' CH. EJAZ YOUSAF, J.--- The petitioner seeks review of judgment, dated 4-12-2003 passed by this Court in Civil Appeal No,13 of 2000 in the case of Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191.
2. It would be pertinent to mention here that the above judgment was passed by this Court in a number of appeals including one, i.e, C.A. No,13 of 2000, filed by the petitioner, wherein judgments passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore were assailed. In order to recapitulate facts pertaining to the petitioner's case, it would be advantageous to have a glance at the relevant extract from the judgment under review, which reads as follows:-- "Civil Appeal No,13 of 2000 ' While posted as Additional District and Sessions Judge, Shujahabad, District Multan the appellant Ijaz Mehmood Chaudhry was communicated, vide letter, dated 7-9-1998, the following adverse remarks recorded by the Reporting Officer, a learned Judge of the Lahore High Court, in his A.C.R.
Pertaining to the period from 19-7-1997 to 31-12-1997:-- Part-V
(a) Pen pictureReputation not above board.
Part-VI
(b) Fitness for promotionNot yet fit for promotion.
(c) Integrity Reported to be corrupt ' The representation filed by the appellant was rejected by the Administration Committee of the Lahore High Court and the ensuing appeal was dismissed by the Tribunal on 23-12-1999. During pendency of this appeal he was granted interim relief to the effect that his case for promotion shall be considered on the basis of relevant considerations and service record other than the adverse remarks challenged by him and in case he is promoted, it shall be subject to the result of the appeal. The appellant was promoted as ' District and Sessions Judge on 2-9-2000 subject to the result of this appeal. Leave was granted to consider the legality of the impugned judgment."
3. It would also be beneficial, for the purpose aforesaid, to go through the contentions raised by the learned counsel for the petitioner, at the time of hearing of the appeal which appear in para.3 (page 17) of the judgment under review as under:-- "Sheikh Zamir Hussain, learned counsel for the appellant Ijaz Mehmood Chaudhry, contended that the appellant had 30 years of service to his credit and had earned only one adverse report for a short period of five months from 19-7-1997 to 31-12-1997. He had earned good reports before and after the said report and the Reporting Officer had not stated with particularity as to how all of a sudden his conduct had changed. Reliance was placed on Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCM R 1749. The report was undated and recorded by a Judge of the High Court who was not the Inspection Judge. There was neither any complaint, transfer application nor resolution of a Bar Association against the'appellant. The report was also whimsical being not based on any material. The appellant being an Additional District and Sessions Judge had no financial responsibility. He further submitted that the adverse remarks had lost their efficacy as the appellant was promoted as District and Sessions Judge on 2- 9-2000."
4. Learned counsel for the petitioner has submitted that the contention raised at the time of hearing of appeal, upon the basis of Noor Elahi's case 1997 SCM R 1749, to the effect that since the A.C.R. In question was the only adverse report earned by the appellant during his 30 years of service and the Reporting Officer had not stated with particularity, supported by proper material, as to how all of a sudden his conduct had changed therefore, a case for expunction of adverse marks was made out, was rejected and his case was distinguished from Noor Elahi's case solely for the reason that in Noor Ellahi's case the officer reported upon had earned good reports before and after the adverse remarks whereas, the petitioner's case it was not established on record that he had earned good reports before 19-7-1997 and the subsequent periods. He maintained that since the petitioner had unblemished record before and after the adverse report and the distinction drawn did not flow from the material on record rather, as a matter of fact there was no basis for the distinction drawn, therefore, the appeal decided on the assumption of non-existent fact is required to be reviewed. It is further his case that since it was not brought into the notice of this Court that the law and rules governing the A.C.Rs, envisage communication of only adverse report to the officer concerned, therefore, the reports which were not communicated were required to be presumed to be "good" hence, the appeal was decided on wrong presumption. He has further contended that since the petitioner had never worked under the learned Reporting Officer nor was he the Inspection Judge for the District nor had he ever visited the place of petitioner's posting, therefore, adverse remarks in question were of no legal significance. In order to supplement his contention he has stated that the High Court had, in order to supervise, control and regulate function of subordinate Courts, appointed Inspection Judges for different districts, therefore, A.C.Rs, had to be recorded by the Inspection Judge alone. The learned Judge, who had recorded the adverse remarks had never been appointed as Inspection Judge. Reliance was placed on letter No,5/MIT/HC/M/Sessions Statements for the month of September, 1997, whereby the Member Inspection Team of Lahore High Court conveyed the order of the Inspection Judge Mrs. Justice Ehsanul Haq Chaudhry to the District and Sessions Judge, Multan endorsed to all the District and Sessions Judge on 3-1-1998. He maintained that since the above fact, that the learned Reporting Officer was not the Inspection Judge, was not brought into the notice of this Court, therefore, the submissions made by the petitioner could not find favour and his appeal was dismissed by this Court vide the impugned judgment, otherwise result would have been different. He prayed that since an important aspect of the matter which had a material bearing on the result of the case escaped notice of this Court, therefore, the impugned judgment to the extent of the case of the petitioner may be reviewed and appeal filed by him may be allowed. Regarding , maintainability of the review petition he placed reliance on the cases reported as (i) Mian Rafiq Saigol and another v.
Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1997 SC 865, (ii) Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363.
5. Qazi Muhammad Amin, learned Additional Advocate-General, Punjab, on the other hand, while controverting the contentions raised by learned counsel for the petitioner has submitted that case of the petitioner at the time of hearing of the appeal was thoroughly considered and having been found distinguishable from the case of Noor Ellahi (supra), the appeal filed by the petitioner was rightly dismissed. He, however, candidly conceded that the very fact that learned Judge who had recorded the adverse remarks was not the Inspection Judge, was neither brought into notice of this Court, nor case of the petitioner was considered in that perspective. He has also not controverted that the petitioner was promoted on 2-9-2000 as District and Sessions Judge and that the report which contained adverse remarks pertained to a period of only five months and that the learned Reporting officer had also not visited the place of posting of the petitioner during the period reported for.
6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the judgment under review, carefully.
7. As regards the first contention of the learned counsel for the petitioner that during thirty years service since there was no adverse report either before or after the impugned adverse remarks hence, the principle laid down in Noor Elahi's case (supra) was squarely applicable to his case, and it could not have been distinguished simply for the reason that it was not established on record that the petitioner had earned good reports before 19-7-1997 and subsequently, as well, it may be pointed out here that before dealing with the proposition it would be advantageous to have a glance at the relevant discussion, from the judgment under review, which reads as under:- "It was contended by the learned counsel for Ijaz Mehmood Chaudhry that a case for expunction of adverse remarks was made out in the light of the observations made in the case of Noor Elahi 1997 SCM R 1749 as the A.C.R. In question was the only adverse report earned, by the appellant during his 30 years of service and the Reporting Officer had not stated with particularity, supported by sufficient material, as to how all of a sudden his conduct had changed. The contention cannot prevail as the cited authority is distinguishable. In that case the officer reported upon had earned good reports before and after the adverse remarks whereas in the present case it has not been established on record that the appellant had earned good reports before 19-7-1997- and the subsequent periods."
8. It would be pertinent to mention here that in Noor Elahi's case, the appellant was an employee of Pakistan Air Force. He was sent on deputation to Saudi Arabia. During his deputation period, he was given adverse remarks in his annual confidential report. He made a departmental representation for expunction of the said adverse remarks,inter alia, stating therein that the Reporting Officer was based towards him. The representation was not disposed of, when he approached the Service Tribunal for redress of his grievance. The appeal filed by the appellant before the Tribunal was, however, dismissed being barred by time and also for the reason that no final rejection order was passed on the representation. Leave to appeal was granted to consider that the appellant who had served the department for thirty-one years and had earned only one adverse annual confidential report which was communicated to him after a delay of nearly four years in violation of the rules, as to whether in the circumstances the said A.C.R. Was liable to be expunged? It was also found that the remarks given in the A.C.R. Suffered from vagueness. Consequently, adverse remarks were expunged. It was held 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. It was, while referring the case of Government of the Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684 and Inspector-General of Police, Punjab, Lahore v. Rana Altaf Majid 1994 SCM R 1348, further observed that since the appellant had earned good reports before 1991 as well as in the subsequent years, therefore, Reporting Officer should have stated with particularity as to how all of a sudden there was a change in the conduct and behaviour of the appellant, sup(orted by sufficient material and since the needful was not done by the Reporting Officer, it resulted in grave prejudice to the appellant.
9. No doubt petitioner's case was distinguished from Noor Ellahi's case for the reason that it was not established on record that the petitioner had earned good reports before and after the adverse remarks yet, the very fact that the petitioner was promoted as District and Sessions Judge on 2-9- 2000 during pendency of the appeal implies that except the adverse remarks he had otherwise good record sufficient to convince the authorities to grant him promotion. Law requires that adverse remarks contained in the A.C.R. Of a civil servant must be communicated to him otherwise they would be sterile, useless and ineffective, what to speak of non-communicated remarks. In the case of Muhammad Farooq Chauhan v. The Province of Punjab PLD 1987 SC 271, it was held by this Court that in case of promotion adverse remarks not communicated whether in time or out of time are liable to be ignored. In the case of Masud Jamal v. Secretary to the Government of Pakistan 1999 SCM R 1542, the adverse remarks contained in the A.C.R. Were' not conveyed to the appellant.
He had approached the Service Tribunal which ruled that his case for move-over from BPS-18 to BPS-19 be considered without taking into account the adverse remarks. Order was assailed before this Court in appeal which was upheld and the matter was remanded by the Supreme Court to departmental authority with direction to consider case of civil servant for move-over without taking into consideration the remarks in the A.C.R. In the case of Abdul Jabbar Khan v. Government of Sindh 1996 SCM R 850 the appellant had challenged that his adverse A.C.R. For the year 1972 was never communicated to him. Since the respondents failed to brought on record anything that such adverse remarks were duly communicated to the petitioner within the time contemplated by the rules, it was held that non-communication of adverse remarks made authenticity of such remarks as completely ineffective and that on the basis of such uncommunicated remarks a civil servant could not have been subjected to any adverse order.
' In the wake of above it thus, follows that if a report is not communicated then it would be presumed to be good. What to speak of adverse report, even average reports are not required to be communicated because those are not considered "adverse" and are taken synonymous with "good" reports. In the case of Muhammad Anwar v. The Secretary, Establishment Division PLD 1992 SC 144, the appellant had to his credit two good reports and three average reports. It was held that in the absence of adverse report, the effect of those reports was generally good. Hence, to us, the distinction drawn, in the case of petitioner, from Noor Ellahi's case was unfounded.
10. We see force in this contention of the learned counsel for the petitioner as well that this Court while declining to interfere with order of the Tribunal proceeded altogether on wrong premise that the Reporting Officer was the Inspection Judge for the District of petitioner's posting whereas the facts were other way round. The following observation made in para.8 of the judgment in question is explicit in this regards:-- "In the present appeals the adverse remarks were either recorded by the Inspection Judges of the Lahore High Court as reporting officers or endorsed by them as countersigning officers and in some cases the Reporting Officers are District and Sessions Judges."
Learned Additional Advocate-General, Punjab has not controverted that another learned Judge of the High Court was the Inspection Judge for Multan District at the relevant time, hence case of the petitioner was infact decided on wrong premise.
' Upshot of the above discussion is that this review petition is accepted. The Civil Appeal i.e, No,13 of 2002 filed by the petitioner is accepted, the impugned judgment dated 23-12-1999 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in Appeal No,10 of 1999 is set aside and adverse remarks contained in the report for the period of 19-7-1997 to 31-12-1997, against the petitioner are expunged.