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Appeal No. 5 (R) of 1981, decided on 22nd November, 1982.

‑‑Adverse remarks in annual confidential report‑Expunction of --Within jurisdiction of Service Tribunal‑Service Tribunals Act (LXX of 1973), S. 4.

Muhammad Aboo Abdullah v. The Province of East Pakistan P L D 1960 S C 164 distinguished.

Secretary, Government of Punjab v. Ahmad Kamaluddin 1981 S C M R 392 ref.

‑‑Interpretation of rule‑Rule otherwise valid‑To be interpreted in such a way that it does not become unreasonable or unworkable or out of context‑Rule validly made under legislative enactment- Cannot be struck down for being harsh‑Daily order of Board of Pakistan Ordnance Factories requiring A.C.R. of Works Managers and below serving in groups other than their permanent seniority Group after completion by Superintendent of Group in which ser ving to be shown to Superintendent of Permanent Seniority Group-Valid rule‑Superintendent of Permanent Seniority Group however, not competent to comment upon the official for the year in which he worked in other Group and has only to see how the , official has worked outside his Group ‑ Superintendent of other Group also not empowered to comment upon matters pertaining to officials Group of seniority‑Pakistan Ordnance Factories Board Ordinance (XVII of 1961), S. 7 (g) and Daily Order Part‑I No.'689, Note (3)

M. S. Siddiqi forr Appellant.

Syed M. Shahudul Haque assisted by Attaullah Qazi for the State.

Date of hearing : 21st November, 1982.

This is an appeal by Farzand Ali Khan, Works Manager, Export Cell, Pakis an Ordnance Factories Board, Wah, for the expunction of certain remarks made in his Annual Confidential Report for the year 1978. The appellant origi nally belonged to the Metallurgical Group of the P. O. F., but in 1978, throughout he was holding a staff appointment. The report was initiated by the Superintendent, Planning and Budget, under whom the appellant was directly working during the year. In this report, there is nothing. against the appellant. The next superior officer, who happened to be Chief Superintendent (Co‑ordination), observed in column 30 that "the appellant may be tried in higher grade in R & D Group in view of his 23 years experience on metallurgical side". In column 31, however, the Superin tendent (Development) made the following remarks

"Mr. F. A. Khan's low educational qualifications do not merit appoint ment in the senior grade in Met. Deptt."

It may be mentioned here that Superintendent (Development) was not an officer superior to the Chief Superintendent (Co‑ordination), but his view was obtained because he was Superintendent (Development) of the Metallurgical Group, and the appellant was basically an employee of the Metallurgical Group of the Pakistan Ordnance Factories. Certain rule required that if a person is serving outside his own Group, his report should also be seen by officer of his own Group, inter alia, for such endorse ment as he may wish to make.

2. In column 32, the next higher officer agreed with the Superinten dent (Development), and in column 33, the Chairman wrote "the appellant is an officer of limited capability".

3. The appellant in his prayer seeks the expunction of the remarks in columns 31 and 32, on the ground that the officer who reported upon the appellant's work had no occasion to see his performance during the year 1978, and that in no case, the officer who recorded column 31, could overrule the opinion of the officer who recorded column 30, because the latter was senior to the former.

4. The learned counsel for State has argued that this Tribunal has no jurisdiction to entertain this appeal, because recording of the Annual Confidential Reports is the sole prerogative of the officers in the depart mental hierarchy, and the Courts have no jurisdiction to intervene. Reference was made in this respect to the case of Muhammad Aboo Abdul lah v. The Province of East Pakistan (PLD1960SC164) wherein this view had been taken. However, the case relied upon by the learned State counsel bars the. jurisdiction of the Courts and not of the Service Tribunals consti tuted under the Service Tribunals Act, 1973 which itself is the highest tier in the departmental hierarchy. The case relied upon by the learned State counsel had been considered again by the Supreme Court in the case of Secretary, Government of Punjab v. Ahmad Kamaluddin (1981SQMR392) after the establishment of the Service Tribunals, and the Supreme Court clearly ruled that the Service Tribunal has full jurisdiction in matters pertaining to writing of Annual Confidential Reports as well.

5. The sole ground on which the learned counsel for the appellant has objected to the entries made in columns 31 and 32 of the report is that the appellant did not work under the two officers in 1978 for which period the reports were recorded. The learned State counsel, however, has brought to our notice Daily Order Part‑I No. 689, dated 20‑12‑1971. Note (3) below the said Order reads as under :‑

"A. C. Rs. on Works Manager and below currently serving in groups other than their permanent seniority groups after completion by the Superintendent of the Group in which they are currently serving, will also be shown to the Superintendent/Chief Superintendent of the permanent seniority group for such endorsement as the latter may wish to make."

The learned State counsel contends that since the appellant belonged to the Metallurgical Group of the Pakistan Ordnance Factories, it was necessary that; in view of Note (3) Superintendent/Chief Superintendent of the Metallurgical Group should have been shown the report of the officers on the Metallurgical side for such endorsements as they may have wished to make. The learned counsel for the appellant, however, contends that this Note is not only unreasonable, but out of place, because an officer who has not seen the work of a particular officer during the year under assessment cannot make any rational comments on his performance for the year. According to him, the direction in Note (3) that the Chief Superintendent/Superintendent of the parent Group should make such endorsement as he may wish to do is of general nature and does not refer to performance of the officer during the year under report.

6. We are unable to accept the contention of the learned counsel for the appellant that Note (3) ibid requires to be struck down for being unrea sonable in view of the facts stated by him because it is settled law that when a rule is made under the authority of a legislative enactment, that rule cannot be struck down for being harsh or unreasonable. It is not disputed that the order and the Note which we have referred to above, were made' by he Board under the Pakistan Ordnance Factories Board Ordinance, 1961, which under section 7 (g) confers such powers. However, we are also unable to accept the arguments of the learned State counsel because the forum interpreting a rule which is otherwise valid has to interpret it in such a way that it does not become unreasonable or for that matter unworkable or out of context. In our opinion, the intention of Note (3) proving that the Chief' Superintendent/Superintendent of the Group to which a parti cular officer belongs should be shown the Annual Confidential Report "for such endorsement as the latter may wish to make", has been enacted only with the purpose of posting the Superintendent of the Group concern ed to see as to how the officer, who is basically his baby, is working outside his own Group. The endorsement intended by Note (3) ibid does not empower the Group Officer to comment upon the work of the officer for the‑year under report. If viewed in that context, then, in our opinion, Superintendent (Development) as well as the P. T. E. who recorded columns 31 and 32 of the report had no jurisdiction to comment upon the performance of the appellant. They were only to see how he has been reported upon. Perhaps, the two officers would not have adversely commented upon the appellant if the Chief Superintendent (Co‑ordination) had not remarked that "the appellant should be tried in higher grade in R & D Group in view of his 23 years' experience on Metallurgical side". The Chief Superintendent (Co‑ordination) was not competent to judge the capability of the appellant on Metallurgical side as the said Superintendent had nothing to do with that side. In view of these facts, therefore, we are of the view that columns 31 and 32 require to be expunged, but alongwith these two columns, the entry in column 30 also should be expunged., though it is in favour of the appellant, but it was this entry (in column 30) which prompted the officers in making the adverse remarks in columns 31 and 32.

7. We, therefore, accept the appeal and direct that entries in columns 30, 31 and 32 in the Annual Confidential Reports of the appellant for the year 1978 be expunged. A copy of this order be placed on the A. C. R. dossiers of the appellant.

8. Parties be informed accordingly. No order as to costs.

Appeal accepted.

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