' SH. AHMAD FAROOQ, (MEMBER).--- Through the instant Appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, the appellant/Muhammad Asif Rana, Civil Judge has assailed the letter dated 22-5-2007, whereby his representation for expunction of adverse remarks, recorded in his ACR for the period from 1-1-2004 to 18-6-2004, was rejected.
2. Succinctly, the facts essential for the adjudication of the lis in hand, are that the appellant was appointed as Civil Judge-cum-Judicial Magistrate on 13-5-1999 and remained posted as Civil Judge at Gujranwala and other places. The appellant contended that Mr. Riaz-ul-Hassan Alvi was posted as District and Sessions Judge, Gujranwala during the period of his posting as Civil Judge at Gujranwala, particularly for the period in question i.e, 1-1-2004 to 18-6-2004, whereas. Mr. Mazhar Hussain Minhas, who assumed the charge as District and Sessions, Judge, Gujranwala on 9-5- 2005, recorded the adverse remarks on 4-6-2005, despite the fact that the appellant had already been transferred from Gujranwala on 18-6-2004, i.e, one year prior to assumption of charge by the former. The Registrar, Lahore High Court, Lahore, vide letter No,802/RHC dated 18-6-2005, communicated the following adverse remarks to the appellant, which were recorded by Mr. Mazhar Hussain Minhas/reporting officer in his ACR pertaining to the period w.e.f, 1-1-2004 to 18-6-2004:--- {{TABLE}} PART III (3) Integrity
(a) General
(b) Intellectual
(10) Financial responsibility PART V
(A) Pen Picture ATTITUDES Below Average Below Average There is a general opinion that he is financially as well as morally corrupt, and his conduct is unbecoming of a judicial officer.
(F) Useful for further retention in service Not useful PART VI
(a) Over all grading: Meets bare minimum standards (Below Average)
(b) Fitness of promotion Not yet fit for promotion (c), Integrity Corrupt {{TABLE}} ' The representation, filed by the appellant against the said Adverse Remarks, was rejected by the Administration Committee of the Lahore High Court, Lahore and he was accordingly, informed by the Registrar, Lahore High. Court, vide letter No,654/RHC dated 22-5-2007. Hence, this appeal.
3. The learned counsel for the appellant has referred to Paras Nos.4 and 6 of the instructions about writing of Confidential Reports, circulated vide Letter No,S(R)-3542 S&GAD 4-8/65-SO-XIII, dated 12th February, 1968 (hereinafter to be referred as "the instructions") and contended that Mr. Mazhar Hussain Minhas, the then Learned District and Sessions Judge, Gujranwala, was not authorized to record ACR of the appellant as neither the appellant worked under him nor he had any chance to evaluate latter's work. He further contended that according to Para 4 of the said instructions, a minimum period of 90 days was required for firming up an opinion by the reporting officer regarding the ,work and conduct of his subordinate. He claimed that the appellant had not worked even for a single day under the officer, who, had written his ACR. He clarified that prior to posting of Mr. Mazhar Hussain Minhas as District and Sessions Judge at Gujranwala, the appellant had already been transferred and the former had no opportunity to observe the appellant's work and conduct. He added that during ten years of service, the appellant was never adversely reported upon by any reporting officer. The learned counsel has also drawn our attention towards the remarks of the countersigning officer, who had opted not to give any remarks or endorse the findings of reporting officer, rather, he restricted himself to record as follows:--- "NO VIEWS".
' He also contended that the ACR in question suffers from a material defect as the portion relating to "counseling" has been left blank. He maintained that no material has been brought on record, which could justify the recording of disputed adverse remarks. He submitted that Mr. Riaz-ul- Hassan Alvi, who was the District and Sessions Judge, Gujranwala during the period under report, had been appointed as OSD in the Lahore High Court, Lahore and when the report was recorded on 4-6-2005, he was still an OSD. The learned counsel for the appellant next argued that an officer on Special Duty was not debarred from writing appellant's ACR and no cogent reason has been 'advanced for non - recording of appellant's ACR by him. He has placed reliance on the judgment of Hon'ble apex Court in Civil Revision Petition No,12/2004, in Civil Appeal No,13 of 2000 titled "Ijaz Mehmood Ch. v. Lahore High Court" as well as the judgment reported as Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar and 2 others (1997 SCM R 1749) in support of his arguments.
4. The learned counsel, appearing on behalf of the respondent/Registrar, Lahore High Court, Lahore, while controverting the contentions, raised by the learned counsel for the appellant, has submitted that Mr. Riaz-ul-Hassan Alvi, the then District and Sessions Judge, was placed under suspension and his successor, Mr. Mazhar Hussain Minhas recorded the ACRs of the judicial officers posted at Gujranwala including that of the appellant for the period in question under orders of the Hon'ble Chief Justice, Lahore High Court, Lahore. He contended that the adverse remarks, recorded by the reporting officer, are based upon his personal knowledge, information and examinations of judicial work of the appellant. He maintained that the remarks, recorded by the Hon'ble Inspection Judge, while countersigning the ACR, do not affect the efficacy and correctness of the remarks, recorded by the reporting officer. Lastly, he argued that "counseling" is not mandatory in nature. He placed reliance on the judgments reported in 1990 SCM R 1510, 1999 SCM R 2117, 1999 SCM R 2141 and PLD 2004 SC 191.
5. We have considered the respective contentions of the learned counsel for the parties and have also perused the record, carefully.
6. As regards the contention of the learned counsel for the appellant that Mazhar Hussain Minhas/reporting officer was not competent/authorized to record ACR of the appellant as the appellant had never worked under him, it may be advantageous to have a glance at "the instructions", which were circulated vide letter No,S(R)-3542 S&GAD 4-8/65-SO-XIII, dated 12th February, 1968. Rules 4 & 8 of the said instructions for writing an ACR are relevant and the same are being reproduced hereunder:- "4. Minimum period for writing of reports.-- The minimum period during which an officer is expected to form judicious opinion about the work of his subordinate for the purpose. Of writing a 'report on his work and conduct. Has been prescribed as three months. The report recorded in respect of period less than the minimum prescribed period should be ignored."
"8. It is, however, explained that while framing the chart, the following principles should be kept in view:---
(i) The report should be initiated by the immediate superior authority.
(ii) It should be countersigned by the next higher authority."
Minimum time, as provided by the instructions for a reporting officer to form a judicious opinion about the work of his subordinate for the purpose of writing a report on his work and conduct, is 90 days and a report, recorded in respect of period less than the minimum laid down period, is liable to be ignored. In the instant case, it is an admitted fact that the appellant had not worked under the supervision of the reporting officer for the prescribed period of three months, and as mentioned above, he was transferred from Gujranwala, even prior to the posting of the reporting officer at the said station as District and Sessions Judge. Therefore, formation of judicious opinion by the latter about the work and conduct of the appellant is out of question. The argument of the learned counsel for the respondent that reporting officer had recorded adverse remarks on the oasis of his personal knowledge and information is misconceived, as the same is violative of Rules 4 and 8 of the Instructions quoted above. A joint reading of Rules 4 and 8 leads to irrefutable conclusion that ACR of an officer is to be initiated by the next higher officer, who had an opportunity of observing his work and conduct for a minimum period of 90 days.
7. Now, adverting to the contention of the learned counsel for the respondent that the reporting officer had recorded ACRs of all the judicial officers posted at Gujranwala, including that of the appellant, upon the instructions, issued by the Lahore High Court, Lahore, with utmost respect and humility at our command, we would like to observe that the instructions, issued by the High Court in administrative matters, could not change/alter the mandate of law/rules & regulations.
Additionally, it has been brought to the notice of this Tribunal by the learned counsel for the appellant that Mr. Riaz-ul-Hassan Alvi, under whom the appellant had worked during the period in question, was posted as Officer on Special Duty at Lahore High Court, Lahore and he was suspended on 30-9-2005, whereas ACR in question was recorded on suspension and not an impediment in recording of ACR by him. While 4-6-2005. Posting of a judicial officer as OSD cannot be equated with the reporting officer, under whom the appellant had worked, was still available for the purpose, recording of ACR by another officer was against the relevant instructions. The legal proposition as canvassed by the appellant finds support from the dictum laid down in the judgment of the Hon'ble Supreme Court in Civil Revision Petition No 12 of 2004, in Civil Appeal No 13 of 2000, titled "Ijaz Mehmood Ch. v. Lahore High Court". Needless to mention here that the precedents relied upon by the learned counsel for the respondent are not relevant to the facts of the .Instant appeal.
8. Finally, the respondent has not been able to controvert that the appellant's previous service record is unblemished and there is no adverse entry in his ACRs, In the case of Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (supra), it was held as under:-- "In the instant case, the appellant, admittedly, had earned good reports before 1991 as well as for the subsequent periods. That being so, the Reporting Officer should have stated with particularly as to how all of a sudden there was a change in the conduct and behavior of the appellant, supported by sufficient material. This has not been done by the Reporting Officer which had resulted in grave prejudice to the appellant."
9. The upshot of the above discussion and observation is that neither Mazhar Hussain Minhas, the then learned District and Sessions Judge, Gujranwala, was competent nor justified to record the adverse remarks in the ACR of the appellant for the period in question.
10. For the foregoing reasons, the instant appeal is accepted and adverse remarks, recorded in the ACR of the appellant for the period from 1-1-2004 to 18-6-2004, are ordered to be expunged.