2005 PLP (C (PLC(CS))

(v) What should the order be?

6. We have heard the learned counsel for the parties and perused the record, as also the authorities cited by them. For the reasons to follow our findings on the above points are as under. Point No. I.

7. The contention of the learned counsel for the Appellant was that the period of training being 82 days only i.e. less than three months, the Reporting' Officer was not competent to record any adverse remarks against, the Appellant and communicate the same to him. In support of his contentions, the learned counsel relied on paras. 2.24, 2.26 and 2.28 of the Guide Booklet. These paras. are reproduced as under:‑‑ "2.24(i) The words "more than three months" occurring in the preceding paragraph include a period of just three months under a particular Reporting Officer for the purpose of calculating the period of three months. (ii) It has been decided that the period spent on leave on average pay will not be included in this period and the period of three months will mean and include the actual period in which the work, performance and conduct of an officer has been seen by the Reporting Officer. (iii) The period of Annual Confidential Report of two calendar years cannot be combined to form single report for the purpose of report writing." "2.24‑A(iii) (c). If the period of report in each calendar year is less than 3 months, such reports shall be ignored for purpose of quantification. " "2.26. The writing and' keeping on record of reports for periods of less than three months was irregular according to the relevant instructions on the subject. In order to bring about uniformity in practice for those‑already written and for future it has been decided that all such reports which have found their way in the character roll dossiers of the officers should be removed from the character roll dossiers and destroyed. A note at the appropriate place in the dossier should be kept stating that the confidential report for the period, such and such, which was for less‑than three months and earlier, included in the character roll at page (such and such) has been removed in accordance with the relevant instructions. This would avoid the necessity of renumbering the pages and eliminate the risk of removal of other reports. " "2.28. A‑Confidential Report is required to be written on an officer if the period of report is three months or more. It has no specific relevance with the transfer of the Reporting Officer or officer reported upon." "2.34‑A. It has come to the notice of the Establishment Division that interpretation of instructions contained in para 2.34 of the booklet "A Guide to Performance Evaluation" has not been correctly made. It is clarified that if major period in a calendar year is spent by an officer under different Reporting Officers of less than three months on each occasion, the above mentioned instructions will apply. In case where a major period of the calendar year is covered by a regular report, the Performance Evaluation Report for a period of less than three months is not required to be initiated." The learned counsel .for the Appellant relied on 1985 PLC (C.S.) 432 and 1996 PLC (C.S.) 635.

8. In rebuttal of the contention of the learned counsel for the Appellant, the learned counsel for the Respondents relied upon para. 3.20 which is reproduced hereunder:‑‑ "3.20: Evaluation Report.‑‑‑If there are adverse remarks in the evaluation reports prepared by N.I.P.A. and Administrative Staff College, Lahore, on officers" who received in service training at these institutions. Ministries/Divisions concerned will communicate them to the officer, place a copy of the letter on the character roll and endorse another copy of it to the Establishment Division. In case the officer concerned makes a representation against these remarks, the Ministries/Divisions should forward the representation to the Head of the Training Institution concerned for his comments in order to substantiate the correctness of the adverse remarks. After hearing from the training institutions, the Authority concerned should take a decision whether or not the Adverse remarks occurring in the evaluation reports should be expunged. The Establishment Divisions are to be informed to the decision."

9. The controversy about the competency of the Reporting Officer to record adverse remarks in a report for less than three months can be resolved by adverting to the question, whether a training report can be equated with the A.C.R. or whether such a report is report of the ACR. In our opinion a training report cannot be equated with ACR, or it cannot be a part of the ACR for the reasons, firstly, that it is not to be counter signed by any authority higher than the Reporting Officer. Secondly, as stated by the learned counsel for the Respondents, such a report is not to be used for quantification and it has also been so mentioned in the Guide Booklet in para 2.24 A(i)(e). Thirdly, as per para 4.7 of the Guide Booklet it may be used for consideration of promotion of the officer concerned i.e. it is the discretion of the Promotion Committee/Director to consider; such a report or not. Fourthly, the training report 'unlike ACR, is not by any superior officer of the department of the trainee officer. Lastly, the training report has no concern with the integrity, quality, and output of work done by an officer during his official business. It is more of a report about the performance of an officer while under training rather than a report on conduct of such officer. These are factors distinguishing the training report and the ACR.

10. Notwithstanding the fact that a training report appears to be different from the regular ACR, there can hardly be any justification in ignoring the remarks in such a report for the reason, if adverse remarks in a training report are for a period less than three months are ignored, most of the training reports would lose their significance as training periods are generally less than three months. On the other hand, there appears to be no logic in considering the adverse remarks in a training report for a period of less than three months of institution, when the adverse remarks in a regular ACR for less than three months (which deals both with the conduct and work/performance) are ignored for considering promotion of an officer/official. There appears to be no clear cut guidance, at least, nothing of the sort has been shown to us, if adverse remarks in a training report for a period of less than three months had 'to be considered for promotion unlike a regular ACR for such a period. We think it will be in the fitness of things that a clear cut guidance is laid down by the Establishment Division whether adverse remarks in a training report for a period less than three months had to be considered for promotion or not. Under the circumstances, it cannot be said whether adverse remarks in a training period for less than three months by a Reporting Officer would be competent or incompetent. Point No. II.

11. The Learned counsel for the Appellant argued that there was a delay of more than two years in communicating the adverse remarks to the Appellant, for which delay the Respondents had failed to give any plausible explanation; hence, the adverse remarks were vitiated and had lost their force. The learned counsel further stated that the mala fide of the Respondents was apparent from the fact that the adverse remarks were communicated to the Appellant just before meeting of the D.P.C. for Appellant's promotion was to be held and duo to that he was not considered for promotion whereas his juniors had been promoted, as already mentioned above. On the point of delay in communication of the reports, the learned counsel for the Appellant relied on 1995 SCMR 768, 1996 SCMR 256 and 1999 SCMR 1587.

12. The learned counsel for the Respondents stated that the delay in communication of the adverse remarks never suffered from any delay nor such delay was unexplained. He stated that as soon as the report in question was received from the Reporting Officer on 17‑6‑2003, it was promptly communicated to the Appellant on 21‑6‑2003. He argued that in case of promotion the adverse remarks would be ignored whether communicated in time or out of time. The learned counsel relied on PLD 1987 SC 271.

13. Gist of the above authorities (as mentioned in placita) is reproduced hereunder:‑‑ "(a) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 212(3)‑‑‑Annual Confidential Report‑‑‑Delay in recording‑‑‑Effect‑‑‑Assessment of Reporting Officers ‑‑‑Value‑‑ Leave to appeal was granted to consider whether observations made by Service Tribunal that recording of annual confidential reports after some delay was not worth‑consideration and than assessment of Reporting Officer and first Countersigning Officer had greater value than that of second countersigning officer, were justified." "(c) Civil Service‑‑‑ ‑‑‑‑ Annual Confidential Report‑‑‑Completion of‑‑‑Annual Confidential Report should be completed within the prescribed period but if there was some delay it' would not completely vitiate remarks therein‑‑-Longer and unexplained delays, however (on the facts and circumstances), could reflect upon the authenticity of such adverse remarks." "1996 SCMR 256. ‑‑‑‑Adverse remarks‑‑‑Communication of adverse remarks beyond prescribed period‑‑‑Civil servant and Countersigning Officer not on good terms‑‑‑Adverse remarks appeared to be biased and result of hostility‑‑‑Effect‑‑‑Adverse remarks should be communicated within prescribed period‑‑‑Where there was' unreasonable delay in communicating adverse remarks, Authorities should explain such delay with sufficient reasons so that such remarks be accepted to be unbiased and effective‑ There being no reasonable explanation and civil servant having been alleging bias, prejudice and partiality against Reporting Officer and Countersigning Officer, same were completely vitiated‑‑‑Documents on record clearly indicated that civil servant and Countersigning Officer were not on good terms from the time when civil servant had represented against inducting in office of Countersigning Officer in preference to the employees to whom promotion should have been given‑‑‑Remarks of Countersigning Officer prima facie seemed to be biased and result of hostility which both civil servant and he had been nursing‑‑‑Adverse, remarks being biased, unreasonable and contrary to facts same could not be allowed to remain on record‑‑‑Any action suffering from such infirmities could have no legal sanction‑‑‑No legal justification thus existed to uphold adverse remarks and same were expunged in circumstances. " "1991 SCMR 1587. ....Adverse remarks ‑‑‑Expunction‑‑‑Adverse remarks recorded in Annual Confidential Report of civil servant, were communicated to him after lapse of about four and half months and Authority failed to explain each day's delay‑‑‑Adverse remarks should be communicated to civil servant within reasonable period‑‑‑In absence of any reasonable explanation for not communication adverse remarks within the period, Service Tribunal was right in not upholding adverse remarks and expunging the same‑‑‑Dispute being related to an individual grievance involving no question of public importance did not warrant interference by Supreme Court."

14. Instructions in para 3.1 (b)(iv)(a) of the Guide Book lays down as under:‑‑ "When an adverse remark is made in the confidential report of any officer, a copy of the whole report should be furnished to him at the earliest opportunity, and in any case within one month from the date the report is countersigned...................Nevertheless, the adverse remarks could be communicated to the officer concerned even at the belated stage."

15. Apart from the above 'mentioned authorities, in a recent authority in case of Ch. Shabbir Hussain v. Registrar, Lahore High Court, Lahore and others reported in 2004 PLC (C.S.) 236, leave to appeal was granted to consider the question whether recording of adverse remarks and communicating the same to the officer concerned with a delay of more than one year could vitiate the adverse remarks. It was held as under:‑‑ " ....In view of pre‑occupation of District and Sessions Judges and Judges of the High Court with ever increasing of judicial work delay in initiating Annual Confidential Reports of some of Judicial Officers and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. " A careful consideration of the above authorities leads to the conclusion that delay in recording and communicating adverse remarks cannot, ipso- facto, vitiate such remarks provided the remarks are not tainted with malice, bias or hostility. Secondly, that an unexplained inordinate delay can adversely reflect on the adverse remarks.

16. In the instant case, there was a delay of about two years in recording/communicating the adverse remarks to the Appellant. The delay was explained by stating that the training report containing adverse remarks against the Appellant was received from the Reporting Officer on 17‑6‑2003 and it was communicated to the Appellant without delay on 21‑6‑2003. Be that as it may, but there is absolutely no explanation whatsoever from the Reporting Officer about the extremely inordinate delay. He being the highest administrative officer must have known the significance of such a delay as well as the significance of promptly recording and communicating the adverse remarks to the concerned officer. The remarks of the Hon'ble Supreme Court about the delay by a judicial officer (supra) cannot apply to an administrative officer like the Reporting Officer in this case, who must have known that as per para 2.29 of the Guide Book the Reporting Officers concerned will be held responsible for ensuring that the reports of the officers working under them are written in time and sent to the Establishment Division/Administrative Ministry concerned when due with the least delay. As per para 2.30 the ACR of an officer in BPS‑19 is to be sent by 20th February. In para 2.10, it has been mentioned that the, "date on which the report is signed should also be indicated". Surprisingly, no date was put by the Reporting Officer under his signature in spite of said instruction. The reason for that was known to him only. Such omission of the date makes the circumstances mysterious considering the fact that the adverse remarks were communicated to the Appellant a short time before the meeting of the Departmental Promotion Committee for his promotion. This has further to be seen in the backdrop/perspective of alleged altercation between him and the Appellant. It is pointed out here that the said allegation of the Appellant was supported by his affidavit whereas, alleged incident, though denied, but not specifically, was not rebutted by any counter‑affidavit. As such, even if it is held that due to inordinate and unexplained delay in communication the adverse remarks would not be vitiated, but in view of what has been said above, the belated communication must reflect adversely on the adverse remarks. Point No.III.

17. Guidelines about counselling has been provided' under para 1.4(2), which reads as under:‑‑ "1.4 (1) (2) Counselling. Adverse remarks are often recorded by the Reporting Officers without prior counselling to the officer reported upon. This is contrary to the existing instructions and is, in fact, a reflection on the Reporting Officer. They are expected to counsel an officer about this weak points and advise him how to improve. Adverse remarks should normally be recorded only when the officer fails to improve despite counselling."

18. Counselling before recording the adverse remarks is as important as personal hearing in a case of adverse action against any officer. Needless to say that in this case Reporting Officer had not counselled the Appellant before recording the adverse remarks. Point No. IV,

19. About writing PERs (Performance Evaluation Reports), the Guide Book lays down the following instructions:‑‑ "2.1. The opinions which are expressed should represent the result of careful consideration objective assessment, so that, if called upon, the Reporting Officer could justify the assessment of his subordinate made by, him." "2.4(d): The initials, name and designation of the Reporting Officer being clearly written in block letters or typed under the signature and date on which the report is signed being clearly shown." (Underline is by us). "2.14. Avoidance of personal remarks in writing A.C.Rs.‑‑‑It may be impressed upon the Reporting Officers that, in writing such reports, they should take utmost care to ensure that personal remarks are avoided and the reports are written in an objective manner. If, subsequently, despite these instructions, any, Reporting Officer indulges in subjective reporting, it will be open to his superior officers to report adversely on him for having failed to record his remarks in an objective manner."

20. As per instructions in the Guide Book, the Performance Evaluation Report should be objective, based on some material and it should not be personalized. An analysis of the adverse remarks against the Appellant would show that the adverse remarks against the Appellant had been recorded after a peer view of this personality traits, attitudes quality and output of his work, leadership qualities and potential of assuming specified higher responsibilities in future. The peer view appears to us to be a subjective assessment of the Appellant, not based on any objective material from which quality and output of his work had to be assessed by the Reporting Officer. The remark. "An ambitious officer who can ruthlessly pursue the objective" is a highly personalized remark. What were the objectives which the ambitious officer ruthlessly pursued have not been specified. The second remark, "Gives an appearance of intelligence, but not overly interested in training activities, beyond a threshold" the use of word "appearance" is again a personalized remark. The latter part of this remarks, "but not overly interested in training activities beyond a threshold" should have been supported by some material which could show the objective assessment of the Appellant. It is not known that was the threshold beyond which the Appellant could not proceed. As per para‑4 of the Guide Book necessary entries regarding training of all the officers, who had undergone the training have to be made in the relevant column of the PER Form [S.121G]. Copy of the whole report is to be supplied to the officer concerned. Copy of such a form has not been filed/produced, which is perhaps, due to the fact that the assessment of the Appellant done by the Reporting Officer was based on peer view. This remark is nullified by the, certificate of successful completion of the course by the Appellant (Certificate reproduced in para‑1 supra). The next remark, "He tried to influence me for getting an undeserved appreciation of his performance in the course" is again a personalized remark from which the annoyance of the Reporting Officer against the Appellant is oozing out. The last remark. "In the opinion of the Course Coordinator Mr. Barakzai, at time, became emotional while making arguments revealing an obvious streak of self‑righteousness" is wholly unwarranted. It is not known why the reporting officer had chosen to induct into report the unsought hearsay opinion of an officer who had nothing to do with the PER of the Appellant. We loathe to say, but we feel that the lingering, lasting distaste of alleged altercation appears to be reflected in the personalized remarks against the Appellant.

21. The other two certificates referred to by the Appellant having been issued by the competent person, need no discussion. These are liable to be ignored. However, sufficient unto us is our discussion of the facts and law to come to the conclusion that the overall impact of such discussion is that the extraneous/belated adverse remarks against the Appellant are biased remarks recorded by an indignant officer without counselling the Appellant. Such remarks must not be allowed to stand in the way of his long unblemished career for promotion to higher stage. We are fortified in our view by the authority reported in 1995 SCMR 768, which reads as under: "(b) Civil service‑‑‑ ‑‑‑‑ Annual Confidential Report‑‑‑Biased and prejudicial report‑‑ Value‑‑‑Once Annual Confidential Report was the result of bias and prejudice, it could not stand‑‑‑Such biased Annual Confidential Reports would not have any legal validity and must be expunged from the record even if they had been made by the highest Reporting Officer."

22. We, therefore, allow the appeal and expunge all the adverse remarks in question against the Appellant. We accordingly direct the Respondents to take the impugned PER/ACR out of the file/ACR dossier of the Appellant and place a copy of this Judgment on the ACR dossier of the Appellant. The impugned PER/ACR shall not be considered for any purpose whatsoever.

23. Parties are left to bear their own costs.

24. Copies of the Judgment be sent to the parties and to the relevant quarters. H.B.T./135/FST Appeal allowed.