1. ' AMANULLAH KHAN (CHAIRMAN).---The appellant has filed this Appeal under section 4 of the Balochistan Service Tribunals Act, 1974, challenging the Adverse Remarks passed against him, pertaining to the period from 28th March to 20th September, 1993, 21st September to 31st December, 1994. It would be proper to reproduce herein below, the Adverse Remarks, recorded against the Appellant:-- For the period from 28-3-1993 to 20-9-1993.
(i) Advisory remarks in Part-VII.
2. "He needs regular guidance in proper discharge of his duties."
3. ' For the period from 21-9-1993 to 31-12-1993.
(ii) Advisory remarks in Part-VII.
4. "The officer is required to improve his technical knowledge."
5. ' For the period from 17-4-1994 to 26-7-1994.
(iii) Adverse remarks in Part-VII.
6. "Not mature enough to run affairs of a Division as required"
7. ' For the period from 27-7-1994 to 31-12-1994.
(iv) Adverse remarks in Part-VII. "The Officer lacks confidence."
8. ' He received another D.0 letter No. SOS-V-A- (71)/I&P/S&GAD/ on 26th May, 1996 whereby, adverse remarks were passed against him on 1-1-1994 to 16-4-1994 which is reproduced hereinbelow:-- ' Remarks of the 1st Countersigning Officer (i) Adverse remarks in Part-VIII-(a)
9. "Being technically poor he depends on subordinate staff as ascertained from the development works near Dera Bugti Town, particularly the flood protection work. He needs training in l&P Engineering."
10. Remarks of the 2nd Countersigning Officer (ii) Adverse remarks in Part-II-(b)
11. "He is advised to improve his technical knowledge".
12. ' He made a representation against the same to the competent authority on 24th July, 1996, the same was dismissed vide common order, dated 21-8-1997. Thereafter, he filed a review petition which was also dismissed vide order, dated 16-7-1999, hence he filed the instant appeal before this Tribunal.
3. We have heard Mr. Sher Muhammad, Advocate learned counsel for the appellant and Mr. Ghulam Mustafa Mengal, learned Additional Advocate General for respondents.
4. Mr. Sher Muhammad, learned counsel for the appellant contended that the adverse remarks have been passed in violation of instructions regarding annual confidential reports and further contended that the adverse remarks were communicated to the appellant after a period of three years, therefore, the same are liable to be expunged. He further pointed out that since the relevant instructions, which serve as guideline for performance evaluation of a civil servant is to be strictly complied with as the said instructions have the status of rules. Learned counsel further contended that no specific instance has been quoted as a basis for the adverse remarks. The appellant has been serving the Department for more than 12 years and there has never been any complaint against him, even during the period for which adverse remarks were passed.
5. Mr. Ghulam Mustafa Mengal, learned Additional Advocate-General contended that the adverse remarks/observations against the appellant are factually correct and further denied that relevant instructions have been violated while making the adverse remarks.
6. Before dilating upon the arguments of the learned counsel for the parties, it would be appropriate to refer to the instructions about annual confidential reports (ACR). Paras Nos. 4 and 5 of the instructions being relevant are reproduced hereinbelow:--
(4) When should a report be written. A report is to be written for every calendar year if neither the reporting nor the Government Servant reported upon has been transferred to another assignment and continue to work with each other. It shall be initiated in the third week of December, and forwarded to the respective countersigning authority by the end of December. Where a report is to be forwarded to higher quarters it should be done at the end of first week of January. The final authority shall record his remarks within 5 days and thus by the 15th January the whole exercise will be completed and the report will be placed on the C.R Dossiers of the officers/officials concerned.
(ii) The final authority will furnish certificate under his own signatures to the services and General Administration Department by the 20th January to the effect that the reports have been completed and placed on the C.R. Dossiers.
(iii) Blank forms of annual confidential repots in sufficient numbers will be supplied to the heads of offices by the heads of departments by the 15th October and where a head of office does not get the forms by that date he will bring the matter to the notice of the S&GAD by sending a wireless message/ telegram.
13. ' Minimum period for writing of reports.
14. ' The minimum period during which an officer is expected to form a judicious opinion about the work of his subordinate, for the purpose of writing a report on his work and conduct, has been prescribed as three months. The report recorded in respect of period less than the minimum prescribed period should be ignored. If a Government Servant has served under a reporting officer in two calendar years for a period aggregating to 3 months or more but each period in a year is less than 3 months, no confidential report should be written for such periods.
(ii) The period spent on leave on average pay of the officer/official will not be included in the minimum period of three months prescribed for writing of annual confidential reports.
15. ' And Paras. Nos.46 and 47 of the instructions laid down about timely communication and time- barred adverse remarks are reproduced herein-below: --
(46) Timely Communication of Averse Remarks.
16. ' Timely communication of adverse remarks is of paramount importance. The authorities competent to communicate the adverse remarks should ensure that the adverse remarks are communicated without fail to person concerned by the end of June of the following year. Failure to do so will attract disciplinary action against the person (s) responsible for the delay. Time-barred , adverse remarks will, however, be communicated subject to the provision of para. 47 below.
(47) Time-Barred Adverse Remarks.
17. ' The adverse remarks contained in confidential reports relating to a period prior to five years or more should not be communicated, but scored through as per procedure adopted in case of scoring through the expunged adverse remarks.
18. ' It may be pointed out that on the basis of annual confidential reports, the evaluation reports are prepared in the light of relevant instructions. The confidential reports rendered by Reporting Officers about the performance of official serving under them lays down the basis of the evaluation and para. 4 of the instructions lays down that the report is to be prepared for every calendar year and initiated in the third week of December and forwarded to the respective countersigning authority by the end of December and should be forwarded to higher quarters in January. The same shall be placed on the Character Role Dossiers maintained for the purpose which contains a systematically prepared and carefully assembled performance record of the official concerned and para.5 prescribes the minimum period for an officer to form a judicious opinion about the work of his subordinate. Para. 46 lays down that timely communication' of adverse remarks is of paramount importance and it is further observed that in any case by the end of June of the following year, the adverse remarks should be communicated to the concerned officer. As provided under para. 47 of the instructions that whenever adverse remarks are made in the confidential report, copy of the same should be furnished to the concerned officer at the earliest so that to enable him to make a representation. In this regard reference may be made to 1997 SCM R 1749 Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others, the relevant portion of the same is reproduced hereinbelow:--
(6) A perusal of the aforesaid instructions would reveal that in no case an officer reported upon is to be kept ignorant of the dissatisfaction of his superior officer with regard to the discharge of his duties. A Reporting Officer while reporting on his subordinate should be as circumspect as possible.
19. He must be clear and direct, and not ambiguous or evasive in his remarks and avoid exaggeration and gross under-statement. He should also state with particularity whether any of the defects reported have already been brought to the notice of the officer concerned and also whether he has or has not taken steps to remedy them.
20. ' As far as the status of the instructions is concerned, we are not persuaded to agree with the Additional Advocate-General that the instructions are advisory in nature and not mandatory. It may be pointed out that since it is on the basis of the annual confidential reports evaluation of the officer is made and the purpose of such remarks is to inform the officer to correct himself and if he fails to do so it comes in his .Way for further promotion thus the preparation of the ACRs are governed under the instructions, the same have the status of rules which have to be strictly complied with. In this regard reliance is placed on 1981 SCM R 392 the Secretary Government of Punjab v. Ahmad Kamaluddin wherein, the Hon'ble Supreme Court has made the following observations regarding status of the instructions:-- "The Civil Servants Act while enumerating the terms and conditions by subsection (2) of section 23 provides that "any rules, orders or instructions in respect of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, insofar as such rules, orders or instructions are not inconsistent with the provisions of this Act, he deemed to be rules made under this Act." On the strength of this provision the instructions with regard to the recording of the remarks, their communication and expunction would have the status of rules made under the Civil Servants Act and would be determinative of the terms and conditions of service. The recording of the remarks is indeed within the exclusive competence of the superior officers but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appropriate cases".
21. ' In the case in hand, the adverse remarks for the years, 1993 to 1994 were conveyed in the year, 1996 in violation of the said instructions regarding annual confidential reports thus the Reporting Officer should have completed the annual confidential report of the appellant in time when he was working at the Project. The report communicated to him after a period of three years is in violation of the instructions and has caused prejudice to the appellant thus, the remarks are liable to be expunged.
22. ' Resultantly, the appeal is allowed, the adverse remarks are expunged and there shall be no order as to costs.