2013 PLP (C (PLC(CS))

WAQAR AHMAD SETH, J.

This judgment shall also dispose of Subordinate Judiciary Service Appeals Nos.95, 96, 97 and 98 of 2011 filed by Zahid Mahmood, appellant, a Judicial Officer/Member of Subordinate Judiciary, praying for expunction of adverse entries recorded in his ACRs/PERs by Administration Committee of the Peshawar High Court and conveyed to him by Registrar, Peshawar High Court, Peshawar as detailed below in a single envelop on one and the same day for the years 2006 to 2009.

2. Subordinate Judiciary Service Appeal No.95 of 2011, under section 5 of the Khyber Pakhtunkhwa (Subordinate Judiciary Service Tribunal Act, 1991 against the adverse remarks for the period 2006 communicated vide reference letter No.07/Confdl dated 10-5-2011 conveyed to the appellant on 13-5-2011, the remarks are:

(i) Integrity So so (ii) Overall Grading Average (iii) Fitness for promotion Not fit for promotion.

3. Service Appeal No.96 of 2011, under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 against the adverse remarks for the period 2007 communicated vide reference letter No.08/Confdl dated 10-5-2011 conveyed to the appellant on 13-5-2011 (same remarks and wordings).

4. Service Appeal No.97 of 2011 under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 against the adverse remarks for the period 2008 communicated vide reference letter No.09/Confdl dated 10-5-2011 conveyed to the appellant on 13-5-2011(same remarks and wordings).

5. Service Appeal No.98 of 2011, under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 against the adverse remarks for the period 2008 communicated vide reference letter No.10/Confdl dated 10-5-2011 conveyed to the appellant on 13-5-2011 (same remarks and wordings),

6. As per averments in the memo. of appeals, his representation dated 11-6-2011 against the said entries were not disposed of by the Administration Committee of the Peshawar High Court, within the prescribed period of 90 days as required under section 5(a) of the Act, 1991 and thus, the present appeals, were filed under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991.

7. In support of these appeals, we heard learned counsel for the appellant as well as learned A.A.-G., assisted by Mr. Farhatullah Khan, Additional MIT, Peshawar High Court, Peshawar, Original ACRs of the appellants were also requisitioned from the office of Registrar, Peshawar High Court, Peshawar.

8. Learned counsel for the appellant vehemently argued that under the "Instructions of Performance Evaluation Report" issued by the Government of Khyber Pakhtunkhwa, which is applicable to the case of appellant, counseling/warning of the officer under report, before recording any adverse entries in his annual ACRs/PER is one's right and that the appellant has not been administered any such warning/ counseling, either by the Reporting Officer, or by the Countersigning Authority or for that matter the Committee. He also questioned the late communication of the entries, as violation of the said instructions. Reliance was placed on 1996 SCMR 256 and 1999 SCMR 1587, wherein, adverse remarks recorded in Annual Confidential Report, were communicated to him after lapse of about 4-1/2 months and the authority failed to explain each day delay and it was held that the adverse remarks should be communicated to the civil servant within reasonable period and in absence of any reasonable explanation for not communicating adverse remarks within the period, Service Tribunal was right by expunging the same.

9. On the other hand, the appeals were opposed by the respondent while arguing that instructions are just instructions having no mandatory effect rather the same are directory in nature and non-compliance of the same regarding the time entails no consequence. Moreover, it was argued that no exception can be taken to the said entries and in this respect reliance was placed on case-law reported as 1999 SCMR 277 2001 SCMR 1707 and PLD 2004 SC

191. Arguments heard and record perused. 10. 'Performance Evaluation' may be termed as a system of making judgments about performance of officials of various levels by their superior in order to guide selection and other personnel decision. Confidential Reports rendered by reporting officers, on the performance of officials serving under them constitute the most important basis of evaluation, the character roll dossier maintained for the purpose contains a systematically prepared and carefully assembled performance record of the official concerned.

11. Since the Confidential Reports constitute an aid to selection for training, appointments/transfer, promotions, confirmation or screening of officials it is essential that they are written most carefully. An officer, before he embarks on the report writing work, should try in comprehend the characteristics listed in the Confidential Report forms. The report should give a clear picture of the officer reported upon, unambiguously.

12. Admittedly, there are no Instructions on performance evaluation report of the respondent establishment and in the absence of the same one has to follow the Instructions, issued by the Government of Khyber Pakhtunkhwa for civil servant as the law of civil servant, in this respect is the basic one, therefore, the "Instructions on Performance of Evaluation Report" compiled by S&GAD Government of N.-W.F.P. are to be following. Even otherwise, when anything is not followed, uniformly the system is derailed, creating chaos and mismanagement. These Instruction on Performance Evaluation Report, in field are complete in all respect, admittedly not mandatory but directory.

13. Para. No.0.3 of the said Instructions prescribes manner of writing the report by Reporting Officer and sub-para.(i)(1) says that while reporting on your subordinate, be objective as possible, sub-para.(2) says, be as circumspect as possible, Sub-para.(3) says, be cleared and direct, not ambiguous or evasive in your remarks and (4) says avoid exaggeration and gross under statement.

14. Para. No.3.7 asks for warning/counseling, that the same may be insured in all cases before initiating any adverse report or grading the ACR; and the officer who give adverse remarks without any solid grounds shall be personally held responsible for deviation from rules and non-observation of Government Instructions amount to misconduct under clause (e) of sub-rule (1) of Rule 2 of the Khyber Pakhtunkhwa Civil Servants (E&D) Rules, 1973 and can attract disciplinary action, whereas Para No.5.2 prescribes the time of communication of the remarks i.e. before the ends of June, each year.

15. In the instant appeals, there are three types of remarks firstly, regarding 'integrity' So so, the same when put to litmus test does not seems to be objective rather reflects ambiguity. The dictionary meaning of 'So so' is "neither very good nor very bad" hence, the same cannot be termed/treated as adverse by any stretch of imagination. Even otherwise, there is no an iota of evidence on record regarding the integrity of the appellant nor anything was pointed out or communicated to the appellant, even today at the time of arguments.

16. Secondly, regarding overall grading, appellant is assessed as 'Average' and no where in the history an 'Average' remark is treated as adverse. It is pertinent to mention here that once an Officer is graded as 'Average' he cannot be denied promotion.

17. Lastly appellant is assessed as not fit for promotion, which in fact is the adverse remark, therefore, the same is communicated. Promotion is always made on the basis of seniority-cum-fitness. Seniority depends upon the seniority list which is circulated annually, whereas fitness depends upon different factors including efficiency, quantification of ACRs, professional output etc.

18. The record examined today and the comments/reply filed by the respondents do not contain anything regarding the deficiencies of the appellant nor anything is on record that appellant is inefficient and his performance is not up to the mark, none of his judgment as written by him, was pointed out to be unprofessional. The question arises that as to whether anyone can be denied promotion, which is a terms and conditions of service defined in section-9 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 and according to section 4(1)(a)(ii) of Khyber Pakhtunkhwa Government Servants (E&D) Rules, 1973, withholding of promotion is punishment. Denying promotion to an incumbent amounts to punishment and admittedly no punishment can be imposed without any allegations and without any charge-sheet, inquiry etc. in other words without issuing any warning/counseling letter the promotion cannot be denied or declared unfit for promotion, as the same will be amounting to 'Audi Alterarm Partem'.

19. No one can be declared unfit for promotion on the basis of just presumptions and assumptions the record of the appellant speaks otherwise. The performance, output, professional achievement and work etc. are all up to the mark, therefore, we are constrained to disagree with the remarks recorded in the column.

20. The prime and foremost duty of every Judicial Officer is to conduct himself in a manner so as to maintain the image and dignity of Judiciary resulting into fulfillment of high expectation of public in general and litigant in particular. They must be honest, extra careful straight forward and never act in a manner, which may lower the image of the Institution and shake the confidence of the masses and this can only be done and achieved when the incumbent is confident and protected by the Institution, therefore, high standards are expected from the Institution while reporting upon the Officers, which affect their future as well.

21. It is observed with great concern that in the year, 2006 it was an era of "A" whereas the impugned ACRs of the appellant are signed and communicated in the era of "D" i.e. in the year, 2010. The authenticity, correctness and maintainability of these ACRs are questionable, although not agitated by the appellant, that is why the Instructions regarding the performance evaluation report were formulated and introduced and if at all the same would have been followed, the present chaos and confusion would not have been arise.

22. Depending on the facts and circumstances, longer unexplained delay may adversely reflect upon the authenticity of such adverse remarks. This principle, therefore, which can safely by enunciated, is that adverse remarks should be communicated within the prescribed period and if there is any unreasonable delay, the authorities should explain it with sufficient reason so that such remarks may be accepted as unbiased and effective. In the present case, there is hardly any reasonable explanation for such delay. There seemed to be some confusion in the mind of the authorities who failed to convince the court and as such in this background these remarks for the period 2006 to 2009 communicated after unreasonable delay are completely vitiated.

23. If any adverse remarks in the A.C.R. are biased, unreasonable and contrary to facts the same cannot be allowed to remain on record. It is the duty of the Reporting and Countersigning Officer to give an honest, reasonable and unbiased assessment of the civil servant uninfluenced by personal likes and dislikes, prejudices and partiality. Any action suffering from such infirmities can have no legal sanction to exist.

24. For the reasons recorded above, there is no legal justification to uphold the adverse remarks recorded against the appellant, which stand expunged, hence all the four appeals are allowed. HBT/173/P Appeals allowe