1988 PLP (C (PLC(CS))

CHAUDHARY ABDUL RASHID (MEMBER).--This is an appeal under section 4 of the Punjab Service Tribunals Act, 1974 filed on 2-4-86 by Mr. -Muhammad Yousaf Shami, Lecturer in Mathematics, Government F. C. College, Lahore in which he has impugned the order dated 2-3-86 of the D.P.I. (Colleges), Punjab, Lahore. He has impleaded Director of Education (Colleges) Lahore Division, Lahore and DPI (Colleges) Punjab Lahore as respondents. The appeal was admitted to regular hearing on 7-5-86 and has been contested by the respondents.

2. The facts of the case are that the following adverse remarks in the confidential report for the period from 16-3-70 to 30-9-70 were conveyed to the appellant vide memo. dated 12-3-1971:

1. Column 6 Quality and output of work Below average

2. Column 7 Perseverance & devotion to duty -do -

3. Column 16 Whether the prescribed courses were finished in time He delivered very few lectures to his classes

4. Column 17 Contribution towards maintenance of discipline and order in the institution He had no interest for such contribution

5. PART III - PEN PICTURE. During the period under report he did not take interest in any activities of the College and generally remained away from the college on one pretext or other to seek his selfish ends. The appellant represented against these on 30--1-7 1 to Director Education, Lahore Region Lahore and receiving no reply reminded the DPI Lahore on 16-4-74. The DPI (Colleges) conveyed the decision vide Memo dated 2-3-86 that representation has been considered and filed. Hence the present appeal.

3. The learned counsel for the appellant has raised the point that the actual period of report is less than three months if the following leave periods etc. are excluded from total of 6 months 14 days: (a) Spring holidays April 15 days. (b) Leave 7-5-1970 to 19-5-1970 13 days. (c) Leave 1-7-1970 to 18-7-1970 18 days (d) Summer vacations 19-7-1970 to 30-9-1970 2 m 12 days. (e) Board/ Uni/House examination 1 m 4 m 28 days. It is argued that according to pars l of Annexure 1 to Chapter VII of CSR Punjab Vol. I, Part I, the Government servants of vacation Departments, as is the case of appellant are permitted to be absent from duty and, therefore, this period has to be excluded. Reliance is placed on Note below para 4 of the Instructions about confidential reports which is to the effect that the period spent on leave of any kind (except casual leave) is to be excluded and only the actual period spent on duty in which the work, performance and conduct of the Government servant reported upon has been seen by the Reporting Officer is to be included. It is argued that the work and conduct of the appellant during above periods was not seen by the Reporting officer and these periods are therefore to be excluded from the total period of report in question.

4. The learned District Attorney has submitted that summer vacation and spring holidays are not treated as leave under the leave rules and the appellant drew duty pay during these periods and not leave salary. It is, further argued that it is not a total closure of colleges and some periods during vacation are spent on official duty, Moreover, there is difference between vacation and leave and only leave period is excluded from period of report. It is further argued that the periods spent on examination duty are considered as on duty under the Reporting Officer. In the circumstances the report is for a period of more than three month and has been validly written.

5. We have given our anxious thought to the arguments from both sides. The period of sanctioned leave is not to be counted and there is no dispute on this point. The issue whether the period spent on conduct of examinations is to be excluded has been examined by us. The position is that the work and conduct of the civil servant is seen by the Reporting Officer indirectly, if not directly, during such periods. If there is any complaint about his work it is naturally reported to the Reporting Officer. If the argument of the learned counsel for the appellant is accepted then the tour days of civil servants working in the Secretariat and Directorates will have to be excluded, because the official work is not done at the headquarters and under the direct supervision and control of the Reporting Officer. This is not logical. The civil servant is on duty, getting duty pay, performing official duty and the Reporting Officer has to give his views about these matters is ACR. If he is not entitled to do this, then who else would record the report? Does that mean that he is not at all answerable and responsible as a public servant for these duties? The reply is clearly in negative. We are; therefore, of the considered view that such periods are not to be excluded for the purpose of writing of ACR.

6. Now we take up the point of inclusion or otherwise of periods of vacations (Summer, Spring and Winter). The relevant provisions in instructions and CSR for the determination of the issue are reproduced below: (a) Para 4 and Note there under of Instructions about confidential reports. The minimum period during which an officer is expected to form a judicious opinion about the work of his subordinate for the purpose of writing a report on his work and conduct has been prescribed as three months. The report recorded in respect of period less than the minimum prescribed period should be ignored. Note: The period spent on leave of any kind (except casual leave) shall not be included and the said minimum period of 3 months will mean and include only the actual periods spent on duty in which the work, performance and conduct of the Government servant reported upon has been seen by the Reporting Officer. (b) Rule 8.60 of CSR (Punjab), Vol. I,Part I Unless the contrary appears from the context vacation counts as duty and not as leave. A competent authority may specify the departments or parts of departments which should be treated as vacation departments and the conditions in which a Government servant should be considered to have availed himself of a vacation. Note: The orders issued under this rule are given in the Annexure to this section. (c) Para 1 of Annexure referred in rule 8.60 CSR. A vacation Department is a department or part of a department to which regular vacations are allowed during which Government servants serving in the department are permitted to be absent from duty.

7. From the perusal of above provisions of CSR- it is clear that the vacation though a period off-duty yet it is not treated as regular leave. The casual and quarantine leave is also off-duty and is not treated as regular leave (Rule 8.61 of CSR). The casual leave period is included in confidential report period according to the Note under para 4 of Instructions. Vacation on the same analogy should also be included because it is treated as duty under rule 8.60 of 1CSR quoted above. One gets duty pay and not leave salary for this period. The argument of the learned counsel that this is not the actual period spent on duty, has also been examined. It is repelled for the following reasons: (a) The number of civil servants availing the facility of vacations in the Departments of Education, Technical Education, Medical Education, Judiciary etc. is very large and runs into lacs. The Government would have made a specific provision in the instructions if this period was to be excluded like earned leave. The absence of specific provision is significant and cannot be a case of inadvertant omission. (b) The judgment of work, performance and conduct of a teacher could be made on the basis of short term day-to-day work as well as on long term basis on the basis of results of students in the University, Board, Education Department and house examinations. For the short term work, the period of three months actually spent on duty is relevant. For long term basis the actual period spent on duty has to be notionally extended to cover the vacation period also because the results of teaching are, in many cases, announced during vacations. On the basis of these results of F.A/F.Sc., B.A/B.Sc. etc: the Reporting Officer has to form his opinion in respect of work performance Moreover, Board/ University examinations are also held during vacations and teachers are detailed for duties. As discussed earlier, the conduct and performance during these examinations may also become subject-matter of the report. (c) The nature of job in the colleges of the Education Department is different from other Government Departments. The periods of holidays and off duty are interspersed during a calendar year. These are spring holidays, sports, annual house examinations, Fridays, Gazetted holidays, preparation holidays, Board/ University examinations, summer vacations, admissions, closures on account of disturbances, casual leave, earned leaves, winter vacations etc. On the average a lecturer teaches the classes for about 180 days in a year. If summer vacations and other off duty periods were to be excluded, then the type of case in hand where the incumbent or his reporting officer is transferred during or immediately on conclusion of vacation will remain unreported upon. There will be a vacuum in his record. This cannot be the intention of the Instructions.

8. We are, therefore, of the considered view that the vacation period should be counted for determining the minimum period of three months for which a confidential report can be written. In this view of the matter the report period of the appellant is more than three months and his report has, therefore, been rightly written.

9. Now coming to the merits it is submitted by the counsel for the appellant that the Director of Education Lahore has recommended expunction of the remarks.

10. On the other hand the learned District Attorney has argued that the recommendation of Director Education Lahore is of no avail to the appellant as the report in hand pertains to the period when the appellant was posted at Rawalpindi. Therefore, the Director Education competent to deal was Director Education, Rawalpindi and not the Director Education Lahore. The learned counsel for the appellant submitted that the recommendations of the Director Education, Lahore in other appeals were accepted by the Tribunal and the judgment was maintained by the Honourable Supreme Court We have given our anxious consideration to the arguments addressed on behalf of the parties. The Honourable Supreme Court while declining petition for leave to appeal made following observations: "In these petitions for special leave to appeal the petitioners are aggrieved by the orders dated 28-10-86 of the Punjab Service Tribunal expunging the adverse remarks recorded in the annual confidential reports of the respondent. The orders of the Tribunal are based on a finding that the remarks in question were biased. In support of these petitions, it is urged by the learned Additional Advocate-General that the Tribunal has acted, on the comments of the Director of Education, Lahore Region whereas the more appropriate authority to give comments was the Director Education Rawalpindi Division. We find no merit in this contention, for it does not appear that before the Tribunal the Education Department had disowned the comments of the Lahore Directorate. In any event no substantial question of law of public importance arises in these petitions. Leave to appeal is refused.

11. The reference to the judgment of the Honourable Supreme Court is of no avail and the recommendations of the Director Education at Lahore are not relevant. It is interesting to note that while dictating judgment we found that the so-called recommendations by the Director Education have not been placed on the file. The respondents in the parawise/written objections have denied assertion of the appellant, contested the appeal and prayed for its dismissal. This way the arguments on behalf of the appellant were just in the air and without basis. Now coming to the adverse remarks it was vehemently argued on behalf of the appellant that the adverse remarks recorded in the other five annual reports were expunged by this Tribunal in three appeals. Present remarks are also without basis. We have gone through copies of the earlier judgments. We find that the same is not relevant at all. We have asked the learned counsel for the appellant as to the Reporting Officer and we were informed that Reporting Officers who wrote the impugned ACRs in four appeals were different. Therefore, we are not prepared to believe that whole of the Department went hostile to the appellant. The argument that in any case the appellant has served for very short period is of no relevancy and avail as far as remarks recorded in columns 6 and 7 are concerned as well as in the pen-picture column. These remarks even if the appellant served over 3 months and even if the period was less than 3 months still the remarks were fully justified. The remarks are strictly the observation of the reporting officer, and we have no material whatsoever to dislodge the same.

12. The respondents have taken up the plea that although the representation of the appellant was time-barred against adverse remarks yet the same was decided by the Department on merits. This was pressed into service only to show that the appellant was given fullest opportunity.

13. The upshot of this discussion is that we partially accept this appeal and expunge the remarks recorded in columns 16 and

17. In respect of remaining remarks, the appeal is dismissed. There is no order as to costs. S.Q. /185/Sr.P Appeal partly accepted