' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of Civil Appeals Nos. 1505, 1506 of 1997, No, 971 of 1998 and Civil Petition No,249 of 1997. Engineer Jameel Ahmed Malik is appellant/ petitioner, hereinafter referred to as "the appellant" in above matters.
2. The facts forming the background are as follows.
' Civil Appeal No, 1505 of 1997 ' This is the main matter. The appellant was appointed as an Assistant Works Manager (Civil) on contract basis on 6-5-1978 in Pakistan Ordnance Factories Board, Wah Cantt. Hereinafter referred to as "POF" and his appointment was regularized on 24-6-1979 by the then President/CMLA. He was promoted on officiating basis as Works Manager on 15-6-1991 and was made regular Works Manager on 16-9-1991. His seniority, however, was antedated to 26-10-1986. The date when his juniors were promoted. He remained under suspension from 11-6-1985 to 10-2-1989. According to the appellant, the suspensionwas illegal and contrary to law, while the respondents maintained that it was due to his subversive activities. His promotion was withheld for a period of one year from the date of his reinstatement i.e, 11-2-1989.
(2) It is the case of appellant that learned High Court, Rawalpindi Bench, vide order dated 3-11-1990 passed in Writ Petition No,433 of 1989, set aside said punishment but allowed the department to recommence the proceedings against him. The respondents have claimed that in good gesture they treated his total suspension period as on duty for all intents and purposes. It is alleged that the appellant, in spite of above gesture continued to attack, blame and scandalize the top management of "POF". Further, it is said that all the time the appellant used intemperate/insolent and derogatory language against POF.
(3) One of the charges against the appellant is that in the capacity of a presidential candidate of POF Officers Association, he addressed a Press Conference, which was published in daily Muslim dated 20-11-1991, which, inter alia, was as follows:-- "Engineer Jameel Ahmed Malik said the elections for which a firm schedule had been formally announced, were postponed to deprive him of sure victory as head of the association. He said it was for the first time that he had stood up opposed the Managing Director for the top slot which annoyed the top bosses who postponed the elections at the eleventh hour when their pressure on him did not work.
' Mr. Jameel deplored that against all norms of democracy, the Election Authority did not even bother to inform him about the postponement of elections which it was legally and morally bound to do.
' Mr. Malik in 1984, he said, faced a similar situation when he was contesting the vice-presidentship of Ordnance Club. Engineer Jameel alleged that elections had been postponed at the instance of the POF Chairman, Gen. Sabeeh who did not want him (Mr. Jameel) to win. He said the Chairman was interfering in the affairs of the association.
' Mr. Malik also alleged that Gen. Sabeeh was using the present office-bearers of the association to influence the Defence Ministry to cancel his transfer to Steel Mills, Karachi. It may be added that Gen. Sabeeh Qamruzaman has been transferred but he has not so far handed over charge to the new incumbent. Mr. Malik accused the administration of victimizing him andtransferring him to Karachi so that he could not take part in the elections.
' He also lashed out at the present President of the Association, Abdul Qadeer also a member of the POF Board, who he alleged has never been sincere towards the people he has been representing as their President in the past.
' He demanded that a new schedule should be announced forthwith.
' He also appealed to the President and Prime Minister of Pakistan to intervene to save the situation from further aggravation. Transfer of the Chairman, POFs. Lt.-Gen. Sabeeh Qamruzaman to Pakistan Steel Mills, Karachi should be affected as no one was indispensable Engr. Jameel Malik concluded."
(4) Besides above, he also published pamphlets in Urdu and English for wide circulation amongst the officers of POF and others in spite of the fact that the Government had granted recognition to the POF Officers Association vide letter dated 27-7-1966. Inter alia, subject to the following conditions:-- "(a)
(b) Representations from the Association, whether made orally, by deputation, or in writing, will be made to the Chairman, Pakistan Ordnance Factories Board, Wah, who will refer the case to higher authorities concerned wherever necessary. The Association will not communicate direct with any authority higher than the Chairman, Pakistan. Ordnance Factories Board, Wah.
(c)
(d) The Association will not directly or indirectly communicate with the press.
' The Association will not engage itself in any subversive activity , nor will it indulge in criticism considered detrimental to the interests of the State.
' The Association will not engage itself in any subversive activity , nor will it indulge in criticism considered detrimental to the interests of the State.
' The Association will not engage itself in any subversive activity , nor will it indulge in criticism considered detrimental to the interests of the State.
' The Association will not engage itself in any subversive activity , nor will it indulge in criticism considered detrimental to the interests of the State.
(e) The notices and handbills of the Association will not be postedanywhere in the area of Pakistan Ordnance Factories nor propaganda in any form will be permitted there.
(Underlining for emphasis)
(5) The election was due on 10-11-1991 but the same was postponed and the appellant was transferred to Karachi. He filed Writ Petition No, 1402 of 1991 in Lahore High Court assailing his transfer, which was stayed. The election was held on 25-1-1992, whereby the appellant was elected as President of the POF Officers Association.
(6) The Federation filed Civil Petition No,26 of 1992 before this Court and above judgment of High Court staying the transfer of the appellant, was set aside.
(7) On 26-1-1992 a charge-sheet was served upon him containing the following charges:--
(i) At 07-15 hours on 11 Nov., 1991 you refused to accept the relieving orders issued vide Chief Engineer Works Note No,98284/Admn/CEW, dated 10 Nov., 1991 marked through S.E./Sanjwal; and absented from the office without informing your superior officers. Your non-compliance to lawful order amounts to an act of insubordination falling within the purview of misconduct as enumerated in the Civil Servants Act, 1973.
(ii) On 18 Nov., 1991, you addressed a Press Conference unauthorisedly, published in "The Daily Muslim" on 19 Nov., 1991 wherein you openly criticized the actions taken by POF's management, which is contrary to Government Servants (Conduct) Rules, 1964.
(iii) In connection with POF's Officers Association Election you circulated 2 pamphlets in Urdu and English wherein you published serious allegations against the senior management of POF's Army Personnel and FIU. Your this act is detrimental to good order and service discipline and amounts to causing subversion against the interest and working of POFs."
(8) The departmental inquiry was held, wherein full opportunity was given to the appellant to cross-examine six prosecution witnesses, which he availed of over a period of one year by asking record numberof 799 questions. Full opportunity was also given to him to produce his evidence.
(9) It is the case of the respondents that during inquiry proceedings the appellant desired that Lt.- Col. Muhammad Siddique, who was appointed as Inquiry Officer, be changed. The respondents have claimed that, although there was no justification for above request, yet, it was acceded to and Mr. Mukhtar Ali Malik, Deputy Secretary was appointed to hold inquiry against him, who found him guilty on charges Nos.2 and 3. Thereafter, on 27-11-1993 alongwith a copy of Inquiry Report, final show-cause notice was served upon him asking him to appear for personal hearing on 31-7-1994.
Instead of complying said notice, he filed Writ Petition No,788 of 1994 against the disciplinary proceedings before High Court, which in the first instance granted interim injunction in his favour.
Later on, said interim injunction was vacated on 7-8-1994.
(10) Vide notification dated 26-4-1995, the appellant was awarded major penalty of compulsory retirement to which he filed departmental appeal on 20-5-1995 to the President of Pakistan and failing to get any response within the statutory period of 90 days, he filed appeal before learned Federal Service Tribunal, which was dismissed vide judgment dated 12-3-1996 against which this appeal has been filed.
(11) Leave to appeal was granted by this Court on 10-12-1997 in Civil Appeal No,1505 to consider as to whether the order of retirement of the appellant and impugned judgment of Tribunal are in accordance with law. Civil Appeal No,1506 of 1997 ' In this matter, the judgment dated 24-3-1996 of Federal Service Tribunal, Islamabad, delivered in Appeal No,385(R) of 1995 has been impugned. The appellant was aggrieved by the remarks recorded in his ACR for the period from 22-6-1994 to 31-12-1994, which were communicated to him through letter dated 22-3-1995. The remarks of the Reporting Officer are as under:- "The officer is of such a nature that he cannot improve his habits, as is evident from his behaviour.
All the times, he used to make statements against the Chairman and Management in various newspapers and pamphlets" and 'does not take interest in his official work' ."
(Underlining for emphasis)
(2) Learned Tribunal having taken into consideration all the pleasraised on behalf of the parties held that the appellant was advised to take more interest in the official responsibilities and the remarks being advisory in nature could not be challenged. Further, it was held by the Tribunal that advisory remarks were not to be treated adverse for the purpose of promotion, unless it was established that the officer concerned had not paid any heed to the piece of advice given to him and failed to show any improvement. With above remarks, the appeal was found misconceived and was dismissed.
(3) Vide order dated 11-12-1997, leave to appeal was granted to consider whether the appeal was rightly dismissed by the Tribunal.
Civil Appeal No,971 of 1998 ' In this matter, the appellant impugned the judgment dated 30-1-1997 of learned Federal Service Tribunal, Islamabad delivered in Appeal No,531(R)/1996, whereby the appeal was dismissed in terms of said judgment. In this appeal, the appellant claimed fixation of his pay w.e.f, 2-5-1985 i.e, from the date he was deferred for promotion by the Promotion Board. His case was that on promotion to B-18 his pay was not fixed properly and he was drawing less pay than his juniors, who were promoted alongwith him or after him.
(2) Vide order dated 24-6-1998, leave to appeal was granted to consider whether the appellant was not only entitled to count his seniority with effect from 2-5-1985 but also entitled, to recover consequential arrears of pay from the aforesaid date till 15-7-1991.
Civil Petition No,249 of 1997 ' In this matter, the judgment dated 8-12-1996 of learned Federal Service Tribunal, Islamabad has been impugned, whereby Appeal No,205(R) of 1996 filed by the appellant was dismissed.
(2) It appears that in the ACRs for the years 1983, 1984, 1985, 1991, 1992 and 1993, the appellant was rated as "Average". He filed appeal before the Tribunal for upgrading his said ACRs from "Average" to "Good". The appeal was dismissed by the Tribunal as being time-barred, incompetent and not maintainable, besides being hit by section 4(1) of the Service Tribunals Act, 1973.
3. Rules 22 and 29 of the Government Service (Conduct) Rules. 1964, hereinafter referred to as "the Rules of 1964", are relevant for purpose of these matters, which read as under:--
22. Publication of information and public speeches capable of embarrassing the Government.--- No Government servant shall, in any document published, or in any communication made to the press, over his own name, or in any radio broadcast delivered him, make any statement of fact or opinion which is capable of embarrassing the Government: ' Provided that technical staff (both gazetted and non-gazetted) may publish research papers on technical subjects, if such papers do not express views on political issues or on Government policy and do not include any information of a classified nature.
29. Use of political or other influence.---No Government servant shall bring or attempt to bring political or other outside influence, directly or indirectly, to bear on the Government or any Government servant in support of any claims arising in connection with his employment as such.
4. It is contended by the appellant in Appeal No,1505 that charge-sheet and show-cause notices were issued to him by the Secretary, Defence Production Division contrary to rules, as the Secretary, Ministry of Defence was the authorized officer and not Secretary, Defence Production Division as such the entire proceedings from the stage of charge-sheet and the superstructure raised thereon were illegal. The appellant also argued that major penalty of compulsory retirement was not passed by the competent authority i.e,Prime Minister and on this score also the impugned judgment should have been set aside by the Tribunal. It is also urged that rule 22 of the Rules of 1964 is ultra vires to the Constitution being in violation of Article 19 of the Constitution of 1973. He referred to various notifications issued from time to time regarding Authority and Authorised Officer, which are as under:-
1. Cabinet Division Notification No,104/12/72-Min, dated 17-4-1972 regarding creation of Defence Division and Defence Production Division.
2 Establishment Division S.R.O. No,1213(1)73, dated 18-8-1973wherein President appointed Authority and Authorised Officers.
3 Cabinet Division S.R.O. No 1562 (1) 73, dated 7-11-1973wherein President appointed Authority and Authorised Officers in respect of Government servants employed in Central Secretariat.
4. Defence Production Div. S.R.O. No,1180(1)74 dated 4-9-1974 wherein President appointed Authority and Authorised Officers in respect of Civilian employees paid out of Defence Estimates under the administrative control of the Defence Production Division.
5. Defence Production Div. S.R.O. No,1180(1)74, dated 4-9-1974 amended vide Defence Production Division S.R.O. No,143(1)/78, dated 4-2-1978, adding Additional Secretary and Joint Secretary when there is no Secy.
6. Establishment Division S.R.O. No,987(1)/76., dated. 9-10-1976 wherein President appointed Secretary Establishment, as Authorised Officer in respect of Government servants in Grade 17 to 20.
7. Ministry of Defence U.O. No,3/4/73/1862/D-13 (Regs)/76, dated 23-12-1976 intimating S.R.O. No, 987(1)/76 dated 9-10-1976 to all concerned.
8. Establishment Division S.R.O. No,14(1)/77, dated 7-1-1977 whereby President rescinded the Establishment Division S.R.O. No,987(1)/76, dated 9-10-1976 where Secretary, Establishment Division was appointed as Authorised Officer in respect of BS-17 to BS-20.
9. Ministry of Defence U.O. No,3/4/73/136/D-13(Regs)/77, dated 29-1-1977 intimating S.R.O.
No,987(1)/76, dated 9-10-1976 to all concerned.
10. POP Daily Order Part I No,114, dated. 2-3-77 reproducting U.O. Dated. 29-1-1977 of Ministry of Defence and erroneously mentioned that Secretary, Ministry of Defence instead of Secretary, Establishment Division shall be the Authorised Officer in respect of POP Officers in BS-17 to BS-20.
11. Establishment Division S.R.O. No,615(1)/79, dated 5-7-1979 (pages 500-501 of ESTACODE) whereby in supersession of S.R.O. No,1562(1)/73, dated 20-11-1973 President appointed Secretary of Division concerned as Authorised Officer for BS-17 to BS-20.
12. Establishment Division S.R.O. No,1011(085, dated 20-10-1985 wherein President made amendment in Establishment Division S.R.O. No, 615(1)/79, dated 5-7-1979 and appointed "Secretary" as Authorised Officer for officers of BS-17 to BS-20.
13. POF Daily Order Part 1 No,651, dated. 3-12-1985, whereby POF reproduced S.R.O. No,987(1)76, dated 9-10-1976 with clarification that Secretary means Secretary of Division concerned.
14. POF Daily Order Part -1 No,651/1, dated 3-12-1985 read with Daily Order Part I No,562, dated 12-11- 1974 on the authority of Establishment Division Notification No,7/1/73-D.1, D.2/R-1, dated 20-10-1985, received under DPD U.O. No,1-9(1)81/DP-5, dated 14-11-1985 President appointed Secretary of Division concerned as Authorised Officer for BS-17 to BS-20."
5. However, he heavily relied upon Ministry of Defence U.O. No,3/4/73/136/D-13(Regs)/77, dated 29- 1-1977, which reads as under:-- "Establishment Division have rescinded their Notification No,S.R.O. 987(1)/76, dated the 9th October, 1976, by their Notification No,S.R.O. 14(1)/77, dated the 7th January, 1977 (copy enclosed). With the issue of rescinding notification dated the 7th January, 1977, the notification issued by this Ministry specifying 'Authorised Officer' for officers in grades 17 to 20, and which were in force immediately before the issue of the Establishment Division notification dated the 9th October, 1976, would automatically stand revived. The position now, therefore, is that the powers of the 'Authorised Officer' under the Government Servants (Efficiency and Discipline) Rules, 1973, in respect of officers in grades 17 to 20 employed in the departments, offices under this Ministry have again become available with the Secretary, Ministry of Defence as was the position before the issue of Establishment Division Notification No,S.R.O. 987(1)/76, dated the 9th October, 1976."
6. He strenuously argued that after above regulations, the powers of Authorised Officer under the Government Servants (E&D) Rules, 1973 in respect of offices of grade 17 to 20 employed in the departments/offices under Defence Ministry again vested with the Secretary, Ministry of Defence.
According to him, this notification clinches the issue and its perusal alongwith other notifications unequivocally postulates that the Secretary, Ministry of Defence was the Authorised Officer and not the Secretary, Defence Production Division.
7. As against above, Hafiz S.A. Rehman, Advocate Supreme Court referred to Notifications i.e, S.R.O.
No,1180/1/74 dated 4-9-1974, S.R.O. No,143(I)/78 dated 4-2-1978 and S.R.O. No,615(1)79 dated 5-7- 1979 to contend that the cumulative effect of above notifications isthat the Authorised Officer was the Secretary, Defence Production Division and not the Secretary, Ministry of Defence. He also submitted that under the Rules of Business, Pakistan Ordnance Factories are under the administrative control of Defence Production Division, as .Such, Secretary/Additional Secretary of that Division is the Authorised Officer in respect of the officers of POF under Notification No, S.R.O.
No,615(I)/79 dated 5-7-1979.
8. Mr. Nasir Saeed, Advocate Supreme Court appearing for the respondents adopted above arguments.
9. Looking to the controversy involved in these matters, we had directed Additional Secretary, Establishment Division, Additional Secretary, Cabinet Division and Senior Joint Secretary, Defence Division to appear personally before this Court to assist it for resolving the above controversy. On 30-4-2003 Mr. Tariq Bukhari, Additional Secretary, Cabinet Division assisted this Court and informed that rule 2(xiv) of Rules of Business, 1973 provides the definition of Ministry i.e, "a Division or group of Divisions constituted as a Ministry" rule 2(vi) lays down the definition of Division i.e, "a self- contained administrative unit responsible for the conduct of business of the Federal Government in a distinct and specified sphere and declared, as such, by the Federal Government". He also stated that rule 3(3) provides for Allocation of Business and lays down that the "business of Government shall be distributed among the Division in the manner indicated in Schedule II under the heading "Defence Production Division" and DPD was established vide Cabinet Division Notification No,104/12/72-Min. Dated 13-5-1972. He concluded that all the affairs of the Ordnance Factories are controlled by the Defence Production Division including their officers.
10. Mr. Ramiz-ul-Haq, Additional Secretary, Establishment Division also appeared before us to assist the Court and stated that President of Pakistan, as per S.R.O. No,1180/1/74 dated 4-9-1974, designated the Secretary, Defence Production Division, as an Authorised Officer for civilian employees of BS-17 to BS-20 paid from Defence Estimates and are under the administrative control of Defence Production Division and that above S.R.O. Is still in the field. He also stated that Defence Production Division vide their UO No,F.9/1/2003/D-26 (Admn-I) dated 21-1-2003 has reported that after the establishment of Defence Production Division on 18-5-1972, the cases of officers of POF have not been dealt with by Defence Division and the issues of POF Wah Employees are the concern of Defence Production Division.
' I . Ch. Abdul Rauf, Additional Secretary, Prime MinisterSecretariat also appeared and confirmed whatever was stated by Messrs Tariq Bukhari and Rameez-ul-Haq.
12. Close scrutiny of the above notifications including S.R.O. No,615(I)/79 dated 5-7-1979 and S.R.O.
No,1011(I)/85 dated 20-10-1985 has conclusively established that at the time when action was taken against the appellant, Secretary, Defence Production Division was the Authorised Officer for BS-17 to BS-20. The contention of the appellant that the entire proceedings against him are coram non judice is without any substance.
13. Next, it is contended by the appellant that compulsory retirement order was imposed upon him by an incompetent authority and the Prime Minister had never passed any such order. Original file was produced before us and we had perused it. According to the note dated 17-4-1995 of Mr. Iftikhar Ahmed, the then Joint Secretary, Administration, Prime Minister's Secretariat, Secretary, Defence Production Division recommended for imposing major penalty of compulsory retirement upon the appellant, saying that he was found guilty of the following two charges:--
(i) Addressing a press conference unauthorisedly wherein he openly criticized the actions taken by the POFs management, and
(ii) Circulating two pamphlets in Urdu and English levelling serious allegations against the senior Management of POFs Army personnel and FIU."
14. The then Prime Minister was requested to approve the proposal, which she did on 22-4-1995.
Thereafter, Bashir Ahmed Chohan, the then Deputy Secretary, Administration-I, Prime Minister's Secretariat, issued letter to the Secretary, Establishment Division (Mazhar Ullah Siddiqui) saying "that Prime Minister has been pleased to order imposition of major penalty of compulsory retirement on Mr. Jameel Ahmed Malik, Works Manager (Civil) POF under the Government Servants (E&D) Rules, 1973 with immediate effect". The letter is dated 23-4-1995.
15. Also on record is a letter of Prime Minister Secretariat bearing P.M. Sectt. U.O.No,706/DSAI/E/95-S dated 31-8-1995, whereby the President was advised by the Prime Minister to reject the appeal of the appellant and that the then President rejected the same vide Letter No,229/9(22)/Dir-1/95 dated 29-9-1995. Thus, it is evident that action against the appellant was taken by the competent authorities, having followed the procedure prescribed in that regard.
16. Next it is contended by the appellant that he being a Government servant was entitled to the Constitutional guarantee given to the citizens under Article 19 of the Constitution. He submitted that Government servants, as a class, are not excluded from the benefits of said Article. He strenuously argued that rules 22 of the Rules of 1964 is ultra vires to the Constitution being in violation of Article 19.
17. In a democratic set-up, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them, the concept of democracy cannot survive. From perusal of Article 19, it is, however, absolutely clear that above right is not absolute but reasonable restrictions on reasonable grounds can always be imposed. Reasonable classification is always permissible and law permits so. For above purpose, reference can be made to the case reported as Zaheeuruddin and others v. The State and others (1993 SCM R 1718).
18. It is an admitted fact that the appellant had addressed press conference and issued pamphlets in Urdu and English. Neither the contents of the press conference nor of pamphlets have been denied. Rather it is asserted that whatever was stated therein was correct. It is also an established fact that he had directly addressed the letters to higher authorities, including President and Prime Minister, ignoring the normal procedure in that regard. Through the press conference and the pamphlets certainly he embarrassed the Federal Government. In press conference, he bitterly criticized the administration, saying that he was victimized and transferred to Karachi for preventing him to take part in the election, totally ignoring the fact that a civil servant, under section 10 of the Civil Servants Act, 1973, is liable to serve anywhere inside or outside Pakistan and that the transfer to Karachi was governed by terms and conditions of service. By agitating, the issue of transfer, in fact, he criticized the administration and attempted to create an impression, as if the transfer was against the rule. He appealed to the then President and Prime Minister of Pakistan that the transfer of the then Chairman, POF Lt.-Gen. Sabeeh Qamruzaman be effected, as no one was indispensable. He had no concern to talk about the transfer of said Chairman of POF nor could insist for its implementation.
19. In his pamphlet in English dated 31-10-1991 addressed to Chief Admn. Officer, he stated as follows:-- "The prevailing working conditions are not congenial for the officers and other working class, as a result of which the officers and the other employees are under stress and strain. Step-motherly treatment being meted out to them at the hands ofManagement is a cause of harassment and humiliation for the officers and the other employees of the organization.Attitudes of the FIU towards POFs officers and the other employees of this organization is also humiliating and disgraceful which is in utter disregard of all ethical and official norms. POFs which is our own parent department is under the direct influence of outsiders i.e, temporarily posted Army Personnel and FIU etc.These outsiders, who are a few in numbers, pose and behave as the sole custodians of this organization. They have also a free hand with the blessings of the highups of the POFs Management. It is an agonizing fact that there is no concept of participated management in the POFs. All the powers have been centralized around a single person here. It is worth-mentioning that this organization is the only State-owned Enterprise in the country whose profits run into millions of rupees but unfortunately this organization has almost nothing to do with the welfare of the working strata." (Underlining for emphasis).
20. In the same pamphlet, he also talked about "all the latest happening in the New World Order and wanted to organize seminars and symposiums about geopolitical situation, culture, art and history of Muslim World to enlighten the outlook of the members of the Association". All this was manifestly in violation of rules 22 and 29 of the Rules of 1964, besides being misconduct within the meaning of rule 2(4) of the Government Servants (E&D) Rules, 1973. Nothing substantial has been brought on record to hold that rule 22 of the Rules of 1964 is ultra vires to the Constitution. On the contrary, in order to maintain the proper discipline in public servants and efficiency in administration, it is necessary to place certain restrictions on the freedom of the speech of Government servants, which are essential in the interest of public order, otherwise there would be chaos, anarchy and maladministration in every department, as its employees would not only criticize each other publicly but would frustrate every policy framed for the interest of general public.
21. Taking part in politics, participation in the functions of political parties, supporting the students' agitations, discussing politics in offices, clubs, restaurants and other public places are prohibited for Government servants and action can be taken against defaulting Government servants under the Rules of 1964 and Government Servants (E&D) Rules, 1973. To discuss about the latest happening in the New World Order and geopolitical situation are not within the realm of the permissible limits of freedom of speech/expression for a Government servant. These are the issues to be addressed by the political parties and that too in a constructive manner. The charges levelled against the appellant were squarely proved by evidence, which is irrefutable.
22. Now, we take up Civil Appeal No,1506 and Civil Petition No,249. Both relate to the Evaluation Reports/Annual Confidential Reports. In Appeal No,1506, the period in issue was 22-6-1994 to 31-12- 1994 and the Civil Petition No,249 related to Annual Confidential Reports for the years 1983, 1984, 1985, 1991, 1992 and 1993.
23. Annual Confidential Reports play pivotal role in service career of an employee. It is a duty of the Reporting Officer as well as the Countersigning Officer to see that the reports shall not reflect undue generosity or harshness and:-- [(1) Be as objective as possible.
(2) Be as circumspect as possible.]
24. General Standing Instructions about 'Performance Evaluation Reports' by Nabi Bux Khoso, Director-General (PPARC) Management Services Division titled as "A Guide to Performance Evaluation", hereinafter referred to as "the Guide", provide tangible guidelines in that regard. In the case reported as F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. (1994 SCM R 722), the words "circumspect" and "objective" have been defined as under:-- "5. A perusal of the above-quoted definition of the word 'circumspect' indicates that it inter alia connotes considerate, diligent, discerning, discreet, exacting, judicious, meticulous, H mindful, on guard, precise, sensitive and thorough etc. Whereas, the word 'objective' inter alia carries the meaning of detached, disinterested, dispassionate, equitable, factual, fair, fair-minded, I impartial, impersonal, judicious and just etc."
25. Paras.
3.15 and 3.31 in the Guide relating to advisory remarks and for representation against adverse remarks are as follows:-- "3.15. Advisory remarks.---Advisory remarks are not to, be treated as adverse for the purpose of promotion unless it had been established that the officer concerned has not paid any heed to the piece of advice given to him and has failed to show any improvement.
3.31 According to existing instructions, there is scope for only one representation against adverse remarks, which should be submitted, if desired, by the officer concerned, within [30 days], of the receipt of those remarks!"
26. The remarks in Appeal No,1506 are "advisory in nature" and are not to be treated as "adverse".
On this point, the findings of the Tribunal are perfectly in accordance with the law and no exception can be taken to it. Primarily, "Advisory Remarks" are meant for improvement and not taken as stigma. On this point reference can be made to the case reported as Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684).
27. As regards Civil Petition No,249 of 1997, the appellant challenged his "average reports" and prayed that the same be upgraded from "Average" to "Good". Firstly, average assessment is not adverse. Every body cannot be "Good" or "Very Good". It is a universally accepted truth that a vast majority of employees are "Average". ACRs with Average entries are treated in accordance with the instructions contained in the Cabinet Secretariat, Management Services Division's O.M. No,32/4/76- A,IV, dated 6th July, 1976. No representation/appeal is maintainable against "Avevage ACRs". On this point reference can be made to the cases reported as (1) Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Ilahi Khan Leghari and another (1992 SCM R 1427), (2) Federation of Pakistan through the Secretary, Health Division v. Dr. Najmul Ghani Khan (PLD 1995 SC 556).
28. The experience has shown that there is growing inclination among the Reporting Officers/Countersigning Officers to abstain from recording Adverse Remarks, even against corrupt and inefficient officers for some reasons. One can be that they do not want to displease anybody.
Secondly, they also feel highly embarrassed when they are called upon to substantiate their adverse remarks. This lack on the part of higher authorities is a contributory factor towards corruption and inefficiency and must be eliminated to help the system work smoothly. Of course, such officers must exercise restraint to act upon on the basis of discredited information, but at the same time they shall canvass in objective way the true picture about the real performance of concerned officer. The reports of the Reporting Officers and Countersigning Officers, unless contrary is proved by a strong piece of evidence, must be accepted as true and having legal and moral sanction behind it. Acceptance of such repots shall be a rule and rejection an exception. In case of conflict between the reports of Reporting Officer and Countersigning Officer, the entire record/personal file be thoroughly scrutinized and weighed keeping in view the intrinsic value of the material available on record for evaluating the correctness and propriety of the remarks recorded in ACRs, The remarks of higher authority, as a rule, command more respect and cannot be equated with that of Reporting Officers.
29. In Appeal No,971, the grievance of the appellant is that afterpromotion to B-18 his pay was not fixed according to rules. According to him, his pay should have been fixed from the date, when his case for consideration to promotion was deferred by the Promotion Committee. He was promoted on 15-6-1991 from BS-17 to BS-18 on officiating basis and on regular basis from 16-9-1991 with antedation of seniority w.e.f, 26-10-1986, the date when his juniors mere promoted.
30. It is a case of the respondents that the appellant remained suspended on account of subversive activities w.e.f, 11-6-1985 to 10-2-1989 and during this period his batchmates and some junior officers were promoted on 2-5-1985 and 20-2-1986. He wanted fixation of his pay w.e.f 2-5- 1985 and not from 26-10-1986. The department sent his case to Finance Division and the latter vide U.O. No,F-438-R-I1/96 dated 4-8-1996 allowed fixation of pay w..e.f. 26-10-1986 without arrears in the following words:-- "Finance Division have no objection to the refixation of pay of Mr. Jamil Ahmed Malik, WM (Civil) w.e.f, 26-10-1986 in WM Grade under FR-26(C) alongwith accrual of annual increments without arrears due to antedation of his seniority in the said grade."
31. Accordingly, his pay was fixed vide Controller, Ordnance Factories Accounts, Wah Cantt. letterNo,Pay/IX/339-II dated 31-81996. The record reveals that the appellant filed Service Appeal No,531(R)/96 before Tribunal, which was disposed of on 30-1-1997 with the directions to grant him increment falling on 1-12-1986, subject to submission of option by him. Thereafter, his pay was fixed.
Learned Tribunal in para. 5 of the impugned judgment held as under:-- "5. As to the arrears of pay, it was submitted by the departmental representative that he was given regular promotion w.e.f, 16-6-1991, but given seniority w.e.f, 26-10-1986 i.e, from the date his juniors had been promoted and was allowed refixation accordingly with accrual of annual increments in accordance with FR 26(c). Since the pay of the official has been fixed in accordance with the rules and in view of the fact that the appellant did not actually perform any duty as Works Manager w.e.f, 26-10-1986, we do not find anything wrong with the order of the respondents not to allow him arrears and the appeal of the appellant to this extent is rejected."
32. Learned counsel for the respondents argued that after grant of increments to the appellant from 1-12-1986 the pay of the appellant and respondents Nos.5, 6 and 7 were equal during theyear of 1991. He further explained that the difference occurred due to the fact that the appellant's batchmates moved over to BS-19 w.e.f, 1-12-1991 and his juniors from 1-12-1992, whereas the appellant could not get moveover as he did not fulfil the criteria laid down in Finance Division O.M.
No,1(82)-R.3/85 dated 6-111986 and No,F(1)Imp.1/90-Vol-II, dated 7-2-1991. The explanation offered by the respondents is supported by the material available on record and we hold that the pay of the appellant was correctly fixed, as per rules.
33. In consequence, the Civil Appeals Nos.1505, 1506 of 1997, 971 of 1998 and Civil Petition No,249 of 1997 are dismissed with no order as to costs.