Concept of Termination, Probation in the Civil Servant Act, 1973.

Answer:

CONCEPT OF PROBATION

According to section 6 of civil servant act 1973:

The world probation means a trial period during which a new employee is observed on the job, to confirm whether or not he can do it satisfactorily.  It has also been stated to be the initial period of service during which a new, transferred, or promoted employee has to establish that incumbent is capable of performing the duties attached with the employment or position before he will attain permanent footings in such position. Similarly, the term means suspension of a final appointment to an office until a person temporarily appointed (who is called a probationer) has by his conduct termed himself to be fit to till it.

A probationer has been stated to be a person who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service. A person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. Therefore, for a society to be managed justly, the substantive rules of workplace behavior must be just, and there must be mechanisms in place that deliver procedural due process.

The probationary aspect of a civil servant has been controlled by the Civil Servant Act, 1973 by laying down:  firstly, first absorption into a service or post, not being an ad hoc appointment would  be on such probation as might be prescribed by rules; secondly, appointment of a civil servant by promotion or transfer to a service or post might also be made on  probation as might be prescribed; thirdly, in case the law on the subject renders it necessary to qualify any subsequent examination, test, course training as sine qua non for the termination of probation period, the person appointed on probation shall not be entitled to be retained on the incumbent post unless he has passed or completed prescribed examination or training and fourthly,  in case of initial appointment, satisfactory verification of character and antecedents by the appointing authority is prerequisite for termination of period. (Civil Servants Act, 1973)

Added to this inventory are the probation rules framed by the Provincial Governments, which are as follow: a person appointed to a post by initial induction has to be on probation for a couple of years, and a person appointed otherwise, if the appointing authority so directs, will be on probation for a period of one year, secondly, service on deputation to an equivalent or higher post is to count towards the period of probation; thirdly, the appointing authority may, for reasons to be recorded in writing, curtail the period or extend period of probation  by a period not exceeding one year at a time; fourthly, during or on the expiry of the extended period of probation it may pass such orders as deemed necessary; fifthly, if ,after the completion of initial period of probationary period, no orders are passed by the competent authority by the day following, the period of probation is to be deemed to have been extended automatically for one year and lastly, as to the extended period, it has been held that during such period  the appointment is to be deemed to be continued till further orders.

Kinds of Probation:

The law on the subject has contemplated two kinds of probation: original probation and extended probation. The former is deemed to be the integral part of every initial appointment and varies in duration while the later encompasses a situation in which an employer has the authority to extend the probation period at the expiry of the original period. It is the initial period of his employment during which his erstwhile status is to be converted on permanent footings.

Instances of Probation:

A civil servant, in Pakistan, has to undergo the trial of probation on three occasions at the time of initial appointment, at the time of promotion and at the time of transfer. It is interesting to note that in case the probationer fails in successfully completing the period of probation in initial appointment, he is to be discharged from the service, however, in case he is undergoing probation as a result of promotion or transfer and fails to complete the said period satisfactorily, first, he is to be reverted to his original post and against which he holds lien and in case of unavailability of post he is to be discharged. (Civil Servants Act, 1973)

Factors to be Considered for Termination of Probation:

Albeit, the law on the subject is silent as to the factors to be considered by the employer for the termination of the probation period and it is the probationer who has to establish that he possesses the required capabilities prescribed for the said post. Thereafter, he would be considered to have attained the permanent footings. However, following factors have been stated to be instrumental in pulling a probationer out of the web of probation: firstly, character of the probationer and secondly, antecedents to be verified by appointing authority. However, the existing law seems to be replete with usual passivity as it omits to riddle the employer with the responsibility to provide the probationer job description in clear terms, objectives of the probationary period; ensure that the probationer is familiar with what is expected of him. Similarly, the extant law also omits to make the employer assiduous as to assess the training and development needs of the probationer; hold periodical meetings and discussions with the probationer as to his work and conduct on the workplace. Another area with needs to be addressed on priority basis is the assimilation of probationary period to training period. Albeit the existing law is not attentative to the issue, however, in case decided by the European Court of Justice, it has been held “although the probationary cannot be assimilated to a training period, it is nevertheless impetrative that the official be given the opportunity, during this period, to demonstrate his qualities. This requirement meets the requirements of proper administration and equal treatment, and the duty to have regard for the interests of officials, which reflects the balance of reciprocal rights and obligations established by the Staff regulations in the relationship between the official authority and civil servants. It means in practice that the probationary official must not only be accorded appropriate material conditions but must also be given appropriate instructions and advice in the light of the nature of the duties performed in order to enable him to the specific needs of the post which he occupies”.

Length and Extension of Probationary Period:

Initially, a civil servant has to be under period of trial for a period of one year; but the same is extendable. In case the employer intends to extend the period, he is supposed to be vigilant. Admittedly, extension of probation period has been stated to be the prerogative of the appointing authority, but once the period has expired, it is not lawful for the appointing authority to extend the probation period with retrospective effect. Rather, the law enjoins upon the competent authority to pass orders “by the day on which the maximum period of probation” is expired and in case of failure to do so the civil servant stands confirmed by force of law.

Albeit, the extension of probation period depends on the whim and caprice of the employer and maximumly it cannot be extended beyond the original period, but consequent to the termination of the initial span of probation, the appointing authority is prohibited from extending it retrospectively. The existing legislation on the subject doesn’t empower the employer, even in exceptional circumstances, to make an extension in the period of probation. In this context, it is, therefore, submitted that an amendment to the existing law will prove a panacea in relieving the aggrieved employee of his grievance. But in case of extension of probationary period, the courts have acknowledged the right of the employee to challenge the same and in case he omits to do so, it will be presumed that he has acceded to such extension.  Another intriguing question which emerges in this context is the right of the employee to get an opportunity to demonstrate his abilities during probationary period.  In this respect, the law in Pakistan is silent.

 

CONCEPT OF TERMINATION:

Termination means to fire or suspend from his service due to completion of his contract, probationary period, promotion period, transfer period and due to its retirement.

According to section no: 11, subsection 1 of Pakistan civil servant act, 1973:

The service of civil servant may be terminated without notice in three ways:

1.     During the initial or extended period of his probation.

According to proviso when a civil servant appointed by  promotion on probation or transferred from one service to another on probation so his service shall not be terminated so long as he lien against his former service and he shall be reverted to his former service.

2.     When his initial or extended probation period is expired.

3.     If the appointment is made on ad hoc basis terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person.

According to subsection 2: where the government wants to abolish number of posts so that civil servant shall be terminated in this situation who is most junior.

According to subsection 3: not withstanding with the provisions of subsection 1, but subject to the provisions of subsection 2, the service of civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days’ notice or pay  in lieu thereof.

 

Conclusion: It is  conclude that civil servant shall be terminated without notice due to completion of his initial or extended probation period, or when his initial or extended probation period is expired or if the appointment is on ad hoc basis so the selection authority can terminate him. When government or selection authority wants to abolish the number of services so he can be terminated without notice based on most junior in service.