THE SECRETARY GOV ER14MENT OF PTJNJAB vs AHMAD KAMALUDDIN

ORDER

SHAFI-UR-REHMAN, J.-The Government of the Punjab seeks leave to appeal against the judgment of the Punjab Service Tribunal dated 12-9-1979 whereby an appeal filed by the respondent against the adverse remarks recorded by the competent authority was allowed.

2. The respondent was posted as Director Land Acquisition-cum-Inquiry Officer, WAPDA, Lahore, when for the period30-11-1972 to 11-8-1973 the adverse remarks with regard to his performance were given which were communicated to him allowing him to make a 3 representation against them. He represented but it was rejected. He filed a second representation but ii was found to be not maintainable. He filed an appeal before the Service Tribunal and also prayed for condo nation of delay. The Tribunal examined the service record of the respondent, the facts he leading to the recording of the adverse remarks and held that there was no reason to uphold their presence in the character-roll of the respondent. Accepting the appeal the remarks were ordered to be expunged.

3. The learned counsel for the petitioner contended that the recording of the annual confidential remarks in the character-roll was within the exclusive competence of the officer superior to petitioner and was in fact the subjective assessment of his performance. It could not be subjected to review by any authority including the Service Tribunal, as it did not form part of the terms and conditions of service of the respondent. In entertaining the appeal and in adjudicating on it and directing the expunction of the remarks the Service Tribunal has exceeded its jurisdiction.

4. We find from the order of the Service Tribunal that no such objection with regard to competence of the appeal or the a jurisdiction of the Tribunal was raised for it has not been considered in m, the order under appeal. It appears that such an objection has been taken for the first time before this Court. In all fairness if the petitioner wanted to raise such an issue and get it properly adjudicated it should have been raised before the Tribunal.

5. The recording of the annual confidential remarks, their communica--tion to the officer concerned, entertainment of in representation against adverse remarks and their expunction are all matters governed by detailed instructions of the Government. They can be made the basis for departmental and disciplinary action against an official. These reports make up the service record of the officer concerned. Such record is consulted and heavily relied upon for determining the suitability for promotion, posting and disciplinary action. The Civil Servants Act while enumerating the terms and conditions by subsection (2) of section 23 provides that "any rules, orders or instructions its respect of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instruc--tions are not inconsistent with the provisions of this Act, be deemed to b rules made under this Act." On the strength of this provision the instruction.

With regard to the recording of the remarks, their communication and expunction would have the status of rules made under the Civil Servants Act and would be determinative of the terms and conditions of service. The recording of the remarks is indeed within the exclusive competence of the superior officers but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appropriate cases.

6. The reliance on Muhammad Aboo Abdullah v. The Province of East Pakistan and another (PLD 1960 SC 164 ) for the purposes of limiting the jurisdiction of the Service Tribunals and the right of the civil servants is inappropriate because the observations made in that decision concerned the jurisdiction of the Courts in Constitutional jurisdiction to deal with adverse remarks. The limitations or the restraints exercised in giving relief in Constitutional jurisdiction do not extend to Tribunals and authorities which are enjoined to hear appeals and determine questions of fact as well as of law.

7. We find no merit in this petition which is dismissed.