1985 PLP (C (PLC(CS))

MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).‑‑ The appel lant, Muhammad Sirjees Nagi, was appointed as First Secretary in the Foreign Affairs Group and he took the charge of his assignment on 7‑12‑1973. After completion of the training, he joined the Foreign Office as Director on 18‑7‑1974. He was given the assignment of Director to look after the matters relating to Canada and Latin America and was directly subordinate to the Director‑General (America) which post was then held by Mr. Akram Zaki. Mr. Akram Zaki proceeded on three months' leave with effect from 1‑10‑1974 and no one was nominated in writing to perform the functions in his place.

2. The Annual Confidential Report on the performance of the appellant from 18‑7‑1974 to 5‑1‑1975 was initiated by Dr. Mrs. Khurshid Haider, Director‑General (West Europe) and countersigned by the Additional Secretary, Mr. Shahnawaz, under whom the appellant was working. This report contained remarks adversely affecting the appellant and, therefore, they were communicated to him in April 1975. The appellant made a representation against these remarks on 10‑5‑197,5, but the representation remained unattended. On 13‑11‑1983, the appellant requested the Ministry of Foreign Affairs that the decision taken on his representation may be communicated to him. The appellant was, by letter, dated 6‑2‑1984, informed that his representation, after having been given due consideration had been rejected. The present appeal was filed before the Tribunal on 22‑2‑1984. The appellant seeks expunction of the remarks and also prays that this Tribunal should direct the respondent to place on the A.C.R. dossier of the appellant the minutes recorded on his performance by the Minister.

3. The learned counsel for respondent has taken two preliminary objections, namely: (i) The appeal is barred by time; and (ii) The appeal does not lie from an order made on the representation of the appellant. The learned counsel for respondent argues that under section 4 of the Service Tribunals Act (IXX of 1973), an appeal lies from a final order, whether original or appellate, and that the order passed on his representation on 13‑11‑1983 not being an appellate order, no appeal was competent against it. He contends that in fact the appeal is against the order originally passed in 1975 when adverse remarks were communicated to him, and that by counting the period of limitation from that month, the appeal is barred by time by about eight years. We are unable to subscribe to the arguments of the learned counsel. Under proviso (a) to section 4 (1) of the Service Tribunals Act (LXX of 1973), no appeal can be entertained by the Tribunal, unless the aggrieved civil servant has preferred an appeal or application, review or representation to the departmental authority. In case there is no specific provision, the aggrieved civil servant can still go to the next higher authority by way of representation under section 22 (2) of the Civil Servants Act (LXXI of 1973). The appellant having made a representation departmentally in this respect, could at his own risk wait for the reply, or file the appeal after the expiry of 90 days of making the representation. The appellant has taken the former course and filed the present appeal after he received the order of rejection of his representation. It is futile to say that an order passed on representation is not an appellate order, as contemplated by section of the Service Tribunals Act (LXX of 1973). No doubt, there is no provision of appeal from an order communicating the adverse remarks nevertheless, a representation is provided for. The appellate order contemplated by section 4 ibid, in our opinion, includes not only an order passed on an appeal, but also an order passed on a representation. That is the only interpretation by which the purpose of the Act can be carried out. In view of these facts, therefore, we are of the opinion that the appeal is still within time.

4. The learned counsel for respondent also contended that since the annual confidential reports are intended for determining the fitness for promotion of a civil servant, these are ancillary to the consideration for fitness or otherwise of a person, and as such no appeal lies because of the bar placed by proviso (b) to section 4 (1) of the Service Tribunals Act, 1973. We find little substance in this argument, inasmuch as the guideline for purpose of the evaluation itself provides for a representation against adverse remarks in the A.C.Rs. and when representation is permissible then the person affected cannot be denied the right of an appeal. In any case, the Supreme Court has settled the matter at rest in the case of Secretary Punjab v. Ahmad Kamaluddin 1981 S C M R

392. We, therefore, hold that this appeal is quite competent.

5. On merits, the impugned report covers the period from 18‑7‑1974 to 5‑1‑1975. the reports are recorded on calendar year basis, and therefore, the inclusion of the period after 31‑12‑1974 was against the instructions and the rules made in this behalf. In this way, the report can be deemed to have been recorded for the period 18‑7‑1974 to 31‑12‑1974. This report was recorded by Dr. Mrs. Khurshid Haider, Director‑General. It is, however admitted that from 18‑7‑74 to 30‑9‑1974, the appellant was working directly under Mr. Akram Zaki, Director General, who went on leave from 1‑10‑1974. The period of report is thus shortened to the period between 1‑10‑1974 and 31‑12‑1974. No doubt this completes a period of three months, which is the minimum period for recording a report of a subordinate, nevertheless, there is no written order that Dr. Mrs. Khurshid Haider, Director‑General, was assigned the duties which were previously performed by Mr. Akram Zaki, under whom the appellant was working. The appellant has, however, admitted that by a verbal order made somewhere in November, the appellant was directed not to submit cases direct to Mr. Shahnawaz, Additional Secretary, but to send them through Dr. Mrs. Khurshid Haider, Director‑General. The learned counsel for respondent and the departmental representative expressed ignorance of such a direction and could not place any file before us which might have been routed to the Additional Secretary through Dr. Mrs. Khurshid Haider, Director General. In these circumstances, we have, but to accept the appellant's statement that at the most he sent his files through Dr. Mrs. Khurshid Haider from 1‑11‑1974. The report under attack can, therefore, be considered only for the period between 1‑11‑1974 and 31‑12‑1974. This makes a period two months only. It is not denied that no report can be recorded unless a person serves under the reporting officer for a period of not less than three months. In this case, the report being for two months only has been recorded without lawful authority and contrary to instructions. The net result is that for the period 18‑7‑1974 to 31‑9‑1974 Dr. Mrs. Khurshid Haider does not appear in the picture, because during this period Mr. Akram Zaki, Director‑General was directly supervising the work of the appellant. Likewise, for the period 1‑10‑1974 to 30‑10‑1974, Dr. Mrs. Khurshid Haider could not record the report on the performance of the appellant, for she never saw his work during that period. This leaves us with the report for the period 1‑11‑1974 to 31‑12‑1974 which falls short of three months, and as such has no value whatsoever.

6. In the circumstances stated above, we are of the opinion that the impugned A. C. R . deserves to be taken out of the file and is not to be considered for any purpose whatsoever.

7. The appellant also contended that the reports were recorded mala fide, because Mr. Shahnawaz was not well‑disposed towards the appellant. He has brought to our notice that during the Prime Minister's visit normally the Director accompanies the party, but in 1976 in a summary sent to the Prime Minister, on the instruction of Mr. Shahnawaz, a Section Officer was also included alongwith the Director as an alternative, and that, in fact, a telegram was sent that the Section Officer would accompany the party. The Prime Minister had, however, not agreed to the selection of the Section Officer and had instructed that the Director (in this case the appellant) should accompany the party. It was also pointed out that Mr. Shahnawaz in a subsequent year had disagreed with the immediate superior of the appellant in respect of his performance. We do not think, these instances go to prove any mala fide. Whatever the Additional Secretary, Mr. Shahnawaz might have done was according to his own assessment. The reason for mala fide having not been stated, the consequential action taken by the Additional Secretary would not establish male fide.

8. Since we have held that the impugned report was incompetently recorded by Dr. Mrs. Khurshid Haider, we direct that this report should be taken off the file and a copy of this order be placed on the A. C. R. dossier of the appellant.

9. The Minister had recorded some favourable remarks about the, appellant which have not been placed in his A. C. R. dossier. The appellant wants that those remarks should also be placed on the dossier of the appellant. Since in this respect, no departmental representation was made, we cannot issue such a direction.

10. Ordered accordingly. A. E. Order accordingly.