Syed Ali Raza Vs Hon`ble Administratiion Committee Peshawar High Court, Peshawar through Registrar, Peshawar High Court, Peshawar and other

KHYBER PAKHTUNKHWA

(Subordinate Judiciary Service Tribunal)

[JUDICIAL DEPARTMENT]

S.A No. 07/2013

Syed Ali Raza........... ....................Appellant Vs

Hon’ble Administration Committee, Peshawar High Court, Peshawar through Registrar, Peshawar High Court, Peshawar and other ..............................................Respondents Present: Muhammad Zafar Tahirkheli, Advocate, for the appellant.

Mr. Khaled Rehman, Advocate, for the respondent-PHC.

Date of hearing: 20.12.2025

Date of Announcement: 17.01.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- In view of the order of this Tribunal dated 23.01.2021, passed in the instant appeal the matter was referred for placement before a Larger Bench for determination of certain questions. The said order sheet being relevant is reproduced below:- “Learned counsel for the appellant while relying upon the judgments of this Court passed in Service Appeals No.95, 96, 97 and 98 of 2011 filed by Zahid Mehmood and No.68 of 2011 filed by Muhammad Zeb Khan, contended that the adverse remarks so

communicated are violation of the settled law, above referred, wherein, it is held that remarks "unfit for promotion" amounts to a penalty as contained in the Government Servant Efficiency & Disciplinary Rules, 2011 and as such, without adopting the procedure prescribed under the above mentioned Rules, no such remarks can be issued/given.

2.We have examined the judgments relied upon by learned counsel for the appellant and prima facie are of the view that infact, remarks as "unfit for promotion" is an opinion of the Reporting Office r/Countersigning Officer and can never be considered as penalty as it is based upon the overall performance of the Officer reported upon. Even otherwise, after the judgments of this Tribunal, such columns about the fitness of Civil Servants are still available on the ACR proforma. Thus, in order to have an authoritative judgment on the point of law, above formulated, as to whether unfitness for promotion in the ACR of an Officer reported upon can be treated as penalty and before reporting upon, the mandatory procedure prescribed under the Rules is to be followed or otherwise are the questions which can be decided by a Larger Bench of this Tribunal. As such, the matter in hand alongwith the above formulated questions be placed before the Hon'ble Chairman of this Tribunal for an appropriate order. Adjourned to a date in office”.

2.In view of the above, this Tribunal would determine the following questions:- I. Whether before recording of an adverse remark(s) by the Reporting Officer in the Performance Evaluation Report (hereinafter to be referred as “PER”), an incumbent subordinate employee is required to be provided an opportunity of hearing or the Reporting Officer is merely required to follow the procedure as mandated by the

relevant instructions for maintaining of the

PER?

II. Whether an opinion “unfitness for promotion” recorded by the Reporting Officer / Countersigning Authority in the PER of a subordinate employee can be treated as penalty or not?

3.In order to answer the aforesaid question No. I, it would be relevant to first dilate upon the object, spirit and scope of the PER. The entries in the PER are an administrative assessment of an incumbent subordinate employee which are recorded by the Reporting Officer on the basis of the past and current performance of an official with respect to his efficiency, integrity, competence, discipline, professionalism, commitment towards his duty and of course his overall suitability on the post with respect to the relevant-cum-specific period. Such entries in the PER is the opinion of the Reporting Officer which has a considerable impact on the service career- cum-progression of such employee, as the same would provide a base to the competent authority / DPC for their decisions relating to promotion, confirmation, selection for training, posting

against a particular post etc., therefore, the same need to be recorded carefully and with full application of mind. The PERs of the member of subordinate Judiciary are regulated by instructions as contained in Section 15 of The Chapter-III under the head of Human Resources of District Judiciary, of The Judicial ESTA Code Volume-II.

Para 0.2 of the aforesaid Instructions describes the object of the PER and it also requires that it should be recorded carefully and with full sense of responsibility. The said para also requires that such report should give a clear picture of the officer reported upon vis-a-vis his personal quality, standard of performance, dealing with others, potential growth and his suitability for promotion to special posts according to the individual aptitude. The said para also requires from the Countersigning Authority that he should scrutinize the report of Reporting Officer scrupulously in accordance with the prescribed procedure before countersigning the same. Similarly, para 0.3 of the said Instructions provides a mechanism that how a Reporting Officer would make his report regarding

his subordinate officer. Para-0.3 of the said Instructions being relevant is reproduced below:- 0.3 Manner of Writing the Reports: Instructions for the Reporting Officers:

(i)While reporting on your subordinate: -

1)Be as objective as possible.

2)Be as circumspect as possible.

3)Be clear and direct, not ambiguous or evasive in your remarks.

4)Avoid exaggeration and gross understatement.

(ii)State whether any of the defects reported have already been brought to the notice of the officer concerned and also whether he has or has not taken steps to remedy them.

(iii)Fill the form in duplicate by initiating the relevant boxes in both the original and the duplicate copies. If necessary, the R.O views under "Pen Picture" typed. In that case affix his signature at the end of the "Pen picture".

(iv)It has been decided that PERS of the officers should be initiated only by such officers who have the opportunity of seeing the performance of the subordinate officers closely.

The plain reading of the aforesaid para would show that as far as possible the Reporting Officer has to make an objective and circumspect assessment of his subordinate. It also requires that the opinion of the Reporting Officer must be clear and direct and he has to avoid ambiguous and evasive remarks. It also casts a duty upon the

Reporting Officer to avoid exaggeration and gross understatement. Another important statutory duty of the Reporting Officer is to inform the employee of any shortcomings in his conduct before preparation of the PER, and then he has also to record in the PER that as to whether the employee has taken remedial steps to address the issue of shortcoming or not. It is also the duty of the Reporting officer that he has to resort for counseling of the employee under reporting and also to administer warning before recording an adverse remarks in the PER and thus while ensuring the performance of counseling, The Provincial Government has circulated a policy which stipulates that non-observance of counseling by the Reporting Officer would amount to misconduct on the part of such Reporting Officer.

Para 3.6 of relevant instructions being relevant is reproduced below:-

3.6 Warning/Counselling: it has been noted that the requirement of warning/counselling are not being fulfilled before recording adverse remarks in the PERs of the Government Servants. Resultantly, these are expunged under the orders of the NWFP Service Tribunal.

In order to minimize litigations, the Provincial Government have reviewed the position and have decided that:

(a)Counselling may be ensured in all cases before initiation an adverse report or grading the PERS;

(b)The officers who give adverse remarks without any solid grounds shall be personally held responsible for deviation from rules;

(c)Non-observance of the Government instructions amounts to misconduct under clause (e) of Sub-rule (1) of rule 2 of the NWFP Civil Servant (Efficiency and Discipline) Rules, 1973 and can attract disciplinary action;

4.Apart from this, a proforma is being provided to the Reporting Officer which contain almost the aforesaid prerequisite formalities as mandated by the said instructions. The said proforma being relevant is also reproduced below:-

The various rows of the aforesaid proforma would show that the period for which it is being filled is to be specifically stated by the Reporting Officer. Similarly, the Reporting Officer has to report with respect to Intelligence, confidence, well power, acceptance of responsibility, reliability under pressure, financial responsibility, relation with superior, colleagues and behavior with public. Para No.7 of the aforesaid proforma specifically requires the opinion of the Reporting

Officer qua the fitness or otherwise of promotion of his subordinate officials.

5.In view of the combined reading of the relevant Instructions and various paras of aforesaid proforma, it can safely be concluded that the PER which is also called Annual Confidential Report (ACR) is a confidential document and in all respect it is an opinion of the Reporting Officer with respect to the overall efficiency, integrity, discipline, competence etc. as well as suitability of the subordinate official. Neither the relevant instructions nor the prescribed proforma do require in express term that before recording an adverse remark(s) in the PER by the Reporting Officer he has to provide an opportunity of hearing to the subordinate employee, nevertheless it surely requires the Reporting Officer that he has to inform the employee about the shortcoming of his personal or professional conduct and thus, the question No.I is answered in the terms firstly that the entries in PER are the opinion of a Reporting Officer with respect to his subordinate employee, secondly that before recording the said entries, the Reporting Officer is not required to provide an

opportunity of hearing to the employee, thirdly that the PERs / ACRs are meant to evaluate the performance and suitability and not to punish an employee, fourthly that any adverse remark must be based on objective assessment and be recorded carefully and in good faith, fifthly that the primary purpose of ACR is to maintain efficiency in service and assist DPC / competent authorities in making promotion and posting decision, sixthly that PER or Confidential Report intended for administrative guidance and cannot be used arbitrarily or with malafide intention, and seventhly before recording any adverse remarks, the Reporting Officer has to resort for remedial measures like counseling, warning etc.

6.Now, we move to answer the second question which is to the effect that whether an opinion of the Reporting Officer in the PER qua “unfitness for promotion” could be treated and considered as penalty or not and as to whether such opinion / entries could be a hurdle in the way of an employee for his promotion, posting etc. It would be appropriate to highlight that promotion is a process of an employee from a lower scale to a

higher scale and of course it is carried out for awarding much / more higher responsibility to such employee, therefore, while granting promotion to an employee, a broad-based assessment of the overall performance of such employee is required to be undertaken so that only competent, honest and efficient employees are promoted. It may be clarified that in the process of promotion many factors including qualification, experience, merit, seniority, conduct, suitability, fitness, discipline, integrity and of course the entries in the PER are taken into consideration. It may be clarified that the entries in the PER are made by the Reporting Officer and they are countersigned by another higher officer, whereas the process of promotion is undertaken by the Departmental Promotion Committee (DPC), therefore, both are entirely different departmental entities and as such while considering the case of promotion by a DPC, it is not only the entries in the PER which are to be taken into consideration but as stated hereinabove that other factors like qualification, experience, merit, seniority, conduct, suitability, fitness, discipline, integrity are also to

be taken into consideration and if an incumbent employee is found to have fulfilled the overall aforesaid requirements then he has to be considered for promotion. In view of the above, question No.II is answered in terms that adverse entries in the PER qua “unfitness for promotion” is not a penalty but the same is to be treated and considered as an opinion of the Reporting Officer and that an employee could not be denied promotion merely and solely on the ground that the Reporting Officer has recorded an opinion as “unfit for promotion” in the PER of that employee.

7.During the course of arguments, learned counsel for the appellant made reference to Section 4(2)(d) of The Civil Servants (Efficiency and Discipline) Rules, 2020 pertaining to the Federal Civil Servants and the relevant rules of all other Provinces including Section 4(1)(a)(ii) of The Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, which stipulates that withholding of promotion for a specific period is a penalty. The same being relevant are reproduced below:-

Section 4(2)(d) of The Civil Servants (Efficiency and Discipline) Rules, 2020 of the Federal Civil Servants

4.Penalties.-

(d)withholding of promotion for a specific period, subject to a maximum of three years, otherwise than for unfitness for promotion in accordance with the rules or orders pertaining to the service or post.

Section 4(1)(a)(ii) of The Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 4.Penalties.-

(a).............................................. (i)..............................................

(ii)with-holding, for a specific period, promotion or increment, subject to a maximum of three years, otherwise than for unfitness for promotion or financial advancement, in accordance with the rules or orders pertaining to the service or post:

In view of the above, there is no cavil that withholding of promotion for a specific period of more than three years is a penalty what to speak of for an indefinite period and as such if despite fully eligible the case of promotion of an employee is withheld then such withholding of promotion process is to be treated as a penalty, however, as

stated hereinabove that recording any adverse remarks in the PER is not a penalty but once any adverse remarks including remarks of “unfitness for promotion” is solely and exclusively considered and given weight by the Departmental Promotion Committee / Competent Authority for refusal of promotion then that withholding of promotion even if made on the basis of entries in the PER would turn out to be a penalty.

8.It may be clarified that in some cases, we have noted that promotion are not expressly denied, however, the promotion cases are deferred, therefore, it is further clarified that if deferment has been made due to some temporary deficiency(s) which are likely to be removed in near future then the same is not to be treated as a penalty, however, if such deferment assumed the status of a permanent refusal keeping in view the particular facts and circumstances of each case then a deferment for an indefinite period too could be considered as refusal for promotion especially if the process of promotion of junior of the incumbent employee has been initiated.

9.During the course of arguments, learned counsel for the appellant relied upon the three judgments of this Tribunal rendered in S.A No. 95 of 2011 titled “Zahid Mehmood .vs. Registrar, PHC”, S.A No. 10 of 2011 titled “Muhammad Arif .vs. Registrar, PHC” and S.A 68 of 2011 titled “Muhammad Zeb Khan .vs. Registrar, PHC” and stated that in the aforesaid cases, it has been held that withholding of promotion is a punishment when such withholding is based on entries in the PER, whereas the learned counsel representing the respondent was of the view that, since in those cases the legality or otherwise of entries in the PERs of members of the District Judiciary were under consideration, therefore, any finding regarding their entitlement to promotion or otherwise, or treating such entries as a punishment in that context was not a fact in issue and as such, any observation recorded therein by treating entries in the PER as “unfit for promotion” as a penalty was not warranted.

10.We without being prejudice from the observation of this Tribunal made in the aforesaid cases are of the firm view that opinion of the

Reporting Officer / Countersigning Authority in the PER qua “unfitness for promotion” by itself could not be treated as a penalty as it is merely an opinion of the concerned Reporting Officer, however, if such opinion is exclusively considered by the DPC / Authority as a tool for refusal of promotion then such entries would assume the status of penalty and in such eventuality, we are further of the firm opinion that a penalty could not be awarded without providing an opportunity of hearing to the incumbent employee.

11.In view of the above discussion and exposition of law on the subject, we hold and declare that:-

i. Before recording adverse entries in the PER/ACR, the Reporting Officer is not required to provide an opportunity of hearing to the incumbent employee, however, before recording any adverse remarks he is statutorily bound to resort to all curative and remedial measures including counseling, warning etc. and then in this regard to record its opinion in the PER in good faith and with full application of mind

and sense of responsibility and the countersigning authority is also bound to make a fair assessment of the entries of the Reporting Officer made in the PERs and to form an independent opinion.

ii. Adverse entries in the PER including “unfitness for promotion” is not by itself a penalty rather it is an opinion of the Reporting Officer and the same can neither be termed nor treated as penalty, however, if such entries in the PER are taken and considered by the DPC / Competent Authority as an exclusive tool for withholding / refusal of promotion then it will assume the status of a penalty and then in such eventuality, the DPC / Competent Authority before making any decision shall be obligated to provide an opportunity of hearing to such employee.

12.The office is directed to place the copy of this judgment on the files of the connected Service Appeals and also to place this and connected

appeals before the Division Bench of this Tribunal for their decision on merits, on a date to be fixed by the office. Order accordingly.

Announced on;

17.01.2026 Sd/

CHAIRMAN

Sd/

M EM BE R

Sd/

M EM BE R

(Larger Bench) Hon’ble Mr. Justice Muhammad Ijaz Khan Hon’ble Ms. Justice Farah Jamshed Hon’ble Mr. Justice Sadiq Ali

Noor Shah