QAZI MUHAMMAD FAROOQ, J.---The appeals, by leave of the Court, being disposed of by this common judgment consist of two sets and involve determination of identical legal points. The first set is comprised of Civil Appeals Nos.8, 633, 634, 173, 1447, 336, 337, 338, 1004, 1005, 1187 and 1188 of 2002 and 13 of 2000, which have been filed by certain Judicial Officers against the judgments dated 13-12-1999, 4-10-2001, 7-3-2002, 13-9-2001. 16-5-1997, 5-10-2000 and 1-11-2001 of the Punjab Subordinate Judiciary Service Tribunal, Lahore, hereinafter referred to as the Tribunal, rejecting their appeals arising from the adverse remarks recorded in their Annual Confidential Reports, hereinafter called the A.C.Rs, The second set consists of Civil Appeals Nos.1621 and 1622 of 1999 which have been filed by the Lahore High Court through its Registrar against the judgment dated 5-3-1999 of the Tribunal whereby two appeals filed by a Judicial Officer were allowed and the adverse remarks recorded in his two A.C.Rs, were expunged.
2. The facts in each appeal are different and put shortly together with leave granting orders are asunder:-- Civil Appeal No,8 of 2002 The appellant Chaudhry Shabbir Hussain had joined the Subordinate Judiciary in September, 1988 as a Civil 'Judge. While posted as Civil Judge, Lahore he was communicated, vide letter dated 6-12- 2000, the following adverse remarks recorded in his A.C.R. For the period from 1-1-1999 to 31-12-1999 by the Reporting Officer (District and Sessions Judge, Lahore) and endorsed by the Countersigning Officer (a learned Judge of the Lahore High Court) to the extent of integrity: PART-V
(a) Pen-picture: He did not enjoy good reputation.
(b) Counseling: Counseling upon general reputation was of no use. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity: Reported to be corrupt.
PART-VII REMARKS OF THE COUNTERSIGNING OFFICER: Views of the District Judge as to integrity are endorsed.
The representation filed by the appellant against the adverse remarks was dismissed by the Administration Committee of the Lahore High Court on 7-6-2001 and his appeal before the Tribunal also met the same fate on 4-10-2001. Leave was granted in the following terms:-- "It is stated that the adverse entry is not based upon any material against him. It is further submitted that the representation against the adverse remarks was heard by seven Judges of the Court constituting the Administration Committee, while appeal was heard by 3 Judges who could not have decided against the decision of the Administration Committee, 'therefore, the appeal loses its significance. It is further submitted that the ACR pertaining to the period from 1-1-1999 to 31-12-1999 was completed in September, 2000 and adverse remarks were communicated to the petitioner after a delay of more than 1 year and thus the adverse entry cannot be taken into consideration. In support of his contentions Malik Muhammad Qayyum, Advocate Supreme Court has relied upon judgment reported as 1999 SCMR 1587 Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar, 1996 SCMR 256 Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others. The judgment reported as 1989 SCMR 1238 Rana Abdul Ghaffar Khan v.. The Punjab Government and 1990 SCMR 1510 Syed Tathir Hussain Shirazi v. The Governor of the Punjab and others run against the judgment relied by the learned counsel. For resolving the conflict and for an authoritative pronouncement we grant leave to appeal." The appellant has also moved Criminal Original No,49 of 2002 with the prayer that the respondents may be proceeded against for contempt of Court as by declining his promotion on account of the impugned adverse remarks they had violated the order passed by this Court on 16-5-2002 that no further action shall be taken against him.
Civil Appeals Nos.633 and 634 of 2002: Through these appeals Rao Muhammad Akbar, Civil Judge, has challenged the judgment dated 7- 3-2002 of the. Tribunal dismissing his appeals directed against the adverse remarks in his A.C.Rs, for the period from 1-1-1995 to 31-12-1995 and 1-1-1996 to June, 1996. The appellant had joined service in 1988 as a Civil Judge and the following adverse remarks were recorded in his ACR for the period from 1-1-1995 to 31-12-1995 by the Reporting Officer (District and Sessions Judge, Faisalabad):-- PART-V
(a) Pen-picture: There were complaints about his integrity. The Officer has recently performed Umra and started using restraint. PART-VI
(c) Integrity: Reported to be corrupt. The remarks of the Countersigning Officer (a learned Judge of the Lahore High Court) in PART-VII are worded thus:-- "Did not personally receive any complaint about his integrity but since his Reporting Officer has done so, he needs to be closely watched." The same Reporting Officer recorded the following adverse remarks in the ACR of the appellant for the period from 1-1-1996 to June, 1996:-- PART-III a. Financial responsibility: Below Average. PART-V
(a) Pen-picture: The officer has having reputation of being corrupt. He has paid no heed to any counseling. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity: Reported to be corrupt. The ACR was countersigned by the Countersigning Officer (a learned Judge of the Lahore High Court) on 16-8-2001, without any remarks, and the adverse remarks were communicated to the appellant vide letter dated 17-82001. The appellant filed a representation which was rejected by the Administration Committee of the Lahore High Court on 2-10-2001 and the appeals arising therefrom were rejected by the Tribunal on 7-3-2002. Leave was granted pursuant to leave already granted in identical matters.
Civil Appeal No,173 of 2002: The appellant Ch. Muhammad Hanif had joined service on 2-1-1984 as a Civil Judge. While he was posted as Civil Judge 1st Class, Khanpur, the following adverse remarks were recorded by the Reporting Officer (District and Sessions Judge, Bahawalpur) in his ACR for the period from 29-1- 1999 to 31-12-1999:-- PART-IIPERSONAL QUALITIES
4. Adoptability: Below average.
PART-III ATTITUDES
1. Knowledge of Islam. Below average.
2. Attitude towards Islamic Ideology. Below average.
3. Ability to produce constructive ideas. Below average.
4. Relations with subordinates: Below average. PART-V
(a) Pen-picture: Did not enjoy good name for integrity. However, he became appreciably cautious towards end of the year. Needs to be kept under strict watch. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity: Reported to be corrupt. The Countersigning Officer remarked that he was an average officer. The adverse remarks were communicated to the appellant vide letter dated 25-7-2000 and the representation filed by him was turned down on 7- 6-2001 by the Administration Committee of the Lahore High Court. The appeal preferred by him before the Tribunal was dismissed on 13-9-2001. Leave was granted in view of the leave granting orders passed in the connected matters.
Civil Appeal No,1447 of 1998 The appellant Tahir Parvez was appointed as a Civil Judge on ' 1-4-1978. While he was posted at Lahore, the then District and Sessions Judge, Lahore in his capacity as the Reporting Officer recorded the following adverse remarks in his ACR for the period from 1-1-1991 to 31-8-1991:-- PART-V
(A) Pen-picture: Did not enjoy enviable reputation. PART-VI
(a) Meets bare minimum standard (below average).
(b) Not yet fit for promotion.
(c) Integrity: Reported to be corrupt. The Countersigning Officer did not record any remark. The adverse remarks were communicated to the appellant on 18-5-1992, his representation against the same was dismissed by the Administration Committee of the Lahore High Court and the appeal filed by him was dismissed by the Tribunal on 16-5-1997. Leave was granted to I consider whether or not formalities, as laid down in the case reported as g Noor Elahi v. Director Civilian Personnel (1997 SCMR 1749) were observed. The appellant has reportedly been promoted as Additional District and Sessions Judge.
Civil Appeals Nos.336, 337 and 338 of 2002 These appeals relate to adverse remarks recorded in the ACRs of the appellant Malik Muhammad Aslam Jawad for the periods from 1-1-1997 to May, 1997, 1-1-1999 to May, 1999 and 29-5-1999 to 31- 12 -1999. The appellant had joined service on 31-10-1992 as Additional District and Sessions Judge. The adverse remarks recorded by the Reporting Officer, a learned Judge of the Lahore High Court, in his ACR for the period from 1-1-1997 to May, 1997 read as under:-- PART-V
(a) Pen-picture: Does not enjoy good reputation. PART-VI
(a) Fitness for promotion: Not yet fit for promotion.
(b) Reported to be corrupt. The adverse remarks in the ACR for the period from 1-1-1999 to May, 1999 read as under:-- PART-V
(a) Pen-picture: He does not carry good image. PART-VI(b)
(iii) Not yet fit for promotion.
(c) Integrity: Does not carry good image. The adverse remarks recorded in the ACR for the period from 29-5-1999 to 31-12-1999 read as under:-- PART-VI
(c) Integrity: Reported to be corrupt. The adverse remarks were duly communicated to the appellant and the representations filed by him against the same were rejected by the Administration Committee of the Lahore High Court and the appeals arising therefrom were dismissed by the Tribunal on 5-10-2000 and 1-11-2001. Leave was granted on the basis of the leave granting order passed in C. P. No,3484-L of 2001 (Civil Appeal No,173 of 2002).
Civil Appeals Nos.1004 and 1005 of 2002 The appellant Khalid Mehmood Cheema had joined the Subordinate Judiciary on 4-11-1979 as a Civil Judge and was promoted as Additional District and Sessions Judge in 1997. The Reporting Officer, a learned Judge of the Lahore High Court, recorded the following adverse remarks in his A.C.Rs, for the period 23-5-1998 and 31-12-1998 and 1-1-1999 to 31-12-1999:-- PART-V
(a) Pen-picture: Does not enjoy good reputation. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity: Reported to be corrupt. The representations filed by the appellant against the above remarks on 28-9-2000 and 28-6- 2001 were rejected by the Administration Committee of the Lahore High Court and the appeals filed before the Tribunal were dismissed on 1-11-2001. Leave to appeal was granted, subject to the question of limitation, in view of leave already granted in similar matters.
Civil Appeals Nos.1187 and 1188 of 2002: The appellant Muhammad Nawaz Bhatti had joined service in the year 1977 as a Civil Judge and was promoted as Additional District and Sessions Judge in 1994. On 31-8-2000, he was communicated the following identical adverse remarks recorded by the Reporting Officer, a learned Judge of the High Court, in his A.C.Rs, for the period from 28-4-1998 to 31-12-1998 and 1-1- 1999 to 31-12-1999:-- PART-V Pen-picture: Does not enjoy good reputation. PART-VI
(b) Fitness for promotion: Not yet fit for promotion.
(c) Integrity: Reported to be corrupt. Through letter dated 14-6-2001 he was informed that the representations filed by him against the adverse remarks were rejected by the Administration Committee of the Lahore High Court.
Thereafter, he filed appeals before the Tribunal which were dismissed on 1-11-2001. Leave was granted in view of leave already granted in Civil Petitions Nos.1276 and 1277 of 2000 (Civil Appeals Nos.1004 and 1005 of 2002).
Civil Appeal No,13 of 2000: While posted as Additional District and Sessions Judge, Shujahabad, District Multan the appellant Ijaz Mehmood Chaudhry was communicated, vide letter dated 7-9-1998, the following adverse remarks recorded by the Reporting Officer, a learned Judge of the Lahore High Court, in his ACR pertaining to the period from 19-7-1997 to 31-12-1997:-- PART-V
(a) Pen-picture: Reputation not above board. PART-VI (b)Fitness for promotion:
(c) Integrity: Not yet fit for promotion. Reported to be corrupt. The representation filed by the appellant was rejected by the Administration Committee of the Lahore High Court and the ensuing appeal was dismissed by the Tribunal on 23-12-1999. During pendency of this appeal he was granted interim relief to the effect that his case for promotion shall be considered on the basis of relevant considerations and service record other than the adverse remarks challenged by him and in case he is promoted, it shall be subject to the result of the appeal. The appellant was promoted as District and Sessions Judge on 2-9-2000 subject to the result of this appeal. Leave was granted to consider the legality of the impugned judgment.
Civil Appeals Nos.1621 and 1622 of 1999: These appeals have been filed by the Lahore High Court through its Registrar against the consolidated judgment of the Tribunal dated 2-2-1999 whereby Service Appeals Nos.7 and 8 of 1997 filed by the respondent Mian Muhammad Younas, Civil Judge, were allowed and the adverse remarks recorded in his ACRs by the Countersigning Officer, a learned Judge of the Lahore High Court, for the period from 1-1-1993 to 26-6-1993 and 1-1-1994 to 30-4-1994 were expunged. The remarks recorded in Part-VII of ACR for the period from 1-1-1993 to 26-6-1993 read as under:- "This officer does not enjoy good reputation so far as his integrity is concerned. As per his own admission, he has been maintaining a car, which according to him was given to his wife in dowry, but it seems to be only a ruse. Unfit to be retained in judiciary."
The adverse remarks in the ACR for the period from 1-1-1994 to 30-4-1994 are worded thus:-- "I do not agree with the assessm ent of the learned D.&S.J. So far as integrity of this officer is concerned. He was an ill-reputed officer, notorious for corruption. He was maintaining a car without having lawful means therefor and was a dishonest fellow, unfit to be retained in judicial service, much less being fit for promotion." Leave was granted to consider the following questions:-- "(i) Whether it was open to the Tribunal to accept the appeal of the respondent relating to the adverse remarks recorded by the Inspection Judge of the Lahore High Court/Countersigning Officer in the facts and circumstances of the case?
(ii) Whether the impugned judgment is in conflict with the guidelines laid down by this Court regarding recording of ACRs in the case of Inspector-General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid (1994 SCMR 1348), Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749) and Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684) reiterated in the judgment in Jahangir Goraya's case Civil Appeal No,823 of 1990, decided on 29-11-1992?
(iii) Whether the impugned judgment is in conformity with the decisions of this Court in Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar (1999 SCMR 1587), and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others (1996 SCMR 256)?
(iv) Whether the decision rendered by the Administration Committee comprising of seven Hon'ble Judges including the Chief Justice was liable to interference by the Tribunal comprising of three Hon'ble Judges of the same Court?"
3. Malik Muhammad Qayyum, learned counsel for the appellant Rao Muhammad Akbar, Ch. Muhammad Hanif and Muhammad Nawaz Bhatti raised the following contentions:--
(1) The adverse remarks recorded in the ACRs of the appellants were not supported by any material.
(2) The adverse remarks having been recorded without any verbal or written counseling were liable to be expunged.
(3) There was considerable delay in recording and communicating the adverse remarks and no reason has been advanced for the delay. In the case of the appellant Rao Muhammad Akbar the Countersigning Officer' had signed both the ACRs on 16-8-2001, therefore, the adverse remarks had become non-existent.
(4) The Administration Committee of the Lahore High Court while rejecting the representations of the appellants had not recorded reasons which showed lack of application of mind. Reliance was placed on Aslam Warraich and others v. Secretary, Planning and Development Division (1991 SCMR 2330).
(5) The Reporting as well as the Countersigning Officer are obliged to record ACRs objectively and not subjectively in view of the law laid down in Government of Punjab v. Ehsan ul Haq Sethi (PLD 1986 SC 684). The judgment in that case was delivered by five Judges and still holds the field. The judgment was not brought to the notice of the learned Benches which had expressed contrary view in Inspector-General of Police, Punjab v. Rana Aftab Majeed (1994 SCMR 1438) and Noor Elahi v.
Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749). The adverse remarks against the appellants were sketchy, vague and subjective as there was neither any complaint, resolution of any Bar Association or transfer application against them.
(6) Composition of the Tribunal is not only in conflict with the fundamental right of access to justice but is also illusory and not real. It consists of three junior Judges of the Lahore High Court whereas representation against adverse remarks is dealt with by the Administration Committee of the Lahore High Court consisting of seven Senior Judges. The Tribunal in its present form cannot be fair and impartial. The Subordinate Judiciary Service Tribunal Act, 1991 may be struck down and it may be ordered that the Tribunal should consist of retired Judges of the Lahore High Court.
(7) The adverse remarks not only offended the mandatory Instruction No,2 of the Punjab ESTACODE Vol-I under which the ACR is to be Initiated in the first week of January and forwarded to the higher authority in the same week and the higher authority is required to record its remarks within a week but also Instruction No,23 which provides that the report of integrity should not be vague but definite and an officer may be reasonably believed to be corrupt if he has general and persistent reputation of being corrupt. The remarks were also not in line with Instructions Nos.30 and 34. The former provides that the opinion expressed should be the result of careful consideration and the Reporting Officer should be in a position to justify his views, if called upon to do so. The latter is to the effect that timely communication of the adverse remarks is of paramount importance and adverse remarks are to be communicated at the latest within one month. The ACRs of the appellants also offended the guidelines contained in the Guide to Performance Evaluation by 0 and M Division.
(8) In the case of the appellant Ch. Muhammad Hanif the Countersigning Officer had graded the officer as average which was not endorsement but negation of remarks recorded by the Reporting Officer.
(9) The adverse remarks were recorded in the case of Rao Muhammad Akbar and Muhammad Nawaz Bhatti on account of a special report sent by Mr. Kazim Malik District and Sessions Judge, Gujranwala with whom both the officers had altercated on the question of distribution of murder cases and shifting of Court Room. Ch. Fazal Hussain, learned counsel for the appellant Ch. Shabbir Hussain, adopted the arguments addressed by Malik Muhammad Qayyum. He, however, added that the adverse remarks against the appellant were tainted with mala fide as he has declined to decide a case according to the wishes of his senior officers and by way of punishment was transferred immediately after pronouncement of the judgment. Besides, there was delay of one year in communicating the adverse remarks. There was neither any complaint against him nor he was counseled. The learned counsel submitted at the close of his arguments that the appellant was not inclined to pursue Criminal Original Petition No,49 of 2002, therefore, the same may be dismissed as withdrawn. Mr. Talat Farooq, learned counsel for the appellant Tahir Parvez, placed reliance on Principal, Government College, Thana, Malakand v. Mrs. Bilquis Begum 2003 PLC (C.S.) 187 to submit that the appellant has been promoted, therefore, the adverse remarks in question may be expunged. Mr. Naseer Ahmed Bhutta, learned counsel for the appellant Malik Muhammad Aslam Jawad, repeated the arguments addressed by Malik Muhammad Qayyum, Advocate Supreme Court, on the legal aspect. On the factual aspect he contended that the delay in recording A.C.Rs, of the appellant was not condonable and bias and prejudice also stood established on record as a complaint made sometime in the month of May, 1999 against the appellant had influenced the mind of the Reporting Officer while recording ACR for the period from 1-1-1997 to May, 1997 in the year 1999. Moreover, the report of the discreet inquiry submitted by Sheikh 'Zaheer Ahmed, District and Sessions Judge, Sargodha, was placed before the sub-Committee constituted by the Administration Committee of the Lahore High Court on 5-5-2000 and was looked into while deciding the representations of the appellant on 19-5-2001 in respect of A.C.Rs, for the period from 1-1-1997 to May, 1997 and for the year 1998. The appellant was exonerated in the regular inquiry but the report was suppressed and not produced before the Tribunal. He further submitted that the appellant had joined service on 31-1-1992 and his A.C.Rs, up to 1996 were unblemished. The adverse remarks for the period from 1-1-1997 to May, 1997 were not sustainable as the appellant had not served under the Reporting Officer for three months as he was posted at Rajanpur in the month of March, 1997. Besides, the adverse remarks were communicated after 2-1/2 years. There was no complaint or transfer application against the appellant, therefore, the adverse remarks recorded against the appellant in the A.C.Rs, for the period from 29-5-1999 to 31-12-1999 and 1;1-1999 to May, 1999 were unfounded particularly when the Countersigning Officer was not the Inspection Judge during the latter period. Khawaja Ibrar Majal, learned counsel for the appellant Khalid Mehmood Cheema, while adopting the arguments addressed by Malik Muhammad Qayyum on the legal questions added that the Reporting Officer had recorded the A.C.Rs, on 18-8-2000 and certain intervening events had influenced his mind. Mr. Kazim Malik had taken charge as District and Sessions Judge, Gujranwala on 14-2-2000 and there was difference of opinion between him and the appellant over distribution of murder cases and instructions issued during a meeting attended by the Police Officers on the issues of pre-arrest bail and identification parade. The appellant had also joined hands with a Judicial Officer residing in the same colony, namely, Mr. Nawaz Bhatti whose relations with Mr. Kazim Malik were strained. The Reporting Officer had recorded adverse remarks against the appellant at the behest of Mr. Kazim Malik who bore malice against the appellant. About the delay of 196 days in filing the appeal, the learned counsel submitted that the appellant had gone into hiding owing to animosity with Mr. Kazim Malik and in any case delay was condonable as leave has been granted in the connected cases involving similar questions of law. Reliance was placed on Pakistan Television Corporation v. S. Ahtramullah (1987 SCMR 753) and Pakistan v. R.S. Roopchand (PLD 1967 SC 47). Sheikh Zamir Hussain, learned counsel for the appellant Ijaz Mehmood Chaudhry, contended that the appellant had 30 years of service to his credit and had earned only one adverse report for a short period of five months from 19-7-1997 to 31-12-1997. He had earned good reports before and after the said report and the Reporting Officer had not stated with particularity as to how all of a sudden his conduct had changed. Reliance was placed on Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749). The report was undated and recorded by a Judge of the High Court who was not the Inspection Judge. There was neither any complaint, transfer application nor resolution of a Bar Association against the appellant. The report was also whimsical being not based on any material. The appellant being an Additional District and Sessions Judge had no financial responsibility. He further submitted that the adverse remarks had lost their efficacy as the appellant was promoted as District and Sessions Judge on 2-9-2000. Malik Azam Rasool, learned counsel for the appellant in Civil Appeals Nos.1621 and 1622 of 1999 (Lahore High Court) contended that the Tribunal had overlooked this fact that the adverse remarks in the ACRs of the respondent were not solely based on possession of a car. The adverse remarks were recorded by the learned Inspection Judge who had seen the conduct of the appellant and the judicial work done by him and the allegations of malice levelled against him by the respondent was not established on record. The respondent, on the other hand, defended the impugned judgment by reiterating the reasons recorded therein by the Tribunal. He further submitted that the Countersigning Officer had recorded the adverse remarks after one year of his retirement whereas under Instruction 65 of the Punjab ESTACODE, Vol. I he was required to record his remarks before his retirement. The adverse remarks were liable to be ignored having been recorded in violation of the said Instruction. He further submitted that the adverse remarks were also recorded and conveyed after considerable delay. He also submitted that the adverse remarks were tainted with malice because the Countersigning Officer was related to K.M. Sohel, Ex-Civil Judge, with whom his relations were strained. The respondents in the remaining appeals were also represented by Malik Azam Rasool, Advocate Supreme Court who addressed lengthy arguments to defend the impugned judgments of the Tribunal. The main thrust of his arguments was that delay in recording and communication of the adverse remarks is immaterial as Instruction No,2 of the Punjab ESTACODE, Vol. I is directory and riot mandatory, the Instruction about counseling was also directory and the Instruction with regard to the minimum period of three months for recording A.C.R. Did not apply to a Judge of the High Court, each service had its own job requirements, therefore, while applying the Instructions contained in the Punjab ESTACODE, Vol. I to the Judicial Officers the supervisory role of the High Court under Article 203 of the Constitution is to be kept in view, no material is required for recording adverse remarks in the ACR, the appellants have not been able to establish malice, bias or prejudice against any Reporting Officer or Countersigning Officer which is absolutely necessary for expunction of adverse remarks, evaluation of a subordinate officer by a Reporting Officer or a Countersigning Officer is a matter of subjective assessment and not objective evaluation, the representations of the appellants were examined in detail by sub-Committees consisting of the members of the Administration Committee and thereafter the representations were disposed of by the Administration Committee, composition of the Tribunal did not suffer from any legal or technical defect and the appellants having filed appeals before the Tribunal were estopped from challenging its composition particularly when relief has been granted in some cases, the petition for leave to appeal (C.P. No,2102-L of 1999) filed by the appellant Ch. Muhammad Hanif in respect of adverse remarks recorded in his A.C.R. For the year 1996 was dismissed by this Court on 17-7-2001, the appeal of Khalid Mehmood was badly barred by limitation as he had appeared before a learned Judge of the Lahore High Court on 28-6-2002, the appellant Malik Aslam Jawad had set up a new case in this Court for the first time, the adverse remarks against the appellant Tahir Parvez had lost efficacy in view of his promotion but the case of Ijaz Mehmood Chaudhry was distinguishable as he was promoted subject to the decision of the appeal. Reliance was placed on Government of the Punjab v. Ehsan-ul-Haq Sethi (PLD 1986 SC 684), Syed Tathir Hussain Shirazi v.
The Governor of the Punjab and others (1990 SCMR 1510), Kh. Saeedul Hassan v. Government of the Punjab through Chief Secretary, Lahore (1994 PLC (C.S.) 113, Lahore High Court, Lahore through Registrar v. Muhammad Jahangir Khan Goraya (1999 SCMR 2117), Shaukat Javed Farooqi v. District and Sessions Judge, Lahore and another (1999 SCMR 2141), Muhammad Zafar Qureshi v.
Government of the Punjab and 2 others (C.P.L.A. No,1529-L of 1996), Ch. Muhammad Wakrl v. Punjab Subordinate Judiciary Service Tribunal and 2 others (C.P.L.A. No,1170 of 1998), Lahore High Court, Lahore through its Registrar v. K.M. Sohel C.As. Nos.1687 to 1689 of 1999, Ch. Muhammad Hanif v.
Lahore High Court, Lahore (C.P.L.A. No,2102-L of 1999), Ghulam Mustafa Shahzad v. Lahore High Court, Lahore through its Registrar (C.P.L.A. No,2780--2782-L of 2001), Chief Secretary, Punjab v.
Muhammad Saeed Zafar (1999 SCMR 1587), Noor Elahi v. Director of Civilian Personnel (1997 SCMR 1749), Inspector-General, Police, Punjab v. Rana Altaf Majid (1994 SCMR 1348) and Province of the Punjab v. Sardar Noor Ilahi Khan Leghari (1992 SCMR 1427).
4. The Tribunal while dismissing the appeals culminating in the first set of appeals placed implicit reliance on the cases reported as Shaukat Javed Farooqi v. District and Sessions Judge, Lahore and another (1999 SCMR 2141), Khawaja Saeed-ul-Hassan v. Government of the Punjab (1994 SCMR 1815), Sirajuddin Qureshi v. Administration Committee of Sindh High Court (1985 PLC (C.S.) 704), observations noted with approval by this Court in the case of Shoukat Javed Farooqi, and Lahore High Court Lahore through Registrar v. Muhammad Jahangir Khan Goraya (1999 SCMR 2117). The excerpts from the judgments in some of the aforesaid cases reproduced in the impugned judgments read as under:-- "The basis for their opinion can be very extensive, depending on their own observation, the general reputation and such other material which may have been brought to their notice."
"The superior officers like the District Judge and the Chief Justice are the only officers who can accurately assess the works and conduct of the subordinate Judge serving under them. They are the best judges of his work, conduct and character. The basis for their opinion can be very extensive, depending on their own observation, the general reputation and such other material which may have been brought to their notice. All this material does not generally form part of the record. The opinion is formed by the superior officers on the basis of conglomeration of events too minute to be noticed individually and recorded separately: The total impact of such events, however, brings into focus a clear image of the persons before them. The superior officers cannot, therefore, be asked to produce material on which they based their opinion. Nor should there be any corpus on the superior officers to express themselves freely while recording their opinion concerning their subordinates."
"There was no allegation in the Memorandum of Appeal of any mala fide on the part of the Reporting Officer or those upholding those remarks. If the remarks with regard to honesty or integrity were supported by tangible evidence produced before the Tribunal it would be more a case of dismissal of the officer than recording of adverse remarks in his Annual Confidential Report.
The Tribunal has completely misdirected itself in evaluating the case and in appreciating the material on record."
5. The contentions raised by the learned counsel for the parties have received our anxious consideration. However, before proceeding to determine the questions involved in these appeals we deem it necessary to observe that although all the civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according to the following verse of the Holy Qur'an:- "' O' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against your owns elves or your parents or near relations, be he rich or poor, Allah is most competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then Allah is aware of what you do." (Sura 4, Verse 135).
Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances. We, therefore, cannot help remarking that Judicial Officers are expected to guard their reputation jealously and the Reporting Officer/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias.
6. It is true that A.C.Rs, of some of the appellants were written and adverse remarks conveyed to them after considerable delay and the Reporting Officer/Countersigning Officers had not adhered to the timeframe envisaged by Instruction No,2 of the Punjab ESTACODE, Vol.-! Which reads as under:-- "2. When should a Report be written.---The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority, it will be sent to the authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government servants during the calendar year to which they relate.
Otherwise, consciously or subconsciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within the month of January each year."
7. The first question for determination, therefore, is whether delay in writing A.C.Rs, and conveying the adverse remarks can vitiate the adverse remarks. The question is not res Integra. A matter on this subject had come up before a Full Bench of this Court for consideration and it was held that Instruction No,2 of the Establishment Manual, Volume I, which is in pari materia with Instruction No,2 of the Punjab ESTACODE, ';Vol.1, is directory in nature. The case is reported as Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684). The following excerpt from that judgment may be reproduced hereunder advantageously:-- "As for the time schedule, Instruction No,2 provides that it should be initiated within the prescribed time, that is, the first week of January and should relate to a calendar year. The purpose is twofold; firstly, that subsequent events may not consciously or unconsciously contribute in the formation of the opinion in respect of the reporting year; and, secondly that the cases for promotions and appointments cannot be properly judged in the absence of up-to-date Annual Confidential Reports, which results in frustration amongst the Government servants. However, while construing this Instruction, there cannot be in every case a rigid compliance of the time schedule; and for this, the reason is not for to seek as there may be cases where while judging the cases of Government servants for promotion and appointment there may not be up-to-date Annual Confidential Reports in which case the missing reports are to be called for a fuller consideration of the merits. (Reference in this connection may be made to Rule 2.30-A of the Guide to Performance Evaluation, O&M Division, Public Administration Research Centre, Islamabad, which provides for the rendering of missing character rolls or their reconstruction). There may be other instances where because of the larger number of Government servants and their widely dispersed postings, it may not be possible to complete their Annual Confidential Reports within the time schedule for many justifiable reasons. Yet there might be other cases where for some technical reason, the Annual Confidential Reports cannot be initiated at the proper time. Such instances are not exhaustive of the cases where time schedule cannot be rigidly followed. Designedly, therefore, no penal consequence was postulated for contravening the time schedule. Accordingly, this Instruction is directory in nature." The question was determined again in the case of Syed Tathir Hussain Sherazi v. The Governor of the Punjab (1990 SCMR 1510) and it was held that delay in recording adverse remarks does not affect their efficacy or legality. The dictum was reiterated in Lahore High Court, Lahore through Registrar v. K. M. Sohel (2001 PLC(C.S.) 1253) as well as an unreported judgment of this Court titled Ch. Muhammad Wakil v. Punjab Subordinate. Judiciary Tribunal, Lahore High Court (C.P. No,1170 of 1998) decided on 12-10-1999. In view of this settled legal position and well known pre-occupation of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating A.C.Rs, of some of the appellants and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the time schedule has been prescribed so that remarks are based on the performance of the officer during the relevant,year and not any subsequent even stands repelled in view of the observations made in the case of Ehsanul Haq Sethi.
8. This brings us to the main common contention that the adverse remarks recorded in the A.C.Rs, of all the appellants were liable to be expunged as the same being subjective offended the observations made in Government of Punjab v. Ehsanul Haq Sethi (PLD 1986 SC 684) that the merits of the officer reported upon should be judged from an absolutely detached objective point of view.
The contention is misconceived inasmuch as notwithstanding the observations made in Inspector- General of Police, Punjab v. Rana Aftab Majeed (1994 SCMR 1348), Noor Elabi v. Director of Civilian Personnel and 2 others (1997 SCMR 1749) and an unreported judgment dated 17-7-2001 rendered in Civil Petition 2102-L-1999 titled Ch. Muhammad Hanif v. The Lahore High Court that evaluation of a subordinate by a Reporting Officer or Countersigning Officer is a matter of subjective assessment and not an objective evaluation, the adverse remarks complained of meet the requirements of objective evaluation and do not militate against the aforesaid observations in the case of Ehsanul Haq Sethi which were made with reference to the guideline provided by Instruction No,19 of the Establishment Manual, Volume-I as well as nature of the A.C.R. Form and are worded thus:-- "Instruction No,19 provides a guideline such as impartial, forthright and unambiguous for assessing the performance of the Government servant. These are of utmost importance for comprehending the characteristics listed in the Annual Confidential Forms. If the Reporting Officer is partial his opinion is likely to cause incalculable damage to the officer reported upon, and again if it is ambiguous or carelessly written, it would not represent the result of careful consideration so that if called upon the Reporting Officer will not be able to justify his opinion and such a lapse would definitely defeat the purpose of the report. Therefore, the merits of the officer reported upon should be judged from an absolutely detached objective point of view and to attain this object the A.C.R.
Forms are designed as to leave a very little scope for sketchy, vague or subjective assessment." In the same authority 'credible information', 'personal observation' and 'reports of the Inspecting Judges' have been held to be sound basis and material for objective evaluation as is evident from the following excerpt:-- "As to what impelled the Reporting Officer to make such remarks, it must be on credible information, or his own personal observation or more likely based on the reports of the Inspecting Judges. To say that this material was subsequently gathered after close of the reporting year is far-fetched and an erroneous conclusion."
The position that emerges from the judgment is that an impartial and unambiguous evaluation based on credible information, personal observation and reports of the Inspection Judges falls within the ambit of an objective evaluation. In other words, an evaluation can be termed as objective if it is unambiguous, impartial, unbiased, result of careful consideration and is based on credible information, personal observation of the Reporting Officer or the Countersigning Officer and reports of the Inspection Judges and it is not necessary that it must be based on tangible material like complaints in writing, resolutions of Bar Associations, transfer applications and assets etc. The adverse remarks with regard to integrity of an officer are made on the basis of his reputation and if the same are required to be supported with tangible material and instances of corruption then there will be no difference between an A.C.R. And an enquiry report under the Efficiency and Discipline Rules. In the present appeals the adverse remarks were either recorded by the Inspection Judges of the Lahore High Court as Reporting Officer Or endorsed by them as Countersigning Officers and in some cases the Reporting Officer are District and Sessions Judges.
The Reporting Officers/Countersigning Officers had scrutinized the work of the appellants and closely watched their conduct as Inspection Judges, Appellate Authorities and Judicial Heads of the Districts where they were posted, therefore, it goes without saying that the adverse remarks are based on credible information, personal observation and the process of inspection. The adverse remarks relate to the integrity of the appellants and are neither vague nor sketchy and there is also nothing on the record to suggest even remotely that the integrity and reputation of the Reporting Officers/Countersigning Officers was not above board and they had recorded the adverse remarks on account of bias, prejudice, or rancour against the appellants. It was held in F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. (1994 SCMR 722) that where no allegation is made against the Reporting Officer and the Countersigning Officer about their mala fides and their own reputation is not clouded, their evaluation as to the performance of their subordinates should be accepted. The allegations made on behalf of the appellants Rao Muhammad Akbar, Muhammad Nawaz Bhatti and Khalid Mehmood Cheema that their relations with Mr. Kazim Malik, District and Sessions Judge, Gujranwala were strained on account of distribution of murder cases and shifting of Court Room and the Reporting Officer had recorded adverse remarks in their A.C.Rs on a special report submitted by him has not been established on record and it also does not stand to reason that a District and Sessions Judge had influenced the mind of a Judge of the High Court who being the Inspection Judge for Gujranwala District had himself seen the work and conduct of the said appellants. Similarly the allegation leveled by Mian Muhammad Younas that his relations with an ex-Civil Judge K.M. Sohel were strained and the Countersigning Officer being related to the latter was biased is more imaginary than real for want of proof. Same is the case with the 'Sifarish'- related allegation made by the appellant Ch. Shabbir Hussain. The allegation of mala fide can be easily made than proved. It is by now firmly settled that the allegation of mala fide requires proof of a high order owing to its serious nature and the burden of proof lies heavily on the person who makes it. In this context the observations made in Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151) may be reproduced hereunder:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fide is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
9. We may now advert to the contention regarding composition of the Tribunals established under Punjab Subordinate Judiciary Service Tribunals Act, 1991, which is a manifestation of separation of the Judiciary from the Executive and a symbol of independence of judiciary. The mere fact that two appeals before us have been filed by the Lahore High Court through its Registrar against acceptance of the appeals preferred by a Judicial Officer is sufficient for holding that composition of the Tribunal is unexceptionable and there is no force in the contention that being composed of three Judges junior to the members of the Administration Committee of the Lahore High Court it is illusory. The contention also overlooks the well-known difference of opinion amongst Judges of the superior Courts. There is no dearth of cases where a Junior Judge did not concur with the Senior Judges of the Bench and wrote a dissenting judgment. As a matter of fact the contention is not available to the appellants at all as having invoked the jurisdiction of the Tribunal themselves they cannot turn around and question its composition.
10. We are also unable to agree with the contention that non-recording of reasons by the Administration Committee of the Lahore High Court for rejection of the representations of the appellants pointed to lack of application of mind. It is an admitted position that each representation was thoroughly examined by a sub-Committee constituted by the Administration Committee and on the basis of the report of the sub-Committee the final order was passed by the Administration Committee. The sub-Committee in each case consisted of a few members of the Administration Committee and reports of the sub-Committee admittedly contain reasons for rejection of the representation. Application of mind on the part of the Administration Committee is amply demonstrated by constitution of a sub-Committee for scrutiny of each representation and in the face of the reasons recorded by the sub-Committee for rejection of the representation the Administration Committee was not required to record reasons once again. The Authority (1991 SCMR 2330) cited by the learned counsel for the appellants Rao Muhammad Akbar etc. Is distinguishable as rejection of representations in the present cases being based on detailed reasons recorded by the Sub-Committees constituted by the Administration Committee cannot be called 'a simple ritualistic rejection'.
11. As regards the question of counseling before recording adverse remarks, suffice it to say that the requirement is directory for want of a penal consequence, therefore, adverse remarks recorded sans counseling are valid. Reference in this context may be made to the case of Muhammad Jahangir Khan Goraya.
12. Having determined the main questions involved in all the appeals we propose to deal with peripheral contentions raised in some of the appeals. It was contended by the learned counsel for the appellant Ch. Muhammad Hanif that the Countersigning Officer had remarked that the officer was average which amounted to negation of the adverse remarks recorded by the Reporting Officer. The contention is not tenable because the Countersigning Officer did not comment on the adverse remarks recorded by the Reporting Officer and the comment made by him falls within the purview of Overall Grading. Needless to emphasize that Instruction No,36 of the Punjab ESTACODE, Vol.- clearly provides that if the Countersigning Officer does not comment on any remarks of the Reporting Officer, it will be presumed that he has accepted it. It will be pertinent to mention here that adverse remarks were recorded in the ACR of this appellant for the year 1996 also and Civil.
Petition No,2102-L of 1999 filed by him against rejection of his appeal by the Tribunal was dismissed on 17-7-2001. In that petition also he had submitted that the adverse remarks recorded by the Reporting Officer were endorsed by the Countersigning Officer in a slipshod manner but the objection did not prevail. The contention raised by the learned counsel for the appellant Malik Muhammad Aslam Javvad that the adverse remarks recorded in the A.C.R. For the period from 1-1- 1997 to May, 1997 were liable to be expunged as the appellant had not served under the Reporting Officer for three months is devoid of force. The reason is that the A.C.R. Was not initiated by the District and Sessions Judge, Sargodha but by a learned Judge of the Lahore High Court, Lahore which supervises and controls all the Courts subordinate to it under Article 203 of the Constitution of the Islamic Republic of Pakistan. The contention that the learned Judge of the High Court who had recorded adverse remarks in the A.C.R. Of the same officer for the period from 1-1-1999 to May, 1999 was not the Inspection Judge cannot be- considered having been raised for the first time at the hearing of the appeal. Be that as it may, the learned counsel for the respondent had produced the relevant record in the Court which indicated that all the Judges of the Lahore High Court who had initiated A.C.Rs, of the Additional District and Sessions Judges as Reporting Officers or countersigned the A.C.Rs, of the Civil Judges as Countersigning Officers were Inspection Judges of the respective Districts where the officers reported upon were posted. This observation will also meet a similar contention raised by the learned counsel for the appellant Ijaz Mehmood Chaudhry.
It was contended by the learned counsel for Ijaz Mehmood Chaudhry. That a case for expunction of adverse remarks was made out in the light of the observations made in the case of Noor Elahi (1997 SCMR 1749) as the ACR in question was the only adverse report earned by the appellant during his 30 years of service and the Reporting Officer had not stated with particularity, supported by sufficient material, as to how all of a sudden his conduct had changed. The contention cannot prevail as the cited authority is distinguishable. In that case the officer reported upon had earned good reports before and after the adverse remarks whereas in the present case it has not been established on record that the appellant had earned good reports before 19-7-1997 and the subsequent periods. Besides-, the adverse remarks with regard to the integrity of the appellant were recorded by a learned Judge of the Lahore High Court and while dealing with the main question involved in these appeals we have already held that evaluation of the Reporting Officer/Countersigning Officer as to performance of their subordinates should be accepted if there is no allegation of mala fide against them or the allegation is not established and their own reputation is unimpeachable. The appellant has not alleged that the adverse remarks recorded by the Reporting Officer were tainted with mala fide. The reputation of the Reporting Officer has also not been questioned. The expression "sufficient material" used in the authority is to be interpreted in the light of the observations made in paragraph-8 of this judgment. Expunction of adverse remarks in the A.C.R. Of the appellant Tahir Parvez was sought by his learned counsel on the ground that he has been promoted without any condition during pendency of the appeal. We propose to dispose of the appeal in the light of the observations about the adverse remarks made hereinbefore and it is for the competent authority to determine whether the effect of the adverse remarks has been offset by promotion of the appellant or not.
13. The appeals preferred by Mr. Khalid Mehmood Cheema are barred by 196 days. Delay is sought to be condoned on two grounds: First, that the appellant had gone into hiding on account of enmity with Mr. Kazim Malik, District and Sessions Judges, Gujranwala, and, secondly, leave has been granted in identical cases. The first plea hardly constitutes a valid ground for condonation of delay inasmuch as it is evident from the record produced by the learned counsel for the respondent that the appellant had appeared before a learned Judge of the Lahore High Court on 28-6-2002. The scenario will remain unchanged even if delay is condoned on the second ground because the main points arising from the leave granting order already stand decided against the appellant and as such the adverse remarks questioned by him and the impugned judgment do not warrant interference.
14. Taking up the appeals filed by the Lahore High Court through its Registrar we find that the appeals of Mian Muhammad Younas were accepted by the Tribunal with the observations that in both A.C.Rs, the Reporting Officer had not recorded any adverse remarks against the appellant, the adverse remarks recorded by the Countersigning Officer being based on the ground that he was maintaining a car without having lawful means, therefore, were not sustainable as he had mentioned the car in the declaration of assets submitted to the High Court in December, 1996 as well as in the subsequent declarations of assets and the learned members of the sub-Committee had not adverted to this aspect. We feel no difficulty in holding that in view of our findings on the main points involved in these appeals the adverse remarks recorded in the A.C.Rs, of the respondent Mian Muhammad Younas for the period from 1-1-1993 to 26-6-1993 and 1-1-1994 to 30- 4-1994 by a learned Judge of the Lahore High Court/Inspection Judge as Countersigning Officer are inviolable and the impugned judgment is not ,sustainable. The mere fact that the respondent had mentioned the car being maintained by him in the declaration of assets is not enough for expunction of the adverse remarks particularly when the adverse remarks were recorded by the Countersigning Officer on 15-5-1994 in the A.C.Rs, of the respondent for the period from 1-1-1993 to 26-6-1993 and 1-1-1994 to 30-4-1994 and the declaration of assets was furnished by the respondent in December, 1996. As a matter of fact the respondent cannot draw any premium from the 'declaration of assets' as the sub-Committee, consisting of two learned members of the Administration Committee of the Lahore High Court, which had recommended rejection of his representation against the adverse remarks had scrutinized the declaration of assets furnished by him and observed as under:- "We have examined the record and in particular the declaration of assets furnished by him. Even if the properties inherited by him from his father are excluded therefrom we do not find any justification to accept the reasons given by the officer for generated assets of huge value."
As mentioned earlier the allegation of bias made by the respondent against the Countersigning Officer having not been established is unfounded and delay in recording the adverse remarks\ is immaterial. No doubt the adverse remarks were recorded by the Countersigning Officer after his retirement but this circumstance cannot eliminate the adverse remarks as Instruction No,65 of the Punjab ESTACODE, Vol. I, which provides that the officer proceeding on retirement should be asked to write the requisite A.C.Rs, before his retirement, is directory and not mandatory.
For the reasons stated above, Civil Appeals Nos.8, 633, 634, 173 of 2002, 1447 of 1998, 336 to 338 of 2002, 1004, 1005, 1187, 1188 of 2002 and 13 of 2000 are dismissed and Civil Appeals Nos. 1621 and 1622 of 1999 are allowed. The judgments impugned therein are set side and the appeals of the respondent Mian Muhammad Younas filed before the Tribunal are dismissed. Criminal Original No,49 of 2002 in Civil Appeal No,8 of 2002 stands dismissed as withdrawn. No order as to costs.
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