1987 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑Appellant Rana Abdul Waheed who is Assistant Director, Fisheries, Sind has filed this appeal, seeking quashment of the orders conveyed to him by Government's letter NO.SO(A.11) 6(8)/85 Fisheries, dated 23rd June, 1985. By this letter the adverse entries recorded in his A . C . Rs . for the years 1977, 1978 and 1979 were communicated to him, with an advice that he should make efforts to remove the defects pin‑pointed in the said entries. After hearing the learned counsel for the appellant and the learned A . A. G . , the appeal was allowed for reasons to be recorded separately by short order dated 18‑11‑1986. Following are the reasons in support of the said short order. The main argument advanced' on behalf of the appellant was that the adverse entries were recorded in his A. C . Rs. , as for back as 1977 to 1979, but they were conveyed to him after lapse of 6 to 8 years and in the meantime they had already lost their effect. It was further contended on his behalf that the appellant could not be expected to furnish proper explanation as regards such delayed reports as he could not say what existed at the relevant time, which gave rise to the adverse reports in question. It was also submitted by the learned counsel for the appellant that the adverse entries recorded in the particular years were valid only for those years. In support of his argument he submitted that the Punjab Service Tribunal has taken the above view in scores of cases. The learned counsel for the appellants attacked the adverse reports also on the ground of mala fide as according to him they were the result of the bias of the authorities concerned. On the other hand the learned Assistant Advocate‑General drew our attention to the clarification issued by the Government vide Notification No. SOVIII‑Regs. (S&GAD)‑8/37/72 dated 27‑9‑1975 (hereinafter referred to as said clarification) 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. Relying on the said clarification, he argued that the adverse entries communicated to the appellant after lapse of long period of time were as effective as those communicated within time. As regards the allegation of mala fide, the learned A.A.‑G. expressed his view that there was no material on record to warrant such conclusion. With a view to appreciate the arguments addressed at the bar, we perused the Department's file containing the A. C . Rs. of the appellant. It revealed that the adverse entries for the years 1977 and 1978 were recorded by Mr. Moenuddin Ahmed, the then Director, Fisheries. However, the countersigning authority was the then Secretary Agriculture, Mr. S.M. Waseem in respect of the entries for 1977 and Mr. Kamaluddin, the then Additional Secretary, Agriculture Dept. for the entries of 1978. We were amused to find that both the countersigning authorities had declared the reports given by the reporting officer namely Mr. Mueen Ahmed as biased. In other words the said authorities did not agree with the Director's assessment of the appellant. Consequently, the reports of the Director for the years 1977 and 1978 stood washed off as if they did not exist in the record. How then the said reports were communicated to the appellant as adverse reports, has not been explained. In fact this appears to be the job of the lower staff who obviously did not bother to go through the observation of the countersigning authority before sending the reports of the reporting officer to the appellant. However, we are of the view that the adverse reports given to the appellant for the years 1977 and 1978 lost their sting after their disapproval by the countersigning authority and as such they ceased to be adverse. Therefore, the communication of such reports, in our opinion, was uncalled for. He would like the learned Secretary of the Department to take appropriate action in the case in order to fix the responsibility for causing undue harassment to the appellant by confronting him with reports which had ceased to be adverse. The person found guilty in this regard may be awarded suitable punishment. Coming to the report for 1979, it was found that this time the reporting officer was Muhammad Asif, Deputy Director and the countersigning authority was the same Mr. Moenuddin Ahmed, the Director who had given two consecutive adverse reports to the appellant in the earlier years. No doubt the report for the year 1979 was also adverse like 'the earlier two reports. It is also clear that the adverse report for the said year was duly endorsed by the countersigning authority. How did this change in the 'reporting channel occur, even though the conditions remained unaltered inasmuch as that neither the appellant was shifted from his previous position nor the aforesaid Deputy Director and the Director were changed? The learned A.A.‑G. was not in possession of any material to explain the change in the 'reporting channel'. In absence of any satisfactory explanation which as pointed out above, is not forthcoming, we have every reason to believe that Mr. Moenuddin Ahmed, who as Director of the appellant had given him two consecutive bad reports in the preceding years, had hand in changing the reporting channel. The reason for this is not for to seek. His bias against the appellant as reflected in his reports for the two previous years was too eloquent to need any further elaboration. Since his two reports as reporting officer against the appellant did not work, he thought fit to assume the role of countersigning authority leaving the initiating of the report to the Deputy Director, his direct subordinate. Of course there is no material to indicate that the Deputy Director Mr. Muhammad Asif who gave adverse report to the appellant for the year 1979 was in any way prejudiced against him. However, we are convinced that as declared by the Secretary and Additional Secretary, as countersigning authority in respect of the reports for the years 1977 and 1978, the Director Mr. Moenuddin Ahmed, the immediate boss of the Deputy Director was highly prejudiced against the appellant. We have, therefore, no doubt in our mind that the Deputy Director who became the reporting officer in 1979 and was his immediate subordinate was prompted by the said hostile Director, Mr. Moenuddin Ahmed to give the adverse report to the appellant in that year. Our thinking in this regard finds support from the reports of the subsequent years, some of which were written by the same Deputy Director namely Mr. Muhammad Asif. Excepting his report for the year 1979, the said Deputy Director, had given good reports to the appellant in the subsequent years when Moenuddin Ahmed was no longer at the scene but some other gentleman was his Director. Thus, so long the fear of hostile Director was lurking, the appellant was depicted as bad official. With the exit of that Director, when his fear also disappeared, the appellant became indispensable officer over night for the same Deputy Director. Therefore, like the earlier two reports for the years 1977 and 1978 which were rated by the countersigning authorities as biased, the report for 1979 also could not be sustained for the same reason. We, therefore, allowed the appeal as mentioned above. The adverse entries for all the three years would stand expunged from the appellant's A. C . Rs. file. Before parting with the case, we would like to observe that the] said clarification as to late communication of the adverse reports, which has obviously become part of the Government's "INSTRUCTIONS ABOUT CONFIDENTIAL REPORTS" needs to be reviewed. The said clarification not only negatives the instruction at para. 34 but also seeks to perpetuate the situation relevant only at the given time. Para. 34 of the said instruction reads as under:‑ "The timely communication of adverse remarks is of paramount importance. The authorities competent to communicate the adverse remarks should ensure that the adverse remarks are communicated without fail to person concerned by the end of June. Failure to do so will attract disciplinary action against the person responsible for the delay. " It is clear that the above para. emphasizes the importance of timely communication of adverse reports, so much so that any one found guilty for any default in this behalf would be liable to disciplinary action. The said clarification however condones the delay in communicating the reports. Thus it has obviously the effect of undoing the above main instruction. Even otherwise an adverse report is relevant only for the year in which it is given or at the most until the next report has been recorded. Bad report given in a particular year will become irrelevant in the following year if it is superseded by a good report in the latter year. Invariably the A. C . Rs. have limited use as they are taken into consideration for the years for which they are written. It is only in the event of persistence of reports of same nature in the consecutive years, that the cumulative impact of all such reports influences the competent authorities in respect of the civil servant concerned. Barring such cases conduct and performance of a civil servant are found to be continually changing with passage of time either for betterment or for deterioration. Keeping such tendency in view, it would not be fair even for the civil servant concerned to keep the sword of adverse reports of previous years hanging over his head. We would, therefore, reiterate the Government instruction of para. 34 referred to above as the guiding principle for Government authorities and suggest that the said clarification that the A.C.R. communicated late will be as effectual as the one communicated in time which is obviously inconsistant with the main instruction at para. 34, be suitably amended. Given under our hand and the seal of this Tribunal this 23rd day of November, 1986 at Karachi. M.Y.H/102/Lb/S????????? Appeal allowed.