1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant, Krishan Kumar, joined Education Department, as a Teacher, with effect from 1-9-1956. After he did B.T. In 1961 he was promoted to the post of Headmaster/Deputy Education Officer on 15-4-1972. He was Headmaster, Government High School.
2. Perumal, District Sanghar when he received Memo No, OSD/SC/755-56, dated 27th April, 1985 from the Director School Education, Hyderabad whereby adverse report given to him by the District, Education Officer (Male), Sanghar for the period from 1st January, 1982 to 9th September, 1982, was communicated to him. On receipt of the said adverse report the appellant made representation dated 21st May, 1985 to the Director, School Education, Hyderabad. On 5t November, 1985 he received a Government's letter through Director, Such Education, Hyderabad, intimating him that his request for expunction of the adverse remarks was rejected, as time-barred. Thereupon, the appellant hastened to make a back reference clarifying that his representation was within Tim Ultimately on 13-5-1987 he was informed vide Government's letter dated 22nd April, 1987 received through Director, School Education, Hyderabad Region (vide his letter, dated 4th May, 1987) that his request for expunction of the adverse remarks contained in the A.C.R. For 1982 was rejected.
3. Thereafter, the appellant preferred a departmental appeal dated 6-6-1987 to the Chief Secretary through proper channel and as no decision was made on that appeal within the period of 90 days the appellant filed the present service appeal before this Tribunal, with prayer that adverse remarks contained in the A.C.R. Of 1982 be expunged.
4. ' We heard Mr. Manzoor Ali Khan for the appellant in support of the appeal and Mr. Imdad Hussain Government counsel argued the case on behalf of the official respondents. We also went through the necessary relevant record.
5. ' The preliminary objection raised by the learned Government counsel was that the appeal was hit by limitation. In this connection we have noticed that the adverse report for the year 1982 which the appellant has sought to be set aside was communicated to him by the Director's letter dated 27th April, 1985. As disclosed in the memo of appeal, the departmental appeal was made to the Chief Secretary on 6-6-1987. The question arose how the period between 27th April, 1985, the date of receipt of the adverse report and 6-6-1987, the date of departmental appeal was to be accounted for and whether the representation first made to the Secretary to Government of Sind through Director for expunction of the adverse report during the said period would not be considered as departmental appeal. It may be pointed out that departmental appeal in the requirement of proviso (a) to section 4 of the Sind Service Tribunals Act, 1973. The said proviso reads as under: "(a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred;"
6. ' It would appear from the above proviso that the departmental appeal is nothing but an appeal, review or representation provided under the Sind Civil Servants Act, 1973 or any rules. In this connection we may also refer to section 23 of the Sind Civil Servants Act, 1973 which is reproduced as under:- "23. (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed, be made within thirty days of the date of such order.
(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a high post or grade."
7. It is clear from the above section that if a civil servant is aggrieved by any order or class of orders relating to his terms and conditions of service, he may as a matter of right, prefer appeal or apply for review of such order if he is permitted to do so under the rules applicable to him. In case no provision for appeal or review exists, still he is given right to make representation against such order within thirty days of the communication to him of that order.
8. "The instructions about the Confidential Reports" (hereinafter referred to as the said instructions) are in the nature of the rules. The adverse report was admittedly given to the appellant under the said instructions. Accordingly as required by the said instructions, he made first ever representation for expunction of the adverse remarks to the next higher authority namely the Director, School Education. But as the adverse report was countersigned by the said Director, he had thereby become party to the report. Precisely for this reason the Director seemed to have passed on the representation to the Secretary to Government of Sind for consideration. That is why the Government twice conveyed its orders to the appellant that his representation for expunction of the above remarks was rejected; first time when he was simply told that his representation was time-barred and second time, he was informed that his representation was rejected obviously on merits. Thus, the appellant availed his right of making representation to the prescribed authority against the adverse report given to him, but somehow the same was rejected. In this way the appellant fulfilled the requirements of not only section 23 of Sind Civil Servants Act but also those of proviso (a) to section 4 of the Sind Service Tribunals Act, 1973. Further, appeal to the Chief Secretary was therefore not called for. By making such appeal, the appellant wasted time and got the present appeal time-barred. It is appellant's own admission that he was last informed about the Government's decision on 135-1987 that his request for expunction of the adverse remarks was rejected. Accordingly he was to file this appeal within 30 days from the said date. But instead of filing this appeal latest by 12-6-1987, he delayed it by about four months and filed the same on 1- 10-1987. For these reasons we sustain the objection raised by the learned Government counsel and hold that the appeal is time-barred.
9. ' As for merits of the case, it would be useful to reproduce the relevant portion of the communication by which the adverse remarks for the year 1982 were conveyed to the appellant.
10. The said portion reads as under: 'No, OSD(LSC)85/55-56, dated 27-4-1987. . CONFIDENTIAL.
11. ' My dear Krishan Kumar While going through the Annual Confidential Report for the year 1982 it reveals that the Reporting Officer has given you the following adverse remarks.
(1) Part II.
4. Adoptability. C-Review Average Rigid Inflexible.
(2) Part IV 1. Power of expression.
(a) Written C-Below Average. Clumcy and Vague.
(3) -do- 4. Supervision and Guidance C-Below Average. Lacks control, in effective.
(4) -do- 5. Ability to take decision: C-Below Average. Part V (a) Pen Picture.
(6) Mr. Krishan Kumar Sharda is a short stature stout and well-built Head Master.
(7) He is of very weak submissive and grumbling nature."
(8) .
(9) .
12. ' Severely criticizing the above report, the learned counsel for the appellant contended that the said adverse report was the result of personal bias and dislike of the reporting officer. In support of his argument the learned counsel referred us to the pen-picture of the appellant as depicted by him.
13. We have closely examined the pen-picture. We find nothing in it to justify the conclusion drawn by the learned counsel. Apart from giving the description of the appellant's physical structure as it is, the pen-picture speaks of the traits of his behaviour. No exception can be taken to the language used in the pen-picture excepting as regards solitary word 'grumbling'. Even this word, in our opinion, is not offensive so that it needs be expunged. It was admitted in course of the arguments that the appellant time and again pressed for good teachers for his school. In other words he always complained about lack of good teachers in the school. Repeated complaints in this regard may have been termed as grumbling on the part of the appellant. Such observations need not be given undue importance and held as something adverse for the appellant.
14. ' Further, arguments of the learned counsel was that excepting the solitary report for 1982, the appellant's confidential record throughout has been clean and free from any blemish. He based this argument on the ground that no adverse remarks of any other year were ever communicated to the appellant. The learned counsel for the appellant was at loss to understand how the appellant's deterioration would take place so suddenly that his record otherwise being commendable would go downward and would fall below average for a brief period of only 9 months. It was further submitted that the appellant being a member of minority community the District Education Officer was not favourably disposed towards him. In order to appreciate the arguments advanced on behalf of the appellant, we went through the personal file of the appellant containing A.C.Rs, for other years. Although we did not come across any adverse entry against him, yet in most of the reports the appellant has been depicted as an average officer. We particularly examined the reports for 1980 and 1981, preceding the year of his adverse report (1982). In both the years, he has been rated as average official. Thus, having earned average report continuously for two years, we are not surprised if he fell below average in the following year of 1982. Such change about his assessm ent cannot be construed as sudden, having occurred overnight nor can it be held as having flowed from a biased mind. We should also bear in mind that standard of assessm ent varies from one reporting officer to another. Apart from natural faculties of the Assessing Officer, some of them are strict in assessment whereas others are liberal and show leniency in reporting.
15. ' Moreover, no motive has been attributed to the District Education Officer for giving adverse report to the appellant. There existed no animosity between the two, which may be the cause of the adverse report. We regret we cannot agree with learned counsel that the adverse report given to the appellant was the result of the psychological effect en acted by the physical hearing of the appellant, on the mind of the Reporting Officer. We also reject the argument that the Reporting Officer disliked the appellant only because the latter happened to be Hindu. It is also noteworthy that the Reporting Officer was not alone in his assessment about the appellant for the year 1982.
16. The report for the said year was admittedly endorsed also by the next higher authority namely the Director by countersigning the same. Furthermore, the appellant's representation made to the Secretary to the Government of Sind for expunction of the adverse report also failed. Thus, both the Director and the Secretary expressed their unanimity with the assessment made by the Reporting Officer. Therefore, we see not an iota of justification for expunging the adverse report in question.
17. ' As a last resort, the learned counsel for the appellant pressed for expunction of the adverse report on the ground of delay in communicating the same to the appellant. According to him though it related to the period from 1-1.1982 to 31-9-1982, it was conveyed to the appellant 2-1/2 years late, on 27th April, 1985. In support of this argument the learned counsel placed reliance on the judgment of this Tribunal delivered in the case of Rana Abdul Waheed reported as 1987 PLC (C.S.) 434. We are sorry to say that the reported case relied upon by the appellant's counsel is of no avail in the instant case. All that has been emphasised in the reported case is that the late communication of the adverse report should be discouraged as such practice was not consistent with para. 34 of the said instructions. However, the appellant's prayer is for expunction of the report communicated to him late. Of course late communication of the A.C.R. Is deprecated on the ground that it loses its effect with passage of time, but it cannot be taken as the reason to expunge the same. The expunction of report has obviously the effect of washing off such report. In our opinion existence of the report, of whatever nature, in the personal file of the official concerned is different from the effect that such report carries in relation to terms and conditions of the said official. Whatever may be the. Effect of the adverse report given to the appellant which can be decided in the light of circumstances obtaining at relevant time, we see no reason to expunge the same.
18. ' For above reasons there is no merit in the appeal which is accordingly dismissed with no order as to costs.