' JUSTICE REHMAT HUSSAIN JAFFERI (MEMBER).---This judgment will dispose of Service Appeals Nos.13/2002 and 15/2002 as common questions of facts and law are involved.
2. The facts of Service Appeal No,13 of 2002 are that the appellant Muhammad Bux Bhangwar was an Additional District and Sessions Judge. The High Court through the Chief Justice evaluated the performance of the appellant for the years 1998 to 2000. In the ACR for the period from 1-1-1998 to 2-12-1998 he was graded as an average officer but in pen-picture it was observed that he should improve his image. While evaluating the performance for the year 1999, the Chief Justice found the appellant as an average officer but in pen-picture, he observed that the appellant was carrying a reputation of corruption. For the year 2000, the appellant was granted as an average officer. In the column of pen-picture it was observed that the appellant was carrying a reputation of corruption.
The Registrar High Court of Sindh communicated the adverse remarks to the appellant on 19-1- 2002. The appellant made a representation for expunction of the adverse remarks. The Chief Justice after perusing the representation and giving personal hearing to the appellant passed the following order:- "Heard Mr. Muhammad Bux Bhangwar, Additional District and Sessions Judge in connection with his representation for expunction of adverse remarks assigned to him in his ACRs for the years 1998, 1999 and 2000. With regard to his integrity and honesty being doubtful and reported to be corrupt and dishonest, the same was made after seeking opinion of the District and Sessions Judges under whom the concerned Additional District and Sessions Judge had worked during the course of service. Opinion was also sought from the learned Judges of this Court who have been elevated to the Bench from the bar who during the course of their practice had come in contact with the concerned officer and were of the view that he was corrupt Judicial Officer, No case made out for expunction of adverse remarks and his representation stands rejected."
3. The above order was communicated to the appellant through the District and Sessions Judge Sanghar. Being aggrieved from the said order, the appellant has filed the present appeal.
4. Brief facts giving rise to Service Appeal No,15 of 2002 are that the appellant Zaheer Ahmed Khan was serving as Additional District and Sessions Judge. The High Court of Sindh through the Chief Justice evaluated the performance of the appellant for the years from 1995 to 2000. The Chief Justice while evaluating the performance of the appellant for the year 1995 found him a below average officer. In the column of pen-picture it was observed. "A bare average officer not enjoying good reputation." For the period from 1-1-1996 to 16-10-1996 the appellant was found to be a below average officer and his integrity was found not beyond doubt. For the remaining period of the year 1996, the appellant was also found to be a below average officer and his integrity was found doubtful. For the year 1997, the Chief Justice found the appellant a below average officer and in pen-picture, it was observed. "A bare average officer, his integrity is not beyond doubt, and frequently meeting with District Administration and police officers." He was not found fit for promotion as he was promoted in 1994. For the year 1998, the appellant found to be a below average officer with doubtful integrity. He was also not found fit for promotion. For the year 1998 the Chief Justice graded him as a below average officer with doubtful integrity. He was not found fit for promotion. For the year 2000 the appellant was found to be a below average officer with doubtful integrity and was found not fit for promotion. On 19-1-2002 the Registrar High Court of Sindh communicated the adverse remarks to the appellant through the District and Sessions Judge. The appellant made a representation for expunction of adverse remarks. The Chief Justice after hearing the appellant on his representation passed the following order:-- "Heard Mr. Zaheer Ahmad Khan, Additional District and Sessions Judge in connection with his representation for expunction of adverse remarks assigned to him in his ACRs for the years 1995 to 2000. The rating of the concerned officer being barely an average officer is not an adverse remark and it is to be interpreted as minimum of the average officer. With regard to his integrity and honesty being doubtful and reported to be corrupt and dishonest, the same was made after seeking opinion of the District and Sessions Judges under whom and concerned Additional District and Sessions Judge had worked during the course of service. Opinion was also sought from the learned Judges of this Court who have been elevated to the Bench from the Bar who during the course of their practice had come in contact with the concerned officer and were of the view that he was most corrupt Judicial Officer. No case is made out for expunction for the adverse remarks and his representation stands rejected."
5. On 18-5-2002, the Registrar High Court of Sindh communicated the above order to the appellant.
The appellant was dissatisfied with the said order, therefore, he has preferred the present appeal.
6. We have heard Mr. Abrar Bukhari, Advocate for appellant in Service Appeal 13 of 2002, Mr. Muhammad Nawaz Shaikh, Advocate for appellant in Service Appeal No,15 of 2002, and perused the record of these appeals very carefully.
7. It is pointed out that the appellants are serving in Judicial Department. They have been assigned duties to decide the cases pertaining to life, liberty and property of the citizens. The Constitution of Pakistan gives guarantee to the citizens that their rights would be protected in accordance with law, therefore, it is incumbent upon the Judicial Officers to act, work, discharge duty and behave in such a manner that the confidence of people should not be shattered or eroded. The Judicial Officers in performance of their duties must present themselves in such a manner where nobody can rise a finger towards them and the people should feel secured that their rights would be decided impartially, without any fear or favour or any extraneous considerations. As such the conduct behaviour and character of the Judicial Officers should be such people should be encouraged to approach the Courts for deciding their cases. Thus, the character, temperament, disposition, moral fiber, poise, nobility, dignity and other related matters of the Judicial Officer should be of a very high caliber compared to other civil servants, because, they are deciding the fate of the citizens in respect of their life, liberty and property. Therefore, the cases of Judicial Officers ought to be examined in the light of above circumstances. As such the standard of evaluating the performance of the Judicial Officers with regard to their character, integrity, intelligence, performance, knowledge of law, etc. Ought to be judged very strictly and stringent steps be taken so that the image of the judiciary could be improvingly ameliorated, and the complaints of rampant corruption and inefficiency against subordinate judiciary could be curbed.
Needless to emphasize that Judicial Officers are required to observe superlative standard of moral ethics, behave dispassionately analytically, objectively, impressively and naturally in all circumstances.
8. Before we discuss the factual aspects of the appeals, we would like to refer the guidelines and principles laid down by the Hon'ble Supreme Court of Pakistan in examining the cases pertaining to service matters.
9. Under the rules of discipline in matters of civil servant, the character role or Annual Confidential Report (ACR) is regarded as the basic record that is required to be maintained every year to evaluate the performance of the civil servant. The importance of the document can very well be judged from the fact that suitability of a civil servant to a higher post of promotion is examined from the said record, therefore, the said report should be prepared very carefully. In the case of Jameel Ahmed Malik v. Pakistan Ordnance Factories Board (2004 SCMR 164) the Hon'ble Supreme Court of Pakistan observed that Annual Confidential Reports play pivotal role in service career of an employee. It is the duty of Reporting Officer as well as Countersigning Officer to see that the report shall not reflect under generosity or harshness and be as objective and circumspect as possible.
The words "circumspect" and "objective" have been defined in the above authority as under:-- "A perusal of the above quoted definition of the word "circumspect" indicates that it inter alia connotes considerate, diligent, discerning, discreet, exacting, judicious meticulous, mindful, on guard, precise, sensitive and thorough etc., whereas the word "objective" inter alia carries the meaning of, detached, disinterested, dispassionate, equitable, factual, fair, fair-minded, impartial, judicious and just etc."
10. In the said authority, the Hon'ble Supreme Court of Pakistan shows concern and emphasized on elimination of tendency of not recording adverse remarks by Reporting Officer and Countersigning Officer, at page 181 has observed as under:-- "The experience has shown that there is growing inclination among the Reporting Officers/Countersigning Officers to abstain from recording Adverse Remarks, even against corrupt and inefficient officers for some reasons. One can be that they do not want to displease anybody.
Secondly, they also feel highly embarrassed when are called upon to substantiate their adverse remarks. This lack on the part of higher authorities is contributing factor towards corruption and inefficiency and must be eliminated to help the system work smoothly. Of course, such officers must exercise restraint to act upon on the basis of discredited information, but at the same time, they shall canvass in objective way the true picture about the real performance of concerned officer. The reports of Reporting Officers and Countersigning Officers, unless contrary is proved by a strong piece of evidence, must be accepted as true and having legal and moral sanction behind it.
Acceptance of such reports shall be a rule and rejection an exception."
11. In the case of Inspector-general of Police v. Altaf Majid (1994 SCMR 1348) at page 1350 it has been observed as under:- "We may observe the evaluation of the performance of a subordinate by a Reporting Officer or the Countersigning Officer is a matter of subjective assessment and not an objective evaluation. In this view of the matter, the Tribunal or the Court cannot substitute the view recorded by the Reporting Officer or the Countersigning Officer, nor it will interfere with the above evaluation. This, is, however, subject to exceptions, firstly, when the Reporting Officer or the Countersigning Officer himself does not enjoy a good reputation and mala fide is alleged against him with full particulars and, secondly, when there has been gross violation of instructions, which resulted in miscarriage of justice."
12. At page 1351, it has been observed as under:-- "If the Reporting Officer and the Countersigning Officer have not personal motive to damage the career of their subordinates, their evolution on the above cannot be interfered with by the Tribunal on the ground that the material before then was not sufficient to prove the charge of corruption."
13. Similar view was taken by the Hon'ble Supreme Court of Pakistan in another case of F.Q.
Muteeullah Khan Alizai v. Chief Secretary (1994 SCMR 722).
14. It will be noticed that The Chief Justice has observed that the appellants were having corrupt reputation, generally, the "reputation" means, what is thought of a person by others, and the general reputation of a person is the collective opinion of those in whose midst he lives.
Black's Law Dictionary gives the meaning to word "reputation" as under: "Estimation in which one is held; the character imputed to a person by those acquainted with him.
That by which we are known and is the total sum of how we are seen by others. General opinion, good or bad, held by a person by those of the community in which he resides."
15. The Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan v. Amjad Ahad Sheikh (1983 SCMR 164) defines the word "reputation" as under"- "We agree with the learned Deputy Attorney-general that the information about the general reputation of corruption or of living beyond the known means of income and other such-like matters, relating to public servants, have of necessity, to be based on information received from various quarters and cannot, in the nature of things, be based on such material as would be sufficient to prove the conduct imputed to the officer in a Court of law."
16. Keeping in view the above guidelines and rules laid down by the Hon'ble Supreme Court of Pakistan in examining the cases, pertaining to service matters, we have examined the cases in hand.
17. One of the main grounds of attack on the impugned orders is that the adverse remarks were communicated late. No doubt there is considerable delay in communicating the adverse remarks but this by itself would not render the adverse remarks illegal or inconsequential.
18. So far as the contention with regard to delay in communication of ACRs is concerned we may point out that such proposition was considered by Honourable Supreme Court at length in the case of govt. Of Punjab v. Ahsanul Haq Sethi (PLC 1996 SC 684). While dealing with the above subject in the case Lahore High Court Lahore v. K.M. Sohail reported in 2001 PLC (C.S.) 1253,. It was observed by their Lordships of the Supreme Court that a Judicial Officer remains constantly under supervision of his superior officers through his judgments which are generally examined by higher forums while occupying elevated position like the Appellate or Revisional Courts. It was observed that to assess/evaluate the work of Judicial Officer there cannot be any other parameter except his own judicial performance which can speak a lot itself while expressing that a Judicial Officer exercises an authority under a law is bound to deliver correct and lawful judgments. If any Judicial Officer exercising powers under whatever capacity pronounces a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules.
19. It was observed that as in our Judicial system a considerable time is consumed before Appellate. Revisional or High Court in finally settling the controversy between the parties and confirming or otherwise the judgment under challenge, therefore writing of ACRs being based on the judicial functions of an officer can cause delay. Besides it, the integrity of a Judicial Officer has to be assessed by the Reporting Officer on the basis of credible information which can also be linked or counter checked with his work being done him in the Court. Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a Judicial Officer a longer time is required than writing the ACR of an officer of the executive. It was further observed that thus due to nature of the job of a Judicial Officer and the commitments of the Reporting Officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instruction itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi.
20. In the above report it was further observed as under:- "As it has been pointed out hereinabove that ACRs of a Judicial Officers are generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handling the reputation integrity wise etc., which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a Judicial Officer or his general conduct or till the scrutiny of the judicial order passed by such an officer at least up to appellate and revisional forums it is not advisable to write down such report in a haphazard manner. Because such report on both ways can operate detrimental for the officer and institution as if it has been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause set-back for the institution in the long run."
21. The point of delay in communication of the ACRs in respect of Judicial Officers was again considered by the apex Court in the case of Ch. Shabbir Hussain v. Registrar, Lahore High Court Lahore reported in 2004 PLC (C.S.) 236, wherein it was held that delay in recording adverse remarks does not affect their efficacy or legality. The Honourable Supreme Court in the above report was pleased to observe as under:-- "In view of the settled legal position and well-known preoccupation of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating ACRs of some of the appellants and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the performance of the officer during the relevant year and not any subsequent even stands repelled in view of the observations made in the case of Eshanul Haq Sethi."
' Thus relying upon the authoritative rule laid down by the Hon'ble apex Court, we are of the considered view that the contention raised on behalf of the appellant was untenable, as such, the same is repelled.
22. It is evidently clear that in the present cases,. The appellants were given full opportunity of making representation and presenting their cases and viewpoints before the competent authority who after giving them a chance of hearing passed the impugned orders. As such merely delay in sending the adverse remarks would not result in miscarriage of justice.
23. The learned Advocates for the appellants have stated that before recording the adverse remarks no counseling was given to them. Mr. Muhammad Nawaz Sheikh further added that the appellant Zaheer Ahmed Khan was working as Special Judge Anti-Corruption in year 1995-96 and thereafter up to 2000 he worked as Additional District and Sessions Judge but the Reporting Officer is one and same; that the Chief Justice was not competent to record ACR when the appellant was working as Special Judge Anti-Corruption under the government of Sindh; that under the rules if the same Reporting Officer has given two adverse remarks for continuous period of two years then the officer is to be transferred but the same has not been done, as such, the adverse remarks carry no weight.
24. Before we discuss the above points it is pointed out that the question is to be examined in the light of Article 203 read with sub-Article (3) of Article 175 of the Constitution. The Hon'ble Supreme Court of Pakistan in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) after examining the legal position on the independence and separation, of Judiciary at page 1477, apart from other legal propositions, the following propositions have been pointed out:--
(vi) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Court, which is exclusive in nature, comprehensive in extent and effective in operation.
(vii) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution."
25. The effect of the above Article in recording the ACRs has been examined by the Hon'ble Supreme Court in an unreported case of Raj Muhammad Khan v. Muhammad Farooq being Civil Appeals Nos.167 to 171 of 1988 decided on 14-7-1991. In para. 6 of the Judgment the Hon'ble Supreme Court of Pakistan observed as under:- "We are inclined to agree with the above submission as Article 203 expressly provides that each High Court should supervise and control all Courts subordinate to it, whereas above clause (3) of Article 175 lays down that Judiciary shall be separated progressively from the Executive within 14 years, from the commencing day, which period has already stood expired. The effect of above Article 203 read with above clause (3) of Article 173 of the Constitution seems to be that it is the High Court alone which can supervise and control all the Courts subordinate to it and not the Executive. It must, therefore, follow that the power to record ACRs or to review the adverse remarks if recorded against any subordinate Judicial Officer vests in the High Court and not in the Executive."
26. From the combined effect of the above two authorities of the Hon'ble Supreme Court, it is clear that the ACRs of the Judicial Officers are to be recorded by the High Court alone. Such power does not vest in the Executive. As such even when the appellant Zaheer Ahmed Khan was posted as Special Judge Anti-Corruption, the Chief Justice was competent to record his ACR because he was subordinate to High Court and was subject to it's control and supervision.
27. The learned Advocates further contended that the counseling was not made in writing nor it was communicated to the appellant through any letter, as such, the said counseling carries no weight. The Hon'ble Supreme Court of Pakistan in the case of Lahore High Court v. Muhammad Jahangir Khan Goraya (1999 SCMR 2117) on this question has observed as under:-- "There is no requirement of the instructions on the subject that such counseling or warning has to be in writing communicated earlier under the seal and signature of the Reporting Officer."
28. Thus the arguments have no force at all.
29. As regards the arguments that if the Reporting Officer has given two adverse remarks for continuous period of two years then the officer should be transferred and as the same has not been done in these cases, therefore, the adverse remarks carry no weight. The above rule is not applicable to the cases of the appellants as the ACRs are required to be recorded by the High Court alone through Chief Justice. The jurisdiction of the High Court is extended to the Province of Sindh. The appellants while serving in the Province of Sindh are under the control and supervision of the High Court as required under Articles 175(3) and 203 of the Constitution, as such, after given adverse remarks for two years the officers cannot be placed under any other Reporting Officer because wherever they will serve their ACRs will be recorded by the High Court as the executive has no power to record the ACRs of the Judicial Officers as held by the Hon'ble Supreme Court of Pakistan in the case of Raj Muhammad Khan (Supra). Thus, the arguments have no force.
30. It will be noticed that the High Court through the Chief Justice has to assess the work conduct, character and reputation of the subordinate Judges. The orders of the Chief Justice as mentioned above clearly indicate that he had conducted extensive inquiry about the work, conduct, and reputation etc. Of the officers and then recorded the ACRs, The appellants were fully heard after serving them with notice who place their written representation and thereafter the impugned orders were passed. All these proceedings clearly show that the appellants were given fair opportunity of placing their case before the Chief Justice as such neither prejudice has been caused to the appellants nor has it occasioned a failure of justice. From the remarks and subsequent orders passed by the Chief Justice, a clear picture of the appellants have been brought on the record. Thus, the orders do not require any interference.
31. After considering the material available on the record we are of the considered view that Appeal No,15 of 2002 has no merits, therefore, it is dismissed.
32. Above are the reasons of our short orders dated 2-4-2005 by which the Appeal No,13 of 2002 was dismissed.