1. ' MUNAWAR ALI KHAN (CHAIRMAN).--This appeal is directed against the order of the Education Department, Government of Sind,: dated 3012-1985 communicated to the Director, School Education, Hyderabad Region (hereinafter referred to as the Director) forwarding a copy thereof to the appellant. By the said order, the appellant's request for expunction of adverse remarks was rejected. The appellant served as Head Master, Government Islamia High School, Khipro (hereinafter referred to as the said School) from 15-8-1963 to December, 1985. During posting in the said School he was conveyed four adverse reports; first, ratting to year 1978 by the Director's letter dated 30-6.- 1980, second, for the year 1979, by the Director's letter dated 29-4-1985, third with regard to year 1980 by Director's letter dated 22-2-1982; and fourth, pertaining to year 1981, by Director's two letters dated 22-2-1982 and 29-4-1985. The appellant made separate representations seeking expunction of each of the said advere reports. Excepting his representation against adverse report of 1978 which he had addressed to the District Education Officer, with a copy thereof forwarded to the Director his remaining three representations were made to the hitter authority through District Education Inspector. Some of the representations were rejected by the impugned order and hence this appeal.
2. ' We heard the arguments of the learned counsel for the appellant and also of learned Government counsel (Mr. Imdad Hussain Kazi). We also went through the record relevant for disposal of the appeal.
3. ' It is an admitted position that all the four representations made by the appellant were ultimately forwarded to Education Department for disposal. This was obviously done in compliance of the requirement, of para. 43 of the Instructions about Confidential Reports (hereinafter referred to as the said Instructions). The said para. Requires all representations about expunction of adverse remarks to be made to the appointing authority through proper channel. The appellant being in Grade-17 at the relevant time, his appointing authority was Minister (Secretary) vide sub-rule (4) of rule. 3 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Since the order impugned in this appeal was passed in the Education Department, it raises a presumption that the said order had been passed by the competent authority.
4. ' As for the question of limitation it may be noted that the impugned order passed on 30-12-1985 was endorsed to the appellant by letter dated 9-1-1986 which he was stated to have received on 22-3-1986. The appellant has made this assertion in the opening paragraph of the memo. Of appeal. In support of his reversion he has sworn affidavit. Accordingly we accept the appellant's statement that he had received the impugned order on 22-3-1986. Consequently, the appeal against the said order that he has filed on 21-4-1986 is within time.
5. ' Coming to merits of the case, it was found that the impugned order covered only two adverse reports of 1979 and 1981. This was stated by the learned Government counsel, after consulting the Departmental representative Qazi Muhiuddin who was present in Court and the record he had brought with him. As regards the remaining two representations made by the appellant our attention was drawn to paras. 3 and 5 of the written statement filed on behalf of the official respondents. It is disclosed in these paras. That the appellant's representations against adverse reports of 1978 and 1980 were still under consideration which, in other words, means that no final decision was yet taken on the said representations. The representation against adverse report of 1978 was made on 16-7-1980 and that against the adverse remarks for the year 1980 was filed on 253-1982. As provided in section 4 of the Sind Service Tribunals Act, 1973, the appellant had choice either to wait for the final decision on the said representations or in the alternative to approach this Tribunal within 30 days following the expiry of 90 days period from institution of above two representations. Since he obviously chose to wait for the decision of the appellate authority, the cause of action accrued to him only after such decision. As for his representations with regard to years 1978 and 1980 which are still pending, he was free to file fresh appeal after the said representations were rejected.
6. ' With exclusion of adverse reports of 1978 and 1980, we are only left with adverse remarks relating to years 1979 and 1981. On perusal of the Director's letter dated 29-4-1985 whereby the report of the year 1979 was sent to the appellant, it was noticed that the adverse observations of the reporting authority were depicted in the following terms: "2. It has however been reported by the Reporting Officer that you look younger and smart but behave normally slow. You are advised to remove these defects in your own interest."
7. ' We have gone into depth of the above remarks in an attempt to ascertain the sense they have conveyed. It appears to us that first portion of the remarks namely "you look younger and smart" is rather in the nature of complements calculated to boost the spirits of the official reported upon.
8. Even the later portion of the remarks namely "behave normally slow" does not carry any sense because behavior is either good or bad but to say that it is slow carries no meaning. Consequently, such remark is inoffensive and cannot be regarded as adverse calling for any intervention by the higher authority. May be the appellant's representation against above remarks was rejected for the reason that appellate authority did not consider them adverse and hence did not think fit to interfere. Since the order of rejection was not elaborate, giving reasons for rejection of the appellant's representation, it would not be entirely unjustified in drawing the above conclusion. In any case we hold that the marks given in the year 1979 as reproduced above are not adverse and therefore they should not be used as such against the appellant.
9. ' Now we proceed to deal with the adverse report relating to the year 1981. It was conveyed to the appellant by two letters. By letter dated 22-2-1982, the adverse report for over three months i,e, from 10-9-1981 to 31-12-1981-was communicated to him. Subsequently, the adverse report for the full year 1981 was conveyed to the appellant by the letter dated 29-4-1985. However, it reflected two periods separately; one period extending from 1-1-1981 to 9-9-1981 and other stretching from 10-9- 1981 to 31-12-1981. For the first period the appellant was rated as below average with regard to his perseverance and devotion to duty, capacity to guide and train subordinates and coordination and tact. In pen picture he was shown to be a man of odd attitudes having no interest in his professional performance. We were, however, informed that these remarks were not countersigned by the next higher authority. This was admitted by the learned Government counsel after consultation with the record made available to him by the Departmental representative who had come to assist him. As mentioned in para. 8 of the said Instructions the report initiated by the immediate superior authority had to be countersigned by the next higher authority provided that in the case of officers in Grade-17 and above (previously class II and other Gazette officers) the final countersigning authority shall be Head of Attached Department or Regional Head concerned as the case may be. Thus the Report initiated by the immediate superior authority would not be complete unless it was countersigned by the higher authority concerned. Since the Report given to the appellant for the period between 1-1-1981 and 9-9-1981 has not been countersigned, it cannot be treated as complete report within the meaning of para. 8 hereinabove. As such it should not have been conveyed to the appellant. May be the countersigning authority would not accept the appellant's assessm ent made by his immediate superior authority. In that eventuality the Report given by the lower authority would have washed off and the stage of communicating the report to the appellant would not have come. It is true that appellate authority has rejected the appellant's representation for expunction of the above report. Since the appellate authority did not have the views of the countersigning authority before him, the possibility cannot be ruled out that the representation was rejected on that ground particularly when no reasons have been assigned for rejection of the representation. Even otherwise the appellate authority had no jurisdiction to entertain the representations for expunction of the adverse remarks until the report challenged before him was complete and the views of the countersigning authority were also available to him.
10. For these reasons we hold that the report Mr the period from 1-1-1981 to 9-9-1981 cannot be used as adverse report against the appellant. However, it is open to the Department to have the said report, completed by the countersigning authority. In case the said authority endorsed the report given by the immediate superior authority the appellant would have right to challenge it before appropriate authority (i,e, appointing authority). Thereafter if need be, he may approach this Tribunal by filing fresh appeal.
11. 'Lastly there is report for the period of a little over three months (i,e, from 10-9-1981 to 31-12-1981). It is as under: "(1) Ability to plan, organize and supervise work.
(2) Quality and output of work.
(3) Perseverance and devotion to duty. Below average.
(4) Capacity to guide and train subordinates.
(5) Sense of responsibility:
(a) General
(b) Financial Matters. "smiling has no charm and change over his face".
12. ' The learned counsel for the appellant submitted that the above report was initiated by the Reporting Officer who had biased mind. According to learned counsel his bias was apparent from the language he has used in "pen-picture". He submitted that it was obvious that the Reporting Officer did not even like the face of the appellant and as such no better report was expected from him. He further invited our attention to the results of the said school, during the period when the appellant was its Head Master. We have gone through the said results. They are contained in the certificate issued by the Head Master of the said School. These results are of Matric Examination (Class-X Annual) from 1975 to 1981. According to these results the pass percentage ranges from minimum of 70% in year 1976 to 97% in year 1981. Thus, the said school had produced best results (97%) for the year 1981 for which the appellant who was Head Master of the school was awarded "Below average" report in respect of the columns describing various attributes of the appellant's personality. In our opinion it is the cumulative effect of the characteristics mentioned in the said columns which can bring about such commendable performance of the school. Evidently the report earned by the appellant for the year 1981 does not tally with the performance shown by the school during the year.
13. ' Apart from above we have also perused the ACRs given to the appellant for three years preceding 1978 and for two years subsequent to 1981. For the years 1975, 1976 and 1977 he was rated, good and efficient Head Master. In pen-picture for the year 1977, the reporting authority made the following observations which were also endorsed by the countersigning authority: "Best teacher in Maths. Willing worker and successful administrator. Takes keen interest for betterment of education and reliable person."
14. ' The ACR for 1982 was not available on record. However, in the two years following that year he earned commendable reports. For the year 1983 he was given "good" report whereas for the year 1984 his overall assessm ent was mentioned A-One.
15. ' Our attention was also invited to the latest "Instructions for Filling of the ACR Forms" appended with ACR Form. The instruction at S. No, 4 printed on ACR form reads as under"
16. "4. Reporting Officer is expected to counsel the officer being reported upon about his weak points and advise him to improve. Adverse remarks should normally be recorded when the officer fails to improve despite counseling."
17. It is clear from the above instruction that before recording formal adverse report about any official the Reporting Officer is required to sound the said official a note of caution advising him to mend his defects. It is after such counseling is unheeded by him that adverse report is recorded in respect of the defaulting official. The record is absolutely silent if the appellant was even tendered such advice. The learned Government counsel after consultation with the departmental representative and the record he had brought to assist the said counsel frankly conceded that there was no trace suggesting that the appellant was counseled in terms of above instructions, prior to recording of the adverse report under consideration. We are of the view that non- compliance of the said instruction did not justify the recording of the adverse report in question.
18. ' In the light of above discussion we have come to the conclusion that the adverse report for the period from 10-9-1981 to 31-12-1981 was unjustified and therefore, should not be allowed to remain on the record. Accordingly we accept the appeal and order expunction of the said report. The parties will bear their own costs.