1993 PLP (C (PLC(CS))

JUSTICE ZIA MAHMOOD MIRZA (MEMBER).‑‑‑This appeal seeks expunction of the following adverse remarks recorded in the ACR of the appellant for the year 1975 and communicated to him through letter dated 16th September, 1979:‑‑ "Judgment and sense of ,proportion Below average Integrity:‑‑ (a) Intellectual (b) Moral Below average Behaviour with public = Is inclined to be arrogant. Standard of living =Reported to be living beyond known means of income. Comparison with other = Below average. Officers Pen‑picture: To comment on his ability and intelligence one has to pierce through a halo of bad reputation‑ which indeed is too dense." The appellant was posted as Civil Judge, Sialkot in the year 1975. His ACR for that year was initiated by Mr. M.Z. babar, Additional District and Sessions Judge, Sialkot who recorded the aforenoted impugned remarks which were conveyed to the appellant vide High Court's D.O. Letter No. 473/RHC, dated 16‑9‑1979. The appellant made a representation which was rejected by the High Court. Hence this appeal. We have heard both the sides and also perused the relevant record particularly the CR Dossier of the appellant. The appellant assailed the impugned remarks on a number of grounds. His first ground of attack was that Mr. M.Z. Babar being an Additional District and Sessions Judge was not competent to record his ACR which as per the instructions contained in the memo dated 11th May, 1960 issued by S&GAD could be initiated only by the District and Sessions Judge. It was submitted that an Additional District and Sessions Judge was subordinate to the District and Session Judge within the meaning of section 3 of the Code of Civil Procedure read with section 14 of Civil Courts Ordinance, 1962. It was also pointed out that Mr. M.Z. Babar was an ad hoc Grade‑18 officer whereas the appellant was a confirmed Grade‑18 officer. We have given our anxious consideration to this contention and found no substance in it. It is no doubt true that according to the instructions relied upon by the appellant, District and Sessions Judge was the initiating authority of confidential reports of Civil Judges but in the instant case, the District and Sessions Judge, Sialkot (Mr. Mahmood Khan) had died on 6‑10‑1975 and his successor (now Mr. Justice Ausaf Ali Khan) took over only on 14‑11‑1975 with the result that he too could not initiate the ACR of the appellant as he had not seen his work and conduct for a minimum period of 3 months necessary for recording the confidential reports of the subordinates. In the circumstances, the Chief Justice of the Lahore High Court vide Letter No.113/RHC/B‑33, dated 4th February, 1976 authorised Mr. M.Z. Babar, Additional District and Sessions Judge, Sialkot to record the annual confidential reports of the Civil Judges and other officials working in the Sialkot District. We have been informed that Mr. M.Z. Babar recorded the ACRs of all the Civil Judges posted in District Sialkot during the year 1975. It may pertinently be stated that Mr. M.Z. Babar. was posted in that district since 1974 and he had also officiated as District and Sessions Judge on the death of Mr. Mahmood Khan. For all these reasons, we hold that Mr. M.Z. Babar was fully competent to initiate the ACR of the appellant and no legitimate exception could be taken to the adverse remarks on the ground of want of jurisdiction authority. The adverse remarks were also impugned on the ground of mala fides. It was contended that Mr. M.Z. Babar harassed a Refrigerator Mechanic on whose complaint, his explanation was called for by the High Court. Some posters were also published against Mr. M.Z. Babar and the High Court sent the M.I.T. to hold the enquiry into the matter. According to the appellant, Mr. Babar suspected that he had manoeuvred these complaints and, therefore, with a view to wreak vengeance, he recorded the impugned adverse remarks. We are not impressed by this argument of mala fide because nothing tangible has been brought. On the record to show that Mr. M.Z. Babar nurtured any suspicion that it was the appellant who had engineered the complaints against him. Yet another argument raised on behalf of the appellant was that the adverse remarks recorded by the Reporting Officer had no basis whatsoever as no complaint was ever made against his integrity, behaviour and standard of living. It was also pointed out that there was no adverse entry regarding the appellant's integrity, competence, intelligence and fitness for promotion in his confidential record from 1969 to 1973 and even during the period subsequent to the year 1975. We have gone through various ACRs of the appellant and found that there was not a single adverse entry in his entire service record with regard to his judgment and sense of proportion except the one impugned in this appeal. It may pertinently be observed that in the ACRs for the years 1969 to 1972 and 1974 as also for the years 1976 to 1979, the judgment and sense of proportion of the appellant has been rated `Good'. It does not stand to reason that this quality of the appellant's mind suffered such a sharp and sudden 1 decline only for one year so as to justify the impugned remarks. Similar is the position of the adverse entry relating to the appellant's behaviour with public. We have noted that except for the entry in question, the appellant has all along from 1967 to 1981 been described in the relevant column as `modest and helpful. Learned counsel for the respondent could not refer to any complaint against the appellant's misbehaviour during the year 1975. In the circumstances, the impugned remarks `is inclined to be arrogant' also cannot be sustained. We have also noticed that no adverse comments were ever made on the appellant's integrity, moral and intellectual, and his standard of living from the date of his joining the service in 1967 upto 1973. His integrity was rated `Good' for the years 1969, 1970 and 1972 and `very good' for the year 1971 and all along from 1967 to 1973, he was reported to be living within known means of income. Adverse remarks regarding his reputation and standard of living were added for the first time by the Countersigning Authority in the ACR of the appellant for the year 1974 but the same have been expunged by us today in another appeal (S.A. No.19 of 1991). In the subsequent years also, integrity of the appellant and his standard of living have never been subjected to any adverse comments. It may pertinently be observed that in the ACR for the period from January 1976 to 15‑4‑1976 recorded by Mr. Ausaf Ali Khan, the then District and Sessions Judge, Sialkot, the appellant was reported to be living within known means of income. This entry was maintained in the subsequent years. His integrity was also mostly rated as `Good' and `Very good'. We have also observed that there was neither any complaint against the appellant's integrity and life‑style nor was he given any counselling or warning by‑ the Reporting Officer. Keeping all this in view, we have come to the conclusion that there was no good ground for the impugned remarks regarding the appellant's integrity and standard of living and for the same reasons we hold that the remarks given in the pen‑picture regarding `Bad reputation' of the appellant were without any basis and cannot, therefore, be sustained. We are also not inclined to uphold the general assessment of the appellant as `below average'. This assessment apart from being inconsistent with the past and subsequent service record of the appellant also does not appear to be justified from the overall assessment made in the specific column of the ACR for the year 1975. Upshot of the above discussion is that we allow this appeal and expunge the impugned remarks from the appellant's ACR for the year 1975. A.A./3/PSJST Appeal accepted.