1984 PLP (C (PLC)

3. We have heard the learned counsel for the appellant as well as learned District Attorney who has adopted the comments filed by Syed Muhammad Hamid, Deputy Secretary (A) on behalf of the respon dents, and have perused the record of this case carefully with their assistances.

4. Learned counsel for the appellant has addressed us at length recounting the entire history of this case with the background of the same unfortunate incident which happened during the stay of the appellant at Mianwali and has argued that this background would be a very important factor while reaching to the ultimate decision with regard to the justifica tion of the A. C. R. so recorded by Malik Jehangir Khan, the then Deputy Commissioner. He has raised a pertinent point which needs adjudication by this Tribunal even ignoring the background of this case so stated by the learned counsel for the appellant :‑‑ (1) The A. C. R. had to be initiated by the A. C. who was the immediate officer of the appellant and not by the Deputy Commissioner. (2) That the A. C. R. had to be written in the first week of January, 1980, whereas the same has been recorded on 28th January, 1982, therefore, the same would be against the mandatory instructions laid down for the purpose. (3) The A. C. R. was kept purposely pending by the then f Deputy Commissioner and when it came to his notice that a writ petition has been filed against his order by which he had threatened the appellant with dire consequence and ejectment from his house by use of Police Force, he chose to write this A. C. R. after 14 days of the said order by the Hon'ble Judge of the Lahore High Court, in which Malik Jehangir Khan was cited as respondent No. 1, there fore, this A. C. R. was the outcome of annoyance and malice on the part of the then Deputy Commissioner, Sialkot.

5. We have examined these points vis‑a‑vis the instructions so given by the Regulation Wing of the S. G. A. & I. Department as well as the other documents so produced before us which we have placed on the record and find that with regard to the first issue whether the Deputy Commissioner could himself initiate A. C. R. of a civil servant when his own immediate superior has not done so. We conclude this issue in favour of the respondents as per advice of the Regulation Wing of the S. & G. A. D. which has clearly held that such like A. C. R. could be initiated by the higher authority as it is the opinion of the higher authority which is taken into consideration against the civil servant.

6. With regard to the second issue we do not find any justification for the respondent Malik Jehangir Khan, Deputy Commissioner for writ ing the A. C. R. after a lapse of more than one year particularly when he had taken in hand A. C. Rs. of other officers so working under him. The very fact that he took in hand the A. C. R. of other subordinates he had no justification to defer the writing of A. C. R. of the appellant and that too after a period of more than one year. The respondent has failed to give any reason for this delay which is in violation of the mandatory instructions given in para. 4 of the supplementary instructions, as well as para. 3 of the Booklet of writing of Confidential Reports which is reproduced as under:‑

"The final Authority about the writing of the C. R. will be responsible for obtaining C. R. S. for the preceding calendar year within the month of January each year The defaulting authorities shall be brought to the notice of the Government for appropriate disciplinary action." "Time schedule has been laid down so that the remarks are based on the performance of Government servant during the calendar year to which they relate. Otherwise consciously or unconsciously sub sequent events can contribute towards the formation of opinion in respect of the past year. Thus, the report should be completed within the month of January each year." In this case when we find that no justification of any sort has been given by the respondent No. 3 in this respect, we have no alternative but to hold that the A. C. R. was not recorded in accordance with the provisions so laid down in this behalf.

7. We have placed on record the judgment of Mr. Justice Ghulam Mujaddid Mirza, dated 14th January, 1981, in which we find respondent No. 3 cited as respondent No. 1 against his order by which he threatened the ejectment of the appellant from his house by the help of Police Force. The said order so passed by his Lordship is dated 14th January, 1981 which was given Dasti to the appellant and the A. C. R. has been written on 28th January, 1981 i. e. 14 days later than the said stay order, This would clearly show that the A. C. R. was immediately taken in hand by the respondent No. 3 when the stay order came into field is favour of the appellant and would definitely have influenced his mind against him particularly in view of the fact that the appellant chose to ventilate his grievance against the respondent before the Lahore High Court and was successful in getting the relief so prayed by him. This incident will fully support the philosophy and logic as contained in para. 3 of the Booklet of Instructions which we have reproduced above taking care of certain extraneous influence on the mind of the Reporting Officer for certain events which had taken place after the period under assessment of a civil servant's performance.

8. In view of these established facts on the recto d which the respon dents have not been able to deny nor the learned District Attorney has been able to controvert we are of the considered opinion that the opinion formed about the work and performance of the appellant for the period under assessment i. e. from 1st August, 1979 to 31st December, 1979 was not independent in nature and the possibility of annoyance caun9t be excluded keeping in view the circumstances which prevailed upon the mind of respondent No. 3, who kept the A. C. R. under appeal, with him for full one year for the reasons best known to himself.

9. The result is we hold the A. C. R. given by the respondent No. 3 for the period 1st August, 1979 to 31st December, 1979 written after an inordinate delay of more than one year and then brought after the stay order was granted by the Lahore High Court, would not emanate from an independent mind and would not extract realistic opinion in the performance of the appellant for the said period and therefore, we accept the appeal, set aside the impugned orders and direct that the impugned adverse remarks for the period from 1st August, 1979 to 31st December, 1979, be expunged. However, there will be no order as to costs. M. I. Appeal accepted.