1991 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN):

By this appeal, appellant Mehmood Alam Jat, has sought expunction of the adverse A.C.R. given to him for the year ending 31st December, 1984. During the said year he served in the Hyderabad District first, as Head Master, Government High School No. 2, Tando Jam from 1-1-1984 to 6-8-1984 and. then as Head Master Government High School Pir Jhando from 22-10-1984 to 13-12-1984. The impugned A.C.Rs were received by the appellant from the District Education Officer, Badin vide his letter No. 4243, 1985-86, dated 4-3-1986. He lost no time in making representation for expunction the remarks. However he was informed by the Director, School Education. Hyderabad Region by his letter dated 12-3-188 that the Government of Sindh, Education and Culture Department had upheld the impugned remarks earned by him. Thereafter the appellant preferred appeal from the Govt's above order, but the same was returned to him with advice that further appeal was not competent. Faced with that situation, he came to this Tribunal in Appeal No. 45/1988 which was ultimately disposed of having become infructuous vide the Tribunal's order dated 14-3-1989. The said order was passed on the request of the appellant's counsel, made in the light of the Govt's Order No.S.O.(E-IV)M-118(M)/86, dated 25-2-1988 whereby the Govt's earlier decision upholding the adverse remarks given to the appellant was kept in abeyance till further orders. However the case stood ,reopened as once again the appellant was informed by the aforesaid Director, School Education by his letter dated 7-10-1989 that the adverse remarks earned by him during the year 1984 had been upheld. On receipt of the said letter appellant filed the instant appeal on 5-11-1989. We heard the arguments of the learned counsel for the appellant and the learned A.-G. We also went through and carefully considered the written material available on record. It may perhaps be pertinent to reproduce the contentious remarks which read as under:-- An ineffective The School showed insignificant progress during the year under report" The above remarks were admittedly given to the appellant by Mr. Muhammad Saleh Gopang, the then District Education Officer, Hyderabad. The contention raised on behalf of the appellant was that the adverse report given to the appellant was the result of the misunderstanding created in the mind of the above officer by one Mir Shah Nawaz Talpur, the reporter of the newspaper Daily Jung. Of course excerpts of some newspapers have been placed on record to indicate that the students were facing difficulties in getting admission in the Government High School No.2 of Tando Jam. It was also true that the appellant was the Head Master of the said School when such reports appeared in the newspapers. We have gone through the press reports minutely but there is nothing in them to personally link the appellant with the alleged racket. Moreover all the noise raised over the question of the admissions was set at rest by the press statement admittedly issued by the Chairman, Town Committee, Tando Jam. While declaring the press reports about admissions as absolutely untrue, the Chairman gave the appellant certificate of being above sectarian considerations. In any case we do not find a trace of evidence to the effect that the reporting officer got prejudiced against the appellant owing to above events. The appellant having failed to establish motive against the Reporting Officer for adverse report given to him it could not be automatically assumed that he therefore deserved such report. In our opinion the report had to be examined on its own merits. It would appear that the report comprises two parts: one part of the report relates to the performance of the School the appellant presided during the year under consideration. As reproduced earlier, the performance of the School for the year under report was assessed as "insignificant progress." To rebut this remark, the appellant has produced a copy of the result sheet of the S.S.C. Exam. Part I & Part held in the year under discussion. The authenticity of this document has not been questioned. It has been clearly shown in the aforesaid result sheet that the School headed by the appellant had achieved a brilliant result of 81% in respect of class X which is popularly known as Matriculation Class. Obviously such result of the School can by no stretch of imagination be rated as insignificant. Thus the observations made in the A.C.R. that "the School showed insignificant progress during the year under report" were inconsistent with the result earned by the School referred to above and cannot possibly be sustained and therefore they are liable to be expunged. Coming to the other part of the A.C.R., all what has been written under the caption "Pen Picture" is "An ineffective". This remark is too ambiguous to be assigned any clear meaning. It is not known in what respect the appellant was found to be ineffective. This question arises in our mind particularly when the appellant in our opinion, had proved far more effective at least in producing one of the best examination results for the year in question. In a case like this it was for the Reporting Officer to justify his remarks in the context of the circumstances of the case. But no such justification or explanation was forthcoming from the said officer. On the contrary we have noted with interest the Government's hesitation to approve the adverse report of the Reporting Officer. No doubt when the appellant moved his first ever representation for expunction of the impugned remarks, it was rejected and the said report was affirmed. In this connection reference may be made to the letter of the Director, School Education dated 12-3-1988, addressed to the appellant. But subsequently during pendency of the appellant's earlier Appeal No.45/1988 before this Tribunal, the appellant was informed by the Director, School Education's letter dated 3-11-1988, that the Government's order communicated to him under the said Director's letter dated 12-3-1988 had been kept in abeyance until further orders. Manifestly it was a novel procedure adopted in the case. The obvious effect of the subsequent communication was recision of the earlier order. Precisely for the said reason that the appellant's learned counsel not only produced the latter communication before this Tribunal but also requested to dispose the pending appeal as having become infructuous. Agreeing with the learned counsel, this Tribunal passed order dated 14-3-1989 disposing the appellant's earlier Appeal No.45/1988 as having become infructuous. It seems the Reporting Officer was in the meantime required to review his adverse report given to the appellant. This is clear from the letter of the Reporting Officer (Mr. Muhammad Saleh Gopang) dated 3-1-1989. As per this letter which was obviously written after lapse of about five years from initiation of impugned A.C.R., the Reporting Officer found no reason to review his remarks at such belated stage. Notwithstanding the refusal of the Reporting Officer to review his earlier report, it was crystal clear that unless the Govt. was convinced that the impugned A.C.R., was not based on sound material, they would have neither kept their earlier order approving the said A.C.R, in abeyance nor would have approached the Reporting Officer for review of the A.C.R. It was after the Reporting Officer declined to budge from the earlier stand that once again the case was revived and the approval was accorded by the Govt. vide the letter of the Directorate of School Education dated 7-10-1989. The Govt's hesitation reflected in the above documents spoke volumes and particularly was indicative of the fact that they were not fully convinced about authenticity of the A.C.R., assigned to the appellant. Moreover it is difficult for us to endorse the procedure observed in his case as legally correct. Once the Govt's order withholding their earlier order of upholding the A.C.R, was passed, it amounted to recall of the said earlier order. Having taken such step, the Govt. could not pass the same order over again without furnishing legal justification. Merely because the Reporting Officer refused to review the A.C.R., written by him provided no fresh ground, much less the justification, to the Govt. to reopen the case and approve the impugned A.C.R. Even on merits we are not satisfied that remarks referred to above were called for. We are fortified in our opinion by the 30 years service record of the appellant in the reports he had earned before and after the impugned A.C.R. The same Reporting Officer had of course give the appellant adverse report also for the preceding year of 1983 but it was conceded at the bar that despite efflux of more than six years the appellant's representation for expunction of the said report had not yet been disposed of. Accordingly even that report cannot be used against the appellant as being adverse. We have carefully perused the entire A.C.R. file of the appellant. Excepting the above two reports recorded by the same Reporting Officer namely Muhammad Saleh Gopang, his remaining service record is quite clean. He has been rated even as A-1 officer in some respects in some years. Apart from above it was also submitted on behalf of the appellant that as required by the Govt's instructions, the appellant was not alerted by way of counselling him before the impugned A.C.R. was recorded against him. In reply to this contention the learned A.A.-G invited our attention to the letter dated 3-1-1989 written by Reporting Officer to the Director School Education wherein the Reporting Officer had disclosed that he had sounded the verbal counselling to the appellant. The learned counsel for the appellant argued that oral counselling was immaterial as it did not fulfil the legal requirements. In support of his argument he placed reliance on the case reported as Majidullah v. NIRC P L D 1976 Kar. 207 wherein their Lordships of Sindh High Court took the, view that judicial and quasi-judicial orders must be in writing and that oral orders did not carry any sanctity. Even otherwise we are of the view that since counselling is to be given in accordance with the Govt's instructions which have the effect of rules, it must be given in writing. Since written counselling was admittedly not given prior to the recording of the impugned A.C.R. the said A.C.R. was without legal consequence. In the case reported as Panalal v. Secretary Education Department 1989 P L C (C.S.) 508 it was held by this Tribunal as under:-- "It is clear from the above instructions that before recording formal adverse report about any official, the Reporting Officer is required to sound the said official a note of caution advising him to mend his defects. It is after such counselling is unheeded by him that adverse report is recorded in respect of the defaulting official. The record is absolutely silent if the appellant was even tendered such advice. The learned Government counsel after consultation with the departmental representation and the record he had brought to assist the said counsel frankly conceded that there was not a trace of evidence suggesting that the appellant was counselled in terms of above instructions, prior to recording of the adverse report under consideration. We are of the view that non-compliance of the said instructions did not justify the recording of the adverse report in question." The upshot of the above discussion is that the impugned A.C.R., was not justified and as such it must be expunged. The appeal is accordingly allowed without any order as to costs. M.Y.H./237/Sr.S Appeal allowed.