1988 PLP (C (PLC(CS))

While in over‑all grading he was treated as good and in the counselling column following remarks appeared:‑ " ..He improved a lot when asked to remain cautious in making unnecessary comments about men and matters."

7. The first submission on behalf of the appellant is that he had submitted a representation against these remarks and also appended with this representation documents repelling impression tried to be created by the Reporting Officer. We have considered these remarks and our impression is that there was some mis‑understanding between the appellant and the Deputy Inspector General of Police concerned, which resulted in these adverse remarks. This impression of our is clearly borne out from the wording used by the Reporting Officer that the appellant is loose talker. The appellant on one hand had attached a long list of commendation certificates granted to him and on the other hand appreciation letters issued by the Deputy Inspector General of Police, Sargodha Range and the Director of Dillingham Pakistan (Pvt.) Limited.

8. This report is, however of no consequences for the reasons: ‑ (i) It was considered in the meeting of the Review Committee in the month of April 1986 and the case of the appellant was deferred for one year to await for the result of the representation of the appellant. (ii) Legally speaking this adverse report was subject to scrutiny at the departmental level through the representation and then by this Tribunal and still the matter can be agitated in the Supreme Court of Pakistan. The report being not final cannot furnish the basis for the order under section 12 (ii). If the adverse remarks are expunged tomorrow by the department in the representation or thereafter by this Tribunal in an appeal under section 4 of the Punjab Civil Servant Act 1974 or by the Supreme Court of Pakistan then what basis will be left to justify the action under section 12(ii) of the Punjab Civil Servant Act. On the other hand the matter could be deferred till the representation of the appellant was decided. It could be postponed till the adverse remarks attained finality and the parties have exhausted the remedies. This view of our is supported by the case of Maqbool Ahmad Khan v. Interior Ministry reported as 1985 P L C (CS) 368 and the relevant portion reads as under:‑ "It appears, as observed by the Director I & P that the Committee, instead of giving more weightage to the record of the preceding 10 years, as directed by the President, vide paragraph 2 (a) of the Establishment Secretary's D.O., which says that:‑ "The review shall be mainly based on the ACRs more weightage being given to the record of the preceding 10 years." took into account the adverse remarks recorded as far back as 1956 to 1958 and 1962 to 1965 which were never communicated to him, and also ignored the fact that the latest ACR namely, that ending 31st Dec. 1981, was thoroughly satisfactory. Apart from this, the Review Committee blundered by giving undue weightage to the adverse remarks contained in the ACR for the year 1980, when these remarks had been challenged by the appellant and no decision had been taken in the matter by the time the case was taken up by the Review Committee." We are, therefore, of the considered opinion that the adverse remarks against which the appellant has not exhausted statutory remedy cannot be made basis of action under section 12 (ii).

9. The remarks which have been underlined by us were the remarks treated as adverse. This does not reflect on his work on integrity in any manner. The facts of these remarks is washed when we refer to the column i.e., counselling which reads as under:‑ "He improved a lot when asked to remain cautious in making un‑necessary comments about men and matter." Thereafter in the column of assessment of performance following remarks are also relevant:‑ "His output as an S.D.P.O. has remained satisfactory. He performed his duties with commendable stamina and determination. " He was treated by the Reporting Officer and Counter‑signing Officer as equal to the majority of the officers. The Counter‑signing Officer) has treated him even fit for promotion in turn. We wonder how this report has been treated as adverse.

10. The learned District Attorney has further referred to the following passage from memo of the Deputy Inspector General of Police, Sargodha Range:‑ "Is not enjoying good reputation regarding his integrity Although there is no specific complaints against him yet it can safely be opined he is indulging in corruption." It is admitted position that these remarks were never recorded in the A.C.R. or otherwise conveyed to the appellant, therefore, the same cannot be taken into consideration at all. It is strange that the Department after decision of the Review Committee to retire the appellant started collecting material to furnish basis for the order of retirement. This effort in fact, amounts cooking up evidence to justify action already taken. Therefore, the impugned order in fact is liable to be set aside on this ground alone. Even these remarks at their face value do not carry any authenticity with the same. The remarks are too vague. This clearly confirms our impression that the appellant had incurred the displeasure of his bosses and they were out to harm him, otherwise the officer, who was reported to be good throughout his service or at least not branded as corrupt how he will suddenly indulge in corruption? It is in‑conceivable situation that a prudent civil servant will get astray at this juncture of his service when he knows very well that one adverse report is sufficient to end his career.

11. The appellant was promoted as D.S.P. on 26‑6‑1984, therefore we find that the appellant had good service record and the adverse entries for the year 1985 are the only weak point picked up by the District Attorney. This report is not final as the appellant had submitted the representation against the same. The legal and proper way was that the representation of the appellant should have been decided on merits first and then his case taken up. The adverse report being subject matter of the representation, therefore, we feel' it against all principles of justice, equity and good conscious to make the same basis of order under section 12(ii) of the Punjab Civil Servants Act,1974.

12. Now we take up the other ground urged on behalf of the appellant that his record was scanned in April 1986 and it was decided to wait for the result of his representation. The appellant has filed an affidavit in support of the contents of the appeal. On the other hand we asked the learned District Attorney that in case he wants to controvert the contentions of the appellant and specifically this point, then he has `to file a counter affidavit to the effect that this was the first scrutiny, as a result of which the appellant was retired. The respondent has not filed a counter affidavit and rightly so because we have checked up from the record and find that the case of the appellant was deferred for one year in the scrutiny held in April, 1986. It seems that the name of the appellant has been included in the list of officers to be retired only to complete the number otherwise his case had been deferred after due deliberation and rightly done too. This is unfortunate that the authorities entrusted with most responsible and delicate work proceed on surmises and conjectures.

13. We have given our anxious considerations and it is settled law by this time that the Tribunal has jurisdiction to set aside an order under section 12 (ii) where same is whimsical, capricious or motivated by mala fides. The competent and efficient civil servants can challenge such action and claim that the same is not proper and illegal, therefore, liable to be set aside. The test has to be objective. If proposition looked from this angle then the Government is accountable. This accountability in exercise of power demands that it should be exercised objectively and on material which is relevant. Thereafter the civil servants can show to the Tribunal the correctness or incorrectness; relevance or irrelevance, sufficiency or insufficiency of such material. When the merits of the appeal are judged keeping in view the guidelines prescribed by the Government and the principles deduced from the judgments of superior Courts then no doubt is left in our mind that the action against the appellant is capricious and arbitrary.

14. We hold that review committee having deferred the case of the appellant could not have taken up the same legally otherwise in the very next meeting and the possibility of malice cannot be ruled out. It is strange that after taking decision to retire him, the concerned authorities were collecting material to justify the order of retirement of the appellant. This, also, clearly goes in favour of the appellant. The relevant portion of the comments rendered by the respondent No.2 reads as under:‑ "S.P. Mianwali reported adversely against him for the year 1985 in which his integrity had also been adversely commented upon. The record of this Officer is with the C.P.O. and some more material might be available in his record in this regard. In the meantime I have directed the S.P. once again to find out substantial facts, but 1 am afraid we will have to reply on the general reputation of the officer for the time being. 1 further request that sufficient time may be allowed during which discreet enquiry could be held to collect more facts and material to substantiate the assessment based on general reputation. This clearly confirms our impression that the name of the appellant[ was included in the list to make up the number otherwise the Committee was not in possession of sufficient material to base its recommendation of retirement of the appellant.

15. The result is that this appeal succeeds, we set aside the Notification of retirement of the appellant dated 18‑6‑1986 and direct that the appellant be deemed to be in service throughout and is entitled to all benefits including promotion, seniority etc. The financial benefits and leave if availed shall be adjusted according to rules. No order as to costs. M.Y.H./163/Sr.P Appeal accepted.