1995 PLP (C (PLC(CS))

NOOR MUHAMMAD MAGSI (MEMBER).‑‑Mrs. Sajida Tahir Lecturer in English Department National Institute of Modern Languages Islamabad has filed this appeal against the adverse remarks contained in her A.C.R. for the period from 1‑1‑1994 to 31‑12‑1994 which were conveyed to her vide order dated 28‑2‑1995. She filed a departmental appeal against the order dated 22‑3‑1995. Her departmental appeal dated 22‑3‑1995 was rejected as time barred on the ground that as per existing rules the representation against adverse remarks can be made within a fortnight of the receipt of evaluation remarks. 2: It is argued by the learned counsel for the appellant that appellant made representation against the adverse remarks within a period of one month as provide under the rules. Therefore, her representation was not time‑barred but it was within time and the respondents have not carefully and with proper application of mind read and perused the relevant provision of rule and have wrongly rejected the representation as being time‑barred. He further argued that Reporting Officer has not properly given the pen‑picture and has not clearly and directly mentioned the occasions with regard to alleged erratic behaviour and unruly approach in her work. The remarks of the report of the reporting officer is ambiguous and evasive in her remarks. Prior to this report appellant was never communicated any adverse report during her whole career of service. She was not counselled at any time. As such the adverse remarks are biased and based on sheer mala fides. Her departmental appeal against the impugned adverse remarks was rejected by the department being time‑barred without proper application of rules and without going into merit of the case. As such the impugned order of the rejection is void ab initio and without lawful authority.

3. The learned Standing Counsel for the department argued that time limit for filing a representation against adverse remarks is a "fortnight in accordance with the para. 3.31 of "A Guide to Performance Evaluation". As appellant failed to submit her representation within stipulated time, therefore, it is not tenable under the rules. He argued that the appellant has brazenly violated the laid down procedure/rules and regulations while making her representation against her adverse A.C.R. Therefore, without entering into a discussion on the quality of evaluation on the said A.C.R. her representation warrants summary rejection because in accordance with para. 3.29 of "A Guide to Performance Evaluation" a representation against adverse remarks must not contain any personal remarks against the integrity of the Reporting. Officer. A violation to this clause is a misconduct that renders the representation to be summarily rejected. Even otherwise the behaviour of the appellant was erratic and unruly which is evident from the pen‑picture of the Reporting Officer.

4. We have heard the parties at length and perused the personal file and previous A.C.R. of the appellant. As regards the rejection of appellant's departmental appeal being time‑barred we are of the view that her departmental appeal filed on 22‑3‑1995 against the impugned order dated 28‑2‑1995 was within time as the prescribed period for such representation is 30 days and not fortnight. The respondent‑department have wrongly applied the previous rules which have been amended vide Establishment Divisions O.M. No. 6‑2‑84‑PD.II, dated 4‑9‑1984. For reference the relevant rule 3.31 of "A Guide to Performance Evaluation" is reproduced below:‑ "`3.31 according to existing instructions there is scope for only one representation against adverse remarks which should be submitted if desired by the officer concerned within 30 days of the receipt of those

5. It is strange that the department was not aware of the rules amended in 1984. While dismissing the appellant's appeal they followed the old rules which were no more in field. Ignorance of rules is no excuse particularly on the part of administration. We have taken serious view of the matter and observed that the Administration Department was not well‑conversant with the existing rules while dismissing the departmental appeal. Her representation was wrongly rejected by applying rules which were no more in the field.

6. For arriving at a just conclusion, we called for the whole A.C.Rs. of the appellant which we have perused and find that right from 1984 till 1993 there is no adverse entry in her A.C.Rs. and she has been rated as good in most of the A.C.Rs. The respondents have also failed to show that she was ever issued any counselling/warning in writing. Moreover, the reporting officer in Part III has graded the appellant as `Below Average' and Not yet fit for promotion but likely to become fit in course of time which means that the appellant is not totally incapacitated for promotion and in case she was unfit for promotion in the opinion of the reporting officer then he should have made such observations. Under section 9 of the Civil Servants Act, 1973 every civil servant has right for consideration for promotion and even in case of disciplinary proceedings this right is not taken away and according to opinion and assessment of the reporting officer the appellant is not yet fit for promotion and her case has to be considered by D.P.C. along-with others as and when such cases of promotions are processed. Therefore, the remarks relating to fitness for promotion recorded by the reporting officer cannot be treated as adverse in order to deprive the appellant for promotion. Keeping in view her unblemished service record we are of the view that the "Below Average" grading and the adverse remarks recorded by the reporting officer in Part III (Pen Picture) in her A.C.Rs. for the period from 1‑1‑1994 to 31‑12‑1994 are not justified and smacks mala fide. Moreover, the remarks recorded by the Countersigning Officer in Part IV are of advisory nature. We, therefore, accept this appeal and expunge the adverse remarks recorded in her A.C.R. for the period from 1‑1‑1994 to 31‑12‑1994 by the reporting officer in Part-III (Pen‑Picture) and the Below Average grading is modified to that of Average. A copy of this order may be placed on her confidential report for the period from 1‑1‑1994 to 31‑12‑1994.

7. No order as to costs. Parties be informed. H.B.T./1079/Sr.F Appeal accepted.