2020 PLP (C (PLC(CS))

IJAZ ANWAR, MEMBER.

Through this single judgment, this Court shall dispose of all the four appeals filed by the appellant, Syed Asghar Shah, Additional District and Sessions Judge for setting aside/expunging the adverse remarks recorded by Honourable the Administration Committee of Peshawar High Court, Peshawar in appellant's Annual Confidential Reports, for the years 2006, 2007, 2008 and 2009.

2. Brief facts leading to filing these appeals are that Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate in the year, 1998. Subsequently, he was promoted as Senior Civil Judge and then as Additional District and Sessions Judge. The respondent communicated adverse remarks recorded in appellant's Annual Confidential Reports for the years 2006 to 2009 vide separate letters/orders dated 23.12.2010. The appellant at the relevant time of communication of adverse remarks had already been compulsory retired from service vide Notification dated 29.10.2010. The appellant filed representation before the respondent but it could not be decided within the statutory period of ninety days. As such, the appellant challenged the said remarks by filing appeal before this Tribunal. The respondent submitted their separate comments/reply to the appeals in hand.

4. Arguments heard and record perused.

5. Perusal of the record reveals that four consecutive ACRs for the period 2006 to 2009 were conveyed to the appellant on 23.12.2010, containing the adverse entries it being relevant are reproduced as below:- Annual Confidential Report for the year, 2006

1. Integrity Stinking

2. Pin-Picture Bleak

3. Overall grading Below Average

4. Fitness for promotion Not fit for Promotion. He, indeed has been compulsory retired. Annual Confidential Report for the year, 2007

1. Integrity Stinking

2. Pin-Picture Bleak

3. Overall grading Below Average

4. Fitness for promotion Not fit for Promotion. He, indeed has been compulsory retired. Annual Confidential Report for the year, 2008

1. Integrity Stinking

2. Pin-Picture Bleak

3. Overall grading Below Average

4. Fitness for promotion Not fit for Promotion. He, indeed has been compulsory retired. Annual Confidential Report for the year, 2009

1. Integrity Stinking

2. Pin-Picture Bleak

3. Overall grading Below Average

4. Fitness for promotion Not fit for Promotion. He, indeed has been compulsory retired. Prior to the communication of Adverse ACR, the appellant was served with Show cause Notice dated 02.10.2010, containing the following allegations: "That you have persistent reputation of being corrupt throughout; That your record speaks volumes about your ill reputation which includes adverse entries in your PERs regarding your integrity during your service career; That your life style shows that you are living beyond your ostensible legal means." The reply to the show-cause notice was not found satisfactory, ultimately vide order dated 29.10.2010, the appellant was awarded major penalty of compulsory retirement from service. His appeal against the order of compulsory retirement has since been partially allowed by this Tribunal vide order dated 15.04.2019. Reference to show-cause notice in the instant appeal is in the context that one of the allegations was that "record speaks volumes about your ill reputation which includes adverse entries in your PERs regarding your integrity during your service career." In order to examine the overall service record of appellant, we have also requisitioned the original Annual Character Roll of the appellant. On perusing it transpired that ever since appointment of the appellant in the year 1998 till 31.12.2005, his overall PERs were generally good except the one conveyed vide letter dated 24.09.2007 in which his average ACR was treated as adverse and conveyed to the appellant. The same was subsequently expunged by the Administration Committee of the Peshawar High Court holding that Average ACR cannot be treated as Adverse. The Original Annual Character Roll of the appellant also transpired that long after his compulsory retirement, the impugned adverse entries for the period 2006, 2007, 2008 and 2009 were recorded on 06.12.2010. Similarly, in all the adverse ACRs stereo type words were used i.e. in the column of Integrity, it was reported as 'Stinking', in the column of pen picture, 'bleak', while in the column of Area and level of professional expertise, it was reported as 'he has the expertise but used it in negative way.'

6. The Honourable High Court Peshawar has not framed its own rules/instructions about writing of the Annual Confidential Reports and is following ACR Instructions of the Provincial Government formulated by Establishment and Administration Department. The above remarks were conveyed after a considerable delay, while according to the Performance Evaluation Reports' instructions, Parts I and II of the PER should be duly filled and dispatched to the Reporting Officer not later than the 15th of January. The Reporting Officers should forward the report to the Countersigning Officer within two weeks of receipt after giving their views in Part III. The Countersigning Officers should finalize their comments in Part IV within two weeks of receipt of PER. The Second Countersigning Officers, if any, should also complete their assessment within a period of two weeks.

7. Moreover, in accordance with Chapter 5.1 the adverse remarks must be communicated without fail to persons concerned well before the end of June each year. In view of the importance of the adverse remarks which certainly affect the service career of the civil servant, ACR Instructions insisted for timely communication of the report containing adverse remarks. It is pertinent to mention here that though the august Supreme Court of Pakistan in its judgment reported as 2004 PLC (C.S.) 236 'Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others' termed the Punjab ESTA Code Volume-II pertaining to delay in writing of Annual Confidential Report as merely directory in nature, considering it that the delay will not vitiate the adverse remarks. However, in the case in hand, there is no allegation regarding the judicial work of the appellant, while perusing the Annual Confidential Report, we find that the targets given to the appellant have already been achieved but the allegations are regarding conduct of the appellant. Admittedly, conduct of a judicial officer can't change at spur of moment but opinion regarding conduct of a judicial officer can be formed keeping in view his overall service career. The record is silent about stinking integrity of the appellant, similarly without going through the overall record of the appellant in the pen picture prospects of improvement cannot be commented as 'bleak'. We also find that there is marked difference between ACR Instructions of Government of Punjab and that of the Government of Khyber Pakhtunkhwa. ACR Instruction 5.2 of the Khyber Pakhtunkhwa pertaining to timely communication of adverse remarks are not directory in nature because delay in timely communication of remarks is considered as misconduct on the part of the reporting channel. There is yet another very important aspect of the case, the Administration Committee commented upon the conduct of the appellant on 06.12.2010 when the appellant was already compulsory retired from service. On the one hand it gave an impression that since there was an allegation levelled to this effect in the show-cause notice, therefore, it was prepared latter to reinforce the allegations and on the other hand how can the Administration Committee of the High Court in the year, 2010 comment upon the PER of judicial officer pertaining to the years 2006, 2007, 2008 when at the relevant time it was not supervising the work and conduct of the appellant. This Tribunal in the case of 'Zahid Mehmood v. Peshawar High Court through Registrar' (2013 PLC (C.S.) 570) while dealing with similar situation held as under: "

21. It is observed with great concern that in the year, 2006 it was an era of "A" whereas the impugned ACRs of the appellant are signed and communicated in the era of "D" i.e. in the year, 2010. The authenticity, correctness and maintainability of these ACRs are questionable, although not agitated by the appellant, that is why the Instructions regarding the performance evaluation report were formulated and introduced and if at all the same would have been followed, the present chaos and confusion would not have been arise.

22. Depending on the facts and circumstances, longer unexplained delay may adversely reflect upon the authenticity of such adverse remarks. This principle, therefore, which can safely by 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 who failed to convince the court and as such in this background these remarks for the period 2006 to 2009 communicated after unreasonable delay are completely vitiated." 7(sic) Keeping in view the above peculiar facts and circumstances of the case, we find that Performance Evaluation Report plays an important role in the career planning of judicial officer and in accordance with the instructions of Performance Evaluation Report compiled by the Services and General Administration Department, Civil Secretariat, Peshawar, the ACRs should give a clear picture regarding the work and conduct of the officer reported upon and it should be as objective as possible, as circumspect as possible, be clear and direct, not ambiguous or evasive and to avoid exaggeration and gross understatement. While the Adverse ACRs, so conveyed to the appellant lacked in many aspects as per the above ACRs Instructions.

8. For the reasons stated above, this Tribunal finds that the communication of adverse remarks was not supported by the overall service career of the appellant, besides it were in violation of the ACR Instructions, therefore, it cannot be sustained. This and the connected appeals are allowed and the impugned adverse remarks contained in ACRs for the years 2006 to 2009 are hereby expunged. ZC/289/P Appeals allowed.