1. ' MUNAWAR ALI KHAN (CHAIRMAN).---The appellant Mr. Azizullah Shaikh,was posted as Senior Civil Judge in Khairpur District when he was awarded adverse remarks for the period of more than three months Of the year 1988, by the District Judge, Mr. Rana Bhagwandas, of the said District. The adverse remarks in question were communicated to him by the Registrar, High Court of Sindh vide his D.O. Letter dated 6th July, 1989. Aggrieved by the said adverse remarks the appellant made representation for expunction thereof to the High Court through proper channel. He was informed by the letter of the Registrar High Court dated 29th November, 1989 that his representation dated 22-8-1989 was considered by the Judges of the Administration Committee of the High Court in the meeting held on 4-11-1989 and the same was rejected having ho merits. On receipt of that intimation the appellant field the present appeal on 27-12-1989 before this Tribunal seeking expunction of the impugned remarks.
2. ' Mr. Muhammad Nawaz Shaikh was heard for the appellant and Mr. Zawar Hussain Shah, AA.-G., submitted his arguments on behalf of the respondent. We also perused the record relevant for disposal of the appeal.
3. ' The adverse remarks impugned in this appeal are reproduced as under:- ' While the Annual Confidential Report on your work and conduct for the year ending 31st December, 1988 enumerates your good qualities, it also indicates as under:-- 1986: PART HI Integrity.
(a) General ... ..."Below average"
(b) Intellectual ... ..."Below average" PART-V "Does not carry good reputation among the members of Bar and the public. Delays the announcement of interlocutory orders and final judments. Tried to influence the obtaining of undeserved A.C.R.
PART-VI
(B) Fitness for promotion:
(iii) ...."Not yet fit for promotion"
4. PART-WI.
5. "He should improve his working and should guard against integrity.
2. In communicating these remarks the Honourable Chief Justice and Judges expect that you will make efforts to remove the defects pointed out as above".
6. ' The learned counsel for the appellant attacked the above adverse remarks on three gounds; namely, first that he was not administered counselling before crediting the said remarks in his account; second that the reporting authority had no power to record his report for a period less than four months; and third that the reporting District Judge had personal bias against the appellant. Contradicting the appellant on the question of counselling the learned AA.-G. Took a stand in course of the arguments that it was administered to him before assigning adverse remarks. In support of his arguments, he referred to para. 8 of the written statement filed on behalf of the respondent, the plea taken by the learned AA.-G. Was obviously confirmed. Accordingly we hold that the argument of learned counsel for the appellant relating to counselling was without any substance.
7. ' The second objection raised on behalf of the appellant was that since the appellant had served under the administrative control of the reporting authority for less than four months, the said authority was incompetent to write his A.C.R. In reply to This argument our attention was drawn to para. 4 of the instructions about Confidential Reports, (hereinafter referred to as the said instructions), which reads as under: "(4) Minimum period for writing of reports. The minimum period during which an officer is expected to form a judicious opinion about the work of his subordinate for the purpose of writing a report on his work and conduct has been prescribed as three months. The report recorded in respect of less than the minimum prescribed period should be ignored."
8. It is clear from the above instruction that the A.C.R. Can competently be recorded for the period not less than three months. Accordingly the contention raised in this behalf was also untenable.
9. ' Coming to the appellant's third objection, we are of the view that it was after-thought. No doubt the appellant had attributed personal bias to the reporting District Judge as one of the grounds for giving him adverse report, in his representation made to the High Court. Elaborating the allegation of personal bias the appellant stated that he was pressurized by the reporting District Judge to show favour in one case of a Hindu litigant but as he did not oblige him, the appellant was made the target by giving him adverse remarks. Had the appellant been serious in his allegation of personal bias, he would have surely taken that plea in his appeal with all force at his command. But all that he mentioned in this connection in para. 3 of his appeal was that the adverse remarks were the result of his (the District Judge's) bias. Such bald allegation unaccompanied by further elaboration has been categorically denied in the written statement vide para. 3 of the written statement. In view of the denial of the other party, the burden was on the appellant to prove the allegation. But no such proof was forthcoming on the record. Moreover in absence of clear picture as regards bias to be depicted in the memo. Of appeal the respondent was obviously deprived of the opportunity of giving appropriate reply to the said allegations. We are therefore convinced that the plea of personal bias was both half hearted and after-thought. It was also submitted on behalf of the appellant that it was for the first time in his brief service career of about 7 years that he had been assigned the adverse remarks. Merely because the appellant was not assigned adverse reports for the earlier years was no ground to declare the impugned adverse remarks as invalid. In view C of the above discussion the appellant had absolutely no case on merits.
10. ' Apart from above, the appeal is liable to be dismissed even on technical grounds. As required by proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973, a civil servant has to avail departmental remedy before approaching this Tribunal for relief. In other words he is obliged, in the first instance, to file departmental appeal/representation/ review petition, as the case may be, against the order whereby he is aggrieved. No doubt before filing the present appeal, the appellant made representation to the High Court for expunction of the adverse report assigned to him. The question that arose for our decision was whether he had approached the correct forum for the desired relief. The answer to this question would depend on what law and rules were applicable to the appellant. Unlike the staff and officers working in the High Court itself, the appellant was not governed by the rules framed under Article 202 of the Constitution. He being a civil servant, terms and conditions of his service were regulated in accordance with the Sindh Civil Servants Act, 1973 and the rules thereunder. At this stage it may be relevant to refer to the Sindh Civil Servants (Appeal) Rules, 1973 (hereinafter referred to as Appeal Rules) which were obviously framed under section 26 of the Sindh Civil Servants Act, 1973. The schedule of the Appeal Rules enumerates the Departmental Authorities to which appeal can be filed. It appears from the entry at S. No, 6 of the schedule that Chief Minister through Chief Secretary is the Appellate Authority for the purpose of the orders passed by the Chief Justice. However, in the present case the adverse remarks were given by the District Judge who does not find mention in the said schedule.
11. ' However, it would be noticed that the said instructions which enjoy the status of rules contain built-in mechanism which includes even filing of appeal against the adverse remarks. As mentioned at para. 43 of the said instructions, all representations about expunction of the adverse remarks will be made through proper channel to the appointing Authority. Accordingly, we are of the view that for the purpose of seeking expunction of the adverse remarks, the procedure laid down in the said instructions would have to be followed in preference to the procedure contained in the appeal rules. The appellant was admittedly Senior Civil Judge when he was assigned the impugned adervse remarks. We have to identify his appointing authority so as to decide the forum, the appellant was supposed to approach for expunction of the adverse remarks. In this connection we may refer to sub-rule (1) of rule 4 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Entry No,9 of the schedule immediately following the said sub-rule clearly shows that Chief Minister is the appointing authority of Civil Judges, Senior Civil Judges, Additional and District Judges. Accordingly the appellant had to make his representation to the Chief Minister.
12. Instead he made the representation to the High Court.
13. ' The argument of the appellant's learned counsel was that the appellant's representation addressed to the Registrar, High Court was actually intended for the Chief Minister and such intention was clear from the words through proper channel written immediately below the nomenclature of the addresses. We are not impressed by the argument. Had the representation been meant for the Chief Minister, it would have been addressed to the said authority, of course with the words through proper channel to be mentioned below it, indicating thereby that the representation was routed through High Court. Since it was addressed to the Registrar, High Court with the above words mentioned below the said addressee, it clearly showed that it was meant for High Court and was routed through the District Court. Assuming for the sake of argument that the representation was meant for the Chief Minister and the High Court as intermediary had to forward it to the said authority, still the appellant owed an explanation as to why he quietly accepted the rejection of his representation at the level of the High Court did not agitate the matter further by filing fresh representation before competent authority. The fact that after his representation was rejected by the High Court, he straight away came to this Tribunal in the present appeal which goes to show that his argument that the representation was intended for the Chief Minister had no force. Accordingly we have come to the conclusion that the appellant did not fulfil the mandatory condition of exhausting the departmental remedy before filing his present appeal which is therefore not legally maintainable.
14. ' However, in course of his arguments, the learned AA.-G. Brought to our notice that in the case like the present one, the Administration Committee of the High Court were divided in their opinion on the point whether the representations of members of lower Judiciary seeking expunction of adervse remarks be disposed at the level of High Court or be forwarded to the Chief Minister for disposal. According to him the majority view of the Administration Committee was in favour of disposal of such representations by the Administration Committee, if the remarks were given by the District Judges or, as the case may be by full Court if the remarks were awarded by the Chief Justice. He further submitted that the minority view of the Administration Committee was however, to the effect that all such representations should be sent to the Chief Minister for his decision. On such disclosure by the learned AA.-G., he was asked to show if there was any legal basis in support of the majority view of the Administration Committee. In reply he expressed his inability to produce or point out any such basis. All that the learned AA.-G. Emphasized was that there had been long standing practice by which the representations of above kind were terminated at the level of High Court instead of being forwarded to the Chief Minister for disposal.
15. ' Of course in absence of any law or rules, the practice followed in the High Court for dealing with representations of the above nature can be held to have some force. But that is not so. As stated above a comprehensive mechanism is provided in the said Instructions relating to all matters arising from A.C.Rs, awarded to 'civil servants. There is nothing to show that the members of the lower Judiciary are excluded from the purview of the said Instructions. In this connection it may not be out of way to point out some instances. For example the original power to transfer the Additional District Judges/District Judges vested in the Government but subsequently by a suitable amendment in the relevant rules it was delegated to the High Court. Similarly the Administration Committee of the High Court was given the status of Provincial Selection Board under rule 6-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 for making selections for promotion to the posts of Senior Civil Judges, Additional District Judges and District Judges and as such the promotions to the said posts are now made by the Government on the recommendations of the Administration Committee. Recently by the S&GAD, Notification No,SORI(SOA&TD)2/14-88(Pt- II), dated 28-6-1990 the Chief Justice of the High Court has been declared as "Authority' for the purposes of departmental proceedings taken under Sindh Civil Servants (Efficiency and Discipline)
16. Rules, 1973. Until then the said power was exercised by the Chief Minister.
17. ' Keeping the above position in view,we are of the considered opinion that in order to ensure independence of Judiciary it is most desirable that the representations arising from the adverse reports given to the Judicial Officers should be disposed of in the High Court. We may also venture to suggest that the representation against the report given by the District Judge may be decided by the Chief Justice and that against the adverse report given by the Chief Justice may be disposed by a Bench comprising three senior most Judges of the High Court. Accordingly we would suggest that urgent steps be taken by the Government to provide necessary frame-work by making suitable amendment in the said Instructions. Until then; like other civil servants, the said Instructions will continue to apply to members of lower Judiciary. Consequently the representations against the adverse remarks given to the Civil Judges/Additional District Judges/District Judges are to be forwarded to their appointing authority, namely the Chief Minister for taking final decision thereon.
18. ' The upshot of the above discussion is that appeal is liable to be dismissed both on merits and technical grounds. Accordingly it is dismissed with no order as to costs.