Prof. Muhammad Rashid, Assistant Professor, Government College, Liaqatpur, District Rahimyar Khan has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Secretary, Government of the Punjab, Education Department, Director Public Instruction (Colleges), Punjab, and Director of Education (Colleges), Bahawalpur Division as respondents.
2. By virtue of this appeal, the appellant has prayed that the adverse remarks covering the period from 1-1-1968 to 31-12-1968, 25-4-1969 to 5-9-1969, 1-1-1971 to 20-5-1971 and 10-5-1975 to 31-12-1975 communicated to him.
3. Brief facts of the case are that vide D.O. Letter No. 2172/CA-5, dated 9-3-1985, Deputy Director (Colleges), Bahawalpur Division communicated the following adverse remarks to the appellant on behalf of the Director of Education, Bahawalpur Division: Year Adverse remarks
(i) 1968 He remains a bit aloof. Adheres socialist ideals.
(ii) 25-4- 49 to 5-9- 1969Claims to be a champion of under-dog. He has leftist leavings which may become embarrassing for him and others around him.
(iii) 1-1-71 to20-5-71Muhammad Rashid was arrogant and insolent. He did not take interest in E/C activities assigned to him. The output in E/C activities was nil. Students were not satisfied with him. He did not keep the decorum of the office. He was transferred under complaint.
(iv)10-5-75 to31-12-75Does not take interest in his work. I wish he could be more cooperative and helpful.
On 26-3-1985, the appellant made a representation to the Education Secretary, Punjab Government requesting that the adverse remarks communicated in the impugned order, dated 9- 3-1985 may be expunged. However, the representation was not decided by the Education Secretary within the statutory period of 90 days. Hence this appeal.
4. I have heard the learned counsel for the appellant and the learned Deputy District Attorney and have also perused the Record carefully with their assistance.
5. During the arguments the learned counsel for the appellant submitted the following main points:--
(i) The adverse reports relating to the period from 1968 to 1975 were conveyed to him in one lot after a period of 10 to 17 years and this was a clear violation of Government instructions, dated 17- 7-1982 on the subject;
(ii) On the recommendations of the high-powered Provincial Selection Board, the appellant was promoted to NPS 18 w.e.f. 1-9-1976 under orders of the Punjab Governor. It was, therefore, obvious that all the adverse reports communicated to the appellant vide impugned order, dated 9-3-1985 were ignored by the Provincial Selection Board and the Governor of the Province.
(i.e) Vide impugned order, dated 9-3-1985, only the adverse remarks were communicated to the appellant without giving him copies of the whole reports containing the adverse remarks as required under item No. 33 of instructions about Confidential Reports as amended vide No. SORIV (S&GAD)-142/72, dated 17-7-1982. By doing so, the appellant was denied an opportunity to make an effective representation against the adverse remarks.
(iv) That all the adverse remarks were unjustified and baseless. In this connection the learned counsel for the appellant also invited attention to the adverse remarks regarding transfer on complaint relating to the period from 1-1-1971 to 20-5-1971 and submitted that the transfer of the appellant from a backward place like Muzaffargarh to Government Sadiq--Egerton College, Bahawalpur--one of the leading institutions of the Province situated in his own place of domicile-- could not be considered as a transfer on complaint under any circumstances.
(v) That the adverse remarks were conveyed to him after a of 10 to 17 years with mala fide intention to withhold his move-over. From BPS 18 to BPS 19 which was under consideration of the Government.
6. The learned Deputy District Attorney adopted the parawise comments given by the respondents and submitted that:--
(i) The adverse report for the period from 1-1-1968 to 31-12-1968, 25-4-1969 to 5-6-1969 had since been expunged by the Departmental Appellate Authority.
(ii) The Reporting Officer for adverse remarks relating to the period from 1-1-1971 to 20-5-1971 had since died and, therefore, no justification was available for these remarks.
(i.e) Reporting Officer for the adverse remarks relating the period from 10-5-1975 to 31-12-1975 had recommended that the adverse remarks given by him may be expunged.
7. I have carefully considered the arguments advanced and submissions made by both sides alongwith the record of the case. In this connection attention is invited to the following:--
(i) According to memo. No. 9/7-85/22130/S&I(3), dated 30-4-1986, from the Director Public Instruction (Colleges), Punjab to the Director (Colleges), Bahawalpur Division, the adverse remarks contained in Confidential 114orts of the appellant covering the period 1-1-1968 to 31-12-1968 and 25- 4-1969 to 5-9-1969 have been expunged by the Departmental Appellate Authority. Therefore, the appeal in respect of these adverse remarks has already borne fruit.
(ii) The justification of the Reporting Officer in respect of adverse remarks for the period 1-1-1971 to 20-5-1971 is not available as the Reporting Officer has already expired. Vide PLD 1982 SC 13 (A J & K) 124, the superior Courts have ruled that one of the important principle of natural justice is that the party is entitled to know why the matter has been decided against it. In this particular case, in the absence of any justification from the Reporting Officer, the appellant has been denied the right to know why he was given adverse remarks. In this connection, it would also be relevant to quote the following from the judgment of this Tribunal in Appeal No. 171/632 of 1984--Mian Maqsood Alam v. Secretary Forestry etc. "Furthermore we find that the Reporting Officer who gave these adverse entries to the appellant in the years 1964 and 1966 is dead and the respondents in this case have failed to justify the assessm ent of said entries against the appellant. Therefore, these entries are liable to be expunged."
This is an identical case where the Reporting Officer has died and the respondents have failed to come up with any justification for the adverse remarks recorded by him.
(i.e) According to para. 30 of the "Instructions about Confidential Reports." The Reporting Officer should be in a position to justify his views, if called upon to do so". However, the Reporting Officer who recorded the adverse remarks for the period from 10-5-1975 to 31-12-1975 has failed to give any justification for the adverse remarks recorded by him. On the contrary, vide his letter dated 16- 9-1986 to the Director of Education (Colleges), D.G. Khan Division, the Reporting Officer has inter alia recommended as follows:- "I recommend that the remarks may kindly be expunged."
(iv) The adverse remarks have been communicated to the appellant after a delay of 10 to 17 years.
This is a clear violation of paras. 33 and 34 of. "Instructions about Confidential Reports", Paras. 33 and 34 are reproduced below:- "33. It is emphasized that the Annual Confidential Reports contain the assessment of the superior officers about a civil servant's character. If the confidential report of a civil servant contains any adverse remarks, whether remediable or not a copy of the whole report should be furnished to him at the earliest opportunity with a D.O. Letter, a copy of which should be signed and returned by the civil servant concerned in acknowledgement of the report. It is essential that the civil servants should be given a fair deal by communicating to them the whole report containing adverse remarks so that they may endeavour to remove the defects and improve their performance or be in a position to represent where necessary."
"34. The timely communication of the report containing adverse remarks is of paramount importance. The authorities designated to communicate the adverse remarks should, therefore, ensure that the whole report containing adverse remarks is communicated to the civil servant concerned at the earliest opportunity and in any case within one month from the date the report is counter--signed and completed. A serious view should be taken of any failure on the part of the officer/ official concerned to furnish a copy of the report containing adverse remarks to the civil servant reported upon within the stipulated period and disciplinary action taken against the person(s) responsible therefor. In any case the report containing adverse entries should be furnished to the civil servant at any time it comes to notice."
(v) One of the objectives of communicating adverse remarks is to enable the officer concerned to remedy his defects. However, the inordinate delay of 10 to 17 years in communicating such remarks when much water has already passed under the bridge, has rendered this delayed communication meaningless. No adverse remarks after 1975 have been communicated in the impugned letter dated 9-3-1985 which shows that the officer earned much better reports after 1975. Further, the high-powered Provincial Selection Board ignored the adverse remark subsequently communicated in the impugned letter dated 9-3-1985 and recommended the officer for promotion to NPS 18. This recommendation was approved by the Government and the officer was accordingly promoted in spite of these adverse remarks. The communication of these adverse remarks after a delay of 10 to 17 years was, therefore, inconsistent with the objectives for which such remarks are communicated to the officer concerned and rendered their communication meaningless at this late stage.
8. In view of the above detailed analysis of the case supported by ruling given by superior Courts and the earlier judgment of this Tribunal, the appeal is accepted and the remaining adverse remarks covering the period 1-1-1971 to 20-5-1971 and 10-5-1975 to 31-12-1975 are hereby expunged.
There will be no order as to costs. Judgment be communicated to the parties.
M. Y. H./108/Lb./S Year Adverse remarks
(i) 1968 He remains a bit aloof. Adheres socialist ideals.
(ii) 25-4- 49 to 5-9- 1969Claims to be a champion of under-dog. He has leftist leavings which may become embarrassing for him and others around him.
(i.e) 1-1-71 to20-5-71Muhammad Rashid was arrogant and insolent. He did not take interest in E/C activities assigned to him. The output in E/C activities was nil. Students were not satisfied with him. He did not keep the decorum of the office. He was transferred under complaint.
(iv)10-5-75 to31-12-75Does not take interest in his work. I wish he could be more cooperative and helpful.