1995 PLC (C (PLP)

Muhammadullah Khan, Government Pleader for Respondents. ZARIN DAD KHATTAK (MEMBER).‑‑‑This appeal has been filed by Aurangzeb Khan, Section Officer, under section 4 of the N: W.F.P. Service Tribunal Act, 1974, against the order of respondent No. 2, dated 28‑8‑1993, whereby his request for the expunction of adverse remarks in his ACR for 1992 was not acceded to.

2. Brief history of the case as per memo. of appeal is that the appellant joined service in the Civil Secretariat in the year 1971. After the communication of adverse report to him on 5‑4‑1993, the appellant has been promoted as Section Officer on the basis of his good record of service. The basis for his adverse report has been alleged to be that on transfer from Food and Agriculture Department, the appellant was posted in P&D Department as Cashier instead of assigning him the duties of Office Superintendent. He protested against his posting as such but with no result. The appellant, therefore, applied for 120 days leave which annoyed the reporting officer. It has been alleged that the report is based on vague, sketchy and subjective assessment. No warning, counselling was ever given to him on any occasion. The remarks are not supported by any tangible evidence. It has, therefore, been prayed that the adverse remarks communicated to him be expunged.

3. Respondent No. 1 vide his parawise comments has contested the appeal. A preliminary objection has been raised that the appellant has been promoted after the communication of the said adverse remarks which has not affected the appellant. In pursuance of the S&GAD Notification issued on 25‑6‑1992, the appellant joined P&D Department on 1‑7‑1992. He was assigned the duties of Superintendent (Accounts) and was inter alia responsible to handle cash. He was reporting to the Deputy Secretary (Adorn.) in connection with encashment of cheques, disbursement of salaries and subsequently verification of Cash Book, being Drawing and Disbursing Officer of the Department. The appellant did not perform his duties satisfactorily and the same was reflected in his ACR by the Deputy Secretary (Admn.) as Countersigning Officer. He applied for 120 days earned leave, his application was sent to the S&GAD, for consideration with the request to provide his substitute. The Countersigning Officer has also stated that the appellant was given verbal counselling on numerous occasions. However, no written counselling was tendered. He did not take care of the verbal instructions and his performance remained unsatisfactory.

4. Respondent No. 2 has also contested the appeal. It has been pointed out that the appellant was assigned the duties of Superintendent Accounts and was inter alia responsible to handle the cash. He did not perform his duties satisfactorily and the same was reflected in his ACR. According to the Countersigning Officer, the appellant had applied for 120 days earned leave apparently to manoeuvre his posting out of P&D Department. His application was forwarded as per rules accordingly. The representation of the appellant was considered in the light of the comments offered by the Countersigning Officer and the replying respondent found no reason to expunge the same. The Countersigning Officer has stated in his comments that the appellant was given verbal counselling on numerous occasions. The Countersigning Officer has fairly assessed his performance during the period under report and the adverse remarks earned by the appellant were communicated without loss of time. However, representation of the appellant was considered judiciously and rejected after due consideration. The Countersigning Officer is the sole Judge to assess the performance of his subordinate. The performance of the appellant had been assessed by consideration of all aspects.

5. It has been prayed by both the respondents that the appeal be dismissed with costs.

6. Arguments heard and record perused.

7. The appellant joined service in the Civil Secretariat in the year 1971. He was transferred and posted as Superintendent (BPS‑16) in the P&D Department vide respondent No. 2 Notification dated 25‑6‑1992. Vide subsequent Notification of respondent No. 2 dated 26‑4‑1993, the appellant was promoted as Section Officer (BPS‑17) and posted as Section Officer, Industries Department.

8. Consequent upon his posting as Superintendent to the P&D Department, the appellant assumed his charge on 1‑7‑1992. He was assigned the duties of Superintendent (Accounts). He was inter alia responsible to handle cash. He was reporting to the Countersigning Officer in connection with encashment of cheques, disbursement of salaries, verification of cashbook being Drawing and Disbursing Officer of the Department. On his promotion as Section Officer (BPS‑17), the appellant took over charge in the Industries Department.

9. In his confidential report for the period from 1‑7‑1992 to 31‑12‑1992 for which he served in P&D Department, the Reporting Officer, assessed the appellant as `Good' in all the columns of Part II and Part III of the impugned ACR. He was adjudged as `Fit for promotion'. In the pen‑picture, the Reporting Officer assessed him as very obedient, cooperative and hard working official. The Countersigning Officer, however, made the following adverse remarks in Part IV of the ACR:‑‑ "Mr. Aurangzeb, then Superintendent was assigned the duties of Superintendent Accounts. He was found inefficient and was, therefore, transferred to other section. His overall performance was unsatisfactory."

10. The overall assessment of the work of a civil servant is always within the ambit of his superiors. We are of the considered opinion that no exception can be taken to an honest assessment of work of the appellant which came under review from time to time before the Countersigning Officer. We have no dispute with the same but it always requires sound justification for such assessment and consistency should always prevail in the matter grading of ACR, keeping in view the Standing Orders and Instruction from time to time issued by the Government for writing of ACRs. The Reporting Officer had opportunities to closely watch the work and conduct of employee and was the best suited person to judge competence of employee who had worked under him for the reporting period. According to the instructions as laid down in this behalf, the Deputy Secretary (Admn.), P&D Department was under obligation as Countersigning Authority to give cogent/specific reasons for his disagreement with the views of Reporting Officer and to justify his assessment but he has failed to do so. Reporting and Countersigning Officers were under obligations to render justification for adverse entries recorded by them in the ACRs. Reliance is placed in case reported as (1988 PLC (C.S.) 247). Similarly. it is laid down in the instructions that if the countersigning authority was in disagreement with the assessment of the Reporting Officer, he would be under obligation to score out with red ink relevant column against which he had expressed his disagreement. Reliance can be placed on a case reported as Ch. Shaukat Ali v. Government of the Punjab through Secretary Department of Local Government (1986 PLC (C.S.) 773) and Syed Ali Ashraf Shah Gillam v. AJK Government through Chief Secretary, Muzaffarabad and 3 others 1994 PLC (C.S.) 129 This mandatory provision had been followed by the Countersigning Officer with the result Matt a observations made by him in Part IV of the impugned ACR run counter to the assessment made by the Reporting Officer in Part II of the ACR where he has been assessed as Good. This makes the impugned ACR contradictory and liable to be set aside on this ground alone. The appellant has contended that before recording adverse entries in the ACR no counselling or advice was given by the respondents to which the appellant was legally entitled. The principles of natural justice and conscience required that if an officer was to be given, adverse remarks, the Reporting Officer would be bound to issue warning to him prior to that period. Such warning must be in writing, there is ample case‑law on the issue wherein it has been repeatedly held that before recording an adverse entry, the affected person shall be counselled or advised to improve his efficiency and conduct. No such thing has been resorted to in this case and the entry has been recorded without any previous record of any inefficiency on the part of the appellant. Reliance is placed in the case on the judgment delivered by this Tribunal in Appeal No.176 of 1989 Abdul Haq v. Secretary to Government of N.‑W.F.P., Finance Department decided on 10‑12‑1989, instructions issued by the S&GAD vide Circular Letter No. SOS (S& AD)CRA(10)/88, dated 8‑9‑1988.

11. The fact of the matter is that the appellant has got no adverse entry with regard to his `inefficiency' before and after the entry in the impugned ACR. It may be pointed out that the traits of character which linger on with a person cannot develop suddenly. The Countersigning Officer giving remarks of inefficiency should be able to justify his opinion by relating instances of omission on behalf of the reported official particularly when he was reported well by the immediate reporting officer. Reliance can be placed in this behalf on a case reported as Javed Saleem v. Secretary to Government of the Punjab, Local Government and RDD (1984 PLC (C.S!) 1344). However, no particular instance was quoted in this case.

12. The result is that we accept the appeal, set aside the adverse entry so given by the C.O. in the ACR for the period from 1‑7‑1992 to 31‑12‑1992 of the appellant in the light of the above detailed analysis on facts and law of this case. We, therefore, direct the respondents to expunge the said entry which has found its way in the ACR of 1992 of the appellant. No orders as to costs. File be consigned to the record. AA./183/P Appeal accepted.