' SHAFIUR RAHMAN, J.--- Leave to appeal was granted to the Province of the Punjab and its functionary under Article 212(3) of the Constitution to examine whether the Federal Service Tribunal was within its jurisdiction in expunging the adverse remarks recorded by the Chief Secretary as a supervisory officer in the character roll of the respondent No,1 for the calendar year 1982,
2. The respondent No,1 was during the calendar year 1982 posted as Deputy Inspector-General of Police, Sargodha and Faisalabad Ranges and Commandant Police College, Sihala. He was communicated the following adverse remarks recorded by the various officers:- "He absented himself from the 14th August, 1982 (Independence Day) Celebrations. A serious view was taken and he was transferred from the Range and posted as Commandant PTC Sihala.
' In addition to what I.-G(P) has stated in Part V of the ACR he also seemed to have influenced his S.Ps. To stay away from Independence Day Celebrations.
' I was very unhappy with the attitude of this officer."
3. He represented against it but did not succeed. He approached the Tribunal and while the Tribunal refused to interfere with the remarks recorded by the L-G.(P) and the Governor, it expunged the remarks recorded by the Chief Secretary. The Tribunal took the grading of average recorded by the Chief Secretary to be adverse against that of the I.-G.(P) which was 'good' and set it aside. The Chief Secretary had recorded another remark which was expugned and it was to the following effect:--- "In addition to what IG(P) has stated in Part V of the ACR he also seemed to have influenced his S.Ps. To stay away from Independece Day Celebrations."
' The reasons given by the Service Tribunal were as follows:-- "In our opinion, the remarks of the I.-G. Police must hold the field, because he was directly concerned with the working of the officer. Moreover, the Chief Secretary was presumably influenced by the solitary incident of 14th August, 1982. Under the rules, solitary incident cannot form the basis of such remarks. We, therefore, expunge the remarks of the Chief Secretary in Part VI(iii), and restore the remarks of the I.-G. As recorded in Part VI(a)."
' As regards the other remarks, the following observations were made:- "There are then the remarks of Chief Secretary in Part VII(a) of the report which are sought 'to be expunged. These are as under:-- ' In addition to what IG(P) has stated in Part V, he also seemed to have influenced his S.Ps. To stay away from Independence Day Celebrations.
' The above remarks, in our opinion, are uncalled for. No doubt, in Sargodha Division, S.Ps. Did not participate, nevertheless, in the other stations, except in the Headquarters, of two newly-created districts, there was full participation. The non-participation in the newly-created districts was due to the fact that the headquarters had not been shifted. This is borne out from the record. In our opinion, the remarks recorded by the 1G Police were sufficient and there was no need of making any addition. The remarks in Part VII(a) are, therefore, expunged."
4. Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate-General, Punjab stated that the grading of an officer as an 'average' did not amount to adverse remarks and hence was not required to be communicated nor could a representation or appeal lay before the Service Tribunal.
To that extent, the action taken by the Service Tribunal was, according to him, completely without jurisdiction. As regards the other remarks, they were recorded by an officer superior to the IG(P) and the principle prescribed for giving relative importance and finality to the remarks assigns greater value to the superior's opinion than to an officer lower in hierarchy. That principle, well established and entrenched in the rules, had, according to the learned Assistant Advocate-General been grossly violated by the Tribunal holding otherwise.
5. Mr. Fazal Elahi Siddiqui, Advocate, the learned counsel for the respondent No,1 has, on the other hand, defended the judgment of the Service Tribunal on the ground that it could review the opinion and the opinion being subjective and not objective, could be set aside. He has referred to our judgment in the Secretary, Government of Punjab v. Ahmad Kamaluddin 1981 SCMR 392 in support of his contention.
6. The instructions which have the force of rule applied by the Punjab Government with regard to the recording of Annual Confidential reports prescribe under instructions Nos.32, 35 and 39 as hereunder:-- "32. Communication of adverse remarks.-- - The heads of Attached Departments, secretaries to Government and other authorities dealing finally with the reports should see that the Government Servants reported upon are made aware of any defects pointed out in the confidential Reports/Evaluation Reports recorded by Heads of Training Institutes.
35. When a report consists of opinions of different departmental superiors in gradation, it is only the opinion as accepted by the highest reporting officer which need be considered from the point of view of communication.
39. If a person's integrity is adjudged as "average", it shall not be construed to be an adverse remark and shall not communicated."
7. The Instructions of the Federal Government also provide that adverse remarks should be communicated to the Officer concerned. It is clear from these instructions that under the Rules, a right of representation and consequently a right of appeal before the Tribunal is available only where a remark is adverse. As the remarks 'average' in respect of overall performance have not been considered and are not considered to be adverse, no representation or appeal lay before the Tribunal and the Service Tribunal went beyond its jurisdiction in expunging the remarks average from the Annual Confidential Report.
8. The instructions reproduced above also show that it is the remark of the higher officer which prevails over that of a subordinate. The Service Tribunal has by giving precedence to the opinion by the IG(P) simply because he directly deals with him, has violated the established principle rooted in the system of hierarchical bureaucracy. No other fault has been found in the opinion recorded by the Chief Secretary. The Chief Secretary was free to record his own impressions and opinions and unless it was manifestly untenable, the same could not be substituted by the opinion formed by the Service Tribunal from the limited material that was before it during the hearing of the appeal.
9. In the circumstances, the appeal is accepted. The judgment of the Service Tribunal is set aside and the Service appeal filed by the respondent No,1 is dismissed.