2012 PLP (C (PLC(CS))

WAQAR AHMAD SETH, J.

This is an appeal under section 5 of Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 against the order of respondent No.1 communicated through respondent No.2 vide letter No.100/R/97 dated 11-7-1997 whereby entry of adverse remarks in the ACR of the appellant for the year, 1996 given by respondent No.3 were maintained.

2. Background of the controversy is that the appellant joined the service as Civil Judge/Judicial Magistrate in the year, 1995 on contract basis and subsequently his contract was terminated vide Notification dated 3rd February, 1998 but on his own request termination was converted into resignation vide Notification dated 9-12-1997. After some time, a letter bearing No.25/R/97 dated 22-5-1997 containing adverse entry in his Annual Confidential Report was communicated to him against which he filed a representation for expunction of such remarks, which did not bear fruits, hence the appeal in hand.

3. Learned counsel for appellant contended that the learned Reporting Officer was required to have counseled the appellant, which implies that the appellant was working satisfactorily in all respect; that the impugned remarks rendered by respondent No.3 are not supported by any instance and in absence thereof, the same are liable to be expunged; that no opportunity of hearing for explaining his position regarding the allegation against him was provided to appellant, hence the impugned remarks are nullity in law; that the entire career of the appellant has been damaged for no reason much less plausible, thus, the adverse remarks in the Annual Confidential Report of the appellant for the relevant brought were sought to be expunged.

4. As against that learned A.A.-G. contended that being a Judicial Officer the plea of counseling was not essential being directory and not mandatory in nature, hence the then District and Sessions Judge, Dir at Timergara and the then Hon'ble Chief Justice were the best Judges of appellant's work, conduct and character, hence the opinion so formed cannot be interfered with in absence of any thing strong and cogent to the contrary. We have heard learned counsel for the parties and perused the record available before us.

5. Admittedly, the appellant joined the service as a Civil Judge/Judicial Magistrate in the year, 1995. After remained posted in the same capacity for some time, he was transferred to Dir at Timergara. While serving as such, respondent No.3 made the following entry in his Annual Confidential Report for the year, 1996, which are as under:

(1) Relation with (a) Superiors ...... Blow average. (b) Colleagues Below average. (c) Subordinates Below average. (2) Behaviour with public Below average. "The Officer does not behave like a Judicial Officer. He does not respect his superiors and is not cooperative with his colleagues. His behaviour with members of the Bar and litigant public is also not good."

6. The above remarks were countersigned by the then Hon'ble Chief Justice of Peshawar High Court and were communicated to the appellant on 22nd(sic) 1997(?) by respondent No.2. Feeling aggrieved thereof, he preferred a Representation before respondent No.1, which did not prevail and was rejected.

7. The plea of appellant that being inducted into Judicial Service in the year, 1995 if at all there was any complaint of his behaviour towards the superiors and general public, it could have been cured through counseling has no force at all as the same was directory and not mandatory. Even otherwise, the then District and Sessions Judge, Dir at Timergara and the then Chief Justice are the officers who can accurately assess the work and conduct of the Subordinate Judge serving under them. They are the best Judges of his work, conduct and character, which opinion can be very extensive, depending on their own observation, the general reputation and such other material, which may have been brought to appellant's notice and generally do not form part of record.

8. We may observe that the evaluation of the performance of a subordinate by a Reporting Officer or the Countersigning Officer is a matter of subjective assessment and not an objective evaluation. In this view of the matter, the Tribunal or the Court cannot substitute the view recorded by the Reporting Officer or the Countersigning Officer, nor it will interfere with the above evaluation. This is, however, subject to exceptions, firstly, when the Reporting Officer or the Countersigning Officer himself does not enjoy good reputation and mala fide is alleged against him with full particulars and, secondly, when there has been gross violation of instructions, which resulted in miscarriage of justice. In the instant case, nothing has been alleged in the grounds of appeal nor any such allegation against the Reporting Officer or the Countersigning Officer has been argued. For the above stated reasons, no ground for interference in the impugned decision of respondent No.1 held on 5-7-1997 has been made out, hence this appeal fails, which is dismissed hereby with no order as to cost. H.B.T./42/P Appeal dismissed.