1991 PLP (C (PLC(CS))

An average officer, who needs lot of motivation, interest in work and change in attitude to study, before he can come upto earning his promotion. Part II, 1979 1????????? Intelligence and mental alertness ?????????? Below average 2????????? Initiative and drive???????????????????????????????? ????? -do- Part III,1979 Grading ?????????????????????????????????????????????????????????? Below average Fitness for promotion??????????????????????????????????????? Unfit for further promotion has reached ceiling. I would assess him as an average officer. He has not been putting his best efforts in the given duties with the result that output and quality of work is much below normal. I agree, he has reached his ceiling, unless fresh motivation changes his Latitude. Part II,1980

1. Intelligence and mental alertness??????????????????? Below average.

2. Initiative and drive???????????????????????????????????????? ??????? -do- Part III,1980 Grading ?????????????????????????????????????????????????????????? Below average Fitness for promotion??????????????????????????????????????? Unfit for further promotion, has reached his ceiling. Pen-picture-1980.-- Unfit for any administrative post. You are required to please explain as to what you have to say in this connection within a week from the receipt of this letter. Please return the duplicate copy of the letter with your signature thereon in token of having received the letter, through the Director, Health Services, Sindh, Hyderabad. ??????????? Brig. (Rtd.) (SHEIKH MAHBOOB SADIQ), ??????????????????????????????????????????????????????????? SECRETARY TO GOVERNMENT." The learned counsel for the appellant attacked the above adverse observations on various grounds. His main objections were these:

1. That in violation of the Government instructions, the adverse remarks were communicated after a long delay and that the adverse reports for these years were sent together indicating thereby that they were written at one and the same time.

2. That the observations of the countersigning authority are self? contradictory inasmuch as that on one hand the appellant was rated as average officer and on the other hand the output and quality of his work were found below normal so much so that he was held to have reached the ceiling and hence unfit for promotion.

3. That the appellant was not alerted by precounselling as required by Government instructions prior to recording of adverse reports against him.

4. That all the three adverse reports were given by the same reporting officer obviously reflecting his extreme likes and dislikes for the appellant and the appellant was not placed under another reporting officer for further assessment. As for the first objection, it is true that "Instructions About Confidential Reports", hereinafter referred as said Instructions lay down a comprehensive procedure including the time schedule for initiating, finalizing and communicating the A.C.Rs. of Government servants. They enjoy the status of the rules. There is no evidence before us to show that time limit laid down in the said Instructions was not observed in processing the reports under consideration. We are unable to agree with the argument that merely because the adverse reports of all the three years were sent together under a single cover, it would raise a presumption that they were all written and finalized at one and the same time. The learned counsel for the appellant could not show us any authentic material in support of such presumption. Nevertheless it is not disputed that the communication of the adverse reports was much belated. As required by para 34 of the said Instructions the adverse remarks are to be communicated to the person concerned latest by end of June. In the instant case the reports for 1978, 1979 and 1980 should have reached the appellant latest by end of June, of the next following year. But as pointed out above all the three reports were sent to him in November, 1981. In this way non-compliance of the aforesaid para. 34 had taken place. The material point for our consideration is what legal consequences flowed from such non-compliance. Wherever time limit is provided in law or rules, such provision has invariably been held by the superior courts as directory and not mandatory. Some times the prescribed time limit cannot be strictly observed due to the circumstances beyond control of the authorities concerned, though in large number of case non-compliance of the time-bar is attributable to the lethargy of the officials in charge of the matter. As is clear from para. 3 of the said Instructions, while expressing concern about the delay in writing and finalising the A.C.Rs. it has been directed that defaulting authorities should be brought to the notice of Government for appropriate disciplinary action. Thus, the said Instructions provide for taking punitive action against those Government functionaries who are found responsible for causing the delay in process of A.C.Rs. There is however no provision throughout the said Instructions to render the belated adverse reports nullified on the ground of the delay. On the contrary our attention was drawn to the Government's Circular No. S.O.V.III- REGS(S&GAD)-8/37/72, dated 27-9-1975 wherein it was 'clarified that mere omission to communicate the adverse remarks within the prescribed time limit will not have the effect of washing off such remarks and they shall be equally effective as though communicated within time. No doubt this clarification has become the part and parcel of the said instructions. Accordingly even the said Instructions would not permit the expungement of the adverse A.C.R. on the ground of its late communication to the person concerned. Apart from above, the question of late communication of the adverse A.C.R. came up for consideration before this Tribunal in the case reported as Krishan Kumar Shardah v. Chief Secretary, Government of Sindh 1989 P L C (C.S.) 47 wherein it was held: "Of course late communication of the A.C.R. is deprecated on the ground that it loses its effect with passage of time but it cannot be taken as the reason to expunge the same. The expunction of report has obviously the effect of washing off such report. In our opinion existence of the report, of whatever nature, in the personal file of the official concerned is different from the effect that such report carries in relation to terms and conditions of the said official. Whatever may be the effect of the adverse report given to the appellant which can be decided in the light of circumstances obtaining at relevant time, we see no reason to expunge the same." We see no reason to take a view different from the one we have expressed in the above reported case. The next argument advanced on behalf of the appellant was that the observations of the countersigning authority were self-contradictory We have carefully considered this argument which apart from being incorrect is without any legal consequence. Of course the countersigning authority while rating the appellant as an average officer has expressed his dissatisfaction with regard to the output and quality of his work which he found to be below normal. Consequently he was of the view that unless the appellant made efforts obviously for the necessary improvement he had reached the ceiling and was unfit for promotion. We see no inconsistency in the observations of the countersigning authority. Even otherwise the alleged inconsistency is of no legal consequence. In any case the adverse part of the said authority's observations reflects adversely on the appellant who would like it to be expunged in the same manner in which he has sought the expunction of the adverse remarks of the reporting officer. As regards the argument of precounselling, the stand taken by the official respondents is reflected in the written statement (Grounds--part) filed on their behalf. It is stated that precounselling could be given even verbally and the same had been done in the appellant's case. Even otherwise this argument has not much force for the reason that it was not for the first time that the appellant was burdened with the adverse reports for the three years under consideration. Admittedly he had earned adverse reports even for the years 1973 and 1976. Of course they too were communicated to him late but there is no indication on record that he got them expunged or that he had made any representation/appeal for their expunction. It goes without saying that appellant's A.C:Rs. for the years 1971, 1974, 1975 and 1977 were not traceable in the concerned Directorate of Health. Their disappearance and consequent non-availability in the relevant office appears to us rather mysterious. The appellant's grievance is that they had been deliberately misplaced or withheld in order to deprive him of his promotion. But the possibility of the appellant's involvement in misplacement of the A.C.Rs. also cannot be altogether ruled out, particularly when, as pointed out above, he had adverse reports for at least five years to his discredit. This brings us to the fourth and the last argument of the learned counsel for the appellant that all three adverse reports were given to the appellant by the same reporting authority and that as required by the said Instructions he was not placed under another reporting authority for second assessment. The appellant has taken this plea in Ground `g' in his memo of appeal. The language used in expressing this ground is rather vague inasmuch as that it is not specifically mentioned that all the three adverse reports had emanated from any particular reporting authority whose name has not even been disclosed. However, the plea in this regard has been vehemently denied in the written statement filed on behalf of the official respondents. In these circumstances it was for the appellant to have established from the material available on record that one and the same reporting authority had initiated all the three adverse reports and further that one and the same countersigning authority had approved the said reports. For the sake of argument even if we believe the above argument to be true, still we will not be willing to expunge the adverse report merely for the reason that I the appellant was not placed under another reporting authority for second assessment. In this connection it was necessary for the appellant to satisfy us that both the reporting authority and countersigning authority were prejudiced against him. But he has not uttered a word against them. He has neither disclosed their names nor has mentioned anything about their ill-will or animosity against him. In absence of such material, we cannot persuade ourselves to hold that the adverse reports under consideration were the reflection of the biased minds. Not only reporting authority has written against the appellant but the said authority's views have been approved by the higher authority namely the countersigning authority. As discussed above there is no justification to hold the assessment of the appellant made by both the said authorities as tainted with prejudice. Our finding is confirmed by overall A.C.R. record of the appellant, which as has been shown above, is far from satisfactory. For the foregoing reasons we dismiss the appeal with no order as to costs. M.Y.H./230/Sr.S ??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.