' JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).---The appeal is directed against the communication of adverse remarks for the period 1-1-2004 to 31-12-2004 communicated through letter, dated 31-3-2006 and received by the appellant on 4-4-2006. The appellant filed a representation on 4-5-2006 which was rejected on 15-6-2006.
2. It is contended in the appeal that the recording of the term "perfunctory attitude" for the said period was not warranted under the circumstances of the case and shall in any event not amount to adverse in nature. It is contended that the impugned remarks were communicated to the appellant with inordinate delay and that such delay would be fatal as far as the adverse remarks were concerned. The learned counsel for the appellant has placed reliance upon 1999 SCMR 1587, 1993 PLC (C.S.) 332, 2003 PLC 1092. It is urged that the adverse ACR must be communicated to the official within 30 days of the countersigning of the same, failing which the adverse remarks would fail to be effective. It is further contended that while recording adverse ACR specific instances must be mentioned on the basis of which adverse remarks are recorded. Reliance is placed on 1992 PLC (C.S.) 1032, 1992 PLC (C.S.) 1051 and 1994 PLC (C.S.)
129. It is submitted that in this context no warning has been administered to the appellant nor any counseling conducted before adverse remarks were recorded. Strength is being drawn from the observations made in 1993 PLC 332. The learned counsel for the appellant further submits that no other ACR of the appellant was recorded as adverse throughout his career and it is not understood what prompted the Reporting and Countersigning Officer to enter "perfunctory attitude" in the impugned ACR. According to him no person is expected to change character overnight. Refers to 1993 PLC (C.S.)
142. The learned counsel for the appellant distinguishes the findings recorded in 2006 PLC (C.S.) 1065 by submitting that in the cited case an opportunity of hearing was given to the appellant who was also administered counseling before the adverse remarks were recorded. No such opportunity of hearing or counselling took place in the case of the appellant. The learned counsel for the appellant concluded by submitting that the impugned remarks and communication was done in a mala fide manner in order to deprive the appellant from his prospects of promotion. It is contended that the adverse remarks were communicated vide letter, dated 31-3-2006 which were received by the appellant on 4-4-2006 when in fact the meeting of the Selection Board was to be held on 8-4-2006 which was actually held on that date. While the appellant did not have any opportunity of filing a representation against the adverse remarks, the impugned entry however was considered by the CSB of 8-4-2006 and the appellant was superseded.
3. On the other hand Syed Kazim Hussain Kazmi, Advocate for the respondents has controverted the claim of the appellant. It is submitted that the judgments which have been cited by the learned counsel for the appellant do not support the claim of the appellant as the said judgments have been passed under the provisions of the Civil Servants Act, 1973 and a Guide to Performance Evaluation which only pertains to the cases of the ACRs recorded under the Civil Servants Act. It is submitted that under section 18 of the WAPDA Act, 1958 as amended the authority has made its rules and instructions which are called Pakistan WAPDA (Water Wing), Engineering Rules, 1978. It is contended that the period of 90 days within which adverse remarks are to be communicated to the concerned official under the WAPDA rules and instructions has been further amended through instructions issued by the competent authority on 11-1-1987, according to which if the remarks appearing in the ACR have been accepted by the higher Reporting Officer as adverse remakes, the same could have been communicated to the officer concerned even after the expiry of 90 days to enable him to improve himself. According to him the non communication of the adverse ACRs within 30 days or even within 90 days could not effect validity of the adverse ACRs and the adverse remarks were not liable to be expunged on such ground of delay. The learned counsel relies upon 2006 PLC 1065, 2004 PLC (C.S.) 236, PLD 1986 SC 684. The learned counsel for the respondents further submitted upon the instruction of the departmental representative that the action of the respondents did not suffer from mala fides as even if the adverse remarks were not before the CSB of 8-4-2006, the only advantage accruing to the appellant would be that of half mark which was not sufficient to enable the appellant to cross the minimum threshold of 70 marks in qualification and would thus be irrelevant for the purpose of the said CSB on that occasion.
4. In rebuttal the learned counsel for the appellant has referred the comparative pen-picture of the appellant as produced by the respondents today. As per this record the Chief Engineer of the project as Initiating Officer for the relevant period has reported as under:- "A good, hardworking and obedient Engineering Officer. During the period under report he produced good results regarding Monitoring of TDP as well as GBHP instrumentation."
' It is contended that Senior Reporting Officer (S.R.O.) in his remarks reported as under:-- "The job of Director Project Monitoring of TDP/GBHP is rather challenging task entrusted to Mr. Ghaffar which demanded dedication and total commitment. I found Mr. Ghaffar handling the task with perfunctory attitude."
' These remarks of the S.R.O. Were countersigned by the N.S.R.O. It is contended that in such a situation if there be any conflict between the remarks of the Inquiry Officer and S.R.O. Or the N.S.R.O.
The conflict must be resolved in favour of the officer reported upon and in the present situation the benefit of the remakes of the Initiating Officer should be accorded to the appellant.
5. Arguments have been heard and record perused.
6. A perusal of the impugned ACR would show that the Chief Engineer of the Project as Initiating Officer for the relevant period who was directly responsible for overseeing the work of the appellant had reported in unequivocal terms that the appellant was a good, hardworking and competent Engineering Officer and that during the period under report he produced good results regarding monitoring of TDP as well as GBHP instrumentation. The remarks given by the Senior Reporting Officer (S.R.O.) were however, contrary to those recorded by the Initiating Officer inasmuch as the appellant was reported to handle the task with "perfunctory attitude". These remarks of the S.R.O.
Were countersigned by the N.S.R.O.
' It is a cardinal principle of law that wherever there is a difference between the remarks of the Initiating Officer and the Countersigning Officer, the latter must give cogent reasons for differing with the view of the Initiating Officer and also give cogent reasons for not accepting the report of the Initiating Officer. Such reasons must also state specifically instances with regard to work and conduct of the employee if remarks of the Countersigning Officer are to hold the field. In the instant case the S.R.O. Differed with the report of the Initiating Officer without giving any cogent reason and without citing any instance with regard to work and conduct of the appellant for such difference of opinion. Reliance can profitably be placed upon 1994 PLC (C.S.) 129 Syed Ali Ashraf Shah Gillani v.
Azad Government of the State of Jammu and Kashmir. The same view has been upheld by the Service Tribunal Punjab in 1992 PLC (C.S.) 1032 Irshad Akhtar 'Ghulab v. Inspector-General of Police, Punjab, Lahore, wherein it was held that were the remarks against a civil servant were not supported by any specific material available on the file and no instances have been quoted, such adverse remarks were liable to be set aside. In the present case, there is nothing on the record to substantiate the adverse remarks of "perfunctory attitude" and cannot be sustained.
7. We are also mindful of the possible import of the term "perfunctory attitude". Such -a remark means a curt and dismissive attitude of a civil servant which if not supported by specific instances of such behaviour would be vague and indefinite and liable to be expunged. Reliance placed upon 1992 PLC (C.S.) 1032 supra and 1992 PLC (C.S.) 1051 Tahir Mansoor v. Superintendent of Police, Bahawalnagar and 2 others are supportive of this legal proposition.
8. Coming to the question of delay in communication of the adverse ACR, the dictum laid down in 1999 SCMR 1587 Chief Secretary, Government of Punjab, Lahore v. Muhammad Saeed Zafar provides the necessary guidelines. In that case adverse remarks recorded in annual confidential report were communicated to the civil servant after a lapse of about 4-1/2 months and the authority having failed to explain each day's delay, the adverse remarks were directed to be expunged. It was held that adverse remarks should be communicated to the civil servant within a reasonable period in order to apprise him of the same so that he is enabled to improve himself. In the instant case the adverse remarks for the period from 1-1-2004 to 31-12-2004 were communicated through letter, dated 31-3-2006. No reasonable explanation for not communicating the adverse remarks within a reasonable period of time is forthcoming on the record. The adverse remarks are liable to be expunged on this ground also. There is also much force in the submissions made by the learned counsel for the appellant that the unblemished record of service of the appellant during his entire service career was sufficient to warrant the expunction of the adverse remarks. There is nothing available on the record which can justify the sudden incorporation of the adverse remarks as human behaviour does not countenance unpredictable and unexpected change in character over night. In such a situation element of mala fide could not be ruled out in the Initiating Officer or the Countersigning Officer or the higher Countersigning Officer where the case is so spelt out.
9. Indeed the purpose and object of an annual confidential report is to constitute an aid to selection for appointments, promotions, confirmations and screening of officials. Such reports must be recorded most carefully, objectively, impartially and pragmatically. In case C there is inconsistency between the report of the Initiating Officer and the Countersigning Officer the benefit must go to the civil servant unless there are strong reasons for upholding the remarks made against him.
10. Even if it is assumed that the term "perfunctory attitude" was an advisory remark, it must be aimed at giving an opportunity to the servant to improve himself in the light of counselling given to him. No such intention or counseling is discoverable from the record.
11. We are not overly impressed by the submission made by the learned counsel for the respondents that under the Pakistan WAPDA (Water Wing) Engineering Rules, 1978 a period of 90 days has been provided under which adverse remarks are to be communicated. This is not so as the adverse remarks were communicated to the appellant much beyond a period of 90 days i,e, about 1 year and 3 months from the period reported upon. The reliance placed upon 2006 PLC (C.S.) 1065 and PLD 1986 SC 684 does not advance the case of the respondents.
12. Regarding mala fides of the respondents suffice it to say that intentions if honest must not match the result if they are harmful in the circumstances of the case. The adverse remarks in the, piesent case related to the period from 1-1-2004 to 31-12-2004. They were communicated through letter dated 31-3-2006 after a period 1 year and 4 months. The adverse remarks are stated to have received by the appellant on 4-4-2006 while meeting of the Selection Board was held on 8-4-2006 with the result that the appellant had no opportunity of filing a representation against the adverse remarks which were nonetheless considered by the CSB held on -4-2006 and resulted in the supersession of the appellant. It is idle for the respondents to contend that the adverse remarks had no material effect upon the supersession of the appellant by the Selection Board.
13. The upshot of the above discussion is that the adverse remarks expressed through the term "perfunctory attitude" are not sustainable in law. The appeal is accepted and the said adverse remarks are directed to be expunged. The appellant shall be entitled to all benefits that would accrue from the said expunction.
14. No order as to costs.
15. Parties be informed accordingly.