November 2024

PLJ 2024 Islamabad 322

Present: Saman Rafat Imtiaz, J.

MUNIR AHMED--Petitioner

versus

MINISTRY OF SCIENCE & TECHNOLOGY through Secretary and another--Respondents

W.P. No. 467 of 2023, heard on 1.7.2024.

National Energy Efficiency and Conservation Authority Service Regulations, 2021--

----Regln. 14, 16(1)(2)(3) & 31(1)(5)--Appointment as DG--Probation period--Termination of service--No document was place regarding contract appointment--Regular employee--Violation of service regulations--Prerogative of respondent--Post of petitioner was abolished--Financial constraints--Minutes of board meeting--Statutory body--Petitioner’s Letter of Appointment did not record any reasons for appointment on contract basis as opposed to regular basis--The Respondents had not placed any other document on record recording reasons for appointment of Petitioner as DG-Planning, Policy, Innovation and Research on contract basis-- Petitioner’s appointment could not be regarded as contractual-- Petitioner stood confirmed on 28-12-2022 due to Respondent No. 2’s failure to inform Petitioner--Impugned Letter issued to Petitioner was in violation of NEECA Service Regulations as Petitioner was a regular employee on such date and could only be removed from service in accordance with NEECA Service Regulations and not by way of Impugned Letter on pretext of unsatisfactory completion of probation period--The Minutes of Board Meeting showed that post had been abolished due to financial constraints--High Court in exercise of Constitutional jurisdiction could not second guess decisions of Board of Respondent No. 2 taken in view financial considerations--The counsel for Petitioner had also not been able to cite any case law to support of his position that a post which was occupied by an employee cannot be abolished--Petition was dismissed to extent of prayer clause (ii) as neither Minutes of 9th Meeting nor decision of Board recorded in such Minutes to abolish post of DG-Planning, Policy, Innovation, Program and Research was set-aside--However, Petition was allowed to extent that Impugned Letter terminating employment of Petitioner was hereby set-aside--Consequently Petitioner was entitled to salary, benefits, emoluments, etc. from 20-01-2023 till publication of Gazette Notification dated 04-03-2024 whereby post of DG was abolished--Order accordingly.

[Pp. 330, 338, 339 & 340] A, B, C & D

2013 SCMR 1707, 2016 SCMR 2146, 2017 SCMR 2010, 2007 SCMR 13, 2022 PLC (CS) 164 and 2021 SCMR 1230.

M/s. Barrister M. Saad Buttar and Tahir Hussain Anchan, Advocates for Petitioner.

Barrister Munawar Iqbal Duggal, Additional Attorney General for Respondent No. 1.

Raja Zameer-ud-Din Ahmed, Assistant Attorney General for Respondent No. 1 and Rana Imran Farooq, Assistant Attorney General.

Mr. Obaid Ullah Riaz, Advocate for Respondent No. 2.

Date of hearing: 1.7.2024.

Judgment

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 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.) 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 assessment 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 28-12-2022 the 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 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 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 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 and 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.

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 Punjab and Human Resources Department, Lahore v. Mehr Din, 2007 SCMR 13:

The respondent in this case was promoted as a result of the recommendation made by the Departmental Promotion Committee with the condition vide order dated 31-5-1997 that the promotion would be for six months extendable for a further period of six months, and additionally that he shall remain on special report during this period to evaluate his performance. On 8.6.1998, the respondent was, however, reverted to the post of an Assistant allegedly on account of the evaluation of the respondent’s performance. The respondent filed a Constitutional petition before the High Court which was accepted and the I.C.A. against such judgment was dismissed. The Supreme Court dismissed the civil petition against such order while refusing leave. By way of an additional note, it was observed as under:

“5 … The condition of the learned counsel for the petitioner that respondent was promoted temporarily or on probation has no force coupled with the fact even if he was to be considered to be on probation under the rules he would stand confirmed in his promotion on expiry of the period prescribed in the order, dated 31-5-1997 which had expired on 31-5-1998 whereas the petitioner had reverted him on 8.6.1998.” [Emphasis added].

(iii) Secretary, Ministry of Education, GOP vs. M. Azam Ch. and another, 2009 SCMR 194:

The respondent applied to the permanent post of Director (BS-19) in the Department of Libraries, Ministry of Education, Islamabad and was appointed on 28-6-2004. He was initially put on probation for a period of one year. In case, the respondent did not successfully complete the probationary period, he was liable to be reverted or the period of probation could be extended according to terms and conditions of the letter of appointment. On 22.02.2006, the respondent was reverted to his former post and relieved from the post of Director (BS-19) through Notification dated 11.072006 and vide Notification dated 23-08-2006 the services of respondent were terminated without assigning any reason with effect from 22-02-2006. The respondent contended that since the period of probation was not extended beyond the period of one year, he would be deemed to have been absorbed on ‘regular basis’ to the post of Director (BS-19).

The Supreme Court held that admittedly the respondent assumed the charge of the post of Director (BS-19) with effect from 12-07-2004 therefore even assuming that the period of probation stood extended by one year the same came to an end on 11-07-2006 where after the respondent became a permanent employee and the contention that the respondent can be terminated without assigning any reason during his probationary period is not tenable.

(iv) Gul Hassan Jatoi and others vs. Faqir Muhammad Jatoi, 2016 SCMR 1254:

In this case the Supreme Court observed that in many cases the police personnel have completed their statutory period of probation but they were not confirmed for want of notification and as a result such officials suffered in terms of delayed promotion and loss of seniority. To rectify this, the Court ordered that in the future, police personnel completing their statutory probation period, whether three or two years, should be automatically confirmed, irrespective of whether a notification is issued.

32. In the following cases the relevant rules or appointment letter provided for extension in probation which had not been exhausted. As such, the Courts held that completion of probation period does not result in confirmation ipso facto notwithstanding failure of the concerned authority to terminate the services of employee as such failure was deemed to result in extension in probation.

(i) Ch. Muhammad Hussain Naqshbandi Vs Government of the Punjab, 2004 SCMR 44:

The petitioner was appointed as Additional District and Sessions Judge on 10-7-1984. He joined services on 26.8.1984 on probation for a period of two years which expired on 22.8.1986. The probation period of petitioner was extended on 9-10-1986 with retrospective effect for one year. The services of petitioner were, however, terminated on 19.8.1987. It was contended by the petitioner that the petitioner stood confirmed after expiry of his initial probationary period. The Supreme Court dispelled this argument by placing reliance on Rule 7 of the Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974 which, inter alia, provides that initially the period of probation would be two years subject to further extension for two years. It further clarifies that if no order is made on completion of two years of probationary period it shall be deemed to have been extended. Therefore it was held that the question of “automatic confirmation” does not arise because in such an eventuality where the service has not been confirmed, the period of probation shall be deemed to have been extended.

(ii) Qazi Tehmid Ahmed vs Secretary Ministry of Petroleum, 2015 PLC (C.S.) 449:

The petitioner was appointed as a Law Officer with Sui Northern Gas Pipeline Limited (SNGPL) on 28.09.2005, with an initial probationary period of one year. Following this initial term, petitioner was not confirmed but instead his probationary period extended for an additional six months until 11.04.2007. However, upon the expiry of the extended probationary period, the petitioner’s services were terminated simpliciter by the management, with one month’s salary provided in lieu of notice. The termination was not based on any misconduct but rather on the decision not to extend the probationary period further.

The Court dismissed the petitioner’s argument that after the initial one-year probationary period, no further extension could be granted, and service of petitioner was liable to be confirmed. The relevant portion is reproduced as follows:

“6. Perusal of record shows that petitioner was appointed as Law Officer vide appointment letter dated 28-9-2005. The said appointment was on probation for a period of one year during which employment could be terminated by either party after giving one month notice in writing without assigning any reason. Clause 10 of the said appointment letter specifically provide that services of the petitioner with SNGPL will be governed by Executive Service Rules as amended from time to time. On completion of one year, the petitioner was not confirmed but management extended his probationary period for another six months ending on 11-4-2007. On expiry of aforesaid extended probationary period, further extension was not granted to the petitioner and his services were terminated simplicitor after giving one month salary in lieu of notice. The record shows that termination of the petitioner was not a dismissal or removal from service due to any allegation but it was a case of non-extension of probationary period of the services of the petitioner and his termination simpliciter with one month salary in lieu of notice. The argument of learned counsel for the petitioner that after expiry of one year probationary period, no further extension for 6 months could be granted and service of the petitioner was liable to be confirmed automatically is not only mis-conceived but also contrary to relevant rules. Clause 6 of the rules relates to the probation, which is reproduced hereunder:---

…

The perusal of rule 6 ibid shows that probationary period could be extended by the Competent Authority and in case the performance during probationary period is not satisfactory, the Competent Authority could also terminate the services with one month notice or payment of remuneration in lieu thereof. There is no concept of automatic confirmation as argued by the learned counsel for the petitioner. The Hon’ble Supreme Court in a case reported as Federation of Pakistan v. Hashim Shah Qureshi (1987 SCMR 156) held that on satisfactory completion of probation a Civil Servant can only claim to have become eligible for confirmation and nothing more. Further held that there is no concept of automatic confirmation and that it is in the discretion of the employer exercisable on the availability of permanent post”. Similarly in (1998 PLC (CS) 828) titled Gohar v. M.D SNGPL, it was held that very purpose of probationary period was to assess the performance of an employee during a specified period in which services of employee remained purely temporary’. In (1998 SCMR 916=1998 PLC (C.S.) 794) titled M. Munir v. Government of Punjab, it was held that simpliciter termination during probationary period does not require show-cause notice or any other legal formality and simpliciter termination order during period of probation would be unexceptional-able and unquestionable”. Similar view was also expressed in Muhammad Hussain Naqshabandi v. Government of the Punjab and others (2004 SCMR 44), Muhammad Nadeem Ahmed and 18 others v. Ms. Azhra Feroz Bakhat and 58 others (PLD 1968 SC 37) and Shahzada Shahpur Tan v. Auditor General of Pakistan and another (PLD 1984 SC 430). In view of the relevant rules and case-law discussed above, the successful completion of probationary period not to make ipso facto petitioner permanent unless the term of his appointment letter or rules applicable clearly indicate such intention. No such intention has been specified in clear terms in the appointment letter dated 28-9-2005 or under clause 6 of the rules; rather it is specifically mentioned that on completion of probation, services could be terminated with one month remuneration in lieu of notice. Therefore, it cannot be said that respondents have acted illegally by not confirming the petitioner automatically on expiry of the probation period of one year”. [Emphasis added].

33. As observed herein above there is no provision for extension of the probation period under the NEECA Service Regulations. Thus, the closest case to the facts and circumstances involved in the present petition is the case of Muhammad Rafique (Supra) wherein although the extension period was provided for under the relevant recruitment rules, however, the maximum duration of extension stood expired. In such circumstances the Supreme Court held that if the competent authority considered his performance unsatisfactory an appropriate order should have been passed by the day on which the maximum period of probation expired and that the consequences for not passing such an order by the expiry date was that the petitioner stood confirmed by force of law. Similarly in the case of Mehr Din (Supra) the probation period in the promoted position ended on 31-5-1998. The reversion to the previous post occurred merely after eight days i.e., 8-6-1998 yet the Supreme Court held that the respondent would stand confirmed in his promoted position on expiry of the period prescribed for probation. These cases refute the argument raised by the learned Additional Attorney General that the performance evaluation for the probation period would be conducted after completion of probation period and as such communication of the decision of such evaluation would necessarily be subsequent to the expiry of probation period. In the case of M. Azam Ch. (Supra) also the Supreme Court held that where the extended period of probation had expired and the consequences of unsatisfactory performance did not flow, the respondent became a permanent employee who could no longer be terminated without assigning any reason by claiming that he was in probation.

34. In view thereof I have no hesitation in holding that the Petitioner stood confirmed on 28-12-2022 due to the Respondent No. 2’s failure to inform the Petitioner that his probation was unsuccessful by the day on which the maximum period of probation expired. Therefore, the Impugned Letter 20-01-2023 issued to the Petitioner was in violation of the NEECA Service Regulations as the Petitioner was a regular employee on such date and could only be removed from service in accordance with the NEECA Service Regulations and not by way of the Impugned Letter on the pretext of unsatisfactory completion of probation period.

Effect of abolishment of post

35. Be that as it may, the post of Director General-Planning, Policy, Innovation, Program and Research has been abolished by way of Notification issued under Section 21 of the National Energy Efficiency and Consecration Act, 2016 amending the National Energy Efficiency and Conservation Authority (NEECA) Service Regulations, 2021 which has been Gazetted on 05-03-2024. In response to the Petitioner’s counsel submission that such Gazette Notification is malafide as it was only issued due to the arguments taken on behalf of the Petitioner before this Court and after the matter was reserved on 04-03-2024 however the learned Additional Attorney General pointed out that the Gazette Notification itself shows that the matter was moved on 25-01-2024.

36. It is trite law that this Court in exercise of Constitutional jurisdiction does not interfere in policy matters. It is the prerogative of Respondent No. 2 to ascertain on the basis of its need, requirement, available resources and fiscal space, which posts it wishes to keep and which it wishes to abolish.[1] The Minutes of the 9th Board Meeting show that the post has been abolished due to financial constraints. This Court in exercise of Constitutional jurisdiction cannot second guess the decisions of the Board of Respondent No. 2 taken in view financial considerations. The learned counsel for the Petitioner has also not been able to cite any case law to support of his position that a post which is occupied by an employee cannot be abolished.

37. I am also not convinced that this Court can direct the Respondents to adjust or accommodate the Petitioner elsewhere especially considering that the reason for abolishment of post is financial and particularly when the two other Director Generals whose services were also terminated as per decision taken by the Board in the same meeting as in which the Board decided to terminate the Petitioner services have not been adjusted or accommodated anywhere else. Even otherwise the decision to accommodate or adjust the Petitioner depends on availability of any suitable position or vacancy in respect of which it is the Respondent who is best able to decide whether a suitable match exists or not.

38. In view of the foregoing, the instant petition is dismissed to the extent of prayer clause (ii) as neither the Minutes of the 9th Meeting nor the decision of the Board recorded in such Minutes to abolish the post of Director General-Planning, Policy, Innovation, Program and Research is set-aside. However, the Petition is allowed to the extent that the Impugned Letter dated 20-01-2023 terminating the employment of the Petitioner is hereby set-aside. Consequently the

[1]. Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department, Peshawar vs. Saeed-ul-Hassan, 2022 PLC (C.S) 164; Abdul Hameed vs. Water and Power Development Authority, 2021 SCMR 1230.