' MUHAMMAD IRSHAD KHAN (MaMBER).-The appellant, an E. N. T. Specialist in the Central Government Poly Clinic, Islamabad, in June, 1981, received a letter from the Director, Central Health Establishment, communicating some adverse entries recorded in his A.C.R. For the year 1979 by Dr. Mohsin Ali, Deputy Director-General Health, Ministry of Health and Social Welfare and countersigned by the Director, Central Health Establishment. Prior thereto also ride Directorate of Central Health Establishment's letters, dated the 16th of May, 1979, and the 30th of June, 1979.
Adverb remarks recorded in his A.C.Rs, for the period from 1st July, 1977 to 31st December, 1977 and for the year 1978 were communicated to him. He submitted a representation, dated the 3rd of July, 1.980, agitating against the recording of the adverse remarks in his aforesaid A.C.Rs, mainly urging this the act of recording adverse remarks was mala fide and vindictiveness on the part of Dr. Mohsin Ali. It was also asserted that Dr. Mohsin Ali was not competent to write the A.C.R. Of the appellant for the year 1979 as he had already given adverse remarks in his A.C.Rs, for two consecutive years and according to the Government instructions, on the subject, a Reporting Officer, who has adversely reported upon an official for two successive years, should not evaluate that official for the third consecutive year. He had given the reason for not representing against the adverse remarks in the A.C.Rs, for the years 1977 and 1978 in the following words :-- "I did not bother much because, as a specialist in my own field, I am frightfully busy and dedicated to my work. My conscience was very clear in all respects and therefore I did not care even to represent against the adverse remarks given to me by Dr. Mohsin in 1977 and 1978. I did not consider it worth my while to waste my time in writing representations, against the so-called adverse remarks by Dr. Mohsin. To attend to the ailing people of the twin-cities of Rawalpindi and Islamabad was much more important than this 'exercise'. But now when I find that injustice is being perpetuated dauntlessly and Dr. Mobsin's enmity against me and my brother is knowing no bonds, I think, time has come that facts should be brought to the notice of higher authorities."
' In reply to his representation the appellant was informed vide Directorate of Central Health Establishment's letter, dated the 14th of February, 1981, that his representation against the A.C.Rs, for the years 1977 and 1978 was time-barred, while, the adverse remarks contained in columns 18 and 19 of Part-II of the A.C.R. Of 1979 had been treated as expunged but the remaining adverse remarks contained in Part-II and in Pen Picture column of the said A.C.R. Will stand. The appellant then filed the present appeal alongwith an application for condonation of delay contending therein that he was prevented from filing appeal in time before this Tribunal by the misleading instructions of the Establishment. Division appearing at page 51 of the booklet 'A Guide to Performance Evaluation' that "the writing of the A.C.R. Is not a term and condition of service and, therefore, a matter outside the jurisdiction of the Service Tribunal" ; and it is only immediately there before that he came to know that the appeals against the adverse remarks in the A.C.R. Were being entertained by the Service Tribunal. It was also submitted that the adverse remarks being illegal and malicious, the question of limitation was of less importance in his case.
2. We find the explanation for the delay occurred in filing the appeal before this Tribunal is quite satisfactory. In any case, as we would discuss in the latter part of this judgment, the impugned A.C.Rs, having been incompetently written, are nullity in the eye of law. The application for condonation of delay is, therefore, accepted and the delay is condoned.
3. Preliminary objection on behalf of the respondent-department was raised about the competence and maintainability of the present appeal by contending that the writing of the A.C.R.
Not being a term and condition of service, the instant appeal is not amenable to the jurisdiction of this Tribunal. We have already repelled this contention earlier in a number of cases. It is now a well- settled legal position that the Service Tribunal has vast jurisdiction in the service matters distinct from the extraordinary jurisdiction of the High Court and it is well within the competence of the Service Tribunal to entertain an appeal made by a civil servant against the adverse remarks in his A.C.R. And review the assessm ent made therein. If any authority is needed on the point we would quote Secretary, Government of Punjab v. Ahmad Kamal-uddin .
4. Adverting to the merits of the case, it would be sufficient to mention at the outset that this Tribunal in Appeal No, 8(R) of 1982 decided on 26th September, 1982 has categorically held that the Reporting Officer in that case being in the same grade in which was the officer reported upon, the report impugned could not be competently written because it is only the next higher officer who can write the report. It is pertinent to mention here that the facts of that case and the present case and incidentally the Reporting Officer are the same. The Department in that case has accepted the decision of the Tribunal. In the instant case also it is an admitted position that the Reporting Officer and the appellant are in the same grade. There is, therefore, no option but to hold that the Reporting Officer was not competent to record the A.C.Rs, of the appellant. The A.C.R. For the year 19/9 is found to be incompetent and also for having been written in violation of instructions 7 : 4 contained in "A Guide to Performance Evaluation" which provides that an officer receiving adverse remarks for two successive years from the same Reporting Officer should be placed under another1 Reporting Officer. It may be mentioned that by operation of subsection (2) of section 25 of the Civil Servants Act, 1973, these instructions shall be deemed to g be a rule made under the Civil Servants Act. On this short ground alone we are led to an irresistible conclusion that the A.C.Rs, of all the three years have been written incompetently and are not valid when they are challenged. All the reports, therefore, having been written' lawful authority reed to be taken out of the A.C.Rs,/dossiers of the appellant and a note to this effect be endorsed in each of the A.C.Rs, to ensure that they shall not be used, in any way, to harm or spoil his service career. A copy of this order be placed on the A.C.Rs, dossiers of the appellant.
5. Before parting with the case we would like to deal with yet another preliminary objection raised on behalf of the respondent. Department that the present appeal so far as it relates to the adverse remarks recorded in the reports of 1977 and 1978, is barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, inasmuch as the appellant did not file any representation against the adverse remarks recorded in the A.C.Rs, of those years. A similar question came up for consideration before the Supreme Court in the case of Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another . The issue involved in that case was whether a civil suit in a revenue matter is barred unless the plaintiff first proves that previously to bring his suit, he has presented all such appeals allowed by the law for the time being in force as provided by section 11 of the Sind Revenue Jurisdiction Act, 1876 ? A Full Bench of the Supreme Court speaking through Mr. Justice Wahiduddin Ahmad, as he then was, has laid down :- "It will be noticed that the learned District Judge and the High Court have refused to issue injunction in favour of the appellant on the ground that section 11 of the Sind Revenue Jurisdiction Act, 1876, is a bar to the suit filed by the appellant in the Court of First Class Sub-Judge, Khairpur. This provision of law reads as under `No civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.'
' There is no doubt that under it ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. There is ample authority that in such cases the jurisdiction of the civil Court is not barred. This aspect of the question was considered by the Privy Council in the case of Secretary of State v. Mask & Co. AIR 1940 P C 105. It was held in that case- `It is also well-settled that even if jurisdiction is so excluded, the civil Court have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
' In our opinion this well-established principle also applies to the facts of the present case. The allegation of the appellant is that the impugned certificate for various reasons mentioned above is a nullity in the eye of law and has not been passed in accordance with the provision of the relevant law. On the above principle the civil Court have jurisdiction to examine these questions. We would, therefore, hold that the learned Courts below, in these circumstances, were not justified in holding that the appellant's suit was not competent."
6. Respectfully following the above dictum we hold that in the circumstances of the present case and more particularly for the reason of the A.C.Rs, in question having been incompetently written, the present appeal is maintainable notwithstanding anything contained in proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, and the preliminary objection of the respondent-department in this regard is accordingly overruled.2
7. For the foregoing reasons, the appeal is accepted with no order as to costs, 1981 SCM R 392 PLD 1970 SC 180