SHAFIUR RAHMAN, J.--The Government of Punjab seeks leave to appeal against the judgment of the Punjab Service Tribunal, dated 22-4-1979 whereby the appeal of the respondent against the refusal of the Government to expunge the adverse remarks made in his character --roll for the period of 1-1-1975 to 5-6-1975 was allowed.
2. The respondent was a Magistrate posted in District Sahiwal on 20-5-1974. For the period 20-5- 1974 to 31-12-1974 the Sessions Judge, Sahiwal, gave an adverse remark. For the period 1-1-1975 to 5-6-1975 again the Sessions Judge, Sahiwal, recorded an adverse remark. Both the adverse remarks related to his reputation for integrity'. He represented separately against both. The Additional Chief Secretary expunged the remarks for the first period but did not do so for the second period. The additional ground taken up by the respondent for the second period was that during that period he had not worked at all as a Judicial Magistrate but had been performing executive duties. The Tribunal after examining the file of the proceedings recorded the following findings with regard to the manner in which the representation of the respondent was dealt with.
"There is nothing to indicate the reasons which led to the expunction of remarks for the year 1974 and distinguish it from the reasons recorded for not expunging the remarks for the year 1975. It appears that while the appellant was doing some judicial work in 1974 he was put on executive side, in the year 1975. The appellant has also taken the stand that as he was not doing judicial work and the character-roll should not have been sent to the Sessions Judge for countersigning. The Deputy Commissioner has expressed the opinion that there were no complaints regarding the dishonesty of the appellant and he does not support the adverse remarks. The A.C.Rs. Of the appellant subsequent to his posting at Sahiwal indicate the integrity of the appellant as 'good' and 'very good'. Since the background and the officers writing the report and the countersigning Officer regarding the to periods were the same we find no justification for retaining the adverse remarks for the period 1-1-1975 to 5-6-1975 when the remarks for the earlier period have been expunged."
3. The learned counsel for the petitioner in challenging the decision of the Tribunal has taken up the ground that a service appeal was not at all competent because the recording of. The adverse remarks in the confidential report or their expunction was not a matter concerning the terms and conditions of service of the respondent as provided in Civil Servants Act. In this context reliance has also been placed on a decision of the Supreme Court in Muhammad Aboo Abdullah v. The Province of East Pakistan PLD 1960 SC 164 where it was held that it is within the exclusive competence of superior officers to express themselves freely as to their own opinion which may be right or wrong with regard to appreciation of work and character of their subordinates having a bearing on their decision.
4. We find that the objection with regard to competence of the appeal before the Tribunal or the recording of the remarks and its expunction being not one of the terms and conditions of service was not raised before the Tribunal and nothing has been said in the order with regard to any such objection. It is being raised for the first the as a ground in this petition. Section 23 of the Civil Servants Act by its subsection (2) provides that: "Any rules, orders or instructions in respect of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
It is not denied that on the subject of recording of remarks in the annual confidential reports the communication of adverse remarks and the entertainment of representations against them is the subject-matter of detailed instructions in accordance with which the authorities were seized of the representation of the respondent and preceded to deal with it. The subject-matter of the proceedings was, therefore, clearly relatable to the terms and conditions of service and the Tribunal was justified in entertaining the appeal as such.
5. A finding of fact has been recorded by the Tribunal that the disposal of the representation filed by the respondent appeared to be arbitrary and unsupportable. The Tribunal had the benefit of perusing the record of the department. The learned counsel for the petitioner is not in a position to enlighten us on the distinguishing features which prompted the authorities to take a decision contrary to what they had taken in respect of similar remarks for the immediately preceding half of the year. We find no merit in the petition which is dismissed.