Syed TATHIR HUSSAIN SHIRAZI Versus LAHORE HIGH COURT, LAHORE

These are three appeals directed against adverse reports covering three different periods i.e. 23‑8‑1984 to 31‑12‑1984, 1‑1‑1985 to 22‑5‑1985 and 30‑6‑1985 to 31‑12‑1985, respectively. The appellant was graded 'Below Average' by the learned Chief Justice, Lahore High Court, as Reporting Officer. All the reports are dated 9‑8‑1986, and these remarks were conveyed through D.O. letter dated 10‑8‑1986. The appellant was graded as 'Below Average' on all the counts and in the column‑Count for Pen Picture it was remarked:‑

"Stated to be below average officer and reported to be not enjoying good reputation."

2. The appellant submitted representation against these adverse remarks but it seems that the same remained un disposed for 90 days, therefore, the appellant decided to invoke the jurisdiction of this Tribunal within next 30 days as per Proviso (a) to Section 4 of the Punjab Service Tribunals Act, 1974.

3. These appeals came up for preliminary hearing on 24‑6‑1987, and I issued pre‑admission notice to Respondents No.l and 2 and also sent for the record. In response to the notices Malik Azam Rasool, Advocate appeared on behalf of Respondent No.l and Mr. A.G. Humayun, District Attorney, ‑was also present on behalf of Respondent No.2.

4. The arguments of the learned Counsel for the appellant are three‑fold.

Firstly it was submitted that the impugned reports have been initiated by the learned Chief Justice and not countersigned by him, therefore, there is violation of paras 7 and 65 of the Instructions for writing of Annual Confidential Reports.

5. The learned counsel for Respondent No.l, on the other hand has argued on the strength of dictum of highest Court of the realm in Government of Punjab v. Ihsanul Haq Sethi, P L D 1986 S C 684 that the learned Chief Justice is fully competent to initiate the report. Relevant portion reads as under:‑

"Suffice it say that the Acting Chief Justice, being the Head of the judicial administration, enjoys plenary powers over all matters concerning the members of the judicial service, and in that capacity having regard to the rules and instructions, he must be regarded as competent to initiate reports. This is besides other legal justifications."

It is further submitted that the report cannot be struck down simply for the reason that it has not been countersigned according to the instructions because the instructions are only of directory in nature and not mandatory because the non‑compliance is not followed by any penalty. In support of his contention learned counsel for the Respondent No.l has relied on the following passage of the above mentioned judgment:‑

"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."

6. Secondly, it is submitted that it is practice of the Lahore High Court that A.C.Rs of the Additional District and Sessions Judges are completed by the Inspecting Judges of the respective Districts and countersigned by the learned Chief Justice. But in this case this practice was not followed. It is argued, that for this reason too, the reports are incomplete and of no consequences as the same have not been countersigned.

7. The learned Advocate for Respondent No.l Malik Azam Rasool, in reply has submitted that since the reports were not completed by the learned Inspecting Judges, therefore, Hon'ble Chief Justice had no option but to record the A. C. Rs himself on the basis of the material available on record in the form of reports of District and Sessions Judges, under whom the appellant had worked for the respective periods.

8. I have considered the arguments of both sides. There is neither any violation of provision of .law nor any mandatory rules and instructions. I, therefore, hold that the reports are legally recorded and suffer from no infirmity.

9. Thirdly, it was argued that there was no 'Counselling'., as required in paras 38 and 6 of the instructions, therefore, the reports cannot be used against the appellant. The argument is misconceived. The instructions being not mandatory, therefore, departure from the same is of no consequence.

10. Fourthly, it was argued that the learned Chief Justice has no occasion to see and assess the working of the appellant, therefore, the appellant has been graded 'Below Average' without any basis. Learned Counsel for Respondent No.l in reply submitted that learned Chief Justice recorded the ACRs. on the basis of reports of all the District and Sessions Judges under whom the appellant had served during the period under reports. It is argued that on the strength of material so available on record the reports are fully justified and there is no merit in the plea of the appellant that reports are without any basis.

11. I have gone through the reports, subject‑matter of these appeals, and find that the learned Chief Justice has based his assessment on the material available on record and it is not his personal opinion, as alleged by the appellant.

It is absolutely clear from the words 'Stated' and 'reported' in the column of Pen Picture t4kat the learned Chief Justice completed the reports on the basis of material available on record. I have underlined these words in the opening para of this judgment in order to make this point more clear. These words clearly indicate two things.‑

1. That the remarks are based on material available on record:

2. That it is not personal opinion of learned Chief Justice.

Therefore, the argument that since the learned Chief Justice has no occasion to see the work of the appellant, the reports are not justified, is without any force.

12. Lastly, it was submitted that the remarks are liable to be expunged for violation of para 41 of the instructions for writing of A. C. Rs. It is worthwhile to reproduce para‑41 as under before proceeding any further:‑

"41‑Action in case of recording adverse remarks by same Reporting Officer for two successive years ‑ In order to guard against personal likes and dislikes an official receiving adverse remarks for two successive years from the same Reporting Officer should .be placed under another reporting officer."

Learned Counsel for the appellant has relied on cases reported as 1984 P L C (C.S.) 44 and 1984 P L C (C.S.) 558, in support of his contention.

13. On the other hand learned counsel for Respondent No.l has argued that the above instruction too, like others, is only directory in nature and need not be strictly followed and in the case of High Court para‑41 is not applicable. Learned Counsel for Respondents has in support of his argument relied on P L D 1986 S C 684 and 1985 P L C (C. S.) 704. I have considered the arguments of the learned counsel for the appellant as well as learned counsel for Respondent No.l and conclude that since reports covered period of only two years and all the three reports have been recorded at one and the same time, therefore, reference to para‑41 is irrelevant.

14. Be that as it may this is no longer the proposition. There is, absolutely no mala fides or bias on the part of learned Chief Justice. The reports have been recorded on the basis of material available on record at the time of recording A.C.Rs, the remarks are therefore, fully justified and do not call for any interference.

15. In view of the above discussions I find no merit in these appeals. These appeals are also, liable to be dismissed because 'the services of the appellant were dispensed with by the competent authority vide notification dated 6‑2‑1987, during the probation period. The appellant assailed that order through an independent appeal before this Tribunal. This appeal has since been dismissed, therefore, the present appeals have become infructuous for all intents and purposes. Since arguments have already been heard, therefore, I have decided these appeals on merit as well.

16. Resultantly the appeals are dismissed in limine being without any merit. .

S.Q./203/Sr.P ????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.