JUDGMENTMOBEEN AHMAD KHAN, MEMBER.- By this common Judgment we propose to dispose of three appeals namely appeal No.84 of 1987, 86 of 1988 and 91 of 1988 all filed by the appellant as the issues factual as well as legal involved in these appeals are identical and inter linked. This common judgement is also considered appropriate with the view that the adverse remarks except for the year 1984 expunction of which have been sought by the appellant, arc initiated by one and the same officer namely Mr.Bahauddin Sirhindi, Conservator of Forest under whose administrative control the appellant worked as Divisional Feresl Officer during the impugned calendar years.
2. The adverse remarks awarded to Mr. Bashir Ahmed Nizamani Divisional Forest Officer for the years 1983, 1984 and 1986 were communicated to him under Respondent No.2 i.e. Secretary Forest Department. Government of Sindh letters No.WL&FT(S01)6(l)84 dated 3.4.10X4, No.F.T(S01)6( 1 )1987- A, dated 01.9.1988 and F.T.(S01)6(1) 19877- B. Dated 22.9.1988 separately. The appellant made a departmental representation/appeal against the adverse evaluation made in the year 1983 which was rejected by the Chief Secretary, Govt, of Sindh vide his letter No.5.O. III-(S&GAD)2-3/86 dated 5.2.1987. The rejection order of the Chief Secretary was final as conceived under the rules on the subject. Despite this mandatory provision, the appellant preferred second appeal/representation dated 25.3.1987 to the Chief Minister Sindh which too was filed with no orders. The S&GAD informed the appellant on 12.10.1987 that, "as laid down in S&GAD circular letter No.SOR(S&GAD) 14-2/72 dated 9.6.1973 there is provided only one right of making representation, which requirement was completed when Chief Secretary rejected his representation."
3. Being aggrieved with the above position, the appellant has preferred the appeal bearing No.84 of 1987 on 12.11.1987 though the appeal as per the rules and standing instructions on the subject was to be filed before this Tribunal within 30 days of the receipt of the final rejection order of the Chief Secretary. The appeal was thus rendered time barred as the appellant had misconceived the mandatory provisions on the subject. The advocate of the appellant Mr.Manzoor Ali Khan has filed the application for condonation of delay on the ground that "the appellant sought remedy with due deligence on a wrong forum with bona fide belief." The plea of the advocate of the appellant however found favour with the double bench consisted of my learned brothers namely Dr. A.Q. Qazi and Mr. Ali Nawaz Bohio who by an order dated 8.11.1988 allowed the condonation application and decided to proceed with the matter on merit alone.
4. The above bench of this Tribunal was reconstituted on 28.3.1989 consisting of Justice (Rtd)
Munawar Ali Khan and the undersigned since both the above cited learned members were transferred during the course of the trial of this appeal. ,
5. In order to give fair deal to the issues raised in all the three above cited appeals, it was considered appropriate to scan the adverse evaluation made in the three different years one by one and discuss the common issues with common findings. Mr.Manzoor Ali Khan argued the case of the appellant whereas Mr. Salman Ansari represented the official respondents. It would be unfair on our part if no compliments are given to Mr.Manzoor Ali Khan who duelled at length to present the case of the appellant in the best possible manner to uplift the image of the appellant which due to repeated adverse A.C.R.'s has become hazy and shady.
6. The appellant joined Govt Service in the Sindh Forest Department as an Assistant Conservator of Forest (B.S-18) it has thus rendered over 13 years service by the time the present appeal was filed.
During these 13 years service, the appellant's performance was adversely evaluated in the years, 1977, 1978,1983 1984 and 1986. Incidently no appeal has been filed for the quashment of the adverse remarks of 1977, the representation against with as stated in the memo of appeal had been filed with the appropriate authority in the department. This also manifestly shows that the appellant encountered adverse evaluation of his performance right in the initial stages of his service career which persisted in the subsequent years as well. The adverse remarks recorded in the annual confidential report, 1978 were softened by the Countersigning Officer i.e. Chief Conservator of Forest and hence were not communicated to the appellant. However the service career of the appellant has been punctuated with adverse reports with shortgaps. appellant was asked to make earnest efforts henceforth and improve his work in the above categories of assessm ent. He was also advised to devote whole hearted attention to his professional duties so that such an occasion does not arise in future. The adverse remarks attributed in the impugned report point our to such lapses and deficiencies in the appellant w'which are not created in a year or so, but are related to inherent qualities. They arc no such attributes that they surface only when the appellant is put under the subordination of1. INTEGRITY
(a) General Below average.(b) Intellectual: Below average.2. FINANCIAL RESPONSIBILITY Below average.3. PEN PICTURE Rather irresponaible in financial matters.4. COUNSELLING Advised to improve upon 'Protection of Forests'but without anyresult.
5. ASSESSMENT OF PERFORMANCE Protection of Forests under him was poor.GENERAL Undependable and shirks responsibility.While communicating the above remarks through a demy official letterComing to the actual adverse remarks of 1983 which have been impugned by the appellant for expunction, it is relevant that the same are reproduced below for proper evaluation and criticle examination.Mr. Bahauddin Sirhindi against whom the appellant has alleged bias and prejudiceness. It would be quite relevant if concluding lines of para 18 at page 10 of the Memo of Appeal are reproduced as the same is the main crux of the case and the foundation argument which has been pleaded for expunction of remarks:
7. "It is respectfully submitted that the traits which have formed the subject-matter of the adverse remarks are such which linger on with a person. These do not develop suddenly and then disappear abruptly. Thus it would be against the human tendancy that these traits surfaced in the years 1977, 1978, 1983 and 1986 while working under this particular Reporting Officer, and the same traits remained extinct during the years 1974 to 1976, 1979, to 1982, 1984 and 1985, when the appellant worked under other Reporting Officers, some of whom were more seasoned and senior then Mr. Bahauddin Sirhindi. These facts loudly speak about the said Reporting Officer's bias against the appellant."
8. We have carefully gone through the memo of appeal as well as the written statement filed by the Govt, respondents and we do not come across any particular instance which could establish personal enemity or bias between the appellant and the reporting officer namely Mr.Bahauddin Sirhindi. The only clue wherein the appellant has tried to establish some prejudiceness is found at para 9a at page 5 of the memo of appeal which reads as under:
9. "The appellant having been posted as Divisional Forest Officer, Afforestation divivion. Sukur, tookover the charge of the post on 19.1.1983 and commenced his work in right earnest. Only a few days after appellant's posting, the Reporting Officer Mr.Bahauddin Sirhindi started sending to the appellant annonvmous applications containing various types of frivolous and vague allegations by the first week of March, 1983, the appellant had received about 9 such applications. On 7th March, 1983, the Reporting Officer sent to the appellant a letter on the subject of "Influx of wood material in the town of ... And brick kilns and Saw Mills:, and in this letter he also referred to the said 9 applications." (The letter dated 7.3.1983 is not included in the annexures).
10. The contents of the above para so carefully worded that it does not clearly indicate whether the annonymous applications containing various types of frivolous and vague allegations against the appellant were emanated by the Reporting Officer Mr. Bahuaddin Sirhindi himself or they were authored by some unknown persons. It is apparently clear that these annonymous application could not be sent at the instance of Mr.Bahauddin since no personal enmity or some family dispute has been identified neither in the memo of the appeal nor asserted at the stage of arguments. It is however clear from the simple reading of this para that the author or authors of these applications were in the know of the activities of the appellant but for obvious reasons avoided to identity himself/thcmselve. Admittedly there can not be any smoke protected against the annonymous applications if the allegations are general in nature and contain baseless and false information. Mr. Bahauddin Sirhindi being a senior officer of the Forest Department was conversant of the legal position of these annonymous applications and so instead of probing into the truthfulness of the allegations, preferred to forward them to the appellant to cxerise necessary care and caution in the' public dealings.
11. The contention of the appellant that Mr. Bahauddin Sirhindi is the only officer who has given him adverse remarks in his ACR is not all correct. It however seems that whenever the appellant came under that administrative control of Mr. Bahauddin Sirhindi Conservator of Forest, the appellant was uneasy as he was off and on goaded and persuaded to improve his performance. It is also established from the record that Mr.Bahauddin Sirhindi showed no leniency in evaluating the performance of the appellant, since where other reporting officers assessed "average" Mr. Bahauddin Sirhindi assessed "below average." The appellant's contention that with the exception of this impugned A.C.R, he enjoyed unblemished, meritorious service record for ever 13 years is also not wholly true. The appellant joined service in October, 1974 and accordingly were trace back his service record since 1975 on words. In most of the years he has been adjudged average and below average. In 1975 the reporting officer (Mr. G.D.Memon) though assessed him "average in the financial responsibilities" in the same year (Mr.Hameed Ahmed, Chief Conservator of Forest who in the year 1976 when he in the capacity of first counter signing officer remarked as under: "His over all performance on a senior charge like Hyderabad Afforestation Division was far from satisfactory. Being a local resident from Hyderabad district, he got involved in the local politics.
There were numerous complaints about his personal integrity. Lacks the desired initiative and drive expected of a young direct officer."
12. These observations and assessments of reporting and first countersigning officers were considered as "constructive" by the Secretary Wild Life and Forest Department Govt, of Sind who desired the same to be communicated to the officer. In the year 1978 he has again earned below average remarks for his quality and out put of work integrity and sense of responsibility but the same were modified and sense of responsibility but the same were modified and improved by Mr. Hameed Ahmed, Chief Conservator of Forest because of commendable work performed by the appellant in Hyderabad and Thatta Divisions in 1980. This position continued . Till 1982 but in 1983 - which is the impugned year the appellant demonstrated the signs of deterioration. The fact is not denied that the adverse remarks were recorded by Mr. Bahauddin Sirhindi, Conservator of Forest against whom the appellant has alleged bias and prejudiceness. This allegation however does not hold ground since the first and second countersigning officers visly T.A. Ansari. Chief Conservator of Forest and Mr.Hamced Ahmed, Secretary Wild Life and Forest Department Govt, of Sindh instead of disagreeing with the reporting officer added their adverse personal observations as well. The first countersigning officer jotted down the following remarks.
"I entirely agree with the assessm ent of the Reporting Officer. At best, Mr. Nizamani is an average officer, not fit for promotion".
The second countersigning officer Mr.Hameed Ahmed the concerned Secretcry of the Department observed as under: "I agree in general with the above assessment. Undependable and shriks responsibility. He has been trying hard to get a posting nearer to his home. He is more interested in his zamindari rather than his job."
No where in the memo of appeal the appellant has alleged that the above mentioned countersigning officers were also prejudiced against him or were on the enemical terms with the appellant. These countersigning officers basically belong to Forest Department and have been watching the performance of the appellant since his entry in service in the Forest Department.
13. The other main argument advanced by the appellant's Advocate is that the appellant has been seriously prejudiced as the assessm ent has come as a surprise to him. The appellant was not counselled before as required vide instruction No.4 V(b) of the instructions printed on the form of A.C.R. It has also been argued that no lapse or dereliction on the part of appellant has been specifically mentioned by the reporting officer which are made the basis for the adverse observations. Both the above arguments are interconnected. It is to be seen if pointing out the lapse, or conveying of displeasure on unsatisfactory performance during the course of official transaction serve the purpose of counselling or not. We hold the same as good as counselling since they put the officer on his guard and make him liable to explain his position as well as require him to be cautious in future. We do not subscribe to the arguments of the learned Advocate of the appellant that counselling on each oft*tL;rpse pointed out in the confidential report, should be first communicated to the reported officer through a personal letter for removing the same and improving the standard of performance. Essence of the instruction No.4 is not necessarily an advice in a slrcotype letter to the reported officer to improve his failings. Explanations called for on any official matter, assessm ent of unsatisfactory work or conveying dissatisfaction through visit notes etc. Also serve the purpose to alert and improve as contemplated in the instructions on the subject of "Counselling." However in the impugned ACR, the reporting officer at the appropriate space has slated that the appellant was counselled "to improve protection of forest without any result." In the written statement filed by the respondent No.1 a good number of letters issued to the appellant right from 1977 to 1983 arc exhibited wherein lapses of various nature which are covered in the confidential reports, could be verified.
In short confidential report is a sum total of the impression drawn by the reporting officer about the performance of the officer under his administrative charge and he is not expected to be claborative and exhaustive for each of his impression in the ACR. The very fact that other countersigning officers who were quite impartial and bore no grudge against the appellant, which is also admitted by him not only endorsed the views of the reporting officer but even went ahead to record their adverse opinion about the appellant. The contention that the appellant was victim of bias and prcjudiceness of the reporting officer is therefore not sustainable.
14. The appeal No.86/88 has been filed seeking quashment of adverse remarks of 1984. This is the second consequtive adverse report since remarks obtained in 1983 have already been discussed at length in the foregoing paras. This adverse evalustion has been recorded by Mr.Shaukat Ali Arain-Conservator of Forest, and communicated to the appellant in September, 1987 under the orders of Mr.Bahauddin Sirhindi who was holding the acting charge of the Secretary Forest Department, Govt, of Sindh. The impugned adverse remarks read as under:
(1) Fitness for promotion ... Unlikely to progress further.
(2) Remarks of the Countersigning Officer.
There were adverse reports of maladministration and Corruption against him and it was on this account that the Minister incharge of the Department, Head of the Department and Head of the attached Department transferred him from a tcrritorial/cxccutive charge to an office job.
(3) Remarks of the Second Countersigning Officer.
I agree with the above assessm ent. He needs to be watched constantly.
15. A careful reading of the above remarks would indicate that the observations made by the reporting officer and further views expressed by the countersigning officer not necessarily mirror the current lapses, but even the cumulative impact of the past unsatisfactory performance. It is for these reasons the Annual Confidential Reports normally do not give specific details of the lapses on each personal trait. The departmental appeal/representation of the appellant was therefore rejected mainly on the grounds that "the remarks in question were based on the objective assessm ent of the performance of the representationist (appellant). "The objective assessment of the reporting and countersigning officers in the ordinary course is the consequential formulation of the opinion based on their past experience and reputation of the officer.
In the memo of appeal it has been asserted that remarks viz "Unlikely to progress further" communicated to the appellant find no mention in the report submitted by the Department to the appropriate Selection Board for appellant's move over from B.S.18 to B.S.19 in the year 1985. In the written statement the Respondent No.1 (Secretary to Govt, of Sind Forest Department) has denied the relevant contents of para 8 of the memo of appeal and to substantiate the adverse nature of the A.C.R. 1984 annexed the minutes of the relevant Selection board which while refusing move over to the appellant made the following observations; "The Board however, did not clear Mr.Bashir Ahmed Nizamani for move over to BS-19 due to his patchy service record including adverse remarks in his 1983 & 1984 ACRs. The Board further noted that his quantification for 'Integrity' was only 55 against the minimum required score of 60.
It appears the late communication of the adverse remarks has created some doubt about the exact entries in the ACR.1984 in the mind of the appellant has asserted that the abnormally late communication of the adverse entries, was violative of the instructions/Rules on the subject. To beef up his arguments he has cited the relevant observations made by this Tribunal in the Appeal of Rana Abdul Waheed Vs.Chief Secretary, Govt, of Sindh and others reported in 1987 PLC (CS)-434.
I6. The learned advocate lost sight of the fact that the remarks offered in the A.C.R. 1984 were the objective assessm ent of the performance of the appellant based on patchy service record. It does not loss much of its impact even if the same is communicated late. The timely communication of adverse remarks as a matter of fact is insisted upon, to provide opportunity to the reported officer to improve in the subsequent years. This purpose was already served when adverse remarks of the previous year 1983 were communicated in time. Even in the reported case of this Tribunal referred to above in the appeal, the learned Chairman of this Tribunal has observed that "it was only in event of this Tribunal has observed that "it was only in event of persistence of reports of same nature in consequential years that cumulative impact of all such reports influenced competent authorities in respect of Civil Servants concerned."
Again in this case the reporting officer as well as the first and second countersigning officers are impartial officers against whom no bias or prejudiceness is alleged by the appellant. Mr. Bahauddin Sirhindi does not appear any where in this impugned year. The arguments that since two previous Secretaries during the period 1985 and then in 1987 did not communicate any remarks, the same can not be held as adverse on the Govt. In the year 1984. There may be reasons like the traditional lethargy and red tappism for not communicating these remarks. The under mentioned observations in the impugned A.C.R, are self-speaking.(a) Unlikely to progress further.
(b) He was shifted to office charge from the territorial and executive charge by the Minister concerned on the adverse reports of maladministration.(c) Needs to be watched constantly.The above remarks by all standard do not paint a happy picture. These remarks on the contrary indicate the adverse opinion inprinted over the years in the minds of his superiors. For such a situation none-alse but the appellant can be held responsible.As in the third appeal No.91 of 1988 the appellant has approached this Tribunal for the quashment of adverse remarks recorded in his A.C.R, for 1986. The adverse remarks as communicated to the appellant read as under:"(1) Integrity:
(a) General Below average(b) Intellectual Below average (2) Financial Responsibility Below average(3) Work; Output Below averagePen-Fiecture: Quality Below averageIn an initial enquiry you have been held responsible of mis management and financial loss by over charging more than Rs.Twenty thousand on account of transportation of forest material in Maroo Kotri forest, bad conversion of forest material and other things in the forest development under your charge.In another case, there is a disciplinary action in process against you for departmental exploitation of Devi in violation of Govt: policy and against the instructions of the Conservator of Forests, Utilization Circle, You also discourged competation in forest auctions.Counselling:You were repeatedly advised to improve your working but with no effect.Assessment of performance:
17. You repeatedly recommended lower bids. "It has been assailed by the appellant that the above impugned adverse report is to a great extent the reflection of the adverse report of 1983 since both these reports are identical and are initiated by Mr.Bahauddin Sirhindi who for reasons not explained, spared no opportunity to tarnish his service record. Incidentally in this appeal as well, no enmity or dispute has been imputed against Mr. Bahauddin Sirhindi to establish mala fide on his part. However to bring home his plea, the appellant's advocate stressed that the appellant earned good report in 1985 the intervening year between 1983 and 1984 and again in the following year 1987, mainly because the appellant's reports in these years were not initiated by Mr.Bahauddin Sirhindi. A careful examination of the personal file of the appellant, however reveals, that those very officers viz Mr. T.A. Ansari and Mr.Hameed 'Ahmed (Chief Conservator of Forests and Secretary, Forests who endorsed adverse reports or recorded adverse opinion as countersigning officers in 1983 and 1984, gave the appellant satisfactory report when they initiated the A.C.R, in 1985. At least this establishes an impartial assessment at the hands of these two officers and goes to establish that they are not biased against the appellant. Incidentally the adverse ACR 1986, which has been impugned is countersigned by these two very officers. Mr. T.A. Ansari has not fully agreed with the remarks of Mr.Bahauddin Sirhindi, yet at the same time did not exonerate him of the adverse triats when he recorded his opinion in the following words."The officer is not so bad as depicted by the Reporting Officer."
18. Mr.Hameed Ahmed Secretary Forest Department Govt, of Sindh countersigned the report without making any favourable observations. He on the contrary directed the communication of the adverse remarks (under lined by him with red ink) to the reported officer for future improvement. If the satisfactory reports officer for future improvement. If the satisfactory reports earned from the above officers could be quoted by the appellant to prove bias on the part of Mr.Sirhindi what explanation does the appellant have for the adverse observations made by these very officers as countersigning officers who were competent and senior enough to disagree with Mr.Bahauddin Sirhindi and nothing has restained them from recording favourable remarks to wash off the impact of adverse evaluation of th? Reporting officer.
19. The respondent No.1 viz: Secretary Forests Department Govt, of Sindh, in his written statement has however disagreed with the contention of the appellant that the adverse remarks of 1983 and 1986 are similar. It has been asserted by the Respondent's Advocate that the remarks of the A.C.R, for the year 1986 relate on the appellant's acts of ommission and commission as DFO Utilization Division, Thatta and for which he was also charge sheeted. It has also been argued that the assertion about the good performance on recoveries as mentioned in the memo of appeal were already considered by the competent authorities and found unsatisfactory. In the written statement it has also been impressed that the adverse remarks on integrity and financial responsibilities even find support form the vigilance team of the Accountant General Sindh, Karachi.
20. To sum up, in view of the above discussions no reasons are seen to hold that the adverse remarks recorded in the ACR's of 1983, 1984 and 1986 are perfunctoury in nature and are not based on facts or they are the product of biased mind of the reporting officer Mr.Bahauddin Sirhindi. The Annual Confidential Report of 1984 was neither initiated nor was countersigned by Mr.Bahauddin Sirhindi. The countersigning officers in some years have identified the lapses of the appellant and in certain years had also appreciated the satisfactory performance in certain spheres of duties of the appellant. The countersigning officer have not only endorsed the views of the reporting officers in the year 1983, 1984 and 1986 but even made their personal adverse observations, thereby leaving no room to suspect the bona fide of the reporting officers. Accordingly for the above reasons the request for expunction of remarks does not merit consideration and all the three appeals mentioned above are therefore, dismissed with no orders as to costs.Given under our hands and the seal of this Tribunal this 10th day of July1989.