1989PLC(C (PLP)

(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a high post or grade." It is clear from the above section that if a civil servant is aggrieved by any order or class of orders relating to his terms and conditions of service, he may as a matter of right, prefer appeal or apply for review of such order if he is permitted to do so under the rules applicable to him. In case no provision for appeal or review exists, still he is given right to make representation against such order within thirty days of the communication to him of that order. "The instructions about the Confidential Reports" (hereinafter referred to as the said instructions) are in the nature of the rules. The adverse report was admittedly given to the appellant under the said instructions. Accordingly as required by the said instructions, he made first ever representation for expunction of the adverse remarks to the next higher authority namely the Director, School Education. But as the adverse report was countersigned by the said Director, he had thereby become party to the report. Precisely for this reason the Director seemed to have passed on the representation to the Secretary to Government of Sind for consideration. That is why the Government twice conveyed its orders to the appellant that his representation for expunction of the above remarks was rejected; first time when he was simply told that his representation was time barred and second time, he was informed that his representation was rejected obviously on merits. Thus, the appellant availed his right of making representation to the prescribed authority against the adverse report given to him, but somehow the same was rejected. In this way the appellant fulfilled the requirements of not only section 23 of Sind Civil Servants Act but also those of proviso (a) to section 4 of the Sind Service Tribunals Act, 1973. Further, appeal to the Chief Secretary was therefore not called for. By making such appeal, the appellant wasted time and got the present appeal time‑barred. It is appellant's own admission that he was last informed about the Government's decision on 13 5‑1987 that his request for expunction of the adverse remarks was rejected. Accordingly he was to file this appeal within 30 days from the said date. But instead of filing this appeal latest by 12‑6‑1987, he delayed it by about four months and filed the same on 1‑10‑1987. For these reasons we sustain the objection raised by the learned Government counsel and hold that the appeal is time‑barred. As for merits of the case, it would be useful to reproduce the relevant portion of the communication by which the adverse remarks for the year 1982 were conveyed to the appellant. The said portion reads as under: "No. OSD(LSC)85/55‑Y), dated 27‑4‑1987. My dear Krishan Kumar, While going through the Annual Confidential Report for the year 1982 it reveals that the Reporting Officer has given you the following adverse remarks: (1) Part II.

4. Adoptability. C‑Review Average Rigid Inflexible. (2) Part I V

1. Power of expression. (a) Written C‑Below Average. Clumcy and Vague. (3) ‑do‑

4. Supervision and Guidance C‑Below Average. Lacks control, in effective. (4) ‑do‑

5. Ability to take decision: C‑Below Average. Part V (a) Pen Picture. (6) Mr. Krishan Kumar Sharda is a short stature stout and well built Head Master. (7) He is of very weak submissive and grumbling nature." (8) ................ (9) ." Severely criticising the above report, the learned counsel for the appellant contended that the said adverse report was the result of personal bias and dislike of the reporting officer. In support of his argument the learned counsel referred us to the pen‑picture of the appellant as depicted by him. We have closely examined the pen‑picture. We find nothing in it to justify the conclusion drawn by the learned counsel. Apart from giving the description of the appellant's physical structure as it is, the pen‑picture speaks of the traits of his behaviour. No exception can be taken to the language used in the pen‑picture excepting as regards solitary word `grumbling'. Even this word, in our opinion, is not offensive so that it needs be expunged. It was admitted in course of the arguments that the appellant time and again pressed for good teachers for his school. In other words he always complained about lack of good teachers in the school. Repeated complaints in this regard may have been termed as grumbling on the part of the appellant. Such observations need not be given undue importance and held as something adverse for the appellant. Further, arguments of the learned counsel was that excepting the solitary report for 1982, the appellant's confidential record throughout has been clean and free from any blemish. He based this argument on the ground that no adverse remarks of any other year were ever communicated to the appellant. The learned counsel for the appellant was at loss to understand how the appellant's deterioration would take place so suddenly that his record otherwise being commendable would go downward and would fall below average for a brief period of only 9 months. It was further submitted that the appellant being a member of minority community the District Education Officer was not favourably disposed towards him. In order to appreciate the arguments advanced on behalf of the appellant, we went through the personal file of the appellant containing A.C.Rs., for other years. Although we did not come across any adverse entry against him, yet in most of the reports the appellant has been depicted as an average officer. We particularly examined the reports for 1980 and 1981, preceding the year of his adverse report (1982). In both the years, he has been rated as average official. Thus, having earned average report continuously for two years, we are not surprised if he fell below average in the following year of 1982. Such change about his assessment cannot be construed as sudden, having occurred overnight nor can it be held as having flowed from a biased mind. We should also bear in mind that standard of assessment varies from one reporting officer to another. Apart from natural faculties of the Assessing Officer, some of them are strict in assessment whereas others are liberal and show leniency in reporting. Moreover, no motive has been attributed to the District Education officer for giving adverse report to tile appellant. There existed no animosity between the two, which may be the cause of the adverse report. We regret we cannot agree with learned counsel that the adverse report given to the appellant was the result of the psychological effect created by the physical hearing of the appellant, can the mind of the Reporting Officer. We also rej0ect the argument that the Reporting Officer disliked the appellant only because the latter happened to be Hindu. It is also noteworthy that the Reporting Officer was not alone in his assessment about the appellant for the year 1982. The report for the said year was admittedly endorsed also by the next higher authority namely the Director by countersigning the same. Furthermore, the appellant's representation made to the Secretary to the Government of Sind for expunction of the adverse report also failed. Thus, both the Director and the Secretary expressed their unanimity with the assessment made by the Reporting Officer. Therefore, we see not an iota of justification for expunging the adverse report in question. As a last resort, the learned counsel for the appellant pressed for expunction of the adverse report on the ground of delay in communicating the same to the appellant. According to him though it related to the period from 1‑1‑1982 to 31‑9‑1982, it was conveyed to the appellant 2‑1/2 years late, on 27th April., 1985. In support of this argument the learned counsel placed reliance on the judgment of this Tribunal delivered in the case of Rana Abdul Waheed reported as 1987 P L C (C.S.)

434. We are sorry to say that the reported case relied upon by the appellant's counsel is of no avail in the instant case. All that has been emphasised m the reported case is that the late communication of the adverse report should be discouraged as such practice was not consistent with para. 34 of the said instructions. However, the appellant's prayer is for expunction o: the report communicated to him late. Of course late communication of the A.C.R. is deprecated on the ground that it loses its effect with passage of time, but it cannot be taken as the reason to expunge the same. The expunction of report has obviously the effect of washing off such report. In our opinion existence of the report, of whatever nature, m the personal file of the official concerned is different from the effect that such report carries in relation to terms and conditions of the said official. Whatever may be the effect of the adverse report given to the appellant which can be decided in the light of circumstances obtaining at relevant time, we see no reason to expunge the same. For above reasons there is no merit in the appeal which is accordingly dismissed with no order as to costs. A.A./177/Sr. S Appeal dismissed