1988 PLP (C (PLC(CS))

MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).‑‑This appeal is directed against the order of Government dated 27‑12‑1980, whereby the appellant was retired from service in Public interest and order dated 20‑2‑1985, passed on 20‑2‑1985, rejecting his Review Petition, against order dated 27‑12‑1985. The appellant contended that his service record was meritorious. Even earlier, he was retired alongwith a large number of officers of Azad Jammu and Kashmir, who completed 25 years service on 17‑9‑1975. According to him, a Review Board, constituted for looking into the cases of the retired officers, recommended that the appellant be reinstated, so he was again in service in pursuance of order dated 27‑3‑1979. After his re‑instatement, the appellant was recommended for deputation, with the Federal Government and a certificate was issued to the effect that his service record was good. He was deputed for a period of 3 years, vide order dated 13‑5‑1979 but he was retired from service in 1980; although he secured very good report, regarding his service career, in Pakistan. The appellant pleaded that his retirement was mala fide and aimed at facilitating the promotion of a junior officer, by retiring the appellant. The appellant also' attacked the vires of the provisions of section 12 of Civil Servants Act, 1976, on the ground that it was violative of the injunctions of Islam as well as violative of the fundamental rights.

2. The leaned counsel for the respondent controverted almost all the averments, made by the appellant. The appellant also pleaded that his retirement, before reaching the age of superannuation is a punishment, which could‑ not have been awarded without issuing show‑cause notice

3. We have examined his service record, with particular reference to the Annual Confidential Reports. The assessment in the Annual Confidential Reports is given below:‑ YEAR 1950: Many complaints of bribery. 1952: Good. 1953: Honesty doubtful. January 1955 to June, 1955: Some good remarks, but shown ill‑reputed, when posted at P.P. Naghdar. 1957: 1‑1‑1957 to 11‑7‑1957: Class 'B' report of S.P. He was smart and efficient officer but his reputation 'was doubtful. In the column 1, "Is he honest?" the remarks "No complains" is recorded. July to December, 1957: As per column 1, part A, the class of S.P's report is 'A'. Remarks "Good", "Very Good" and "Satisfactory" in different columns, except in column 10, 'Does he possess S.P's confidence generally?' It was remarked; "Not upto the mark The general remarks are:‑ (He is a senior most A.S. I. No specific complaint of corruption but he is a very good Investigating Officer. He is fit for promotion. (Sd. S:P.) Extract of this report, in respect of column 5‑ and 10 was conveyed. Against column 5, i.e., Is he honest: It was remarked "Cannot say but there is no specific complaint to be quoted here." 1958: 1‑1‑1958 to21‑8‑1958): About 11 lines written in praise of the appellant, by the S.P. and countersigned by I.‑G.P. which include fitness for promotion 1959: 5/59 to31‑12‑1959: About 8 lines' remarks favouring the appellant, by A.‑I.G. counter singed by I.‑G.P. He was promoted as Sub‑Inspector, this year. 1960: About 8 lines in praise of the officer by A . ‑I . G . 1961: 1/61 to 8/61) About 8 lines in praise of the officer by A.‑I.G. The A. C. R. pro forma was changed in 1962. 1962: Treated as Class 'B' by S.S.P. Other remarks generally good. 1963: The pro forma for A. C. R. again seems to be? changed. He is rated as mediocre type in column13 but again recommended for appointment at 'B' class Police Station. 1965: Remarks generally satisfactory. In column of reputation and in other remarks' columns, he is rated 'Average' 1966: Generally assessed normal or satisfactory. Against column of reputation, no complaint. Other remarks; mediocre 1967: Recommended for promotion. Remarks generally Good 1968 Assessment????? generally satisfactory. Recommended for second class Police Station. No complaint in matter of honesty. Shown Average in Column 13. 1969 Remarks generally very good. The then I.‑G.P. Sahabzada Rauf Ali also signed the A.C.R. without any comments. 1970 Remarks generally very good, by S.P. but the I.‑G.P. (Mr. Rauf Ali)?? remarked that in his opinion, the officer was dishonest, not dependable and clever. There is no paper on file to support these remarks. A reference seems to have been made????? by him, by an entry made with the Pencil to Page 31 of the file. The page 31 relates to some enquiry conducted against the Officer in 1954 and the order of punishment of reduction of pay to the initial stage, in the grade was awarded to the appellant, in respect of charge of corruption. The punishment was later changed to stoppage of two increments. Representation was made by the appellant, for expunging of the remarks given 'by I.‑G.P. made in A.C.R. for the year 1970 but no action was taken and ultimately, in 1974, the appellant was conveyed the following reply, in response to the representation:‑‑ The remarks of I.‑G.P. in A.C.R. are held .to be unfounded. 1971: Very good remarks and work rated upto the mark. Also recommended for the charge of 'A' Class Police Station, and for consideration for 'F' list. 1972: Very good remarks. Recommended for promotion and for suitable reward in connection with some extra departmental work, performed by him. 1973: There are two reports for the year 1973. One in Urdu and the other in English. Very good remarks in both the reports. General assessment above excellence by S. P. and good by D. ‑I. G. Police. One of the reports, purports to have been written on 10‑1‑1974 and the second one on 15‑1‑1974. Probably, the period of second report is from 4‑8‑1973 to the end of the year. The period is not mentioned in the other report but it must relate to the period from January to 3rd August, 1973. 1974: General assessment very good. Remarks otherwise very good. 1974: General assessment excellent. The appellant was promoted as D.S.P. on the recommendations of Public Service Commission, in 1975. On 17‑9‑1975, the appellant was retired alongwith a large number of other officers, when the then Government ordered the indiscriminate retirements. A Review Board was constituted by the successor Government, for looking into the matters of the retired officers. The case of the appellant appears to have been cleared by the Board and he was reinstated into service in 1979. It was certified by this Government to the Ministry of Interior, Government of Pakistan, through letter No.S&GAD.2896/79 dated 29‑3‑1979 (Copy Annexure 'A') that the appellant had about 30 years service in Police Department, with a good service record and his bio‑data was also forwarded. After about 1J months, the services of the appellant were lent to the Government of Pakistan, for a period of 3 years, vide order dated 13‑5‑1979. The officer was working under the Federal Government. From Pakistan, he secured one report for the year 1979. The Government constituted a Committee on 12‑12‑1979, for reviewing the cases of the officers, who were likely to complete 25 years service, by 31‑12‑1979. On the recommendation of this Committee, which had considered the record upto December 1979, the appellant was retired from the service vide impugned order, passed on 27‑12‑1970 and his Review Petition, against the order of retirement was also rejected.

5. The learned counsel for the appellant argued that the service record of the appellant is generally very good, with the exception of only one complaint, which is alleged to have been established but that incident related to the early period of appellant's service more than 26 years prior to the order of retirement. It could not have been made a basis of action after such a long time, when the record of the latter period is unblemished. Some remarks, made during the early period of service were not material, in the case of the appellant. Right from 1958, there have been no remarks, against the appellant and all along this period, except for the years 1963, 1965 and 1966, when he was shown average/ mediocre, for all the rest, he was shown to be a good officer. He was reinstated to service in 1979 on the basis of good service record. The same was certified to be good by the Government of Azad Jammu and Kashmir to the Government of Pakistan. After his reinstatement to service, he had hardly served in Azad Kashmir, for a period of 1J months, when he was sent on deputation to Pakistan. There was no complaint during this short period. Although it is lawful for the Government to review the cases of officers, after completing 25 years service, as many times as it likes, yet there must be some duration of service, between the reinstatement and the retirement, which could show that during such period, there was any occasion to form an adverse opinion about the work and conduct of an officer, and that it justified the order of retirement. The appellant remained under the Government of Pakistan, for the period after reinstatement, from 13‑5‑1979 onwards and there was no complaint from that Government, rather the report contains good pen‑picture of the officer. According to the counsel for the appellant, in the circumstances, that the appellant was not serving in Azad Jammu and Kashmir after his reinstatement and the other service record is good as a whole, the action of retirement was brought about through misrepresentation, by the committee which should be declared mala fide.

6. The learned counsel for the respondents pleaded that retirement after completion of 25 years service is a discretion vesting in the Government and no exception could be taken to it. He was asked to point out any instance about the work and conduct of the appellant, which came into existence, after the reinstatement of the appellant, upto the date of retirement, justifying the action but he could not cite any event of this nature.

7. As already pointed out, we have looked into the record and summary of the confidential record has been reproduced hereinbefore, in this judgment. The overall picture of the service record is very good, with a few exceptions, relating to the quite early period of service of the appellant. No complaint of dishonesty or mal?administration, in respect of this officer appears on record, for more than two decades, prior to his retirement. He has been admired by his superiors a number of times and there are lengthy notes, recorded in the A. C. Rs. appreciating his work.

8. We have perused the report of the Review Committee and found that the criteria adopted by the Committee or the guide‑lines issued by the Government vide order dated 12‑12‑1979 have not been adhered .to. According to the instructions issued, to the Committee, the officers generally rated average were to be recommended for retirement, whereas those rated generally good and very good were to be retained in service. As against this, the Committee No.2 had allocated certain marks for the assessment, made in the A.C.R. The letter of Committee addressed to Chief Secretary vide No.460/80 dated 21‑4‑1980 shows that vide para 2, of the letter, the following formula for evaluating the A.C.R. was framed by it: ? ??????????????????????????????????????????????? Excellent & Very Good = + 10 Marks. Good. = + 6 Marks. Average. = + 3 Marks. Below Average. =? - 3 Marks. Bad/Adverse. =? ‑ 6 Marks. Very Bad =? ‑ 10 Marks. The A.C.R. of the officer, for the year 1950 is very bad and for the year 1952, it is good. For the year 1953, it is adverse. For the year 1955, it can be treated as average because there are favourable as well as un-favourable remarks. For the year 1957, on the basis of both the reports, general assessment is to be treated as good. From 1958 to 1962, again the reports are good. From 1963, 1965, 1966 and 1968, reported as average. For the years 1967 and 1970, the reports are good while for the years 1969, 1971, 1972, 1973 and 1974 are very good. The report for the year 1979, received from Federal Government has not been considered. Similarly, the report of Review Committee shows that report for the year 1965 was also not considered. In all, the Committee considered 20 reports. According to our assessment, on the basis of formula, evolved by the Committee, the officer was entitled to 6 marks for each of the years namely; 1952, 1957 to 1962, 1976 and 1970. He was entitled to 3 marks for the years 1955 and 1963, 1966 and 1968. He was entitled to 10 marks for the years 1969 and 1971 to 1974. The total marks would be

116. For the adverse reports, for the years 1950 and 1953, 10 plus 6 i.e., a total of 16 marks could have been deducted, thus, leaving a balance of 100, at the credit of the officer. For the entire period of 20 years, for which the reports were available and considered by the Committee, 15 reports are good and very good. Three reports average and two adverse. In view of the guidelines issued, by the Central Government and adopted by Azad Jammu and Kashmir Government, the officer was fit for retention. On the basis of the formula, adopted by the Committee, a person securing 40% marks was held fit for retention. Thus, for the 20 years, the maximum marks on the basis of excellent and very good could be 200 and 40% thereof would be 80 marks. The officer, secured 100 marks as against required 80, so he was fit for retention, even on the basis of criteria, approved by the Committee. Another factor has been also considered, by us. We have gone through the entire service record of the officer. He was suspended for a charge of corruption in 1954 and later awarded the punishment of reduction of pay to the initial stage in the grade vide order book No.l/55 dated 8‑1‑1955 but on review, the punishment was changed to stoppage of two increments and the reduction of pay was withdrawn. In 1960, he was issued a warning for a minor irregularity of getting a remand from Naib‑Tehsildar. In 1958, he was issued a censure. There were two applications, against him dated 1‑1‑1963 and 5‑1‑1963, which after the enquiry were found false and he was exonerated vide order of Superintendent of Police dated 30‑3‑1963. He was placed under suspension vide Order Book No‑112 dated 16‑4‑1969 for an omission, relating to some F.I.R. but on enquiry, he was exonerated and reinstated vide Order Book No.221 dated 2‑7‑1969. Thus, it appears from his personal file that no major penalty was ever awarded to him. The stoppage of two increments, relating to an incident in 1954 and censure in 1958 and warning in 1960 are the minor events, as against the very good reports, secured by him, for such a long time of service. The Review Committee has deducted 10 marks for 1950, which is correct but deduction of 10 marks, instead of. 6, for 1953 is incorrect. The report for the year 1955 has been treated adverse, which is incorrect for the reason that there was no complaint, against the officer, during this year and an earlier event could not be made a basis for giving adverse remarks, for this year, however, he may be treated average for this year. The Committee again treated the two reports, for the year 1957 as adverse. No adverse entry appears in the two reports, for this year. One report is from 1‑1‑1957 to 11‑7‑1957 and the other from 12‑7‑1957 to 12‑12‑1957. It is clearly indicated in the first report that there was no complaint against the officer and class 'B' report of Superintendent Police was awarded and for the subsequent period, Class 'A' report was awarded. The mere fact that he did not enjoy the Superintendent's confidence, upto the mark was not a reason to treat the report as adverse. Specially, when the class of the report is 'A' by the same officer. It appears that neither the Reporting Officer had the efficiency to write a proper report, nor the Members of the Review Committee applied their mind to the contents of the report. The Committee awarded 6 marks for the years 1958 to 1962, which is correct. For the year 1963, the Committee allocated 6 marks, whereas on the basis of the assessment as mediocre, we reduced it to

3. For the year 1966, the allocation of marks is 3, which seems to be correct. The Committee allocated 5 marks for 1967, which should have been 6 Again, the allocation for the years 1968 and 1969 is 3 and 10 respectively, which is correct. The report for the year 1970 was treated adverse. There are very good remarks by the Reporting Officer The remarks of the countersigning officer are unfounded and should be ignored. However, instead of very good, it may be treated as good and the officer deserves 6 marks. For the years 1971 to 1974, he was allocated 6, 5, 6 and 10 marks. The allocation for the earlier 3 years, is incorrect because the reports for the year 1971 to 1973 are very good and deserve allocation of ‑10 marks for each of the years. The allocation for the year 1974 is correct.

9. After comparing the report of the Committee, with the record, we are of the view that the Committee had misrepresented the record of the officer, before the competent authority. If the true picture would have been before the authority, the action of retirement could have not been taken by the authority, in the case of the appellant. The action of the Committee in allocation of the marks and making deductions, showing the adverse reports, being against the facts is mala fide in law and consequently, the action of the authority, based thereon is also mala fide. The officer should have been retained in the service, till he attained the age of 60 years. The date of birth of the appellant, as per record appears to be 26‑5‑1926 and he could have served upto 26‑5‑1986, but for passing of the impugned order, he was retired without there being any public interest. The plea as to the show‑cause notice and the vires of the statute need no determination.

11. The upshot of the above discussion is that the order of retirement dated 27‑12‑1980 and the subsequent order, passed in review, on 20‑2‑1985 are quashed and the appellant shall be deemed to have been in service, from the date of retirement to the date of superannuation of age, viz. 26‑5‑1986. It is declared that he shall. be entitled to all the benefits of service, from the date of retirement i.e., 27‑12‑1980 to the date of superannuation of age and further to all the consequential benefits of pension etc. admissible under the rules. We make no order as to the costs. S.Q./57/Sr.A??????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.