1. JUSTICE (RTD) 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 Sind 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 Register High Court dated 20th 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 no merits. On receipt of that intimation the appellant Tiled the present appeal on 27.12.1989 before this Tribunal seeking expunction of the impugned remarks.
2. Mr. Mohammad Nawaz Shaikh was heard for the appellant and Mr. Zawar Hussain Shah, AAG, 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 Reports on your work and conduct for the year ending 31st December, 1988 enumerates your good qualities, it also indicates as under:- 1988: PART-III Integrity
(a) Central............ "Below average"
(b) Intellectual..... "Below average"
4. PART-V "Does not carry good reputation among the members of ^ar and the public. Delays the announcement of interlocutory orders and final judgments. Trial to influence the obtaining of underserved A.C.R.
5. RART-VI b) Fitness for promotion: iii).................... "Not yet fit for promotion"
6. PART-VII "He should improve his working and should guard against integrity.
7. 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."
8. The learned counsel for the appellant attached the above adverse remarks on three grounds: 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. Contracting the appellant on the question of counselling the learned AAG took a stand in course of the arguments that it was administered to him before assigning adverse remarks. In support of his argument, he referred to para 3 of the written statement filed on behalf of the respondent, wherein the pica taken by the learned AAG was obviously confirmed. Accordingly we held that the argument of learned counsel for the appellant relating to counselling was without any substance.
9. 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 writ his ACR. In reply to this argument our attention was drawn to para 4 of the Instructions About confidential Reports, (herein after referred as the said Instructions), which reads as under:- "4. Minimus 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 an 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."
10. It is clear from the above instruction that the ACR can competently be recorded for the period not less then three months. Accordingly the contention raised in this behalf was also untenable.
11. 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 allegations 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 for the coming on the record. Moreover in absence of clear picture as regards bias to be depioted 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 the 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 of the above discussion, the appellant had absolutely no case on merits.
12. Apart form above, the appeal is liable to be dismissed even on technical grounds. As required by proviso (a) to Section 4 of the Sind 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 Sind Civil Servants Act 1973 and the rules thereunder. At this stage it may be relevant to refer to the Sind Civil Servants (Appeals Rules 1980 (hereinafter referred to as Appeal Rules) which were obviously framed under section 26 of the Sind 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 this said schedule.
13. However, it would be noticed that the said Instructions which enjoy the status of rules contain built- in machine 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 adverse 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 the rule 4 of the Sind 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.
14. Instead he made the representation to the High Court.
15. 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 arc 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 addresses, 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 on explanation as to why he quietly accepted the rejection of his representation at the level of the High Court and did not agitate the matter further by Tiling fresh representation before competent authority. The fact that after his representation was rejected by the High Court, he straightaway came to this Tribunal in the present appeal goes to show that his argument that the presentation was intended for the Chief Minister had no force.
16. Accordingly we have come to the contusion that the appellant did not fulfil the mandatory condition of exhausting the departmental remedy before Tiling his present appeal which is therefore not legally maintainable.
17. "However, in course of his arguments the learned AAC, 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 adverse remarks be disposed at the level of High Court or be forwarded to the Chief Minister for disposal.
18. Accordingly 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 he 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 AAG, he was asked to show if there was any legal basis in support of the majority view of the Administration Commiltce. In reply he expressed his inability to produce or point out any such basis. All that the learned AAG 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.
19. 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 instruction relating to all matters arising from ACRs awarded the civil servants. There is nothing the 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 instance. 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 section 6-A of the Sind 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 SAGAD's Notification No: SOR- I (SOS&WD)2/14-88(Pt-II), dated 28.6.1990 the Chief Justice of High Court has been declared as "Authority for the purpose of departmental proceedings taken under Sind Civil Servants (Efficiency and Discipline) Rules 1973. Until then the said power was exercised by the Chief Minister.
20. Keeping the above position in view, we are of the considered opinion that in order to ensure independence of judiciary it is most desireable that the representations arising from the adverse reports given to the judicial Officers should be disposed 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 of three most-senior 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 numbers 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.
21. The up-shot 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.
22. Given under our hands and the Seal of this Tribunal on this 31st Day of October, 1990 at Karachi.