1989 P L C (C.S.

) 508

[Service Tribunal Sind]

Present: Munawar Ali Khan, Chairman and Ali Nawaz Bohio, Member

PANA LAL

versus

SECRETARY, GOVERNMENT OF SIND, EDUCATION

DEPARTMENT, KARACHI and 2 others

Appeal No. 38 of 1986, decided on 30th November, 1988.

Civil service‑‑

----------Instructions about Writing of Confidential Reports para. 43‑‑Adverse

report, recording of‑‑Pre‑condition‑‑Reporting Officer before recording formal
adverse report is required to send said official, a note of caution, advising him
to mend his defects‑‑When such counselling was unheeded only then adverse
re ort has to be recorded in respect of defaulting official‑‑No such advice
tendered to such official‑‑Non‑compliance of para. 43 of Instructions did not
justify recording of adverse report against such official‑‑Adverse report for
specified years was thus unjustified and could not be allowed to remain on
record.

Rasool Bux Unar for Appellant.

Imdad Hussain Kazi for Respondents. Date of hearing: 24th November, 19&S.

JUDGMENT

MUNAWAR ALI KHAN (CHAIRMAN).‑‑This appeal is directed against the

order of the Education Department, Government of Sind , dated 30 12‑1985
communicated to the Director, School Education, Hyderabad Region
(hereinafter referred to as the Director) forwarding a copy thereof to the
appellant. By the said order, the appellant's request for expunction of adverse
remarks was rejected. The appellant served as Head Master, Government
Islamia High School, Khipro (hereinafter referred to as the said School) from
15‑8‑1963 to December, 1985. During his posting in the said school he was
conveyed four adverse reports; first, relating to year 1978 by the Director's
letter dated 30‑6 1980, second, for the year 1979, by the Director's letter dated
29‑4‑1985, third with regard to year 1980 by Director's letter dated 22‑2‑1982
and fourth, pertaining to year 1981, by Director's two letters dated 22‑2‑1982 a
and 29‑4‑1985. The appellant made separate representations seeking
expunction of each of the said advere reports. Excepting his representation
against adverse report of 1978 which he had addressed to the District
Education Officer, with a copy thereof forwarded to the Director his remaining
three representations were made to the latter authority through District
Education Inspector. Some of the representations were rejected by the
impugned order and hence this appeal.

We heard the arguments of [lie learned counsel for the appellant and also of
learned Government counsel (Mr. Imdad Hussain Kazi). We also went through
the record relevant for disposal of the appeal.

It is an admitted position that all. the four representations made by the

appellant were ultimately forwarded to Education Department for disposal.
This was obviously done in compliance of the requirement of para. 43 of the
Instructions about Confidential Reports (hereinafter referred to as the said
Instructions). The said para. requires all representations about expunction of
adverse remarks to be made to the appointing authority through proper
channel. The appellant being in Grade‑17 at the relevant time, his appointing
authority was Minister (Secretary) vide sub‑rule (4) of rule 3 of the Sind Civil
Servants (Appointment, Promotion and Transfer) Rules, 1974. Since [lie order
impugned in this appeal was passed in [lie Education Department, it raises a
presumption that the said order had been passed by the competent authority.

As for the question of limitation it may be noted that the impugned order
passed on 30‑12‑1985 was endorsed to the appellant by letter dated 9‑1‑1986
which he was stated to have received on 22‑3‑1986. The appellant has made
this assertion in the opening paragraph of the memo of appeal. In support of his
reversion he has sworn affidavit. Accordingly we accept the appellant's
statement that he had received the impugned order on 22‑3‑1986.
Consequently, the appeal against the said order that he has filed on 21‑4‑1986
is within time.

Coming to merits of the case, it was found that the impugned order covered
only two adverse reports of 1979 and 1981. This was stated by the learned
Government counsel, after consulting the Departmental representative Qazi
Muhiuddin who was present in Court and the record he had brought with him,
As regards the remaining two representations made by the appellant our
attention was drawn to papas. 3 and 5 of the written statement filed on behalf
of the official respondents. It is disclosed in these .papas. that the appellant's
representations against adverse reports of 1978 and 1980 were still under
consideration which, in other words, means that no final decision‑ was yet
taken on the said representations. The representation against adverse report of
1978 was made on 16‑7‑1980 and that against the adverse remarks for the year
1980 was filed on 25 3‑1982. As provided in section 4 of the Sind Service
Tribunals Act, 1973, the appellant had choice either to wait for the final
decision on the said representations or in the alternative to approach this
Tribunal within 30 days following the expiry of 90 days period from institution
of above two representations. Since he obviously chose to wait for the decision
of the appellate authority, the cause of action accrued to him only after such
decision. As for his representations with regard to years 1978 and 1980 which
are still pending, he was free to file fresh appeal after the said representations
were rejected.

With exclusion of adverse reports of 1978 and 1980, we are only left with
adverse remarks relating to years 1979 and 1981. On perusal of the Director's
letter dated 29‑4‑1985 whereby the report of the year 1979 was sent to the
appellant, it was noticed that the adverse observations of the reporting
authority were depicted in the following terms:

"2. It has however been reported by the Reporting Officer that you look
younger and smart but behave normally slow. You are advised to
remove these defects in your own interest."

We have gone into depth of the above remarks in an attempt to ascertain the
sense they have conveyed. It appears to us that first portion of the remarks
namely "You look younger and smart" is rather in the nature of complements
calculated to boost the spirits of the official reported. upon. Even the later
portion of the remarks namely "behave normally slow" does not carry any
sense because behaviour is either good or bad but to say that it is slow carries
no meaning. Consequently, such remark is un-offensive and cannot be regarded
as adverse calling for any intervention by the higher authority. May be the
appellant's representation against above remarks was rejected for the reason
that appellate authority did not consider them adverse and hence did not think
fit to interfere. Since the order of rejection was not elaborate, giving reasons
for rejection of the appellant's representation, it would not be entirely
unjustified in drawing the above conclusion. In any case we hold that the
remarks given in the year 1979 as reproduced above are not adverse and
therefore they should not be used as such against the appellant.

Now we proceed to deal with the adverse report relating to the year 1981. It
was conveyed to the appellant by two letters. By letter dated 22‑2‑1982,
the adverse report for over three months i.e. from 10‑9‑1981 to
31‑12‑1981‑was communicated to him. Subsequently, the adverse report for the
full year 1981 was conveyed to the appellant by the letter dated 29‑4‑1985.
However, it reflected two periods separately; one period extending from
1‑1‑1981 to 9‑9‑1981 and other stretching from 10‑9‑1981 to 31‑12‑1981. For
the first period the appellant was rated as below average with regard to his
perseverance and devotion to duty, capacity to guide and train subordinates and
coordination and tact. In pen picture he was shown to be a man of odd attitudes
having no interest in his professional performance. We were, however,
informed that these remarks were not countersigned by the next higher
authority.. This was admitted by the learned Government counsel after
consultation with the record made available to him by the Departmental
representative who had come to assist him. As mentioned in para. 8 of the said
Instructions the report initiated by the immediate superior authority had to be
countersigned by the next higher authority provided that in the case of officers
in Grade‑17 and above (previously class II and other Gazetted officers) the
final countersigning authority shall be Head of Attached Department or
Regional Head concerned as the case may be. Thus the Report initiated by the
immediate superior authority would not be complete unless it was
countersigned by the higher authority concerned. Since the Report given to the
appellant for the period between 1‑1‑1981 and 9‑9‑1981 has not been
countersigned, it cannot be treated as complete report within the meaning of
para. 8 hereinabove. As such it should not have been conveyed to the appellant.
May be the countersigning authority would not accept the appellant's
assessment made by his immediate superior authority. In that eventuality the
Report given by the lower authority would have washed off and the stage of
communicating the report to the appellant would not have come. It is true‑that
appellate authority has rejected the appellant's representation for expunction of
the above report. Since the appellate authority did not have the views of the
countersigning authority before him, the possibility cannot be ruled out that the
representation was rejected on that ground particularly when no reasons have
been assign; d for rejection of the representation. Even otherwise the appellate
authority had no jurisdiction to entertain the representation for expunction of
the adverse remarks until the report challenged before him was complete and
the views of the countersigning authority were also available to him. For these
reasons we hold that the report for the period from 1‑1‑1981 to 9‑9‑1981
cannot be used as adverse report against the appellant. However, it is open to
the Department to have the said report, completed by the countersigning
authority. In case the Said authority endorsed the report given by the immediate
superior authority the appellant would have right to challenge it before
appropriate authority (i.e. appointing authority). Thereafter if need be, he may
approach this Tribunal by filing fresh appeal.

Lastly there is report for the period of a little over three months (i.e. from
10‑9‑1981 to 31‑12‑1981). It is as under:

"(1) Ability to plan, organise and

supervise work.

(2) Quality and output of work. Below average.

(3) Perseverance and devotion to

duty.

(4) Capacity to guide and train

subordinates

(5) Sense of responsibility:

(a) General

(b) Financial Matters.

"smiling has no charm and change over his face".

The learned counsel for the appellant submitted that the above report was
initiated by the Reporting Officer who had biased mind. According to learned
counsel his bias was apparent from the language he has used in "pen -picture".
He submitted that it was obvious that the Reporting Officer did not even like
the face of the appellant and as such no better report was expected from him.
He further invited our attention to the results of the said school, during the
period when the appellant was its ‑Head Master.. We have gone through the
said results. They are contained in the certificate issued by the Head Master of
the said School. These results are of Matric Examination (Class‑X Annual)
from 1975 to 1981. According to these results the pass percentage ranges from
minimum of 70% in year 1976 to 97% in year 1981. Thus, the said school had
produced best results (97%) for the year 1981 for which the appellant who was
Head Master of the school was awarded "Below average" report in respect of
the columns describing various attributes of the appellant's personality. In our
opinion it is the cumulative effect of the characteristics mentioned in the said
columns which can bring about such commendable performance of the school.
Evidently the report earned by the appellant for the year 1981 does not tally
with the performance shown by the school during the year.

Apart from above we have also perused the ACRs given to the appellant for
three years preceding 1978 and for two years subsequent to 1981. For the years
1975; 1976 and 1977 he was rated, good and efficient Head Master. In pen -
picture for the year 1977, the reporting authority made the following
observations which were also endorsed by the countersigning authority:

"Best teacher in Maths. Willing worker and successful administrator.

Takes keen interest for betterment of education and reliable person."

The ACR for 1982 was not available on record. However, in the two years
following that year he earned commendable reports. For the year 1983 he was
given "good" report whereas for the year 1984 his overall assessment was
mentioned A‑One.

Our attention was also invited to the latest "Instructions for Filling of the ACR
Forms" appended with ACR Form. The instruction at S. No. 4 printed on ACR
form reads as under"

"4. Reporting Officer is expected to counsel the officer being reported

upon about his weak points and advise him to improve. Adverse
remarks should normally be recorded when the officer fails to improve
despite counselling."

It is clear from the above instruction that before recording formal adverse
report about any official the Reporting Officer is required to sound the said
official a note of caution advising him to mend his defects. It is after such
counselling is unheeded by him that adverse report is recorded in respect of the
defaulting official. The record is absolutely silent if the appellant was even
tendered such advice. The learned Government counsel after consultation with
the departmental representative and the record he had brought to assist the said
counsel frankly conceded that there was no trace suggesting that the appellant
was counselled in terms of above instructions, prior to recording of the adverse
report under consideration. We are of the view that non-compliance of the said
instruction did not justify the recording of the adverse report in question.

In the light of above discussion we have come to the conclusion that the
adverse report for the period from 10‑9‑1981 to 31‑12‑1981 was unjustified
and therefore, should not be allowed to remain on the record. Accordingly we
accept the appeal and order expunction of the said report. The parties will bear
their own costs.

A.A./189/Sr. S Appeal accepted.

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