1. ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --The facts of this appeal are that the appellant Mr. Liaqat Ali is working as Assistant Security Officer (Grade-16) in the Airport Security Force, Karachi since 1976. In the year 1988, promotions to the posts of Security Officers took place and some juniors to the appellant were promoted. The appellant made representation and was informed vide letter, dated 2nd January, 1989 from the ASF Headquarter, Karachi, as under:-- SUBJECT: PROMOTION TO THE RANK OF SECURITY OFFICERS Your application, dated 7th December, 1988 refers.
(1) During the DPC your complete record of service was reviewed and following observations were made by the promotion committee:-- S. No.ACR Year endingObservations (a)1976Practical application weak. Not yet fit for promotion.
2. (b)1977Advised to improve professional skill, (c)Suspended on the ground of wilful absence from duty on September, 1978 to 16th September, 1978.
3. (d)1980He may not leave tin opportunity coming his way in a corrupt surroundings. Command and control is average, at time loses his tamper. An average officer who is not yet fit for promotion.
4. (e)1982He needs to develop his command and control qualities and show more drive.
5. (f)1984A little arrogant, needs tactful handling. The officer tends to be clever. Not yet fit for promotion.
6. (g)1987Not yet fit for promotion.
(2) In view of abovementioned lapses, your case was not considered fit for promotion and according to Establishment Division letter No.1772/88-CP-4, dated 30th October, 1988 you were declared "SUPERSEDED".
7. (Sd.)
8. COLONEL MUHAMMAD YOUSAF KHAN; DEPUTY FORCE COMMANDER AIRPORT SECURITY FORCE.'
9. The appellant made a departmental representation dated 7-2-1989 against the aforesaid letter dated 2-1-1989, and in reply to his representation, he was informed by letter, dated 15th March, 1989 as under:-- "Reference to your application dated 7-2-1989 and ASF Headquarters Letter No. 51/116/80/FS-1, dated 4-3-1989 on the above subject:
(1) The undersigned is directed to convey you that there exists no provision under which the individual can ask explanation as to why he has not been promoted in DPC the record of all the officers under promotion are placed before the Committee and only those officers are promoted who have better records.
(2) You are also advised to refrain from putting up such representation in future.
10. (Sd.)
11. TANVEER ARIF KHAN, ACTING ASSISTANT DIRECTOR (ADMN.)."
12. The appellant made yet another representation dated 27-8-1992 for expunction of adverse remarks, which was rejected by the competent authority by letter, dated 13th September, 1992.
13. Feeling aggrieved by this communication, the appellant preferred this appeal before the Tribunal on 11-10-1992.
2. Mr. Kanwar Mukhtar Ahmad, the learned Advocate appearing for the appellant has argued that the appellant was never communicated any adverse remarks in his ACRs and it was for the first time that in 1989 he was informed that DPC had not considered his case for promotion on the basis of his record and adverse entries in his ACRs, reproduced above, and therefore, these uncommunicated remarks cannot be considered to be adverse and need expunction.
3. Mr. Niaz Ahmed Khan, the learned Standing Counsel for the respondents submitted that the department had not considered the remarks recorded in his ACR as adverse and the appellant was superseded keeping in view the overall record of service and the appeal is not competent.
4. It was for the first time that in 1989 the appellant was informed that DPC had not considered the appellant for promotion on the basis of his complete service record which included the ACRs for the years 1976, 1977, 1980, 1982, 1984 and 1987, and this !'act is quite clear that the ACRs for the aforesaid period were duly taken into account while considering his case for promotion, and he was actually superseded on that account and this fact finds mention in the, comments filed by the respondent department in para. 3 thereof. Therefore, it cannot be said that there were other considerations than the ACRs due to which the appellant was superseded, but no such record has been produced before us. According to Guide to Performance Evaluation, any adverse entry recorded in the ACR of a civil servant has to be communicated to the concerned civil servant, within time, so that he my be able to file departmental representation against those adverse remarks, and rectify his shortcomings. It is a settled law that the adverse remarks not communicated to a civil servant cannot be used to harm or penalise a civil servant. Therefore, we are inclined to accept the contentions of the appellant that the adverse remarks were wrongly given due weightage while superseding him. Therefore, we direct the respondents to review the case of the appellant for promotion keeping aside these adverse remarks which were admittedly never communicated and are expunged as he was eligible for consideration of promotion to the post of Security Officer. With these observations, the appeal is disposed of accordingly.