' SHAHID WAHEED, MEMBER -- Challenge in this appeal is to letter No, 499/RHC/4C-II, dated 26.5.2010 whereby the representation of the appellant for expunction of adverse remarks recorded in his Annual Confidential Report (ACR) or Performance Evaluation Report (PER) for the period with effect from 4.6.2009 to 1.10.2009 was rejected.
2. This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has arisen in the background that the respondent vide letter No, 83/RHC/4C-II, dated 12.2.2010 communicated to the appellant the following remarks recorded in the ACR or PER on his work and conduct for the period 4.6.2009 to 1.10.2009.
PART II PERSONAL QUALITIES
1. Intelligence Below Average
2. Confidence and will power Below Average
3. Emotional stability Poor
4. Adaptability Poor
5. Understanding & Tolerance Below Average
7. OVERALL GRADING IN PART-II Below Average PART III ATTITUDES
3. Integrity General Below Average Intellectual Below Average
4. Acceptance of Responsibility Below Average
5. Foresight Below Average
6. Initiative and Drive Below Average
7. Reliability under pressure Below Average
8. Judgment Below Average
10. Preservence and devotion to duty Poor
13. Relation with Superior Below Average Colleagues Poor Subordinates Below Average
14. Behaviour with public Below Average
13. OVERALL GRADING IN PART III Below Average PART IV PROFICIENCY IN JOB
2. Power of Expression Below Average Written Below Average Oral Below Average
5. Ability to take decision Below Average
6. Work Output Below Average Quality Below Average
7. OVERALL GRADING PART IV Below Average PART V
(a) Pen-Picture. -- An officer who works without taking keen interest and pains in the job.
(b) Counselling. -- Time and again but unfortunately no visible improvement was made.
(c) Assessment of performance. Performed below par. Remained satisfied with earning units by recording confessional statements and extending concession to the accused making the same.
(d) Usefulness for further retention in service = Not Useful.
PART VI Overall Grading Meets bare minimum standards (Below Average)
Fitness for promotion Unlikely to progress further Integrity Reported to be Corrupt
3. Feeling aggrieved the appellant on 15.3.2010 through proper channel made a representation for expunction of above-cited remarks. This representation was rejected' vide impugned letter No, 499/RHC/4C-II, dated 26.5.2010. Having failed to obtain redress of his grievance the appellant has preferred the instant appeal before this Tribunal.
4. It is contended on behalf of the appellant that (i) adverse remarks are based on surmises and conjecture as the same cannot be corroborated by any cogent, concrete and confidence inspiring material/evidence; (ii) the appellant's work and conduct prior to the impugned remarks as well as after the impugned remarks remained unquestionable; (iii) the appellant has served as Judicial Officer for more than 23 years and except the above-mentioned short period i.e, 4.6.2009 to 1.10.2009 all the ACRs/PERs of the appellant are A and A/1; (iv) even the same Reporting Officer in the ACR for the period with effect from 12.6.2007 to 19.11.2007 had appreciated the work and conduct of the appellant; (v) the work and conduct of the appellant was also appreciated by the Lahore High Court, Lahore, during 2001 when he was awarded the prize of Rs, 7,000/- for exhibiting good performance; (vi) on two times cash awards/certificates regarding integrity/honesty were awarded to the appellant; (vii) the impugned remarks have been recorded in violation of the Instructions about Annual Confidence Reports; (viii) it is not believable that a person having maintained his integrity for decades and having earned cash awards in service suddenly can bring a change into his character and, (ix) in September, 2009 the appellant requested the Reporting Officer for grant of 10 days earned leave for observing Aitkaf. The Reporting Officer was reluctant to grant said leave. However, on the insistence of the appellant six days earned leave was granted but due to said annoyance the impugned remarks were recorded in the ACR/PER.
5. On the other hand, learned counsel for the respondent has vehemently opposed this appeal and submitted that adverse remarks were recorded strictly in accordance with Rules and Instructions; that the adverse remarks can only be expunged if there is an allegation of mala fide and the same stands proved against the Reporting Officer/Countersigning Officer; and, that in the absence of mala fide the prayer made in this appeal cannot be allowed. In support of above arguments reference has been made to case of Zarif Ahmad Khan and 3 others v. Province of the Punjab and another (PLD 1986 SC 684) and Lahore High Court, Lahore through its Registrar v. K.M. Sohel (2001 PLC (CS) 1253).
6. It is now well-settled that evaluation of performance of a subordinate by a Reporting Officer or Countersigning Officer is a matter of subjective assessment and not an objective evaluation and, therefore, the Tribunal cannot substitute the view recorded by the Reporting Officer or Countersigning Officer. This is, however, subject to two exceptions: firstly, when Reporting Officer or Countersigning Officer himself does not enjoy good reputation and mala fide is alleged against him with full particulars; and, secondly, when there has been gross violation of Instructions, which resulted in miscarriage of justice. In this regard reference may 'be made to the cases of Ch. Shabbir Hussain and others v. Registrar, Lahore High Court and others (PLD 2004 S.C. 191), Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court, Lahore (2011. SCMR 1381) and Muhammad Qasim Khattak v. Administrative Committee, Peshawar High Court, Peshawar and others (2012 PLC
(CS) 790). Keeping in view the above-stated principle of law, we analyze the facts of the present case.
7. In the case on hands the Reporting Officer for a short period of four months has recorded adverse remarks in a sweeping manner against all columns of ACR/PER and rated the appellant below average. This fact flabbergasted us and gave a fillip to examine the Character Roll Dossier of the appellant. Perusal of the Dossier unfolds: (a) that the appellant joined the judicial service as Civil Judge on 2.8.1988 and since then he is earning good reports; (b) that ACRs/PERs are replete with wholesome remarks about the work and conduct of the appellant; (c) that during the period with effect from 2.8.1988 to 6.5.2009 the appellant was found an honest and conscientious judicial officer; and, (d) that even during the first half of the year 2009 the appellant earned good report.
Before proceeding further it is germane to state here that the appellant served under the Reporting Officer on two occasions. Firstly, during period with effect from 12.6.2007 to 19.11.2007; and, secondly, during period from 4.6.2009 to 1.10.2009. The Reporting Officer in the first report for the period from 12.6.2007 to 19.11.2007 found the appellant an experienced and honest Officer; and, useful for further retention in service. However, in the second report, which is impugned in this appeal, the Reporting Officer rated the appellant as a below average judicial officer.. This was a startling contradiction about the work and conduct of the appellant. The Reporting Officer, while rating the appellant a below average judicial officer, during the period from 4.6.2009 to 1.10.2009, was, therefore, required to state with particularity as to how all of .a sudden there occurred a change in the conduct and behaviour of the appellant, supported by sufficient material. This was not done by the Reporting Officer. Since it is well-established from record that the appellant has otherwise good record and has been receiving commendation certificates but Reporting Officer has made adverse remarks without giving instances of lapse or dereliction on the part of the appellant, we are of the view: (i) that performance, behaviour, potential, work and conduct of the appellant was not appraised in a proper and lawful manner; (ii) that remarks recorded in ACR or PER for the period from 4.6.2009 to 1.10.2009 do not present the truest possible picture of the appellant; and (iii) that the impugned remarks were recorded in clear violation of the Instructions for filling up the PER or ACR and, therefore, the same are liable to be expunged. In arriving at the said conclusion we stand fortified from the case of Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarter, Peshawar and 2 others (1997 SCMR 1749).
8. There is another aspect of the matter which has persuaded us to accede to the prayer made in this appeal. The impugned remarks relate to a period of four months, i.e, from 4.6.2009 to 1.10.2009.
During this period the appellant was serving as Additional District and Sessions Judge. After communication of the adverse remarks the appellant was promoted as District & Sessions. Judge.
This shows that overall performance of the appellant was very well and, therefore, he was promoted. Thus, following the principle of fair play, equity and justice as enunciated by the Hon'ble Supreme Court of Pakistan in the case of Principal, Government Girls College, Thana Malakan Agency (Now at Saidu Sharif Swat) and 3 others v. Mrs. Bilquis Be gum (PLD 2003 Sc 86) the adverse remarks recorded in the ACR or PER for the period from 4.6.2009 to 1.10.2009 of the appellant should be expunged forthwith.
9. In the sequel this appeal is allowed as prayed for.