' MUHAMMAD HASHIM KHAN KAKAR (CHAIRMAN).--- This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the appellant assailing therein the Notification No,S-III-30(7)2006-S&GAD dated 19-4-2008 whereby he has been retired from service w.e.f, 4-6- 2008.
2. The relevant facts in small compass are the appellant was appointed as Supervisor on 29th April, 1972 and was inducted as Sub-Divisional Officer BPS 17 on 1-2-1974 and was lastly posted as Secretary Irrigation and Power Department. It is' the case of appellant that his actual date of birth was 1-1-1950 but inadvertently the same was mentioned in his service record as 5-6-1948. However, his date of birth in the National Identity Card, Passport and Policy obtained by him has been rightly recorded as 1-1-1950. As per appellant he requested the competent authority on 29th September, 2007 for correcting his date of birth which was rejected by Secretary Service and General Administration Department on 25-10-2007. Then the appellant filed representation on 8-2-2008 and the Chief Minister asked the department for submission of the summary and in the meanwhile it was directed that the case be examined by a Special Medical Board and his services were ordered to be extended. The summary was approved by the Chief Minister Balochistan granting approval for the determination the age of appellant through Special Medical Board and extension of service till the issue is resolved. Thereafter the appellant approached Chief Secretary Government of Balochistan for issuance of appropriate Notification in terms of the approval given by the Chief Minister but instead of doing so, the impugned notification dated 19-4-2008 was issued, notifying the date of retirement of appellant as 4-6-2008, as such, the appellant while finding no other way out approached this Tribunal.
3. On the other hand, the respondents contested the appeal on legal and factual grounds by filing their formal replies.
4. We have considered the contentions raised by the learned counsel for the parties and have gone through the entire documents placed on record with their valuable assistance.
5. The learned counsel for the appellant contended that the appellant has not attained the age of superannuation and according to the National Identity Card and Passport the age of appellant on 4-6-2008 was less than the age of superannuation. He next argued that the appellant has been retired from service on the basis of his date of birth mentioned in his service record which has been wrongly mentioned.
6. On the other hand, the learned Advocate-General of Balochistan contended that the appeal is time-barred and this Tribunal has no jurisdiction to adjudicate upon the matter as determining of age of appellant is not related to the terms and conditions of his service and further stated that after insertion of Rule 12-A in the Balochistan Civil Servants (Appointment, Promotion and Transfer)
Rules, 1979 the appeal is not maintainable.
7. In respect of limitation, the perusal of memo of appeal, departmental representation and impugned Notification will demonstrate that initially an application for correcting the date of birth was moved on 29-2-2007 which was not forwarded onward and the same was rejected by the then Secretary S&GAD vide order dated 25-10-2007. The appellant then made departmental appeal to the competent authority and the same was allowed by the then care taker Chief Minister of Balochistan, asking for submission of summary and the services of appellant were ordered to continue till resolution of the controversy through standing Medical Board. Consequently the appellant asked the Chief Secretary Government of Balochistan for issuance of appropriate notification and the Chief Secretary instead of doing the needful, issued the impugned notification notifying the date of retirement of appellant on 19-4-2008 with effect from 4-6-2008.
8. The appeal in hand has been presented before this Tribunal onIA 26-4-2008 the provided period for filing of appeal before the I departmental authority under section 5, subsection (4), Balochistan Civil Servants (Appeal) Rules, 1983 is 60 days. It has also been provided that the aggrieved person after exhausting departmental remedy shall file appeal before this Tribunal within 30 days. The aggrieved person is required to wait for a period of 90 days from filing of representation, thereafter, within 30 days he can prefer appeal to this Tribunal. Since the departmental representation filed by the appellant, has been dismissed by the competent authority on 19-4-2008 while notifying the date of retirement of appellant w.e.f, 4-6-200a as such, the appeal presented on 26-4-2008 is well in time. Even otherwise the law favours adjudication on merits rather denying relief on technical grounds of limitation.
9. As far as the question of jurisdiction is concerned. We are unable to agree with the, learned Advocate-General of Balochistan who contended that after insertion of Rule 12-A to the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 this Tribunal has no jurisdiction to adjudicate upon the matter which speaks as under-- 12-A "Alteration in date of birth. The date of birth once recorded of a civil servant at the time of joining the government service shall be final and no alteration in the date of birth of a civil servant shall be permissible."
10. We are conscious of the fact that in the light of Government of Balochistan Services and General Administration Departmental Notification No,SPR 1(160)/90-S&GAD/5260-5369 dated 11-12-1998.
Rule 12-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 and General Financial Rules 116, 117, the date of birth once recorded at the time of joining the Government service shall be final and no alteration is permissible. It is crystal clear, as held by this Tribunal on a number of occasions, that it only bars the powers of the Government, while making any sort of alteration in the date of birth of a civil servant and it does not bar the jurisdiction of Tribunal to redress the grievances of a civil servant in appropriate cases. It is settled principle of interpretation of statute that no subordinate legislation should be interpreted in a manner which brings the same in direct conflict with the object of the statue itself i.e, the Balochistan Services Tribunals Act, 1974.
11. We are of considered view that determination of date of birth is one of the most pivotal, crucial and essential terms and conditions of service of a civil servant because it determines the date of retirement, therefore, it cannot be said that the determination of age for the purpose is not within the jurisdiction of this Tribunal. We are categorical that this Tribunal has exclusive jurisdiction except barring same matters, specially mentioned in provision to section 4(1) of the Services Tribunals Act, 1974 to redress the grievances of a civil servant in respect of any of the terms and conditions of his service. In present case too the date of birth of appellant will decide the fate of retirement, as such, the same falls within the domain of this Tribunal. It would also be worth- mentioning that Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 no other Court has the jurisdiction to determine the age of appellant for the purpose of retirement from service except this Tribunal.
12. As for the merit of the case is concerned, it may be pointed out that the appellant has failed to tender rational explanation as to insertion of his date of birth in the service record. There is nothing concrete on record to substantiate the plea of appellant except some weightless documents i.e, National Identity Card, Passport and Policy obtained by the appellant after a long time of his induction in Government service in the year 1972. It would also suffice to be added here that in spite of clear direction by the then competent authority as well as by our predecessor on 8-5-2008 passed at the time of admission of appeal, the appellant has not placed on record the opinion of the Standing Medical Board. The date of birth mentioned in the National Identity Card and Passport is at least a relevant piece of evidence, however there exists no law declaring it to be a conclusive proof of age. We agree with the learned counsel for appellant that difference of 3 months and 5 days between the age of two brothers do not appeal to a prudent mind, but it too is of no avail, to the appellant because there is possibility of the fact that the date of birth of elder brother may have been wrongly entered in school or service record at the time of admission in school or induction in service and the benefit of such doubt cannot be extended in favour of the appellant at such belated stage after retirement of appellant.
13. In present case the appellant has prayed for correction of his date of birth in service record.
According to him his actual date of birth is 1-1-1950 which has been wrongly mentioned in his service record and secondary school certificate as 5-6-1948. Thus due to this incorrect entry the impugned Notification was issued whereby he stands retired from service w.e.f, 4-6-2008.
14. It is now a settled principle of law that a government servant under the relevant rules cannot pray for correction of his date of birth after two years of joining service. The relevant rule speaks as under:-- "As per decision of the government circulated by the S&GAD on 27-7-1994 no relaxation in date of birth is allowed in the following manner:
(i) No representation for change in date of birth shall be entertained after two years of entry into government service.
(ii) No alteration in date of birth shall be allowed after retirement even if claimed on the basis of birth certificate."
15. The record reveals that the appellant joined the government service in the year 1972. If at all the appellant has a valid claim, he should have instituted proceeding for correction of his date of birth within a period of two years from the date of joining government service, if it was not possible then at least he should have agitated for correction of his date of birth within a reasonable time which according to him has been wrongly recorded in service record. It can easily be presumed from record that the appellant was satisfied with the date of birth mentioned in his service record, Annual Confidential Reports and secondary school certificate because he did not challenge the same at earliest stage. He had the knowledge about his date of birth but kept silent at the relevant time and slept over his alleged right. At this belated stage when he has already been retired from service cannot be allowed to change his stance after a considerable long period in spite of the fact that he was in possession of all the relevant documents concerning to his date of birth.
16. As far as the argument of the learned counsel for the appellant that since the competent authority on the 1st application dated 4-4-2008 allowed the appellant to continue his service till resolution of controversy, as such, there was no justification for the Chief Secretary to issue the impugned Notification, because a legal and valuable right was accrued in favour of appellant. This argument on the face of it is without any force because no right could accrue to a party on the basis of an order which has been passed in oblivion of Rules. It is a settled principle of law that under section 21 of the General Clauses Act, the authority which can pass an order is also entitled to vary, amend, add to or to rescind that order. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order.
17. There is another shocking and saddening aspect of the case which requires the consideration of this Tribunal and government. In the memo of appeal as well as at the time of arguments the learned appellant counsel referred a number of cases i.e the cases: Mr. Abdul Hameed Joya, Ex- Controller of Governor House; Mr. Sultan Muhammad Bargrani Ex sub Treasury Officer Hub; Mr. Noor-ul-Haq Ex-Under Secretary S&GAD; Mr. Abdul Nabi Marri, Additional Commissioner; Jamal Khan Jaffar BCS/BS 18 Officer; Mir. Nazar Muhammad Qambrani, Assistant Director Food; Chaudhry Dost Muhammad Ex Tehsildar Board of Revenue and other whereby at the verge of retirement their dates of birth were rectified/changed as stated above, we seriously are concerned with such kind of practice, which if allowed, would not only affect the performance of the government civil servants but would also lead to serious complications and open a Pandora box. As observed hereinabove, after issuance of General Financial Rules 116-117, decision of the government circulated by the S&GAD dated 27-7-1994 and insertion of Rule 12-A of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 1979. The government except in the cases of clerical mistake cannot change the date of birth of civil servant because a complete embargo has been imposed on its power. It will be pertinent to mention here that permitting government servants to change their date of birth at the verge of their retirement would amount to permit a civil servant to continue government service even after attaining the age of superannuation. The copy of this Judgment should be sent to the worthy Chief Secretary Government of Balochistan who is reportedly an honest and competent officer to look into the matter and stop such kind of illegal practices on the part of government servants.
18. In view of the above discussion the appellant has failed to make out any case in his favour. Thus not entitled to the relief as prayed for. The appeal being without merit is hereby dismissed.
19. No order as to costs.