' S.M. ISHAQ (MEMBER).---In February, 1992, some Associate Physicians, who were junior to the appellant, Dr. Najmul Ghani Khan, in BPS-18, were promoted by superseding him. The appellant's case is that he came to know that the reason for his supersession was the Annual Confidential Reports for the years 1975, 1977, 1978 and 1979 which were initiated by a BPS-18 officer and for the year 1983, initiated by a BPS-20 officer and countersigned by an officer of BPS-19.
2. The appellant on coming to know all these facts filed a departmental appeal on 6-6-1992 praying therein as follows :- "4. For the years 1978 and 1979, the reporting officer was Dr. S.M. Malik. He was serving as Associate Physician Incharge, Cardiology Department in Grade-18 while I was serving as Associate Physician (Medicine) in Grade-18. I was not serving under him for the whole of year 1978-1979, although for a period of less than three months during 1978 (from 5-10-1978 to 15-1-1979) he did work as a Medical Superintendent in Grade-18. It is not understandable, how he was made to write my reports for these years. The reports written by him for these two years were without authority for these additional reasons, besides the reasons for which my reports for 1976 were annulled by the Tribunal. For the year 1983 my A.C.R. Was initiated by Dr. A. Hafiz Akhter, Medical Superintendent in Grade-20. Strangely enough it was tempered with by Dr. Mohsin All an officer in Grade-19. It is not understandable how an officer junior to reporting officer could countersign my A.C.R. This report was also recorded by a second countersigning officer without authority as no second countersigning officer has been designated by the Establishment Division in my case as provided for in para. 9 of 'Instructions for filling of A.C.R. Forms'.
' For the aforesaid reasons, it is most respectfully submitted that my A.C.Rs, for the years 1975, 1977, 1978, 1979 may kindly be quashed and taken out of my A.C.R. Dossiers. For the year 1983, only the report of Dr. A. Hafeez Akhter be kept on file and the report of countersigning officer who was junior to reporting officer, be deleted. It is further requested that my A.C.Rs, for the aforesaid years may be got recorded by the officers who were then competent to record these reports."
3. This appeal was disposed of by the Health Division vide letter dated 13-2-1993 which reads as follows:-- "Subject: ANNU AL CONFIDENTIAL REPORT FOR THE YEARS 1975, 1977, 1978, 1979 AND 1983 ' Sir, ' I am directed to refer to your Letter No, F.FGSH.5/6/92, dated 8th June, 1992 on the subject mentioned above and to say that the representation of Dr. Najmul Ghani Khan has been examined.
Since Najmul Ghani Khan has already been granted the relief sought from the Federal Service Tribunal, his representation has been rejected by the competent Authority."
4. From the aforesaid letter dated 13-2-1993 the appellant has filed the present appeal before us and the prayer made therein is as under:-- "It is, therefore, respectfully prayed that the appeal may kindly be accepted and the A.C.Rs, for 1975, 1977, 1978, 1979 and 1983 may be quashed and ordered to be taken out of the A.C.Rs, dossier of the appellant and ordered to be replaced by the fresh ones recorded by the competent next higher officers and the countersigning officers in accordance with the instructions with all consequential benefits. It is also prayed that the decision of appellant's consideration for promotion made on the basis of illegal and incompetent reports may kindly be ordered to be reconsidered on the basis of validly and incompetently recorded A.C.Rs,"
5. The respondents were duly served but no written objections were filed on their behalf. On the date of hearing Mr. Zakaullah Jan, Section Officer, Establishment Division, and Mrs. Ghayoor Sultana, Section Officer, Ministry of Health, appeared but they did not produce the annual confidential reports which have been impugned in this appeal. Obviously, the original order by which the appellant was aggrieved was the recording of the reports allegedly without jurisdiction, on his performance for the said years. It was the duty of the respondents to produce those A.C.Rs, because the reports being confidential the appellant was not able to get copies thereof who could only know as to who recorded the reports and who countersigned them. In these circumstances, the law is clear that when a document is withheld by a party, the contention of the other party with regard to the contents of the documents shall have to be accepted as true. We are, therefore, of the opinion that the reports were recorded by the officers, as stated by the appellant in his departmental appeal and the grounds of appeal.
6. On merits the appellant has referred to a judgment of this Tribunal in his own case given in Appeal No, 8(R) of 1982. In that appeal the Annual Confidential Reports for the periods 1-1-1976 to 31-8-1976 and 1-9-1976 to 31-12-1976 which were adverse in nature were challenged by the appellant. The Tribunal while accepting the appeal of the appellant, observed inter alia in para. 6 as under:-- "6. We have heard the learned counsel for respondent also. He contends that Dr. Mohsin All being the Medical Superintendent was competent to write the report of the appellant, and that next higher authority being Dr. BA. Qureshi, the report was rightly countersigned by him, and that the question of the reports being written by incompetent persons does not arise. The appellant's contention in this respect is that Dr. Mohsin Ali as well as the appellant were officers in Grade-18, and that it is only a higher officer who can write the report, according to the rules applicable in this respect. According to the instructions for writing the reports, it is the next higher officer concerned who can write the report. The question is whether the Medical Superintendent, if he holds a grade equal to an Associate Physician, can write the report. The answer is obviously in the negative, for the reason, that both officers being in the same grade are competitors for promotion to the higher grade, and if the Medical Superintendent records the report of an officer who is equal in grade to him, he would be doing something which might at some time clash with his own interest. The departmental representative, who assisted the learned counsel for respondent, contends that in the Poly Clinic (Hospital), it is the practice that the Medical Superintendent is to write the report, irrespective of the fact whether the other Physicians or Surgeons are equal in grade to him, or higher in grade. This practice, on the face of it, is contrary to the instructions and violate the rule of natural justice, inasmuch as, when the question of promotion comes, the reporting officer becomes a judge in his own cause, when he would be considered on the basis of the reports written by him for promotion alongwith the officers who are equal in grade with him. On this ground alone, therefore, the reports of both the periods have been written incompetently and are not, therefore, valid when are challenged. Likewise, countersigning officer's opinion would not count because the very basis on which the second opinion is formed, is without lawful authority. The reports for both the periods are, therefore, written without lawful authority and need to be taken out of the A.C.R.
Dossiers of the appellant."
7. The aforesaid order of the Tribunal was not challenged before the Supreme Court and the appellant's claim is that as per the order of the Tribunal the reports for the year 1976 were taken out of the A.C.R. Dossier of the appellant. Since the assertion has not been denied at the bar we have but to accept the appellant's contention in this respect also.
8. Coming to the present appeal the appellant's case is that the reports for the years 1975, 1977,1978 and 1979 were recorded by a BPS-18 officer who was equivalent in rank and grade to the appellant and as such they deserve either to be taken out of the A.C.Rs, dossier of the appellant or for those years the reports should be freshly initiated by an officer of a grade higher than the appellant and then countersigned by a still higher officer. This contention of the appellant has to be accepted in view of this Tribunal's unchallenged opinion recorded in Appeal No, 8(R) of 1982 in his own case.
This view of the Tribunal was in consonance with rule 2:33 of "A Guide to Performance Evaluation" providing that reports should be initiated by the next higher officer and countersigned by an officer higher than the reporting officer.
9. As regards the A.C.R. For the year 1983 the appellant's contention is that this report was recorded by Dr. Hafeez Akhtar, an officer of BPS-20, but strangely enough it was countersigned by Dr. Mohsin Ali, who was an officer of B-19. In the absence of any counter-version in this respect we have to accept this contention. Resultantly, in our opinion, the remarks of the countersigning officer, Dr. Mohsin Ali, from the A.C.R. For the year 1983 deserve to be expunged.
10. As a result of our above discussion, we direct that the Annual Confidential Reports for the years 1975, 1977, 1978 and 1979 may be taken out of the A.C.Rs, dossiers of the appellant. The respondents shall now get these reports recorded again by officers who then ranked higher to the appellant and countersigned by still higher officers. As regards the report for the year 1983, the remarks and other contributions if made by Dr. Mohsin All shall stand expunged.
11. The appeal is accepted as indicated above with no order as to costs.