The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby writ in the nature of mandamus is solicited to direct the respondents to notify correction of date of birth of petitioner instead of 12.12.1953 as 12.12.1955.
2. The summary of the case is that petitioner was inducted in the subordinate judiciary of Azad Jammu & Kashmir, as a Civil Judge B-17, on 03.08.1988. He was admitted in Government High Secondary School Mandhol, Roth, where according to him his date of birth was entered as 12.12.1955. He was admitted for furtheP education in Inter College, Kotli and allegedly the Principal of the said College wrongly etered his date of birth as 12.12.1953. The petitioner instituted a suit before Civil Judge, Hajira, against the Board of Intermediate and Secondary Education, Lahore, on 09.07.1998 and obtained ex-parte judgment and decree for correction of date of birth on 12.07.2002.
As per judgment and decree supra, the Board of Intermediate and Secondary Education, Lahore, cancelled his previous Matric Certificate and issued its duplicate in which his date of birth was incorporated as 12.12.1955. The petitioner later on also obtained passport in which his date of birth was written as 12.12.1955. The same date was inserted in the particulars issued by Additional Registrar, High Court, on 17.12.2003. The petitioner also apprised the Government, respondent as being competent authority for correction of his date of birth whereupon Prime Minister of Azad Govt. of the State of Jammu & Kashmir granted approval for the purpose. The matter was processed by Secretary Law, Justice, Parliamentary Affairs and Human Rights who submitted a note through Minister Law, Justice, Parliamentary Affairs and Human Rights that Keeping in view the provision of Rule 67(2) of the Financial Code, the said correction cannot be allowed. The matter was examined by the Chief Secretary and Secretary Law time and again, however, the same was ultimately sent to Secretary Finance for his report on 26.11.2011. The matter was again referred to Secretary Law, Justice, parliamentary Affairs and Human Rights on 04.12.2012 who submitted report to the Chief Secretary and ultimately the Prime Minister passed an order for correction of date of 'birth of petitioner as was done in the case of Khawar Jarral, Sub-judge and also granted relaxation in Rule 67(2) of Financial Code. The official Respondents No. 2 and 3, however, failed to notify the orders, hence, the petitioner constrained to file the instant constitution petition.
3. The writ petition has been resisted by the respondents through written statement, wherein it is stated that date of birth of petitioner was written by himself in service record as 12.12.1953, who is likely to be retired from service as District and Sessions Judge on the basis of superannuation, hence, the instant writ petition is not maintainable. It is further stated that in the light of Rule 67(2) of Financial Code, date of birth of,petitioner cannot be corrected, that too, at this belated stage. It is averred that correction of date of birth of a civil servant is included in terms and conditions of services as such this Court has got no jurisdiction to adjudicate upon the matter. It is urged that no valid orders were passed in favour of petitioner by the Prime Minister and a note recorded on his application has got no legal sanctity under law. It is also claimed that petitioner has not invoked jurisdiction of this Court with clean hands, therefore, is not entitled to equitable relief.
4. Raja Muhammad Hanif Khan, the learned counsel for petitioner vehemently argued that date of birth of petitioner was corrected by Civil Judge, Hajira, through judgment and decree dated 12.07.2002 on the basis of which his correct date of birth as 12.12.1955 was written in his Matriculation Certificate, passport, particulars issued by additional Registrar, High Court, as well as in his pay slips. The learned counsel pressed into service that on the application of petitioner dated 29.11.2011 his date of birth was corrected by the Prime Minister Azad Govt. of Jammu & Kashmir and necessary relaxation in Rule 67(2) of the Financial Code, was also granted, therefore, it was binding obligation of Respondents No 2 and 3 to notify correct date of birth of petitioner as 12.12.1955. The learned counsel argued that on identical facts and circumstances, date of birth of khawar Jarral Sub-Judge, Bhimber, was made through notification dated 29.12.1998, however was discriminated against for mala-fide reasons. The learned counsel also referred the example of one Abdul Shakoor Siddiqui, Senior Headmaster, whose date of birth was corrected by the Government vide notification dated 28.12.2008 and solicited for acceptance of writ petition. The learned counsel on support of his contentions referred to and relied upon the following case law:--
(i) Syed Iqbal Haider vs. Federation of Pakistan & another (NLR 1998 Civil 517);
(ii) Raja Shahnawaz Khan, Chairman AJ&K Zakat Council vs. Azad Uovt. of the State of Jammu & Kashmir through its Chief Secretary & 3 others (PLJ 2013 SC AJK 186).
In case of Syed Iqbal Haider, supra, it was held by the apex Court of Pakistan that Syndicate of University of Sindh, after being satisfied corrected the date of birth of respondent from 16.08.1934 to 1.8.1934, hence, the same was note open to challenge after more than four decades. It was further held that in Government service, an employee cannot made application for change in his date of birth after two years.
In case of Raja Shahnawaz Khan, ibid, it was held by the apex Court of Azad Jammu & Kashmir that equally Placed person deserve equal treatment before law which is constitutionally guaranteed fundamental right.
5. Mr. Asghar Ali Malik, the learned- counsel for respondents submitted that keeping in view the provision of Rule 67(2) of Financial Code, application of petitioner for correction of date of birth was not maintainable, therefore, no illegality was committed by the respondents while not notifying his date of birth as 12.12.1955. The learned counsel pressed into service that application was consisting of malice and was also had in law which was moved at the stage of retirement of petitioner after couple of decades, hence, submitted for dismissal of writ petition. In support of his contentions the learned counsel referred to and relied upon the following case law:-- (i)Sardar Khurshid Hussain, Deputy Inspector General vs. Azad Govt. of the State of Jammu & Kashmir through, Chief Secretary & 4 others. (2012 SCR 23); (ii)Ch. Muhammad Din Kausar vs. AJ&K Government & 4 others (2004 PLC 897).
In case of Sardar Khurshid Hussain, supra, it was held by the Hon'ble Supreme Court that date of birth incorporated in service record shall be absolutely conclusive which latter on cannot be corrected.
In case of Ch. Muhammad Din Kausar, ibid, it was held by the apex Court that petitioner in his earlier civil suit had admitted that in his Matriculation Certificate his date of birth was entered as 04.02.1937, which was incorrect. Subsequently in writ petition he had taken a divergent stand that according to his Matriculation Certificate, his date of birth was 04.02.1939, who has not invoked jurisdiction of Court with clean hands, hence, against refusal of correction of his date of birth by this Court, his appeal was refused.
6. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition and examined the appended record.
7. Admittedly at the time of induction in service in the subordinate judiciary, as a Civil Judge B-17, vide notification dated 03.08.1988, date of birth of petitioner was written and duly signed by him as 12.12.1953. He also produced an attested copy of his Matriculation Certificate in which his date of birth was written as 12.12.1953. It appears from record that dispute regarding correction of date of birth was brought before Government-respondent as being competent authority by the petitioner just a few months ago before his retirement on 29.11.2011. As per Rule 67(2) of Financial Code, date of birth incorporated in service record at the time of entry into Government Service should be deemed absolutely conclusive which is reproduced as under:-- "The date of birth of appointment to present post and of promotion to present pay, of each person should be entered in the appropriate column. The date of birth by English Year should be given, and if the exact date is not known, the approximate date or year should be stated. The declaration of age made at the time of or for the purpose of entry into Government service should be deemed absolutely conclusive and no revision of such a declaration should be allowed to be made at a later period for any purpose whatsoever."
According to the above basic provision of law the declaration of age made at the time of entry into Government service is conclusive which cannot be revived at latter stage for any purpose. An identical point was arisen before the apex Court in case titled Prof Dr. Khawaja Muhammad Aslam vs. Prof. Dr. Abdul Rauf Khan Dean Faculty of Science & others (2000 YLR 1005). The ratio decidendi of precedent case as laid down at page 1008 is reproduced as follows:-- "The question of change of date of birth is dealt with in Rule 67 of the Financial Code which runs as follows:-- "The date of birth of appointment to present post and of promotion to present pay, of each person should be entered in the appropriate column. The date of birth by English Year should be given, and if the exact date is not known, the approximate date or year should be stated. The declaration of age made at the time of or for the purpose of entry into Government Service should be deemed absolutely conclusive and no revision of such a declaration should be allowed to be made at a later period for any purpose whatsoever."
The order passed by the prime Minister, reproduced above, clearly seems to be passed on the provision of law reproduced above. In light of this provision the view taken by the High Court that the Education Department is bound to carry into effect the decision of the Board of Intermediate and Secretary Education and the. Syndicate of the University is not well-founded.
Thus, the reasons on which the judgment of the High Court is based are not tenable. Therefore, we accept the appeal and set aside the order passed by the High Court. Consequently, the writ petition'filed by Respondent No 4 stands dismissed."
The aforesaid view was reiterated by the apex Court in case of Sardar Khurshid Hussain Deputy Inspector General vs. Azad Govt. of the State of Jammu & Kashmir through Chief Secretary & 4 others (2012 SCR 23), wherein at page 29 of the report it was held as under: Inof the principle of law enunciated in Dr. Kh. Muhammad Aslam's case, the declaration of age at the time of entry in Government service should be deemed absolutely conclusive The petitioner, despite rendering the service of more than 40 years has not disputed the entries of the service record regarding his age thus, at this belated stage, in the light of statutory provision, his claim is not acceptable"
8. The petitioner joined judicial service in the year 1988. He was promoted from the rank of Civil Judge, B-17 to District and Sessions Judge B-21 who remained silent for about 24 years and-for the first time moved an application to Prime Minister Azad Govt. of the State of Jammu & Kashmir for correction of his date of birth on 29.11.2011. The petitioner despite, rendering judicial service extended over two and half decades failed to apprise his competent authority for such correction hence, at this belated stage his claim cannot be accepted in the light of statutory provision. The writ petition, therefore, is also attracted by principle of laches extended over decades. According to judicial consensus, a civil servant, should solicit correction of his date of birth within two years of joining the service. The point supra came under consideration before the Hon'ble supreme. Court of Pakistan in case titled Alamdar Hussain vs. Inspector General of Police, Punjab & others (2003 SCMR 1105), wherein at page 1107 of the report it was held 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 surprising be 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 Iqbal Haider vs. 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 birth 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 ACRs. 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 after a considerable long period."
The aforesaid view was reiterated by the apex Court of Pakistan in case of Qamaruddin vs. Pakistan through Secretary, Establishment Division, Islamabad and another (2007 SCMR 66), wherein at page 68, it was held as under:- "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:-- "12-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."
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 grievance agitated before us do not make out may 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 mode 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 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 29,09.1988 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 h appearance. It 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 behave 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 must be deprecated."
9. The contention of learned counsel for petitioner that as correction was allowed by the prime Minister Azad Govt. of the State of Jammu & Kashmir on the application of petitioner vide order dated 29.11.2011, therefore, it was enjoined upon the Respondents No. 2 and 3 to notify the correction of date of birth is not tenable. A perusal of order of the Prime Minister dated 29.11.2011 reveals that correction of date of birth was liable to be made in accordance with prescribed rules. The prescribed rules do not support the claim of petitioner. However, orders of Prime Minister appended as (Annexure PL-2) which is undated as well as order regarding relaxation of Rule 67(2) of Financial Code (Annexure PM), as described in Para 4 of writ petition, have been denied in the written statement filed on behalf of Government-respondent and others. Even otherwise the above orders are unlawful and it is a settled principle of law that writ jurisdiction cannot be exercised to direct a person the give effect to an unlawful order of any authority, therefore, the same cannot be enforced through writ jurisdiction. The point was considered by the apex Court in a case titled Major Muhammad Aftab Ahmed (Retired) v. Azad Jammu and Kashmir Government (1992 SCR 307), wherein at page 312 of the report it was held as follows: "Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even though it is competent authority to pass such an order in a lawful manner. Since, as said earlier,, the appointment of the appellant could not be made to the post of Superintendent of Police under the rules the orders of the Prime Minister claimed by the appellant to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do not justify and call for to do so,"
10.The contention of the learned counsel for petitioner that on the basis of decree of Civil Judge, dated 12.07.2002, as Matriculation Certificate was corrected by the Board of Intermediate and Secondary Education, Lahore, which is binding on the respondents is misconceived. A perusal of judgment and decree supra reveals that none of the respondents were impleaded party in the case, hence, the same are not binding on the respondents. It is also liable to be observed that as per Section 48 of Civil Procedure Code, the execution of decree can be solicited by the decree holder within six years, however, petitioner failed to get it executed within prescribed period of limitation, hence, on the basis of the same no relief can be granted to him. Even on the basis of notification dated 29.12.1998 of Khawar Jarral, Sub-Judge, as well as notification dated 28.10.2008 of Abdus Shakoor Siddiqui, Headmaster, no relief can be extended to petitioner in view of statutory provision as discussed earlier.
11.For the reasons given above there is no merit in the instant writ petition, therefore, the same is hereby dismissed with no order as to costs.