Full Judgment Text & Judicial Ruling

1993 P L C (C

1993 P L C (C.S.) 979

[Punjab Subordinate Judiciary Service Tribunal]

Before Justices Sh. Riaz Ahmad and Zia Mahmood Mirza Members

MUHAMMAD ILYAS, ADDITIONAL DISTRICT AND SESSIONS JUDGE

versus

GOVERNMENT OF PUNJAB and another

S.A. No. 20 of 1991, heard on 8th March, 1992.

(a) Civil service‑‑--

‑‑‑‑ Adverse remarks‑‑‑Reporting Officer's authority to make adverse remarks challenged on the grounds that he was ad hoc Grade‑18 Officer while civil servant, an Additional District and Sessions Judge was confirmed Grade‑18 Officer and that only District and Sessions Judge could record A.C.R. of a Civil Judge while Reporting Officer being Additional District and Sessions Judge was not authorised to record A.C.Rs. of Civil Judges‑‑‑District and Sessions Judge was in fact, the initiating authority of confidential reports of Civil Judges but at the relevant time District and Sessions Judge had died and his successor too, could not initiate ACR of civil servant for he had not seen civil servant's work and conduct for a minimum period of three months necessary for recording confidential reports of the subordinates‑‑‑High Court, however, had authorised Additional District and Sessions Judge (Reporting Officer) to record A.C.Rs. of all the Civil Judges‑‑‑Reporting Officer had been appointed a year before and had also officiated as District and Sessions Judge after the death of then District and Sessions Judge‑‑‑Reporting Officer was, thus, fully competent to initiate A.C.R. of civil servant and no legitimate exception could be taken to the adverse remarks on the ground of want of jurisdiction or authority.

(b) Civil service‑---

‑‑Adverse remarks‑‑Mala fides, plea of‑‑Nothing tangible had been brought on record to show that Reporting Officer nurtured any suspicion against civil servant that he had engineered complaint against him, (Reporting Officer) Plea of mala fides on the part of Reporting Officer was thus, not established on record.

(c) Civil service‑--

‑‑‑‑ Adverse remarks‑‑‑Justification‑‑‑Adverse entry against civil servant related to only one year‑‑‑Before and after such entry civil servant had no adverse entry regarding his integrity, competence, intelligence and fitness for promotion‑‑‑Except for the one adverse entry (impugned) from the inception of civil servant's joining judicial service till filing of appeal, judgment and sense of proportion of civil servant had been rated "good"‑‑‑Quality of civil servant's mind having suffered such a sharp and sudden decline only for one year, would not stand to reason and was thus, not justifiable.

(d) Civil service‑‑--

‑‑‑‑ Adverse remarks relating to civil servant's behaviour with public‑‑‑Except for the entry in question, civil servant had all along from 1967 to 1981 had been described in the relevant column of A.C.R. as "modest and helpful"‑‑‑During the relevant year (when adverse entry was recorded) no reference Was made to any complaint against civil servant‑‑‑Impugned remarks "is inclined to be arrogant", thus, could not be sustained.

(e) Civil service‑‑‑

‑‑‑‑Adverse remarks‑‑‑General assessment of civil servant as "below average"‑‑ Such assessment apart from being inconsistent with the past and subsequent service record of cavil servant would not appear to be justified from the overall assessment made in the column of A.C.R. for the relevant year‑‑‑Adverse remarks were expugned in circumstances.

Raja Mahmood Akhtar for Appellant.

Muhammad Rashid Malik for Respondent No. 1.

Azam Rasool for Respondent No. 2.

Dates of hearing: 7th and 8th March, 1992.

JUDGMENT

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.

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