' MEHMOOD MAQBOOL BAJWA, J.--- This Judgment shall also dispose of connected Service Appeal No,29 of 2007 titled "Muhammad Hamid Pervaiz Khan v. Lahore High Court, Lahore through its Registrar" as similar question of law and fact is involved in both the appeals.
2. By preferring both the appeals, the appellant who was serving as Senior Civil Judge Bahawalpur calls in question adverse remarks recorded by learned Countersigning Authority qua integrity of the appellant in the Performance Evaluation Reports for the period from 1st January to 20th June, 2005 and 21st June to 31st December, 2005. During the period learned Reporting Officers gave average remarks to the appellant, treating him as honest but while dissenting with the opinion of Reporting Officers about the integrity of the appellant, learned Countersigning Authority described him "Reported to be corrupt" and while writing the remarks in the "pen picture" opined that appellant does not enjoy good reputation.
3. Representations were made by the appellant before the learned Authority but it remained an unsuccessful attempt as both representations for expunction of remarks were declined through order dated 20th of May, 2006 communicated to the appellant on 5th of June, 2007.
4. Learned counsel for the appellant in both the appeals contended that appellant was recruited as Civil Judge in the year 1987 and obtained good/average reports and no adverse remarks, whatsoever, were ever recorded in the Performance Evaluation Reports either by the learned Reporting Officers of by learned Countersigning Authority during his carrier till recording of impugned remarks.
5. Making reference to the period in which adverse remarks were recorded by the learned Countersigning Authority, it was submitted that learned District and Sessions Judges Bahawalpur did not make any adverse remarks regarding integrity, behaviour and conduct of the appellant but learned Countersigning Authority concluded that appellant does not enjoy good reputation which remarks according to learned counsel for the appellant are result of "malice" and "bias".
' Highlighting the background, it was submitted that appellant being Senior Civil Judge, Bahawalpur advertised posts of "Naib Qasid", "Daftri" and two "process servers" and "meeting of Departmental Selection Committee-II was held on 11.04.2005. Contended that Safdar Hussain, Muhammad Adnan and Pervaiz Elahi were selected for the posts of Naib Qasid and process server respectively and result was displayed on the notice board of the office. Submitted that on 12th of April, 2005, telephonic call was received by the appellant from the Personal Assistant of the learned Countersigning Authority (Hon'ble Inspection Judge) working in those days at Bahawalpur Bench, communicating the message of the learned Countersigning Authority, not to issue appointment letters till further direction, also requiring the appellant to see the learned Countersigning Authority on the same day. Contended that in compliance of the direction received, the appellant visited the chamber of the learned Countersigning Authority and direction was issued to withhold the appointment letters with further direction to the appellant to appear with record on 13th of April, 2005. The learned District and Sessions Judge Bahawalpur was also called. Accordingly, on 13th of April, 2005, learned District and Sessions Judge as well as appellant appeared before the learned Inspection Judge in his Chamber, produced the record of recruitment and direction was issued for cancellation of recruitment process directing the appellant to re-advertise the vacancies in order to accommodate the persons in which statedly learned Countersigning Authority was interested.
' Continuing the arguments, it was submitted that in compliance of the order of the learned Countersigning Authority, proclamation was again published in the newspaper and Departmental Selection Committee-II while taking into consideration the qualification of the candidates prepared merit list but the recommendees of the learned Counter Signing Authority remained unable to qualify, causing annoyance to him resulting in recording of adverse remarks qua integrity of the appellant.
' Further argued that appellant right from his induction as Civil Judge to the post of Senior Civil Judge served with integrity and even a single averse remark was not recorded against him. Further contended that even for the period under reference both the learned Reporting Officers gave him good remarks treating him as honest but the learned Countersigning Authority as referred earlier recorded adverse remarks with malice. Contended that since the Reporting Officers did not record adverse remarks, therefore, learned Countersigning Authority while recording adverse remarks was obliged and required to justify his conclusion by giving reasons. Help was sought from the unreported judgment of the apex Court in the service matter delivered in Civil Petition for Leave to Appeal No,1773-L of 1996 titled "The Lahore High Court Lahore through its Registrar v. Tahir Pervaiz, Senior Civil Judge, Sahiwal and another"
6. Controverting the arguments, learned counsel for the respondent maintained that the appellant though suggested malice to learned Countersigning Authority but failed to substantiate the same.
' Admitting the factual position regarding issuance of direction by the learned Countersigning Authority to the appellant to re-advertise the recruitment process, it was contended that in the proclamation issued earlier sufficient time was not granted by the appellant for receipt of applications for the posts advertised. Submitted that it was well within the domain of learned Countersigning Authority being Inspection Judge of Bahawalpur District to issue such direction.
Argued that story was concocted by the appellant regarding favour to any candidate. Contended that appellant has failed to prove malice. Seeking help from the dictum laid down in "Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court; Lahore" (2011 SCM R 1381) it was submitted that learned Countersigning Authority was not obliged to give reasons regarding opinion drawn qua the integrity of the appellant.
7. It is an admitted fact that prior to recording adverse remarks by the learned Countersigning Authority in the Performance Evaluation Reports of the appellant, no adverse remarks were recorded in his Annual Confidential Reports. It is also an admitted fact that learned Reporting Officers two in number rated the appellant as average officer but stamping him as honest.
Conclusion with reference to integrity was not endorsed by the learned Countersigning Authority to whom malice has been attributed.
8. Question for consideration before us is whether the appellant was able to prove malice on the part of learned Countersigning Authority or not.
9. Prior to dealing with the contentions of the adversaries, it is desirable to highlight the meaning of expression i.e, "malice. The expression has been defined in Black's Law Dictionary, (Eighth Edition), as follows:- "The intent, without justification or excuse, to commit a wrongful act.
2. Reckless disregard of the law or of a person's legal rights.
3. III will: wickedness of heart. This sense is most typical in nonlegal contexts.
"Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin militia means badness, physical or moral-wickedness in disposition or in conduct-not specifically or exclusively or malevolence: hence the malice of English law, including all forms of evil purpose, design, intent, or motive. [But]intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of two distnict things. We mean either that it is done intentionally, or that it is done with some wrongful motive. "John Salmond, Jurisprudence 384 (Glanville L. Williams ed. 1947)
"[M]alice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result... The Model Penal Code does not use blind prejudice against the word. This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express it"
Rollin Muhammad Perkins and Ronald Boyce, Criminal Law 860 (3d ed. 1982).
10. Malice was defined by Hon'ble Supreme Court in "The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others" (PLD 1974 SC 151) at page 170 as follows"- "Mala fides" Literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact; that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide".
11. Dealing with the same expression the apex Court has held in "Fauji Foundation and another v.
Shamimur Rehman" (PLD 1983 SC 457) that prima facie express proof is required before drawing adverse presumption and shifting onus to establish bona fide of another party.
12. Again dealing with the question of mala fide and its ,proof, the Honourable Supreme Court in "Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum and others (PLD 2002 SC 706) while referring to the dictum laid down in the case of "Fauji Foundation" (Supra), held that mere assertion cannot take place of proof so as to tilt balance in favour of mala fides.
13. Dealing with the yardstick to prove "malice" Apex court in "Tabassum Shahzad v. I.S.I. And others"
[2011 (SCMR 1886) held that mere vague allegation of mala fide would be of no avail.
14. Hon'ble Supreme Court while dealing with the definition of malice-in-fact and malice in law in "Muhammad Ashraf Tiwana and others v. Pakistan and others" (2013 SCM R 1159) held at pages 1179 and 1180 as follows:- "Here it may also be added that the term "malice" when used in law, has well defined connotations.
Black's law dictionary clarifies that whereas in ordinary parlance malice refers to mere "Ill-will or wickedness of hear", in legal contexts, it requires "Whe intent, without justification or excuse, to commit a wrongful act 'In Bhagat Singh v. The Crown, (1930 The Punjab Law Reporter 73), the Lahore High Court, relying on Bromage v. Forsser, clarified the distinction thus: "Malice in common acceptation means against a person, but in its legal sense it means a wrongful act, done intentionally without just cause or excuse.
15. While dealing with the proof of mala fides the apex court in the case of "The Federation of Pakistan" (PLD 1974 SC 151) held that mala fide must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to other proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations Further held that though it is easier to allege mala fides but difficult to prove the same. It was further held that in order to support the allegations some prima facie proof is required to be produced.
16. Keeping in view the definition and yardstick to establish "Mala fides" respective contentions of the appellant and respondent are to be examined.
17. It is an admitted fact that appellant was serving as Senior Civil Judge, Bahawalpur. It is also not disputed that appellant being Senior Civil Judge got published advertisement in daily newspaper "Karnama" Multan inviting applications for the posts of process server, Daftri as well as Naib Qasid.
The advertisement was published in the said newspaper on 6th of April 2005, and according to said advertisement last date for submission of applications was 7th of April, 2005 calling the applicants for interview on 9th of April, 2005.
18. It is an admitted fact that learned Countersigning Authority called the appellant being Chairman of Departmental Selection Committee-II Bahawalpur with record. It is also not denied that process of recruitment initiated in pursuance of said advertisement was cancelled keeping in view the command of learned Countersigning Authority.
19. The appellant has placed on record different letters of his office in order to show that he was called by the learned Countersigning Authority but those are not required to be dealt with for the simple reason that same is not a moot point.
20. As referred earlier advertisement was published in the newspaper being published from Multan inviting applications for three different posts from the residents of Bahawalpur. It is also interesting to note that newspaper in which proclamation was made is not known newspaper.
21. Proclamation was published on 6th April, 2005 inviting the applications from the residents of Bahawalpur District granting only one day to the residents for submitting applications in the office of the appellant fixing the date of interview with the margin of one day.
22. All these facts dearly demonstrate that recruitment process initiated on behalf of the appellant being Senior Civil Judge was not transparent. It is not understandable why proclamation was not published in the newspaper printed and published from Bahawalpur so that residents of District may be able to get information regarding the posts advertised.
23. It is also not understandable that why dummy newspaper was selected by the appellant and that too being published from Multan giving only one day time to the contenders to submit applications.
24. We are unable to understand, how it was possible for the residents of Bahawalpur to know about the availability of vacancies in the office of Senior Civil Judge Bahawalpur from the advertisement published in dummy daily newspaper of Multan referred to and that too by giving only one day time for submission of application.
25. Though malice was attributed to the learned Countersigning Authority but the facts narrated dearly demonstrate sinister motive on the part of appellant to curtail number of the applicants as it was not possible for the residents of Bahawalpur to get information and knowledge regarding availability of posts advertised. Purpose and object behind the whole episode is clear, need not to be highlighted.
26. We are of the considered view that in fact it was conscious attempt on the part of appellant to accommodate certain persons and as such with this background learned Countersigning Authority called the appellant, asked him to cancel recruitment process initiated in pursuance of proclamation published in dummy newspaper.
With this background, it was well within the domain of learned Countersigning Authority being inspection Judge of Bahawalpur District to intervene and interfere after getting information about the mode and manner of recruitment.
27. Though it is the case of the appellant that learned Countersigning Authority issued direction for cancellation of the process in order to accommodate his favourits but nevertheless appellant has failed to disclose name of any candidate recommended by the learned Countersigning Authority for recruitment.
28. Purpose and object of direction for fresh recruitment given by the learned Countersigning Authority as argued with vehemence on behalf of the appellant was to accommodate the persons of choice but IK neither in the memorandum of appeal nor during the course of arguments names and particulars of any such candidates were given.
29. If the learned Countersigning Authority got first process of recruitment cancelled with an intent and object to get accommodate the L persons of his choice, why he did not intimate the names and particulars of said candidates to the appellant.
Omission is significant which dearly demonstrates that story was coined by the appellant in order to justify his act by getting the process of recruitment complete within couple of days.
30. Keeping in view the facts discussed, we feel no hesitation to conclude that in fact the appellant made conscious attempt to accommodate persons of his own choice while depriving the suitable candidates and as such malice has to be attributed to the appellant and not to the countersigning authority.
31. Pursuant to above, we are of the considered view that attempt made by the appellant suggesting malice on the part of learned Countersigning Authority is nothing but a bald allegation with an object to get favourable decision to get the adverse remarks expunged.
32. We have considered the arguments advanced by the learned counsel for the appellant that since two Reporting Officers did not record any adverse remarks with reference to integrity of the appellant, therefore, learned Countersigning Authority while dissenting with the reporting officers was obliged to give reasons for the opinion formulated but we are unable to endorse the view point.
33. We have gone through the rule of law enunciated in Civil Petition for Leave to Appeal No,1773-L of 1996 titled "The Lahore High Court Lahore through its Registrar v. Tahir Pervaiz, Senior Civil Judge, Sahiwal and another" cited at bar by the learned counsel for the appellant but the same with great respect would not advance the plea of the appellant in view of the dictum laid down in Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court, Lahore" (2011 SCM R 1381) in which it has been held at pages 1387 and 1388 is as follows:- "We have also examined the ACR Dossier of the appellant which makes it abundant clear that pursuant to key note instruction for recording ACR the countersigning authority is not bound to give reasoning for his assessm ent. No such restriction has ever been laid down in any law that countersigning authority must give reasoning for his assessment. In our view it is not an inadvertent omission but on the contrary it is a deliberate omission and the logic behind it, is that no restriction should be imposed on the countersigning authority enabling him to make a transparent, independent and impartial assessment and give his opinion qua efficiency, performance, integrity and reputation of a Judicial Officer. It is worth mentioning that adverse remarks were recorded by a learned Judge of the High Court which cannot be brushed aside merely on the ground that no material whatsoever was available for recording such adverse remarks. The learned Judge of High Court is always well-conversant with the conduct, performance, reputation and integrity of a Judicial Officer and he could have various resources including judgment of a Judicial Officer to make an, independent assessment without any restriction and as may be deemed fit and proper. It is not necessary that everyone must know about such resources or the material considered by learned Judge of High Court while making such assessm ent. By no stretch of imagination it can be imagined that learned Judge of High Court was not impartial or not dispassionate in evaluating the performance of a Judicial Officer while recording his ACRs, No mala fide whatsoever has been alleged against the learned Judge of Lahore High Court. It is well settled by now that "where Reporting Officer or Countersigning Officer had not personal motive or bias and they had evaluated performance of civil servant on the basis of their personal observation information, same could not be struck down merely on ground that they were not in a position to prove that adverse remarks recorded in A.C.R. Were true. "(F.Q., Matiullah Khan Alizai v. Chief Secretary 1994 SCM R 722). It was further held that in our view, the approach should be that if no allegation is made against the Reporting or Countersigning Officer about mala fides and their own reputation is not clouded, their evaluation as to the performance of their subordinates is to be accepted". (F. Q. Matiullah Khan Alizai v. Chief Secretary 1994 SCM R 722, "Lahore High Court v. Muhammad Jahangir Khan Goraya" (1999 SCM R 2117). While dilating upon a similar question it was held in case of "Shabbir Hussain v. Registrar Lahore High Court" (PLD 2004 SC 191) as follows:- "The contentions raised by the learned counsel for the parties have received our anxious consideration. However, before proceeding to determine the questions involved in these appeals we deem it necessary to observe that 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 position which justice occupies in Islam according to the following verse of the Holy Qur'an:- "0' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against our ownselves 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." (Sure 4 verse 135).
' Islam also enjoins that those who perform the functions of judges 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 held remarking that Judicial Officers are expected to guard their reputation Jealously and the Reporting Officers/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias."
34. v We are conscious that if malice has been attributed either to the Reporting Officer or Countersigning Authority, then remarks recorded by any of two are to be taken into consideration with care and caution but in view of discussion made above allegation of malice attributed by the appellant as discussed is nothing but a bald allegation and appears to be a conscious attempt to create defence but it is an exercise in futility. In fact, the learned countersigning authority interfered in order to rectify the illegal act of appellant which was clothed with intention neither sanctioned by law nor endorsed by relevant rules.
35. Pursuant to above, we are of the considered view that appellant failed to make out case for interference.
36. Epitome of above discussion is that both the appeals being devoid of force are hereby dismissed.