Justice Malik Manzoor Hussain, Member.--Through this single judgment we propose to dispose of instant Service Appeal No. 40 of 2011 preferred against the order dated 29/10/2010 whereby the appellant wag compulsory retired from service as well as the connected Service Appeal Nos. 44, 43, 42 and 41 of 2011 filed for the expunction of adverse remarks/entries recorded in ACRs/PERs for the years, 2006, 2007, 2008 and 2009, as common question of facts and law are involved in all these appeals.
2. Briefly stated the facts as emerged from Service Appeal No. 40 of 2011 are that the appellant joined subordinate judiciary as Civil Judge in the year 1994 and subsequently promoted to the rank of Additional District & Sessions Judge in the year 2003. While posted as Additional District & Sessions Judge, Lakki, he was served with show-cause notice dated 02/10/2010 incorporating following allegations:- "That you have persistent reputation of being corrupt throughout; That your record speaks volumes about your ill reputation which includes adverse entries in your PERs regarding your integrity during your service career; That your life style shows that you are living beyond your ostensible legal means"
On 21/10/2010 final show-cause notice was served upon him which contained proposed penalty of compulsory retirement in terms of Rule 4(1)(b)(ii) of the KPK Government Servants (Efficiency & Discipline) Rules, 1973. The appellant replied to the said final show-cause notice and subsequently the appellant was compulsory retired from service through the impugned order dated 29/10/2010, hence Service Appeal No. 40 of 2011.
4. Service Appeal No. 44 of 2011 is preferred against the adverse entries in the ACR for the year 2006, recorded by the Peshawar High Court, Peshawar communicated to the appellant through Letter No. 559/Confindential dated 28/10/2010. The remarks are reproduced as under:-- 1 Integrity Not above board.
2 Pen-Picture Not so fair.
3 Overall Grading Below Average 4.Fitness For PromotionNot fit for promotion.
4. Service Appeal No. 43 of 2011 is against the adverse remarks in the ACRs/PERS for the year 2007 conveyed to the appellant vide Letter No. 560/Confindential dated 28/10/2010. The remarks are reproduced as under:-- 1 Integrity Not above board.
2 Pen-Picture Not so fair.
3 Overall Grading Below Average 4.Fitness For PromotionNot fit for promotion.
5. Service Appeal No. 42 of 2011 is against the adverse remarks in the ACRs/PERS for the year 2008 communicated to the appellant through Letter No. 561/Confidential dated 28/10/2010. The remarks are reproduced as under:-- 1 Integrity Not above board.
2 Pen-Picture Not so fair.
3 Overall Grading Below Average 4.Fitness For PromotionNot fit for promotion.
6. Service Appeal No. 41 of 2011 is against the adverse entries recorded in the ACR for the year 2009 conveyed to the appellant vide Letter No. 562/Confidential dated 28/10/2010. The remarks are reproduced as under:-- 1 Integrity Not above board.
2 Pen-Picture Not so fair.
3 Overall Grading Below Average 4.Fitness For PromotionNot fit for promotion.
7. As per averments in the memorandum of appeals, the appellant filed representations dated 26/11/2010 respectively against the said entries which were not disposed of by the Administrative Committee of the Peshawar High Court, Peshawar within the prescribed period of ninety days as required under Section 5(a) of KPK Subordinate Judiciary Service Tribunal Act, 1991 and thus, the present Appeals No. 41 & 42 of 2011 were filed under Section 5 of the KPK Subordinate Judiciary Act, 1991 (hereinafter to be referred as Acti).
8. Learned counsel for the appellant contended that the adverse remarks which were based for compulsory retirement of the appellant were recorded and communicated with considerable delay without any reasons been advanced in this regard; that delay in recording the remarks was not condonable as it offended the mandatory instruction under which the ACR is to be initiated in the first week of January. It was further argued that the Chief Justice who had recorded ACRs was not acting as Chief Justice during the period he recorded adverse remarks in the ACRs, thus the adverse remarks recorded by the successor Chief Justice was of no worth. It was argued with vehemence that except the impugned adverse remarks, the appellant had unblemished and clean service track record; that he was never superseded and was promoted in due time without any stigma. Reference was also made to the Certificates issued by his District & Sessions Judge when appellant was working under him as Additional session Judge. Certificates of different Bar Associations and its members annexed with the appeal were also based as recognition of honesty, integrity and conduct of appellant. Lastly it was argued that the show-cause notice issued to the appellant was not supported by any document or record having any details of any fault, commission or omission of the appellant, so the structure built upon the uncalled for show-cause notice was lacking legal support and the penalty was imposed in a very casual, cursory and discriminatory manner.
9. Conversely, the learned counsel appearing for respondents (High Court) contended that the adverse remarks were recorded by the Honourable Chief Justice who had seen the conduct of the appellant and the judicial work done by him and also inquired about the appellant reputation. It was further argued that there is no bar that when the ACR is not given for a certain period, the successor Chief Justice is precluded to record ACR of outstanding period; that delay in recording and communicating of the adverse remarks is immaterial as the Instruction referred by the appellant is directory and not mandatory besides does not apply to Judge of the High Court as evaluation of a subordinate judicial officer is a matter of subjective assessment and not objective evaluation. Lastly it was argued that the appellant has not been able to establish malice, bias or prejudice against the Reporting or Countersigning Officer which is absolutely necessary for striking the remarks rather the integrity, dignity, nobility and honesty of the concerned official has even not been denied by the appellant, being above board.
10. Arguments heard and record perused.
11. Perusal of record reveals that on 23/09/2010 Mr. Justice Ejaz Afzal Khan the then Hon'ble Chief Justice of Peshawar High Court, Peshawar started judicial proceedings against certain Judicial Officers and directed the Registrar to put the cases of the Judicial Officers mentioned therein which also includes the name of the present appellant. The said directions of the Hon'ble Chief Justice, for the convenience, are hereby reproduced as under:-- "1. Having been conferred the trust of heading the Institution and taking oath under the Constitution, I deem it my earnest duty to cleanse the District Judiciary from all those elements who have corrupted the judiciary and have brought bad name to it. The National Judicial Policy, 2009 also mandates action against all those Judicial officers who carry persistent reputation of being corrupt and have a lifestyle beyond their ostensible means of income.
2. With this background I direct the Registrar to put the cases of the following District and Sessions Judges and Additional District and Sessions Judges, in a first stage, as they fall within the category mentioned in N/1 above:--
(i) Mr. Muhammad Ibrahim Khan, District and Sessions Judge.
(ii) Mr. Shahid Naseem Khan, District and Sessions Judge.
(iii) Mr. Fayaz Ullah Khan, District and Sessions Judge.
(iv) Malik Miandad, District and Sessions Judge.
(v) Mr. Amanullah Khan Salik, District and Sessions Judge.
(vi) Mr. Sajjad Anwar Khan, Additional District and Sessions Judge,
(vii) Mr. Bakht Zada Khan, Additional District and Sessions Judge.
(viii) Mr. Faqir-ur-Rehman Jadoon, Additional District and Sessions Judge.
(ix) Mr. Alam Zeb Khan, Additional District and Sessions Judge.
(x) Syed Asghar Shall, Additional. District and Sessions Judge.
Sd/- CHIEF JUSTICE.
23.9.2010.
12. Following the above directions, the Registrar Peshawar High Court, Peshawar submitted his detailed report regarding the aforementioned Judicial Officers on 27/09/2010 in which at Serial No. 11 with regard to the appellant, it was submitted that "The record of officer at S.No. Viii shows that he is having a reputation of being corrupt and living beyond his means. He was also awarded minor penalty due to misconduct".
13. Keeping in view the above report, the Hon'ble Chief' Justice on 28/09/2010 passed the following order: "After perusing the record of all the above named Judicial Officers mentioned in Para 2 above, I am satisfied that the record placed before me warrants that disciplinary action be taken against them.
I, therefore, being Authority appoint Mr. Justice Mifta-ud-Din Khan as Authorised Officer to proceed against all these Judicial Officers under NWFP Government Servants (Efficiency & Discipline)Rules, 1973".
14. On his turn, the Authorised Officer, in view of the facts of the case, issued Show Cause Notice to the Appellant within the meaning of sub-rule (3) of Rule 5 of NWFP Government Servants (Efficiency & Discipline) Rules, 1973 on 6th October, 2010 informing him the following grounds of action proposed to be taken against him: "(a) That he had persistent reputation of being corrupt throughout;
(b) That his record spoke volumes about his ill reputation which included adverse entries in his PERs regarding his integrity during his service career;
(c) That his life style showed that he was living beyond his ostensible legal means.
15. On 19th October, 2010, the Appellant submitted his detailed written reply to the aforesaid Show Cause Notice wherein he totally denied the aforesaid allegations levelled against him. The Authorised Officer after not satisfying himself from the written reply of the Appellant decided to impose major penalty of compulsory retirement from service under Rule 4(1)(b)(ii) of the NWFP Government Servants (Efficiency & Discipline) Rules, 1973,therefore, final show-cause notice was served upon the appellant on 21/10/2010 which was replied by him on 27/10/2010.After personal hearing of the appellant and perusing of the record, the Authorised Officer on 29/10/2010 held as under: "Resultantly, it has been found that the content of the show-cause notices and in particular the final show-cause notice revolves around the persistent reputation of his being corrupt. The corrupt reputation is supplemented by his PERs/ACRs and nothing convincing in rebuttal is available in this regard in reply to the show-cause nor satisfactorily addressed during personal hearing.
I, therefore, by keeping in view the length of service of the accused officer, recommend that he be compulsorily retired within the meanings of Rule 4(1)(b)(ii) of NWFP Government Servants (Efficiency & Discipline) Rules 1973. The recommendations are sent to Authority for appropriate orders. The complete record of show-cause notice, reply to the final show-cause notice, record of personal hearing alongwith service record is also sent herewith".
16. The Authority while concurring with the recommendations of the Authorised Officer, imposed upon the appellant the major penalty of compulsory retirement as is envisaged in Rule 4(1)(b)(ii) of NWFP Government Servants (Efficiency & Discipline) Rules 1973 and in consequence whereof the appellant was compulsory retired from service with immediate effect vide Notification dated 29/10/2010.
17. The record further reveals that earlier too an inquiry was conducted against the appellant on the complaint of one Abdur Rahim, Assistant Office of the District Transport Authority Mardan and after conducting inquiry, finally the Competent Authority imposed upon the Appellant the minor penalty of withholding his promotion for two years, in terms of Rule 4(i)(a) of NWFP Government Servants (Efficiency & Discipline) Rules 1973 vide order dated 17th January, 2007. The Appellant filed representation/review petition against the aforesaid order which was also dismissed by the then Hon'ble Chief Justice vide his order dated 02/03/2007. The concluding para of the said order is reproduced as under: "Both the Inquiry Officer and Authorised Officer are unanimous as to the guilt of the officer on the basis of Inquiry proceedings. Nothing material is brought by him for taking exception to the concurrent findings regarding his guilt. The Authorised Officer has already taken lenient view by imposing minor penalty on the officer. The appeal is, therefore, dismissed".
18. The Appellant then challenged the aforesaid order dated 02/03/2007 in Service Appeal No. 44 of 2007 before the Subordinate Judiciary Service Tribunal, Peshawar High Court, Peshawar which also met the same fate vide judgment dated 11/11/2010, the relevant portion of the said judgment is reproduced as follows: "So, in this view of the matter, we are of the firm opinion that the charges levelled against the appellant were fully proved and he was unable to shatter the same, so his appeal being merit less is not maintainable and dismissed as such."
19. Thereafter the Appellant filed Civil Petition No. 21-P of 2011 before the August Supreme Court of Pakistan which came up for hearing before a Bench of the apex Court on 10/12/2012 and the same was dismissed in the following manner: "In this petition for leave to appeal the petitioner has called into question the imposition of minor penalty. We are informed by the learned counsel that in the meanwhile the petitioner has been compulsory retired from service on 29.10.2010 and against the said order he has already filed appeal before the Appellate Tribunal. Since this matter has now become infructuous, this petition is dismissed accordingly with permission to the petitioner to resurrect the same in case he succeeds in the case of compulsory retirement."
20. The Appellant was serving in the Judicial Department and he had been assigned the duty to decide the cases pertaining to life, liberty and rights of the citizens. The Constitution of Pakistan gives guarantee to the citizens that their rights be protected in accordance with law, therefore, it is incumbent upon the Judicial Officers to act, work, discharge duty and behave in such a manner that the confidence of people should not be shattered or eroded. There is consistent view of Superior Courts that the Judicial Officers in performance of their duties must present themselves in such a manner where nobody can raise a finger towards them and people should feel secured that their rights would be decided impartially, without any fear or favour or any extraneous consideration. The conduct behaviour and character of the Judicial Officers should be such that people should be encouraged to approach the Courts for deciding their cases. Thus, the character, temperament, disposition, moral fibre, poise, nobility, dignity and other related matters of the Judicial Officer should be of a very high calibre compared to other civil servant, because they are deciding the fate of the citizens in respect of their life, liberty and rights. Therefore, the cases of Judicial Officers ought to be examined in the light of above circumstances. As such, standard of evaluating the performance of the Judicial Officers with regard to their character, integrity, intelligence, performance, knowledge of law etc. Ought to be judged very strictly and stringent steps be taken so that the image of the judiciary should be - improvingly ameliorated, and the complaints of rampant corruption and inefficiency against subordinate judiciary could be curbed.
The Judicial Officers are required to, observe superlative standard of moral ethics, behave dispassionately analytically, objectively, impressively and naturally in all circumstances. Although all the civil servants are bound to be honest having unblemished integrity, the judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal role which justice occupies in Islam according to the following verse of the Holy Quran:-- "O' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be he rich or poor, Allah is most Competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then Allah is aware of what you do" (Sura 4 Verse 135).
Islam also enjoins that those who perform the functions of Judge must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances. We, therefore, cannot help remarking that Judicial Officers are expected to guard their reputation jealously and the Reporting Officer/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias.
21. The point of delay in communication of the ACRs in respect of judicial officers was considered by the Apex Court in the case of "Ch. Shabbir Hussain vs. Registrar, Lahore High Court Lahore" reported in 2004 PLC (C.S) 236, wherein it was held that delay in recording adverse remarks does not affect their efficacy or legality. The . Honourable Supreme Court in the above report was pleased to observe as under: "In view of the settled legal position and well-known preoccupation of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating ACRs of some of the appellants and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the performance of the officer during the relevant year and not any subsequent even stands repelled in view of the observations made in the case of Eshanul Haq Sethi".
The question of delay was also determined in the case of "Syed Tahir Hussain Sherazi Vs. The Governor of the Punjab" (1990 SCMR 1510) and it was held that delay in recording adverse remarks does not affect their efficacy or legality. The dictum was reiterated in the cases of "Lahore High Court, Lahore through its Registrar Vs. K.M.Sohel" (2001 PLC(C.S) 1253 and exhaustively in "Mehar Khan MEG Vs. High Court of Sindh" (2007 SCMR 632)
22. So for as the contention of the learned counsel for the appellant that the Chief Justice who had recorded adverse remarks, was not acting as Chief Justice during the period he recorded adverse remarks against him, is concerned, no doubt it is correct that the Chief Justice who had recorded adverse remarks in the ACRs of the appellant was not acting as Chief Justice during the said period but if the said ACRs were not recorded by the former Chief Justice, the successor Chief Justice was neither debarred nor disabled from recording such remarks, hence the objection raised is not sustainable.
Such controversy was agitated before the Apex Court in the case of "Mehar Khan MEO Vs. High Court of Sindh" (2007 SCMR 632) wherein it was held that "if the Annual Confidential Reports were not recorded by the former Chief Justice, successor Chief Justice was not debarred from recording the remarks for the period the'se were due in order to update record of an officer in due course of business". It is pertinent to note that in above referred case the ACRs were pertaining to the years 1993 to 1999 while in the case in hand it pertains to the period 2006 to 2009.
23. As regards the question of counselling before recording adverse remarks, suffice it to say that counselling had been made to the officer vide Letter No. 16/Confidential dated 11/11/2009 addressed to the Officer/appellant by the Registrar of Peshawar High Court, Peshawar in the following manner: "I am directed to refer to the subject noted above and to advise you to mind your reputation otherwise an adverse entry shall be make in your ensuing Annual Performance Evaluation Report".
24. So far the question raised about the non-providing of material is concerned, the superior officers like the District Judge and the Chief Justice are the only officers who can accurately assess the c work and conduct of the subordinate Judge serving under them. They I are the best Judges of his work, conduct and character. The basis for their opinion can be very extensive, depending on their own observation, the general reputation and such other material which may have been brought to their notice. All this material does not generally form part of the record. The opinion is formed by the superior officers on the basis of conglomeration of events, too minute to be noticed individually and recorded separately. The total impact of such events, however, brings into focus a clear image of the persons before them. A judicial officer remains constantly under supervision of his superior through his judgments which are examined while occupying appellate, revisional and constitutional jurisdiction by higher forum. The incumbent Chief Justice was holding the post of High Court permanent Judge since year 2001 and remained Inspection Judge, Administration Judge and Chief Justice, thus his observations spread over a considerable long period. The superior officers cannot, therefore, be asked to produce material on which they based their opinion.
Nor should there be any corpus on the superior officers to express themselves freely while recording their opinion concerning their subordinates. In a case "Inspector General of Police Vs. Altaf Majid" reported as (1994 SCMR 1348) it has been observed as under- "We may observe the evaluation of the performance of a subordinate by a Reporting Officer or the Countersigning Officer is a matter of subjective assessment and not an objective evaluation. In this view of the matter, the Tribunal or the Court cannot substitute the view recorded by the Reporting Officer or the Countersigning Officer, nor it will interfere with the above evaluation. This is, however, subject to exceptions, firstly, when the Reporting Officer or the Countersigning Officer himself does not enjoy a good reputation and male fide is alleged against him with full particulars and, secondly, when there has been gross violation of instructions, which resulted in miscarriage of justice".
25. The contention of learned counsel for appellant that the certificate issued by his District Judge and different Bar Associations about the character, competency and integrity, annexed with appeal, were more than sufficient to rebut the adverse remarks, we are unable to agree with this contention. Firstly what was the need which prompted the appellant being Additional Sessions Judge to procure a certificate from his District & Sessions Judge for evaluation of his integrity, competency or character. With utmost respect, the learned District Judge was not his authority or even empowered to issue certificate about the performance of the appellant. He was not Inspection Judge or superior of the appellant. Similar is the case of certificates issued by Bar Associations. We cannot expect from a Judicial Officer to procure such like certificates in order to rebut the adverse remarks. The best judges of his work, conduct and character were his superiors.
The adverse remarks with regard to integrity of judicial officer is made on the basis of his reputation and long standing observations of his superiors which needs no rebuttal from Bar Associations. Such certificates of Bar Associations were taken notice of by the August Supreme Court of Pakistan in the case of "Lahore High Court, Lahore through Registrar . Vs. Muhammad Jahangir Khan Goraya (1999 SCMR 2117) and such practice was held deplorable.
26. For what has been observed above, .We are of the considered view that appeals filed by the appellant are without any merit and lack backing of law, therefore, appeals Bearing Nos. 44 to 44 of 2011 are hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.