1983 PLP (C (PLC(CS))

The learned counsel for F. I. A. Syed Muhammad Shahoodul Haq has at the very outset raised the legal objections in respect of this appeal. He‑has first argued that the appeal is barred by limitation, since the representation before the Director‑General was rejected and the decision was communicated to the appellant under letter dated 5‑1‑1982. The appellant should have filed an appeal within 30 days by 5‑2‑1982. but he filed the appeal late by 10 days on 15‑2‑1982. Mr. Azhar Ali Siddiqui on behalf of the appellant has however asserted that though the decision on the representation was communicated by letter dated 5‑1‑1982 the same was actually received by the appellant on 25‑1982 through the Inspector‑General of Police, Karachi. The learned counsel however admits that he, has no proof in support of this statement. The burden lies on the appellant to show that the result was communicate to him late by 20 days and it is for him to establish that the appeal is still within time. The appellant has however failed to discharge this burden and the appeal is apparently barred by limitation. It has next been argued by Syed Shahoodul Haq that since‑ the appellant was working with Federal Government on deputation during the period for which the remarks in the A. C. Rs. were recorded, the Provincial Service Tribunal would have no jurisdiction to hear appeal for expunction of those remarks. The Sind Service Tribunal however has jurisdiction as according to section 1 of the Sind Service Tribunals Act, 1973, the Act applied to all civil servants. Under section 2 "the civil servant" means a person who is or has been a member of the civil service of a Province and does not include a person who is merely on deputation to the Province from the Federation or any other province or authority." It is not disputed that the appellant is a member of the civil service of the Province of rind. On the other hand the Federal Service Tribunal would have no jurisdiction merely because the appellant was on deputation from the Province to the Federation for the time being. This Tribunal has, therefore the jurisdiction to deal with the case of the appellant who is essentially a Provincial Government Servant. Syed Shahoodul Haq has next argued that writing of A. C. Rs. does not fall within the definition of terms and conditions of service and cannot, therefore form the subject‑matter for appeal before the Tribunal. The learned counsel has quoted the decision of the Supreme Court in the case of Muhammad Abu Abdullah v. The Province of East Pakistan (PLD1960SC164). It was held in that decision that it was within the exclusive competence of superior Officers to express themselves freely as to their opinion, which may be right or wrong, with regard to the appreciation of work and character of their subordinates having a bearing on their duties. That this was a matter which could be dealt with by the Government on its administrative side and was not a matter justiciable in a Court of law. The appeal was accordingly dismissed. The above case was however prior to the promulgation of the Civil Servants Act. There were no Service Tribunals and the remedy of the civil servant was by way of a constitutional petition in the High Court. Under the then Constitution the High Court could not go into questions of fact and had to decide the matter regarding legal issues only. This earlier decision has since been overruled by two subsequent decisions by the Supreme Court. In the case of Secretary, Government of Punjab v. Ahmed Kamaluddin (1981SCMR392) it has been observed by Shafiur Rahman, J : "The recording of the annual confidential remarks, their communication to the officer concerned, entertainment of representation against adverse remarks and their expunction are all matters governed by detailed instructions of the 'Government. They can be made the basis for departmental and disciplinary action against an official. These reports make up the service record of the officer concerned. Such record is consulted and heavily relied upon for determining the suitability for promotion, posting and disciplinary action. The Civil Servants Act while enumerating the terms and conditions by subsection (2) of section 23 provides that "any rules, orders or instructions in respect of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." On the strength of this provision the instructions with regard to the recording of the remarks, their communica tion and expunction would have the status of rules made under the Civil Servants Act and would be determinative of the terms and conditions of service. The recording of the remarks is indeed within the‑ exclusive competence of the superior officers but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appropriate cases. The reliance on Muhammad Aboo Abdullah v. The Province of East Pakistan and another for the purposes of limiting the jurisdiction of the Service Tribunals and the right of the civil servants is inappropriate because the observations made in that decision concerned the jurisdiction of the Courts in Constitutional jurisdiction to deal with adverse remarks. The limitations of the restraints exercised in giving relief in Constitutional jurisdiction do not extend to Tribunals and authorities which are enjoined to hear appeals and determine questions of fact as well as of law". In yet another decision of the Supreme Court in the case of Inspector -General of Police, Punjab v. Masood Ahmed Khan (1981SCMR840), it has been held by Mushtaq Hussain, J : that "Annual Confidential. Reports are very much a part of the terms and conditions of service, as entries in A. C. Rs. made and expunged on basis of positive instructions and rules can be made basis for retiring a person from service." Appeals against remarks in A. C. Rs. are therefore competent before Service Tribunal and such Tribunal is competent to expunge such remarks. The Service Tribunal established under the Service Tribunals Act, 1973 is, therefore, competent to hear appeals in respect of expunction of remarks in the annual confidential remarks which affect the service conditions of a civil servant and are covered by the definition of terms and conditions of his service. The learned counsel for the respondent has then argued that admittedly the appellant has not alleged that these remarks were recorded by the Countersigning Authority due to any malice against the officer. concerned. That there is no material even to suggest mala fides. On the other hand there is enough material and documentary evidence in support of the opinion expressed by the Director. It is true that the superior officers who record these reports on the work and character of their subordinates are the persons best suited to judge the competence of persons working under them and they should not be hampered in the free expression of their opinion nor permitted to be harassed by the officer reported against. The Tribunal though having jurisdiction to probe into the questions of fact for finding justification for the adverse remarks would not ordinarily interfere with the well considered opinion of the superior officers unless on the face of the record such opinion appears to be harsh, inconsistent with the material placed on record. The learned counsel for the respondent has placed on record the D. O. letter of Special Judge Central addressed to the Director F. I. A. which is as under :‑ My dear Mr. Muhammad Idris Khan. I would like to bring to your notice that the cases of Commercial Bank Circle, F. I. A. Karachi pending trial before this Court are not properly looked after. The cases are of complicated nature and require proper attention . I would, therefore, suggest that the cases of C. B. Branch F. I. A. Karachi be also put incharge of Mr. A. U. Ansari, A. D. (L), P. I. A. Karachi who is a competent prosecutor and always comes prepared with is briefs. Yours sincerely. (Sd.) (KAZI ATTA MUHAMMAD) Special Judge (Central), Karachi." This letter is dated 2‑7‑1980 and covers the period under reference. On the basis of the above‑letter the explanation of the appellant, for not conducting the cases satisfactorily in the Court of Special Judge, was called by the Director under letter dated 24‑9‑1980. He was also asked in another letter to explain his absence from office on a day when he had no case for trial in any Court. The learned counsel for the appellant J has pointed 4 out that the appellant was overworked as he was doing the work which had formerly been assigned to two prosecuting Inspectors and he had to attend nearly ten Courts. However there is nothing to show that he ever complained to the authorities that he was not able to cope up wit volume of the work assigned to him. The learned counsel for‑the appellant has also pointed out that the Countersigning Officer not being his immediate officer was not in a position to judge the quality of his work and before differing from the Deputy Director, he should have given an opportunity to the appellant to explain his case. However, there is no rule or requirement that the Countersigning Officer before offering any remarks should hear the civil servant concerned before recording adverse opinion. On the other hand the Countersigning officer on receipt of the report of the Special Judge had brought this fact to the notice of the civil servant concerned and had called for his explana tion. The remarks of the Countersigning Officer are therefore based on documentary evidence and cannot be said to have been unjustified. These remarks had been recorded to enable the officer concerned to improve himself and were not meant for punishment of the officer, as admittedly the officer has since received his promotion as a Deputy Superintendent of Police on 10‑6‑1981. We, therefore, find no merit in this appeal which is accordingly dismissed with no order as to costs. Appeal dismissed.