MOHAMMAD SIDDIQUE KHATTAK, MEMBER.-This is an appeal filed by Dr. Noor Khan Wazir, against the order of respondent No.2, dated 26.12.1988, received by him on 1.1.1989, whereby his representation for the expunction of adverse remarks from his ACRs for the period from 1970 to 1974 was rejected.
It has been preyed that the adverse remarks may be expunged from his ACRs and he may be given his due seniority from the date his junior was promoted.
2. Brief facts of the case, as brought out in the appeal, are that the appellant joined the Health Department as Medical Officer on 26.12.1960, was selected by the Former West Pakistan Public Service Commission as Medical Officer, on 25.6.1964 and was confirmed w.e.f. 8.3.1965 vide notification dated 1.8.1968. After the disintegration of one Unit, a seniority list of the Junior Class- I(now BPS-17) Medical Officers was drawn up in 1974 wherein some Medical Officers junior to the appellant were placed senior to him. Feeling aggrieved with that list he made a representation but there was no response from the department till 1976. The appellant was apparently superseded on account of certain adverse entries in his Annual Confidential Reports as is evident from memo No. 3328/50- H-IV/70 dated 4.3.1976. Though the adverse remarks pertain to the period from 1970 to 1974 but these were communicated to the appellant in one lot in 1976 vide letter quoted above against which a representation was made by the appellant to respondent No.2 on 12.3.1976 (Annexure-B) on file. That the appellant has vigorously been pursuing his case for the expunction of the adverse remarks from his ACRs and restoration of his due seniority but there was no response till 1988. He was however promoted to BPS-18, vide Notification dated 17.11.1986. The appellant made yet another representation dated reminding and requesting the respondent department for settling his case one way or the other as it was hanging for such a long the.
Respondent No.2 vide his letter No.N/6/S.O.G.(H) A.C.R Dated 26.12.1988 informed the appellant that his representation was earlier considered and filed. This order was conveyed to him on 1.1.1989 through the Principal Khyber Medical College Peshawar (Photo copy at Annexure-D).
3. Feeling aggrieved with this order the appellant, having no other option, has come in appeal to this Tribunal on the grounds that the adverse remarks in his ACRs are in violation of the rules and instructions of the Government issued from the to the, hence these are of no legal effect. The respondents, according to the appellant, have failed to communicate the alleged adverse remarks to the appellant in the, these have no evidentiary value and that neither the Reporting Officer nor the countersigning Officer have acted in a manner prescribed by law and they have also failed to justify the adverse remarks which have been made with malafide intentions. That the appellant has been condemned unheard and this amounts to violation of the principle of natural justice. The illegal at of the respondents have prejudiced his service career and deprived him of his legal rights, therefore, the adverse entries are liable to be expunged. The appellant has prayed that the same may be expunged and he may be allowed his due seniority.
4. Respondents No.1 and 2 in their parawise comments have raised preliminary objections on the appeal, stating that it is the barred, it is not competent, the appellant has got no cause of action as promotion to the higher post from a retrospective date cannot be claimed as a matter of rights, it is bad for non joinder of necessary parties.
5. Contesting the appeal on factual side, it has been submitted that during the year 1974, he was considered for promotion alongwith others from BPS-17 to BPS-18, against 40% quota but he was not promoted due to his un-satisfactory record of service, therefore, his junior, who were promoted in 1974, superseded him. His case was summoned by the Chief Minister, who after perusal of the case, made certain observations, which were conveyed to the Health Department on 21.1.1975. He was promoted w.e.f. 17.11.1986 from BPS-17 to PPS-18, so his seniority would be reckoned from the date he assumed charge against BPS-18 post. That the adverse remarks were not expunged, therefore, his promotion could not be made earlier. That the appellant was informed that his representation for expunction of the adverse remarks was considered and filed. There was no violation of the rules on the part of the reporting officer and the Countersigning Officer, as alleged by the appellant, who recorded adverse entries in the ACRs of the appellant. The instructions referred to in the appeal, provided that the adverse remarks should be communicated to the officer concerned even at the belated stage. The adverse remarks communicated later are not violative of the instructions of the Government. As reflected in the remarks in the confidential reports, the performance of the appellant was far from satisfactory. There is no provision for personal hearing in settling representations against adverse remarks. The appellant was not enjoying good reputation and was declared unfit for promotion, the adverse remarks recorded in his ACRs for the period from 1970 to 1974 were not expunged, therefore, he has no case and his appeal is liable to dismissal.
6. All those Medical officers who could be affected in case the prayer of the appellant was accepted were impleaded as necessary parties to the appeal under the directive of the Tribunal, and except Dr. Shah Nam Badshah respondent No.127, Dr. Mohammad Nawaz, respondent No.96, Dr. Sardar Shah, respondent No.136, Dr. Waris Khan Mahsood respondent No.18, no one submitted his parawise comments on the appeal, or contested it. The respondents have raised preliminary objections on the appeal stating that the appeal is hit by limitation, it is not competent, the appellant is estopped by his own conduct to bring this appeal. On the factual side, due to lack of knowledge, they have not been able to contest the points raised in the appeal.
7. Arguments of the counsel for the parties heard and record perused. Counsel for the appellant submitted that the adverse remarks were given to the appellant in the years 1970 to 1974 and 1975 but these were communicated to him in one lot in 1976, when his promotion case had already been processed and because of the adverse remarks in his ACRs, he was not found fit for promotion and he was superseded. He submitted that the adverse remarks for the years 1970 and 1971 were recorded by one officer namely Dr. Mohammad Yousaf. If the Reporting Officer gave him adverse remarks for the year 1970, then for the next year i.e, 1971, the appellant should have been shifted to the administrative Control of any other officer. Leaving him at the mercy of the same officer who gave the appellant adverse remarks during the previous year was an injustice with him and was violative of the instructions on the subject. Again for the period from September 1973 to July 1975, the appellant was given adverse remarks for three consecutive years and after an adverse report for the year 1973 the appellant should have been transferred to some other place outside the jurisdiction of the reporting officer, but this was not done. He submitted that the appellant was considered for promotion in 1974 and at that the the adverse remarks had not been communicated to him, so these had no impact whatsoever on his promotion as under the instructions of the Government such uncommunicated adverse remarks have no value, therefore, withholding of promotion on account of the uncommunicated adverse remarks was not justified at all. Those remarks were communicated in 1976 and the appellant made representation for the expunction of the same, but no decision could be taken thereon for l2 years. The whole matter was dealt with lightly without considering the fact that the service career of an officer hinged on it. He further submitted that the adverse remarks were not communicated to the appellant in the, and his representation for the expunction of the same could not be decided till 1988 with the result, the appellant was subjected to an unbearable mental torture.
8. Government Pleader, in contesting the appeal, stated that the adverse remarks pertain to the years 1970 to 1975, though communicated belatedly, but nevertheless this late communication does not under-mine its value unless these are expunged. The appellant was promoted in 1986, so these remarks were no more operative now, because these could not stand in his way any longer, therefore, his prayer for its expunction now has become immaterial. There is no final order which could be challenged by the appellant. His promotion from a retrospective date would affect the seniority of many officers which would neither be desirable nor in the interest of the department. He submitted that giving him promotion and that to from the retrospective date is not within the jurisdiction of the Tribunal as in such like cases its jurisdiction is barred by clause 4(b) of the NWFP Service Tribunal Act, 1974.
9. We have carefully examined the arguments advanced for and against the case. First we would like to deal with the preliminary objections raised on the appeal. First objection is that the appeal is the barred, because the adverse remarks were communicated to him in 1976 against which the appellant made a representation. If he did not receive the reply within the prescribed period, he should have approached the proper forum for seeking remedy to his grievance, since he did not make any appeal in the prescribed period, therefore, his appeal filed in 1989 after about 13 years, is hit by limitation. On the other hand the appellant holds that since he could not receive any order or reply to his representation, therefore, he could not approach any forum before receiving a response from the respondent department. We feel that there were to options open to the appellant, namely either to approach the proper forum after the lapse of the prescribed period or wait till a reply to his departmental representation was received by him. The respondent department in their letter' dated 26.12.89, have stated, "that representation of Dr. Noor Khan Wazir was earlier considered and filed by the competent authority. There is no provision for a second representation/review petition under the rules therefore, the second representation of Dr. Noor Khan Wazir, cannot be considered." (Annexure-D on file). This letter was received by the appellant on 1.1.1990 against which the present appeal has been filed. The appellant denied the receipt of any reply to which reference was made by the respondent department in its letter therefore they were asked to produce a copy of the letter through which such a reply was given. There is no mention of such a reply in the parawise comments except that his case was summoned by the Chief Minister and the views of the Chief Minister were conveyed to the Health Department by the S& GAD on 21.1.1975. Further movement of this letter, as to whether it was sent by the respondent department to the appellant or not, but their silence is pointer to the fact that it was not sent to the appellant. Had they sent it, they would have surely indicated the number and date of the letter through which the appellant was informed of the fate of his representation.
10. In their comments, the respondents have averred that the appellant has himself admitted in his appeal that he was informed about the rejection of his representation, but on going through the appeal we have come across nowhere, where such admission of the receipt of any reply to his representation, was made by him. When we pressed the respondent department to produce documentary proof of the reply sent to the appellant, they submitted that "due to bifurcation of Health, Education and Social Welfare Departments in 1975, some files/record of the Health Department including the old/previous volume of Dr. Noor Khan Wazirs Personal File relating to the correspondence of expunction of adverse remarks recorded in his Annual Confidential Reports for the years 1971, 1972, 1973 and 1974, were misplaced and are not been traced so far. Hence no written proof be produced to the effect, that representation of Dr. Noor Khan Wazir had been considered earlier and filed by the competent authority, as stated in this department letter of even number dated 26.12.1988"(their letter is placed on the file at Annexure-X). Without questioning the reasons for the non production of the relevant record. We would like to observe doubt in the absense of any solid proof in support the claim of the respondent department that his earlier representation was considered and filed and he was informed of the fate of his representation, cannot be accepted and the reply contained in their letter dated 26.2.1988 would be construed to be the letter of rejection of his departmental representation against which the appellant has come in appeal. This letter was received by him on 1.1.1989 and he filed the appeal on 26.1.1989, which is well within the.
This objection is therefore, overruled. Reliance is placed on PLC-1987 - 776 (Part-1) for these views.
11. Second objection is that the appeal is not competent. Expunction of adverse remarks and withholding of promotion on account of the adverse entries in the ACRs come within the terms and conditions of service and the Tribunal is competent to entertain such appeals under clause 4 of the NWFF Service Tribunals Act 1974. This objection is, to, overruled.
12. The third objection is that the appeal is hit by Section 22 of the NWFP Civil Servants Act 1973 read with Section 4(b) (i) of the NWFP Service Tribunals Act, 1974. This objection is not valid as, here, there is no question of determining the fitness of the appellant for holding a particular post or promotion to a higher post, here the question is supersession of the appellant by his junior officers and withholding of promotion from him on the basis of the adverse remarks which were never communicated to him and which according to the appellant, had no impact whatsoever on his promotion having not been communicated to him. The appellant has a definite cause of action as he has been superseded in promotion and he has impleaded all necessary parties, therefore, the fourth and fifth objections, being not valid, are rejected.
13. Having disposed of the preliminary objections. We revert to examine the merits of the case. As submitted by the respondent department, the appellant was considered for promotion from BPS-17 to BPS-18 in 1974, against 40% quota but he was not promoted because of the adverse remarks in his Character Roll. Again it is submitted that since the adverse remarks in the ACRs were not expunged, therefore, the question of his promotion earlier (than 1986) does not arise. As regard his seniority it is stated, that it would be considered from the date he took over charge in BPS-18 as a result of his promotion. Thus to say it in unequivocal terms he was due for promotion in 1974, but his promotion was withheld on the grounds of adverse entries for four years i.e.1971,1972, 1973 and 1974 which were communicated to him in one lot in 1976, under covering letter No.3328/SHO-IV/70, dated 4.3.1976, much after he was considered for promotion but overlooked on account of the adverse remarks in his ACRS. This means that the appellant was condemned on the basis of the adverse entries which were not communicated to him. According to the Government instructions the appellant could not 1 -e condemned for promotion on the basis of the adverse remarks which were not communicated to him. Thus such an action on the part of the respondent department was unjust and unfair.
14. Doing back to the nature of the adverse remarks these in the year 1970 were not so damaging.
Had these been communicated in the and had he been altered to his draw-backs, being a young Doctor, he would have surely responded to it and would have mended his ways. The main purpose of communicating the adverse remarks to the officer concerned is to enable him and give him a chance of reforming himself. Relevant paras from 'A guide to performance evaluation' are reproduced below to make the point clear. ii) as a general rule in no case should an officer be kept in total ignorance for any length of the that his superiors after sufficient experience of his work are dissatisfied with him; in cases where a warning might eradicate or help to eradicate a particular fault, the advantages of prompt communication are obvious; where criticism is proposed to be withheld, the final authority to consider the report should record instructions, with reasons, according to the period for which communication is to be kept back; iii) (A) Adverse remarks should be communicated to the officer concerned, namely to enable the officer to make efforts for improvement;
(B) when any adverse remark is made, in the confidential report of any officer, a copy of the whole report should be furnished to him at the earliest opportunity, and in any case within one month from the date the report is counter signed, with a D.O. Letter a copy of which should be signed and returned by him in acknowledgement of the report A serious view should be taken of any failure on the part of the officials concerned to furnish a copy of the report containing adverse remarks to the officer reported upon within stipulated period; Nevertheless, the adverse remarks should be communicated to the officer concerned even at belated stage.
IV. The reporting officer should specially, state whether the defects reported have been already brought in another connection to the notice 1 of the officer concerned: VIII. The effect of the communication of adverse entries should be carefully watched and the reporting officer should, when drawing up a report in the next year, state whether the officer reported on has or has not taken steps to remedy defects to which his attention was drawn in a previous year. Such remarks should also be communicated.
From the above it is quite clear that the adverse remarks are to be communicated in the and that the effect of the communication of the adverse remarks is to be watched carefully. When drawing up report in the next year the reporting officer should state whether the officer reported on has or has not taken steps to remedy defects to which his attention was drawn in the previous year. In this case the confidential report for the year 1971 was written by Dr. Mohammad Yousaf, Agency Surgeon South Waziristan Wana, giving the appellant adverse remarks. The appellant was rated "very good" for the period from 1.1.71 to 26.7.1971 perhaps under the administrative supervision of some other officer but for the remaining period of the year i.e. 27.6.71 to 31.12.71 the appellant again came under the administrative control of Dr. Mohammad Yousaf who gave him a damaging report declaring him unfit for further promotion. Neither the remarks for the year 1970 were communicated to the appellant nor any warning was given to him to reform himself. Remarks for the period from 1.1.72 to 31.12.1972 are " that the officer has a bad reputation for corruption". These remarks are recorded by Dr. Mohammad Anwar and countersigned by Col. M. Aslam, the then Director Health Service. For the period from 1.1.73 to 4.9.73, he was rated as "Average" by Dr. Mohammed Anwar, but the Countersigning Officer (Dr. Col. Mohammad Aslam) remarked that "the officer has a reputation of being corrupt". The first countersigning officer for these to periods was Dr.Col. Mohammad Aslam and he was working as Director Health Services NWFP. A question arises that if the appellant had the reputation of being corrupt, which of course is quite a serious charge, then why these remarks were not communicated to the appellant by the countersigning officer in the capacity of Director Health Services. If he levelled this charge against the appellant all by himself, why did he not take the trouble of ordering a thorough inquiry into it against the appellant and why did he fail to initiate a departmental action against him. Charge of being a corrupt officer is levelled against the appellant for to consecutive years but he does not know about it. Is not it strange? Did the Director - Health Services being the administrative Head of the Health Department absolve himself of his duties by giving these remarks in the Annual Confidential Report of the appellant and then doing nothing further ? Did he feel at rest after giving these remarks in the Confidential Reports? Col. Dr. Mohammad Aslam was an outsider to the Department, he either did not consider himself accountable to any one, or he did not care for the observance of the Government instructions on the subject otherwise he would not have behaved so irresponsibly.
15. Now coming to the adverse reports for the years 1973, (16.9.73 to 31.12.1973), 1974 and 1975 (1.1.75 to 6.7.75), these were written by Dr. Abdullah Jan Khalil Medical Superintendent D.H.Q. Hospital Bannu. These reports are for three consecutive years. After the first adverse report the respondent Department was bound to transfer the officer from the charge of the Reporting Officer as required under the instructions for writing confidential reports, but the respondent department failed to do so, rather kept the appellant for three consecutive years under the same Reporting Officer, who haunted him for all these years without giving him a single piece of advice during all this the to reform himself. The question again is as to why departmental action was not initiated against the appellant for the charges of corruption. The respondent department has no record to show as to whether any inquiry on this charge was initiated or not against the appellant. The appellant has however, in para-7 of the explanation to the adverse remarks communicated to him in 1975 submitted -that "so much so and not with standing the above the officer was still labouring to put me in trouble by allegating me of (bringing against me) various charges and conducting inquiries.
By the grace of God as I was innocent nothing was proved and the case was filed vide Secretary Health letter No.3328/H&SW/70 dated 8.6.74". This statement of the appellant could not be rebutted by the respondent department due to non availability of the relevant record therefore, we conclude that inquiry into the charges was conducted and the case filed because the charges could not be proved against him. If such was the position, then the adverse remarks should have been expunged when the charges could not be proved in an inquiry.
16. So far as the value of the uncommunicated adverse remarks on promotion is concerned, the same has no value whatsoever, for the purpose of promotion as is evident from West Pakistan circular letter No.S(R) 1487/4-1/69 SO-XIII, dated 12.7.1969 wherein it has been laid down that "confidential report containing adverse remarks should not be taken into consideration until they have been communicated to officer concerned and decision is taken on representation if any". The confidential reports of the appellant from 1961 to date, except the adverse remarks discussed above, are either good or very good with three satisfactory reports for the years 1977, 1979 and 1980 therefore, the adverse remarks which had not been communicated could not be taken into account against the appellant. We rely for these views on the following authorities:- PLD 1978 Lahore 581 1980 PLG (C.S) 384 and 558 1981 PLC (C.S) 854 1983 PLC (C.S) 303 and 522
17. To sum up the above discussion, the adverse remarks generally were about the appellant's integrity and bad reputation for corruption but these could not be established in the inquiry against him. In the circumstances we accept the appeal and direct that the adverse remarks for the years 1971, 1972, 1973, 1974, and 1975, having not been communicated in the, be expunged from the character Roll of the appellant. We further direct that the appellant be considered for promotion from BPS-17 to BPS-18 from the date his junior officers were promoted considering that the adverse remarks did not exist in the Character Roll. Parties are left to bear their own costs and the file be consigned to the record.