' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:-
7. It is, therefore, very humbly prayed on behalf of petitioner through an appropriate writ that respondents may kindly be restrained to issue the retirement notification of the petitioner before completing sixty years age as per entered in service book and medical certificate and schools leaving certificates."
2. Precise facts giving rise to the instant writ petition are that petitioner was admitted in 5th class in Girls Higher Secondary School Saheli Sarkar Muzaffarabad, in 1965 and in admission form his date of birth was written as 15-1-1956 and thereafter, he got admission in Government Pilot Secondary School No,1, Muzaffarabad on 25-5-1966, wherein the same date of birth was written. It is claimed that petitioner got admission in 10th class in Ali Akbar Awan Government Mode! School Chatter Domel on 5-11-1969, wherein his date of birth was also written as 15-1-1956. It is stated that petitioner got admission in Government Post Graduate College Muzaffarabad and in his admission form, his date of birth was inserted as 15-1-1956. It is claimed that petitioner entered in Police Department as Head Constable on 20-4-1971 and in service book, his age was written as 18 years. It is alleged that petitioner passed his Matriculation examination from Board of Intermediate and Secondary Education, Lahore in the year 1970, wherein date of birth of petitioner was also written as 15-1-1956. However, petitioner's Matriculation certificate was misplaced, hence, he submitted an application to the above Board for issuance of duplicate certificate and on dispute of his date of birth matter was sent to disciplinary committee, which after inquiry declared the date of birth of petitioner as 15-1-1956 and recommended the Board to issue duplicate certificate in his favour, however, matter relating to issuance of duplicate certificate is still under process before Lahore Board which was not finalized despite command of the Lahore High Court vide order dated 1-10- 2011. It is stated that respondents are going to retire petitioner with effect from 15-1-2012, hence, he was constrained to file the instant writ petition before this Court for restraining the respondents not to do so till finalization of process pertaining to issuance of duplicate of Matriculation Certificate by the Lahore Board.
3. A pre-admission notice was issued to respondents for filing parawise comments which were filed on 5-1-2012, wherein it is stated that at the time of induction in service in the year 1971, the petitioner in application for appointment had written his age as 20 years and in facsimile of Matriculation Certificate his date of birth was also written as 15-1-1952. It is stated that during his service period extended over about 40 years neither petitioner moved to Department for correction of date of birth, nor any process was initiated by him for doing so before Government. It is claimed that against the Board of Intermediate and Secondary Education, Lahore, petitioner filed a complaint regarding correction of his date of birth as 15-1-1956 before Ombudsman of Punjab, however, when the Board produced, relevant record, the complaint was withdrawn by him on 5-11-2011. It is further claimed that a complaint was also filed before Azad Jammu and Kashmir Ehtesab Bureau and alter inquiry, date of birth of petitioner was declared as 15-1-1952 vide script dated 3-12-2008, which order was not challenged by him before any forum. It is stated that petitioner also filed writ petition before the Lahore High Court, Lahore, which was decided by issuing direction to the above Board for inquiry and decision, hence, the instant writ petition is not maintainable. It is stated that.
Petitioner has also moved an application before Government-respondent for the same relief, therefore, writ petition is bad in law. It is further inserted that writ petition is attracted by laches, therefore, on the basis of baseless attestations and school certificates, the solicited writ cannot be issued. It is further clarified that in service book of petitioner, date of birth was also written as 15-1- 1952.
4. The learned counsel for petitioner, Kh. Muhammad Naseem, Advocate while reiterating the grounds of writ petition, submitted that petitioner was admitted in 5th class in Government Girls Higher Secondary School Saheli Sarkar in the year 1965, wherein his date of birth was written as 15- 1-1956, who later on got admission in 6th class in Government Pilot Secondary School No,1 Muzaffarabad on 25-5-1966, wherein his date of birth was entered as 15-1-1956. The learned counsel emphasized that petitioner got admission in 10th class in All Akbar Awan Government Model School Chatter Domel in 1969, wherein date of birth of petitioner was also written as 15-1- 1956 and even in Government Post Graduate College Muzaffarabad, date of birth of petitioner was same, which was also written in his Matriculation Certificate issued by Board of Intermediate and Secondary Education Lahore. The learned counsel further submitted that disciplinary committee of Lahore Board intimated to petitioner that his date of birth was corrected as 15-1-1956 vide letter dated 10-5-2011, however, matter has yet not been finalized, therefore, till issuance of duplicate certificate by the Board, respondents be restrained from retiring petitioner as indicated vide script dated 12-9-2011. The learned counsel emphasized that inquiry committee of Board of Intermediate and Secondary Education Lahore, after inquiry declared date of birth of petitioner as 15-1-1952, vide letter dated 20-12-2011 against which matter is subjudice before the Lahore High Court, Lahore and the bench seized with the matter solicited report by restraining the Board not to act upon the above letter, vide order dated 26-12-2011, hence, through writ of mandamus respondents be restrained to retire petitioner on 15-1-2012. The learned counsel in support of his contention referred to and relied upon an unreported judgment of this Court passed in Writ Petition No,189 of 2008 titled "Bibi Shahjahan v. Azad Government and others" decided on 18-6-2009.
5. The learned counsel for respondents, Mr. Asgher Ali Malik, Advocate while controverting the arguments of the learned counsel for petitioner, submitted that in service book date of birth of petitioner was written as 15-1-1952, however, by committing forgery petitioner has appended with writ petition a facsimile of above service book showing his date of birth as 15-1-1954. The learned counsel pressed into service that at the time of induction in service, petitioner produced an attested copy of his Matriculation certificate wherein his date of birth was also written as 15-1-1952.
The learned counsel emphasized that in case of any error in date of birth, the same could be asked to be corrected with sanction of the Inspector-General of Police within two years who failed to do the same, hence, the writ petition is bad in law. The learned counsel pressed into service that after withdrawal of complaint from the Ombudsman of Punjab pertaining to correction of his date of birth in his Matriculation certificate, he cannot file the instant writ petition due to bar of estoppel.
The learned counsel further submitted that matter was also inquired by Azad Jammu and Kashmir Ehtesab Bureau and his date of birth was declared as 15-1-1952 vide script dated 3-12-2008 which was not challenged by him before any forum. The learned counsel emphasized that matter pertains to terms and conditions of service, hence, writ petition is not maintainable. The learned counsel for respondents in support of his contention referred to and relied upon Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and others 1999 PLC (C.S.) 69 and Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46.
' In case titled Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and others 1999 PLC (C.S.) 69 it was held that matter pertaining to determination of age for the purpose of retirement of a civil servant is one of terms and conditions of service, therefore, jurisdiction of High Court is totally ousted.
' In case titled Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46 it was laid down that if a matter relates to terms and conditions of service of civil servant, it is initially cognizable by the. Service Tribunal and no relief can be sought by resorting through writ jurisdiction.
6. After hearing learned counsel for the parties at length, I have perused the contents of writ petition along with appended documents and have also sent for original service record of petitioner from the concerned Department and examined the same in presence of both the learned counsel for the parties.
7. A glance perusal of service record of petitioner reveals that in service book, his date of birth was written as 15-1-1952 which is duly signed by him and there is no any discrepancy in relevant column except that the same was highlighted through yellow highlighter. However, petitioner appended with writ petition a facsimile of above service book in which date of birth was inserted as 15-1-1954 which is not attested by any officer possessing record and the same is inconsistent 'with record, therefore, cannot be relied upon. Besides the above, a perusal of original service record also reveals that at the time of induction in service, petitioner produced an attested copy of his Matriculation Certificate in which his date of birth was also written as 15-1-1952. The facsimile of Matriculation Certificate produced along with writ petition is inconsistent with the certificate produced by petitioner at the time of induction in service. The facsimile produced along with writ petition is doubtful and cannot be relied upon due to its inconsistency with an attested photo- state copy produced by petitioner at the time of induction in service of the Police Department. The petitioner on the one hand stated that his date of birth was 15-1-1956 and on the other hand produced service book showing date of birth as 15-1-1954, which is a contradictory stand and it again renders the version of petitioner, as doubtful. Therefore, in the given circumstances, I have no hesitation to hold that petitioner has not come to the Court with clean hands, hence, not entitled to any relief under extraordinary constitutional jurisdiction. The identical point came under consideration before the apex Court in case titled Ch. Muhammad Din Kausar v. AJ&K Government and 4 others [2004 PLC (C'. S.) 897]. At page 901 of the precedent case it was held as under:--- "We have given due consideration to the arguments raised at the Bar. It may- be stated that there are two certificates which purport to have been issued by the Punjab University; in one of them, the date of birth of the appellant is recorded as 4-2-1937 while in the other the same is recorded as 4-2-1939. The stand taken by the Punjab University is that according to its record, the correct date of birth of the appellant is 4-2-1937 and not as 4-2-1939. Obviously, the certificate subsequently issued in the year 1993 which, according to the appellant is a 'duplicatc' copy is of doubtful authenticity and cannot be relied upon. The perusal of the record shows that in his civil suit, the appellant admitted that in the Matriculation certificate, his date of birth is entered as 4-2- 1937, which is incorrect but subsequently in the present writ petition, he has taken a divergent stand that according to the Matriculation certificate, his date of birth is 4-2-1939. This obviously is a contradictory stand which renders the subsequent certificate further doubtful. Thus, in these circumstances we have no hesitation in holding that the appellant has not come to the court with clean hands and his writ petition could have been dismissed on this sole ground. Even otherwise, the question of correct date of birth of the appellant is complicated in the circumstances listed above and cannot be resolved in writ jurisdiction."
8. The respondents along with comments have appended an order of Ombudsman of Punjab dated 5-11-2011 which was not controverted by petitioner. A perusal of the above order reveals that a complaint was filed by petitioner against Board of Intermediate and Secondary Education, Lahore on 12-7-2011 alleging therein that his date of birth was 15-1-1956 and after missing his original Matriculation certificate, he applied to the Board for issuance of a duplicate certificate, however, Board raised objection with regard to date of birth and sent a reference to disciplinary committee. The petitioner in the compliant solicited that the above Board should be directed to issue duplicate certificate without any change in the date of birth i,e, 15-1-1956. It seemed that when Controller Examination Board of Intermediate and Secondary Education, Lahore produced the relevant record showing date of birth of petitioner as 15-1-1952, the above complaint was withdrawn by him, therefore, writ petition is not maintainable due to principle of estopple and acquiescence.
9. The Home Department of Azad Jammu and Kashmir vide script dated 6-9-2011 declared that on the basis of date of birth of petitioner dated 15-1-1952 his superannuation age was likely to be completed on 15-1-2012. Therefore, he was liable to be retired on the above date. Against the abovementioned script affecting terms and conditions of service, petitioner could file appeal before the concerned Service Tribunal, who failed to do so. Even Ehtesab Bureau of Azad Jammu and Kashmir after inquiry declared date of birth of petitioner as 15-1-1952 vide script dated 3-12- 2008 which too was not challenged by him, therefore, above orders, have got finality under law.
10. The version of petitioner that matter with regard to correction of his date of birth is subjudice before the Board of Intermediate and Secondary Education, Lahore and before the Hon'ble Lahore High Court, Lahore, therefore, respondents should be restrained from retiring him on 15-1-2012, is also misconceived for the reason that a perusal of revised notification dated 25-6-2011 issued by.
The Board reveals that the competent authority suspended order of disciplinary committee and declared date of birth of petitioner as 15-1-1952. The revised notification was also not challenged by petitioner before any forum. Even Board intimated to Deputy Inspector-General of Police (Headquarters) Azad Jammu and Kashmir vide script dated 30-12-2011 that matter was also probed afresh through an inquiry committee and after thrashing- out the same, found that date of birth of petitioner was 15-1-1952, which was also not challenged by him before any forum.
Therefore, an interim order of the Hon'ble Lahore High Court dated 26-12-2011 referred to by the learned counsel for petitioner is not helpful to him.
11. According to version of respondents, date of birth of petitioner as entered in his service record was 15-1-1952, while as per claim of petitioner his date of birth was either 15-1-1954 or 15-1-1956. It is settled principle of law that disputed question of facts which need D detailed inquiry and evidence, cannot be investigated in writ jurisdiction.
12. The petitioner has moved an application before the Prime Minister of Azad Jammu and Kashmir Government on 3-12-2011 duly received on 16-12-2011, therefore, due to availing an alternate remedy the instant writ petition is bad in law.
13. The petitioner was inducted in service of Police Department as Head Constable on 20-4-1971, who was promoted up to the rank of Deputy Inspector-General of Police. The petitioner never solicited relief for correction of his date of birth which was written in his own service book as 15-1- 1952, therefore, writ petition is attracted by laches extended over decades. According to judicial consensus, a civil servant should solicit correction of his date of birth within two years. The above point came under consideration before the Supreme Court of Pakistan in case titled Alamdar Hussain v. Inspector-General of Police, Punjab and others [2003 SCMR 1105] and at page 1107 of the report it was held by their lordships as under:- "It may be seen that if we were to accept the stand of petitioner that record of his service containing the date of birth which he is pointing out i,e, 4-10-1941 was missing because he came from East Pakistan in 1974. But surprisingly he never launched any proceeding for correction of his date of birth. It is for the first time that in the year 1998 it occurred to him to get correct his date of birth in the service record. This move of the petitioner militates against the law laid down by this Court in the case of lqbal Haider v. Federation of Pakistan (1998 SCMR 1494) wherein it has been held that a Government employee under the relevant rules cannot make prayer for correction of his date of birth after two years of joining service. Therefore, if at all the petitioner has a valid claim he should have instituted proceedings for correction of his date of birth within the period of two years after coming back from East Pakistan and if it was not possible then at least he should have agitated for correction of his date of within reasonable time which according to 'him has been wrongly recorded in the service record. In view of such circumstances we believe that petitioner himself was satisfied with his date of birth i,e, 4-10-1939 because he did not challenge 'the same at earliest stage. Besides he has full knowledge about such entry in his service record because as per the impugned judgment petitioner's date of birth has been mentioned in ACR's. But despite acquiring knowledge he did not agitate against such entry as such by his own conduct he cannot be allowed to change his stance alter a considerable long period."
' The same point again came under consideration before the apex Court of Pakistan in case titled Qamaruddin v. Pakistan through Secretary Establishment Division, Islamabad and another [2007 SCMR 66] and at page 68 of the precedent case it was held as under:- "4. We have gone through the impugned judgment which is elaborate and so many judgments of this Court have been referred therein wherein this sort of relief has been disallowed. Reference has also been made to Rule 12-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which reads as under:--- "I2-A Alteration in the date of birth.--- The date of birth once recorded at the time of joining Government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible."
S. The Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons for declining the relief. In our opinion, legal position discussed above and conclusion drawn by the Tribunal for passing the impugned judgment do not suffer from any defect, illegality or impropriety. We may observe that lately a tendency has developed whereby unwarranted claims, attempting to show error in "date of birth" are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously such practice must be discouraged and effectively curbed. Additionally, the grievances agitated before us do not make out any substantial question of law having public importance."
' The point pertaining to correction of date of birth was also considered by the Lahore High Court, Lahore, in case titled Sh. Mumtaz Ali alias Mumtaz Alam v. Government of the Punjab [1991 PLC (C.S.) 1202] it was opined at pages 1203, 1204 and 1205 of the report as under:--- "I have heard the learned counsel in support of the petition. The Government i,e, the respondents are admittedly not a party to the ex parte decree obtained by the petitioner and as such the decree is not binding on them. It is also not denied that according to the Government instructions a Government servant can seek correction of service record as to the date of birth within two years of the entry into service. The petitioner admittedly joined the Government service initially in the year 1962 and then was appointed as Additional District and Sessions Judge in 1983. It was explained that no such move to have the date of birth corrected was made in all these years as the fact that the actual date of birth of the petitioner was 16-10-1931 . Came to his knowledge only in January, 1987 and then he rushed to file the suit. It has however, not been explained how and in what manner the alleged actual date of birth came to the knowledge of the petitioner. The plea that in January, 1987 the petitioner, come to know of the mistake, is also incorrect as in the suit, the letter dated 31-12-1986 of the University of the Punjab refusing to correct the date of birth as demanded was challenged. It is apparent that the move to have the University record corrected was made earlier to January, 1987. Obviously, it was incorrectly asserted before me that the mistake come to the notice of the petitioner only in January, 1987. Even otherwise the decree was obtained ex parte and the application for setting aside the ex parte decree was rejected despite the fact that it was shown that the summons in the suit were not admittedly served on any of the defendants in the suit. It was noted by the learned Civil Judge in the order dated 29-9-1988 that as per report of the process-server, the concerned clerk after going through the summons, returned the same as the copy of the plaint was not attached therewith. It was also observed that the notices issued were received and as such the defendants in the suit are to be posted with the knowledge of the filing of the suit. Learned trial Judge further observed that though the summons was returned as it did not accompany the plaint yet such a service shall be deemed to be sufficient service in the eyes of law and the concerned clerk was bound to inform the University authorities about the pendency of suit and they could obtained the copy of the plaint after putting in appearance. If the summons contained the endorsement that it accompanies a copy of the plaint, then the clerk concerned was fully justified to return the summons as the same were incomplete. In any case showing of some laxity to the opposite party by the trial Judge would have been more appropriated as the suit filed was that of senior officer of the subordinate judiciary. Moreover, in the circumstance it did not behove a senior Judicial Officer to resist the application for setting aside the ex parte decree and thus not to allow the University, authorities, the defendants in the suit to contest his claim on merits. Be that as it may, learned counsel for the petitioner was unable to show as to how the petitioner had a cause of action as against the University authorities as these were firstly not concerned with the correction of his service record and secondly, they had entered that very date of birth which the petitioner himself got recorded in the Admission Form submitted while taking the Matriculation Examination. This vary date of birth which he then gave was entered in the Matriculation Certificate ultimately issued to him.
Incidentally, the same is the date which was got recorded while admitting the petitioner in the school. Moreover, the recent trend of the Judicial Officers to obtain ex parte decree for correction of date of birth towards the fag-end of their service career mast be deprecated."
12. The unreported precedent of this Court titled Bibi Shahjahan v. Azad Government and others decided on 18-6-2009 referred to and relied upon by the learned counsel for petitioner, Kh.
Muhammad Naseem, Advocate is not applicable to the facts and circumstances of the present case.
' These are detailed reasons of in limine dismissal of the instant writ petition vide short order dated 11-1-2012.