1989 PLP (C (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).‑‑Mr. Jamil Yusuf, the appellant, has come in appeal against the impugned order No. 105/14/PA; ML&C, dated the 8th April, 1985 whereby his departmental appeal against the adverse remarks contained in his ACR for the year 1984 was rejected by the competent authority.

2. The learned counsel for the appellant argued and contended that the ACR of the appellant for the year 1984 was written by three officers. The reporting officer and the countersigning officer who were directly concerned with the work of the appellant gave him a good report and recommended him for promotion. However, the second countersigning officer, respondent No. 2 who was not directly concerned with the performance of the appellant has recorded adverse remarks in the A.C.R. for the year 1984 which are without any justification or reason.

3. It was further submitted by the learned counsel for the appellant that the circumstances which led to the recording of adverse remarks in the A.C.R. of the appellant were clearly mentioned in the departmental appeal dated 6‑8‑1984 but it appears that the competent authority did not apply his mind seriously while rejecting his appeal. It was submitted that respondent No. 2 should have recorded the adverse remarks only if he had an opportunity to oversee the performance of the appellant. During the period under review the respondent No. 2 did never have the occasion to come in contact with the appellant. The adverse remarks recorded, by him are, therefore, the result of premeditated malice against the appellant. A matter of mere personal ill‑will should not have been allowed to mar the service career of the appellant by respondent No. 2: The respondent No. 2 has recorded adverse remarks on the integrity of the appellant both intellectual and in financial matters without giving any single instance which might have led him to form this opinion. Moreover, his remarks regarding further retention in service are also uncalled for. To declare the appellant unfit for retention in service before he has completed the minimum qualifying service of 25 years is against the spirit of the relevant rules. He could have exercised his right to record such remarks only if the appellant had completed 25 years of qualifying service. The appellant joined service m December 1964 and so had only 20 years of qualifying service at the time of recording these remarks by respondent No.

2. This is a clear indication that respondent No. 2 had gone out of his way to harm the appellant. It was, therefore, strongly contended that the adverse remarks recorded in the A.C.R. for the year 1984 may be ordered to be expunged being untenable under the existing rules.

4. The learned counsel for the State challenging the contentions of the appellant submitted that the circumstances of the personal enmity as stated in his departmental appeal were totally irrelevant because they did not pertain to the period under review. The appellant has been in the habit of blaming the head of the respondent‑department through out his career. 1n the A.C.R. for the year 1971 the appellant was assessed for his integrity, sense of responsibility and moral standard as `Below Average'. His integrity was again assessed as poor in the A.C.R. for the year 1976. The appellant was also then considered unfit for further promotion. Respondent No. 2 assumed the charge of his office in 1977 by which time the appellant had already been condemned both for his integrity and sense of responsibility. The appellant had been considered unfit for further promotion by D.P.C. and, therefore, this state of affairs has rendered the appellant completely frustrated. The circumstances of the enmity as stated by the appellant in his departmental appeal were merely the result of the figment of his imagination. The competent authority rightly rejected the appeal.

5. It was further submitted by the learned counsel for the State that a close analysis of the A.C.R. for the year 1984 would reveal that the reporting officer and the countersigning officer have also assessed the appellant only Average (B) for integrity and financial stability which is considered as an adverse remark. Therefore, to all fairness it could be stated that respondent No. 2 has merely recorded the same in his remarks which are reproduced below: ‑ "An average officer looking from any standard. His integrity both intellectual and in financial matters is doubtful. Because of continuous supersession by his juniors and failing eyesight he is completely frustrated and is unfit for further retention in service."

6. It was, therefore, submitted by the learned counsel for the State that assessment of respondent No. 2 is exactly the same as that of the reporting officer and the countersigning officer. It was contended that respondent No. 2 has expressed his opinion on the desirability of the retention of the appellant in service after 25 years of qualifying service, which is based on his overall performance, and it speaks for itself. It was strongly contended that there is nothing in the recorded remarks in the A.C.R. for 1984, which could be termed as premeditated malice. The service record of the appellant is a clear indicator of his performance which, to say the least, has been throughout unsatisfactory. It was further submitted that remarks as recorded by respondent No. 2 were based on facts and actual performance of the appellant. Respondent No. 2 had the occasion to observe his performance both through the normal processing of the cases and also by his personal visits during the year. In view of the above facts it was submitted that the impugned order rejecting the departmental appeal of the appellant may be upheld.

7. The upshot of the above discussion is that we reject the appeal regarding expunction of adverse remarks as recorded by respondent No. 2 with regard to integrity both intellectual and financial matters. However, we direct that the remarks declaring the appellant unfit for further retention in service be expunged as uncalled for at this stage. The appellant has not yet completed 25 years of qualifying service when such remarks could only be maintainable.

8. Ordered accordingly. M.Y.H./418/Sr.F Appeal partly allowed.