Justice Abdus Sattar Asghar, Member.--By virtue of this appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act 1991 the appellant seeks expunction of adverse remarks recorded by Reporting Officer/Learned District and Sessions Judge Muzaffargarh in appellant's ACR for the period from 01.1.2004 to 31.12.2004.
2. It would be advantageous to have a glance of relevant extract of the impugned ACR pertaining to the period from 01.1.2004 to 31.12.2004:-- "PART V
(a) Pen picture:--So much public relationing till today as he served as City Magistrate (Executive) earlier.
(b) Counseling:- Yes. No improvement.
(c) Assessm ent of performance:- Below average.
(d) Usefulness for further retention in service = Not useful.
PART VI
(e) Fitness for promotion = Not yet fit for promotion.
(f) Integrity = Reported to be corrupt."
The learned Countersigning Officer did not comment upon the remarks of the reporting officer. The impugned adverse remarks were conveyed to the appellant vide letter dated 15.3.2005. The appellant filed a representation against the same for expunction of advetse remarks before the respondent which was rejected vide order dated 26.7.2005. Being aggrieved appellant filed this appeal on 05.9.2005.
3. It is argued by learned counsel for the appellant that appellant rendered services for long 18 years and during the said period he did not earn even a single adverse ACR except the impugned one; that the impugned adverse remarks about work and integrity of the appellant are unfounded, without reasons and violative to the Instruction No, 23 of the Instructions about Confidential Reports' issued by the Government of the Punjab therefore the same being untenable are liable to be expunged. Takes reliance upon (i) Registrar, Lahore High Court, Lahore vs. Muhammad Afzal Khan, Civil Judge, Sahiwal and another (2007 SCMR 1251), (ii) Noor Elahi vs. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749) and (iii) Principal, Government Girls College, Thana Malakand Agency (Now at Saidu Sharif Swat) vs. Mrs. Bilquis Begum (2003 PLC (C.S.) 187).
4. Conversely learned counsel for the respondent contends that appellant has not alleged any mala fide qua the Reporting Officer and Countersigning Officer therefore he has no case to question the credibility of the assessment made by the said officers; that appellant's evaluation in the ACR is based on credible information and personal observation of the Reporting Officer and Countersigning Officer and the same does not require any tangible material. Takes reliance upon Shaukat Javed Farooqi, Under Secretary Civil Secretariat, Lahore vs. District and Sessions Judge, Lahore and another (1999 SCMR 2141).
5. We have heard learned counsel for the parties and carefully gone through the record.
6. The relevant facts for decision of this appeal are that appellant was appointed as Extra Assistant Commissioner in the year 1997. In the year 2001 his services were transferred to the Lahore High Court and he was posted as Special Judicial Magistrate vide order dated 11.8.2001. We have carefully gone through the appellant's ACRs record from 1992 to 2001. During the above said period of nine years he has been serving as Executive Officer in various departments and did not earn even a single adverse ACR. After his transfer from Executive to Judiciary as Special Judicial Magistrate his first ACR for the period from 01.1.2002 to 31.12.2002 was recorded by learned District & Sessions Judge Muzaffargarh on 04.1.2003. The relevant extract whereof reads below:-- "PART V
(a) Pen picture:- A mature officer who knows his job well. May, be allowed to continue at this present place of posting.
(b) Counseling:- No,
(c) Assessm ent of performance:- Performed his duties efficiently.
(d) Usefulness for further retention in service = Useful.
PART VI
(b) Fitness for promotion = Fit for promotion in his turn.
(c) Integrity = Honest."
His second ACR w,e,f, 07.2.2003 to 31.12.2003 was recorded by learned District and Sessions Judge Muzaffargarh on 01.1.2004 which reads below:-- PART V
(a) Pen picture:- Nothing Special.
(d) Usefulness for further retention in service = Useful.
PART VI
(b) Fitness for promotion = Fit for promotion in his turn.
(c) Integrity = Honest."
It is noteworthy that in the appellant's ACR pertaining to the period 01.1.2002 to 31.12.2002 and 07.2.2003 to 31.12.2003 both the Reporting Officers did not pass the remarks that appellant had any extra ordinary public relations. At this juncture it will be expedient to reproduce Instructions No, 23 and 30 of the 'Instructions about Confidential Reports' which reads below:-- "23. Report of Integrity.--Integrity is the most important trait of character of a Government Servant.
It should be assessed without fear or favour. The report should not be vague, but definite. An officer may be reasonably believed to be corrupt, if--
(i) he has a general and persistent reputation of being corrupt; or
(ii) any of his dependents or any other person through him or on his behalf is in possession of pecuniary resources or property disproportionate to his own sources of income or which he cannot account for satisfactorily; or Explanation.--The dependents will include wife/wives, children, step-children, parents, sisters and minor brothers, residing with and wholly dependent on the reported officer.
(iii)He has assumed a style of living beyond his means.
30. Manner of writing the reports.--The opinion expressed should be the result of careful consideration; no personal bias, ire or favourtism should colour the report. The reporting officer should be in a position to justify his views, if called upon, to do SO.
The impugned adverse remarks with regard to integrity of the appellant clearly manifest that the same are not based on the reasons enumerated in Instruction No, 23 (supra). Simultaneously the expression 'reporting officer should be in a position to justify his Views, if called upon, to do so' used in Instruction No, 30 (supra) is of great importance. It clearly manifests that the impugned adverse remarks should have been based on some tangible material. Learned counsel for the respondent has not been able to fortify these remarks with reference to any material. At this juncture it may be expedient to reproduce an extract of the dictum laid down by the Hon'ble Apex Court in the case Noor Elahi (1997 SCMR 1749) (supra) which reads as under: "9. In the instant case, the appellant admittedly, has earned good reports before 1991 as well as for the subsequent periods. That being so, the 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, supported by sufficient material. This has not been done by the Reporting Officer which has resulted in grave prejudice to the appellant.
10. In view of the above discussion, it is not necessary to dilate further. Suffice it to say that the appeal is liable to succeed on the short ground that the remarks given in the adverse report suffer from vagueness.
Resultantly, the appeal is allowed, the adverse remarks are expunged and the impugned judgment is set aside. There shall be no order as to costs."
In the light of the above referred dictum of the Hon'ble Apex-Court and keeping in view the 18 years unblemished career of the appellant we have no hesitation to hold that the impugned remarks about work and integrity of the appellant recorded by the learned Reporting Officer and endorsed by the learned Countersigning Officer being unfounded, without reasons suffer from vagueness and have resulted into serious prejudice to the appellant therefore following the principle of fairness, equity and safe administration of justice this appeal is liable to succeed.
7. Case law cited by learned counsel for the respondent is distinguishable on facts and not helpful to the respondent.
8. For the above reasons we accept this appeal an direct the expunction of questioned adverse remarks from the ACR of the appellant pertaining to the period 01.1.2004 to 31.12.2004.