' MUNAWAR ALI KHAN (CHAIRMAN).---By this appeal, Mr. Wajid Ali Shaikh, an Executive Engineer, presently working as Section Officer in the Communication and Works Department of Sindh Government (hereinafter referred to as Administrative Department) has sought expunction of the adverse report assigned to him for the year 1985. The impugned report which was communicated to him by letter, dated 2nd October, 1986, of the Administrative Department reads as under:- "Mr. Wajid Ali Shaikh is highly corrupt, unreliable and a devious officer. There were persistent complaints against him with regard to patronizing pet contractors and letting out works at higher rates. A letter of warning was issued to him which is on record, but he failed to improve his conduct.
He is slur on his profession and is not fit to continue in Government service."
' The appellant made representation dated 5-11-1986 against the above report to the Chief Secretary. After his representation was rejected by the Chief Secretary vide Administrative Department's letter dated 25-3-1989, he preferred the present service appeal on 25-4-1989.
' We heard the arguments of the learned counsel for the parties and also went through the relevant documents.
2. The report sought to be expunged was admittedly made by the Secretary of the Administrative Department in his capacity as second Countersigning Authority. In course of his arguments the target of attack of the learned appellant's counsel was impugned report which according to him was ultra vires of the "Instructions About Confidential Reports", hereinafter referred the said Instructions. Elaborating his view point, the learned counsel submitted that the Secretary did not figure in the prescribed Reporting Channel, therefore, the report given by him being without any legal effect had to be scored off. It is true that the normal reporting channel prescribed by the said Instructions consists of reporting authority, countersigning authority, communicating authority and expunging authority. In this connection reference may be made to the instructions at S.No, 7.
3. Despite the above position, in some specified cases the reporting channel extends to embrace even second countersigning authority. The relevant instruction in this behalf is Instruction No, 9 printed on page 9 of the prescribed Form for writing ACR It reads as under: If ".In certain categories of cases remarks of a second countersigning officer may also be required to be recorded. The Establishment Division will, identify such cases from time to time and also designate an officer as second countersigning officer for each category. The second countersigning officer will record his remarks in part VII(b)."
It is clear from the above Instruction that like countersigning authority, second countersigning authority does not automatically come in the picture in every case of ACR. The second countersigning authority will appear on the scene to deal with the ACRs, only after two conditions are satisfied: namely one, that like Establishment Division at the Federal level, the S&GAD in provincial cases will identify category of cases in which second countersigning authority is required to record his report and two, that the said Department will further designate officers as second countersigning authority for the specified category of cases. To reinforce the above view, we may refer to page 6, of the prescribed Form for writing ACR. The words "if any" appearing within bracket immedtely following the words "Remarks of the second countersigning Officer' on the above page are manifestly indicative of the fact that second countersigning authority is not available in each and every case of ACR.
4. Having arrived at the above conclusion, we may now proceed to find out if the category of officers of the appellant grade and status has been declared by the S&GAD as the Category of Officers in which second countersigning authority is also required to record his views and if so whether the Secretary of the Administrative Department has been designated as the second countersigning officer for the said purpose. No doubt the plea taken by the appellant in this regard vide para. 14 of "ground of his memo. Of appeal is refuted in reply appearing at S.No, 8 under caption "reply to grounds" in the written statement filed by the learned A.A.-G. On behalf of the official respondents. But the denial is patently vague, unsupported by any legal back. However, when the learned A.A.-G. Was confronted with the requirement of the Instruction No, 9 reproduced above. He was constrained to concede that before recording of the impugned report, the Secretary of the Administrative Department was not designated as second countersigning officer in respect of the category of the officers of the appellant's grade and status as no such order/notification issued by the S&GAD was available in the file of the Administrative Department.
5. On the other hand our reference was invited to the correspondence exchanged between the S&GAD and Administrative Department on the above issue. The first letter in the chain is that of the S&GAD bearing U.O. No, SOTXREG (S&GAD) 17/59/81, dated 7th August, 1982 addressed to the Secretary C&W Department, forwarding a revised statement therewith, indicating the authorities competent to initiate and countersign ACRs and the authorities competent to communicate the same in respect of officers of the Communication and Works Department. The second countersigning authority is conspicuously missing from the revised statement approved and forwarded by the S&GAD to the Administrative Department. The earlier statement indicating the reporting channel stood replaced by the revised statement referred to above. Another letter that we came across was that of the Communication and Works Department U.O. No, EI (C&W) 1-8/78-1, dated 6-11-1989 whereby fresh proposals regarding authorities dealing with ACRs of officers of BS- 16 and above belonging to the C&W Department were sent to the S&GAD for approval. Nowhere throughout the said proposals appeared the second countersigning authority.
' The third letter U.O. No, EI(C&W) 1-20/89, dated 2nd April, 1990 written by the Administrative Department to the S&GAD reads as under:
(1) The Section Officer (Regulation II) Services and General Administration & Wildlife Department, Government of Sindh, may kindly refer to his U.O. No, SOR-II (S&GAD) 6/1/90, dated 18-2-1990 on the subject noted above.
(2) It is stated that the reporting channel about writing of, confidential reports in respect of this department has been laid down and circulated to all concerned which was duly approved by the S&GAD vide its U.O. No, SOIX-REG (S&GAD)II/59-81, dated August, 1982 (copy with enclosures is enclosed).
(3) It is further mentioned that the S&GAD vide its Circular No, SO.R-I (SGA&WD) 11/59/81, dated 24- 5-1989 has desired fresh proposals on the subject, which have already been forwarded vide U.O.
No, EI(C&W) 1-8/78-I, dated 6-11-1989.
(4) Perusal of both the charts viz. The existing one as well as that of proposed, shows that Secretary, C&W has not been prescribed as second countersigning officer'in respect of Executive Engineers."
6. It would appear that after making reference to first and second letters the letter reproduced above states in para. 4 that neither in the existing chart nor in the proposed one, Secretary, C & W has been prescribed as second countersigning authority in respect of Executive Engineers. This statement has been confirmed by the S&GAD in its U.O. No, SOR-11 (S&GAD) 6-1/90, dated 2-5-1990.
The position with regard to reporting channel as explained above was circulated amongst the Chief Engineers, High Way Department and Building Department and 'Director-General Design vide Administrative Department's Letter No, EI (C&W)1-20/89, dated 8th May, 1990 which reads as under: "I am directed to refer to the subject noted above and to state that the existing reporting channel for writing of Annual Confidential Reports do not indicate the Secretary, Communications and Works Department as second countersigning officer nor the fresh proposals for prescribing the reporting channel sent to the Services and General Administration Department indicate Secretary, Communications and Works Department as countersigning officer for officers in BS-18.
(2) A copy of the Services and General Administration Department' U.O. No, SOR-II (S&GAD) 6-1/90, dated 2-5-1990 is enclosed herewith for your information and record."
7. From the above correspondence we are convinced that no second countersinging officer was ever designated for the purpose of dealing with ACRs of the category officers of BS-18 including the appellant. As such the Secretary of the Administrative Department had no power to interpose as second countersigning authority in respect of the appellant and assign him adverse report in the said capacity.
8. In course of the arguments, we were also shown the C&W Department's order dated 2nd May, 1990 whereby a number of officers of the Department including appellant were allowed move-over to higher scales of pay from the dates mentioned against their names. The appellant was allowed move-over w,e,f, 1-12-1986 indicating thereby that the adverse report given to him by the Secretary, C & W for the year 1985 as second countersigning authority was obviously ignored and in our opinion rightly. Besides this we have minutely gone through the whole report assigned to the appellant for the year 1985. It would appear that excepting the Secretary, C & W Department who has unauthorisedly given the appellant adverse report, there is nothing adverse in the rest of the report. Although the Reporting Officer (S.E.) has mostly rated the appellant as average officer, yet in the opinion of countersigning authority (Chief Engineer).
"Mr. Wajid Ali Shaikh is quite tactful and matured officer and takes full interest in works.
Performance was good is very reliable, obedient and hard working Engineer."
' In view of above discussion we have come to the conclusion that the impugned report was not in keeping with legal requirements and as such it cannot be permitted to remain as a part of the appellant's ACR Dossier. Accordingly the appeal is accepted, with no order as to costs and the impugned adverse report is hereby expunged.