' SABIHUDDIN AHMED, J.--- This petition for leave to appeal arises out of the judgment of the Sindh Service Tribunal, dated 9-10-2007 whereby the petitioner's appeal against an order of the departmental authority, rejecting his plea for rectification of his date of birth, was dismissed.
2. The facts in brief appear to be that the petitioner joined Police Department as Assistant Sub- Inspector on 16-9-1968 and his date of birth in the service record was recorded as 20-9-1947. In due course of time he earned promotions and was serving as D.S.P. When a seniority list of D.S.Ps.
Was issued on 17-6-1999. According to the petitioner the aforesaid list not only assigned him a wrong seniority position but even his year of birth was wrongly recorded and changed from 1947 to 1944. The petitioner promptly represented against the wrong assignment of seniority and entry of his date of birth within the prescribed time. His grievance as to seniority was redressed by the departmental authorities and admittedly he was assigned his rightful position in the seniority list, dated 23-12-2003. Nevertheless, the petitioner's grievance as to date of birth remained un- redressed and the same date i,e, 2-9-1994 was mentioned in the aforesaid seniority list. The petitioner, therefore, pursued his grievance to the said effect and he was only informed by letter dated 31-3-2004 that it had been dismissed on 2-6-2000. His appeal before the Service Tribunal on this account was also dismissed by the Tribunal.
3. Mr. M.M. Aqil Awan, learned counsel for the petitioner emphatically argued that during the first 30 years of his service the respondent continued to accept 20-9-1947 as the petitioner's correct date of birth which was duly recorded in his National Identity Card and in a number of other documents.
The change for the first time accrued in the seniority list dated 17-6-1999 which could either be inadvertent or mala fide but in any case was required to be rectified.
4. On the other hand, Mr. Masood A. Noorani, learned Additional Advocate-General, argued that the appellant had forged his date of birth in his service book which at times remained in his possession. He further pointed out that the Health Certificate issued by the Civil Surgeon, Hyderabad, dated 2-9-1968 (at the time of the petitioner's entry into Government service) was sent for verification and vide letter dated 18-5-2004 it was reported that the certificate was correct but the age of the candidate recorded on it was not correct and the actual age of Mr. Qazi Chand Muhammad was 24 years on 2-9-1968 whereas the certificate shows the age of the candidate 21 years. We regret to observe that the copy of the certificate dated 2-9-1968 placed on the record which appears to have been signed by the Civil Surgeon, merely contains the following observation:--- "His age according to his statement is about 21 years and the appearance about 24 years."
5. We have noticed the copy of the certificate available on record does not contain any interpolation and the age described therein is consistent with the petitioner's stand and in any case, the opinion of the Civil Surgeon is only based upon his appearance. We fail to see how 36 years later a subsequent Civil Surgeon found his age to be incorrect and at the same time did not bother to send an authentic copy of the certificate from the record. It was further contended that in the education record of the petitioner, the year of his birth was 1944 but no document in this respect has been placed on record along with the concise statement filed on behalf of the respondents. The petitioner relied upon a copy of the School Leaving Certificate showing his year of birth to be 1947. However, according to respondents, upon investigation his year of birth in the certificate was found iv be 1947 but again no documents in respect of this contention has been brought to the notice of this Court, nor has it been shown when such investigation was undertaken nor has it been explained why 1944 instead of 1947 was treated as the petitioner's year of birth.
6. Be that, as it may, without recording a conclusion on facts we tend to agree with Mr. M.M. Aqil Awan, that the date of birth of a civil servant in his service record cannot be arbitrarily altered towards the fag of his service carrier to enable his premature retirement. All the documents referred to by learned Additional Advocate-General i,e, statements pertaining to verification of records were obtained by the respondent after 1999. In the absence of original documents or their duly certified copies, the possibility that such letters were obtained for ulterior purposes cannot be overlooked. It is pertinent to point out that not a single seniority list pertaining to any period prior to 1999 indicating the date of birth of the petitioner was placed on record before the Service Tribunal by the respondents.
7. However, without delving deeper into the factual controversy we are of the view that this petition could be decided on the basis of certain basic principles of law. Mr. M.M. Aqil Awan, learned counsel for the petitioner argued that the question of date of birth of the petitioner in the service book and its subsequent alteration was required to be decide under Rule 9.7 of the Punjab Police Rules, 1934 (hereinafter mentioned as the "Police Rules") and not para.171 of the Sindh Civil Service Manual (hereinafter mentioned as "Manual") relied upon by the learned Service Tribunal. The relevant rule referred to by the learned counsel for the petitioner reads as follows:--- "9,7(1) The date of birth shown in the character roll or corresponding record, can be altered only with the sanction of proof to his satisfaction. If the Inspector-General of Police, on production of proof to his satisfaction. If the recorded age does not tally with that certified by an invaliding Medical Officer, Board of Committee, and discrepancy affects the title of pension or liability to superannuation, the matter should be reported and the officer should not be discharged till the orders of the Inspector General have been received. In the case of an officer whose year of birth or year and month of birth only is known, but not in the exact date, the 1st July of the year of 16th of the month respectively should be treated as the date of birth for the purpose of calculation of pension, - vide note under Article 283 of the Audit Code, Volume I. The date of birth of all officers enrolled before the 1st October, 1933 may be allowed to remain as already recorded.
(2) Further orders as to the conditions under which alterations of age may be sanctioned are contained in Letter No,20076 (Home Gazette) of 4th July, 1928 from the Chief Secretary to Government, Punjab. According to these orders, an alteration may only be made, after special enquiry, if applied for within two years of the appellant's entry into Government service. The Provincial Government may, however, make a correction in the recorded age of a Government servant at any time, if it is satisfied that age has been incorrectly recorded with the objection that the Government servant may derive unfair advantage."
8. Though, learned counsel was unable to refer to any Notification extending the application of the said rules to the Province of Sindh, he relied upon a full Bench judgment of the Sindh Service Tribunal in the case of Abdul Haq v. Province of Sindh reported in 1989 PLC 300 wherein it was held that the said rules were also applicable to the police force in Sindh. He further relied upon a judgment of this Court in the case of Inspector-General of Police, Punjab v. Mushtaq Ahmed Warriach and others reported in PLD 1986 SC 159 wherein it was held that the Police Rules being in the nature of a special law applicable to subordinate in the Police Department would prevail over any general law applicable to civil servants. Moreover, learned counsel further argued that the Manual was only applicable to Gazetted Officers i,e, those in BS-17 and above and could not apply to the petitioner when his date of birth was initially recorded in his service book.
9. On the contrary, Mr. Masood A. Noorani, learned Additional Advocate-General supporting the judgment of the Service Tribunal argued that para.171 of the Manual was rightly applied. It may be pertinent to reproduce the relevant extract from the aforesaid Manual referred to in the impugned judgment as under:--- "171. .... The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the documents relied on: ' 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.
' Instruction--- 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 16. All cases in which applications are made after the period of two years referred to above should be submitted to Government for orders."
10. Learned Additional Advocate-General further urged that there was nothing to show that the Police Rules had been extended to Sindh and in any event Rule 171 of the Manual became applicable to the petitioner after his promotion to the rank of D.S.P. Where after his date of birth was altered. The Service Tribunal was, therefore, perfectly justified in holding that the original date of birth of the petitioner was not entered in accordance with the Rule 171; that a wrong date could be corrected by the Government at any time and the seniority list issued by the Provincial Government, correcting the date of birth, was within the domain of the law and powers available to the Government.
11. We have carefully considered the respective contentions of the learned counsel for the parties, gone through the impugned judgment and have compared the respective set of rules relied upon by them. So far as the recording of the initial date of birth in the service book/character role, it needs to be kept in view that para.171 of the Manual indeed requires that the date of birth ought to be recorded with reference to the documentary evidence accompanied by a certificate mentioning all the documents relied upon. However, Rule 9.7(1) of the Police Rules contains no such requirement but even enables recording of a notional date if the actual date or the month of an employee is not known the rationale for this distinction is not far to seek. Indeed, the officers to whom the Manual is applicable are expected to possess certain educational qualifications and, therefore, some documentary proof as to their respective date of birth is invariably expected to be available. On the other hand, the Police Rules are applicable to all subordinates and in many cases no such record could be found to exist. In the instant case, as candidly acknowledged by the learned Additional Advocate-General that the provisions of the Manual became applicable to the petitioner only after his promotion to the rank of D.S.P. And was not applicable when he entered Government service and the date of birth was recorded in his service book. As such, we are unable to sustain the view of the learned Service Tribunal that the initial entry of his date of birth was in violation of the requirements of law. Obviously upon his promotion, the same date had to be carried over unless altered in accordance with the requirement of rules.
12. Beyond this point we do not think it necessary to record any definite conclusion as to which set of rules is applicable to the petitioner. Indeed, both the Manual and the Police Rules attach a certain amount of sanctity to the date of birth recorded in the service books, which in the given circumstances, could only be altered by the Provincial Government upon satisfaction that the original date had been incorrectly recorded.
13. We agree with the learned Additional Advocate-General that the Provincial Government has plenary powers to correct a wrongly entered date of birth in the service records without any limit of time. At the same time, however, it is our considered view that like all public powers it could be exercised only fairly and honestly upon a careful consideration of all facts and material brought to its notice and after giving a reasonable opportunity to be heard to the affected person in accordance with the established principles of natural justice. It was all the more important to hold a proper inquiry when a serious allegation of forgery, being quasi criminal in nature, was levelled.
Admittedly, no such exercise was undertaken nor any specific order stating to be correcting the petitioner's date of birth has been placed on record.
14. On the contrary, though the alteration in the date of birth stated to have been made in the seniority list of 1999, some post facto collection of material to justify the same appears to have been undertaken as is evident from the letter of the Civil Surgeon dated 18-5-2004. It has not been divulged whether tlie so-called "verification from school records" was undertaken before or after the issuance of the seniority list of 1999.
15. We are also amazed to notice from the record that the petitioner's appeal for rectification of date of birth seems to have been forwarded to the Secretary, Home Department by the office of the Inspector-General, Police through covering letter No,2481/E-I/Karachi, dated 11-5-2000 signed by Mr. Ghulam Shabbir Sheikh, A.I.-G. (Establishment). In response to the same, Inspector-General, Police received a letter from one Moazzam Ali Marri, Section Officer on behalf of the Home.
Secretary that "the competent authority has been pleased to reject the subject appeal after due consideration". Nevertheless, the petitioner was only apprised of such one line order passed in defiance of section 24-A of the General Clauses Act, 1897 almost four (4) years later on 31-3-2004.
The above facts lent credibility to the allegation that post facto material was obtained by the respondents to justify a patently illegal order. We must strongly disapprove of such a tendency on the part of public officials entrusted with solemn responsibilities of honest investigation of crime and maintenance of law and order. Let a copy of this judgment be communicated to the Provincial Police Officer to ensure that such acts are not repeated.
16. In view of our findings in para.13 above, we find ourselves entirely unable to sustain the view of the learned Service Tribunal that the Provincial Government could pass order altering the petitioner's date of birth merely through a seniority list without following the due process of law.
Accordingly, we would convert this petition into an appeal and set aside the impugned orders of the Departmental Authority as well as the learned Service Tribunal. However, since the petitioner has already attained the age of superannuation, we are not in a position to direct his reinstatement. Nevertheless in accordance with the observations of this Court in the case of Province of Sindh v. Malik Ghulam Hussain son of Malik Ghulam Rasul in (C.P. No,455-K of 2001) brought to our notice by Mr. Awan, we would direct that the petitioner be deemed to have been retired only on 19-9-2007 and be entitled to all monetary benefits arising therefrom. In case he became eligible for further promotion by that date, a D.P.C. May be held and if found fit for promotion, a pro forma promotion could be allowed to him to draw revised benefits including pay and pension.