MUHAMMAD FAROOQ CHAUHAN vs THE PROVINCE OF PUNJAB

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 24-10-1981 of the Punjab Service Tribunal ; whereby the petitioner's service appeal seeking expungement of adverse remarks made in his A. C.(Rs. On the ground that they were communicated after the period prescribed in the Instructions issued by the Provincial Government in that behalf, was dismissed.

2. The Tribunal on the examination of the case-law relied upon and para. 34 Chapter III at page 362 of O & M Manual, Volume 1, issued by the Provincial Government : as also on consideration of another instruction issued by the Provincial Government on 9-6-1973, came to the conclusion that the time limit prescribed for the communication of adverse remarks was only directory and not mandatory. It accordingly declined to expunge the remarks.

3. Learned counsel for the petitioner has, relying on the latest instruction issued vide Circular letter of the Government of Punjab No. SOR. IV (S & GAD) 14-2/72, dated 1st January, 1981, contended that the remarks which were communicated to the petitioner after the prescribed time should have been expunged. The Circular letter reads as follows :- "Subject : Communication/Expunction of Adverse Remarks Recorded in the Annual Confidential Reports I am directed to refer to this Department Circular Letter No. SOR-III (S & GAD) 14-2/72, dated 9th June, 1973 and to say that the instructions have been reviewed and it has been decided that if adverse remarks are not communicated, or if communicated there is no record of their having been communicated and acknowledged by the concerned officer, such adverse remarks should be ignored for purposes of promotion and pre-mature retirement.

4. However, I am to invite attention to para. 34 of the `Instructions about confidential Reports" stressing timely communication of adverse remarks and providing that failure to do so should attract disciplinary action against persons responsible for the delay. In furtherance to this provision, it has been decided that in addition to suitable disciplinary action, which has to take its course, an adverse entry should be recorded in the A. C. R. Dossier of the person or persons responsible for failure of delay in communication of adverse remarks."

5. 1t is apparent from the above reproduced letter that even if it amounts to rule and is attracted to the petitioner's case which it seems relates to a prior period, there is no decision by the Government that adverse remarks not communicated in time would be expunged. In paragraph 1, it is directed that if the adverse remarks are not communicated, or if communi--cated there is no record of their having been communicated and acknowledged by the concerned officer, such adverse remarks should be ignored for purpose of promotion and premature retirement. It does not say that when the adverse remarks are communicated after the prescribed time, even then they would be ignored. And further that when the adverse remarks are not communicated or there is no proof that they were ever communicated, in that case they would be ignored for purpose of promotion and premature retirement. In other words, even in this situation the uncommunicated remarks can be taken into consideration for purposes other than promotion and premature retirement. Para. 2 of the letter does not convey a direction that in addition to the consequences for late communication of adverse remarks vis-a-vis the reporting officer, the remarks shall also be expunged. Either way, therefore, the reliance by the learned counsel on the aforenoted circular is of no help to the petitioner.

6. Learned counsel then contended that the remarks made against the petitioner should have been ignored when his case for promotion came up for consideration. That matter was not before the Service Tribunal. The appeal of the petitioner was only for seeking the expungement of the adverse remarks. The question of promotion of the petitioner is not before us either, in this petition for leave to appeal. It, therefore, is not necessary to make any further comment on that aspect, except that if the reliance of the learned counsel in that behalf is also on tile said circular it does not say that adverse remarks if communicated out of time, they shall be ignored in cases of promotion. As observed earlier, in case of promotion, the adverse remarks would be ignored only if they are not communicated whether in time or out of time.

7. There being no force in either of the argument of the learned counsel and no other point having been urged, leave to appeal is refused.