' NUR AHMAD SHAH (MEMBER-H).---This is an appeal under section 4 of the Sindh Service Tribunal Act, 1973. The facts are: The appellant joined the Siridh Agriculture University (SAU), Tando Jam as Research Investigator in 1974. Promoted as Assistant Engineer in 1975, he remained as such till his appointment as Lecturer (BS-17) in the same University on 5-3-1981. He became Assistant Professor in 1987 and was along with others upgraded as Associate Professor (BS-19) in 1996. He refused, so he says, to oblige the respondent No.3 (V.C., SAU) to seek premature retirement so that the latter could get his son promoted as Associate Professor in his place. This, he continues, annoyed the Vice-Chancellor. On 21-6-2001, the appellant was served with a notice for retirement w.e.f. 21-7- 2002 on his attaining superannuation. His plea for seeking rectification in the date of his birth which, according to him, was 22-7-1948, was rejected. His review application before the University Syndicate did not bear fruit. Resultantly he was retired on 21-7-2002. Against this, he went in appeal before the Chancellor SAU but it remained undecided within 90 days which gave him a cause for the present appeal. The respondents in their written statement, accuse the appellant with suppression of material facts besides interpolation and forgery in the date of his birth and state that the appeal is an attempt, on his part, to circumvent criminal proceedings pending against him with the Anti-Corruption Establishment (ACE).
2. Heard Mr. Abdul Sattar Mughal for the appellant and Syed Haroon Rashid for the respondents.
Both the counsel have reiterated their position in the memo. Of appeal and the written statement respectively. Perused the record.
3. The respondents have questioned the maintainability of the appeal on the ground that the appellant has had his claims against the. University cleared and paid. This, they maintain, should close the chapter. The appellant was served with notice for retirement on 21-6-2001. He challenged it on 7-7-2001 and kept on pursuing the matter with the University authorities. When, however, he failed to get the relief he, on the eve of the expiry of retirement notice viz on 20-6-2002 and again on 18-7-2002, moved the University authorities for the clearance of his claims. This could not and should not estop him from agitating against what, he felt, was his unjust retirement. The appeal is, therefore, quite in order.
4. The respondent's other objection to the appeal is that rectification of change of date of birth after two years of an employee's joining the service is not admissible under rule No.171 of Sindh Civil Services Rule Manual Volumes I and II. The rule is reproduced below: "Officers competent to alter dates of birth should see that no change in the date of birth which will be to the advantage of the Government servant concerned is allowed unless an application in that behalf is made by the Government servant concerned within two years of the date on which his service book was opened under Sindh Civil Services rule 167. All cases in which applications are made after the period of two years referred to above should be submitted to Government for orders. The date of birth is to be verified with reference to documentary evidence and a certificate is to be recorded to that effect stating the nature of the document relied on as required under rule
171. A change in the date of birth should not, therefore, be allowed on the evidence which could be available to a Government servant when he entered Government service and his date of birth was recorded in the service book".
' As evidenced in its plain reading, the said rule does not preclude a change in a civil servant's date of birth beyond two years of his induction in service. It merely defines the competence of officers dealing with the matters relating to the alteration in the employee's date of birth. It is, however, not the case of the invocation of the said rule inasmuch as there is no initiative or request from the appellant for seeking alteration in the date of his birth. It was only when he was served with the notice for retirement that he intimated the University authorities about what he claimed as his correct date of birth. The rejection of his plea led to this appeal.
5. The crux of the matter is the appellant's actual date of birth. The safest evidence for determining date of birth is an entry in the Municipal or Village Council record or a certificate issued by one's Primary School. None of these documents is available in the instant case. For an employee, like the appellant, an equally important document for age is his seniority list. The appellant is on the teaching staff of the Agriculture University, Tando Jam since 1974 but, strangely enough, no seniority list is available on the record. Even the respondents have failed to produce it along with their written statement or during the course of arguments. The appellant has produced two papers which he claims to be from the seniority list and which indicate his date of birth as 22-7-1948.
These papers are neither titled nor signed, nor even dated and so, cannot be relied upon.
6. Another source of age manifestation could be the certificate of the appellant's passing the Matriculation Examination. Here the difficulty arises from the existence of the two certificates issued in the name of the appellant by the Board of Intermediate and Secondary Education, Hyderabad.
One bearing No.5767 from Book No.58 issued on 3-8-1966 gives his date of birth as 22-7-1942. The other which is marked duplicated bearing No.12838 from Book No.129 issued on 9-8-1966 gives the date as 22-7-1948. It is not understood as to why the Board issued two certificates indicating different dates of birth in less than a week. It, however, owns both the certificates.
7. It is an admitted position that the appellant was initially appointed in the Research Project in 1974 in the Agriculture College, Tando Jam before it was upgraded to the University. He was subsequently appointed as Lecturer in the Agriculture University in March, 1981 and then selected as Assistant Professor (BS-18) in the same University in November, 1987. In his application for the post of Lecturer in January, 1981 he indicated his date of birth as 22-7-1948. The respondents have neither accepted nor denied this application. They have, however, come out with another application fOr the same post purportedly received by them from the appellant on 18-8-1973. The application, it would be important to mention, is addressed to the Principal Agriculture College, Tando Jam meaning thereby that the University had not, till then, come into being. The appellant even according to the respondents, was appointed as Lecturer in March, 1981. Thus, the application dated as it is 18-8-1973 cannot be linked with his appointment as Lecturer in 1981.
8. There is no mention of his- birth date in the appellant's above application. The Secondary School Certificate which is said to have accompanied the application shows it as 22-7-1942. The certificate is not in the prescribed format. It is simply a typed version which is attested but the date of attestation is not legible. Besides, as mentioned earlier, we have on record another Secondary School Certificate issued in the name of the appellant by the same Board showing him to have been born on 22-7-1948. There is, thus, a question mark against 22-7-1942 as the appellant's birth date.
9. The appellant was appointed Assistant Professor in November, 1987. He has not produced a copy of his application for the said post. The one produced by the respondents show the appellant to have been born on 22-7-1942. It is, typed and is not signed by the appellant and so not much credence can be given to it.
10. One of the grounds for serving the appellant with the notice of retirement is the respondent's reliance on his application for the post of Associate Professor. He made the application on 4-8- 1990 and mentioned 22-7-1948 as his birth date. The respondents have also produced a copy of his application dated 4-8-1990 and the date of his birth indicated in it is 22-7-1942. In fact the two applications are not the exact copies of each other. Written in different hands the applications are ridden with discrepancies in material entries. The appellant submitted another application for the same post of Associate Professor in 1995 and in that, too, he gave 22-7-1948 as the date of his birth.
11. It is the case of the respondents that in his ACRs for the year 1983, 1984, 1985, 1986, 1987, 1988 and 1989, the appellant has given the date of his birth as 22-7-1942. We had called for the said ACRs in original. On examination, the entries relating to the date of birth were found to be tampered with.
An ink removing fluid seems to have been used. The respondent's plea that the date of birth was highlighted for the purpose of enquiry for fraud against the appellant for which they had referred the matter to the Anti-Corruption Establishment (ACE) seems to be untenable. There is no indication of the use of highlighter. This suggests the interpolation of age by scrubbing the original entries.
12. The other ground for serving the appellant with the notice for retirement is a. Certificate issued to him by the Pakistan Engineering Council (PEC). The Council first registered the appellant on 22-1- 19.87 and issued a Certificate No.26724 to this effect, and in it the date of his birth was given as 22- 7-1942. On his request on 27-'5=2002, the Council issued him a duplicate Registration Certificate No.79429 altering his date of birth to 22-7-1948. In its letter to the Deputy Registrar Agriculture University Tando Jam, the Council explained that the birth date was changed on the basis of documentary evidence produced by the appellant.
'13. The old National Identity Card Number (NICN) reflects a card holder's year of birth. The appellant's NIC shows it as 48 in the appropriate space. This substantiates his contention that he was born in 1948. This, in fact, is the year shown in the NICN given in all the appellant's documents produced by the respondents.
14. The applicant passed the Matriculation Examination in 1964 and did B.Sc (Hones) in 1969. If his date of birth is taken as July, 1942, he would matriculate at the age of 22 and graduate when 27. At the date of birth in July, 1948, He would clear matriculation at the age of 16 and graduation at 21 which is normal and therefore, more plausible.
15. The respondents and the appellant have come out with counter-documentary evidence in support of their contentions.' The University authorities charged the appellant to have tampered with the documents relating to his age. They referred the matter to the Police and the ACE, Hyderabad recommending' prosecution against the appellant for fraud and forgery.
16. On queries from the University authorities and the ACE Hyderabad, the Board of Intermediate and Secondary Education, Hyderabad, in its separate communications No.BISE/SECRET/PC-1020 dated 29-3-2001 and No.BISE/SECRET/PC-1530 dated 23-7-2001 to the University, and No.BISE/SECRET/PC-10 to the ACE, confirmed 22-7-1948 as a correct date of appellant's birth. The birth certificate No.001628 issued by the Board in November, 1997 also gives 22-7-1948 as the date in question. This should have clinched the issue. The ACE, Hyderabad in fact, cleared the appellant of any criminal liability.
17. A preponderance of documentary and circumstantial evidence discussed above supports the appellant's claim that the actual date of his birth is 22-7-1948: We are, thus, constrained to hold that the appellant's correct date of birth is twenty second July one thousand, nine hundred forty eight (22-7-1948). The appeal is, thus, allowed. The impugned order dated 5-7-2002 is set aside.