1. ' ARSHAD NOOR KHAN, J.--- By this order, we propose to dispose of Service Appeal No,20 of 2003 and Service Appeal No,18 of 2004 Manthar Ali Jatoi v. High Court of Sindh through Registrar, as both the service appeals bear common question of facts and law as well as the reporting officer is same.
2. The facts as stated in the appeals in brief are that the appellant was initially appointed as Civil Judge on 25-5-1988 and after his first appointment as Civil. Judge in BPS-17, he worked under the administrative control of various District and Sessions Judges, some of whom were subsequently elevated to this Court and he earned good reputation and was then promoted to Senior Civil Judge, he also command good respect and reputation amongst the bar and litigants and performed his duties with efficiency, honesty and diligently and his working and integrity was never questioned from any quarter and because of his tireless efforts and pioneer to his duties, he was promoted as Additional District and Sessions Judge in the month of March, 1997 and remained posted at various stations and was enjoying good reputation and to his utter surprise, he was dropped for the promotion of District and Sessions Judge as such he requested to the Registrar to inform him the reasons which were considered to drop him from his promotion and he subsequently received the copies of ACRs for the years 1997, 1999, 2000 through a letter of Registrar, dated 3-9-2002 as such he along with copies of ACRs made representation for expungment of remark% from his ACRs which was rejected, hence he filed Service Appeal No,201- of 2003.
3. ' When the Service Appeal No,20 of 2003 was pending adjudication, the appellant received another letter from the Registrar dated 12-1-2004 thereby communicating him the adverse remarks in his ACRs for the years 2001 and 2002 as such he preferred representation for expungment of adverse remarks which was also turned down, hence he preferred Service Appeal No,18 of 2004 under section 4 of the Sindh Service Tribunals Act, 1973 read with section 3(B) of the Sindh Service Tribunals (Amendment) Ordinance, 1991 (Sindh Ordinance II of 1991).
4. ' The notice of both service appeals have been served on the respondents, who have also filed parawise comments, inter alia, admitting therein the adverse remarks recorded in the ACRs of the appellant and have asserted that the adverse remarks were rightly recorded in the ACRs of the appellant because of the knowledge gained by reporting officer and that the reporting officer have all the powers to record such remarks in the ACRs of the incumbent if his integrity and inefficiency is manifest and that the integrity of the appellant was questioned by the members of the bar as well as complaints received against him, therefore, the then Chief Justice was right in recording such adverse remarks in the ACRs of the appellant and the representation made by him was rightly rejected.
5. ' We have heard Mr. Ansari Abdul Latif, Advocate for the appellant and Mr. Muhammad Shafi Memon, A.A.-G. For respondents.
6. ' The learned counsel for the appellant vehemently contended that the appellant possess unblemished record throughout his service and was timely promoted from Civil Judge to Senior Civil Judge and then Senior Civil Judge to Additional District Judge and abruptly his ACRs were recorded thereby disputing the integrity of the appellant without any sufficient material and record and that before recording of such adverse remarks in his ACRs, counseling as required under writing of ACRs rules was very material which admittedly have not been done as such it creates legal defect in the impugned ACRs as such, the remarks recorded in the ACRs must be expunged by this Court. In support of his contention he has relied upon the case of Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar reported in 1997 SCM R 1749.
7. Mr. Muhammad Shafi Memon, A.A.-G. Candidly admitted that there is no material available on record to sustain the adverse remarks recorded in the ACRs of the appellant, as such he has not opposed the grant of relief to him as prayed in his appeal.
8. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.
9. It is not disputed that after appointment of the appellant as Civil Judge, in the year 1988, his performance was evaluated to be good and satisfactory and, therefore, he was timely promoted to Senior Civil Judge and then to Additional District Judge in the month of March, 1997 and his miseries started when in the ACRs for the years, 1997, 1999, 2000, 2001 and 2002 he received adverse remarks from the reporting officer.
10. ' In the ACR for the year 1997, the reporting officer in part-II of the ACR evaluated his intelligence as "A" which is good, as well as in columns 2 to 4 he was graded in "B" which is average clause and in columns 5 and 6, he was graded in "A", which is good clause. In columns 1 to 3 of Part-III he has been placed in "B", which is average and also he has been give remarks towards his integrity, honesty and straight forwardness as average and in column 4 regarding acceptance of responsibility, he was placed in "A" and overall in Parts III and IV, he has been in "B" and in some columns he has been placed in "A" and in Part V of the ACR in pen picture, the following remarks have been recorded:--- "General complaint of corruption."
11. ' The said ACR of 1997 was written on 4-6-2002.
12. ' In his ACR for the year 1999 he has been placed either in column "A" or "B" and no where in the ACR of this year he has been remarked in column "C", which is below average or column "D" which is poor, however in part-III, in the column of integrity, honesty and straightforward, he has been given remarks in "B", which is average and in Part-V of the ACR he has been given the following remarks:- -- "He should improve his reputation relating to integrity." The said ACR of 1999 was also written on 4- 6-2002.
13. ' In the ACR for the year 2000, in all the Parts-II, III and IV he has been either evaluated as good or average and in the column of integrity, honesty and straightforwardness has been evaluated as average but in Part-V it has been remarked as under:--- "He should endeavour to improve his image relating to integrity."
14. ' This ACR was also written on the same day i.e, 4-6-2002.
15. ' In all the ACRs for the years 1997, 1999 and 2000, in Part-VI he has been placed with the majority of the officer in "average".
16. ' In the ACRs for the years 2001 in all the columns of Part-II, III and IV he has either been evaluated as good or average including his integrity being average and in Part-V, in pen picture, the following remarks have been recorded:--- "He has image problem."
17. ' In Part-VI again he has been evaluated as average officer amongst majority of the officers.
18. ' In his ACR for the year 2002, he earned same remarks in all the Parts either good or average including his integrity but in Part V of the ACR he earned following remarks:--- "He should improve his reputation."
19. ' Both these ACRs for the years 2001 and 2002 were written on the same day i.e, 8-1-2004.
20. A glance over the remarks earned by the appellant in all the columns of the ACRs would show that he has been evaluated either good or average and nowhere he has been given any adverse remarks. In the column of integrity, he has been evaluated as average and, in case, if he had any image problem or was not bearing good reputation or integrity, D such remarks ought to had been recorded in Part-III of his ACR, but in Part-III of the ACR which also bears the column regarding integrity of the appellant had been given remark as average, and average remarks are never treated as adverse or below average and since repeatedly he has been adjudged an average officer being possess average integrity, he could not be given any. Adverse remarks in Part-V of his ACR, which as discussed above, reflects to his image problem or integrity and for the purpose of recording such additional remarks prejudicial to his efficiency, responsibility or integrity, some instance must had been quoted or there must be some reference of the material available with the reporting officer basing on which the said remarks have been recorded in the ACRs of the incumbent. In all the ACRs in part-III, no where he has been assigned any adverse remarks towards his integrity, as such, we are unable to digest it that when the appellant was adjudged as an average officer in all respects including his integrity, how some general remarks in his pen picture without any sufficient material could be recorded by the reporting officer.
21. We have also summoned the whole record including the personal file of the appellant and seen it with the assistance of the concerned clerk of the Confidential Branch and on perusal of his personal file we found that two complaints were received bearing general allegations and both of these complaints after proper scrutiny by the M.I.T. Were filed without initiating inquiry against the appellant and one application which also bears general allegations was under scrutiny but since result of that complaint has not yet been recorded, therefore, the said complaint could not be treated as sufficient material in recording adverse remarks about the integrity of the appellant in his ACRs of five years.
22. ' We are, therefore, of the opinion that there is no sufficient material available on personal file of the appellant also, so as to justify the recording of adverse remarks in the pen picture of ACRs for the years 1997, 1999, 2000, 2001 and 2002. The learned counsel for the appellant rightly contended that before recording adverse remarks, the counseling was very necessary, which has not been done and his submission is supported from the observation made by the Honourable Supreme Court in the case of Noor Ellahi (supra), which is usefully quoted herein below for the sake of convenience:-- - "A perusal of the aforesaid instructions would reveal that in no case an officer reported upon to be kept ignorant of the dissatisfaction of his superior officer with regard to the discharge of his duties.
23. A Reporting Officer while reporting on his subordinate should be as circumspect as possible. He must be clear and direct, and not ambiguous or evasive in his remarks and avoid exaggeration and gross under-statement. He should also state with particularity whether any of the defects reported have already been brought to the notice of the officer concerned and also whether he has or not taken steps to remedy them."
24. Keeping in view of the aforesaid circumstances and material available on record, as well as case- law, discussed above, we are of the firm opinion that the additional or general remarks in pen picture of the appellants ACRs for the years 1997, 1999, 2000, 2001 and 2002 have been recorded without sufficient material, as such the remarks could not be sustained. Both the appeals are therefore, allowed and the remarks passed in the ACRs of the appellant for the relevant years, discussed above, are expunged from the ACRs and substituted with the remarks of average judicial officer, which term of average, in any way, could not be treated as adverse.