' MUHAMMAD RAZA KHAN (MEMBER).---These four appeals have been filed by the appellant against the adverse remarks recorded in his ACRs for the years 1992. The ACRs were written in .1996 simultaneously for the past four years and they had been conveyed, to the appellant, as adverse in July, 1996, and November, 1996. The remarks are almost identical in all the four ACRs, Hence all these four appeals are being decided by this single consolidated judgment.
2. The contention of the appellant is that he was the senior most officer of the Accounts Group, presently serving in BPS-21, and having the practical experience of the Military Accounts, Railways Accounts and the Audit Department. The appellant had served for over 33 years and admittedly his service record had always been above board. The last five years of his service i,e, from 1991 to 1995 were spent by him under Mr. Muhammad Nasir Ahsan, the then Auditor-General of Pakistan, who retired on 31-121995. It appears that said officer had recorded the ACR of the appellant for the year 1991 and the rest of the ACRs were not written and, after his retirement, the appellant had been deputed to conduct the audit of the office for the entire period when the Ex-Auditor-General of Pakistan had held the said position and the report of the appellant had unearthed that certain stores purchased for utilization in office were removed by the said officer to his private residence during the shifting of the office in 1993. Based on this prejudice the appellant apprehended the adverse reaction from the said officer and he had intimated the same to the present Auditor-General i,e, respondent No, 1 . However, it appears that the Ex-Auditor-General of Pakistan had recorded the said ACRs for four years and wherein he not only graded the appellant as an "Average" officer but also recorded that he (the appellant) was "not yet fit for promotion." The adverse remarks have been conveyed to the appellant in July, 1996 for the year 1994, and in November, 1996 for the years 1992, 1993 and 1995. The departmental representation was filed by the appellant against the said ACRs but instead of forwarding the representation to the next higher authority for its decision, respondent No,2 forwarded the same to the said Reporting Officer and consequently vide a letter dated 16-4-1997 the said representation was rejected. These appeals have, therefore, been filed on 8-5-1997 against the original and the appellant impugned orders.
3. The respondents filed written objections wherein it has been admitted that the appellant had explained his apprehensions to the Respondent No,1 but he was not in a position to dispense with the statutory requirement of placing the ACRs before the officer who had supervised the work of the appellant for the said period. With regard to the decision on the representation by the same officer, the objections stated that the Establishment Division had, in consultation with the Law. And Justice Division, decided that the appropriate authority to . Dispose of the representation against the officers holding Constitutional posts should be the same officers and not the higher authority and in consonance therewith the representation of the appellant was placed before the said Ex- Auditor General of Pakistan and he has upheld the previous remark with reasons.
4. We have listened to the arguments on behalf of the parties.
5. At the out-set it was objected by the learned Standing Counsel that the appeal was not competent because the reports were recorded as "Average" and average reports could not be treated as adverse. It was further argued that the observation of "Not yet fit for promotion" may be based on several considerations and cannot be considered to be adverse to the interest of the appellant as per relevant instructions. The learned counsel for the appellant, in his turn, replied that the average reports, if conveyed as adverse, shall be deemed to be adverse and the observation of "Not yet fit for promotion" is considered to be adverse if the person was placed at a position where he was to be considered for promotion, but in view of such an observation his case is likely to be not considered and, therefore, such remarks become adverse. The perusal of the reports how that both the said remarks had been conveyed to the appellant in two separate letters by considering the same as adverse, therefore, the preliminary objection about the maintainability of the appeals is repelled.
6. It is a fact that under the relevant instructions, contained in A Guide to Performance Evaluation read with the ESTACODE and interpreted by various judgments, an average report is not considered to be adverse. Hence prima facie it can be held that the impugned original letters communicated to the appellant in July, 1996, and November, 1996 holding the said reports as adverse are inconsequential and ineffective. However, the matter needs further probe to analyse whether the remarks were adverse and whether the proper procedure for the disposal of the representation was adopted or whether any element of bias was available in the recording of the said reports for four years. The basic yardstick is the report for the year 1991. The appellant was serving under the same Reporting Officer in the same capacity. In the report for the year 1991, admittedly recorded in September, 1992, the appellant was considered by the same officer to be "Fit for promotion" with almost "Very Good" grading in the Performance Evaluation Report. In September, 1992, the officer was considered to be "Very Good" and "Fit for promotion" and these observations were made in the year 1992 and apparently applicable to the evaluation of the same year as well. However, just three months thereafter, in the ACR for the year 1992 i,e, for the period 1-1-1992 to 31-12-1992, the officer was downgraded as an "average one" while "performing routine duties" and. "Not fit for promotion".
The remarks for the year 1992, whenever recorded, are presumed to be the evaluation of the officer during the entire year. As stated hereinbefore, in September, 1992, the Officer was rated exceptionally good as compared to the rest of the officers and in the same background and capability he was considered "Fit for promotion" and just within three months the degradation cannot be explained, appreciated or justified. This leads us to the justification and spirit of the instructions that the ACRs must be written within days and weeks of the completion of the year under report because the memory of the Reporting Officer remains fresh and the evaluation is objective and not prejudiced. With the passage of time there is every possibility that the objective evaluation for a particular year becomes difficult. Had the report for the year 1992 been written in January or February, 1993, it would have been like the report of 1991 written in September, 1992, or, with slight deviation, but the complete reversal of the observation was inconceivable. A comparison of the PER for the years 1991 and 1992 leads us to the conclusion was that either of the two said reports is incorrect evaluation because a 100% reversal is not possible within a period of three months only in the performance and out put of an officer. Therefore, we have no alternative but to hold that the PER for the year 1992 does not depict the true performance evaluation of the appellant. Since the remaining three ACRs are also, more or less, verbatim copies of the ACR of 1992, therefore, these reports are also not the true evaluation of the performance of the appellant and we have to hold that these reports were written after a lapse of considerably long period and the evaluation was made by a colourable exercise of discretion and cannot be upheld.
7. There is another grave lacuna in the disposal of the representation. Under the Civil Servants (Appeal) Rules, 1997, read with the guiding instructions issued by the Establishment Division, contained in the ESTACODE, and the Statutory provisions contained in section 22 of the Civil Servants Act, 1973, a civil servant aggrieved by adverse remarks in the ACR has a right to file a representation which has to be decided by the next higher authority. There, is always a difference between the representation, appeal and the review petition. Under section 4 of the Service Tribunals Act, 1973, as well as under section 22 of the Civil Servants Act, 1973, there exists a possibility of filing a review petition in cases where the appeal is or is not maintainable but the law provides that the representation is to be made to the next higher authority in cases where the appeal is normally not competent. The appellant had filed a representation against the adverse remarks, conveyed to him in November, 1996, and instead of processing the representation by the appropriate next higher authority under the law, the representations were converted, in violation of the statutory provisions, into review petitions and they were passed on to the same officer and he did not feel the need for any modification of his earlier observations. Conversion of a representation into a review petition was unprecedented. This had amounted to miscarriage of justice particularly when the appellant had already indicated his apprehensions against the said Reporting Officer prior to the initiation of the reports. The. Apprehensions of the appellant were not whimsical or imaginary, as the said Reporting Officer had observed while giving his remarks on the review petition but the apprehensions were well-founded and based on solid reasons. There was an audit report prepared by the appellant containing solid instances of removal of certain stores.
This document was sufficient to prove the mala fides but despite the written intimation of the apprehensions based on such documentary proof, the representation against the ACR/PER was still considered appropriate to be decided by the same officer as a review. This amounted to adding insult to injury. The reports were initiated after the lapse of the period upto four years when the said audit report had already been finalized by the appellant containing allegations against the said officer, and the officer had retired almost four months ago and still the reports were asked to be initiated by him collectively and thereafter, the departmental representation is not allowed to be examined by an independent or impartial superior authority but the. Same was forwarded to the same officer for disposal wherein personal allegations against him, supported by reference to documentary proof of the audit report, were made. Thus, the officer could not have exercised the unprejudiced and impartial mind in the light of these events. Hence we hold that the appellant order conveying the rejection of the representation was without any legal basis and, therefore, it was void.
8. It may also be pointed out that the representation against the ACR related to the period as far back as 1992 and it continued upto the end of 1995. The adverse remarks were conveyed in 1996 and the representation was filed in the same year. The decision of the Establishment Division to refer the representation against the PER recorded by the Constitutional authorities to the same authorities, despite their retirement, was taken in March, 1997. Such a decision could be enforced prospectively and any observation recorded by such a Constitutional authority after March, 1997, could be allowed to be reviewed by him alone or, at the most, any representation filed against the PER after March, 1997, could be converted into a review petition. The original impugned order, the relevant period and the date of representation of the appellant were prior in time than the decision of the Establishment Division i,e, 20-3-1997 and, therefore, this decision could not be given retrospective effect to be applied to any event that had occurred prior thereto. Hence the retrospective application of the decision dated 20-3-1997 was also not in accordance with the established norms and cannot be upheld.
9. The appellant had a considerably long period of satisfactory service under the Federal Government extending over a period of 1/3rd of a century. Admittedly he is the senior most officer in his cadre and was otherwise eligible to be considered for promotion to the selection post in the next scale. The reports, although average, had been communicated to the appellant as adverse and, therefore, the principle that the appeal is not maintainable against the average report will not be applicable but still we would- like to observe that the said principle has to be reconsidered in the prevailing circumstances where the performance of a civil servant for the entire career is quantified for the selection posts. The average grading of an officer becomes the greatest hurdle in the requirement of achieving the minimum threshold of quantification basis. The said principle was applicable where the "average" report was considered to be "generally good" and, therefore, no appeal was competent to get such a remark expunged. However, in view of the quantification formula read with the said principle of incompetence of appeal against average report makes the average grading as worse than the worst. If a civil servant gets an unsatisfactory report or a bad report, he is entitled to get the same expunged and thereby he is entitled to be graded as good.
However, the recipient of an average grading cannot file an appeal and suffers for ever due to less quantification. Thus, he is placed at a lower footing than those who are graded as Below Average. It Will be appropriate if the concerned authorities may review the said principle in the light of these observations and, the quantification formula introduced in 1985. Since the average reports had been conveyed by the impugned letters in July and November, 1996 as "adverse", therefore, the appeals will certainly be competent. Moreover, since the appellant has been recorded to be unfit for promotion whereas he was the senior most officer in his cadre and was likely to be considered for promotion and this observation has also been considered to be "adverse", therefore, the appeal against this observation is also competent. The appellant was considered to be fit for promotion in 1992 and prior to it as well as in view of the aforesaid remarks his evaluation as "unfit for promotion" in 1996 is biased, unjustified and cannot be upheld. Thus the original remarks were not based on proper appreciation and true evaluation and the remarks in review petition and, therefore, the communication of the appellate impugned order was based on an illegal and void exercise.
10 In the result we accept these appeals, set aside the impugned orders and expunged the said remarks in the PER for the years 1992 to 1995 and upgrade the same as "Good" and "Fit for Promotion" respectively.
11, No order as to costs.
12 Parties to be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.