1. MUNAWAR ALI KHAN (CHAIRMAN).--Appellant Mr. Khajoo Mal D. Bhuptani who is Headmaster, Government High School, Amanabad District Badin has filed this appeal seeking quashment of the adverse remarks conveyed to him by the Director School Education, Hyderabad Region, Hyderabad under his letter No, OSD/SC(I)/-19585, dated 9th October, 1985 relating to the calendar year, 1981 with a advice that he should remove the defects pointed out in the letter in his own interest. The adverse evaluation are incorporated at Annexure 'A' of the file.
2. The above-cited letter, as disclosed in the memo. of appeal, was followed after more than a month by another letter No, OSD/LSC(I) 2825-26, dated 23-11-1985 from the Director of School Education, Hyderabad which also conveyed the adverse entries in his A.C.R. of 1983, kept at Annexure 'B' of the file.
3. The appellant made a representation on 7th December, 1985 to the Director School Education for expunction of the adverse remarks pertaining to the years 1981 and 1983 communicated to him through separate D.O. Letter dated 9th October, 1985 and 23rd November, 1985. By making one representation, the appellant misconceived and disregarded the mandatory instructions on the subject, as by doing so, the representation against adverse evaluation of 1981 has become time- barred. These remarks were communicated to him on 9-10-1985 and as such the appellant should have represented against these remarks by 8-11-1985 the latest as per instructions No, 42 of the "Instructions about Confidential Reports" which by long usage and application have assumed the status of rules. The relevant instructions read as under: '42. Expunction of adverse remarks.--"A person who is communicated adverse remarks can apply for the expunction of such remarks, but this should be done not later than one month from the date of receipt of the communication. The representation must be made in temperate and dignified language and no allegations of personal and malicious nature should be made.
4. Indiscreet and irresponsible allegations against Reporting Officer will result in disciplinary action."
5. However the appellant's representation for expunction of remarks made on 7th December, 1985 has been rejected by an order dated 12th August, 1987 of the Secretary Education Government of Sindh. Through this order, the adverse evaluation made by the Reporting Officer viz. District Education Officer (Male), Badin and affirmed by the countersigning officer first in respect of 1981 and then in 1983 remained unscored. Aggrieved with this position the appellant instead of filing an appeal before the Sindh Service Tribunal, preferred appeal before the Chief Secretary, Government of Sindh, Karachi on 30-9-1987 against the order of the Secretary, Education after a lapse of about 48 days. The Services and General Administration Department under their letter dated 7th February, 1988 rejected his request of expunction on legal grounds since the rules on the subject do no envisage any second right of the representation to the next higher authority. The reproduction of the relevant paras. of the S & GAD's letter dated 7-2-1988 is quite pertinent to the case for determination of the limitation period at the first instance and then the appellant's demonstration of a futile attempt to cover the delay caused by him in filing the first representation to the Secretary Education in respect of adverse remarks of 1981, and that again for not approaching the Tribunal for redressing of his grievance within the statutory period of 30 days.
6. "As laid down in S&GAD letter No, SOR (S&GAD) 14-2/72, dated 9-61973, the officer adversely reported upon will have only one right of making representation and absolute finality would attach to the decision taken thereon, whether in favour of the officer or against him. Since you have already exhausted remedy of making representation to the Secretary Education, you will have no further remedy of filing present appeal. It has accordingly, been recorded."
7. We heard Mr. Ahsanul Haq Siddiqui for the appellant in support of the appeal and Mr. Salman Ansari, Government counsel argued the case on behalf of the official respondents. We have also gone carefully through the case papers kept on file to acquaint and assail the true facts of the case.
8. The preliminary objection raised by the learned Government counsel was that the appeal was hit by limitation. It has been noticed that at the first instance departmental representation/appeal against the ACR of 1981 was filed late after about 58 days when the statutory requirement for filing this representation was only 30 days. It is further noticed from the memo. of appeal, that the appellant first sought expunction of remarks of 1981 and 1983 through his departmental appeal made to the Secretary Education and on its rejection on 12th August, 1987 filed second appeal before the Chief Secretary on 30-9-1987 which too was rejected by an order dated 7-2-1988, received by the appellant on 6-3-1988. This second appeal in fact was absolutely uncalled for. The question now arises as to how the period between 12th August, 1987 (when the appellant's representation was first rejected) and 22nd March, 1988 (the date when appeal before this Tribunal was filed) is to be accounted for; whether the representation first made to the Secretary, Education Government of Sindh for expunction of the adverse report would not be considered as departmental appeal; and whether the legal position discussed in the S&GAD's letter dated 7-2- 1988 and made a ground for rejection of his request was in accordance with law as conceived in proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973. The said proviso which manifestly deals with the requirement of the departmental appeal reads as under:-- "(a) Where an appeal, review or representation to a departmental authority is provided under the Sindh 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."
9. It would be relevant to read the above proviso alongwith section 23 of the Sindh Civil Servants Act, 1973 in order to make home the correct legal position: "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, expect 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 higher post or grade."
10. A careful reading of the above section clearly signifies that if a civil servant is aggrieved by an order 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 so permitted 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 30 days of the communication of that order to him.
11. ' As already indicated in the foregoing paras. "The instructions about the Confidential Reports (hereinafter referred as said instructions) are attached due sanctity and adhered as rules. The evaluation and assessm ent of the performance is normally made by the reporting officer as required under the said instructions and as such the reporting officer was within his legal rights to award adverse remarks on one or more aspects of his conduct and work as a civil servant. The contention of the appellant that the reporting officer had acted contrary to the instructions of the Government attached with the prescribed A.C.R. form is not substantiated. The adverse evaluation was also concurred by the countersigning officer on both the occasions.
12. However, in pursuance of the said instructions the appellant made first representation for the expunction of the adverse remarks to the appointing authority viz. the Secretary, Education Government of Sindh through the next higher authority in the Department. This representation and appeal though time-barred in respect of the adverse remarks of 1981, was considered and rejected by the Competent Authority and orders of rejection communicated on 12-8-1987. Thus it is abundantly clear that the appellant had availed his right of making, representation to the prescribed authority against the adverse reports given to him, but some how the same was rejected. In short the appellant had complied with the requirements of proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973 as well as that of section 23 of Sindh Civil Servants Act, and further appeal to the Chief Secretary was therefore not at all called for. Perhaps this was deliberately done with the view to cover the delay as on rejection of his first representation the appellant was supposed to file his petition before this Tribunal on or before 11th September, 1987, whereas he preferred second appeal before the Chief Secretary on 30th September, 1987. However the appellant by making such appeal simply wasted time and got the present appeal badly time- barred. The contention raised in the S&GAD's letter dated 7-2-1988 correctly mirrors the legal position and his appeal was rightly rejected. In brief the appellant instead of filing this appeal within 30 days i,e, on or before 11th September, 1987 filed the same on 22-3-1988 i,e, after 192 days.
13. For these reasons we sustain the objection raised by the learned Government counsel and hold the appeal as badly time-barred.
14. The only explanation forthcoming from the learned counsel for the appellant that he went in appeal to the Chief Secretary, Government of Sindh against the order of the Secretary Education, Government of Sindh in good faith and by doing so, the appellant has not invoked the limitation or violated any provisions of Civil Service Act. We cannot persuade ourselves with this view of the appellant's counsel since no second appeal is permitted under the law and the time spent cannot be condoned. Incidentally no request for the condonation of delay was made by the appellant in the memo. of appeal. It was however moved before this Tribunal on 20-2-1989, at the advanced stage of proceedings when the appellant or his counsel grew conscious of the consequences of the same. The counsel of the appellant drew our attention on the observations made by the Hon'ble Supreme Court in the reported case of Abdul Karim v. Muhammad Ibrahim 1976 SCMR.79 wherein the Court had condoned the delay for filing the appeal on filing affidavit explaining reasons and not refuted by the counter-affidavit of the respondent. We have given our anxious thoughts to the above and respectfully observe that the condonation allowed in the above matter were entirely based on merit on the peculiar circumstances which have no relevance to this case in any manner. The Hon'ble High Court considered the ground that the law (West Pakistan Ordinance VI of 1959) being in a state of flux, the appellant was wrongly advised to file review application before the learned District Judge and further that he suffered a fracture of leg in an accident and was laid to bed. No such constraints were existing for the appellant in this case as the law on the subject was well defined and known to all litigants. The plea of "good faith and bona fide belief' for which no cogent reasons were said to be existing, can be entertained to condone the delay. We regret our inability to see the line of reasoning adopted by the appellant. It is quite relevant to refer to Supreme Court authority reported as Commissioner of Income-tax v. Pir Ahmad Khan 1981 SCMR 37 wherein it was observed: "We may again clarify that according to the law each day of limitation must properly and satisfactory be explained For the above reasons, we do not find it worth while to enter into merits of the case. The adverse evaluation pertained to the calendar years 1981 and 1983, and their adverse impact in 1989 and in the subsequent years is not apparently conceived to mar the future prospects of the appellant, provided he consecutively earned good remarks since after 1983.
15. In view of the above clear legal position, we sustain the objection raised by the learned Government counsel and dismiss the appeal with no order as to cost holding the same as badly time-barred.