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Petitioner: MRS. MUSARRAT BURKIE VS Respondent: SECRETARY TO GOVERNMENT OF PAKISTAN,
Court Name: Federal Service Tribunal Judge(s): Muhammad Irshad Khan, A. O. Raziur Rahman Title: MRS. MUSARRAT BURKIE vs SECRETARY TO GOVERNMENT OF PAKISTAN, Case No.: Appeal No. 97 (R) of 1982 Date of Judgment:1982-11-10 Reported As: 1983 PLC (C. S.) 129 Result: appeal made
JUDGMENT
JUDGMENT MUHAMMAD IRSHAD KHAN (MEMBER).-This is an appeal by Mrs. Musarrat Burkie, Director, Information Service Academy, Ministry of Information and Broadcasting, Islamabad, for expunction of adverse remarks recorded in her A. C. Rs. 2. We have heard the appellant and the learned counsel for the respondents Nos. l and 2, Mr. M. Shahudul Haque, and perused all the relevant records including the A. C. Rs. Of the appellant pertaining to the periods 1964 to 1981, produced before us by the respondent-department. The case of the appellant as averred in the memo. Of appeal and is the submissions made before us during the course of hearing, briefly speaking, is that presently the appellant is in Grade-19 and is serving as Direc--tor in the Information Service Academy, Islamabad. She has put in more than 38 years' service during which her performance has been throughout excellent and that she was never reported adversely as no such adverse remarks or report were ever conveyed to her. However, in March, 1982, the appellant received a D. O. Letter from the Deputy Secretary, Ministry of Information and Broadcasting, Islamabad, communicating adverse entries recorded by the Countersigning Officer, the Additional Secretary, Ministry of Information and Broadcasting, in her A.C.R. For the year 1981 which reads as under :-- "She is highly qualified on paper but there is no corresponding value in practice. I believe she has reached her ceiling." The appellant represented against the above-quoted adverse remarks but she was informed vide Deputy Secretary, Ministry of Information and Broadcastings D. O. Letter dated the 4th April, 1982, that the competent authority after examining her representation, has decided that the adverse remarks in question should not be expunged. She then submitted through proper channel a
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representation to the President of Pakistan under section 22(2) of the Civil Servants Act, 1973. In response thereof she again received a D. O. From the same Deputy Secretary stating that a Civil Servant is entitled to make only one representation against the adverse remarks within a prescribed period of fifteen days and no provi--sion exists for making second representation. 3. Feeling aggrieved thereby the appellant filed the present appeal before this Tribunal. The appellant contended that for the reason best known to him, Mr. Masoodur Rauf, Additional Secretary Ministry of' Information and Broadcasting, with a view to deprive of the appellant from promotion to Grade-20 and to favour M/s Munir Sheikh, Ehsan-ul--Haq Khilji and Ihsanul Haq who were junior to her and less qualified, maliciously recorded the remarks, quoted above, and she has also reasons to believe that in her last year's report also Mr. Masoodur Rauf, the Countersigning Officer, might have recorded some adverse remarks which, however, have never been communicated to her. It has been submitted that the adverse remarks, in question, were recorded in total disregard of her excellent performance during the reporting period and always prior thereto as well as her good record of service. Even in the A. C. R. Per--taining to the year 1981 the reporting officer gave her good report, assess--ed her fit for promotion and recorded in pen-picture column that the appellant has valuable experience in print media. Therefore, the appel--lant contended that the adverse remarks, in question, recorded by the Countersigning Officer are totally unjustified particularly when she has never worked directly under Mr. Masoodur Rauf, Countersigning Officer, and her associated with him consists of only a few Chance meetings. Therefore, he was not in a position to make an objective and correct assessment about the worth and performance of the appellant. She further submitted that much damage has been done to her due to those adverse remarks as she has already been superseded and is likely to be superseded in the future also. Not only this, an application submitted by the appellant for her nomination as Pakistani Expert against U. N. Vacancies was rejected by the Ministry of Information and Broadcasting on account of these adverse remarks. It was also contended by the appel--lant that Mr. Masoodur Rauf in countersigning her A.C.R. Had exceed--ed the bounds of his administrative powers inasmuch as the Secretary and not the Additional Secretary was competent to countersign her A. C. R. In this regard she placed reliance upon Article 2.33 of the booklet "Per--formance Evaluation" whereby a report on the work and conduct of the deputies to the Head of Office initiated by a Joint Secretary has to be countersigned by the Secretary of the Administrative Ministry. She also urged that all this was done by Mr. Masoodur Rauf due to some personal bias which he has recently developed against her. The appellant, there--fore, prayed for a direction from this Tribunal that the adverse remarks recorded in her A.C.R. For the year 1981 as welt as the previous years be expunged as having been drawn up in violation of statutory rules and being absolutely unjustified, biased, subjective and contrary to the factual position on record. 4. The learned counsel for the respondent-department was content merely on taking a stand that the present appeal is not maintainable' and the Service Tribunal has no jurisdiction to interfere in the matters of A.C.Rs. In support of his stand he mainly placed reliance on a decision of the Supreme Court PLD 1960 SC 164. Surprisingly enough, however, the learned counsel totally ignored the latest law on the subject as has been enunciated by the Supreme Court in the case 1981 SCMR 392 whereby it has been affirmed that the law laid down in the 1960 case relates to the jurisdiction of the High Court and not the Service Tribunal, in the matters of A:C.Rs. It is now a well- settled legal position that the Service Tribunal has vast jurisdiction in the service matters distinct from the extraordinary jurisdiction of the High Court and it is well within the competence of the Service Tribunal to entertain an appeal made by a civil servant against the adverse remarks in his A.C.R., review the assessm ent made therein and if found appropriate to substitute their own opinion for the opinion of the officer who incompetently or wrongly recorded the reports or countersigned the same. The stand taken by the learned counsel thus stands repelled.
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S. It was averred in the written objections filed on behalf of the respondent, though not pleaded by the learned counsel for the respondent during the course of hearing, that the appeal is barred by limitation. We examined the point and found that even for the first time the refusal to expunge the adverse remarks was conveyed to the appellant vide. D. O. Letter dated the 4th April, 1982, while the present appeal was filed on the 2nd May, 1982. Well within the prescribed period of limitation. The objection of the respondent in this regard is therefore, overruled. 6. A perusal of the appellant's A.C. Rs. Has revealed that adverse remarks stand recorded not only in the report for the year 1981 but also in the reports pertaining to the years 1979 and 1980. Examining first the report relating to the year 1981, it is found that the reporting officer giving a good report, assessed her fit for promotion and recorded in pen-picture column that she has valuable experience in print media. Instructions for the Countersigning Officers, reproduced on the back of the very A.C.R. Form require the Countersigning Officer that if he considers that a particular remark of the reporting officer is wrong, he should score it out in red ink, initial the scoring and add any other remark which he may consider appropriate and in case he does not wholly agree with any remark, gives his own remark either against the relevant entry in the "Remarks" column in Part-II or under "Remarks of the Countersigning Officer" in Part-IV. It is pertinent to note that the Countersigning Officer neither scored out any column of the rating part or the remark "Good" and assessm ent "fit-for promotion" recorded in the assessment part, nor he even recorded any of his remark in the abovesaid columns He merely recorded the impugned remark in Part-IV which is meant for the general remarks of the Countersigning Officer. It is correct that the Countersigning Officer noted that the assessm ent made by the Reporting Officer is lenient. But it by itself, does not mean that he was in disagree--ment with the assessment made by the Reporting Officer because in that case he would have scored out the remarks and the assessment of the Reporting Officer, which, in his opinion, was incorrect. Since it was no done, it would be safely presumed that the Countersigning Officer was in agreement with the remarks given and assessment made by the Reporting Officer. Only in this view of the matter, there remains no justification whatsoever for recording the impugned remarks. Even otherwise, the impugned remarks appear to be not only subjective and baseless but biased too. It has been admitted even in the impugned remarks that the appellant is not only highly qualified but is the most qualified officer in the Department. Her service record shows that her performance has been excellent throughout her service career. Then one fails to see any occasion to form an opinion or record the same in the A.C.R. That the appellant has no corresponding value in practice. 7. Again, the relevant rules require the Countersigning Officer to weigh the remarks of the reporting officer against his personal knowledge, if any, of the officer reported upon ; and the previous reports in his character roll, and then given his own remarks in Part-1V. It is rather interesting to note that in the A.C.R. Relating to the period 1st January, 1978 to 14th October, 1978 the Reporting Officer giving her a good report, has rated the appellant 4A' in Part-II of the A.C.R., assessed her fit for promotion in Part-III of the A.C.R. And recorded the following remarks in the pen-picture column :- "Mrs. Musarrat Burkie is a capable Officer and possesses vast experience of editing and printing. She is cultured and amiable." This report was counter-issued on 13th March, 1979 by the same officer, namely. Mr. Masoodur Rauf who specifically recorded his entire agreement with the assessments made and remarks recorded by the Reporting Officer. It means that until 13th March, 1979, according to the personal knowledge, if any, of Mr. Masoodur Rauf about the performance of the appellant as well as her previous reports, the appellant was a good and experienced officer and was fit for promotion. There, therefore, seems no occasion or justification for forming an opinion at the time of countersigning the report of 1981 that the appellant had reached her ceiling meaning thereby that she was unfit for further promotion. More so because in the column of "Fitness for promotion" the Countersigning Officer did
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not alter the assessm ent of the reporting officer whereby he found the appellant fit for promotion. Thus, it is apparent, on the fact of report of 1981 too, that since the Countersigning Officer neither scored out any of the remarks of the Reporting Officer about the appellant's fitness for promotion nor gave his own remarks, the only conclusion would be that the Countersigning Officer agreed with the assessm ent of the Reporting Officer about the fitness of the appellant for promotion also. 8. In view of the foregoing, it is manifestly evident that the remarks recorded by Mr. Masoodur Ratif in Part IV of the A.C.R. Of the appellant relating to the year 1981 are wholly unfounded,, totally unjustified and deserve to be expunged. 9. The appellant requested, during the course of hearing, that, as mentioned in her memo. Of appeal, no adverse remarks pertaining to the previous years have ever been conveyed to her but she has sufficient reasons to believe that some adverse remarks have been made therein which may be examined by this Tribunal and be expunged. 10. We perused the A.C.Rs. Of the appellant and found .That the` reports for the years 1979 and 1980 also contain some adverse remarks, which though not have been conveyed to the appellant yet they shall adversely affect her service career as already happened in the matter of nomination of Pakistani expert against U.N. Posts. In the interest of justice, therefore, we feel it just and proper to examine and review the A.C.Rs, of the appellant for the years 1979 and 1980 also. 11. The report for the year 1979 is dated 2nd June, 1981 by the Reporting Officer, Mr. M. I. Butt, Director General (External Publicity Wing), who has recorded another report on 4th June, 1981 for the period 16th August, 1980 to 31st December, 1980 (which we would discuss in the later part, hereof). Thus the report of 1979, on the face of it suffers from a lacuna of undue delay (about 13 years) in its writing, which, by itself, creates strong doubts about its genuineness. In this report the Reporting Officer has assessed the appellant as "Average and unfit for further promotion." This assessment appears to be subjective and biased as it is simply unbelieveable that the appellant who was admittedly a good officer and fit for promotion hither to, even in the opinion of Mr. Masoodur Rauf, at least until 13th March; 1979, when he countersigned the report of 1978, suddenly became average and unfit for further promotion. Moreover Article 3. 1. (i) (b) of the Guide to Performance Evaluation provides that: "All adverse remarks whether remediable or irremediable should be communicated :in writing to the officer reported upon and copy of the communication placed in the dossier." It has been further provided by Article 3.10 (ii) Mid that :- "Entries which may tend to create an unfavourable impression about an officer should be communicated even if the reporting officers or countersigning officers do not underline them in red ink." Again Article 3.11 (i) specifically provides that the remarks "Unfit for further promotion/has reached his ceiting" should be considered as adverse and should be communicated to the officer reported upon. Then Article 3.1. (vii) ibid directs that: "A confidential report containing adverse remarks should not be taken into consideration until they have been communicated in writing to the officer concerned and a decision taken on his representation." Since the adverse remarks have never been conveyed to the appellant, it cannot be taken into consideration and when we have found them unjustifiable too, there remains no justification for remaining the same a part of the service record of the appellant. The same, therefore, deserved to be expunged and to be substituted by our assessment which we have formulated in .The circumstances of the case and the previous service record of the appellant. In the report of 1979, the remarks recorded by Mr. Masoodur Rauf as countersigning officer in Part-IV of the form also do create an adverse impression about the performance of the appellant. For the aforesaid reasons, these remarks also deserve to be expunged.
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12. Coming to the reports of 1980, it may first be mentioned that during the year 1980 the appellant first served as Press Counseller in Pakistan Embassy, Dacca, and then as Director in Islamabad. There--fore, the A.C.R. For the period 1st January, 1980 to 2nd July, 1980 was recorded by Mr. M. Humayun Khan, Ambassador of Pakistan in Dacca and that pertaining to the period 16th August, 1980 to 31st December. 1980 by the Director-General, External Publicity Wing, Islamabad. Both the reports were countersigned by Mr. Masoodur Rauf. 13. Mr. M. Humayun Khan, Ambassador of f Pakistan in Dacca gave a good report to her, assessed her fit for promotion and recorded the following remarks on 16th January, 1981 in the pen-picture column :- An able and hard-working officer. As far as her professional competence is concerned, I think she can hold her own against anyone. Unfortunately, the Dacca assignment was characterised by some peculiar local conditions which placed a lady Press counsellor at a disadvantage and Mrs. Burkie had to be recalled. It was not through any fault of hers. She was well-liked by her colleagues in the Embassy." The Countersigning Officer Mr. Masoodur Rauf recorded the following remarks on 28th January, 1981: ---I was rather surprised to receive this report because Mrs. Burkie had been recalled at the instance of the Ambassador who could not tolerate her even for six months. Mrs. Burkie's experience throughout has been in publication side. She knows little about the hard core information job. I consider her an officer of average ability who should be allowed to linger on in the Ministry till the time comes for her superannuation." 14. A bare perusal of the report and the remarks of the reporting officer Mr. M. Humayun Khan, clearly indicates that due to peculiar local conditions and not through any fault of hers the appellant, being a lady, was placed there at a disadvantage and, therefore, she was recalled. Thus, the Ambassador made it quite clear that the appellant was recalled from Dacca not because of any fault or inefficiency on her part. It is, therefore, not understandable as to why Mr. Masoodur Rauf was surprised to receive a good report about the appellant from the Ambassador and as to why he has formed an erroneous impression that she had been recalled at the instance of the Ambassador who could not tolerate her even for six months. The latter part of Mr. Masoodur Rauf's remarks regarding the appellant's experience and the assessment of her performance is quite obviously not only baseless but also uncalled for. As explained above, the remarks recorded by Mr. Masoodur Rauf are inconsistent with the factual position on the record and can hardly be called a fair assessm ent. Further, when we enquired from the Departmental Representative as to why these remarks were not conveyed to the appellant, his reply was that the relevant authorities in the Department did not consider these remarks as adverse and, therefore, they were not conveyed to the appellant. Needless to say, that even a cursory view on the remarks in question gives a strong adverse impression about the appellant and, therefore, these remarks are nothing but adverse. It has been laid down in Article 3.1 (vii) of the Performance Evaluation that a confidential report containing adverse remarks should not be taken into consideration until they have been communicated in writing to the officer concerned and a decision taken on his representation, if any. In view of this position also the remarks, in question, are totally to be ignored and shall not be taken into consideration. Even otherwise, as said above, these remarks are totally unjustified and deserve to be expunged. 15. In the A.C.R. Pertaining to the period 16th August, 1980 to 31st December, 1980 the reporting officer gave the appellant an average report and assessed her unfit for further promotion. The Countersigning Officer, Mr. Masoodur Rauf, recorded the following remarks on 8th June, 1981 :- "Her total experience has been in the field of publications. Probably the best qualified officer in the Information Group Mrs. Musarrat Burkie has not put her academic attainment to work, or probably
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not allowed to do so. I am afraid she has to be content with the status she has so achieved." 16. We have carefully examined the assessment of the reporting officer and reached the conclusion that in view of the throughout good reports of the appellant there was hardly any occasion of considering her "Average" and, in any case the assessment of unfit for further promo--tion is based on no reason. Similarly, the remarks of the Countersigning officer contained in Part-IV of the report cannot be reasonablv considered a fair assessment particularly when, as said above, at least, until 13th March, 1979, i.e. At the time of countersigning the report of 1978, Mr. Masoodur Rauf himself recognized the appellant as good officer and fit for promotion. We, therefore, fail to understand that what happened during this short period which changed so drastically the opinion of Mr. Masoodur Rauf regarding the appellant's fitness for promotion. Moreover, since these remarks having not been conveyed to the appellant, shall not be taken into consideration as provided by Article 3.1 (vii) ibid. In this view of the matter, there seems no justification for retention of the remarks, in question, on the service record of the appellant. 17. On the question of bias and mala fide alleged by the appellant against her, our above analysis indicates as suspicion of such a state of mind and prima facie there appears some element of bad faith while recording the impugned remarks. But for holding so we would have required further evidence and material. Since, however, we are ordering taking out of the A.C.Rs. Of the appellant the impugned adverse remarks on merits and on the basis of the position of the record and the relevant rules, we do not consider it necessary to summon or record any evidence in this respect though the appellant so requested. We would, however, like to add that under the orders of this Tribunal Mr. Masoodur Rauf was by name impleaded as a respondent herein. He, however, did not take the trouble of either filing any written statement/objection or to appear before us on the date of hearing. Thus the allegations of mela fide against Mr. Masoodur Rauf, though unproved, would remain unrebutted. 18. Before parting, we would like to mention that the appellant also challenged the competence of Mr. Masoodur Rauf to countersign her reports. In support of this contention she placed reliance on Article 2.33 and illustration given thereunder. The contention of the appellant prima facie appears to carry some force as according to the illustration, the report is to be countersigned by the Secretary of the Administrative Division while Mr. Massoodur Rauf was an Additional Secretary and not Secretary. It is a well known principle of law that when one authority is named or prescribed to perform some function, all other authorities stand excluded for the purpose. Since, however, we have decided the case on merits, the examination of this question by us, in the instant case, is not necessary. Therefore, we leave it for the Establishment Division to examine this question and to remove any lacuna, if found by them. 19. As a result of the above discussidns, we accept this appeal and quash : - (a) the remarks of Mr. Masoodur Rauf recorded in Part IV of the appellant's A.C.Rs. Pertaining to the year 1979, 1980 (both parts) and 1981 ; (b) the assessm ent and remarks "Average" and "Unfit for further promotion" recorded in Part-III of the appellant's A.C.R. Of 1979 ; and (c) the assessm ent and remarks of "Average" and "Unfit for further promotion" recorded in Part-III of the appellant's A.C.R. For the period pertaining to 1.6th August, 1980 to 31st December, 1980 ; and direct :- (i) substitution for the assessm ent and remarks "Average" and "Unfit for further promotion" occurring in Part-III of the appellant's A.C.R. Of 1979 by "Good" and "Fit for further promotion" respectively ; and (ii) substitution for the assessm ent and remarks "Average" and "Unfit for further promotion" occurring in Part-III of the appellant's A.C.R, for the period 16th August, 1980 to 31st December, 1980 by "Good" and "Fit for further promotion" respectively.
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20. It is further directed that the remarks and assessment quashed by us should be taken out of the A.C.Rs. Dossiers of the appellant and as prescribed by Article 3.38 of the "Performance Evaluation" all the quashed remarks and entries should be scored through, assessment and remarks substituted hereby should be inserted and a marginal note should be added in the respective A.C.Rs. That it has been done under the order of this Tribunal. A copy of this order be placed on the A.C.Rs. Dossiers of the appellant and the appellant and this Tribunal be informed accordingly. 21. There shall be no order as to costs. 22. Parties to be informed. A. O. RAZIUR RAHMAN (MEMBER).-The officer, who joined the Ministry of Information and Broadcasting in repartition India in 1944, has already put in 38 years of service and is, at the moment, employed as Director, Information Service Academy, Islamabad, under the same Ministry. Her appeal is against the adverse remarks made by the Additional Secretary of the Ministry on her A. C. Rs. For the periods 1st January, 1979 to 8th December, 1979, 1st January, 1980 to 2nd July, 1980 16th August, 1980…
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