' The sole grievance of the petitioner is that the petitioner has filed representations before respondent No.1; which are attached with the Constitutional petition at pages No.68 and 69 through proper channel, which have not been decided by respondent No.1 till date. He further submits that the petitioner has filed the aforesaid representations in terms of order passed by the various Courts, but the respondents failed to decide the matter of seniority between the parties, therefore, action of the respondents is the result of mala fide and is not in consonance with rules and regulations of the respondents. He further submits that directions of this Court as well as apex Court are binding on each and every organ of the State by virtue of Article 201 and Articles 189 and 190 of the Constitution. He further submits that the petitioner is being penalized by in action of the respondents.
2. The learned law officer submits that the matter pertains to the terms and conditions of service of the petitioner and that admittedly, the petitioner is a civil servant, therefore, the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunal Act. He further submits that this Court has no jurisdiction to suspend the meeting of the concerned committee, therefore, this Constitutional petition is not maintainable.
3. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
4. It is admitted fact that the petitioner has challenged the matter before this Court as well as apex Court. It is also admitted fact that the petitioner has filed representations before respondent No.1, who did not decide the same till date. In spite of the bar contained in Article 212 read with section 4 of the Service Tribunal Act, this Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "H.M. Rizvi and 5 others. v. Maqsood Ahmed and 6 others" (PLD 1981 SC 612) and "Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano"
(2003 SCMR 325). It is settled principle of law that no body should be penalized by inaction of the public functionaries, as per principle laid down by this Court in "Ahmad Latif Qureshi. v. Controller of Examination, Board of Intermediate, Lahore" (PLD 1994 Lahore 3). It is also settled principle of law that it is the duty and obligation of the public functionaries to decide the representations of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as it envisaged by Article 4 of the Constitution read with section 24-A of the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "M/s. Airport Support Service. v. The Airport Manager, Karachi, Airport" (1998 SCMR 2268) and "Zainyar Khan. V. Chief Engineer C.R.B.C.," (1998 SCMR 2419). It is also settled principle of law that direction of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution, but the respondents failed to decide the representations of the petitioner and others in a long standing dispute between the parties till date, therefore, action of respondents is in derogation of law and dictum laid down by this Court as well as apex Court and Service Tribunal.
5. In this view of the matter, the petitioner is directed to appear before respondent No.1, in his office at 11-00 a.m. On 20-12-2004, who is directed to decide the representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order preferably within one month after receiving the order of this Court, either himself or send the same to competent authority for its decision, who is also directed to decide the same in terms of aforesaid direction of this Court. In the meanwhile, Item No.2 in the agenda of the Departmental Promotion Committee held on 13-12-2004, be held in abeyance till the decision on the representation of the petitioner. He is also directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
6. It is pertinent to mention here that notices were issued to the respondents by this Court vide order dated 26-11-2004 for filing of report and para-wise comments, but the respondents failed to file the same. This fact brings the case of the petitioner in the area that the respondents are not exercising their powers in good faith. In such type cases, the Honourable Supreme Court has settled the dispute in "Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri"
(PLD 1969 SC 14), wherein it is held that manner of exercising of power is also termed as mala fide.
7. The learned counsel of the petitioner is directed to hand over copy of this writ petition including C.M.No.3-C/2004 along will all the annexures to Mr. Muhammad Hanif Khatana. Acting Advocate General, Punjab, who is directed to send the same to respondents and also to competent authority for necessary action and compliance. He is further directed to notify the order of this Court to the respondents on telephone. Office is also directed to provide one copy of this order to the aforesaid learned law officer for onwards transmission to the respondents for necessary action and compliance. The Deputy Registrar (J) of this Court is also directed to notify the order of this Court to the respondents on telephone for necessary action and compliance.
' With these observations, this writ petition is disposed of Copy Dasti on payment of usual charges.
Order accordingly.
2005 PLC (C.S) 498 [Punjab Service Tribunal] Justice (Retd.) Riaz Kayani, Chairman KHALID SIDDIQUE, EXCISE AND TAXATION OFFICER TRANING CELL, LAHORE versus SECRETARY TO GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION DEPARTMENT and 2 others Appeal No.1806 of 2003, decided on 29th December, 2003. Civil service--- ----Adverse remarks---Expunction of---Reporting Officer while assessing performance of civil servant for the period from 2-11-1991 to 30-6-1992 awarded him adverse remarks of being rigid, inflexible and lacking ability to appreciate other's point of view in his Annual Confidential Report--- Same Reporting Officer at time of writing next Annual Confidential Report for the period from 1-7- 1992 to 28-1-1993, rated civil servant good in same column of Annual Confidential Report relating to his adaptability, understanding and tolerance and rated him for the same characteristics as alert and highly responsible apart from being considerate and cooperative with others---Such abrupt change from "below average" to "good", was not due to any metamorphosis in the habits of appellant taking place so suddenly, but it clearly reflected that Reporting Officer played a game of pick and choose and same portrayed mala fides on the part of Reporting Officer fairly indicating that remarks were not based on objective evaluation rather same were based on whim and caprice of Reporting Officer---Adverse remarks given in Annual Confidential Report of appellant did not have any semblance of an inquiry whereby a chance was provided to prosecution as well as to defence to prove and disprove allegations respectively---Annual Confidential Report was the objective assessment and evaluation of Reporting Officer about personal qualities, attitudes and proficiency in job of civil servant which was gauged by his work and performance; in other words, civil servant had no chance whatsoever to controvert the assessment made by Reporting Officer through any objective evidence to the contrary---Observation made by Appellate Authority having no backing in law, impugned order had to be struck down for that reason alone---Accepting appeal, adverse remarks given by Reporting Officer and endorsed by Countersigning Officer against appellant, were set aside by Service Tribunal. [pp. 500, 501] A, B & C Appellant in person. Khadim Hussain Sindhu, District Attorney, Shafaat Ali, Section Officer (A-1) Excise & Taxation Department, Departmental Representative and S. Jafar Raza Hussain, Law Officer, Departmental Representative for Respondents.
Date of hearing: 23rd December, 2003.
' Khalid Siddique, Excise and Taxation Officer has come in appeal bringing in challenge order dated 10-7-2003 passed by the Secretary Excise and Taxation, Punjab arraigned as respondent No.1, whereby adverse remarks given to the appellant in his Annual Confidential Report for the period 2- 11-1991 to 30-6-1992 by his Reporting Officer as well as the Ist Countersigning Officer in Column IV and V of Part-II of the said Annual Confidential Report was maintained.
2. Appellant for the period extending from 2-11-1991 to 30-6-1992 while he served as Excise and Taxation Officer, Lodhran was communicated adverse remarks in the Annual Confidential Report for the said period vide letter dated 10-7-1993 by respondent No.1. The adverse remarks awarded to the appellant in the various parts of the Annual Confidential Report are reproduced below:-- PART-II
2. Confidence and will-power Below Average
4. Adaptability. Below Average
5. Understanding and Tolerance Below Average
7. Overall Grading in Part-II. Below Average PART-V (Pen Picture)
(a) A minor penalty of stoppage of two annual increments has been inflicted upon him vide D.G.
E&T, Punjab, Lahore's order bearing Endst: No . 0195-92/1078-E(E&T)II, dated 7-5-1992. An unpredictable and unreliable officer.
(b) Many time but the response was negative. PART-VI
(a) Overall Grading
(iv) Meets bare minimum standards (Below Average)
(b) Fitness for promotion. (iii) Not yet fit for promotion.
(c) Integrity Doubtful.
' Appellant filed an appeal to respondent No.1, who after a detailed hearing through an exhaustive order expunged the adverse remarks except those contained in Sr. Nos.4 and 5 of Part-II of the Annual Confidential Report, which related to adaptability, understanding and tolerance, which were rated below average. The reasons given by the appellate authority were that the adverse remarks were the result of the assessment of the personal qualities of the appellant by his Reporting Officer, later on, endorsed by the Countersigning Officer and therefore does not call for any interference in the absence of any objective evidence to the contrary.
3. Appellant who argued his case in person stated that on 14-9-1992, Reporting Officer awarded him adverse remarks of being rigid, inflexible and lacked ability to appreciate others, point of view while drawing his Annual Confidential Report in question. The same Reporting Officer at the time when writing the next Annual Confidential Report for the period 1-7-1992 to 28-1-1993 rated him good for the same Column Nos.4 and 5 of Part-II of the Annual Confidential Report relating to his adaptability, understanding and tolerance. Taking his arguments to its logical conclusion, it was stressed that this rapid change in the characteristics of the appellant did not occur over night rather portrayed the mala fide on the part of the Reporting Officer, fairly indicating that the remarks were not based on objective evaluation rather whim and caprice of the Reporting Officer, dominated the proceeding. Learned District Attorney could not controvert and refute the weighty arguments.
4. I have considered the arguments addressed at length by both the sides and perused the record.
5. There is indeed logic and philosophy in the arguments raised by the appellant. The Reporting Officer dubbed the appellant when assessing his characteristics for the period from 2-11-1991 to 30- 6-1992 to be rigid, inflexible and lacking ability to appreciate point of view of others but soon thereafter rated the appellant for the same characteristics as alert and highly responsible apart from being considerate the cooperative with others. This prompt change from below average to good, I am not prepared to believe, was due to any metamorphoses in the habits of the appellant taking place so suddenly, rather it clearly reflects that the Reporting Officer played a game of pick and choose as evident from the perusal of the ratings given for personal qualities in Part-II of the impugned Annual Confidential Report. The order of the appellate authority maintaining the adverse remarks on the ground that the appellant failed to dislodge the assessment and evaluation made by the Reporting Officer in the absence of any objective evidence to the contrary desires much to be said. The adverse remarks given in the Annual Confidential Report does not have any semblance of an inquiry whereby a chance is provided to the prosecution as well to the defence to prove and disprove the allegations respectively. Writing of the Annual Confidential Report, as observed, is the objective assessment and evaluation of the Reporting Officer about the personal qualities, attitudes and proficiency in job of the civil servant which is gauged by his work and performance. In other words, the civil servant has no chance whatsoever to controvert the assessm ent made by the Reporting Officer through any objective evidence to the contrary. The observation made by the appellate authority has no backing in law and for this reason alone the order has to be struck down.
6. The upshot of the discussion is that the appellant has convinced me that his appeal should be accepted. Resultantly, I accept the appeal and set aside the order of respondent No.1 dated 10-7- 2003 as well as the adverse remarks given by the Reporting Officer and endorsed by the Countersigning Officer in column IV and V of Part-II of the Annual Confidential Report for the period 2-11-1991 to 3-6-1992.