1988 PLP (C (PLC(CS))

MUHAMMAD SADDIQUE FAROOQ (CHAIRMIAN)‑‑The appellant has brought two appeals, before this Tribunal. First appeal is against Order Book No.185 dated 23‑10‑1985, whereby the respondents Nos. 2 to 4 were admitted to 'F' list, by the respondent No.1, while the appellant was ignored. The second appeal has been preferred against Order Book No.217, dated 4‑12‑1985, through which respondents Nos. 2 to 4, in Appeal No .294 were promoted from the post of Sub‑Inspector to the post of Inspector. The appellant contends that he was senior to respondents Nos. 2 to 4 but at the time of preparation of 'F' list, he was ignored without any reason. Later on, the promotion of respondents Nos.2 to 4 was made on 4‑12‑1985,. on the basis of 'F' list, superseded the appellant. He stated that he had submitted the Review Petition, against order dated 23‑10‑1985, which was rejected on 21‑11‑1985 and his Review Petition, against order dated 4‑12‑1985 had been also rejected on 7‑1‑1986. The respondents Nos. 2 to 4 namely; Abdul Hamid, Mahboob Alam and Khizar Hayat, in their written statement, did not controvert the seniority of the appellant although they pleaded that the appellant was ignored on the basis of his service record. It was also contended that in the written statement that the 'F' list was prepared on the basis of merit. They maintained that the 'F' list was prepared in accordance with the rules.

2. We heard the parties and perused the record. The learned counsel for the parties reiterated more or less the same grounds, which were taken up in their respective pleadings. The learned counsel for the appellant argued that the service record of the appellant was good. If at all, there was any adverse entry, that should have been conveyed to the appellant but it was not done. It was contended that if an adverse entry in the A.C.Rs. is not conveyed, it is to be ignored, in the matter of promotion and premature retirement. The counsel for the appellant cited PLD 1987 SC 271, 1981 PLC (C.S.)

434. Mr. Khawaja Shahad Ahmad, advocate for the respondents maintained that 'F' list was prepared in accordance with the provisions of Chapter 13, para. 15, of the Police Rules. He also pleaded that it was not necessary to convey the 'F' list to the concerned person.

3. We summoned the personal file and Annual Confidential Reports of the appellant and also examined the file, concerning the preparation of 'F' list. The general assessment of the appellant and respondents; Abdul Hamid, Mahboob Alam and Khizar Hayat recorded in' Annual Confidential Reports was also requisitioned, which was received for the purpose of comparison of their merit. Mr. Khawaja Shahad Ahmad had taken objection that determination of fitness, for promotion is not appealable, before the service Tribunal, therefore, the question of admission to list 'F' cannot be made a subject of appeal, before this Tribunal. There is no quarrel, with the proposition that the question of fitness for promotion, is to be determined, by the Departmental Authority. If the question is determined, by the concerned authority, with due regard to law and in accordance with the facts of the case, the Tribunal shall not interfere, but in the case, where there is any violation of rules, mis‑statement or, misrepresentation of facts, the Tribunal has all the powers to quash' such proceedings of Selection Authority and make appropriate orders. When there is an allegation that a record, which should have been considered or which should not have been considered, it becomes a question of law. The non‑adherence, to the appropriate law or a settled practice gives us a sufficient cause to interfere in the matter, for this purpose. We may reiterate that any Act, Ordinance, Rules, order or instructions have the force of law as envisaged by section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. There is a settled practice, not only in the Police Department but in all other departments, of the Government that the adverse remarks in the Confidential Report of any individual should be conveyed to him, so that he may make any representation, against the same, if So desired. It has been also emphasized to follow this practice, by the Government of Punjab as well as the Government of Azad Jammu and Kashmir that the adverse remarks should be conveyed. In view of the provisions of Rule 17, Chapter 13, of Police Rules, the statutory provisions, enjoin upon the authority that adverse remarks, in Annual Confidential Report, should be conveyed to the individual concerned, during an interview, with the officer concerned or it may be conveyed in writing, against a proper receipt. If such remarks are kept secret, the very purpose of recording Annual Confidential Reports will be forfeited. The object of recording the remarks is to convey the individual an appreciation to his work, by superiors. In case, the superiors do not find the work and conduct of an individual satisfactory, they would make specific remarks as and when necessary. The object is that on the information of the observation of superiors, an individual may improve himself. If the remarks are not conveyed, the occasion, for improvement will not arise. Apart from that, if the remarks are based on misconception or any wrong information, provided to the superior the concerned individual will be in a position to place the true facts, before the authority. In case, the remarks are not brought to his notice, no improvement will be made by the individual in his work and conduct on the basis of the remarks, nor in case of wrong information or misconception of facts, he will be in a position to clarify his position. In the case "Muhammad Farooq Chohan v. Province of Punjab", P L D 1987 S C 271, it was held that un-conveyed adverse remarks, in a confidential report are to be ignored, for the purposes of promotion and also for the purposes of retirement. The relevant portion of the judgment is reproduced below: "In paragraph 1, it is directed that if the adverse remarks are not communicated, or if communicated, there is no record of their having been communicated and acknowledged by the concerned officer, such adverse remarks should be ignored for purpose of promotion and premature retirement. It does not say that when the adverse remarks are communicated after the prescribed time, even then they would be ignored. And further that when the adverse remarks are not communicated or there is no proof that they were ever communicated, in that case they would be ignored for purpose of promotion and premature retirement." In view of the above observations of the Supreme Court of Pakistan, we have no option but to hold that the adverse remarks, not conveyed to the appellant, cannot be brought under consideration. Before, applying this principle, to the case 'of appellant and evaluating his ease, it is necessary to summarise the extracts of the General assessment, made in the annual Confidential Report, by the superiors, in the case of appellant, as well as respondents Nos. 2 to 4, as reported by the Department, or observed by us.

4. The record of appellant shows that he was rated good, for he years from 1980 to 1985, which includes 5 years prior to the reparation of 'F' list, except for the year 1982, where his report as initially good, by the concerned officer but the Inspector‑General of Police observed "corrupt and inefficient officer". These remarks were never conveyed to the appellant, therefore, for the purpose of promotion, these have to be ignored. Consequently, all the reports of this officer, become good. In the case of Abdul Hamid respondent, there is a grading of "Good" from 1980 to 1985. In the case of Chaudhry Mahboob Alam, there are adverse remarks, for 1981 and there is average grading, for 1983 and again there is average grading, from 1‑1‑1985 to 6‑8‑1985. For all the rest i.e., 1980, 1982, 1984 and 8/1985 to 12/1985, his grading is good. Mr. Khizar Hayat got good report, for all the years, from 1980 to 1985, except 1983 for which, he is graded "average". The Department has also reported that no major or minor penalty was awarded to any of these 4 officers. The number of commendation certificates, issued in favour of the appellant and the 3 respondents is 46, 84, 22 and 9, respectively. Making a comparison, it appears that ignoring the un-conveyed remarks, the assessment of Muhammad Sharif, appellant and Abdul Hamid, is equal, with the exception that the appellant secured 46 commendation letters, whereas Abdul Hameed secured 84 certificates. The competent authority has preferred Abdul Hameed, therefore, in view of the larger number of certificates, having been granted in favour of Abdul Hameed, the authority has not violated any fundamental principle to his extent. There is no gross injustice, which would demand our interference, in the case of Abdul Hamid. In the matter of Mahboob Alam, even leaving aside the report, for the year 1981, he had two average reports. One for the year 1981 and the other from 1‑1‑1985 to 6‑1‑1985. This period of 2 reports, precedes the date of preparation of 'F' list. The number of commendation certificates, secured by Chaudhry Mahboob Alam is 22, as against 46, awarded to the appellant. On the basis of the assessment and the certificates, it is clear that the appellant has been unjustly treated, on the basis of record. Vow, we come to the case of Khizar Hayat. He also secured good reports, for these years, except 1983, when he was assessed "average". He secured 9 commendation certificates, as compared to 46, in favour of the appellant. This action again becomes a case of injustice, so far as the record is concerned.

5. If the decision was to be taken on the basis of record, it will become crystal clear that appellant Muhammad Sharif was wrongly ignored, while preparing 'F' list. At the most, Abdul Hamid could be preferred to him but not Mahboob Alam and Khizar Hayat.

6. We are conscious that record is not the sole criteria, for the Selection Authority, for the admitting of Sub‑Inspectors to list 'F'. The Police is a disciplined force and has to discharge very delicate duty, towards the citizens as well as the State. The observations of superiors, in respect of work and conduct of the Police Officers are very material and must get due weight, except, when they are to be ignored for violation of statutory provisions. The personal views of officer, preparing list 'F' are exception to it and carry weight, even if those views are not communicated. In the instant case, the recommending authorities made no adverse remarks, against the appellant, rather his name was placed at the top by the authorities below. He was dropped by the Inspector‑General of Police. In such a case, only the views of the Inspector‑General of Police were material but he has made no personal comments, about the work and conduct of the appellant. He has not mentioned that he ignores the appellant, on the basis of his personal knowledge, in the matter of appellant's work and conduct. The order passed in this case is very much clear, on the point, which shows that personal knowledge of the authority was not the base, rather it was the record, which brought him to this result. The law as already discussed has brought us to the conclusion that un-communicated adverse remarks cannot be taken, into account. Our analysis of the record, made hereinbefore, shows that the case of the appellant, has been prejudiced on the basis of adverse remarks, which could have been kept out of consideration. In absence of the personal views of the Inspector‑General of Police, who prepared the list 'F' there was no occasion, for ignoring the appellant. We are, therefore, constrained to hold that the Order Book No.185, dated 23‑10‑1985 was passed in disregard of the law, which should stand amended to the extent of appellant and his name be deemed to have been entered in the list 'F' with effect from 23‑10‑1985 and held eligible for promotion. We know that the appellant was admitted to list 'F' a few months later on, and even promoted as Inspector, but the seniority still remains effected.

7. As a result of our finding, in the matter of preparation of list 'F', we further hold that the appellant was fit for promotion, therefore, the Order Book No.217 dated 4‑12‑1985, regarding the promotion of respondents Nos.2 to 4. shall also 'stand amended to the extent that the appellant is deemed to have been promoted to the post of Inspector, from the date, the officers junior to him were promoted to that post. The case of junior most official amongst these 3 respondents shall be dealt‑with by the Inspector‑General of Police, in accordance with the law. The Inspector‑General of Police, may however, place the appellant, below Abdul Hameed, if in his opinion he deserved preference, over the appellant; provided this course of action is allowed by Police Rules.

8. The upshot of the above discussion is that the appeals are accepted. Order Book No.185 dated 23‑10‑1985 and Order Book No.217 dated 4‑12‑1985 shall be deemed to have been amended the appellant; Muhammad Sharif shall be deemed to have been entered in list 'F' from 23‑10‑1985 and be deemed to have been promoted to the post of Inspector from 4‑12‑1985. We make no order as to the costs. S.Q./56/Sr.A Appeal accepted.