P L D 1995 Supreme Court 556 (PLP)

SALEEM AKHTAR, J.

The appellant with the leave of the Court has challenged the judgment of the Federal Service Tribunal, whereby the appeal filed by the respondent was allowed. .

2. The brief facts are that the respondent from the years 1979 onwards has been the Associate Physician in Grade-18 posted at Federal Government Service Hospital. In February 1992 some Associate Physicians who were junior to the respondent were promoted by superseding him. On coming to know of super session and the reason that he had earned average entries in his Annual Confidential Reports for the years 1975, 1977, 1978 and 1979, he filed appeal for its quashment. It was alleged that these A.C.Rs. were initiated by a BPS-18 officer except the A.C.R. for the year 1983 which was initiated by a BPS-20 Officer arid countersigned lay an officer of BPS-1. It was alleged that for the years 1978 and 1979, the reporting officer was Dr. S.M. Malik who was serving f as Associate Physician Incharge, Cardiology Department in Grade-18 while' the respondent was serving as Associate Physician (Medicine) in Grade-18 and was riot under hire for the entire years 1978 and 1979, although for a period from 5-10-1978 to 5-1-1979 Dr. S.M. Malik had worked as medical Superintendent in Grade-18 and hence the reports written by him were without any authority. This appeal was rejected by the Health Ministry. The respondent filed appeal before the Federal Service Tribunal which was allowed by tire impugned judgment.

3. The Tribunal took note of the fact that the appellant had not produced annual confidential reports impugned in the appeal in, spite `of the fact that there were allegations of manipulation. The Tribunal following its earlier judgment in respondent's case where on same grounds Annual Confidential Reports for the period 1-1-1976 to 31-8-1976 and 1-9-1976 to 31-12-1976 which were adverse in nature, were challenged and quashed. Leave was granted to consider whether objection was filed by the appellant and was not taken note A of and further that as on the A.C.Rs. in question respondent was rated `average` and the same not being treated as adverse remark, no representation or appeal was maintainable.

4. The learned Deputy Attorney-General does not dispute that the allegation that the A.C. Rs for the years 1975, 1977, 1978 and 1979 were initiated by the officer of the same grade as that of the respondent. It is also not denied that tire A.C.R. for the year 1983 was initiated by Grade-20 officer tend was countersigned by an officer of Grade-19. The learned counsel however contended that the Medical Superintendent though in Grade-18 holding a superior post, could initiate the A.C.R of the respondent. The learned counsel has referred to "A Guide to Performance Evaluation " in which paragraph 2.33 provides that the report should be initiated by the next higher officer and countersigned by an officer' higher than the reporting officer, both -being concerned with the work of the officer reported upon. Thereafter, examples have been given. The general rule is that the officer initiating the A.C.R of another officer should be next higher officer and the officer who countersigns it mould be higher than the reporting officer. Further qualification is that both. these officers should be concerned with the work of the officer reported upon. These , conditions did not seem to have been fulfilled while evaluating respondent during the years in dispute. The learned Deputy attorney_ General referred to paragraph 2.62-B where referring to paragraph 2.33 referred above, it is provided that a Deputy Commissioner can initiate reports on all officers working under him. e.g. Additional Deputy Commissioners etc. although such officers may be to the same grade of pay as the Deputy Commissioner. Relying upon this paragraph the learned counsel contended that as Medical Superintendent is overall incharge of the entire hospital, he can initiate reports on all officers war-king under him. Paragraph 2.62-B pointed out by the learned Deputy Attorney-General seems to illustrate the applicability of the principle' laid down in paragraph 2.33 in different situations. Such illustrations merely explain the applicability of the principles for performance evaluation in varying circumstances and are not rules to be applied in every case. It is possible that Mdue to exceptional administrative or technical reasons the initiating officer may be of the same rank and grade but when such situation arises the Government should explain with proper and cogent reasons to justify it. initiation of A.C.R by an officer of the same rank suffers from inherent defects and dangers. The possibility that both the officers-being of the same grade may at any stage be rivals in promotion and thus the reporting officer to secure his future may record adverse remarks, cannot be ruled out. Such dangers, doubts and uncertainties in formulating the career of a civil servant cannot be conducive to a healthy structure of service. Apart from the fact that the reporting officer may be of the higher rank it is also necessary that he as well as the Countersigning Officer should be concerned with the work of the officer reported upon: It is not uncommon that for administrative reason the post of Medical Superintendent is filled in by .Administrators or Managers having administrative experience rather than by senior physicians. The nature of duties performed by a doctor can best be evaluated, particularly things concerning his work, only by a physician. His professional competency cannot be, judged by a person who has no expertise or deep knowledge in that field. The appellant did not place any material on record at any stage to show that the Medical Superintend who had had reported was competent and qualified to evaluate the work of the respondent. T he respondent stated that he is M.R.C.P. having foreign qualification and experience as well. Whereas nothing has been stated about the Reporting Officer by the appellant. As he was of the same Grade, it was the .duty of the Government to explain the circumstances and reasons for such appointment and also that professionally he was concerned with the respondent's work and was competent to evaluate him. In these circumstances and particularly in cases where officers are engaged in duties of professional nature requiring expertise and special knowledge, a person unconnected or having little knowledge and experience in the field can hardly make proper evaluation. The example quoted about the Deputy Commissioner evaluating, the work of Additional Deputy Commissioner .though of the same rank cannot be applied in the present case as the Deputy Commissioner and Additional Deputy Commissioner perform almost the same jobs connected with the administration having no such expertise as is required for the doctors. In these circumstances in our view quashment of A.C.Rs. p challenged by the respondent was legal. The A.C.R. for the years 1983 though initiated by an officer- of Grade-20 was countersigned by an officer of Grade 19 which cannot in any circumstance be justified or held to be legal.

5. The learned Deputy Attorney-General contended that the objection icy the appeal of the respondent were filed but were completely ignored and that the observation of the Tribunal that it had not been filed is not correct. The learned counsel for the respondent has pointed out that the appellants themselves had stated that the objection was being prepared and processed. Be that as it may, the fact remains that the learned Deputy Attorney-General .has not been able to point out how this observation has prejudiced the case of the appellant. In any event this fact does raise n legal question of general importance which should be attended to"

6. The 'learned counsel then contended that in view of Province of 'Punjab v. Sardat Noor Muhammad Khan Leghari (1992 SCMR 1427) appeal was not maintainable because there it has been observed that "as the remarks aver age in respect of overall performance have not been considered and are not considered to be adverse, no representation or appeal lay before the 'tribunal . In Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others (PLD 1992 Supreme Court 144), it was observed that:-- "If there is no adverse report against him and he gets `average reports' they would have to be treated as `generally good' for purposes of move-over. Because a report `average' cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report." The judgment was followed in Federation of Pakistan and others v. it Muhammad Qaisar Hayat Khan (1994 SCMR 544). It is thus clear that >a -report `average` in A.C.R is not to be treated as adverse and therefore appeal E against it will not lie. However, where such remark is communicated as adverse or treating it to be adverse any order is passed against a civil servant he will have a right to file appeal and challenge it. The appeal is dismissed. A.A./F-363/S Appeal dismissed.