PLJ 2002 SC 120
[Appellate Jurisdiction]
Present: iftikhar muhammad chaudhry, qazi muhammad parooq and
hamid ali mirza, JJ.
LAHORE HIGH COURT, LAHORE through REGISTRAR-Appellant
versus
K.M. SOHEL-Respondent C.As. Nos. 1687 to 1689 of 1999, decided on 31.5.2001.
(On appeal from the judgment dated 21.6.1999 passed Punjab Subordinate
Judiciary Service Tribunal Lahore in Service Appeals Nos.
2 to 4 of 1998)
(i) Constitution of Pakistan (1973)--
—Art. 185(3)-Adverse remarks recorded beyond the time schedule prescribed by the Government whether lose their efficacy—Leave to appeal was granted to consider; whether adverse remarks recorded beyond the time schedule prescribed by Government through instructions for recording ACR's have lost their efficacy in view of the dictum of Supreme Court in PLD 1986 SC 684 and 1999 SCMR 1587; whether instructions issued by Government for recording ACRs can be
vacated by the High Court keeping view exigencies of services of persons of Punjab Sub-ordinate Judiciary to advance the principle of independence of Judiciary; whether Tribunal was right in folding that affected judicial officers should have been afforded personal hearing in support of their representations and consideration of their representations in absentia by Administrative Committee did not conform to the principle of Audi Alteram Partem; and whether impugned judgments were in deviation of the law laid down by Supreme Court in PLD 1986 SC 684; 1994 PLC (C.S.) 113; 1999 SCMR 1587; 1994 SCMR 722; 1999 SCMR 2141; and an un-reported judgment in C.P. No. 1250-L and 1241-L of 1997 decided on 21.7.1998. [P. 123] A
(ii) Constitution of Pakistan (1973)--
—Art. 185Concept of independence of Judiciary with reference to writing of ACRs of Sub-ordinate judiciary explained and illustrated--[ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the case, behaviour with the General Public including his social
contacts and reputation integrity wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer latest upto, appellate and revisional forums it is not advisable to write down such report in a haphazard manner—Because such report on both ways can operate detrimental for the officer and institution as if it has
been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run-As independence of judiciary is not only means that its incumbents should give decision independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature
because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently By the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums-Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove-However respective High Courts being independent institutions instead of
applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions
keeping in view the nature of the job of their subordinate judicial
officers]. [P. 127] C
(iii) Maxim; Audi Alteram Partem-
—Applicability-Principle of natural justice contained in maxim Audi Alteram Partem i.e., no one should be condemned unheard was now being considered impliedly or expressly integral part of statute-Even administrative/executive authorities were required to adhere to that principle but at the same time it was not a principle which is recognized universally-However, subject to nature of proceedings and category of action contemplated to be taken against an individual rule of natural
justice can be extended or denied. [P. 128] D a
(iv) Punjab Esta Code, 1968--
—-Instruction No. 2~Constitution of Pakistan (1973), Art. 185--Time frame for writing ACRs as set out in Esta Code whether directory in nature--Guideline for writing ACR of judicial officers laid down by Supreme Court-[Instructions are directory in nature because non-compliance of time frame mentioned therein, entails no consequences-As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts-To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself-Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient to unfold true picture about conduct of the said officer-As it is now well settled that a judicial officer exercising an authority under a law is bound to deliver correct and lawful judgments—Reference in this behalf maybe made to PLD 1987 S.C. 427 and 2001 SCMR 424-Therefore, if any judicial officer exercising powers under whatever capacity pronounce a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules-As in our judicial system a considerable time is consumed before appellate, revisional or High Court in finally settling the controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicial functions of an officer can cause delay-Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court-Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive-Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack to time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled-Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instructions itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid).
[Pp. 125 & 126] B
(v) Subordinate Judiciary Services Tribunal Act, 1991-
—Preamble—Maxim Audi Alteram Partem-Constitution of Pakistan (1973), Art. 185-Affording personal hearing to affected judicial officer in support of his representation by Administrative committee of High Court- Extent~No rules having been framed for disposal of departmental representation no obligation can be placed on the department to provide
him right of hearing necessarily-In addition with reference to judicial officer, reporting officer himself enjoys elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide was attributed against reporting officer, presumption would be that performance of individual subordinate judicial officer has been evaluated transparently-Under hierarchy of judicial forum representation would also be disposed of by members of superior judiciary having presumably no malice against him unless pleaded, therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation would not be mandatory-Departmental appeal, review or representation can thus, be disposed of by administrative committee of High Court without hearing individual concerned and if he still felt aggrieved against its order, he can agitate his view point before the tribunal where be would be allowed full
opportunity to explain his case. [Pp. 128 & 129] E
PLD 1986 SC 684; 1999 SCMR 1587; 1994 PLC (C.S.) 113; 1994 SCMR 722; 1994 SCMR 2141; 1997 SCMR 1749 ref.
Malik Muhammad Azam Rasul, ASC and .Rao Muhammad Yousaf\ Khan, AOR (Absent) for Appellant.
Respondent Ex-parte.
Date of hearing: 31.5.2001.
order
Iftikhar Muhammad Chaudhry, J.--In instant appeals leave to'
appeal has been granted to consider the following questions:-
"(i) Whether the adverse remarks recorded beyond the time] schedule prescribed by the Government of the Punjab through instructions for recording ACRs have lost their efficacy in view of the dictum of this Court in Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684) and, Chief Secretary, Government of Punjab, Lahore and 2 others- versus Muhammad Saeed Zafar (1999 SCMR 1587);
(ii) Whether the instructions issued by the Government of tW Punjab for recording ACRs can be varied by the High Court keeping in view the exigencies of service of persons of the Punjab Subordinate Judiciary to advance the principle o1 independence of judiciary;
(iii) Whether the Tribunal was right in holding that the affected judicial officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem; and
(iv) Whether the impugned judgments were in deviation of the law laid down by this Court in Government of the Punjab and another versus Ehsanul Hag Sethi (PLD 1986 SC 684), Kh. Saeedul Hasssan, Ex-Additional District and Sessions Judge versus Government of the Punjab, through the Chief Secretary, Lahore (1994 PLC (C.S.) 113), Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Saeed Zafar and another (1999 SCMR 1587), F.Q. Matiullah Khan Alizai versus Chief Secretary, Government of N.W.F.P. and 5 others (1994 SCMR 722), Shaukat Javed Farooqi, Under Secretary, Civil Secretariat Lahore versus District and Sessions Judge, Lahore and another (1999 SCMR 2141) and an unreported judgment of this Court in Civil Petitions Nos. 1240-L and 1241-L of 1997 decided on 21.7.1998."
Malik Muhammad Azam appeared on behalf of appellant whereas respondent was proceeded against exparte.
2. K.M. Sohel, respondent being incumbent as Additional District and Sessions Judge earned adverse remarks as per Annual Confidential Reports (hereinafter referred to as the "ACRs") for the period 1.1.1995 to 31.12.1995, 7.9.1994 to 31.12.1994 and 1.1.1996 to September 1996 respectively. The reporting officer in ACRs graded him either, Poor or Below
Average in Part III and Part IV as well as not a fit officer to hold charge independently at District or Sub Division Level while noting remarks in Part V relating to Pen-Picture of the Report, Similarly in Part VI of the report while recording his overall grading he was adjudged to be Below Average because he leaves bare minimum standard thus not yet fit for promotion and
also reported to he corrupt. Therefore, on communication of Adverse remarks he sought for expunction of the ' same remarks by availing departmental remedy but without success. As such he invoked the jurisdiction of Punjab Subordinate Judiciary Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") and filed Service Appeals Nos. 2, 3 and 4 of 1998. Learned Tribunal partially accepted Appeals Nos. 2 and 3 of 1998 covered by CAS No. 1687 and 1688 of 1999 respectively whereas in Appeal No. 4/1998 covered by C.AS. No. 1689/99 case was remanded to the competent authority for disposal of his departmental representation afresh after providing him opportunity of hearing. As such instant proceedings have been initiated.
3. Learned counsel contended that viewpoint of the Tribunal that the ACRs have to be recorded within reasonable time to achieve the object of maintaining ACRs is contrary to law laid down by this Court in the cases of Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684), Noor Ellahi Versus Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749), and Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Sdeed Zafar and another (1999 SCMR 1587).
4. It may be noted that as per Instruction No. 2 of Punjab Esta Code issued vide Government Letter No. S(R)-3542 S&GAD 4-8/65-SO-XIII, dated 12th February 1968 time frame for writing ACRs has been provided. For convenience the same is reproduced hereinbelowc-
"2. When should a Report be written....The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority, it will be sent to the authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government servants during the calendar year to which they relate. Otherwise, consciously or sub-consciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within the month of January each year."
A perusal of above instructions persuades us to hold that these instructions are directory in nature because non-compliance of time frame mentioned I therein, entails no consequences. As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts. To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself. Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient tc unfold true picture about conduct of the said officer. As it is now well settled that a judicial officer exercising an authority under a law is bound to delivei correct and lawful judgments. Reference in this behalf maybe made to PLI 1987 S.C. 427 and 2001 SCMR 424. Therefore, if any judicial office! exercising powers under whatever capacity pronounce a wrong decision fr applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules. As in our judicial system a considerable time i
consumed before appellate, revisipnal or High Court in finally settling th controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicis functions of an officer can caused delay. Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court. Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive. Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack of time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled. Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instruction itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid). Relevant paras therefrom are reproduced hereinabelow:-
"As for the time schedule, Instruction No. 2 provides that it should be initiated within the prescribed time, that is, the first week of January and should relate to a calendar year. The purpose is two fold; firstly, that subsequent events may not consciously or unconsciously contribute in the formation of the opinion in respect of the reporting year; and, secondly, that the cases that cases for promotion and appointments cannot be properly judged in the absence of up-to-date Annual Confidential Reports, which results in frustration amongst the Government servants.
However, while construing this Instruction, there cannot be in every case a rigid compliance of the time schedule; and for this, the reason is not far to seek as there may be cases where while judging the case of Government servants for promotion and appointment there may not be up-to-date Annual Confidential Reports in which case the missing reports are to be called for a fuller consideration of the merits. (Reference in this connection may be made to Rule 2.30-a of the Guide to Performance Evaluation, O & M Division, Public Administration Research Center, Islamabad, which provides for the rendering of missing character rolls or their reconstruction). There may be other instances where because of the large number of Government servants and there widely dispersed postings, it may not be possible to complete their Annual Confidential Reports within the time schedule for many justifiable reasons. Yet there might be other cases where for some technical reason, the Annual Confidential Reports cannot be initiated at the proper time. 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."
As it has been pointed out hereinabove that ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the cases, behaviour with the General Public including his social contacts and reputation integrity (-)wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer atieast upto appellate and revisional forums it is not advisable to write down such report in a haphazard manner. Because such report on both ways can operate detrimental for the officer and institution as if it has been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run. As independence of judiciary is not only means that its incumbents should give decisions independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently by the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums. Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove. However respective High Courts being independent institutions instead of applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions keeping in view the nature of the job of their subordinate judicial officers. Thus we are persuaded to hold that learned Tribunal formed the opinion under discussion in deviation of the principle laid down by this Court in PLD 1986 S.C. 684, 1999 SCMR 1587, 1999 SCMR 2141 and unreported judgment in Civil Petition for Leave to Appeal No. 1529-L/1996.
5. Learned counsel for appellant next contended that impugned judgment is also not sustainable in view of the observations of the Tribunal that effected judicial officer should have been afforded personal hearing in support of his representations and consideration of his representation in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem. He explained that for the redressal of grievance of the judicial officer pertaining to their service Subordinate Judiciary Services Tribunal Act 1991 has been promulgated but under this Act no rules have been framed for the disposal of appeals, review or representation by the departmental authority. As such in absence of any statutory rules the representations of the members of the subordinate judiciary are disposed of by the Administrative Committee of the High Court who either itself decides such matters or constitute sub committees and on receipt of the reports from it then finally decide their cases. Therefore, in view of such procedure it is not possible to provide a right of hearing to an individual while disposing of his representation. Moreover it is a consistent practice in the Government Departments that representations are disposed of keeping in view the available record instead of hearing an individual in support of it. Because providing an opportunity of hearing is not practicable for the reason that such representations are filed by good number of judicial officers not only against their ACRs but relating to their other terms and conditions of service as well. He further stated that the principle of Audi Alteram Partem is not a vested right available to every individual as it has been held by this Court in the case of Abdul Haq Indhar and others V. Province of Sindh through Secretary Forest, Fisheries and Livestock Department^ Karachi and 3 others (2000 SCMR 907). Learned counsel was also of the opinion that in fact any re order passed on the representation by the competent authority is ultimately examined by a judicial forum i.e. Punjab Subordinate Judiciary Service Tribunal where aggrieved person gets full chance tc~p!ace before it his view point, as such question does not arise of causing prejudice to an individual ( member of subordinate judiciary by not allowing him right of hearing while deciding his representation, rei
6. There is no doubt that principle of natural justice as enshrined in maxim Audi Alteram Patrem i.e. No one should be condemned unheard is now being considered impliedly or expressly integral part of a statute. Even _ administrative/executive authorities are required to adhere to this principle but at the same time it 's not a principle which is recognized universally, However, subject to nature of the proceedings and category of the action contemplated to be taken against an individual this rule can be extended or denied as it has been held in the case of Ghulam Mustafa Jatoi V. Additional
District and Sessions Judge/Returning Officer, N.A., 158, Nushero Feroze (he and others (1994 SCMR 1299) and Abdul Haq Indhar (supra). As is has been
have been framed, therefore, no obligation tcan be placed on the department to provide him right of hearing necessarily. In addition to it with reference to the cases of a judicial officer the reporting officer himself enjoys the elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide is attributed against the reporting officer presumption would be that the performance of an individual subordinate judicial officer has been evaluated transparently. Similarly under the hierarchy of judicial forum a representation is also disposed of by the members of superior judiciary having presumably no
and stated hereinabove that for disposal of departmental representations no rules 199 App com afte beei ,
malice against him unless if otherwise is pleaded. Therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation is not mandatory because if representation so submitted by an officer is decided against him then he can agitate his grievance before a judicial forum i.e. Tribunal where he can fully avail right of hearing to persuade the Tribunal that the adverse report or order under challenge is not sustainable. Thus we are of the opinion that departmental appeal, review or representation filed by a judicial officer can be disposed of by the administrative committee of the High Court without hearing the individual concerned and if he still aggrieved against its order he can agitate his view point before the Tribunal where he will be allowed full opportunity to explain his case.
Thus for the foregoing reasons appeals are allowed and the impugned order dated 21.6.1999 is set aside.
(A.P) Appeal accepted.
[Appellate Jurisdiction]
Present: iftikhar muhammad chaudhry, qazi muhammad parooq and
hamid ali mirza, JJ.
LAHORE HIGH COURT, LAHORE through REGISTRAR-Appellant
versus
K.M. SOHEL-Respondent C.As. Nos. 1687 to 1689 of 1999, decided on 31.5.2001.
(On appeal from the judgment dated 21.6.1999 passed Punjab Subordinate
Judiciary Service Tribunal Lahore in Service Appeals Nos.
2 to 4 of 1998)
(i) Constitution of Pakistan (1973)--
—Art. 185(3)-Adverse remarks recorded beyond the time schedule prescribed by the Government whether lose their efficacy—Leave to appeal was granted to consider; whether adverse remarks recorded beyond the time schedule prescribed by Government through instructions for recording ACR's have lost their efficacy in view of the dictum of Supreme Court in PLD 1986 SC 684 and 1999 SCMR 1587; whether instructions issued by Government for recording ACRs can be
vacated by the High Court keeping view exigencies of services of persons of Punjab Sub-ordinate Judiciary to advance the principle of independence of Judiciary; whether Tribunal was right in folding that affected judicial officers should have been afforded personal hearing in support of their representations and consideration of their representations in absentia by Administrative Committee did not conform to the principle of Audi Alteram Partem; and whether impugned judgments were in deviation of the law laid down by Supreme Court in PLD 1986 SC 684; 1994 PLC (C.S.) 113; 1999 SCMR 1587; 1994 SCMR 722; 1999 SCMR 2141; and an un-reported judgment in C.P. No. 1250-L and 1241-L of 1997 decided on 21.7.1998. [P. 123] A
(ii) Constitution of Pakistan (1973)--
—Art. 185Concept of independence of Judiciary with reference to writing of ACRs of Sub-ordinate judiciary explained and illustrated--[ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the case, behaviour with the General Public including his social
contacts and reputation integrity wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer latest upto, appellate and revisional forums it is not advisable to write down such report in a haphazard manner—Because such report on both ways can operate detrimental for the officer and institution as if it has
been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run-As independence of judiciary is not only means that its incumbents should give decision independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature
because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently By the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums-Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove-However respective High Courts being independent institutions instead of
applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions
keeping in view the nature of the job of their subordinate judicial
officers]. [P. 127] C
(iii) Maxim; Audi Alteram Partem-
—Applicability-Principle of natural justice contained in maxim Audi Alteram Partem i.e., no one should be condemned unheard was now being considered impliedly or expressly integral part of statute-Even administrative/executive authorities were required to adhere to that principle but at the same time it was not a principle which is recognized universally-However, subject to nature of proceedings and category of action contemplated to be taken against an individual rule of natural
justice can be extended or denied. [P. 128] D a
(iv) Punjab Esta Code, 1968--
—-Instruction No. 2~Constitution of Pakistan (1973), Art. 185--Time frame for writing ACRs as set out in Esta Code whether directory in nature--Guideline for writing ACR of judicial officers laid down by Supreme Court-[Instructions are directory in nature because non-compliance of time frame mentioned therein, entails no consequences-As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts-To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself-Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient to unfold true picture about conduct of the said officer-As it is now well settled that a judicial officer exercising an authority under a law is bound to deliver correct and lawful judgments—Reference in this behalf maybe made to PLD 1987 S.C. 427 and 2001 SCMR 424-Therefore, if any judicial officer exercising powers under whatever capacity pronounce a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules-As in our judicial system a considerable time is consumed before appellate, revisional or High Court in finally settling the controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicial functions of an officer can cause delay-Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court-Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive-Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack to time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled-Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instructions itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid).
[Pp. 125 & 126] B
(v) Subordinate Judiciary Services Tribunal Act, 1991-
—Preamble—Maxim Audi Alteram Partem-Constitution of Pakistan (1973), Art. 185-Affording personal hearing to affected judicial officer in support of his representation by Administrative committee of High Court- Extent~No rules having been framed for disposal of departmental representation no obligation can be placed on the department to provide
him right of hearing necessarily-In addition with reference to judicial officer, reporting officer himself enjoys elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide was attributed against reporting officer, presumption would be that performance of individual subordinate judicial officer has been evaluated transparently-Under hierarchy of judicial forum representation would also be disposed of by members of superior judiciary having presumably no malice against him unless pleaded, therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation would not be mandatory-Departmental appeal, review or representation can thus, be disposed of by administrative committee of High Court without hearing individual concerned and if he still felt aggrieved against its order, he can agitate his view point before the tribunal where be would be allowed full
opportunity to explain his case. [Pp. 128 & 129] E
PLD 1986 SC 684; 1999 SCMR 1587; 1994 PLC (C.S.) 113; 1994 SCMR 722; 1994 SCMR 2141; 1997 SCMR 1749 ref.
Malik Muhammad Azam Rasul, ASC and .Rao Muhammad Yousaf\ Khan, AOR (Absent) for Appellant.
Respondent Ex-parte.
Date of hearing: 31.5.2001.
order
Iftikhar Muhammad Chaudhry, J.--In instant appeals leave to'
appeal has been granted to consider the following questions:-
"(i) Whether the adverse remarks recorded beyond the time] schedule prescribed by the Government of the Punjab through instructions for recording ACRs have lost their efficacy in view of the dictum of this Court in Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684) and, Chief Secretary, Government of Punjab, Lahore and 2 others- versus Muhammad Saeed Zafar (1999 SCMR 1587);
(ii) Whether the instructions issued by the Government of tW Punjab for recording ACRs can be varied by the High Court keeping in view the exigencies of service of persons of the Punjab Subordinate Judiciary to advance the principle o1 independence of judiciary;
(iii) Whether the Tribunal was right in holding that the affected judicial officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem; and
(iv) Whether the impugned judgments were in deviation of the law laid down by this Court in Government of the Punjab and another versus Ehsanul Hag Sethi (PLD 1986 SC 684), Kh. Saeedul Hasssan, Ex-Additional District and Sessions Judge versus Government of the Punjab, through the Chief Secretary, Lahore (1994 PLC (C.S.) 113), Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Saeed Zafar and another (1999 SCMR 1587), F.Q. Matiullah Khan Alizai versus Chief Secretary, Government of N.W.F.P. and 5 others (1994 SCMR 722), Shaukat Javed Farooqi, Under Secretary, Civil Secretariat Lahore versus District and Sessions Judge, Lahore and another (1999 SCMR 2141) and an unreported judgment of this Court in Civil Petitions Nos. 1240-L and 1241-L of 1997 decided on 21.7.1998."
Malik Muhammad Azam appeared on behalf of appellant whereas respondent was proceeded against exparte.
2. K.M. Sohel, respondent being incumbent as Additional District and Sessions Judge earned adverse remarks as per Annual Confidential Reports (hereinafter referred to as the "ACRs") for the period 1.1.1995 to 31.12.1995, 7.9.1994 to 31.12.1994 and 1.1.1996 to September 1996 respectively. The reporting officer in ACRs graded him either, Poor or Below
Average in Part III and Part IV as well as not a fit officer to hold charge independently at District or Sub Division Level while noting remarks in Part V relating to Pen-Picture of the Report, Similarly in Part VI of the report while recording his overall grading he was adjudged to be Below Average because he leaves bare minimum standard thus not yet fit for promotion and
also reported to he corrupt. Therefore, on communication of Adverse remarks he sought for expunction of the ' same remarks by availing departmental remedy but without success. As such he invoked the jurisdiction of Punjab Subordinate Judiciary Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") and filed Service Appeals Nos. 2, 3 and 4 of 1998. Learned Tribunal partially accepted Appeals Nos. 2 and 3 of 1998 covered by CAS No. 1687 and 1688 of 1999 respectively whereas in Appeal No. 4/1998 covered by C.AS. No. 1689/99 case was remanded to the competent authority for disposal of his departmental representation afresh after providing him opportunity of hearing. As such instant proceedings have been initiated.
3. Learned counsel contended that viewpoint of the Tribunal that the ACRs have to be recorded within reasonable time to achieve the object of maintaining ACRs is contrary to law laid down by this Court in the cases of Government of the Punjab and another versus Ehsanul Haq Sethi (PLD 1986 SC 684), Noor Ellahi Versus Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749), and Chief Secretary, Government of Punjab, Lahore and 2 others versus Muhammad Sdeed Zafar and another (1999 SCMR 1587).
4. It may be noted that as per Instruction No. 2 of Punjab Esta Code issued vide Government Letter No. S(R)-3542 S&GAD 4-8/65-SO-XIII, dated 12th February 1968 time frame for writing ACRs has been provided. For convenience the same is reproduced hereinbelowc-
"2. When should a Report be written....The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority, it will be sent to the authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government servants during the calendar year to which they relate. Otherwise, consciously or sub-consciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within the month of January each year."
A perusal of above instructions persuades us to hold that these instructions are directory in nature because non-compliance of time frame mentioned I therein, entails no consequences. As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts. To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself. Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient tc unfold true picture about conduct of the said officer. As it is now well settled that a judicial officer exercising an authority under a law is bound to delivei correct and lawful judgments. Reference in this behalf maybe made to PLI 1987 S.C. 427 and 2001 SCMR 424. Therefore, if any judicial office! exercising powers under whatever capacity pronounce a wrong decision fr applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules. As in our judicial system a considerable time i
consumed before appellate, revisipnal or High Court in finally settling th controversy between the parties and confirming or otherwise the judgment under challenge therefore, writing of ACRs being based on the judicis functions of an officer can caused delay. Besides it, the integrity of a judicial officer has to be assessed by the reporting officer on basis of credible information which can also be linked or counter checked with his work being done by him in the Court. Therefore, to achieve these objects comparatively to assess over all performance as well as reputation of a judicial officer a longer time is required than writing the ACR on an officer of the executive. Essentially in the judicial system no methodology has been evolved so far to assess overall performance of a judicial officer promptly for the reason one of them has been cited hereinbefore or for any other reason including lack of time at the disposal of reporting officer who himself is a judicial officer and he remain busy in his own judicial work therefore to collect information before writing ACRs from the place where the judicial officer is posted consumption of more time can not be over ruled. Thus, due to nature of the job of a judicial officer and the commitments of the reporting officer strict compliance of the above instructions cannot be impressed upon strictly and for such reason above instruction itself has been made directory in nature as it has been held in the case of Ehsanul Haq Sethi (ibid). Relevant paras therefrom are reproduced hereinabelow:-
"As for the time schedule, Instruction No. 2 provides that it should be initiated within the prescribed time, that is, the first week of January and should relate to a calendar year. The purpose is two fold; firstly, that subsequent events may not consciously or unconsciously contribute in the formation of the opinion in respect of the reporting year; and, secondly, that the cases that cases for promotion and appointments cannot be properly judged in the absence of up-to-date Annual Confidential Reports, which results in frustration amongst the Government servants.
However, while construing this Instruction, there cannot be in every case a rigid compliance of the time schedule; and for this, the reason is not far to seek as there may be cases where while judging the case of Government servants for promotion and appointment there may not be up-to-date Annual Confidential Reports in which case the missing reports are to be called for a fuller consideration of the merits. (Reference in this connection may be made to Rule 2.30-a of the Guide to Performance Evaluation, O & M Division, Public Administration Research Center, Islamabad, which provides for the rendering of missing character rolls or their reconstruction). There may be other instances where because of the large number of Government servants and there widely dispersed postings, it may not be possible to complete their Annual Confidential Reports within the time schedule for many justifiable reasons. Yet there might be other cases where for some technical reason, the Annual Confidential Reports cannot be initiated at the proper time. 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."
As it has been pointed out hereinabove that ACRs of a judicial officer is generally based on his work which he performs as a Presiding Officer in his judicial capacity coupled with the manner of handing the cases, behaviour with the General Public including his social contacts and reputation integrity (-)wise etc which he enjoys warrants careful consideration because merely on basis of a bald unconfirmed information touching the reputation of a judicial officer or his general conduct or till the scrutiny of the judicial order passed by such an officer atieast upto appellate and revisional forums it is not advisable to write down such report in a haphazard manner. Because such report on both ways can operate detrimental for the officer and institution as if it has been written without assessing his work in a careless manner or if due to constraint of time he has been stamped overall good officer which otherwise he is not then such report would not only pave way for his promotion to higher grade but would also cause setback for the institution in the long run. As independence of judiciary is not only means that its incumbents should give decisions independently without any fear and favour but equally it means that its member must exhibit through their performance both on the judicial as well as administrative side that there is no complaint against them of whatsoever nature because in our opinion criteria to allow a judicial officer to discharge judicial functions is only that there should not be single complaint against him and this object can conveniently be achieved if the duties are performed by a judicial officer honestly, diligently and to the best of his abilities instead of proving himself to be evil genius by writing good judgments in favour of either of the party not on merits but for some extraneous consideration which of course can be detected conveniently by the superior forums meant for scrutiny of the judgments i.e. appellate, revisional or constitutional forums. Therefore, due to such nature of service of judicial officer it is not possible to strictly follow the time frame laid down under Instruction No. 2 referred to hereinabove. However respective High Courts being independent institutions instead of applying old instructions on the subject of writing ACRs can through their Administrative Committees competently frame fresh instructions keeping in view the nature of the job of their subordinate judicial officers. Thus we are persuaded to hold that learned Tribunal formed the opinion under discussion in deviation of the principle laid down by this Court in PLD 1986 S.C. 684, 1999 SCMR 1587, 1999 SCMR 2141 and unreported judgment in Civil Petition for Leave to Appeal No. 1529-L/1996.
5. Learned counsel for appellant next contended that impugned judgment is also not sustainable in view of the observations of the Tribunal that effected judicial officer should have been afforded personal hearing in support of his representations and consideration of his representation in absentia by the Administrative Committee did not conform to the principle of Audi Alteram Partem. He explained that for the redressal of grievance of the judicial officer pertaining to their service Subordinate Judiciary Services Tribunal Act 1991 has been promulgated but under this Act no rules have been framed for the disposal of appeals, review or representation by the departmental authority. As such in absence of any statutory rules the representations of the members of the subordinate judiciary are disposed of by the Administrative Committee of the High Court who either itself decides such matters or constitute sub committees and on receipt of the reports from it then finally decide their cases. Therefore, in view of such procedure it is not possible to provide a right of hearing to an individual while disposing of his representation. Moreover it is a consistent practice in the Government Departments that representations are disposed of keeping in view the available record instead of hearing an individual in support of it. Because providing an opportunity of hearing is not practicable for the reason that such representations are filed by good number of judicial officers not only against their ACRs but relating to their other terms and conditions of service as well. He further stated that the principle of Audi Alteram Partem is not a vested right available to every individual as it has been held by this Court in the case of Abdul Haq Indhar and others V. Province of Sindh through Secretary Forest, Fisheries and Livestock Department^ Karachi and 3 others (2000 SCMR 907). Learned counsel was also of the opinion that in fact any re order passed on the representation by the competent authority is ultimately examined by a judicial forum i.e. Punjab Subordinate Judiciary Service Tribunal where aggrieved person gets full chance tc~p!ace before it his view point, as such question does not arise of causing prejudice to an individual ( member of subordinate judiciary by not allowing him right of hearing while deciding his representation, rei
6. There is no doubt that principle of natural justice as enshrined in maxim Audi Alteram Patrem i.e. No one should be condemned unheard is now being considered impliedly or expressly integral part of a statute. Even _ administrative/executive authorities are required to adhere to this principle but at the same time it 's not a principle which is recognized universally, However, subject to nature of the proceedings and category of the action contemplated to be taken against an individual this rule can be extended or denied as it has been held in the case of Ghulam Mustafa Jatoi V. Additional
District and Sessions Judge/Returning Officer, N.A., 158, Nushero Feroze (he and others (1994 SCMR 1299) and Abdul Haq Indhar (supra). As is has been
have been framed, therefore, no obligation tcan be placed on the department to provide him right of hearing necessarily. In addition to it with reference to the cases of a judicial officer the reporting officer himself enjoys the elevated position and he is bound to follow all norms of justice without being biased in any manner because unless any mala fide is attributed against the reporting officer presumption would be that the performance of an individual subordinate judicial officer has been evaluated transparently. Similarly under the hierarchy of judicial forum a representation is also disposed of by the members of superior judiciary having presumably no
and stated hereinabove that for disposal of departmental representations no rules 199 App com afte beei ,
malice against him unless if otherwise is pleaded. Therefore, extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation is not mandatory because if representation so submitted by an officer is decided against him then he can agitate his grievance before a judicial forum i.e. Tribunal where he can fully avail right of hearing to persuade the Tribunal that the adverse report or order under challenge is not sustainable. Thus we are of the opinion that departmental appeal, review or representation filed by a judicial officer can be disposed of by the administrative committee of the High Court without hearing the individual concerned and if he still aggrieved against its order he can agitate his view point before the Tribunal where he will be allowed full opportunity to explain his case.
Thus for the foregoing reasons appeals are allowed and the impugned order dated 21.6.1999 is set aside.
(A.P) Appeal accepted.
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