1991 PLP (C (PLC(CS))

"In the road scheme for Lakhra, belonging to the Industries Department funds were surrendered. This had subsequently placed the Department in an embarrassing position."

2. On receipt of the above report vide Communication and Works Department's letter, dated 2nd October, 1986, the appellant made representation dated 14-4-1987 to the Chief Secretary for expunction thereof. The said representation was rejected vide Communication and Works Department's letter dated 25-9-1989 addressed to the appellant. Within 30 days of that letter the present appeal was filed on 24-10-1989. We heard the arguments of the learned counsel for the parties and went through the relevant record.

3. The thrust of the arguments made on behalf of the appellant was that the adverse report was not the requirement of the "Instructions about Confidential Reports" (hereinafter referred as the said Instructions). According to the learned counsel the Secretary, Communication and Works Department, who was the author of the impugned report was not declared as second countersigning authority under the said Instructions in respect of the category of officers to which the appellant belonged. It appears to us that this case is on all fours with the case of Mr. Wajid Ali Shaikh (Appeal No. 47 of 1989), who like the appellant was Executive Engineer in 1985 when he too, was assigned the adverse report by the same Secretary, Communication and Works Department, exercising his powers as second countersigning authority. The comprehensive mechanism as regards the initiation, countersigning, finalisation and communication of ACRs is contained in the said Instructions which have the status of the rules. The Instruction No. 7 in the said Instructions is too eloquent on the question of prescribed reporting channel. On its perusal it is found that Second Countersigning Authority does not find mention in the said Instruction. However, instruction No. 9 appearing on the page. 9 of the prescribed form for writing ACR is to the following effect:- ..................In certain categories of cases remarks of a second countersigning officer may also be required to be recorded. The Establishment Division will identify such cases from time to time and also designate an officer as second countersigning officer for each category. The second countersigning officer will record his remarks in part VII (b)."

4. The above instruction which obviously forms part and parcel of the-said instructions, is as effective as other instructions. As required by the above instructions, neither the S&GAD (Establishment Division in case of Federal Government) has specified the category of Executive Engineers belonging to Communication and Works Department for the purpose of appointing Second Countersigning Authority for them, nor has the said Department designated the Secretary, Communication and Works Department as second countersigning authority in respect thereof. Consequently the Secretary, C & W had no power under the said instruction to act as second countersigning authority in respect of the appellant and as such the adverse report given by him to the appellant was without any legal consequence.

5. The legal position of the countersigning authority as stated above, is further confirmed by the correspondence exchanged between the S&GAD and Communication and Works Department. By its letter dated 7th August 1982, addressed to the Secretary, C & W, Department, the S&GAD forwarded revised statement containing prescribed reporting channel for the officers of the C&W Department. The second countersigning authority is missing from the said statement. It also did not find mention in the fresh proposals for prescribing the reporting channel of officer dealing with ACRs of officers of BS-16 and above belonging to the C&W Department, which were sent to the S&GAD wide C&W Department's letter dated 6-11-1989 for approval. In the third letter, dated 2nd April, 1990, the C & W Department had obviously explained the latest position with regard to the reporting channel to the S&GAD. It was confirmed by the S&GAD in its letter dated 2-5-1990 neither in the existing chart nor in the chart containing pre-proposals, second countersigning officer has been prescribed in respect of Executive Engineers.' Lastly the C&W Department vide its letter, dated 8th May; 1990 addressed to the Chief Engineers, Highway Department and Building Department and Director-General, Design, had stated the legal position that emerged from the above correspondence obviously for their perusal and guidance.

6. Apart from above, we have gone through the whole of the report credited in the name of appellant for the period extending from 21-2-1985 to 31-12-1985. It would appear from the report that the reporting officer (S.E.) has generally rated the appellant as A-One Officer declaring him in pen-pictures "suited for advance Highway Study training abroad." Similarly, the first countersigning officer (Chief Engineer) has depicted the appellant pen-picture as under:- "Mr. Abdul Jabbar Khan is an obedient, hard worker, I will accept him in higher grade."

7. The upshot of the above discussion is that the Secretary, C & W was legally not empowered to report upon the appellant as second countersigning authority and as such the impugned report given by him to the appellant was ultra vires of the said Instructions and hence without any legal effect. Therefore appeal is allowed with no order as to costs and the impugned report is expunged. M.Y.H./287/Sr. S Appeal allowed.