' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the Service Tribunal passed on 21-3-2002, whereby the appeal filed by the appellant against the adverse remarks recorded in his A.C.R., was dismissed:
2. The facts relevant for the disposal of this appeal, briefly stated, are that the appellant was inducted in the Health Department of Azad Jammu and Kashmir on 15-4-1981 in B-5. He was promoted in B-7 on 9-3-1985 and presently he is holding the post of Quarter Master B-9 on the basis of his promotion since 31-5-1986. He was given Selection Grade B-11 by the competent authority in accordance with the prescribed standard on 1-2-1992. According to him during his posting as Quarter Master in D.H.O. Office Muzaffarabad, he was directed by District Health Officer Muzaffarabad, respondent No,3, to collect the medicines from Ghulam Abbas Institute of Medical Sciences. He went to collect the medicines from the said Institute when he got the knowledge that some expired medicines were likely to be given to him for distribution by the District Health Officer Muzaffarabad. According to him he observed changes in the dates of cottons carrying medicines, therefore, he refused to receive such medicines and brought it into the notice of respondent No,2, who was Executive Director of the said Institute, but he took this matter lightly. The appellant, therefore, without collecting the said medicines came back to his office and brought it into the notice of D.H.O., respondent No,3, who took appellant with him to the said Institute and later on directed appellant to receive the medicines for their distribution within the limits of Sub-Division Authmaqam. According to the appellant, the expired medicines were distributed in Sub-Division Authmaqam. Numerous persons filed their complaints against the distribution of expired medicines. The Government took notice of such complaints and constituted an Inquiry Committee, headed by (late) Malik Ali Asghar Awan, who at the relevant time was functioning as Chairman Implementation Commission. The said Commission recorded the statement of appellant on 3-3- 2000, copy of which has been annexed with the record of this Court as annexure 'A' at page 11. The case of the appellant is that D.H.O. Muzaffarabad, respondent No,3, treated his statement against him and on account of personal reasons he started to initiate steps based on revenge against the appellant which fact compelled the appellant to move an application duly supported by his affidavit before Director General Health on 9-5-2000. In the meantime an audit objection was raised with regard to the shortage of 2,25,000 Bascopan tablets out of 2,50,000 tablets. The blame of this shortage was illegally shifted to the appellant whereas according to the roster of duties, the appellant was assigned the duty to collect the medicines from Nowshera, Islamabad and delivered the same in the office of D.H.O. Muzaffarabad. Under these instructions the appellant had handed over 2.50,000 Bascopan tablets to D.H.O. Muzaffarabd who after receiving them handed over the same to Store Superintendent, who entered those in the concerned register but due to human error he in the relevant column instead of mentioning 2,50,000 tablets had incorporated a figure of 25,000 tablets. In the light of audit objection raised by the Audit Party in this regard, respondent No,3, sought the explanation from the Store Superintendent who submitted his explanation to respondent No,3, D.H.O. Muzaffarabad in which he admitted that he inadvertently incorporated less quantity in the relevant column of the register. According to the appellant during this period a post of Store Superintendent B.16 became available due to the retirement of its incumbent. The appellant being senior most and eligible for promotion against the said post moved an application for the completion of his A.C.R. So that the matter may not be deferred by the Selection Board on this excuse, The respondent No,3 with mala tide reasons made adverse remarks against the appellant in his A.C.R. But the same were not conveyed to him. According to the appellant his A.C.R.
Was written by respondent No,3 after he had moved an application before Director General Health Services of Azad Jammu and Kashmir for the copy of his A.C.R. On 18-1-2002. When appellant found adverse remarks in his ACR, he challenged the legality of these remarks in appeal by invoking the statutory right of appeal before the Service Tribunal in which he strongly objected the conduct of respondent No,3, whereby the adverse remarks entered by him in his A.C.R. Were not conveyed to him and also alleged that respondent No,3 was not on good terms with him, therefore, the adverse remarks entered in his A.C.R. By him were biased and the result of hostility against him. The Service Tribunal in the judgment under challenged admitted that adverse remarks record in the A.C.R.
Were not conveyed to the appellant and were not written by respondent No,3 in the manner prescribed under law but dismissed the appeal of the appellant on the ground that on the basis of the adverse remarks incorporated in his A.C.R. No final order has been passed against him, therefore, the appeal was not competent. The learned Tribunal in the light of the record placed on file by the parties admitted that the name of the appellant has been placed in the panel which has been prepared for the consideration of Selection Board to determine the suitability of the person out of the panel for promotion against the post of Store Superintendent B-16. The appellant was, Therefore, held entitled to invoke the jurisdiction of the competent forum, in case the adverse remarks are made basis for ignoring his merits by the Selection Board against the aforementioned post which under rules is to be filled in by promotion. This judgment of the Service Tribunal has been assailed before us through the present appeal.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, argued that the appeal was filed against the adverse remarks incorporated by D.H.O. Muzaffarabad was competent authority against the appellant. The Service Tribunal, therefore, had the jurisdiction to look into the same and if these were not in accordance with the prescribed rules or were the result of mala fide intentions and hostility towards the appellant, it had the competence to expunge such remarks from his ACR, He has referred Instruction No,37 of Annual Confidential Reports, whereby the competent authority is bound to communicate the adverse remarks to the concerned employee within next 30 days of writing of such ACR. The learned counsel further argued that it has been repeatedly held by the Federal Service Tribunal and the Supreme Court of Pakistan that if A.C.Rs, are not written in the manner in which those are required to be written then the Service Tribunal has got the jurisdiction to interfere and satisfy itself whether the non-communication of adverse remarks was based on malice and dishonest intention on the part of authority or countersigning authority. He in support of his contention relied upon the following authorities: ' In a case titled The Secretary Government of Punjab v. Ahmad Kamaluddin [1981 SCM R 392], it has been held that recording of remarks though within exclusive competence of superior officers yet such record not immune from review or re-consideration and adverse remarks being reviewable under rules, appeal to Service Tribunal was held competent. In this case even though recording of remarks was found within the exclusive competence of the superior officers but on account of above referred criteria it was held that against adverse remarks appeal was competent before the Service Tribunal. The relevant observations are reproduced below: "... Such record is consulted and heavily relied upon for determining the suitability for promotion, posting and disciplinary action. 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, insofar 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 re-consideration 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."
' In a case titled Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others [1996 SCM R 256], the adverse remarks were conveyed to the concerned employee after 30 days. In the light of the past events of the case the Supreme Court of Pakistan was of the opinion that the concerned civil servant and the countersigning officer were not on good terms, therefore, held that adverse remarks were the result of biased attitude of the authority.
The jurisdiction of the Federal Service Tribunal to look into such matter was upheld but the decision given by the Service Tribunal whereby the adverse remarks recorded against the appellant employee were upheld, was set aside.
' In a case titled Province of the Punjab through Chief Secretary, Punjab Lahore and another v.
Sardar Noor Ilahi Khan Leghari and another [1992 SCM R 1427], it was held that the Service Tribunal has got the jurisdiction to entertain appeals against the adverse remarks. In this case the performance of appellant was rated as average. He availed appellate jurisdiction of the Service Tribunal. The Service Tribunal allowed his appeal and expunged the remarks. The learned Supreme Court held that the over all performance rated as average by the competent authority could not be considered to be adverse, therefore, the appeal on account of this reason was held not maintainable before the Service Tribunal.
4. The second objection raised by the learned counsel for the appellant is that the A.C.R. Was written to prevent the Selection Board from considering appellant for promotion in the light of his past excellent service record. This was done on account of hostility towards the appellant in the light of the statement made by his client before the Chairman Prime Minister's Inspection Team and application moved by him before the Director General Health. According to the learned counsel it is crystal clear that respondent No,3 was not on good terms with his client and that the adverse remarks are the result of hostility and dishonest intent on the part of respondent No,3.
According to the learned counsel even the working paper which has been prepared for the consideration of Selection Board, not only contained the adverse remarks incorporated in the A.C.R.
But it was highlighted in the said working paper that some departmental inquiry was pending against his client. The series of these steps fully established that in fact the working paper had been prepared at the initiative of respondent No,3 to deprive the appellant from the right of promotion who was the senior most employee of the department in his cadre. The learned counsel for the appellant relied upon the case titled Ch. Saeed Ahmed v. Federation of Pakistan through Secretary. Finance Division, Islamabad and 2 others [1996 SCM R 256], whereby in the light of the remarks of countersigning officer which were held to be biased and the result of hostility, were expunged by setting aside the judgment of the Service Tribunal that there was no justification with the Service Tribunal to uphold such adverse remarks against the appellant civil servant against whom the authority had been nursing grudge.
5. The next point raised by the learned counsel for the appellant was that under the instructions issued by the Government vide Notification No,S&GAD/A-4(67)VI/87 dated 30-1-1988, the authority was bound to convey the adverse remarks immediately to the appellant. The maximum period allowed to the authority was 30 days. According to the learned counsel these instructions have got the force of law. He in support of his contention relied upon the following authorities: ' In a case titled Ghazanfar Ali Malik v. Secretary to Government of Punjab, Local Government and Rural Development Department [1982 PLC (C.S.) 392], the adverse remarks were conveyed after the delay of two and a half year. Appeal for expunction of such adverse remarks was accepted by the Federal Service Tribunal on the ground that the same were not conveyed to the appellant within 30 days and that these were not supported by the record.
' In a case titled Muhammad Naqi Khan v. Secretary, Establishment Division and others [1984 PLC (C.S.) 215], the appeal of the appellant was allowed and adverse remarks recorded in his A.C.R.
Were expunged on the ground that these were not communicated to him within 30 days and further that these smacks of mala fide and dishonest intent on the part of countersigning authority.
' In a case titled Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others [1996 SCM R 256], the adverse remarks were not communicated to the appellant within 30 days. It was held by the Supreme Court of Pakistan that where there was unreasonable delay in communicating the adver< remarks, authorities concerned should explain such delay with sufficient reasons so that such remarks be accepted unbiased and effective. In this case no reasonable explanation was submitted, therefore, the Supreme Court of Pakistan expunged these remarks on the ground that no reasonable explanation was submitted and further that civil servant had alleged bias, prejudice and partiality against Reporting Officer and countersigning officer.
' In a case titled Ch. Abdul Karim and 5 others v. Raja Muhammad Nisar and another [1998 SCR 296], the adverse remarks recorded in A.C.R. Of the respondent were not conveyed to him within the period of 30 days as envisaged under the relevant instructions, therefore, it was held that such remarks could not be read against him.
6. The learned counsel further submitted that while preparing the panel of eligible candidates for consideration of Selection Board for the purpose of promotion as Store Superintendent, it has been inserted on the direction of respondent No,3 in the relevant working paper that some departmental inquiries are pending against him. According to the learned counsel, mere this fact that some departmental inquiries including the disciplinary proceedings were pending against any civil servant is not a sufficient ground to deprive him from the right of promotion till no final order is passed against him in the light of such departmental inquiry. He in support of his contention relied upon the case titled Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry [2000 SCM R 645], wherein it has been held that on the basis of some disciplinary proceedings the eligible civil servant cannot be deprived of from promotion because promotion of a civil servant would not debar the authorities to continue with the disciplinary proceedings against him in accordance with law. The learned counsel also relied upon an unreported judgment of this Court titled Ch. Muhammad Akram and another v. Mr. Hussain Ahmed Islahi and another Civil Appeal No,38 of 1989 decided by this Court on 9-4-1991 whereby the same view has been expressed.
7. On the other hand Raja Ibrar Hussain, the learned Advocate General, supported the judgment under challenge. He admitted in his arguments that in the light of the record and events the appellant and respondent No,3 were not on good terms, however his objection about the maintainability of this appeal is two folds. Firstly that before moving appeal before the Service Tribunal the appellant should have challenged the errors and defects in it before the departmental authority and secondly on the ground that no order adverse to the interest of the appellant in respect of his further promotion has yet been passed by the competent departmental authority or by Selection Board in the light of the adverse remarks incorporated in his A.C.R. By D.H.O.
Muzaffarabad, therefore, appellant was not justified in law to invoke the appellate jurisdiction of the Service Tribunal. According to him the case of the appellant along with the other employees who could be considered for promotion has been referred to the Selection [ward and the Selectioa Board has not refused to consider him for further promotion on the basis of adverse remarks, therefore, the appeal being premature was rightly dismissed by the Service Tribunal.
8. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The dispute which has culminated in the present appeal is in respect of adverse remarks which were incorporated by respondent No,3 in the A.C.R. Of the appellant pertaining to year 2000. The working paper which was prepared by the department for the consideration of Selection Board for its recommendations in favour of the suitable candidate against the post of Store Superintendent B-16 the credential of the appellant have been mentioned along with the gist of his A.C.Rs, from 1993 to 2000. In his A.C.Rs, from 1993 upto 1999 his performance has been shown to be excellent. He has been declared honest and entitled to further promotion. In the year 2000 for the first time his performance was rated as average and he was not held entitled to promotion till the time he would improve his performance. These remarks contained in his A.C.R. For the year 2000 were challenged by the appellant firstly through appeal before the Service Tribunal but when his appeal was dismissed for lack of jurisdiction as no final order was passed on the basis of these remarks, the appellant brought the dispute before this Court. These adverse remarks written by respondent No,3 were admittedly not conveyed to the appellant. He obtained the copy of these remarks by submitting an application before the Director General Health Services, Government of Azad Jammu and Kashmir. The conduct of respondent No,3 is violative of the instructions issued by the Government vide Notification No,S&GAD/A- 4(67)VI/87 dated 30-1-1988, in respect of ACR, Rule 37 of the said Instructions being relevant is reproduced below: "37. The timely communication of the report containing adverse remarks is a paramount importance. The authorities designed to communicate the adverse remarks should, therefore, ensure that the whole report containing adverse remarks is communicated to the civil servant concerned at the earliest opportunity and in any case within one month from the date the report is countersigned and completed. A serious view should be taken of any failure on the part of the officer/official concerned to furnish a copy the report containing adverse remarks to the civil, servant reported upon within the stipulated period and disciplinary action taken against the person(s) responsible therefor. In any case the report containing adverse entries should be furnished to the civil servant at any time it comes to the 1[ ]"
The bare reading of above referred rule makes it clear that the Reporting Officer was bound to convey these remarks within a period of 30 days to the appellant. The purpose for conveying adverse remarks is that person against whom adverse remarks are reported should known those remarks so that he may improve his conduct or submit any explanation relating to his past conduct which gave rise to a complaint against him to the concerned authority. In Instruction No,40 it has been laid down that if adverse remarks are not communicated to the concerned civil servant then such remarks should be ignored for the purpose of promotion and premature retirement. The respondent No,3 has not disclosed lack of knowledge about these instructions in written statement before the Service Tribunal or in concise statement before this Court that he was not aware of these instructions as such has failed to convey the adverse remarks to the appellant.
From the material which was before the Service Tribunal and is also on the record of this Court it is a proved fact that appellant and respondent No,3 were not on good terms as appellant during an inquiry, which was being conducted on the complaints of residents of Authmaqan about expired medicines, had got his statement recorded wherein the conduct of respondent No,3 in receiving expired medicines was clearly pointed out by him. Later on appellant submitted a detailed application before Director General Health Services which is also a part of the record of this Court in which he blamed respondent No,3, as District Health Officer Muzaffarabad, for certain irregularities and acts of mismanagement. In the light of these events we feel justified in holding that the adverse remarks were intentional and with mala fide intent and were not purposely conveyed to the appellant so that he may be deprived of from submitting explanation and further promotion on the basis of these adverse remarks. We have noticed that right from 1981 when appellant joined his service in the Health Department of Azad Jammu and Kashmir Government till 1.999 his performance was rated excellent. He was reported honest employee of the department and fit for further promotion. These A.C.Rs, were written by different persons who during this period remained posted as D.H.O. Muzaffarabd. On account of these reasons the adverse remarks appears to be the result of biased and hostility of respondent No,3 towards appellant. Therefore, these remarks cannot be made basis for refusing him further promotion as has been suggested in the working paper prepared for the consideration of Selection Board for its recommendations in favour of suitable candidate out of panel prepared by the department for the vacant post of Store Superintendent. The Service Tribunal has admitted that the adverse remarks were recorded against the appellant contrary to the instructions issued by the Government, therefore, these are void. However the appeal of the appellant was held not maintainable on the excuse that no final order on the basis of these adverse remarks has yet been passed against him. A.C.Rs, are considered in respect of promotion and demotion of a civil servant, therefore, these have got the force of rules which can affect the terms and conditions of the service of a civil servant against which right of appeal of an aggrieved civil servant has always been accepted by the Federal Service Tribunal, Supreme Court of Pakistan and by this Court as is clear from judgments referred to in para five of this judgment. The view expressed by the Service Tribunal in the present case is contrary to the above referred repeatedly expressed view, therefore, the same cannot be maintained; resultantly the appeal of the appellant before the Service Tribunal against the adverse remarks recorded in his A.C.R. Is held maintainable. The Selection Board has not expressed any opinion so far against the appellant in the light of the working paper prepared by the department for its consideration for the purpose of its opinion in favour of a suitable candidate for the vacant post of Store Superintendent. However we want to make it clear that promotion cannot be withheld under the excuse of any pending departmental inquiry as has been suggested in the working paper. We have already discussed this point in the preceding paragraphs of this judgment in the light of judgment of the Supreme Court of Pakistan and this Court. The wisdom behind this view is that if promotion is refused to a civil servant on the excuse of any pending departmental inquiry that shall amount to penalizing a civil servant prior to final opinion of the Inquiry Committee or Officer. In case the civil servant is promoted on the basis of his merit his promotion would not debar the competent authority to continue with the departmental inquiries against him and in case any misconduct is proved against a civil servant in the departmental inquiry conducted fairly in accordance with the rules the appropriate order can be passed against him.
' In the light of above while allowing this appeal with cost, the judgment of the Service Tribunal dated 21-3-2002 is set aside. The adverse remarks incorporated in the A.C.R. Of the appellant by respondent No,3 for the year 2000, stand expunged.