' RASHID MAHMOOD ANSARI, (MEMBER):--- The appellant has filed the instant appeal against the order dated 11-12-2004 whereby his representation against the adverse remarks in his ACR for 1999 has been rejected.
2. The facts of the case, in brief, are that the appellant joined the Government service in the District Management Group on 3-10-1982. In 1999 he was serving as Chief, Taamir-e-Sindh Programme in the Planning and Development Department of the Government of Sindh. His ACR for the period 1-1- 1999 to 5-9-1999 was initiated by the Chief Economist, P&D Department, Government Sindh as the Reporting Officer who graded the appellant as "very good" in almost all the columns in Part-II (Personal Qualities), III (Attitudes) and IV (Proficiency in Job). In section (a) of Part-VI, pertaining to "overall grading" the appellant was graded as very good and in section (b), "fit for accelerated promotion." In pen-picture, the Reporting Officer described the appellant as the hardworking officer with forceful ideas and cooperation who was always effective with updated information pertaining to his Sectoral projects. The Countersigning Officer altered the two gradings each by two steps in Part-VI. The overall grading in section (a) of Part-VI was downgraded from "very good" to "average" and in section (b) from "fit for accelerated promotion" to "not yet fit for promotion." The Countersigning Officer made no other changes in the ACR.
3. The Government of Sindh forwarded the said ACR to the Establishment Division vide letter dated 12-11-2001. After a laps of two years the latter advised the Government of Sindh vide letter, dated 18- 12-2003 that the ACR in question contained adverse remarks which may be communicated to the officer (appellant). Accordingly the Services, General Administration and Coordination Department (Government of Sindh) communicated the adverse remarks to the appellant vide letter dated 31- 12-2003. The appellant submitted the departmental representation dated 12-1-2004 against the adverse remarks which was turned down vide letter dated 22-7-2004. He followed it up with another representation which was also turned down vide letter dated 11-12-2004. Eventually the appellant filed the instant appeal in this Tribunal on 30-12-2004.
4. The learned counsel for appellant submitted that the downgrading done by the Countersigning Officer (respondent No,3) was unwarranted in as much as that he had drastically differed with the assessm ent of the Reporting Officer without giving any reason thereof; that contrary to the rules, no counseling was given to the appellant to improve his performance; and that as against the laid down procedure, the adverse report instead of being communicated within one month, was in fact communicated to him after 4 years.
5. The respondents have submitted their objections to the appeal wherein they have vehemently opposed the appeal. Raising the issue of limitation, the learned counsel for respondent No,2 contended that the instant appeal was incompetent since the appellant filed more than one departmental representation against the adverse remarks whereas he should have come to the Tribunal within 30 days after his first representation, dated 21-1-2004 was turned down vide order, dated 27-7-2004 but he submitted a second departmental representation which was also rejected. According to the learned counsel, the instant appeal is grossly time-barred since the limitation is to be reckoned from 27-7-2004 when his first representation dated 21-1-2004 was turned down. He relied on the cases reported as 1995 SCMR 1505 and 2001 SCMR 17. He further argued that in an ACR, good points can co-exist along with adverse points and relied on the case reported as 1999 SCMR 2117. Also citing the ruling of the apex Court in the case reported as 1994 SCMR 722, the leaned counsel pleaded that since the appellant had not alleged any mala fide against the Countersigning Officer, therefore it could not be urged that the Countersigning Officer was not impartial or not dispassionate in evaluating the performance of the appellant.
6. We have heard the learned counsel for both sides and have also perused the record.
7. While carrying out downgrading in both the sections of Part-VI for "overall grading" and "fitness for promotion", the Countersigning Officer made no revision in the assessment of the Reporting Officer as indicated in various columns in Part-II, III and IV. It impliedly means that the Countersigning Officer agreed with the assessment of the Reporting Officer in regard to the appellant's personal qualities (Part-II), attitudes (Part-III) and proficiency in job (Part-IV). However paradoxically he differed drastically with the Reporting Officer's assessment in regard to "overall grading" and "fitness for promotion" whereby the ACR has become self-contradictory.
8. It is also significant that the Countersigning Officer did not consider it necessary to justify the downgrading that he had carried out and left Part-VII completely blank even though, as per instructions explicitly given therein, it was required of the Countersigning Officer that if he disagreed with the assessm ent of the Reporting Officer then he should give reasons thereof. Since the Countersigning Officer gave no justification of his disagreement with the Reporting Officer in Part-VI, it can be concluded that the downgrading carried out by him was arbitrary and based on whim.
9. In accordance with section 3.1 (ii) of a Guide to Performance Evaluation, the Countersigning Officer should have underlined in red ink the adverse remarks. Even if the downgrading of the "overall grading" as "average" is not "treated as adverse, there cannot be two opinions that the downgrading of the "fitness for promotion" column to "not yet fit for promotion" was adverse as indicated in section 3.11(ii) of the Guide (ibid) and, therefore, it should have been underlined in red ink by the Countersigning Officer. Another violation of the laid down procedure was that instead of communicating the adverse ACR within 30 days of its countersigning, it was communicated to him after almost 3 years. It was against the principle of natural justice that the appellant was kept in the dark about the adverse remarks of the Countersigning Officer.
10. As regards the question of limitation, a second representation was not required on the part of the appellant. However, significantly, the respondents did not take this ground when the second representation was rejected vide letter dated 11-12-2004. They therefore cannot invoke this rule at latter stage. In any case the appellant's case is strong on merits. We therefore condone the delay in filing the instant apps. Al. Reliance is placed on the dictum laid down by the Honourable Supreme Court of Pakistan in Managing Director, Sui Southern Gas Company Ltd. v. Ghulam Abbas and others 2003 PLC (C.S.) 796 in which it was held decision of the cases on merits always to be encouraged instead of non-suiting the litigants for technical reasons including on limitation.
11. In view of the foregoing, the downgrading in Part-VI(b)(iii) of the ACR "i,e, not yet fit for promotion" is expunged. Furthermore in line with the principle of consistency, the downgrading in Part-VI(a)(iv) i,e, "Equals the majority of officers (Average)" is also expunged since-it was not backed by the requisite revision in the preceding Pars of the ACR and its retention would therefore be inconsistent with the entries in the rest of the ACR. The appeal is disposed of in these terms.
12. No order as to costs. Parties be informed.