' CH. MUSHTAQ AHMAD KHAN (MEMBER).---Briefly stated facts of the case out of which this appeal has arisen are that following adverse remarks were recorded in the Annual Confidential Reports of Muhammad Ashraf Shagufta, Additional District and Sessions Judge, Jhang presently posted at Lahore for the periods of 1-1-1989 to 31-12-1989 and 1-1-1990 to 30-6-1990:- {{TABLE}} "(i) PART-V
(a) Pen-picture: does not enjoy good reputation; Rather is reputed to be corrupt. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity Corrupt."
(ii) PART-VI
(b) fitness for promotion Not yet fit for promotion.
(c) Integrity: By exercising Caution is trying to improve his integrity." {{TABLE}} ' Above referred remarks were recorded by the Reporting Officer Mr. Justice Akhtar Hassan (as his Lordship then was) on 28-8-1990 and 27-5-1991 respectively and were conveyed to the appellant vide D.O. Letters. Dated 2310-1990 and 4-7-1991. The appellant filed two representations for expunction of the aforementioned adverse remarks, which were rejected by the High Court vide order dated 26-10-1992, which orders were served upon the appellant on 8-11-1992. The appellant has, hence, filed this appeal to challenge the legality of the aforementioned remarks with a prayer for expunction thereof. It may be mentioned here that prior and later to the aforementioned period, the appellant has a blotted service record and he has never been conveyed any adverse remarks.
2. Kh. Muhammad Habib Ullah, Advocate has appeared on behalf of the appellant, whereas Malik Muhammad Azam Rasool, Advocate has appeared on behalf of the respondent.
3. Learned counsel for the appellant has contended that the appellant had more than 20 years of blotless service record at his credit at the time when the aforementioned remarks were recorded and that there being absolutely no basis nor was any counselling ever made, and further that the said remarks have been recorded in violation of the instructions applicable to the subject, hence, the same are liable to be expunged. It is contended that even the remarks were conveyed to the appellant with an inordinate delay and, hence, had lost their efficacy at the time of their conveyance, as such, on this account as well the said remarks are liable to be expunged deleted from the service record of the appellant. In support of his contentions learned counsel has placed reliance on the cases of the Secretary, Government of Punjab v. Ahmad Kamaluddin (1981 SCMR 392), Shaukat Ali v. Government of the Punjab (1983 PLC (C.S.) 774), Nazir Ahmad Kasana v.
Secretary to Government of Punjab, Agricultural Department, Lahore (1988 PLC (C.S.) 91), Chairman, Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 S.0 14), Government of 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), Muhqmmad Ahmad Afghani v.
Government of Punjab and others (1993 PLC (C.S.) 142) and F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. And 5 others (1994 SCMR 722) as well as case of Sh. Abdul Rashid v. Lahore High Court, Lahore through its Registrar etc. 1995 PLC (C.S.) 960, decided by this Tribunal on 12-4-1995 and Lahore High Court through Registrar v. Muhammad Ilyas and another (C.P. No,174/L of 1993) decided by Hon'ble Supreme Court on 3-5-1994.
4. As against the above arguments, Malik Muhammad Azam Rasool, Advocate, learned counsel for the respondent has contended that the remarks have been recorded by the Reporting Officer, who was an Hon'ble Judge of the High Court and as there are no allegation of mala fide, it cannot be said that the remarks are incorrect or not lawful. It is further contended that it is the objective satisfaction of the Reporting Officer, which is relevant factor and, hence, even if there is no substantial and tangible material in support of the remarks are not valid illegal, in absence of any allegation and proof of mala fides. In support of his contentions, learned counsel has placed reliance on the case of 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 Ahmad Afghani (supra) it has been held that adverse remarks recorded on the basis of a departmental inquiry, which was decided in favour of the servant and the penalty was only of censure, the adverse remarks recorded on the basis of the said inquiry in the civil servant's Annual Confidential Report were ordered to be expunged. It has further been held at page 146 of the report that adverse remarks in the Annual Confidential Report in relation to a civil servant, who has unblemished service record of about 21 years, without any adverse entry, is a sufficient stance to order the expunction of remarks relatable to a short period of his service. At pages 145 and 146 .Of the report, it has been held:- "7. The fact remains that the adverse remarks were recorded even by the High Court when the inquiry against the appellant had still not been concluded. Para.28 of the Instructions and the decision rendered in Abdul Rashid's case do not permit recording adverse remarks which may be arising out of the subject matter of a departmental inquiry. The provision was to place a copy of the result of the inquiry on the record of the officer. This was not done here. The inquiry, however, was finally decided in favour of the appellant in that the penalty of censure awarded to him was set aside in appeal by the Government of the Punjab. Obviously it was a case of total exoneration from those charges. The language of the impugned remarks as modified by the High Court reflected that those were stemming from the inquiry which till then was not finalized. On this ground alone, those could not be sustained.
8. The appellant's claim that these were the first ever adverse remarks communicated to him in his entire 21 years service career was not disputed. Learned counsel for the respondents could not bring on record any other remarks which may have been reflective upon the appellant's conduct.
The appellant maintained that respondent No,3 in his written reply failed to justify those remarks in that he offered no comments on that behalf. He placed reliance upon 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) wherein it was observed that at least some reason for recording adverse remarks should have been offered.
' Explanating why the appellant was treated so harshly in the A.C.R. He submitted that the Reporting Officer, namely, Malik Lutaf Ali, District Judge was suspended on a complaint of corruption by Mr. Ashiq Mazari and that, right or wrong, he believed that the said complaint was manoeuvred against him by the appellant. This is how he asserted that the remarks were mala fide. He further argued that Malik Lutaf Ali's credentials had been doubtful even otherwise as he was served with a notice of dismissal in the year 1972. Moreover, he canvassed that despite these adverse remarks, he was first promoted as Senior Civil Judge and later as Additional District and Sessions Judge meaning thereby that the pungency of the remarks stood automatically diluted and that practically there was no use to allow them to exit on the record.
9. It was established that this was a first instance of record adverse remarks against the appellant.
In Farooq Ahmad v. Superintendent of Police, Sahiwal and 2 others (1983 PLC (CS) 1295) unblemished record of 14 years was considered enough reason to expunge as adverse remarks.
The appellant's service career was much longer, that is 21 years without any entry. There should have been some strong reason and, of course, justified that he had deteriorated his image so as to have been dubbed to be a reputedly corrupt officer. The element of mala fides was not totally absent in that the reporting officer's own credentials in having been once served with a notice for dismissal, and virtually suspended on another occasional reflected that he had not been objective in recording remarks against a subordinate. This impression finds further support from the extreme nature of remarks recorded against the appellant. In the column of 'pen-picture' he was shown to be hundred per cent. Liar, first class intriguer and reputed to be corrupt officer. Using epithets like 'hundred per cent'. Or 'first class' was no manner of dbjectively assessing a subordinate. The element of extremeness exhibited in the expressions was rather in a way counter-productive so as to cast 'reflection upon the reporting officer himself. This appeared to be the reason why the High Court substituted his remarks by choosing words of lesser grade. Learned counsel for the respondents offered no comments upon using extreme language by the reporting officer faced virtual suspension and an inquiry at Dera Ghazi Khan. This incident largely suggested a reactionary approach on his part presumably believing the appellant to be involved in manipulating trouble for him. Nor could the counsel adduce any explanation as to why in spite of these remarks on the record, the appellant was promoted almost two times to comparatively higher posts. Usually such remarks create hurdle in one's promotion, but here they were not so rated resulting in their total disregard. If the officer reported upon goes on getting better and better position progressively vis- a-vis such remarks, it would be deemed that the Authorities competent to grant him promotion had literally rendered them of no effect against his career. Further, if the respondent's own attitude exhibits such an impression, there was nothing for 'us to stick to the position that the remarks cannot be expunged. The factum of holding a full-dress inquiry against the appellant and his gaining acquittal in the end, should yield some beneficial result in his favour. The remarks arising out of the allegations comprising subject-matter of the inquiry should not, as a matter of salutary rule, be allowed to continue appearing in the record against him."
6. In case of Government of Punjab through Additional Chief Secretary (supra) it has been held that the instructions regarding the recording of Annual Confidential Report have the status of rules made under the Civil Servants Act, 1973 and although recording of the remarks is within the exclusive competence of the superior officers, yet, such record is not immune from review or reconsideration and adverse remarks being reviewable under the rules, appeal to Service Tribunal held competent in appropriate cases. At page 394 of the report it has been held as under:- "The Civil Servants Act while enumerating the terms and conditions by subsection (2) of section 23 provides that 'any rules, orders or instructions in respect of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act.' On the strength of this provision the instructions with regard to the recording of the remarks, their communication and expunction would have the status of rules made under the Civil Servants Act and would be determinative of the terms and conditions of service. The recording of the remarks is indeed within the exclusive competence of the superior officers but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appropriate cases."
7. In case of F.Q. Matiullah Khan Alizai (supra) it has been held that Annual Confidential Report has to be recorded on the basis of some material and, therefore, any remarks which are recorded without any basis or material are not sacrosanct from interference in appeal. At page 1432 of the report, it has been held as under:- "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."
8. In case of F.Q. Matiullah Khan Alizai (supra), it has been held that the Annual Confidential Reports recorded by the superior officers are to hold the field, unless, malice is alleged against the Reporting or Countersigning Officer. In this case, adverse remarks in the Annual Confidential Report were upheld, for the reasons that countersigning officer had disclosed the source on the basis of which he formed his opinion about the performance of civil servant and he had otherwise summoned and the civil servant to remain careful before recording of his adverse remarks. It was held that such adverse remarks were not founded solely on reputation but also on the performance of a civil servant. Case of Abdul Matloob Khan (supra) was taken note of in the judgment and was not disapproved. In case of Sh. Abdul Rashid (supra), it has been held by this Tribunal that Annual Confidential Report which is not based on any instance on the basis of a supposed information supplied or allegation made by a complainant, who does not have the moral courage to disclose his identity, cannot be upheld as the Annual Confidential Report describing a person as corrupt, has very serious consequences, effecting the whole service career of a civil servant and also his general reputation in the society. In case of Lahore High Court through Registrar (C.P. No,174/L-93), decided on 3-5-1994 where the Service Tribunal had expunged the adverse remarks against Mr. Muhammad Ilyas, Civil Judge under the circumstances identical to the case in hand, the order of the Service Tribunal challenged before their Lordships of the Supreme Court of Pakistan, petition was dismissed by their Lordships, with the following observations as contained in paragraph 3 of the order:-- "The learned counsel for the petitioner contended that the Tribunal could not expunge adverse remarks recorded by the Lahore High Court as Countersigning Authority and that information received from other sources could be made basis for recording A.C.R. And that there was no mala fide on the part of the recording Judge. These contentions have no force. Respondent No,1 had a clean record of service. Although information can be gathered from any sources, the manner in which the information was conveyed, was not proper and should have been ignored. Having given a favourable remark in writing, how could the same District and Sessions Judge verbally communicate an adverse opinion, completely contrary to what he had written. Leave is refused."
9. We have considered this case in the light of the arguments addressed at the Bar as well as the case-law referred to above.
10. It stands established on record that there is no tangible complaint against the appellant throughout his service career till today. This fact has not been denied by the learned counsel for the respondent. It also stands established that prior to the relevant time when the A.C. Rs, in question were recorded, the appellant had earned good reports for a period of about 20 years of his service. The Reporting Officer who was the learned Inspection Judge as well, had only once inspected the Courts in the year 1988 and had not recorded any adverse remarks against the appellant at that time. Therefore, there being no incriminating material or instance of corruption the report had to be recorded in terms of paragraph 23 of the relevant instructions, which is reproduced as under:- "Report on Integ. ---Integrity is the most important trait of character of a Government servant. It should be assessed without fear or favour. The report should not be vague, but definite an officer may be reasonably believed to be corrupt, if--
(i) he has a general and persistent reputation of being corrupt; or
(ii) any of his dependents or any other person through him or on his behalf is in possession of pecuniary resources or property disproportionate to his own sources of income or which he cannot account for satisfactorily; or Explanation.- -The dependents will include wife, wives, children, stepchildren, parents, sisters and minor brothers, residing with and wholly dependent on the reporting officer.
(iii) he has assumed a style of living beyond his means."
11. There is nothing on the record on the basis whereof it could be said that the appellant had generally and persistently a reputation of being corrupt, therefore, we are of the view that the A.C.Rs, recorded by the learned Reporting Officer are without any lawful basis and justification, hence, are liable to be expunged.
12. As regards the argument of the learned counsel for the respondent as based on the case of F.Q.
Matiullah Khan (supra), to the effect that without there being any allegation of malice, the A.C.Rs, in question cannot be expunged, suffice it to say that the said case is distinguishable on facts as in the said case the source of information for recording of adverse remarks had been disclosed by the Reporting Officer and the civil servant had also been twice summoned and warned but in spite that of he did not improve, hence, adverse A.C.R. Was recorded against him. In this case, neither is there any complaint nor any source has been disclosed nor is there any counselling. Consequently, on the basis of supposed information or reputation which does not have even an ethereal existence, the questioned adverse reports could not have been recorded against the appellant.
The case is fully covered by the law declared in cases of Abdul Matloob Khan, Sh. Abdul Rashid and Ahmad Kamaluddin (supra)
12. Resultantly, we accept this appeal and direct the expunction of the questioned adverse remarks from the Annual Confidential Reports of the appellant. No order as to costs.