1996 PLP 256 (SCMR)

3. These remarks were endorsed by the countersigning officer on 28‑2‑1985. The appellant filed representation against these remarks on 7‑11‑1988 which was rejected on 16‑5‑1990. The appellant then filed, appeal before the Tribunal which was dismissed.

4. In Civil Appeal No. 81/94, the Performance Evaluation Report for the period 1‑1‑1986 to 10‑4‑1986 was communicated to the appellant on 4‑10‑1988 which reads as follows:‑ "An average officer who could prove really effective if he could overcome his personal likes and dislikes." The representation was rejected and appeal filed was dismissed by the impugned judgment.

5. In Civil Appeal No. 80/94 the Performance Evaluation Report for the year 1989 was communicated to the appellant on 11‑3‑1990 which reads as follows:‑ , "The assessment of the reporting officer is rather too lenient. The officer has shown persistently a tendency of self‑aggrandizement marked conspicuously with self‑interest in official duties. A habitually aggrieved person accusing others for his own failures. Devoid of discipline and decorum. Hardly fit to hold any responsible post." In this case also the representation and appeal were dismissed. One of the learned members had allowed the appeal while the other Member dissented, with whom the Chairman agreed.

6. So far remarks for the years 1984 and 1985 are concerned the Tribunal was of the view that they were advisory is nature and appeal was not competent. So far the remark for the year 1989 is concerned, the Tribunal noted that the reporting officer had graded him as average officer and 6t for promotion on his turn but the countersigning officer has given him `below average' grading and `unlikely to progress further'. The remarks quoted above were also taken into consideration and while dismissing the appeal h was observed as follows: "There are several letters on record which indicate that the appellant had all along been a nuisance for the institution inasmuch as he always had a tussle with his immediate officers; never complied with their orders; failed to achieve the requisite targets and could not complete the balancing work of his Centres. He had been advised time and again to improve the performance of his Centres and to devote himself to official business, but all in vain, and, therefore, the countersigning officer was justified in recording his objective assessment about the performance of the appellant. As laid down by the Supreme Court in the case reported in 1992 SCMR 1427, opinion and assessment of the countersigning officer has to prevail over the assessment of the reporting officer. For all these reasons, the adverse remarks recorded in these appeals are not expunged."

7. Leave was granted to consider the following questions:‑‑` (i) Whether the Tribunal was justified to hold that the remarks recorded in the A.C.Rs. for the above periods from 1‑1‑1984 to 14‑7‑1984 and 1‑1‑1986 to 10‑4‑1986 were advisory though ostensibly they appeared . to be adverse; and (ii) Whether the Tribunal was justified in maintaining the above adverse p remarks in spite of the fact that the petitioner brought on recd some material to indicate that the reporting and countersigning officers, M/s Abdul Rashid and Mansoor Aqil had some personal reasons which might have prompted them to record the above adverse remarks and also keeping in view that the performance of the petitioner during the above period was commended inasmuch' as he was awarded Rs. 2,000 for good work during the period from 1‑1‑1984 to 14‑7‑1984."

8. Mr. KM. Samdani, the learned counsel for the appellant contended that the remarks for the periods from 1‑1‑1984 to 14‑7‑1984 and 1‑1‑1986 to 10‑4‑1986 were adverse remarks, not advisory in nature and were communicated after about 5 years and, therefore, no notice of such remarks may be taken and it should not be allowed to remain in the A.C.R.

9. It is an admitted position that the A.C.R. relating to part of the years 1984 and 1986 were communicated after a lapse of more than 4 years without , furnishing any reasonable explanation for such delay. The learned Deputy Attorney‑General has attempted to explain that it was due to consultation with the Establishment Division that had delayed the communication but this cannot be a reasonable explanation for such a long delay. The learned D.A.G. also stated that the remarks for these two years were treated to be adverse and, therefore, they were communicated. It is, therefore, established that these remarks in the A.C.R. for these periods the years 1984 and 1986 were adverse and their communication at such a late stage must loose its effect. In Dr. Muhammad Hanif Arif v. The Secretary to the Government of the Punjab (1989 SCMR 1967) delayed communication of the A.C.R. was not considered fatal because the facts and circumstances of the case were such that the delay was explained. In that case A.C.R. for the year 1981 was recorded on 31‑‑1‑1982 and was countersigned on 26‑6‑1982 with additional adverse remarks but the Health Secretary, the subsequent countersigning officer considering the assessment made by the reporting officer to be biased noted accordingly on 7‑6‑1983 with the result that the adverse remarks stood washed out. Sometime later the Provincial Health Secretary sought advice from the Regulation Wing of the Government about the competency of subsequent countersigning officer which disregard the Governor's Order dated 5‑12‑1981. The Regulation Wing gave the opinion that the Health Secretary had no authority to disregard the Governor's remark and, therefore, the adverse remarks were communicated on 2‑1‑1985. It thus seems that the delay was not considered fatal because of the reasonable explanation offered by the authorities which had caused delay in communication of the adverse remarks. In WAPDA through its Chairman and another v. S.M. Rizwan Abidi (1994 SCMR 238) the order of the Tribunal expunging the adverse remarks was set aside. One of the grounds of the respondent was that adverse remarks were communicated late but the judgment was delivered on other grounds without making any observation on question of delay. In Director, Small Industries Department, Quetta v. Hameedullah Khan (1995 SCMR 768), it was observed that an Annual Confidential Report which was the result of bias and prejudice could not have any legal authority and must be expunged from the. record. It was further observed that "It is true that according to the rules the A.C.R. for the year is to be completed within the prescribed period, but if there is some delay, it will not completely vitiate the remarks. However, depending on the facts and circumstances longer unexplained delays may adversely reflect upon the authenticity of such adverse remarks." The principle, therefore, which can safely be enunciated, is that adverse remarks should be communicated within the prescribed period and if there is any unreasonable delay the authorities should explain it with sufficient reason so that such remarks may be accepted as unbiased and effective. In the present case there is hardly any reasonable explanation for such delay. There seemed to be some confusion in the mind of the authorities which were trying to justify non‑communication by stating that the remarks were not adverse. But according to the opinion of the Establishment Division as stated by the learned DA.‑G., the remarks were adverse. The history of the case is such that the appellant From the very beginning had been alleging bias, prejudice and partiality against the reporting officer and countersigning officer. In this background these remarks for the years 1984 and 1986 communicated after unreasonable delay are completely vitiated.

10. The learned counsel for the appellant has taken us to the record to several documents to show that in September 1983 the appellant had received congratulatory letter commending upon his, performance and 11, There are further documents for the year 1984 about the monthly progress report in which he had achieved or August 1984 a commendatory Rs.500 each were awarded to the appellant which he received in the year 1985. In these circumstances it seems rather strange how he could have been given adverse remarks for those years.

11. The remarks for the year 1989 reproduced above were adverse and communicated in time. The significant part of these remarks is that the Reporting Officer had ranked appellant in Part‑I as "B" whereas in columns for "confidence and will power" and "appearance and hearing, he was categorised in "A" Calls. In Part‑III he has been categorised in "B" Class whereas in Part .IV so far oral expression and knowledge of work is concerned he was ranked in "A" category and for the rest in "B". However, the countersigning officer changed it and in all the parts he ranked him in "C" category. In overall grading the Reporting Officer‑had put him as "equal the majority of officers" but the Countersigning Officer was of the view that "he meets bare minimum standards (Below Average)." Likewise the Reporting Officer was of the opinion that he was "fit for promotion in his turn "but the Countersigning Officer stated that he was "unlikely to progress further." The Countersigning officer further made the remarks which were communicated and have been reproduced above. From the record and documents produced it is clear that the appellant and the Countersigning Officer were not on good terms. The appellant had represented against his induction in the office in preference to the employees to whom promotion should have been given. .This probably has sparked of along dual between them and for this reason perhaps, which seems prima facie clear that the Countersigning Officer ignoring all past good record ranked him unfit for further promotion and also made remarks against him. The learned counsel pointed out that he had been absenting and was not regular in his work. He was a hot‑heated man. We have looked into the documents filed before the Tribunal and do not find that he had been irregular or absented from duty without information except that on one or two occasions he had applied for casual leave .and had left the station prior to obtaining sanction. Explanation was called and he stated that this was the practice that usually the sanction comes very late and normally application is made, and leave is availed. This seems to be a practice but it should not be encouraged. The learned DA.‑G. also pointed out that in a newspaper report serious allegations involving charges of corruption and dishonesty were made against the appellant and he had filed a suit for defamation which was dismissed and the allegations were held to be correct That was a case between the plaintiff and the publisher and Editor of the newspaper but the allegation of the appellant is that it was manoeuvred and even the journalists were given access t confidential documents to use against him. Be that as it may, the department perhaps took notice of this fact and instituted an inquiry. The Inquiry Officer after examining a large number of witnesses submitted a lengthy report discussing each charge separately and came to the conclusion that none of the charges were proved against the appellant. The .Inquiry Officer finally concluded as follows:‑ . "There is, however, one aspect about the accused officer Ch. Saeed Ahmad which might be mentioned in passing. He appears to have a very volatile temperament and an uncompromising attitude toward his colleagues seniors as well as juniors. Perhaps he was unduly conscious of his extraordinary efficiency and ,unimpeachable integrity which made him behave like a 'Bull in a China Shop'. Unless and until he learns how to conduct a better public relationship and mellowed his attitude towards others, his troubles would not come to an end He must have already suffered, a good deal, mentally as well as financially, is this uncalled for controversy, raging for more than 10 years with Mr. Habybul Wahab Elkhari becoming the spokesman of bare who appeared to be allergic to his presence in the Department. Otherwise as far as the charges are concerned there is no merit in then and they were at beat an 'irregularity which could be condoned. That was why, D.R, Mr. Muhammad Sharif Lone, felt so apologetic throughout tire proceedings and did not hesitate to mention the fad that Ch. Screed Ahmad was one of 'their' most efficient and honest

12. The remarks of the countersigning officer prima facie seem to be biased and result of hostility which both sand he had been nursing. If any adverse remark in the A.C.R. is biased, unreasonable and contrary to fads, the same cannot be allowed to remain on record. It is the duty of the reporting and countersigning officer to give an honest, reasonable and unbiased assessment of the civil servant uninfluenced by personal likes and dislikes, prejudices and partiality. Any action suffering from such infirmities can have no legal sanction to exist. While commenting on the principles governing the exercise of discretionary powers by an authority, De Smith in Judicial Review of Administrative Action 4th Edition by J.M. Evens, inter aria observed:‑ It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must sot seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not ad arbitrarily or capriciously. Nor where a judgment must be made the certain fads exist can a discretion be validly exercised on the basis of an erroneous assumption about those fads."

13. Front the record bias and personal opposition of the countersigning Officer against the appellant seems to be established and, therefore, there is so legal justification to uphold the adverse remarks made by him which stand expunged. All the three appeals are allowed. AA/S‑1015/S Appeal accepted.