1989 S C M R 1967
Present: Nasim Hasan Shah and Ghulam Mujaddid, JJ
Dr. MUHAMMAD HANIF ARIF Petitioner
versus
THE SECRETARY TO THE GOVERNMENT OF THE
PUNJAB Respondent
Constitutional Petition No. 108 of 1986, decided on 30th November, 1988.
(On appeal from the judgment dated 10‑11‑1985 of the Punjab Service Tribunal,
Lahore, in Service Appeal No. 453/266 of 1985).
(a) Constitution of Pak1stan (1973)‑‑
‑‑‑Art.212(3)‑‑Adverse remarks in Annual Confidential Report‑‑Authority's order
forming basis of adverse remarks against civil servant challenged for the first time
before Supreme Court‑‑Effect‑‑Civil servant having not raised similar challenge to
Authority's order for entry of adverse remarks in his confidential report before
Provincial Government or Service Tribunal, could not be allowed to raise the same
before Supreme Court for the first time.
(b) Civil service
‑‑‑ Adverse remarks in Annual Confidential Report‑‑Bias‑‑Question pertaining to bias
of Reporting Officer having been properly dealt with by Service Tribunal, Supreme
Court found no reason to differ with the view expressed by it Supreme Court, however,
itself considered the plea of bias in Report of Officer but found no merit in the said
plea.
(c) Civil service
‑‑‑ Adverse remarks‑‑Delay in communication‑‑Effect‑‑Annual Confidential Report of
1981 was ordered to be communicated in 1984 and was actually communicated on
2‑1‑1985, while the normal period for communication of such adverse remarks is thirty
days‑‑Countersigning officer, however, having nullified the remarks of Reporting
Officer and that of first countersigning officer at earlier stage, but subsequently
realizing that such remarks had been made in accordance with the directive of
Authority, changed them accordingly‑‑Such remarks were thus not the remarks of
Reporting Officer but those of the Authority itself‑ Adverse remarks were thus
communicated to civil servant after a delay of three years‑‑Such delay was not fatal to
the validity of adverse remarks in circumstances.
Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court with Ejaz Ahmad Khan,
Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 23rd November, 1988.
ORDER
NASIM HASAN SHAH, J.‑‑The petitioner was serving in the Urology Department of
Mayo Hospital in May, 1981. A staff nurse, Munaza Tasneem, made allegations that
the petitioner taking advantage of his position had committed sexual intercourse with
her and his behavior with her was immoral. An inquiry on these allegations was held
against him but it was found that the allegations regarding rape were not established, as
this immoral act was the result of mutual consent of the parties. However, the
Secretary Health was of the opinion that in order to rid the department of the evil,
some admin1strative action against the petitioner may be taken and this could be done
by shifting him from his present position to somewhere else. The Chief Secretary
agreed with the recommendation of the Secretary Health who further opined that the
petitioner and the nurse may not be kept in the same hospital and it would be
preferable if the doctor was adjusted somewhere outside Lahore. The case was then
sent to the Governor, for orders who agreed with the Chief Secretary. He further
observed that this fact may also be recorded in the dossier of the petitioner. He further
desired that the doctor may be posted out of Lahore at once. These directions were
issued on 5‑12‑1981.
In the A.C.R. recorded on 31‑1‑1982, for the year 1981, Professor Dr. Fateh Khan
Akhtar recorded the following remarks:
"Energetic young surgeon with average professional knowledge and skill. He is rather
excitable and has unstable personality. His behavior with subordinate nursing staff has
been indecent and undesirable".
The Principal of the College, Professor Kh. Sadiq Hussain countersigned the same on
21‑6‑1982, with the following additional remarks:
"After enquiry on complaint of immoral activity was transferred out of Lahore as an
admin1strative action".
However, the Health Secretary, Brig. I.A. Khawaja, the subsequent countersigning
officer considering the assessment made by the reporting officer to be biased noted
accordingly on 7‑6‑1983. The result was that the above adverse remark stood washed
out.
It appears that sometime later, the Provincial Health Secretary sought advice from the
Regulation Wing of the Government whether the subsequent countersigning officer
was competent to disregard the Governor's order dated 5‑12‑1981. The Regulation
Wing gave the opinion that the Health Secretary had no authority to disregard the
Governor's remark. Accordingly, the following adverse remarks were communicated to
the petitioner by letter dated 2‑1‑1985:
"In the presence of Directive of the Governor passed on the summary submitted to him
on the basis of the inquiry conducted against Dr. Muhammad Hanif Arif, the remarks
of Secretary Health recorded in the A.C.R. for the period from 1‑1‑1981 to 31‑12‑1981
carry no weight. A.D. is advised to comply with the directive of the Governor and
place a note about the incident in the C.R.Dossier of the Doctor with a copy to him."
The petitioner filed an appeal challenging the said adverse remarks before the Service
Tribunal. This has been dismissed. Hence this petition.
Ch.Khalil‑ur‑Rehman, learned counsel for the petitioner, in support of this petition, has
made three submissions:
(i) that the order of the Governor dated 5‑12‑1981 was a nullity and liable to be
ignored, hence it could not form the basis of any adverse remarks;
(ii) that Professor Dr.Fateh Khan Akhtar's remarks were by a person who was
prejudiced against the petitioner and his remarks were vitiated on account of his bias;
(iii) that the adverse remarks in the A.C.R. pertaining to the year 1981 should have
been communicated to the petitioner somewhere m 1982 and the said adverse remarks
communicated on 2‑1‑1985 were null and void.
So far as the first submission is concerned, this has not been raised by the petitioner
ever before, neither in his representation to the Provincial Government nor before the
Service Tribunal and we are, therefore, not inclined to allow him to raise the same
before us for the first time.
As regards the question pertaining to the bias of Professor Dr.Fateh ' Khan Akhtar, the
same has been properly dealt with by the Service Tribunal and we find no reason to
differ with the view expressed by it. We have also considered the plea ourselves and
find that there is no merit in the said plea.
As regards the delay in the communication of the adverse remarks, it is true that the
Annual Confidential Report of 1981 was ordered to be communicated sometime in
1984 and was actually communicated by the letter dated 2‑1‑1985 while the normal
period for communication of such adverse remarks is 30 days, but, as noted already,
the position was that the subsequent countersigning officer had nullified the remarks of
Professor Dr.Fateh Khan Akhtar and that of the first countersigning officer, namely, the
Principal of the College on the ground that they were biased. Later on, however, it was
realized that these remarks had been made in accordance with the directive dated
5‑12‑1981 of the Governor and the Martial Law Admin1strator and, accordingly, the
said remarks were not the adverse remarks of Professor Dr. Fateh Khan Akhtar but, in
reality, the remarks of the Governor himself. In any case, the Secretary Health did not
have the authority to disregard the directive of the Governor and the Martial Law
Admin1strator to bring those remarks on the dossier of the petitioner. It was only
thereafter that the adverse remarks were communicated to the petitioner resulting in the
delay of some three years in the communication of the Annual Confidential Report,
1981 to the petitioner. The Service Tribunal, in these circumstances, found that the
delay was not fatal to the validity of the remarks. We also agree with this view and
endorse it.
No ground, therefore, ex1sts for interference with the order of the Service Tribunal.
This petition fails and is dismissed hereby.
A.A./M‑963/S Petition dismissed
;
