' GHULAM RABBANI, J.--- This petition for leave to appeal is directed against the judgment, dated 10-10-2006 passed by Sindh Subordinate Judiciary Service Tribunal, High Court of Sindh, Karachi, whereby the appeal of respondent No,1 relating to correction in date of his birth was allowed and the concerned authority was required to make necessary entry in his service record.
2. Relevant facts of the case are that respondent No,1, Arjun Ram K. Talreja, a Judicial Officer, now, of the rank of District and Sessions Judge in BPS-20 in the Province of Sindh, made a request for correction in his service record by changing the date of his birth from 24-12-1946 to 4-11-1948. His request, on being referred to by High Court of Sindh, was acceded to by the Competent Authority vide Notification No,S-Jud1.3-21/92/246, dated 16-10-1995 issued by Secretary to Government of Sindh, Law Department. Respondent No,1, therefore, approached learned High Court of Sindh, for giving effect to the above orders. However, his request was turned down vide letter No,Gaz/IV.J.279(I), dated 9-7-1997 of Registrar, High Court of Sindh, intimating him that his request was considered in the meeting of Administrative Committee of High Court of Sindh, the petitioner No,1 herein, held on 29-3-1997 and the same was filed having no merit. Respondent No,1, therefore, made a representation, which remained pending and in the meantime, Notification, dated 16-10- 1995 regarding correction of date of his birth was withdrawn, purportedly, on a request of the Registrar of High Court pursuant to the above order of petitioner No,
1. A representation thereagainst filed by respondent No,1 was declined. Feeling aggrieved, respondent No,1 preferred before Sindh Subordinate Judiciary Service Tribunal, High Court of Sindh, Karachi, the Service Appeal which was allowed vide judgment, impugned herein.
3. Mr. Muhammad Rafique Rajourvi, learned Additional Advocate-General contended that the date of birth once recorded in the service documents could not be changed or altered, therefore, orders permitting such change in the service record of respondent No,1 were neither proper nor legal. In support he placed reliance on rule 171 of Chapter 10 of the Sindh Service Rules Manual (Revised Edition, 2000). Mr. Rajourvi contended further that the petitioner No,1, the Administrative Committee, High Court of Sindh, was right in holding that there was no merit in the request of respondent No,1 for correction of date of his birth, moreso, when the request was made after a decade. Learned Additional Advocate-General urged that the Notification, dated 16-10-1995 was rightly withdrawn whereas the impugned judgment was not sustainable being against facts and law.
4. On the other hand, Mr. Awan, learned counsel for respondent No,1 took the stand that actual date of birth of respondent No,1 viz. 4-11-1948 was recorded in the relevant register of Municipal Committee Rohri, but, it was mistakenly written in School Registers on account of illiteracy of his parents and as soon as respondent No,1 realised the mistake, he approached concerned authorities, pursued the matter diligently and vigorously which resulted in necessary correction in School Register on the basis of report of Medical Superintendent and the orders of concerned authorities in Education Department, much before he entered into Government service in 1974.
According to Mr. Awan, the Chief Minister, Government of Sindh, being the Competent Authority, had accorded approval to change of date of birth of respondent No,1, therefore, neither Administrative Committee of High Court of Sindh, could decline to change the entry in service record, moreso, without assigning any reasons and without hearing respondent No,1, as was done in his case, nor the standing orders of change of date of birth could have been withdrawn by Secretary to Government of Sindh condemning respondent No,1, unheard. Mr. Awan supported the impugned judgment and in that placed reliance on a host of documents in support of his oral submissions.
5. In the first place, we wish to attend to the contention of Mr. Rajourvi that a date of birth once recorded in the service documents could not be altered or changed as was done in this case. In order to do that, we have gone through rule 171 (ibid) which, inter alia, relates to the recording of entry of date of birth of Government servant. This rule is supplemented by instructions and the same are reproduced as follows:--
171. In the service book every step in a Government servant's official life including temporary and officiating promotions of all kinds, increments and transfer, and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to department orders, pay bills, and leave statements, and attested by the head of the office. If the Government servant is himself the head of an office, the attestation should be made by his immediate superior, officiating and temporary service and leave taken prior to first substantive appointment to a permanent post should also be recorded in the service book and duly attested after verification.
The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on: ' Provided that in the case of inferior Government servants, if documentary evidence is not available, the age should be determined by the Appointing Authority with reference to the statements of respectable persons, medical opinion, etc., and any other evidence he may think proper to take.
' In the case of a Government servant, the year of whose birth is known but not the date, the 1st July should be treated as the date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth.
' In the case of a Government servant who is only able- to state his approximate age, and who appears to the attesting authority to be of that age, the date of birth should be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. When the date, month, and year of birth of a Government servant, are not known, and he is unable to state his approximate age, or when the Appointing Authority does not accept the age stated by the Government servant, the age by appearance as stated in the medical certificate of fitness. In the form prescribed in Rule II should be taken as correct, he being assumed to have completed that age on the date of the certificate is given, and his date of birth deduced accordingly.
When once an entry of age or date of birth has been made in a service book, no alteration of the entry should afterwards be allowed, unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book which are obviously clerical. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a Competent Authority.
' Finger prints of the Government servants should be recorded in the column headed "Personal marks of identification" in the service book itself. The impressions should not be taken on separate slips of paper and pasted to the service book.
Exception.--- When a military employee is transferred to a civil department and assumes a civilian status or when a military employee discharged from the army without earning a pension is employed in a post in a civil department in which his military service counts towards pension, the date of birth to be entered in his service book or roll shall be either that entered by the Military authorities in his form of attestation when he first joined the army or, if at the time of attestation he stated only his approximate age the date arrived at the deducting the number of years representing his age from his date of attestation.
' Note.--- Cases in which prior to 28th September, 1938 the date of birth has been deduced by any other method, from the age at appointment or attestation, or cases in which Government have passed specific orders accepting a particular date of birth, need not be reopened.
Instructions.--- 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 Rules, 1967. 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." (Emphasis by us).
6. The first para. Of rule (underlined), reproduced above, reflects that the date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on. The above rule also reflects in its fourth para. That, "once an entry of age or date of birth has been made in a service book no alteration of the entry afterwards be allowed, unless it is known that the entry was due to want on the part of some person other than the individual in question or as an obvious clerical error. However, in the very para. Of the rule, it is provided, as is underlined, that, "cases in which the correctness of the original entry is questioned on other grounds should be referred to a Competent Authority. The supplementary instructions reproduced above, also reflect that all cases in which applications are made after a period of two years should be submitted to Government for orders. Thus, in our opinion, it is not an absolute rule that once an entry of date of birth has been made it cannot be altered or changed. The contention of Mr. Rajourvi is, therefore, not sustainable.
7. The other contention of Mr. Rajourvi was that the Administrative Committee of High Court of Sindh (petitioner No,1) was right in holding that there was no merit in the request for correction of date of birth, so was his contention that Notification, dated 16-10-1995 was rightly withdrawn. He emphasized that the impugned judgment was against the facts and law. To meet the above arguments, Mr. Awan learned counsel for respondent No,1, stated that the actual date of birth of respondent No,1 was 4-11-1948, which stood already recorded in the Municipal Register; and that on the basis of that record the School Registers were corrected under orders of authorities concerned in Education Department after taking into consideration medical report. He placed reliance on following documents:--
(i) Extract from Register of Births issued by Municipal Committee, Rohri, (place of his birth) on 26-5- 1969;
(ii) A certificate of Medical Superintendent, District Headquarters Hospital, Sukhar, dated 12-11-1970 certifying that from physical as well as X-Ray examination of respondent his age appeared to be 22-23 years;
(iii) A Letter bearing No,3/28922-24/72-73, dated 6-11-1972 of Directorate of Education, Hyderabad Region, Hyderabad notifying to the Inspector of Schools Khairpur about the change of date of birth ofrespondent from 24-12-1946 to 4-11-1948;
(iv) Copy of the general register of pupil attending Municipal High School, Rohri, showing correction of his date of birth from 24-12-1946 to 4-11-1948 on the directive of the Director of Education, Hyderabad;
(v) School Leaving Certificate, dated 13-12-1972 issued by the Headmaster, Government High School, Rohri showing 4-11-1948 as date of birth of respondent No,1;
(vi) Certificate issued by Board of Intermediate and Secondary Education, Hyderabad, Sindh, dated 6-7-1987 showing necessary correction in the date of birth of respondent i,e, from 24-12-1946 to 4- 11-1948;
(vii) Copy of National Identity Card of respondent No,1 issued on 15-12-1997 showing his date of birth as 4-11-1948 and
(viii) Copy of the Passport issued on 26-12-1997 showing 4-11-1948 as date of birth of respondent No, 1.
8. On evaluation of the above documents, learned Service Tribunal directed the concerned authority to make necessary correction in service record as requested by respondent No,
1. The relevant passage from the impugned order is reproduced as follows:-- "We have taken into consideration various aspects of the matter and perused the record. No doubt rule 171 of Chapter 10 of Sindh Service Rules requires for the correction of date of birth by the Government if such request is made within two years of the date on which his service book was opened but in the instant case it is established that due to some bona fide mistake date of birth was wrong and such declaration was made on the basis of date of birth reflected in the Matriculation Certificate.
However, School Leaving Certificate and register maintained by the school in normal course correction in the date of birth was made much before the appellant joined the service.
Furthermore, the birth certificate issued by the Municipal Authorities also confirms that the correct date of birth of the appellant was 4-11-1948. The Director of Education, Hyderabad, vide his order, dated 7-11-1972 made correction in the record about the date of birth of appellant and on the basis of the same, correction was made in the School General Register and fresh School Leaving Certificate was issued. Corrections in the General Register and fresh School Leaving Certificate were issued much before the joining the judicial service order for correction in the Intermediate and Secondary Education for issuance of duplicate Pucca Matriculation Certificate was passed on 6-7-1987 and duplicate certificate was issued on 2-3-1998.
' From the above facts it appears that at the time of joining the service, the appellant has declared his date of birth as appearing in the Matriculation Certificate and after receiving the duplicate copy showing correct date, for which he had applied much before the joining of service, made representative of the correction of the date of birth in his service book.
The authenticity of these documents has not been questioned by anyone and accordingly we are of the view that the appellant bonafidely declared his date of birth as reflected in the Matriculation Certificate and applied for necessary correction after obtaining certificates from various departments, school, Medical Board, etc., for necessary correction and merely became there is delay in applying for correction, the appellant cannot be denied for his right." (emphasis by us).
9. Nothing was said before us, as well, if the authenticity of above mentioned documents was doubted. Also, it was not the case of petitioners that respondent No,1 contemplated to have a wrong date of birth entered in his service record. It may be stated that in case of Government of Balochistan through their Secretary, S&GAD, Quetta v. M. Arjun Khan 2003 PLC (C.S.) 245=2003 SCMR 444 the change of date of birth in the service record was made after about 27 years. In that case, much credence was given to documents such as, the Municipal record, medical certificate issued by Medical Superintendent, District Headquarters Hospital, Sukhar, manifesting the age based upon Radiologist opinion, as is in the instant cases; and the School Teachers Certificates based on sworn affidavits of mother of incumbent. Such documents were considered as proof for determining the age. The relevant passage from the above decision is reproduced follows:- "Though he had to refer to the Matriculation Certificate for the competitive examination being the essential prerequisite which obviously enshrined, unchanged date of birth for which he cannot be penalised for the same being not the exclusive proof of date of birth and is to be read in conjunction with other allied material determining the same such as municipal record which in the respondent's case was non-existent being a remote pan of tribal area but was vouched by other documents such as School Teachers Certificate based upon sworn affidavit of the respondent's mother being the best evidence available having firsthand knowledge; Medical Certificate issued by the Medical Superintendent of the Hospital, manifesting his age based upon Radiologist and Dental Surgeon opinion."
' On facts, the case of respondent No,1 is better than the one in cited case.
10. In the light of submissions of Rajourvi, we have also given due attention to the contention of Mr. Awan, learned counsel for respondent No,1 that after the Chief Minister, Government of Sindh, being Competent Authority, had accorded approval to the change of date of birth of respondent No,1; the Administrative Committee of High Court of Sindh had not given effect to his decision. And without providing an opportunity to the respondent No,1 and without assigning any reason, declined to change the date of birth in his service record. Mr. Awan further contended that the respondent No,1 was also grieved since the Law Secretary, Government of Sindh, withdrew the previous notification in a casual manner. In this behalf, it may be stated that we have examined the record and find that respondent No,1 had, long back, made a request for correction of his date of birth and his representation was forwarded to concerned quarters by High Court. Subsequently, the Chief Minister, Government of Sindh, on a summary floated by Secretary to Government of Sindh, Law Department in consultation with Finance Division, had accorded approval to the correction of the date of birth in the service record of respondent No,
1. Pursuant to that, a notification was issued in the following terms:-- ' Government of Sindh, Law Department.
' Karachi the 16th October, 1995.. NOTIFICATION No, S .Judl . 3-21/92. The Competent Authority has pleased to approve the correction in the date of birth of Mr. Arjun Ram son of Khatan Mal Talreja, District and Sessions Judge, Karachi East as under:-- Read Instead 4th (Fourth) November, 24th (Twenty-fourth)
1948 (Nineteen Hundred December, 1946 (Nineteen forty-eight). Hundred forty-six).
The relevant record including service record of the said Mr. Arjun Ram K. Talreja, be amended accordingly. Abdur Rashid A. Shaikh, Law Secretary.
' No,S.Judl.-3-21/92/246 Karachi, dated the 16th October, 1995.
' After the above notification was issued, respondent No,1 made a request that necessary correction be made in his service record. The Administrative Committee of High Court of Sindh in its meeting held on 29-3-1997 declined his request and ordered that the same be filed having no merit. A letter was also written to the Secretary to Government of Sindh, Law Department by the Registrar of High Court of Sindh that the Notification, dated 16-10-1995, whereby correction in date of birth of respondent No,1 was made, be withdrawn. Accordingly, that was done vide another Notification, dated 12-2-1998.
11. We have gone through the extract of the minutes of the meeting of the Administrative Committee held on 29-3-1997, available on record following resolution was passed in the said meeting:-- "After discussion it was resolved that the Notification No,S.Jud1.3-21/92, dated 15-10-1995 cannot be acted upon, hence the representation of Mr. Arjun Ram K. Talreja has no merit and be filed."
12. Subsequently, on the basis of above Resolution, the Secretary to Government of Sindh Law Department, issued Notification No,S.Jud1.3-21/92-61, dated 12-12-1998 as follows:-- "Law Department's Notification No,S.Jud1.3-21/92/246, dated 16-10-1995 regarding change of date of birth in respect of Mr. Arjun Ram K. Talreja, District and Sessions Judge, presently Judge Small Causes Court, Karachi, is hereby withdrawn."
13. Although the above notification does not show that withdrawal of earlier notification took place on the directives of the Competent Authority; we do not wish to express ourselves on that since that question was not raised before us. It is, however, stated, with great respects, that we fail to understand as to what material influenced the mind of honourable members of the Administrative Committee to come to the decision that the representation of respondent No,1 had no merit. This is said simply because no apparent reason was assigned for such decision, particularly said, when the High Court had itself forwarded to competent autrhority the case of respondent No,
1. There is also nothing available on record to say that the respondent No,1 was heard at any stage of passing orders against him in these peculiar circumstances, we did not hesitate to agree with the findings of the learned Service Tribunal and dismissed this petition by our short order, dated 22-12-2006.
Leave was refused.
14. Above are the reasons for our short order announced in Court.