There shall be no order as to costs.

M.I. Appeal allowed.

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