' CH. MUSHTAQ AHMAD KHAN, J.---Malik Nasim Hassan, Civil Judge 1st Class, was posted at Lahore during the period with effect from 1-11989 to 30-7-1989. Mr. Ausaf Ali Khan, learned District and Sessions Judge, Lahore who was the Reporting Officer recorded his A.C.R. Describing him as honest officer and also noted in the A.C.R. Against the column relatable to integrity that there was no complaint against him. He also found him fit for promotion. Mr. Justice Muhammad Rafiq Tarrar, the Honourable Chief Justice (as His Lordship then was) being the Countersigning Officer, recorded following remarks in the A.C.R.--
(i) Not yet fit for promotion
(ii) An average officer with doubtful reputation for integrity.
' The abovesaid remarks having been considered adverse to the Civil Judge were conveyed to him.
He filed a representation which was rejected hence this appeal has been filed to challenge the aforementioned remarks.
2. Syed Jamshed Ali, Advocate, has appeared on behalf of the appellant, whereas Malik Muhammad Azam Rasool, Advocate has appeared on behalf of the respondents. Learned counsel has raised following contentions:--
(i) That the remarks about fitness for promotion cannot be considered to be adverse as at the relevant time the appellant was not due for promotion and therefore should not have been conveyed to him as "adverse remarks."
(ii) That the remarks of "an average officer" are also not adverse as the appellant shall be considered to be one out of lot many equals and hence should not have been treated adverse and conveyed to the appellant. In support of the above two contentions, reliance has been placed on the case of Muhammad Sadiq v. Secretary to Government of the Punjab, Irrigation and Power Department (1987 PLC (C.S.) 481).
(iii) That the remarks of doubtful reputation for integrity are uncalled for and are unjustified as the same are not based upon any material or a complaint particularly when the Reporting Officer has specifically mentioned in the report that there are no complaints against the appellant and has described him as an honest officer and further that without there being any material on the record, the questioned A.C.R. To the above extent is liable to be expunged. Reliance has been placed on case of Government of the Punjab through Additional Chief Secretary, Services General Administration and Information Department and another v. Abdul Matloob Khan, Extra Assistant Commissioner/Magistrate 1st Class, Gujranwala (1990 SCMR 1431).
3. Elaborating his arguments learned counsel has contended that he will be satisfied if an observation is made regarding first two remarks taken note of as items (i) and (ii) above that the remarks are not adverse and should not have been conveyed to the appellant.
4. Malik Muhammad Azam Rasool, Advocate, learned counsel for the respondent has not seriously contested the making of an observation to the effect that the remarks relating to fitness for promotion and the appellant being an average officer, are not adverse remarks should not have been conveyed to the petitioner. As regards portion of the report regarding integrity, learned counsel has vehemently contended that the mere fact that the A.C.R. Written by the Reporting Officer is contrary to the report of the Hon'ble Chief Justice, is not a ground to disbelieve the same as the Hon'ble Chief Justice may have his own information/material on the basis whereof the questioned report was recorded, therefore, no exception can be taken thereto. It is further contended that the word doubtful would mean "not above board" and it cannot be said that the A.C.R. Has been recorded with indefiniteness, therefore there is no force in this appeal which may be dismissed. In support of his contentions learned counsel has placed reliance on the following cases:--
(i) Muhammad Ahmad Afghani v. Government of Punjab and others (1993 PLC (C.S.) 142);
(ii) Sirajuddin Qureshi v. Administrative Committee of Sindh High Court (1985 PLC (C.S.) 704) and
(iii) F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. And 5 others (1994 SCMR 722).
5. In case of Muhammad Sadiq v. Secretary to Government of the Punjab, Irrigation and Power Department (1987 PLC (C.S.) 481) which is a decision rendered by the Service Tribunal. It has been held that the remarks about the fitness for promotion cannot be held to be adverse. In case of Sirajuddin Qureshi v. Administrative Committee of Sindh High Court (1985 PLC (C.S.) 704) it has been held that the superior officers cannot be asked to produce material forming basis of their opinion nor should there be any curb on them in expressing themselves freely while recording their opinion concerning their subordinates. If aggrieved subordinate feels that remarks were wholly unjustified he can only challenge the discretion by alleging mala fide. In case of WAPDA through its Chairman and another v. S.M. Rizwan Abidi (1994 SCMR 238) it has been held that the adverse report which has not been countersigned is not complete and should not be communicated unless the same is countersigned. In case of Muhammad Ahmad Afghani v. Government of Punjab and others (1993 PLC (C.S.) 142) it has been held that an adverse report arising out of subject-matter of departmental inquiry could not be permitted to be recorded. In case of F.Q. Matiullah Khan Alizai v.
Chief Secretary, Government of N.-W.F.P. And 5 others (1994 SCMR 722) it has been held that in case where no allegation was made against reporting officer or Countersigning Officer about their mala fides and their own reputation was not clouded their evaluation as to the performance of their subordinates should be accepted. In case of Government of the Punjab through Additional Chief Secretary, Services General Administration and Information Department and another v. Abdul Matloob Khan, Extra Assistant Commissioner/Magistrate 1st Class, Gujranwala (1990 SCMR 1431) at page 1432 it has been held as under : "3. The performance of a Magistrate is not so much a matter of reputation as of expert assessment by a superior from record and performance relatable to individual cases and situations. By resorting to the reputation as the source and not to the actual performance the Commissioner has justified his remarks by reference to a somewhat extraneous consideration. It is true that ordinarily, in recording remarks or opinions full reasons need not be given but the conclusions have to be based on facts and when in contest, as in this case the concerned officer should have plausible explanation to justify his conclusions. In this case that was not adequately done and the Tribunal was justified in interfering with it."
' In case of Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684) it has been held that the Purpose of Advisory remarks in the A.C.R. Itself would have no stigma on civil servant but is conveyed as a matter of caution for civil servants to correct himself.
6. We have considered the arguments addressed by the learned counsel for the parties have gone through the case-law referred to above and have also perused the record. We agree with the arguments of the learned counsel for the appellant that the A.C.R. With regard to the fitness for promotion as well as the report of the Countersigning Officer to the effect that the appellant was an average officer cannot be held to be adversed and therefore it was not even necessary to have conveyed the same to the appellant inasmuch as he was not due for promotion at the time of recording of A.C.R. And his assessme nt being as an average officer makes him equal amongst lot many others. As regards the other part of the adverse report recorded by the Countersigning Officer We find that Reporting Officer has specifically recorded in the A.C.R. That the appellant is honest officer and there is no complaint against him. The report of the Countersigning Officer is also not definite as it is stated in the report that the appellant is of a doubtful reputation. We have also examined the A.C.R. Of the appellant pertaining to the period 1-1-1990 upto 30-12-1990 which has been recorded and countersigning by the same Reporting Officer who has recorded the questioned .A.C.R. In the said report as well the Reporting Officer has described the appellant as honest officer and has specifically given note that there is no complaint against him. This report is countersigned by the Countersigning Officer who is the same learned Chief Justice of this Court who has recorded the earlier A.C.R. We have also gone through the Act of the appellant pertaining to the period from 1-1-1989 to 30-7-1989. The Reporting Officer has said in his report regarding integrity that although there is no specific complaint against the appellant yet he is not enjoying good reputation. His Lordship Mr. Justice Khalil-ur-Rehman, J., as a Countersigning Authority has made following report: "The officer was ratted good at public administration by the District and Sessions Judge (Mr. Muhammad Hussain Bhatti) in the A.C.R. For the period 1-1-1988 to 14-6-1988 and in the A.C.R. For 14-6-1988 to 26-10-1988, Mr. Abdul Hafeez Cheema rated him Good having worked well during his short stay: but for the period 1-1-1989 to 30-7-1989, the District and Sessions Judge (Rao lqbal Ahmad 'Khan) rated the officer as Average Officer and fit for promotion who did not enjoy good reputation. The remarks made in the pen picture column are also adverse. The remarks so made lose significance as this assessm ent is for a short period and that too when there has been neither any counselling providing a chance to the officer to improve nor proper assessment of the performance, nor there was any specific complaint (See columns (b) and (c). Even the office of the High Court did not receive any complaint concerning reputation/integrity of the officer during the relevant period."
This report was made by the learned Countersigning Officer on 4-8-1992. As admittedly there has never been a complaint against the appellant either before the High Court or before the Reporting Officer and the questioned report is for a short period whereafter the appellant has earned good reports one of which is by the same Countersigning Officer i.e, Mr. Justice Muhammad Rafiq Tarrar, J. And the report is also not definite, it appears to be advisory in nature.
7. Resultantly, we partly accept this appeal and maintain the Act as it is holding that the questioned A.C.Rs'. In relation to fitness for promotion as an average officer are not adverse hence should not have been conveyed and the report regarding integrity being not definite and contrary to preceding and succeeding reports, shall be deemed to be advisory in nature and shall not stand in way of promotion of the appellant as and when he is considered for promotion. There is no order as to costs.