1. GHULAM MUSTAFA MUGHAL, J. --- Through this petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, the following relief is claimed:--- "It is, therefore, very humbly prayed that an appropriate writ in favour of petitioner against the respondents, may kindly be issued by directing the respondents to correct the date of birth of the petitioner in her service record according to her revised secondary school certificate. Any other relief for which the petitioner deemed as entitled to, may also be granted in the interest of justice."
2. Facts forming The background of the above-captioned petition are that petitioner, herein, passed her matriculation examination from the Board of Intermediate & Secondary Education, Peshawar, - wherein her date of birth was wrongly entered as 15.1.1950. As per her claim, the correct date of birth is 22.12.1953. She filed a suit for correction of her date of birth' against the said Board on the. Court of Senior Civil Judge, Mansehra, on 11.3.1990. After necessary proceedings, the suit was debreed on 8.12.1990. In pursuance of the judgment, a revised secondary school certificate was issued to the petitioner on 8.12.1990. Petitioner, herein, at that time was serving Assistant Professor in Government Degree College for Women, Muzaffarabad. She submitted an application to the department through her Principal for correction of her date of birth on 1.1.1991. The Principal of Government Degree for Women, Muzaffarabad, sent her application to the Director, Colleges on 12.1.1991, Another application was made on 10.6.2003 to the Director, Colleges for the same purpose. It appears that the Director, Colleges verified the certificate from the Board of Intermediate and Secondary Education, Peshawar. The said Board vide letter dated 25:5.2004 admitted that the date of birth of petitioner, herein, has been corrected as per decree passed by the Civil Judge, Mansehra. Now, the case of the petitioner is that she, time and again, requested the respondents for making necessary correction in her service record but no action has been taken in this regard by- them. It is alleged that respondents without any lawful authority and justification are not correcting her date of birth in the relevant record.
3. Respondents have contested the petition by filing written statement. It is alleged by them that grievance voiced through the instant petition relates to terms and conditions of the petitioner's service, therefore, jurisdiction of this Court is barred by Section 47 of the AJ&K Interim Constitution Act, 1974. It was further alleged that no correction even otherwise can be made after a period of 15 years and petition is barred by !Aches. It was also pleaded that date of birth entered by the petitioner in her service record is final and she was not entitled to any relief on the basis of acquiescence and estoppel.
4. Raja Muhammad Hanif Khan, the learned Advocate appearing for the petitioner, inter alia, argued that neither the request of the petitioner for correction of her date of birth in light of the revised certificate was turned down by the respondents nor any decision so far has been taken by them, therefore, petitioner has no alternative, except to invoke the extraordinary jurisdiction of this Court and to seek a direction for implementation of the judgment of the Civil Court. He argued that the Azad Jammu & Kashmir Service Tribunal is not vested with the authority to issue any direction, hence, the bar of jurisdiction is not attracted in the present case. The learned Advocate vehemently argued that it was enjoined upon the respondents to implement the decree of the Civil Court, which, has attained finality for having not been challenged by the respondents rather they acted upon it by verifying the same from the Peshawar Board. ,He - argued that even otherwise, the petitioner was entitled to a decision upon her application. In 'support of his submission, the learned Advocate placed reliance on, the following cases:
(1) Rafiq Ahmed Khan v. Secretary. To Government of Sindh, Food Department, Karachi & others [1987 PLC 171].
(2) Muhammad Uris Khaskheli v. Sindh Agriculture University and 2 others [2005 PLC (C.S.) 298] Muhammad Nawaz Khan v. Chief Engineer (Admn.) WAPDA, Lahore & 2 others (1995 PLC (C.S.).603).
(4) Union of India v. C. Rama ,Swamy and others [Civil Appeal No. 12087 of 1996, decided on 9.4.1997 AIR 1997 SC 2055].
5. Syed Tayyab Gillani, the learned Advocate for the respondents, while controverting the arguments, submitted that the petitioner herself entered her date of birth as 15.1.1950 at the time of her induction in service and she has to retired after a period of 1 year, therefore, now cannot raise inconsistent plea that her date of birth entered at the time of induction in the service was not correct. He added that the 'date of birth entered by a civil servant at the time'of induction is final and no amendment or change can be made by an -employee at a later stage. In this regard the learned Advocate referred to and relied upon Civil Appeal No. 29/1999 titled "Professor Dr. Khawaja Muhammad Aslam v. 'Professor Dr. Abdul Rauf Khan & others" decided on 5.11.1999:- The learned Advocate further submitted that the respondents were not a party before the Civil Judge, Mansehra, hence, are not bound by the ex parte judgment. The learned Advocate contended that the controversy agitated through the instant petition relates to the terms and conditions of the service of the petitioner', therefore, the' jurisdiction of this Court is ousted in view of the bar contained in Section 47 of AJ&K Interim Constitution Act 1974. He argued that decision on the application filed by the petitioner, herein, stood conveyed to her who has not availed the right of appeal at a proper time and now this petition is not entertainable. He argued that if, for the sake of arguments, it is assumed that the correct date of birth of the petitioner, herein, is 22.12.1953,. Then she did her matriculation at the age of 13 years which is impossible. He placed reliance on the following cases:---
(1) Director of Technical Education and another v.
6. Smt. K. Sitadevi [AIR 1991 SC 3081,
(2) Government of the Punjab v. Prof. Mrs. Jamida Malik [1999 SCMR 861],
(3) Ghulam Sarwar v. Chairman, C.T.T. Board (Chairman PTCL), Islamabad and another [1999 SCMR-1544],
(4) Professor Dr. Khawaja Muhammad Aslam v. Professor Dr. Abdul Rauf Khan and others [Civil Appeal No. 29/1999, decided on 5.11.1999].
7. So far as the first contention of Raja Muhammad Hanif Khan, the _learned Advocate for the petitioner that respondents, herein, 'have not taken any decision upon the representation of the petitioner moved for correction of her date of birth, is concerned,, that has a substance. Record reveals that after obtaining the judgment from the Civil Judge, Mansehra on 8.12,1990; revised Secondary ,School Certificate was issued in favour of the petitioner, herein. It appears that the petitioner moved to the, Principal for correction of the date of birth and her application was forwarded to the D.P.I., Colleges on 12.1.1991. Another application was moved by her to the D.P.I.
8. Colleges on 13.6.2003. It further reveals from the record that on 22.4.2004, the Director, Colleges wrote a letter to the Board of Intermediate and Secondary Education, Peshawar for verification of the revised Secondary School Certificate and the same was verified, by the said Board on 25.4.2004. Another application was also made by the petitioner, herein on 24.5.2007 to the Accountant General for the same purpose. The Accountant General's office directed the petitioner to approach the Government for correction. The case of the petitioner remained undecided, however, a letter, appended with the written statement, issued on 15.6.2004, by the Director Colleges reveals that he .Refused to correct the date of birth, relying on rule 67 of Financial Code. It was observed by him that date of birth entered at the time of induction by a. Civil servant is conclusive, therefore, no change can be .Made at this stage. Relying on this letter, Syed Muhammad Tayyab Gillani, vehemently, opposed the petition on the ground that the case of the petitioner stood concluded and the decision was conveyed to her, hence, it was enjoined upon her to avail the appropriate remedy within the prescribed period limitation. In estimation, this objection has no substance. Section 21 of the Civil Servants Act, 1976 confers the right of appeal/representation upon a civil servant in AJ&K. For carrying out the purpose of the aforesaid Act, the Government has framed the Appeal Rules, 1991. The Appeal Rules make it obligatory for authority to an appeal of a civil servant whenever, an adverse, order is challenged. After the disposal of-the appeal by the authority or its delegatee, the result is to be conveyed to the appellant, under Rule 7 of the Appeal Rules. Thus, a civil servant has a statutory right to have a decision on his/her appeal or representation, as the case may be. Maulana Ghulam Din's case [1998 SCR 194] can be referred in support of the proposition. The letter of the Director Colleges, mentioned hereinabove, does not reveal that the competent authority has decided The application of the petitioner, herein. Under the Appeal Rules, the Director was not vested with any authority to decide her appeal at his on, hence, this letter cannot be treated as the final order passed under the Appeal Rules, for the purpose of barring the jurisdiction of this Court.
9. So far as the prayer of the petitioner that the respondents may be directed to correct her date of birth in her service record according to the revised Secondary School Certificate, is concerned that is devoid of any force because the competent authority, so far has not passed any order on her application. It may be stated that at present there are three different dates of birth mentioned in the service record of the petitioner, herein i.e. 1948, 1950, 1953. The last date has been declared correct by the Civil Court and on the basis of which, the revised Secondary School Certificate has been issued. The Director Colleges has also verified the correctness of the revised Secondary School Certificate, therefore, it cannot be said that the petitioner, at present, has not a genuine claim to be attended and disposed of by the competent authority. It is correct that -sub-rule (2) of Rule 67 of the Financial Code, it is provided that declaration of age, made at the time of or for the purpose of entry into the Government service shall be deemed, absolutely conclusive and no revision of such a declaration should be allowed to be made at a later stage for any purpose, whatsoever. However, it is nowhere provided in these Rules that the Government is deprived of from making the necessary correction when a genuine claim is brought before An identical proposition arose for consideration before the apex Court of AJ&K in Ch. Muhammad Din Kausar's case [2004 PLC (CS) 897] and stood concluded as under:--- "6. So far as the contention of the learned counsel for the appellant that the date of birth of a Government Servant could be changed within a period of two years of his joining the service is concerned, no such rule has been shown to be in force in Azad Kashmir. The authority relied upon by the learned counsel for the appellant, referred to above, merely, says that a Government employee is debarred to seek the correction of his date of birth after the expiry of two years of joining his service. Obviously, the afore-said bar would apply to a civil servant or for that matter, in the instant case, to the appellant, herein, and not to the Government or respondents Nos.4 and 5 to question the correctness of the age of the appellant which was entered in his service record. So far as the decree of the Civil Court in favour of the appellant is concerned, the High Court has rightly held that the same was nullity because the Civil Courts of Azad Kashmir have not territorial jurisdiction to pass a decree against the Punjab University in the present case."
10. The question of jurisdiction raised by the respondents, therefore, has no merits because I have reached at the conclusion that at, present, the controversy relating to the correction of the date of birth is pending before the authority, which needs final determination this way or that way and the Service Tribunal has no jurisdiction to issue the writ of Mandamus. Similarly, the jurisdiction of Service Tribunal is conditional and could be exercised only if an adverse order is passed against a civil servant. This Court has the jurisdiction to issue a direction to a public functionary - compelling the same to perform a statutory duty as has been ruled in the following cases:---
(1) Mst. Zubaida Begum v. Azad Government of the State of jammu and Kashmir [1998 PLC (CS)
11. 292].
(2) Azad Jammu and Kashmir Government and others v. Syed Shakir Shah and others [2Q02 PLC
(CS) 821] "10. Writ of mandamus is issued to compel holder of public office to act in discharge of legal duty.
12. Such powers have been given to the High Court whidh it can exercise under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The writ jurisdiction available to the High Court in Azad Kashmir is no doubt a discretionary jurisdiction, which is to be exercised within the limits laid down by the Interim Constitution Act, 1974. This is clear from the opening words 'subject to this Act' used in Section 44 of the Interim Constitution Act. These Words definitely mean that prohibition contained in any other provisions of the Interim Constitution Act, 1974 like sub-section (2) of Section 47 of the Act shall not be violated by the High Court while exercising writ jurisdiction. Under Section 447 of the Interim Constitution Act, 1974 both Council and. Legislative Assembly of Azad Jammu and Kashmir have got jurisdictional competence to legislate for and establish one or more Administrative Tribunals or Courts in respect of matters to which their jurisdiction is recognized by the Constitution Act. The Service Tribunal in Azad Jammu and. Kashmir has been established in 1975. After the establishment of Service Tribunal the jurisdiction of ordinary Civil Courts including High Court have been excluded in respect of matter falling within the jurisdiction of Service Tribunal. The matters which have been given in the exclusive jurisdiction of the Service Tribunal have been clearly mentioned in the Azad Jammu and Kashmir Service Tribunals Act, 1975. However, any civil servant aggrieved by an order passed in respect pf terms and conditions of his service before 1st day of July, 1969 cannot avail the appellate jurisdiction of the Service Tribunal. From the reading of the Service Tribunal Act it becomes clear that Service Tribunal has not been vested with the powers to issue such directions to a person performing functions in connection with the affairs of Azad Jammu and Kashmir to do, which he is required by law to do, or refrain from doing that which is not permitted by law to do. Such direction can be issued by the High Court. Any provision of law which seeks to take away the jurisdiction of the High Court available to it under the Interim Constitution Act, 1974, in our view must be construed strictly. The jurisdiction of High Court can be taken away through some express provisions otherwise the presumption would be in favour of the jurisdiction of the High Court."
13. (Underlining are mine)
14. The rule of law laid down in the afore-stated cases makes it clear that the powers conferred on the Azad Jammu and Kashmir High Court through the Azad Jammu and Kashmir Interim Constitution Act, 1974 could be exercised, notwithstanding, the promulgation of the Azad Jammu and Kashmir Service Tribunals Act, 1975. The bar is attracted only when any matter which is triable by the Azad Jammu and Kashmir Service Tribunal, is brought before the High Court, otherwise, ouster of jurisdiction cannot be pleaded: So far as the authorities relied upon by the learned Advocates for the parties are concerned, those need not to be discussed because the judgments reported therein, have *been culminated from different facts. The only order which can be passed in the circumstances of the case is to direct the authority to decide the controversy relating to the date of birth of the petitioner;herein. I accordingly order. The parent department of the petitioner has filed written statement against her and has opposed the grant of petition, therefore, if the authority is unable to hear the case itself, then, some senior officer of any other department may be appointed for the purpose of hearing.
15. This part of the order is supported by the dictum of the Supreme Court laid down in Kh. Ahmed Din's case [1994 SCR 1421 Relevant portion is as under:--- "Taking into consideration on the overall circumstances of the case, we are of the opinion that the charges against the respondent regarding a piece of land over which a garage is alleged to have been constructed, the possession of the same and theft of related documents is subject-matter of the charges against the accused respondent Thus, an apprehension of Bias by the respondent in mind of the departmental authorities cannot be regarded to be unreasonable and baseless. The " departmantal authorities may act quiet independently and impartially while probing into the charges against the accused respondent but it cannot be said that an apprehension of bias by the accused is without any reasonable cause. Therefore, we are of the opinion that if the departmental authorities intend to proceed against the accused respondent in the matter, they may move the Government to appoint impartial persons as 'Authority' and 'Authorized Officer' who do not belong to the Forest Department, for holding fresh inquiry in the matter."
16. The petition stands disposed of in the manner indicated above. .