' MR. JUSTICE (R) TANVIR BASHIR ANSARI, (CHAIRMAN).--- By this judgment we intend to dispose of above-mentioned ten appeals together as these appeals have similar facts and involve common points of law and policy. For this purpose, we would treat Appeal No,1337(R)(C.S.) of 2005 of Khalid Mehmood, as leading appeal.
' Briefly stated the facts are that the appellants joined the Pakistan Railways Police as probationer A.S.-I. With effect from the date mentioned in the Memo of Appeal. During the probationary period, the appellants were deputed/nominated for taking part in the Probationer Class Course of A.S.-I.
Organized at Police Training Centre, Saeedabad, Karachi. The appellants reported for training course on 11-12-2003 although by that time a substantial course had already been covered. The appellants completed the course but according to the result that was communicated by respondent No,3, they were detailed to have failed in the subject(s) as mentioned in the memo. Of appeal. The appellants were also issued the relevant result sheet. The appellants were further directed to undergo the course mentioned as 'A', 'B' and when they were terminated from service vide impugned order, dated 26-2-2005. The appellants preferred departmental appeal and consequently the present appeals were filed before this 'Tribunal. The appeals had since been admitted to regular hearing and objections thereto have also been filed.
2. The learned counsel for the appellants contends that the order of termination of service has been issued without issuing a show-cause notice or without affording an opportunity of personal hearing and thus the order is without legal efficacy. It is further submitted that the order of termination was passed mala fide as the appellants had only marginally failed in the Viva Voce test. It is further contended that the appellants were not given adequate time to participate in the training course. Firstly the training course was scheduled to be held at Police Training College, Sihala but the same was cancelled without assigning any reason. Thereafter the training course commenced at the Police Training Centre, Saeedabad, Karachi where the course had actually commenced with effect from 5-9-2003. The appellants were, however, relieved with inordinate delay with the result that they could only join the training course when almost half of the course was already covered. This, according to the learned counsel, prejudiced the case of the appellants and prevented them from successfully passing the probationary course. It is urged that the probationary period was fixed for one year which was successfully completed by the appellants and the termination order issued after the expiry of the probationary period was void particularly when the probation period was never extended by an express order. It is further argued that even if the appellants have failed in one or more subjects, they were entitled to be given one repeat chance to appear in the probationary examination and the refusal to give this chance amounted to discrimination against the appellants as other probationers were afforded such an opportunity.
It is further submitted that certain other employees who had more serious allegations against them such as cheating during the paper were awarded minor penalty of 'censure' while the appellants who had also taken their training course 'A', 'B' and 'C' even though not completed were terminated from service. With regard to the contention of the respondents that a repeat chance was allowed under the provision of Standing Order 14 only to those employees who had secured minimum 50% of aggregate was itself not lawful as under Article 112 of Police Order 2002, a Standing Order is to be made/ promulgated by the Provincial Police Official with the prior approval of the appropriate Government. It is contended .That Standing Order 14 has not been so promulgated nor has it been published in the Gazette notification. Reliance is placed on the judgment passed in Appeal No,302(R)(C.S.) of 2000 titled Muhammad Aslam v. I.-G. Police. It is finally contended that the Standing Order 14 in any case has not been consistently applied and has been applied to the discrimination of the appellants. The learned counsel finally contends that even in this regard the respondents are not following any consistent policy as through their letter, dated 1-11-2006 the probationers appearing in the Police Training Centre at Hango would be given chance of reappearing in all the papers in which they might fail.
3. The learned counsel for the respondent in response to the objections raised by the appellants upon the strength of Article 112 of the Police Order: 2002 submitted that the Standing Order 14 has been issued under Article 10(3) of the Police Order, 2002 and the Standing Orders do not fall in the category of rules as envisaged in Article 112 ibid which requires prior approval of the Government and the publication of the notification in the official Gazette. It is submitted that these instructions by way of Standing Orders have been issued to administer the holding of the examination for probationers and regulate successful completion of the probationary period or otherwise of an employee. Responding to the submissions made by the learned counsel for the appellants that the appellants were released late for joining the probationary course which prejudiced their chance to pass the said course, it is contended that the late release of the appellants was occasioned for the reason that initially they were nominated for the probationary course at Police Training College, Sihala but as the said course was postponed, the appellants were nominated to attend the course at Police Training Centre, Saeedabad, Karachi on 9-12-2003. Any delay in this respect was beyond the control of the respondents and was not mala fide. It is further submitted that according to the showing of the appellants, they had completed the course in the remaining period and that no prejudice was caused to them on this score.
4. According to learned counsel for the respondents no show-cause notice was called for as the appellant had failed to pass the said course and thus had not satisfactorily completed the probationary period. It is added that the appellant was selected as A.S.-I. Subject to completion of probationary period of one year extendable upto two years and clearance of final examination of probationer Intermediate School Course. The appellant failed in the subjects mentioned in the result sheet and also did not succeed in obtaining 50% marks on aggregate in other subjects. The services of the appellant were liable to be terminated under Rule 13.3 of P.R.P. Rules, 1980 and the order of termination is unexceptionable. Regarding the contention that the appellant should have been given a repeat chance to clear the failed subjects, the learned counsel for the respondents has made reference to Standing Order 14 according to which a repeat chance can only be given if the appellant had succeeded in obtaining aggregate of 50% in the subjects which he passed and had failed only in two subjects. It is further submitted that no discriminatory treatment has been meted out to the appellant.
5. Arguments have been heard and record perused.
6. According to result sheet of Khalid Mehmood (Appeal No,1337(R)(C.S.) of 2005) he failed in the subject of NJ and F Science on the basis of copying in the said papers. He is also shown to have failed in the Viva Voce test wherein he obtained 79 out of 200 marks. In the case of Mr. Asif Ali Mughal (Appeal No,1344(R)(C.S.) of 2005) he failed in the subjects of LSL and FP. He also failed in the Viva Voce test. Mr. Asad Jamaluddin (Appeal No,1346(R)(C.S.) of 2005) failed in LSL, FP and F.
Science. He also failed in Viva Voce test. Other appellants have similarly failed in two subjects or more and/or Viva Voce with less than 50% marks in the aggregate of the passed subjects.
7. The Standing Order No,14 has been issued under Order 10(3) of the Police Order, 2002 which is reproduced as under:- "The Police Officers mentioned in clause (1) may for direction and control issue standing order not inconsistent with the order or rules made hereunder in the efficient functioning of the Police."
' These Standing Orders do not require the approval of the Government nor does it require Notification in the official Gazette. Under Order 112 of the Police Order, 2002 rules for carrying into effect the provisions of the Police Order, 2002 are prescribed. These rules made under Order 112 required the approval of the Federal Government as well as publication in the official Gazette.
There is no force in the submissions made by the learned counsel for the appellants that as the Standing Order No,14 has not been issued with the approval of the Federal Government and notified in the official Gazette, the same would be devoid of legal efficacy.
8. Reverting to Standing Order No,14 it has been specifically provided therein (Clause 11) that after their appointment all the A.S-Is. Will have to qualify the probationers (Intermediate School Course) from various training institutions failing which their services shall be terminated under Rule 13.3 of Pakistan Railways Police (P.R.P.) Rules, 1980. All those probationers A.S.-Is. Who successfully completed the probationer course are thus, required to undergo A, B, C and D course as under:--- Course-A: Prosecution Work Three months Course-B: Police Lines Workings One month Course-C: Attachment with the Office of Two months the S.P. Of respective Division Course-D: Work* of Police Station Six months ' In the Scheme as laid down in Standing Order No,14, the A, B, C Courses are to be undergone after the successful completion of the relevant probationary School Course. The contention made by the learned counsel for the appellants that the appellant had successfully completed course A and B would thus be of no advantage to the appellant. The further contention of the appellant that the order of termination could not have been passed without the show-cause notice is also without substance. The directly recruited A.S.-Is. After their recruitment have to qualify the probationers (Intermediate School Course) failing which their services are liable to be terminated under Rule 13.3 of the Pakistan Railways Police Rules, 1980. The non-qualifying of the said probationers course would itself be a ground for an action under Rule 13.3 of the P.R.P. Rules, 1980. No show-cause notice in such a situation is necessary as passing of the probationer course is a sine qua none of being confirmed in servie.
9. The learned counsel for the appellants further submits that the action of the respondents was tainted with mala fides. It is submitted that initially the training course was scheduled to be held at Police Training College, Sehala. The same was cancelled without assigning any reason. Thereafter, the training course commenced at the Police Training Centre, Saeedabad, Karachi where the course commenced w,e,f, 5-9-2003. The appellants were however, relieved with inordinate delay to join the said course which they were able to do only on 9-12-2003 when they were nominated. It is submitted that the said delay was deliberately caused in order to adversely affect the service prospects of the appellants. It is elaborated that as the appellants joined the course with considerable delay, it. Had seriously affected their chance of successfully passing the course on account of paucity of time in which to prepare for the same. This submission although relevant to the extent of the delay in joining the course, yet no specific mala fides are made out against the respondents. At worst it can be attributed to defective management which definitely had adverse effect upon the successful completion of the probationers course by the appellants. We are not satisfied by the argument of the learned counsel for the respondents that such delay did, not or could not have any adverse effect upon the prospects of the appellants to pass the probationers course. Neither the Standing Orders issued under Order 10(3) of the Police Order, 2002 nor any other provisions of the Police Order, 2002 provide for any such eventuality. This neglect on behalf of the respondents in nominating the appellants with considerable delay cannot be ignored as an attributing factor to the poor showing of the appellants in the probationer course. Before recourse is taken to the punitive effect of failing the probationers course, the respondents ought to have considered the effect of loss of time of joining the course by the appellants. The Rule 13.3 of the P.R.P. Rules, 1980 can be resorted to if all other conditionalities prescribed in the Standing Order No,14 are fulfilled. The long delay in being able to join the course (which was not of the choosing of the appellants).Should have been a ground for relaxation of the rules for giving one repeat chance to the appellants to clear the failed subjects. Strict compliance with the Standing Order No,14 or Rule 13.3 of the P.R.P. Rules, 1980 was unwarranted.
10. In view of the foregoing discussion we are of the view that the appellants as a special case were entitled to one repeat chance to appear in the subjects in which they have failed including viva voce tests. The order of termination of service is thus, rendered without lawful authority and is set aside. The appellants shall be reinstated in service with the direction to give them one chance to repeat the test of the papers in which they had failed including viva voce. The intervening period shall be treated as extraordinary leave without pay.
11. No order as to costs.
12. Parties be informed accordingly.