' SALEEM AKHTAR, J.---The appellants with the leave of this Court have challenged the judgment of the Balochistan Service Tribunal whereby the appeal filed by the respondent against the adverse remarks recorded in his ACR for the years 1989 and 1990 by appellant No,1, was allowed.
2. Leave was granted to consider the questions whether the observations made by the Balochistan Service Tribunal that the record of annual confidential reports after some clay is not worth consideration and that the assessme nt of the Reporting, Officer and the first countersigning officer have greater value than that of the second countersigning officer are justified in view of the law laid down by this Court.
3. The following are the remarks which were recorded by appellant No,]: and were challenged before the Tribunal:-- "1989:
(i) Overall assessm ent Poor
(ii) Fitness for promotion Unfit for further promotion
(iii) Remarks: Incompetent, inefficient and indisciplined officer. A professional intriguer negative approach. Not to be further retained in the service in the overall interest of the department.
1990:
(i) Overall assessm ent: Poor
(ii) Fitness for promotion Unfit for further promotion.
(iii) Remarks: An incompetent and inefficient officer. More interest in playing intrigues. An undesirable officer. In habit 'of pressurising his superiors in service matters."
' Both these remarks were completed on 25-3-1991 and were communicated to the respondent on 30-3-1991. It seems that the ACRs for the years 1989 and 1990 were initiated by the Assistant Director, Small Industries, Quetta Zone. In the ACR for the years 1989 and 1990 recorded on 13-2- 1990 the respondent was rated as 'good' and 'obedient' and had earned 'A' remarks. The respondent was also said to be 'an obedient subordinate'. The first countersigning officer agreed with it and added that the official is efficient, honest and hard working. It is the second countersigning officer, Mr. Zahoor Ahmed Durrani, who disagreed and made the adverse remarks.
The Tribunal had called for the relevant records and examined the adverse entries and the manner in which they were written was noted in the following words:-- "The ACRs for the year 1990 was completed in time but the perusal of the same shows that the initiating officer Mr. Ghulam M. Baloch had reported that the official is honest and obedient. The first countersigning officer Mr. Juma Khan agreed with the reporting officer but the 2nd countersigning officer, the respondent No,3 disagreed with reporting and first countersigning officers on 25-3-1991 and has written in his prescribed column 'an incompetent and inefficient officer' with a separate pen. 'More interesting in playing intrigue. An tmdesirable officer.' Respondent No,3 had further added a few words and later on erased and signed. It seems at the 3rd glance with another ink he has added 'in habit of pressurising his superiors in service matters'. This shows the mala fide and damaging mood of the respondent."
4. The learned counsel for the appellants contended that the respondent was insubordinate, inefficient and had been approaching the higher authorities in the Secretariat and, therefore, the Director had correctly made the remarks, which were based on his opinion about the respondent.
The learned counsel further contended that the opinion expressed by the Director, who was the Second Countersigning Officer, should prevail over all other remarks. Reference was made into Province of the Punjab through Chief Secretary v. Sardar Noor Ilahi Khan Leghari (1992 SCM R 1427) where reference was made to instructions 32, 35 and 39 of the Government of the Punjab for recording ACRs, Instruction 35 provided that 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. It was observed as follows:-- "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."
' It may be noted that the ACR is recorded according to the prescribed procedure, which is initiated by the officer who directly supervises the officer and the countersigning officers have their own information and opinion for recording the ACR.
' Rule 35, referred to above, confers precedence to the opinion of the highest reporting officer from the point of view of communication. Usually it is only the adverse remark which is communicated to an officer and therefore if the highest reporting officer gives an adverse remark disagreeing with the initiating officer, the communication will be in respect of this remark. It therefore follows that if the highest reporting officer does not agree with the departmental superior officers in gradation and records a favourable remark for the officer, such remark need not be communicated or if at all it is to be communicated, it is the remark made by the highest reporting officer. Furthermore, the Service Tribunal has limited jurisdiction. Where ACRs are challenged, the principle enunciated in Sardar Noor Ilahi Khan Leghari's case does confer a power on the Service Tribunal to disagree with the opinion of the highest reporting officer unless it was manifestly untenable, biased or prejudiced.
In the present case the Tribunal has discussed the manner and the nature of the remarks which had a background and has come to the conclusion that appellant No,1 was biased. This question of fact has been decided by the Tribunal with which we see no reason to differ. Once an ACR is the result of bias and prejudice, it cannot stand. Such biased ACRs do not have any legal validity and must be expunged from the record even if they have been made by the highest reporting officer.
5. The learned counsel contended that the respondent was in the habit of approaching the Ministers and other high officials for gaining favour and for this reason the remark of appellant No,1 was justified. The learned counsel referred to the transfer ordered by the Minister directly, which was not according to the rules. The respondent, who has appeared personally, denied to have approached the Minister for his transfer. The Tribunal has also not given any finding to the effect that he had approached the Minister for his transfer. The learned counsel referred to a letter written to the Minister of Industries, Balochistan, for transfer of the respondent 'from Mach to Quetta'. This letter was written by the father of the respondent stating that he was 80 years old, not enjoying good health and often requires medical attention. He had prayed that his son, who had been transferred from Quetta to Machh may be re-transferred as he needed his attention and also that he (respondent) would look after his old mother. It seems that on this letter the respondent was transferred and as observed by the Tribunal, this seems to have annoyed appellant No,1. If such a letter would have been written by the respondent, perhaps appellant No,1 would have been justified to say that the request was not moved through proper channel and amounts to insubordination.
However, the facts are different from what has been presumed by appellant No,1.
6. The learned counsel then contended that the observation of the Tribunal that "recording of ACR after some delay is not worth consideration", is not according to law. In fact the Tribunal while recounting the facts that the ACR for the year 1989 was completed on 25-3-1991 and adverse remarks were incorporated, observed that such time-barred adverse remarks are not worth consideration. It is true that according to rules the ACR for the year is to be completed within the prescribed period, but if there is some delay, it will not completely vitiate the remarks. However, depending on the facts and circumstances longer unexplained delays may adversely reflect upon the authenticity of such adverse remarks. Perhaps the Tribunal was under the impression that it is delayed communication which adversely affects the authenticity of an adverse remark. As the Tribunal has held that the adverse remarks were biased and prejudiced, the question of recording in a delayed manner of communicating it at a delayed time loses its significance. If an adverse remark has been recorded due to bias and prejudice, even if it is recorded at the earliest and also communicated at the earliest, it shall remain vitiated. We, therefore, dismiss the appeal with no order as to costs.