' MUHAMMAD AYUB KHAN (MEMBER).---Arguments have been heard and record perused.
2. Facts of the case, as appear from the record, are that the appellant was appointed as Section Officer pursuant to the combined Competitive Examination conducted by the Federal Public Service Commission in 1971, posted in the Establishment Division w,e,f, 5-3-1975 and remained there till his promotion as Deputy Secretary, w,e,f, 12-5-1985 and was then posted as Deputy Secretary, Finance Division, Prime Minister's Secretariat, Population Welfare Division, Interior Division and the Economic.Affairs Divison and subsequently on his promotion as Joint Secretary (B-20) w,e,f, 26-10- 1994 he was posted in the Establishment Division (Recruitment Wing).
3. It is also stated at para.4 of the appeal that the appellant was transferred and posted as Joint Secretary (Career Planning) in the Establishment Division on 9-1-1995 and during the year 1995 he remained under respondents Nos,3 and 4 i,e, Mr. A.W. Kazi, Secretary, Food, Agriculture and Livestock, Division, and Mr. Mazhar-ul-Haq Siddiqi, Secretary, Establishment Division (now Member, FPSC) who acted as his Reporting and Countersigning Officers. It is further stated that at para.6 of the appeal that the appellant, during the entire service career, never received any advice, warning or for that matter counseling. However, during the course of discussion between the appellant and respondent No,3, on 10-3-1996, over a matter relating to a particular class of civil servants for their induction in the Secretariat Group, difference of opinion arose between them i,e, the appellant and respondent No,3) which matter was reported by respondent No,3 to respondent No,4 and the latter was pleased to withdraw the charge of Joint Secretary (Career Planning) from the appellant and, on 23-4-1996, he was posted as Joint Secretary in the Office of the Attorney-General where he is holding the charge till date but as luck would have it the appellant was given the following remarks for the period from 1st January to 31st December, 1995:-- "Not yet fit for promotion."
' Under Part-VI(b)(iii). The relevant boxes of which were signed by both the Reporting and Countersigning Officers against which the appellant filed representation on 27-11-1997 (Annexure- B) before respondent No,2, i,e, the Secretary, Establishment Division, Islamabad, and when not responded within the stipulated period of ninety days, he perforce submitted the present service appeal before this Tribunal under section 4(1)(a) of the Service Tribunals Act, 1973, on 19-3-1998. A scrutiny of the departmental as well as the service appeals reveals that the appeals have been filed within limitation.
4. It is further alleged that the PER for the said period contains certain entries/remarks which, in essence, amount to adverse remarks but the same were not formally conveyed to the appellant for the reasons that respondent No,4 neither deemed adverse nor underlined them in red ink although the same have a potential to create and convey unfavourable impression/as person against the appellant which needs interference by the Tribunal for appropriate upgradation for the following reasons/grounds:--
(i) That the appellant was still on probation in terms of Rule 21(1) and (4) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and that as a Joint Secretary it was his first report.
(ii) That the impugned remarks do not coincide with his overall ratings under rest of the column of the ACR.
(iii) that the appellant had rendered about 24 years' service but during all his service career not a single adverse remark has ever been given to him with respect to his "Emotional Stability" or ever conveyed such an adverse entry to him and hence the assessment was not legal and based on hard facts.
(iv) That his subsequent reports for the years 1996 and 1997 do not contain any entries/adverse remarks against him:
(v) That during the period under the report the appellant never behaved in a matter which could justify award of the remarks "Emotional Stability".
"(vi) That the difference of opinion developed between the appellant and respondent No,3 which was made point of prestige by the latter and he made a complaint to respondent No,4 who immediately withdrew the appellant from the post of Joint Secretary (Career Planning vide order (Annexure-C) and also simultaneously awarded him the impugned remarks as and when an appropriate stage arrived/arose.
(vii) That the appellant was given an additional charge in addition to his own duties vide Annexures "E", "F" and "G" thereby meaning that he was having the confidence of both the reporting and countersigning officers, and
(viii) Prayed for expunction of the adverse remarks so awarded to him without any legal justification."
5. A perusal of the file indicates that all the five respondents impleaded in the appeal have contested the appeal and by filing their parawise comments, respondents Nos,1, 2 and 5 have filed joint comments whereas respondents Nos,3 and 4 each has filed the comments separately.
6. We have carefully gone through all the parawise comments in juxtaposition with the parawise facts agitated by the appellant in his appeal out of which the factum/subject of differences and reasons therefor .Are shrouded and still obscure. In other words, it is not known which type/sort a discussion took place between the appellant and respondent No,3 which led to immediate action against the appellant by withdrawing him from the post of Joint Secretary (Career Planning) within a month or so and kicked out/transferred him from the Establishment Division to the Office of the Attorney-General, Islamabad. It appears that either side has purposely concealed the same.
However, simultaneously, the import of the difference of opinion proved detrimental to the appellant by blessing him with an adverse type of ACR being "unfit for promotion" and further declared him "Below Average" in the column of "Emotional Stability". Thank God that under Part-V
(a) though the Countersigning Officer had agreed with the remarks recorded by the Reporting Officer yet he disagreed with the following encircled remarks:- ("Unfit for posting against a sensitive assignment/post)" by not marking them in red ink as required by "A Guide to Performance Evaluation" and the difference of opinion may not have been taken either side to this extreme extent. It appears that probably the appellant might have exceeded the limits of his power/decency and hence respondent No,3 reacted to the same promptly.
7. It is considered just and proper to quote hereunder a tradition of Holy Prophet (p.b.u.h.) which reads:--{{ARABIC TEXT}} "The difference of opinion amongst my people is a blessing."
' This principle is daily applied in our private and official forums and even by the countries at the world forums (Community of nations) and by dint of this principle most serious, complicated and dangerous type of matters, including economic, political and warfare are settled amicably once for all. The difference of opinion is a "blessing" {{URDU TEXT}}and not "displeasing" ({{URDU TEXT}} ) but some quarters are led by their whims and fancies and hence the unending turmoil, disturbances, havoc and what not to sit over a table for settlement of mutual disputes being a natural order but when it is not followed the result is evident as proved in the present case. The friction and attempt to dominate others is not a good sign of activity. It is not only detrimental to the interest of individuals concerned but is also to the overall interest of a family whether private or official. A department is a sort of family in the whole structure of a Government. A disturbed family is not supposed to work sheerly in the public interest and hence the frequent enroads on the rights of others. The idea in estabilshment of a separate sacred land by the Founding Fathers i,e, Quaid-e- Azam Muhammad All Jinnah and Dr. Muhammad Iqbal for the Muslims was that they should live in peace and respect each others rights for attainment of their religious, social, economic and political pursuits in the larger interest of people and the State. The world is moving fast and we must keep pace with it and should not waste our time and energy over trifles.
8. A perusal of the pleadings consisting of the appeal and the parawise comments filed by the respondents indicates that the former, inclusive of the rejoinder, outweighs the latter.
9. The case was fixed for regular hearing on 20-11-1998 but before hearing the arguments the learned Standing Counsel for the respondents informed us that:-- "The adverse remarks impugned by the appellant have lost their efficacy/force due to earning subsequent two good ACRs by the appellant. In view of this situation, statement of the respondents' counsel, the appellant and his learned counsel were satisfied and as such no formal arguments were advanced by either side and judgment was reserved."
10. Pursuant to the facts available on the file and as briefly referred to above and the statement of the learned Standing Counsel we do not consider it advisable to give detailed reasons for and against the arguments advanced by either party for the obvious reasons that the impression cast against the adverse remarks stood nullified with the earning of two "Good" A.C.Rs, by the appellant.
Apart from this, we are, on the legal side, inclined to allow the remedy and prayer sought for by the appellant for the reason that he appears to be a good officer throughout his service career right from the post of Section Officer to his promotion as Joint Secretary. It is really a Herculean's task to get promotion to B-20 from the post of a Section Officer, which is possible simply by dedication, devotion and sincerity to job. The service record of the appellant throughout his service career, reportedly and admittedly is "Good" and as such the scale of justice tilts towards the appellant in accordance with the principle of Arabic Maxim:- {{ARABIC TEXT}} "The basic presumption in things is permission." i,e, to say everything is permissible ( {{URDU TEXT}}) unless declared impermissible ((J?) and that every person is good otherwise proved bad and, in criminal matters, every accused is innocent unless proved guilty. While working on this principle it is presumed that the appellant did not behave abnormally when not proved so by the respondents specially by respondent No,3. Nothing is available on the file as to what type of misconduct or use of any other language filthy or impolite was used by him during the meeting on the stated date in respect of respondent No,3 who was legally bound to disclose the nature of misconduct and the rude attitude demonstrated by the appellant and in the absence of which the remarks given to him do not appear to be justified, reasonable and legally valid.
11. Pursuant to the above discussion we accept the appeal and expunge the adverse remarks recorded in the appellant's ACR for the period from 1st January to 31st December, 1995, with no order as to costs. Parties concerned shall be informed accordingly.