1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).- This service appeal has arisen in the following circumstances :- "(1) Munshi Mir Zaman Khan appellant was an employee of the Revenue Department of A. K.
2. Government and was posted as Patwari in B seat (Halqa) Chur of Tehsil Bagh, District Poonch when lie was retired from service with effect from 16th November 1976 by the Collector of the District vide his order dated 15-I 1-1976 (copy Annexure 'A' on the ground that he had attained the age of superan--nuation by holding that the date of birth of appellant originally entered in his service book was November 1921, but the same has been tampered with so as to change it into November 1923. The appellant went in appeal against the order of his retirement by the Collector but to no success as the same was dismissed by the Commissioner vide his order dated 21-2-1977 (copy Annexure E) who was also of the opinion that the date 'of birth as recorded in the service book of the appellant was in fact November 1921, which has been tampered with so as to make it appear November 1923.
(2) Aggrieved by the above-stated orders of the respondents the appellant has come up in appeal before this Tribunal under section 4 of the Azad Kashmir Service Tribunal Act, 1976.
(3) The appellant in his memorandum of appeal has taken the stand that his actual date of birth is 15th Maghar 1982 B. K. Corresponding to 27th November 1925 A. D. Which is duly supported by the School leaving certificates for Primary School Dhal Qazian and Middle School Mallot (copies Annexures 'B' 'C' respectively with the appeal) but the same have not been taken into consideration and given due weight by the respondents who have wrongly and without any justification held that the actual date of birth of the appellant is November 1921 and that the entry in this respect in the service book bad been tampered with. On the basis of the above contention he has pleaded that the terms and conditions of his service have been violated inasmuch as he has been retired from service, prematurely before attaining the age of superannuation which was fixed at 55 years. The respondents have contested the appeal and put in written objections. They have taken the plea that the appellant has rightly been retired on the completion of 55 years of age on the basis of the date of birth recorded on his information in his service book as November 1921 which has been tampered with by overwriting with different ink the figures of 1923 on the original figures of 1921 of the year of birth of the appellant which is still visible to the naked eye.
(4) The appellant got his statement recorded as his own witness and also placed on record the original Mallot Middle School certificate Exh. P. A. Syed Mushtaq Hussain, Senior Clerk, Revenue Commis--sioner's Office, Muzaffarabad was examined as witness on behalf of the respondents who produced the relevant service record of the appellant for examination and also placed on file the copy of seniority list Exh. R. A. The copy of service book Exh. R. E. And the copy of the Register Amala field Tehsil Bagh Exh. R.C.
3. We have beard the learned counsel for the parties and have also carefully pursued the file and the relevant service record of the appellant. The learned counsel for the appellant has contended that the actual date of birth of the appellant is 27th November 1925 and in support of his contention he referred to School leaving certificates of Primary School, Dhal Qazian and Middle School, Mallot produced by the appellant in which his date of birth is shown to be 15th 1982 and Maghar 27th November 1925 A. D. Respectively. It was also argued that in the service book the date of birth of the appellant was recorded as November 1925 but the same has been altered to November 1923 by tampering with the original entry. On the basis of above contention the learned counsel for the appellant, has argued that appellant having been born on 27th November 1925 as is shown in School Certificates referred to above was due to retire from service with effect from 27th November 1925 on reaching the age of 60 years now fixed for the retirement of Government servants on superannuation pension under the relevant rules and that in any case not before 16th November 1983 even if his is calculated on the basis of an entry in his service book which is November 1923 and not November 1921 as has without reasonable ground and basis been wrongly held by the respondents in their impugned orders resulting in the unlawful retirement of the appellant much before his attaining the age of superannuation fixed under the relevant rules. In reply the learned counsel for the respondents has contended that the date of birth of the appellant originally recorded in his service book is November 1921, but the same has been tampered with in respect of the year of the birth so as to make it appear 1923 instead of 1921. He has further contended that even beneath the overwriting done on the figures of year of birth of the appellant in his- service book the original figure of 1921 is still visible, and that the fact of November 1921 having been entered in as the date of birth of the appellant in his service book finds further support from the entries of the other official record prepared and kept by the office of the Deputy Commissioner, Poonch such as Register Amalnama of Field Staff Bagh and seniority list of Patwaris of District Poonch. In this respect he has referred to the entries of the Register of Amalnama of field Staff Bagh and seniority list of Patwaris of Poonch District, copies of which are Exhs. R.A. And R. C. Respectively and in which the date of birth of the appellant is shown to be November 1921. According to him the particulars of an employee of the Revenue Depart--ment in the official record of the District Poonch are recorded on 'the basis of the entries in his service book and as such date of birth of the appellant recorded in the Register Amalnama of field staff and the seniority list of Patwaris referred to above go to prove without any reasonable doubt that November 1921 was recorded as the date of birth of --appellant in his service book.
4. It is a common ground between the parties that the original date birth recorded in the service book of the appellant at the time of his entry into Government service has been tampered with. In this regard the plea of the appellant as is borne out from his statement before the Tribunal and his memorandum of appeal filed against - the impugned order of this Collector to the Commissioner (copy Annexure 'D' with the appeal) is that he got recorded November 1925 as his date of birth in his service book but the year of his birth has been changed to 1923 by some official the District office by tampering with the original entry. Similarly the stand taken by the respondents in this respect is that on the basis of information supplied by the appellant at the time of his entry into service his date of birth was recorded as November 1921 but the figure of 1923 has beg. Over written on the original figure of 1921 with a view to providing extension in tenure of his service. In view of the above stated conten--tions of the parties regarding the entry of the date of birth of the appellant recorded in his service book the only question which requires determination for the disposal of this appeal is as to what was the date of birth of the appellant originally entered in his service book at the time of his entry into Government service as on answer to that question will depend the determination of the date of the retirement of the appellant.
5. After careful consideration of the arguments addressed at the bar by the learned counsel for the parties in this respect and also going through the relevant service record of the appellant the conclusion to which we have come is that the original date of birth recorded on the basis of information supplied by the appellant at the time of his entry into the service in his service book was November 1921 and neither November 1925 as claimed by the appellant nor November 1923 as the changed entry would make it look. First of all it will be appropriate to refer to and discuss the entries regarding the particulars of the appellant in his service book with a view to determining the original entry of his date of birth. On page 1 of the service book of the appellant kept by the Deputy Commissioner's office the particulars of the appellant are recorded which up to Serial No. 8 are written with one and the same ink but entry against Serial No. 5 pertaining to date of birth has been overwritten to the extent of figures 1923 with another ink. This overwriting clearly appears to have been done with a thicker ink of different colour than that of the original entries. But on close look on the entry of date of birth the original figures of the year of birth are quite visible beneath the overwriting which can be easily read without any difficulty as 1921. The figure of 1 of the original entry of the figures of year is so prominent under the changed figure that it leaves no doubt that figures of date of birth are 1921 and that an abortive and unsuccessful attempt has been made to tamper with the original entry of the year 1921 to change it into 1923, obviously to favour the appellant inasmuch as it would have prolonged his period of service by two years. The fact that the November 1921 was recorded as the date of birth of the appellant in his service book is further corroborated by entries in this regard in other official record as well as by the conduct of the appellant. In register Amalnama of field staff of Poonch District prepared and kept by the office of the Collector, Poonch the service particulars of the appellant are recorded on page 58 copy of which is Exh. R. C. And in which the date of birth of the appellant is shown to be November 1921.
6. Similarly in the seniority list of Patwaris of Poonch District for the year commencing from 1-7-1971 to 30-6-1972, copy of which is Exh. R. A., the appellant's date of birth is also recorded as November 1921. The appellant has signed the page one of his service book on two places which means that he has verified the correctness of the particulars recorded in his service book soon after his entry into the Government service. In other words he has admitted his date of birth as November 1921 which as stated above, was recorded in his service book at the time of his entry into the Government service. The appellant's contention that his date of birth is 15th Maghar 1982 B. K. Which comes to 27th November 1925 A. D. Does not find any support either from his service record or from the evidence produced 6y him in this regard. In proof of his age the appellant in his memorandum of appeal as well as in his statement before the Tribunal and his learned counsel in his arguments had laid much stress on the school leaving certificates issued by the teacher of the private primary school, Dhall Qazian and the Headmaster of Government Middle School, Mallot. The certificate of the teacher of school Dhall Qazian is on page 121 of the personal file of the appellant. The certificate is not on a form usually prescribed for the school leaving certificates and is given on a plain paper not even bearing the stamp or seal of the school. So in the first place it is doubtful that this is a school leaving certificate containing the age of the appellant and duly issued by the authorised person but in case it is presumed to be so even then it is not admissible in evidence. The entry of a date of birth of a person in school leaving certificate is admissible in evidence under section 35, Evidence Act if it is based on the entries of an official register or record of the school made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by the law. But entries in admission register kept by the private schools can neither be considered entries made by a public servant in the discharge of his official duties nor these registers are kept in the performance of a duty especially enjoined by the law of the country within the meaning of section 35, Evidence Act. In view of this legal position the certificate of teacher of school, Dhall Qazian cannot be admitted in evidence in proof of the age of the appellant. This certificate at the most can be deemed to be a statement of one Sher Muhammad about the age of the appellant. Its mere production is not an evidence of the facts stated therein unless it is duly proved to have been written by a person alleged to have written it by examining him or in case he is dead by calling and examining a person who is acquainted with his handwriting or signature. This certificate has not been proved to have been written by Sher Muhammad teacher of private School, Dhall Qazian who is stated to be dead by the appellant in his statement before the Tribunal by calling someone who is acquainted with his handwriting or signature. This certificate cannot be thus taken into consideration in proof of the age of the appellant for the simple reason that it is not properly proved. Even if it is presumed to have been written by its writer it has no evidentiary value as there is nothing on the record to show that its writer had special means of knowledge about the date of birth of the appellant. Similarly an entry about the date of birth of the appellant in the school leaving certificate issued by the Headmaster of Government Middle School, Mallot is not admissible in evidence in proof of the age of the appellant as the same was recorded on the basis of the information supplied by the appellant not only long after his joining the Government service but also after a controversy over his date of birth had arisen. The contents of this certificate are to the effect that the appellant appeared in the Middle School standard examination held by Middle School, Mallot in 1966 as private candidate and passed the same, and that his date of birth is 27th November 1925. The date of birth recorded in this certificate is obviously based on the entry in the school register made on the basis of a declaration of the appellant in 1966 whereas according to his own statement an entry regarding his date of birth in his service book had come under dispute in 1964. The entry about the date of birth of the appellant in the school leaving certificate of Mallot Government Middle School based on the declaration of the appellant made in his own favour after his age had come into question, therefore, is not admissible and cannot be used in evidence in proof of his age.
7. For the reasons stated above the Collector and Commissioner have rightly ignored and disregarded the school leaving certificates produced by the appellant and acted upon the entries of his service book regarding his age for retirement purposes. The entries in the service book of a Government servant are admissible in evidence under section 35 Evidence Act as the same are made by a public servant in the discharge of his official duty. The maintenance of service book of a Government servant is mandatory under the service rules in force in Azad Kashmir. The non- gazetted officer is required to keep up a service book under article 235, K. S. R., Vol. I in which every stop in this official life in minute detail is recorded and which is supplied to him on his first appointment at his own cost and is kept in the custody of the Head of the office under whose signature the monthly pay bill of the establishment is paid from the treasury under Article 266, K, S. R., Vol. I. Similarly Article 267 of the K. S. R. Enjoins on an officer to see that his service book is kept up and that all corrections in it are properly attested. As the particulars of an officer are entered in his service book on the basis of the informa--tion supplied by him at the time of his entry into Government service the date of his birth entered therein is very much substantive and reliable evidence of his age and should be considered as conclusive I o the absence of more convincing and irrefutable evidence to the contrary. In this appeal it is the case of the appellant himself that he got his date of birth recorded in his service book at the time of his entry into Govern--ment service. On the facts and circumstances of the case the date of birth entered in his service book on his own declaration and whose correctness is also not otherwise rebutted by any reliable evidence is conclusive proof of the age of the appellant and should form the sole basis for determination of his date of retirement on superannuation pension. As already held the date of birth originally recorded in his service book being November 1921 the appellant retirement fell due on 16th November 1976 on comple--tion of age of 55 years fixed for superannuation pension at the relevant time and as such impugned orders have validly been made which do not admit of any interference.
8. For the foregoing reasons we see no force in this appeal which is accordingly dismissed with no order as to costs.
9. KH. ABDUS SAMAD, MEMBER.-I agree.