1. ' MUSHTAK ALI KAZI (CHAIRMAN).--These are two connected appeals, arising from the recording of Annual Confidential Reports by the Chief Justice of High Court of Sind, in respect of the appellant, a District Judge in the Sind Judicial Cadre, for the- years ending 31st December, 1981 and 31st December, 1982, respectively.
2. ' The adverse remarks were communicated to the appellant by Registrar, High Court of Sind under D.O. Letters dated 26th August, 1982 and 14th April, 1983, respectively. In the first letter the remarks communicated were as under:-.
(i) Quality of output of work: "Below average."
(ii) Fitness for promotion: Unfit for further promotion, has reached his ceiling.
(iii) Pen Picture: "His integrity is perhaps his only virtue. His judgments are below average. I agree with my predecessor that he has reached his ceiling. His judgments have been rated below average. He has now been working in Interior Ministry."
3. ' In the second letter the following remarks were communicated:-
(a) Pen Picture: "In Cr. Miscellaneous Application No, 497/82 filed by one Feroz Khan in this Court the judgment was rated below average.
4. ' In 1978 Mr. Justice Z.A. Channa dealt with Second Appeal No, 434/71 and had remarks "his judgment is below average, perverse and ignoring the evidence on record. These remarks be recorded in the C.R. Of the judge". The remarks were not recorded in the C.R. But were communicated to this Judge who made a representation for expunging the same but he withdrew the representation.
5. ' Recently he has filed an appeal before the Service Tribunal for expunging the remarks wherein he has stated that the remarks given by me were mala fide, without specifying why I had given bad remarks, without a reason and likewise why my predecessors should also have given bad remarks.
6. He has reached his ceiling."
7. ' It is the case of the appellant in these appeals that on 29-8-1982 he received another memo, that in the year 1975 and 1976 adverse remarks had been observed in his Annual Confidential Reports as under:- "Unfortunately, he remained the same in spite of my last year's remarks. He seems to have reached his ceiling in quality of work, as I do not see further hope in him."
8. ' The appellant has stated that in the years 1975 and 1976 he was serving as Special Judge, Anti- Corruption and the Chief Justice was not competent to issue any Annual Confidential Report in respect of the appellant. That the adverse remarks had been recorded only to impose penalty on the appellant to obstruct the consideration of his case for promotion as High Court Judge.
9. ' The representation of the appellant for expunction of the adverse remarks was considered by the Chief Justice and the Judges of the Sind High Court. The remarks contained in the A.C.Rs, for the years 1975 and 1976 were expunged as the same were not communicated to the appellant in time.
10. The, word "below average" in the pen picture of the A.C.R. For the year ending 31st December, 1981 was also expunged. I Ms fact was communicated to the appellant by a letter, dated 3rd June, 1984.
11. ' It has been argued by Mr. Naimatullah Qureshi on behalf of the appellant that gist of remarks against the appellant mentioned his unfitness for promotion and rated quality of judgment as being "below average". He was, however, receiving regular promotions, as District Judge and thereafter from Grade-19 to Selection Grade-20, or the recommendation of the High Court. That if he was considered fit for promotion then the remarks were uncalled for. That the judgments considered as "below average" pertained mostly to the period when he was working as a Civil Judge. Mr. Qureshi has then argued that the remarks were mala fide the motive being to keep out of consideration, the case of the appellant for promotion as Judge of the High Court. That the remarks had not even been communicated to the appellant and the later remarks were based on those earlier remarks which have now been expunged by the full Court. Mr. Qureshi has then pointed out that the remarks for the subsequent year contained in the Pen Picture were biased because the appellant had filed appeal for expunction of the adverse remarks before the Tribunal.
12. Mr. Abdul Sattar Sheikh, Additional A.-G. Has, on the other hand, argued that the Tribunal has no jurisdiction to expunge the remarks in the A.C.Rs, recorded by the High Court, as the A.C.Rs, cannot be regarded as "conditions of service" nor do they constitute "rules or orders governing the conditions of service".
13. ' The learned Additional A.-G. Has pointed out that Article 240 of the Constitution under the Chapter "services" reads: Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined:-
(a) In the case of the services of the federation, posts in connection with the affairs of the federation and all Pakistan services, by or under Act of Parliament; and
(b) In the case of the service of the province and posts in connection with the affairs of the province by or under Act of the Provincial Assembly.
14. That the Constitution confers powers on the Legislature to enact provisions prescribing 'the appointment to and the conditions of service' of persons in the service of Pakistan or in connection with the affairs of the province. That the Constitution does not empower the Legislature to make laws in respect of 'the terms and conditions of the service'. That since the Civil Servants Act, 1973 regulates "the terms and conditions of service" the same is ultra vires of the Constitution in respect of the provisions regarding the 'terms'.
15. ' It may, however, be pointed out in this connection that the phrase "terms and conditions" refers to concrete matters relating to the actual service of a person, such as the post occupied, the salary enjoyed, the age of superannuation etc. The entitlement to a certain grade of pay, the remuneration, revision of grade, increments, T.A. Etc. Would all be included in terms and conditions of service. As for the omission of the word "terms" in Article 240 of the Constitution, referring to "appointment and conditions", Article 212 expressly mentions that Tribunals shall exercise exclusive jurisdiction in respect of matters relating to "the terms and conditions" of persons in service, including disciplinary matters. What has been omitted in Article 240 has thus been expressly mentioned in Article 212.
16. ' As observed by Dr. Nasim Hasan Shah, J. In Islamic Republic of Pakistan v. Dr. Saffdar Mahmood, PLD 1983 SC 100, the guaranteed rights in respect of the civil servants given in the Constitution were withdrawn when the new 1973 Constitution came into force and the disputes concerning the terms and conditions of service were entrusted to Service Tribunals in the same manner as such matters are dealt with in France by the Administrative Courts. Two completely new provisions were enacted in the Constitution of 1973. The first of these was Article 212, which established administrative Courts or Tribunals with exclusive jurisdiction in service matters and Article 240 whereby the terms and conditions of persons in the service of Pakistan were to be determined under an Act of Parliament instead of as hitherto fore by the Constitution itself. Consequently, the Civil Servants Act of 1973 was enacted on 26-9-1973 to regulate the appointments to and provide for terms and conditions of persons in the service of Pakistan. The Service Tribunals Act of 1973 provides for establishment of Service Tribunals to exercise jurisdiction in respect of matters relating to the terms and conditions of service of all civil servants. The Tribunals deal with appeals by the civil servants against orders made by a departmental authority in respect of any of the terms and conditions of their service.
17. The grievances of the civil servants are thus to be dealt with by the Service Tribunals, which have wide powers to redress any wrong done to the civil servant.
18. ' It has been rightly observed in the above decision of the Supreme Court that "we regret to say that the administration has not so far properly grasped the position, status and the authority of the Service Tribunal to which the civil servants now take recourse with respect to their grievances. The proceedings before them, we have noticed, are taken very lightly by the departmental authority The Service Tribunal is visualised as the exclusive authority to determine all questions, specially those of facts in cases of alleged violation of the terms and conditions of persons in the service of Pakistan.. The appellate authority, viz., Supreme Court will exercise jurisdiction to interfere only in those cases wherein substantial questions of law of public importance are involved."
19. Thus the "terms' are related to "conditions" as inseparable parts, the terms being incidental to the service conditions, cannot be separated from them. We therefore, do not find the Service Tribunals Act, to be ultra vires of the 1973 Constitution.
20. ' The next impbrtant question that arises in this case is whether the Annual Confidential Reports fall under the definition of "terms and conditions of service" and whether the Service Tribunals have authority to determine the feasibility of the remarks contained in the A.C.Rs, and whether the Tribunals should delete, expunge, modify or make observations concerning those remarks. Our attention has in this respect been invited to the decision of Supreme Court in the case of Muhammad Abu Abdullah v. The Province of East Pakistan reported in PLD 1960 SC 164. It has been held in the above decision 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 the appreciation of work and character of their subordinates, having a bearing on their duties". These observations were made in the above judgment in certified appeal from the judgment of the High Court. The appeal was decided unanimously by four Judges of the Supreme Court, viz., Mohammad Munir, C.J. And A.R. Cornelius, Amiruddin Ahmad and S.A. Rahman, JJ. In this respect there are also two other reported decisions of the supreme Court holding somewhat contrary view.
21. In civil petition for special leave to appeal in the case of the Secretary, Government of Punjab v.
22. Ahmad Kamaluddin 1981 SCMR 392 leave was sought to appeal against the judgment of the Punjab Service Tribunal, whereby an appeal filed by the respondent against the adverse remarks recorded by the competent authority was allowed. This petition of the Government was dismissed by two Judges of the Supreme Court who observed as under:- "The recording of the Annual Confidential Remarks, their communication to the officer concerned, entertainment of representation against adverse remarks and their expunction, are all matters governed by detailed instructions of the Government, they can be. Made the basis for departmental and disciplinary action against an official. These reports make up the service record of the officer concerned. Such record is consulted and heavily relied upon for determining the suitability for promotion, posting and disciplinary action. The Civil Servants Act while enumerating the terms and conditions by subsection (2) of section 23, 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 enforce 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'. On the strength of this provision the instructions with regard to the recording of the remarks, their communication and expunction will have the status of rules made under the Civil Servants Act and would be determinative of the terms and conditions of service. The recording of the remarks is, indeed, within the exclusive competence of the superior officer but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appropriate cases."
23. ' The case of Muhammad Abu Abdullah PLD 1960 SC 164 was referred to and it was observed that "The observations made in that decision concerned the jurisdiction of the Courts in Constitutional jurisdiction to deal with adverse remarks. The limitations or the restrains exercised in giving relief in constitutional jurisdiction do not extend to Tribunals and authorities which are enjoined to hear appeals and determine questions of fact as well as of law".
24. ' These observations were repeated in another petition for special leave to appeal in the case of Inspector-General Police, Punjab v. Masood Ahmad Khan 1981 SCMR 840. It was submitted in that petition that appeal lies only against an order pertaining to the terms and conditions of service and that an entry in the Annual Confidential Report does not fall within that category. The learned Judges, however, observed, "We again do not see eye to eye with the learned counsel on this point.
25. Annual Confidential Reports are very much a part of the terms and conditions of the service of an employee. There are positive instructions and rules on the basis of which these entries are made and on the basis of which they can be expunged. It is not denied that they can be made the basis for retiring a person from service."
26. ' It has been argued by Mr. Abdul Sattar Sheikh, Additional A.-G. That the judgment in PLD 1960 SC 194 is a judgment in appeal and, therefore, it is final. That, on the other hand, the observations of Division Bench in petitions for leave to appeal would not be final and it cannot be said that the orders in these petitions overrule the final decision of four Judges recorded in the earlier case.
27. ' We, however, do not find any conflict in these decisions. The earlier judgment in the case of Mohammad Abu lays down very healthy principles regarding expunction of remarks by the appellate authorities, be they the departmental authorities or the administrative Tribunal. There should be no curb on the superior officers to express themselves freely as to their own opinion, concerning their subordinates. They are the best Judges who can appreciate the work and character of their subordinates. The basis for the 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. The basis does not generally form part of the record, nor can the superior officers be called upon to state reasons for holding such opinion. The opinion is formed on the basis of conglomeration of events too minute to be noticed individually and recorded separately. The impact of such events, however, brings into focus a clear image of the person for them. It would, therefore, be very difficult and improper for the appellate authority to form their own view by judging the facts brought before it by one party or the other. Such exercise of discrimination would be hazardous unless the conclusions from such facts appear to be glaring and irresistible or unless the materials before it show mala fides of those remarks.
28. ' It has been argued by Mr. Naimatullah Qureshi that the remarks of the Chief Justice of Sind High Court concerning his subordinate official were biased, the motive being to keep the officer out of consideration for promotion as Judge of the High Court, and they were also mala fide. There should, however, be sufficient material for giving rise to such far-reaching conclusions. Under Article 203 of the Constitution the Chief Justice is responsible for general supervision and control of all subordinate Courts and supervision is not only judicial but also administrative. The appellant, a subordinate judge, has indiscriminately used intemperate language in the memo. Of appeal, attacking the bona fides of the superior head of judiciary, without enumerating any instance which may have caused personal prejudice in the mind of the judge concerning him. There is a presumption of regularity of official acts and the material brought before the Tribunal is wholely insufficient to show mala fides. A mala fide act as reported in PLD 1965 SC 671, is by its nature an act without jurisdiction. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting power to pass the order, but for some other collateral or ulterior purposes. Why should the present Chief Justice want to keep out an honest judicial officer for being considered for promotion as Judge of the High Court, unless he has strong reasons for holding such opinion, on the basis of his legal acumen and intellectual ability; and how can the holding of such opinion be called in question. Even in the case reported in 1981 SCMR 392 it has been observed an appeal to the Service Tribunal for expunction of remarks will lie only in "appropriate cases". It is not every remark that can be termed whimsical, injudicious or inappropriate, nor can the superior officers holding such opinion be attached, for lack of bona fides, unless there is strong material to suggest victimization due to personal reasons. The representations against adverse remarks in such cases are considered by the Full Court and the question of any prejudice for retaining the remarks, even after such representation is heard by all the judges, does not arise. The remarks considered unsuitable due to non-communication within time have already been removed from character roll of the appellant. Though, these rules regarding communication are meant for effecting improvement in the officer concerned on administrative grounds and are not considered justiciable in a Court of Law.
29. ' As a result of the above discussion we do not find any grounds for interfering with the opinion formed by the highest judicial authority G in exercise of his supervisory powers respecting the appellant. Both the appeals are accordingly dismissed with no order as to costs. 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.