Ashtar Abbas, Member-IV.--Through this judgment, we intend to decide an appeal filed by the appellant, Hafiz Javaid Iqbal Deputy Director-III under the provisions of Section 4 of the Punjab Service Tribunals Act, 1974.
2. Breviary of the case as depicted from the memorandum of appeal is that the appellant joined in Government service on 1.12.1987 as Sub Division Officer/Assistant Engineer in the Communication & Works Department, Govt. Of the Punjab, Lahore. On 07.06.2010, the appellant was transferred as District Officer (Roads), Sialkot in his own pay and scale. He was promoted as XEN/District Officer (Roads) in BS-18 on 29th July 2010 and worked under EDO (W&S), Sialkot, where not a single complaint was filed against him regarding his work and conduct.
' Appellant Submitted form for writing his Performance Evaluation Report (PER) for the period w.e.f 20.07.2010 to 31.12.2010.
3. That Respondent No. 3 being countersigning officer had passed adverse remarks on 13.12.2011 in his ACR for the period from 20.07.2010 to 31.12.2010, when he performed his duty as XEN/DO (Roads)
Sialkot and Respondent No. 2 conveyed the same on 25.1.2012. Appellant preferred departmental appeal against the adverse remarks, which was rejected by Respondent No. 1, Chief Secretary, Govt. Of the Punjab, Civil Secretariat, Lahore on 22.06.2012. Hence this appeal.
4. Learned counsel for the appellant contends that the impugned orders are against law and facts; while passing the adverse remarks, the countersigning officer did not take utmost care and thus rendered the same without lawful authority; the impugned adverse remarks are self contradictory; opinion of the countersigning officer is based on conjectures and surmises and that too without scoring out the assessm ent already recorded by the reporting officer in column No. II, III, IV & V; the adverse remarks given while writing "Pen picture" are also inconsistent and contradictory with the remarks given by the reporting officer and agreed by the countersigning officer in columns of part II, III & IV of the ACR. The impugned adverse ACR was communicated to the appellant with a delay of more than one year without assigning any reason or justification; impugned adverse remarks are vague; pendency of inquiry initiated by C&W Department and another inquiry to be conducted against the appellant, were no grounds for recording impugned adverse remarks as indicated in the "Pen Picture" by Respondent No. 3; while writing impugned adverse remarks in ACR by the countersigning officer, (Respondent No. 3) the dictums of the Hon'ble apex Court and the Tribunals have not been kept in view.
5. As the impugned adverse remarks of ACR and the impugned order passed by Respondent No. 1 are nullity in the eye of law, hence by accepting this appeal, adverse remarks of ACR, written by Respondent No. 3 on 13.12.2011 and the impugned order dated 22" of June 2012 passed by Respondent No. 1 be set aside and the adverse remarks be expunged from the ACR of the appellant for the period from 20.07.2010 to 31.12.2010.
6. Conversely, Learned District Attorney vehemently opposed the arguments raised by the learned counsel for the appellant and supported the impugned order as well as impugned adverse remarks given by Respondent No. 3. It is contended that the countersigning officer was fully competent to draw any opinion regarding the evaluation/performance of the appellant; assessm ents of the countersigning officer is of greater value than of the reporting officer; the countersigning officer can disagree with the remarks of the reporting officer. Learned District Attorney further contended that on the observation of the Chief Minister, Punjab dated 17.01.2011 a team of Road Research & Material Testing institute, Lahore visited Sialkot city at the project of "Widening of Road from Pul Aik to Gulshan Iqbal Park" and on 18.01.2011, the Director Road Research & Material Testing Institute, Lahore furnished their Evaluation Report high lighting numerous deficiencies in compaction, gradation and carpeting of the said road, hence departmental inquiry was initiated against the appellant regarding accepting sub standard work. Hence, while giving remarks in question, Respondent No. 3 did not commit any illegality. He next contended that DCO Sialkot made complaint to the Secretary Govt. Of the Punjab, Communication & Works Department vide letter dated 04.07.2011 regarding execution of sub-standard work on another scheme titled Construction of Roads & platforms inside Fruit & Vegetable Market, Eimanabad Road, Sialkot.
Pursuant to the evaluation report, draft charge sheet against the appellant was prepared & submitted to the Chief Engineer, Punjab, DS&M Department Lahore. In view of above, countersigning officer rightly disagreed with the assessment of the reporting officer and now the same can not be questioned. Learned District Attorney prayed that as the appeal is without any substance, therefore, it be dismissed and impugned order as well as impugned adverse remarks be upheld.
7. Arguments heard and record perused.
8. Before dilating upon the merits of the instant case/appeal, we find it appropriate to highlight some important instructions circulated by the Govt. Vide Letter No. S(R)-3542 S&GAD4-8165-SO- XIII dated 12.02.1968 for applying them while writing the performance evaluation report (PER) of the Gove Servants, published in Punjab ESTA Code, 2013 updated and compiled by regulation wing S&GAD.
"The officer to be reported upon should submit the (PER) form after completing part I to the reporting officer on 1st day of January; the reporting officer should record his remarks in appropriate parts by the end of 1st week of January and pass on the report to the countersigning officer by 8th of January; the countersigning officer should record his remarks by the end of second week of January and pass it on to 2nd countersigning officer if any by 16th of January and, the final countersigning officer should also record his remarks within one week; report within should be completed within one month of January; the final authority will be responsible for obtaining confidential reports for the preceding calendar year with in the month of January each year and then furnish a certificate to S&GAD that all confidential reports which were due to be completed have actually been completed and placed on the Character Rolls, this certificate should reach S&GAD (Section R-1V) in the 1" week of February."
"PER is the most important record for the assessment of an officer and for that it is essential that utmost care is to be exercised by the reporting as well as countersigning officer; they should be as objective as possible and clear, direct, not ambiguous or evasive in their remarks; vague impression based on inadequate knowledge or isolated incidents should be avoided."
"If the countersigning officer, differs with the grading or remarks given (in parts other than part III) by the reporting officer, countersigning officer should score it out and give his own grading in Red ink; in part V, countersigning officer is required to give his own assessment in addition to that of the reporting officer; the countersigning officer should underline in red ink, remarks which in his opinion are adverse and should be communicated to the officer reported upon."
9. Now, we discuss the merits of the instant case/appeal, in the light of the above referred instructions.
10. The present appellant submitted form for writing his (PER) for the period w.e.f.
20.07.2010 to 31.12.2010 to Respondent No. 4 who wrote down the (PER) on 10.01.2011 by awarding over all grading to appellant as "A" in parts II, III and IV. In part V, the reporting officer while making pen picture, showed the appellant as good officer and did not opt to give any counseling to him. The performance of the appellant was satisfactory and was considered useful for retention in service by the reporting officer.
11. The reporting officer after giving his remarks transmitted the (PER) in question to DCO Sialkot (Respondent No. 3) being countersigning officer. The countersigning officer gave his own independent grading in part VI columns a, b & c respectively. In column "a" of part VI, the reporting officer observed the appellant better than the majority officers (Good), whereas the countersigning officer graded him equals the majority of officers (Average). In column "b" of part VI, the reporting officer found the appellant fit for promotion in his turn, whereas the countersigning officer found the appellant not fit for promotion. In column "c" in part VI, the reporting officer found the appellant honest, whereas the countersigning officer found him dishonest, the countersigning officer also found the present appellant corrupt as well as reported to be corrupt, hence countersigning officer put his initials in all the said relevant columns.
' Interestingly, the countersigning officer filled all the columns of part VI with blue ink and did not use red ink for recording his grading about the present appellant. Prima facie, while filling the columns mentioned above, the countersigning officer did not keep in his mind the instructions, which the Govt. Issued for the purpose of writing (PER) as mentioned above in Para No.
8. In part VII, the countersigning office while giving remarks at column "a" observed as follows:- "I did not agree with the views of the reporting officer. The officer performed miserably and with malafide. Quality of work under his command was poor and grave illegalities/ irregularities were committed. One inquiry is already initiated by C&W and another one is being referred. He is not fit for service."
12. The above said remarks were given by the countersigning officer on 13.12.2013 after more than 11 months of the remarks given by the reporting officer. The delay in giving impugned remarks in part VII by the countersigning officer after more than 11 months was not explained. Annexure "C" which is available in the file is an order passed by Secretary C&W department/ competent authority, whereby the Secretary C&W department/ competent authority exonerated the present appellant and two others from the charges levelled against them on account of inefficiency & misconduct allegedly carried out during the execution of scheme titled "W/1 of Road from Pul Aik to Allarn Iqbal Park (from Km 0.00 to 1.47 Km) Sialkot" vide order dated 26th of. December 2102 and disposed off disciplinary proceedings initiated on the report of D.C.O Sialkot.
13. Careful scanning of the adverse remarks given by the countersigning officer would bring this fact on the surface that he gave the same on account of an inquiry pending against the present appellant and another inquiry which was to be referred against the appellant. Complete details of the pending inquiry and the inquiry which was to be referred against the appellant have not been mentioned by the countersigning officer while filling part VII(a) of PER. As mentioned above, the disciplinary proceedings which were carried out against the present appellant on the report of D.C.O Sialkot with respect to his inefficiency & misconduct during the execution of scheme titled "W/I of Road from Pul Aik to Allam Iqbal Park (from Km 0.00 to 1.47 Km) Sialkot had been filed by the Secretary C&W department/ competent authority as reflected from the order dated 26.12.2012, had there been any other inquiry or disciplinary proceedings pending or initiated against the appellant, the countersigning officer could have mentioned the same with limpidity while making remarks in question. Interesting to say that the countersigning officer was duty bound to score out the grading or remarks given by the reporting officer and to give his own grading/ remarks while using red ink, which has not been done in the instant case. The countersigning officer while giving his own grading in part clause "C" observed the appellant as corrupt but at the same time, he also observed the appellant as reported to be corrupt, meaning there by that the countersigning officer was nebulous about the appellant whether he was corrupt or reported to be corrupt.
14. Claim of the, appellant is that he joined the service in the year 1987 and his (PER) remained very good, good and average. The only adverse remarks given to him are impugned in this appeal.
15. The respondents although controverted the stance of the appellant but while replying to ground "F" in parawise comments, illuminated that, appellant earned 21 good and one average remarks.
Nothing has been said against the appellant that he had maculated service record and this amounts to admission in tacit that the appellant did earn good reports. That being so, countersigning officer could have stated with particularity as to how all of a sudden there was change in the conduct of the appellant supported by sufficient material. It is settled law that evaluation report of the subordinate by the reporting officer or countersigning officer is a matter of subjective assessm ent and not an objective evaluation and the service Tribunal/Court as a rule can not substitute the view recorded by the reporting officer or the countersigning officer nor it will interfere with the said evaluation, nevertheless before an officer is condemned, he should be put to notice so that he may have an opportunity to act and conduct himself in a manner which may eliminate the possibility of malicious allegation against him. We took legal light from the dictum of the Hon'ble Supreme Court of Pakistan titled Noor Elahi vs. Director of Civilian Personnel etc, reported in 1997 SCAM 1749. Careful perusal of the impugned (PER) would manifests that the countersigning officer while giving the adverse remarks failed to follow the rule laid down by the Hon'ble Supreme Court of Pakistan mentioned Supra. It is interesting to accentuate that Respondent No. 3 gave adverse remarks impugned herein on 13.12.2011 on the strength that one enquiry was initiated and another was to be referred. Parawise comments were filed on 11.02.2013, these parawise comments reveal that in the pending inquiry/ proceedings, appellant had been exonerated vide order dated 26.12.2012, with respect to the inquiry to be initiated, parawise comments are quite as to when it was initiated and what happened to the same. In that, it can safely be said that the remarks impugned herein, were not based on any tangible material.
16. The departmental appellate Authority/Respondent while hearing the departmental appeal also failed to keep in his mind the above mentioned material fact, instructions of the Government as well as the dictum of the Hon'ble Supreme Court of Pakistan and thus while rejecting the departmental appeal committed illegality. We have assessed the adverse remarks given by Respondent No. 3 as well as the order of Respondent No. 1 impugned before us on the touchstone of the above mentioned instruction of the Govt. As well as dictum of the Honble Supreme Court of Pakistan and feel no hesitation to observe that the adverse remarks given by the countersigning officer i.e Respondent No. 3 prima facie seems to be bias and result of report upon which disciplinary proceedings (ineffective) took place and without any cogent/specific reasons, hence not sustainable. The order dated 22,06.2012 passed by Respondent No. 1 whereby he rejected the departmental appeal is also untenable.
17. In view of the aforementioned discussion, we unanimously accept the appeal and set aside the impugned order dated 22.06.2012 passed by Respondent No. 1 and the adverse remarks given by Respondent No. 3 in (PER) of the appellant for the period of 20.07.2010 to 31.12.2010 are hereby expunged.