1988 PLP (C (PLC(CS))

IHSANUL HAQUE CHAUDHARY, (CHAIRMAN)‑‑The facts relevant for the decision of the appeal are that the appellant was serving as District Education Officer (Women), Sheikhupura. The countersigning officer recorded the following adverse remarks in her ACR for the year 1985:‑ "PART VI: (a) Overall grading: Unsatisfactory (Poor) (b) Fitness for promotion: Unlikely to progress further. "PART VIII" "I do not agree with R.O. The lady officer has the reputation of a corrupt person."' These adverse remarks were conveyed to the appellant through D.O. letter dated 15‑6‑1986. The appellant submitted a detailed representation which was received in the office of the Secretary, Government of the Punjab, Education Department, Lahore, on 28‑6‑1986. The Representation was not decided within the statutory period of 90 days, therefore, the appellant was constrained to invoke the jurisdiction of this Tribunal and file the present appeal u/s 4 of the Punjab Service Tribunals Act, 1974. The appellant has impleaded the Government of the Punjab through Secretary Education and Mr. Muhammad Sharif, Director Public Instructions (Schools), Lahore. The appellant has prayed for expunction of impugned adverse remarks on the grounds that the same are factually incorrect having been recorded in utter disregard of the instructions issued by the Government for writing of ACRs and same are mala fide.

2. The appeal was admitted to regular hearing on 15‑7‑1987 and it was posted to 17‑11‑1987. Meanwhile another appeal filed by the appellant against her retirement a/s 12(ii) of the Punjab Civil Servants Act, 1974, came up for final hearing and the adverse entry subject matter of the appeal was brought directly in issue in the said appeal by the respondents, therefore, in order to avoid any prejudice to any party the Tribunal directed to accelerate the date in this appeal, issued the notices to the parties and fixed the same for arguments on 7‑9‑1987.

3. The respondents have contested this appeal, filed parawise comments/ written objections and prayed for the dismissal of appeal.

4. We have heard the learned counsel for the appellant and Mr. A.G. Humayun, District Attorney on behalf of respondents and gone through the service record.

5. Learned counsel for the appellant has urged the following points in support of his appeal:‑ (1) Firstly the remarks are factually incorrect as the respondents No.2 has no opportunity to see the work and conduct of the appellant personally. (2) Secondly the remarks have been recorded in utter disregard of the instructions for writing of ACRs. (3) Thirdly the remarks are mala fide. (4) Fourthly the appellant has blotless service of 32 years and all the ways earned good reports.

6. On the other hand learned District Attorney has argued that respondent No.2 is not bound by the opinion of the Reporting Officer. The Countersigning Officer has recorded his own observation bona fide and correctly. He has further submitted that the instructions regarding writing of ACRs are only directory in nature and not mandatory, therefore, need not be strictly followed. The appellant cannot take any benefit of any departure made by the countersigning officer from these instructions unless and until she proves that it has prejudiced her in any manner.

7. We have considered the arguments of both sides and find that the Reporting Officer has throughout treated the appellant as 'A' (Good) while in part VI (a) Overall grading 'better than majority of officers' and in the next column as to fitness for promotion, declared her fit for promotion in her turn.' While the countersigning officer as reproduced above, has declared her work unsatisfactory and in Column IV, observed that she is unlikely to progress further.

8. The countersigning officer was arrayed as respondent by the appellant and the comments furnished by him only indicate that the adverse remarks were based on his independent assessment. While in reply to the ground of mala fide he has simply denied the contents of memo of appeal and submitted that the cancellation of orders of transfer of the appellant was made by the Government, therefore, there is no question of any mala fide or animosity on his part. It may be made clear that respondent No.2 has failed to render justification for recording the impugned remarks. He was under legal obligation to render justification as per para‑30 of Instructions of writing of ACRs, which reads as under: "30‑Manner of writing the reports.‑‑The opinion expressed should be the result of careful consideration; no personal bias, ire, or favouritism should colour the report. The reporting officer should be in a position to justify his views, if called upon, to do so." It is therefore, clear that the respondent No.2 cannot get away with simply saying that this was his impression. He is under obligation to render justification for the adverse entries recorded by him.

9. The Reporting Officer, who is immediate Incharge to supervise the work and conduct of the appellant has throughout graded her as, 'A' (Good) and in some respects as 'AI' (Very Good). The learned counsel for the appellant has drawn our attention to the report for the preceding year i.e. 1983, when the same countersigning officer has agreed in all respects with the Reporting Officer who had treated p the appellant as 'A' and 'AI'.

10. We have gone through the other reports of the appellant and find that she has clean record of service throughout. Therefore, keeping in view the whole career and the grading of the Reporting Officer we feel that the adverse remarks recorded by the countersigning' officer are not sustainable and factually incorrect. This fact is further established by the fact that the countersigning officer has failed to render any justification in support of his views. The appellant has clearly alleged that an M P A of District Sheikhupura wanted the appellant to do some favour but as the appellant failed to oblige him and did not proceed according to his desire was naturally annoyed, approached respondent No.2 and poisoned his mind. Be that as it may respondent No.2 has to disclose the source and complaint if any. This having not been done, the adverse remarks are rendered. without any basis and justification.

11. The second argument that the remarks were recorded in utter violation of the instructions regarding writing of ACRs, we agree with learned District Attorney that since the appellant has not shown any prejudice, therefore, the departure is of no consequence. We would like to point out here that the countersigning officer seems to have recorded the report in a great hurry, therefore, neither he has put his name, nor designation nor even the date of recording the impugned remarks has been given. Even it is not clear how these remarks were treated as adverse as the same have not been underlined in red ink nor there is any entry as to the communication of these remarks to the appellant. The undue haste shown by the countersigning officer is, also, evident from the fact that he has not scored the grading or remarks in Part‑VI by Reporting Officer. The relevant instruction in this respect reads as under: "12‑If the countersigning officers with the grading or remarks given (in parts other than Part VI) by the Reporting Officer, he should score it out and give his own grading in red ink. In Part VI he is required to give his own assessment in addition to that of the Reporting Officer. 13‑The countersigning officer should underline, in red ink remarks which in his opinion are adverse and should be communicated to the officer reported upon."

12. Thirdly the argument as to the mala fide of the countersigning officer. We have considered the arguments of both sides and gone through the entire service record of the appellant and we are convinced that these remarks are the outcome of mala fide and malice. It is admitted position that the appellant was, in the year 1985, twice transferred from Sheikhupura but her transfer was cancelled on intervention of the public representatives. The appellant has clearly alleged in para‑4(e) that on account of the cancellation of transfer orders the respondent No.2 became annoyed. Relevant portion reads as under: "4(2)‑That the respondent No.2 has a reputation of revengeful nature and developed personal malice and animosity towards the appellant. It is so happened in the year 1985 that the appellant was transferred twice from Sheikhupura but the same was later on cancelled by the intervention of the people's representatives. The wrath was verbally conveyed to the appellant when respondent No.2 threatened her to teach a lesson. The respondent No.2 by his recording the impugned remarks has acted for mala fide and personal reasons." Whereas respondents in the comments have simply remarked it is not admitted. The respondent No.2 was required to render justification and explain the background of these remarks. The argument of the appellant that some influential person at Sheikhupura was out to cause harm to the appellant and further that the respondent No.2 was at his back.

13. It is further pointed out that the President of Pakistan Teachers Association had printed an open letter addressed to Mian Nawaz Sharif, Chief Minister, Punjab, wherein serious allegations have been levelled against respondent No.2. The appellant has attached a copy of this letter with the appeal. It is argued that respondent No.2 had the impression that the appellant and some other officers have encouraged the distribution of these hand bills. It seems that respondent No.2 was in hot water and he was disturbed by this campaign against him. We find substance in the contention of the appellant that the impugned adverse remarks are mala fide and liable to be set aside, our reasons are:‑ (1) The whole service record of the appellant is clean and unblemished and particularly our opinion finds support from the ACR for the year 1984. (2) The grading by Reporting Officer as 'Good' for most part and 'Very Good' in some respects. The appellant was treated as better than majority of officers. Similarly we have consulted the reports for the years 1980, 1981, 1982, 1983, the same are also fairly good and nothing adverse appears against the appellant. (3) We have noted that remarks are vague and indefinite. Respondent No.2 has failed to disclose his source of opinion both in the report as well as in the written objections filed before the Tribunal. Even there is nothing on record to vouch and furnish basis of these remarks. We cannot allow such baseless remarks to tarnish the record of efficient public servant. Twice transfer of appellant and its cancellation. It is not conceivable that the appellant, who throughout her service career, was efficient, honest, and upright, will indulge in corruption at a juncture when she knows fully well that one adverse report is sufficient to end her service career. We in this behalf refer to the law case Javed Sheen v. Secretary LGR Department reported as 1984 P L C (CS) 1344. Relevant portion is reproduced below:‑ "The law laid down on this point by us from time to time is very clear and we have observed in the above cited judgments relied upon by the learned counsel for the appellant that inefficiency and corruption are the traits of character which linger on with a person and cannot develop suddenly to make a person corrupt. We also held in 1983 PLC (CS) 196 that the officer giving adverse entry should be able to justify his opinion by relating an instance of omission on behalf of such persons particularly when the appellant has been reported well by his immediate superior and it was only the countersigning authority (who belongs to the upper hierarchy) decided to disagree with the opinion of his immediate superior. We therefore, are fully convinced that the impugned adverse remarks by the countersigning officer are uncalled for, against facts and result of malice and are liable to be expunged.

14. Resultantly, we accept the appeal, set aside the impugned order and direct that the remarks be expunged from the ACR of 1985 of the appellant. There is no order as to costs. M.Y.H./164/Sr.P Appeal accepted.