Dr. SHAHID AMIN HYDER vs SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN and another
This petition for leave to appeal was filed against the judgment of the Federal Service Tribunal disposing of the petitioner's service appeal regarding the expunction of adverse remarks in his Annual Confidential Report (ACR) for the years 1996-97. The core legal question was whether the Service Tribunal has the jurisdiction to examine and interfere with the adverse remarks recorded in the ACR of a civil servant. The Supreme Court held that the approach of the Tribunal in declining jurisdiction to substitute its opinion was incorrect, as recording of adverse remarks constitutes a term and condition of service, and the Tribunal is fully empowered to examine the material on record to determine if the ACR was recorded properly, based on objective considerations, or supported by material. The key principle laid down is that the Service Tribunal possesses the competence to review and set aside adverse ACRs if they are found to be unjustified or based on extraneous considerations.
- Whether the Federal Service Tribunal has the jurisdiction to examine and substitute its opinion regarding adverse remarks recorded in the ACR of a civil servant?
- Does the recording of adverse remarks in an Annual Confidential Report constitute a term and condition of service?
- Under what circumstances is the Service Tribunal competent to interfere with or set aside adverse remarks in an ACR?
- Section 5(1), Service Tribunals Act 1973
- Section 4(2)(a), Service Tribunals Act 1973
ORDER
' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against the judgment dated 11th January, 2001 whereby Service Appeal No,362(R) CS of 2000 filed by the petitioner for expungment of adverse remarks recorded against him in the ACR pertaining to the years of 1996-97 has been disposed of in the following terms:- "3. The adverse ACRs perused and we will be unable to substitute our own opinion about the same as the ACRs and representation have been recorded and heard by the competent persons/Authorities and that also consisting of responsible medical and executive officers. It is observed that this Tribunal has limited jurisdiction in substituting its opinion about ACR of a civil servant as the powers conferred upon this Tribunal under subsection (1) of section 5 of the Service Tribunals Act, 1973 do not provide a specific provision for the same because recording of ACR in our opinion is not an order which will require to be set aside, varied or modified. Nevertheless this Tribunal hears the appeals in respect of adverse ACRs of the civil servants in spite of limited jurisdiction as mentioned before under section 4 of subsection (2)(a) of the Service Tribunals Act, 1973."
2. Petitioner: appeared in person and stated that Federal Service Tribunal declined to exercise jurisdiction contrary to the judgment of this Court in the case of Inspector-General of Police, Punjab, Lahore and another v. Masood Ahmed Khan (1981 SCM R 840), therefore, he prayed for interference by this Court in the impugned judgment.
3. We have heard the petitioner and have also gone through the impugned judgment carefully as well as the reported judgment relied upon by the petitioner. A perusal of impugned order prima facie indicates that Federal Service Tribunal declined to exercise jurisdiction for the reasons that the Tribunal is not competent to substitute its opinion with the opinion of departmental authority while examining the adverse remarks, recorded in the ACR of an employee. In our opinion, this approach is not correct because recording of adverse remarks in ACR of an employee is one of the term and condition of his service and if adverse remarks have been recorded he enjoys a right to initially challenge the same before the next higher authority of the department on the grounds available to him including the one that the adverse remarks have been recorded on subjective reasons and if his grievance is not redressed, then he, can approach the Tribunal for redressal of his grievance and it is empowered to examine the same on the basis of available material and if the Tribunal comes to the conclusion that ACR has not been recorded properly or it is based on extraneous consideration or the allegations are not supported by the material, then the Tribunal is competent to accept the appeal as it has already been observed by this Court in the case noted hereinabove, Therefore, we grant leave to appeal to examine the contention of the petitioner.