SHAH ABDUR RASHID (CHAIRMAN).--The appellant Mr. Mushtaq Ahmad was posted as Deputy Assistant Military Estate Officer in Grade 16 in the Office of the Military Estate Officer (DAMEO), Karachi, under the Director, Military Lands and Cantonments, G. H. Q., Rawalpindi. For the period 1 January, 1976 to 31st July, 1976 when he was charged with the work of hiring, requisitioning and acquisitioning of property, he was directly under Mr. Waris-ur-Rehman Warsi, Military Estate Officer (MEO), Karachi. For the said period namely from 1 January, 1976 to 31st July, 1976 the Annual Confidential Report of the appellant was duly initiated by the said MEO who on the whole graded him as an average officer and remarked that he was fit for promotion. 1n the pen-picture he observed that during the period under report the performance of the Officer was on the whole satisfactory.
2. The report recorded by the MEO was placed before Malik Muhammad Saddiqi, Deputy Director, Military Lands and Cantonments (DDMLC), Karachi Region, Karachi Cantonment. This officer placed him in the category of "not yet fit for promotion but likely to become in due course". In the remarks the said officer made the following observation :- "In the course of stay of the officer reported upon, in Karachi, I have been receiving number of complaints for his delaying the payment of rents of the hired properties."
The appellant's grievance is that although Mr. Waris-ur-Rehman Warsi (MEO) being immediate superior was his reporting officer and he had correctly initiated his Annual Confidential Report, Malik M. Saddiqi, DDMLC, had nothing to do with his work of hiring, requisitioning and acquisitioning of property and therefore, he could not record the report as a countersigning authority. According to the appellant, the officer who could record the Annual Confidential Report as countersigningst st authority was Deputy Director, Military Lands and Cantonments (HQ) Q. H. Q., Rawalpindi. He had represented that the report recorded by Malik M. Saddiqi should be expunged and the report for the period 1st January, 1976 to 31st July, 1976 be sent to the Deputy Director, Military Lands and Cantonments (HQ), G. H. Q., Rawalpindi to comment as Countersigning Officer.
3. Mr. Shahudul Huque, the learned counsel for the respondent at the very outset raised preliminary objection that this appeal is incompetent and is outside the purview of the Tribunal inasmuch as the Tribunal cannot judge the work of an officer and expunge the adverse remarks made by the countersigning officer. In this respect he relied upon the case of Mr. Muhammad Aboo Abdullah v.
The Province of East Pakistan etc. (PLD 1960 SC 164). Reference was particularly made to the observation at page 167 which reads as follows "It is difficult to infer that the series of adverse remarks spreading over a number of years against the appellant were all mala fide. Besides, it is within the exclusive competence of superior Officers to express themselves freely as to their own opinion, which may be right or wrong, with regard to the appreciation of work and character of their subordinates having a bearing on their duties. The appellant also stated that he was unaware of these remarks, as they were not communicated to him. It is regrettable if they were not communicated to him, as it would have given him an opportunity to correct himself in time; but this is a matter which could be dealt with by the Government on its administrative side and is not a matter which is justifiable in a Court of law. The appeal is accordingly dismissed."
4. We do not doubt the view taken by the learned counsel for the respondents as confirmed in the just cited case but the matter before us is substantially different from the one with which the Supreme Court had dealt with. In that case the aggrieved person was challenging the adverse remarks made against him by the officer who was authorised to write the report. In the present case the basis of the claim is that the person who countersigned the Annual Confidential Report had nothing to do with the appellant and was not the countersigning authority, as such not a person competent to countersign his Annual Confidential Report. In our view if it is established that Malik M. Saddiqi was not the counter--signing officer according to the then existing orders of the department ; Then the report recorded by him is of no consequence and deserved to be expunged and substituted by the report to be recorded by the person who under the relevant instructions was the countersigning authority. In fact, no legal point is involved and the only dispute is as to who was the countersigning authority for the relevant period in respect of the appellant.
5. The Form of Confidential Report is given in Establishment Manual Vol. I of 1968 and appears at pages 467 to 470. Instruction No. 2 requires that the report should be initiated by the next higher officer and counter-signed by an officer higher than the reporting officer, both being concerned with the work of the officer reported upon. The appellant's case is that though Mr. Waras-ur- Rehman Warsi was the next higher officer and was concerned with the work of the appellant, Malik M. Saddiqi though a higher officer was not at all concerned with his work. 1n support of this contention reliance has been placed on certain documents. In Confidential letter No. 102/19/G/SO(B)/ MI & C/68, dated 26th April, 1968 which was addressed to all MEOS Quetta Cantt.
On behalf of the Director, Military Lands and Cantonments, it was observed that the work relating, to hiring, requisitioning and acquisition of immovable property being centralised is controlled directly by DDMI & C (HQ) and that accordingly it had been decided that as the Regional, Deputy Directors do not deal with the lands/ hiring work they are not in a position to assess the merits or demerits of DAMEOs; SDOs. It was also observed that it has been decided that the ACRs of 1967 should be initiated afresh by MEOs and submitted directly to the DDMI & C (HQ) for countersignature. If this letter remains in force till 1 January, 1976 then obviously the report recorded by Malik M. Saddiqi who was Regional Deputy Director is of no avail as he was not the countersigning authority. Another letter No. 7318/G; 8/(B)/ MI & C/77 of 22nd March, 1977 against refers to the previously cited letter and then directs that since overall supervision of land hiring had been assigned to Additional DM & C, the A. R. Rs of the staff working in the office of the MEOS or in the office. Of CEOs at outstation should be initiated by the officer concerned i.e. MEO/CEO and forwarded directly o Additional DMI & C for countersignature. The first letter was issued prior to the period of report of the appellant while the second letter was issued subsequent to the period of report. The learned counsel for the respondents has not made available any record which could show that there was an intervening order providing for the countersigning of the Annual Confidential Report of the officers of the category of the appel--lant by the Regional Deputy Director. As such, the balance of evidence is in favour of the appellants contention that Malik M.
Saddiqi, Deputy Director of the Region was not competent to countersign the report and that it was Deputy Director, Military Lands and Cantonments GHO, Rawalpindi who was the proper person for countersigning.
6. The learned counsel for the respondents takes serious objection to the taking into consideration of the confidential letter of 26th April, 1968 referred to above the ground that it was confidential in nature and the appellant could not have got hold of it and that the original copy having been destroyed this letter has no authenticity. However, the letter of 22nd March, 1977 refers to this in the very opening paragraph and it shows that the copy of the confidential letter was also enclosed with it. The confidential letter having been made part of an ordinary letter lost its confidential nature and, therefore no objection can be taken to its being taken into consideration. No evidence has been produced to show that the confidential letter has been destroyed as alleged by counsel for the respondents. It is common knowledge that when a file is destroyed a record is kept to show the destruction of the file. The plea is not sub--stantiated at all. On the other hand it is amply proved that the confi--dential letter had not been destroyed till 22nd March, 1977 (before the filing of the appeal) because in letter of that date reference has been made to the confidential letter.
7. The learned counsel for the respondents has contended that he might be able to show that the previous reports of the appellant Were also countersigned by the DDMI & C Karachi Region but in our view this fact by itself would not show that the said practice was according to the instructions of the superior officers. At the time of hearing,, the pre--vious reports were not made available and the adjournment sought in this respect has been refused because even if the contention is proved the matter will lead nowhere. The actual point which has to be established is that under the authority of the Directorate of Military Lands and Cantonments GHQ, Rawalpindi, the Regional DDMLS had or had not been assigned the power of countersigning the Annual Confidential Reports of the officers of the category to which the appellant belongs. On behalf of the respondents no such document has been placed at file or has been made available to us at the time of hearing.
Previous wrong practice, if any, would not validate the countersigning of the report of the appellant by an unauthorised officer for the period under reference.
8. The learned counsel for the respondents then argued that the appellant and the DDMLs, Karachi Region, were working in the same office building and, therefore, the latter was in a better position to assess his work. In this contention there is no force because merely by having office in the same building every junior officer does not come under the control of all the other senior officers. In this particular case special directions from the Headquarters are to the contrary and belie the stand taken by the learned counsel for the respondents.
9. The learned counsel for the respondents also pointed out that the Annual Confidential Report as countersigned, by Malik M. Saddiqi came up before the Deputy Director, Headquarters who had seen it but had remarked that no action lies at his end. This observation in our opinion is of no avail because the record did not come to the Deputy Director, Headquarters for countersignature but it was sent in routine. To him and he forwarded it to DMI &.C and DMEO(G) who directed that the report be communicated to the appellant.
10. From whatever we have stated above it is evident that Malik M. Saddiqi had no right to countersign the Annual Confidential Report of the appellant for the period from 1st January, 1976 to 31st July, 1976 and that it was Deputy Director, Military Lands and Cantonments (HQ) GHQ, Rawalpindi to whom the report initiated by Mr. Warts-ur-Rehman Warsi should have been sent for countersignature. We, therefore, direct that all the remarks recorded by Malik M. Saddiqi be taken out of consi--deration and the report initiated by Mr. Warts-ur-Rehman Warsi should be sent to the officers) who was holding the post of Deputy Director, Military Lands and Cantonments (HQ) GHQ, Rawalpindi during the, period 1st January, 1976 to 31st July, 1976 and it should.Be his report which should be taken as report of the countersigning authority.
11. Parties to be informed accordingly.