2002 PLP (C (PLC(CS))

"I have no comments." and as a consequence, the Office Memorandum dated 9‑3‑1999 was issued thereby rejecting his representation.

4. It was seriously averred in the memo. of appeal that the Countersigning Officer was having personal grudge and bias against the appellant, appellant was having unblemished 25 years' service carrier, he was ultimately promoted on 1‑1‑1999 whereas he was given acting charge of Director in the year 1997, no warning/counseling was given before recording of adverse remarks, the adverse remarks recorded by the Countersigning Officer were not supported by specific instance nor cogent reasons existed to corroborate the same and lastly that the year of adverse remarks was beyond the, required period of 3 years preceding the holding of D.P.C. Thus legally speaking, the same could not be pressed into service against him nor the same could block his promotion as even thereafter and prior thereto he did not earn any adverse remarks.

5. Learned counsel for the respondents controverted above assertions in toto which stand reflected in the parawise comments filed on their behalf.

6. The factum of seniority of the appellant qua respondents Nos.3 to 9 was admitted/agreed nevertheless the stand taken by the respondents was that despite the representation made by the appellant, the adverse remarks were not expunged thus the D.P.C. had rightly dropped the appellant at the time of promotion and that no discrimination was done to the appellant as the adverse remarks relating to respondents Nos.3 to 9 were duly expunged by the Competent Authority as well as there was no hurdle a in their way for promotion.

7. Arguments heard and record perused

8. It is common ground between the parties that the appellant was ranking senior to respondents Nos.3 to

9. He was having unblemished record since joining the respondents‑Bank during the long span of 25 years except the ACR for the financial year 1992‑93 which is the bone of contention in this appeal resulting in his supersession at the time of promotion. He was recommended for promotion by the Reporting Officer even in the ACR under 18 whom he had served for the relevant year and even during that period, the Returning Officer recorded the overall performance of the appellant as to be in the grading of 'A' (which means good).

9. Before addressing ourselves to the point involved for determination, we consider worthwhile to emphasize the importance of the evaluation reports in the light of relevant instructions. Under the relevant instruction it is laid down that the confidential reports rendered by reporting officers on the performance of officials serving under them constitute the most important basis of evaluation. The character roll dossier maintained for the purpose contains a systematically prepared and carefully assembled performance record of the official concerned. Confidential reports constitute an aid to selection for training, appointments, transfers, promotions, confirmations or screening of officials, it is essential that they are written most carefully. On account of the importance of these reports, the opinion expressed should represent the result of careful consideration and objective assessment so that if called upon, the reporting officer could justify the assessment of his subordinate.

10. We have given due consideration to the adverse observations/remarks in the financial year 1992‑93 confidential reports relating to the appellant in the light of relevant instructions and we are obliged to observe that certain instructions do not appear to have been observed.

11. In the present case, before recording adverse remarks, the Countersigning Officer or the reporting officer never issued any warning nor any counseling was done by any of them which was clear cut violation of clause 10.9 of Chapter X of Personal Manual, 1983 of ADBP, wherein mainly it is given that as a general rule, in no case should an employee be kept in total ignorance for any length of time that his superiors after sufficient observation of the work are dissatisfied with him, in case where a warning might eradicate or help to eradicate a particular fault, the advantages of prompt communication are obvious, where criticism is proposed to be withheld, the countersigning authority should record instructions with reasons, according to the nature of the defects discussed as to the period for which consideration is to be kept back.

12. It is also laid down in instructions 10.2 (ibid) that the opinions which are expressed should represent the result of careful observation so that, if called upon, the reporting officer could justify his opinion. To enable them to give a warranted and objective report, the reporting officer is to maintain a record of day to day acts of outstanding work, good conduct or discipline and inefficiency, misconduct, indiscipline, dereliction of duty etc., so that the judgment at the end of the year is based on explained facts. For purpose of keeping the record straight, a simple Memorandum may be issued whenever an employee is found lacking in any respect and a copy thereof should be kept in his personal file as well as in a separate file to be known as "Evaluation of Performance of Employees" to be maintained by the reporting officer. Besides, a Memo. can also be issued by an officer at a higher supervisory Level with endorsement to the reporting and Countersigning Officers. From the record, there is nothing to suggest that this instruction was followed in letter and spirit, the benefit of which must go to the appellant as no such record is being maintained for issuance of warning/counseling by the reporting and Countersigning Officers. The appellant could not be taken by surprise at the end of the financial year. It is pertinent to note here that at the time of representation made by the appellant against‑the above adverse remarks, the matter was referred by the Competent Authority to Mr. Talat Javed, the then Countersigning Officer for his remarks/comments but strangely enough he returned the same by simply writing that he had no comments to offer. Under the given circumstances, an adverse presumption shall have to be drawn i.e. had those adverse remarks recorded by the Countersigning Officer and basis/foundation or could be substantiated and corroborated by specific instances, the Countersigning Officer would have readily quoted/cited the same in order to support and strengthen the impugned. adverse remarks but as he was lacking all these so he flatly refused to record and comments. It is also the contention raised in the memo. of appeal by the appellant that the Countersigning Officer was personally, biased against him as one Muhammad Jahangir A Khan, ex‑Joint Secretary of Federal Government was choronic defaulter of ADBP but he was close friend of Mr. Javed Talat, Countersigning Officer who desired and coerced the appellant to accommodate his friend by advancing fresh loans although the appellant was accelerating the recovery proceedings against the said defaulter and as the appellant being law abiding officer failed to oblige the Countersigning Officer hence he started nursing grudge against him and for that reason, without furnishing any prior warning or counselling or jotting down the so‑called specific instance of low performance rushed to record all the adverse remarks at the close of the financial year. The above allegations of mala fides and bias raised in the memo of appeal would have been set at rest, had the Countersigning Officer resorted to substantiate the adverse remarks by advancing valid comments when he was called upon to do so by the Competent Authority during the proceedings of representation made by the appellant against those adverse remarks. Hence the above allegation of the appellant as to be Countersigning Officer being biased against him could not straightaway be brushed aside.

13. It is also with much advantage to point out that during the review proceedings with regard to recording of adverse remarks by the Countersigning Officer once again, the Review Committee referred the matter for comments to the countersigning officer but to the bad luck of appellant nothing tangible turned out as by that time perhaps the Countersigning Officer had retired from service and was not available and more than one year had since elapsed after his retirement but it transpires that even the case of appellant was not reasonably adhered to on merits by the Review Committee as no such reasoning has seen the light of the day of at least the same had not seen placed on the record from the respondents' side so tar and a stereotype office order was conveyed to the effect that representation made by the appellant was considered which was not acceded to. It is well‑settled principle that any order, may be, an executive order passed by a Competent Authority must be speaking one i.e. it should be well‑reasoned but the reasons are conspicuous by their absence in the said "office order" and for that matter even that first representation which was turned down by the Competent Authority is not to be termed as a speaking order as it is sans reasoning.

14. There is no denying the fact that Countersigning Officer while differing with the opinion of reporting officer is under obligation and required to give cogent reasons for not accepting the report of reporting officer by giving specific instance with regard to work and conduct of employee whereas reporting officer had numerous opportunities to closely watch the work and conduct of employees and was best suited person to judge competence of an employee who had worked under him for the reporting year. Moreover, copy of the whole report should be furnished to the employee at the earliest opportunity and no pick and choose is to be made but in the case in hand, whole of the ACR was not stated to have been communicated to the appellant.

15. Admittedly the disputed deport against the appellant was the only adverse report earned by him in whole of his long 25 years' service record. Under the relevant rules even minor punishment was not allowed to stand in way of promotion of a civil servant. There should have been some strong reason and justification that appellant had deteriorated his image so as to have been dubbed to be having unsatisfactory performance. It does not stand the reason that the appellant who was having good reports for 25 years long service would suddenly become inefficient overnight. Inefficiency is the trait of character which lingers on with a person and cannot be developed suddenly then can leave him abruptly.

16. Even under instructions 24.8 (ibid) it is given that Where all the previous reports of an employee given by various officers are satisfactory and only in one particular report, adverse remarks are given or vice versa and the employee is superseded on that account on the recommendations of the Departmental Promotion Committee, such a case on representation, if any, could be reviewed at a higher level to ensure full justice to the employee." But it transpired that in the case in hand even during review proceedings, injustice was done to the appellant as despite the adverse remarks recorded by the Countersigning Officer being shorn of supporting and corroboration instances and for lack of warning and counseling were given undue weightage by the Review Committee as if the same were Quranic verses.

17. To crown this all, last but not the least factor which proves to be last nail in the coffin of the respondents case is that under the relevant rules, at the time of holding of D.P.C., only previous 3 years' ACRs of the incumbent were to be looked into for knowing as to if he was having any adverse entry in those 3 years' confidential reports. In the present case, the D.P.C. was stated to have been conducted somewhere in August, 1996 meaning thereby a period of preceding 3 years ACR would come to have commenced on 1‑7‑1993 and expired on 30‑6‑1996 whereas the adverse remarks were recorded by the Countersigning Officer for the year 1992‑93 i.e. from 1‑7‑1992 to 30‑6‑1993 and this was the period which was not falling within the required 3 years' period preceding to holding of D.P.C. rather it was prior thereto thus this period could not in any way prove to be a hurdle in the way, of promotion of the appellant. The Countersigning Officer had recorded the adverse remarks on 2‑11‑1993 which were communicated to the appellant on 2‑1‑1994. Admittedly the appellant was having good reports during the relevant 3 years' period commencing from 1‑7‑1993 to 30‑6‑1996 and even thereafter till he was subsequently promoted as Director on 1‑1‑1999. His subsequent promotion on 1‑1‑1999 is by itself a sufficient ground to hold that he was maintaining a clean and unblemished record throughout except for the disputed year of 1992‑93 which in view of above discussion, could not be taken into consideration by the D.P.C. at all being beyond the pale of preceding 3 years' period.

18. For all the aforesaid discussion we are of the considered view that injustice was done to the appellant, both the impugned orders are not warranted in law vis‑a‑vis appellant and the appeal is accepted with the direction to the respondents to expunge the adverse remarks from the dossier of the appellant relating to financial years 1992‑93 and the appellant shall be deemed as having been promoted to the next higher grade of Director on 1‑1‑1996, the date when junior respondents Nos.3 to 9 were promoted and he shall be entitled to all back benefits i.e. financial as well as service. The parties are left to bear their own costs of the appeal.

19. Copies of this judgment to be sent to the parties through registered mail. H.B.T./71/FST Appeal accepted.