' AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 3rd September, 2014, the petitioner viz. Ghulam Ali Bughio has sought the following reliefs:- "1, To direct the respondents to correct their service record of petitioner date of birth and ascertain his superannuation on completion of 60 years as per petitioner's actual date of birth,
2. Any other relief which this Honorable Court may deem fit and appropriate."
2. The brief relevant facts in the background are as follows:---
3. The petitioner is working in 'Irrigation Department' as Assistant Engineer Civil in BPS-17 and currently posted at Dhamrah Sub-Division, Rice Canal Division II Mehar, at Khairpur Nathan Shah, District Dadu, Sindh.
4. The respondent No.1, per averments, is Principal Provincial Senior Officer of the petitioner, whereas respondent No.2, deals with all matters pertaining to the service of the petitioner amongst others. The respondent No.3, is subordinate officer of respondent No.1 and as being a concerned officer also regulates the matters and affairs of the group of officials to concerned, he according to the petitioner, is responsible for salary and other related financial matters of the petitioner.
5. Per averments of the petitioner, respondent No.3 issued letter No.A-II/2-4/94(410) dated 10th April, 2014 addressed to Chief Engineer [Irrigation], Sukkur Barrage Right Bank Region, Larkana [Annexure A' to the MoP] wherein it was mentioned/disclosed, that the petitioner's retirement is to take place on 14-9-2014 on account of attaining the age of superannuation i.e. Completion of 60 years. Per petitioner's assertions, in view of the aforementioned letter No.A-II/2-4/94(410) dated 10th April, 2014 issued by respondent No.3, the petitioner was required to furnish his 'Matriculation Certificate' [duly attested] immediately.
' The petitioner thus in compliance with the aforementioned letter No.A-II/2-4/94(410) dated 10th April, 2014, submitted his 'Matriculation Certificate' along with 'Provisional Certificate' and 'Primary School Certificate' with a request that the age of superannuation of the petitioner for the purpose of retirement in the light of his actual date of birth [in short DoB] be calculated with effect from 15- 9-1958 which is evident and can be ascertained from the 'photocopies of documents' submitted by the petitioner vide his letter of 8th May, 2014.
7. Nonetheless, the petitioner upon visit the office of the respondents Nos.1 to 3 on 1st September, 2014, came to know that the petitioner's request for change of his 'DoB' from 15-9-1954 to 15-9-1958 has not been entertained/accepted and the petitioner is going to retire per Notification No.A-II/2- 4/94(410) dated 3rd June, 2014 w.e.f. 14-9-2014 [A.N.] on attaining the age of superannuation i.e. 60 years.
8. The petitioner under the aforesaid scenario as asserted besides, feeling aggrieved has seriously been prejudiced thus has approached this court for redressal of his grievances by filing the instant Constitutional petition on 3-9-2014.
9. On 12-9-2014 when this petition came-up before Court, then the following order was passed:--- "12-9-2014 ' Mr. Fayaz Ahmed, Advocate for Petitioner [1]. Learned counsel for petitioner states that the matter was fixed on 11-9-2014 but could not reach on that date for hearing, therefore, present urgency application has been filed. Urgency application is granted.
[2-3]. As per learned counsel for petitioner date of birth of the petitioner mentioned in the academic record, CNIC and official record maintained by the respondents is 15-9-1958. However, the respondent No.3 vide letter dated 10-4-2014 [Annexure 'A' to instant MoP] informed the Chief Engineer (Irrigation), Sukkur Barrage Right Bank Region, Larkana that the petitioner is due to retire on 14-9-2014 [Sunday]. Request was also made in that letter to furnish duly attested copy of matriculation certificate of the petitioner. As per learned counsel for petitioner the said letter was received to the petitioner through department. Per learned counsel, the required matriculation certificate was provided to the concerned authority through a letter dated 9-5-2014 [Annexure 'B' to instant MoP].
On being asked to the learned counsel for petitioner as to why the petitioner has approached for correction of petitioner date of birth at the belated stage, he replied that the petitioner was in contact with the concerned authority who has not decided the dispute regarding date of birth of the petitioner as yet.
Repeat notices to the respondents and learned A.A.-G. For 18.98.2014(sic). Till next date of hearing, respondents are restrained from retiring the petitioner w. e.f. 14-9-2014, however, it is made clear that no adjournment would be granted to the learned counsel for petitioner on the next date of hearing. In case of non-appearance of learned counsel for petitioner or any request for adjournment on his behalf is made, interim order passed today shall automatically be vacated."
[Underlining is ours]
10. Upon service, respondent No.1 filed their elaborate and comprehensive 'comments'. In the comments all the relevant and material averments and the 'so-called request' of the petitioner regarding change of his 'DoB' from 15-9-1954 to 15-9-1958 was forcefully denied. Besides, maintainability of the Constitutional Petition was also questioned by the respondent No.1, inter alia, on the basis of bar of jurisdiction contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. According to respondent No.1, the matter in hand pertains to the 'terms' and 'conditions' of service of Civil Servant as such the Sindh Service Tribunal is the only competent 'forum' which can appropriately and suitably adjudicate upon the issue of 'Don' as the same is a 'factual dispute' which cannot be resolved without recording of evidence.
11. Per respondent No.l's version 'DoB' of the petitioner mentioned in his 'Matriculation Certificate'
[Annexure 'A' to the respondent No.l's, comments] has been duly verified/authenticated by the Controller of Examinations, Board of Intermediate and Secondary Education Hyderabad, and available on the respondent's record, is 15-9-1954. Moreover, the 'Seniority List' [Annexure 'B' to the respondent Nod's comments] issued by the concerned 'XEN' in 1991 also shows the petitioner's actual 'DOB' as 15-9-1954 and not 15-9-1958. The 'DoB'of the petitioner as being now alleged by the petitioner i.e. 15-9-1958 was emphatically denied on behalf of respondent No.1.
12. No doubt, the petitioner just before 'Retirement' has provided the photocopies of his Matriculation Certificate' along with 'Provisional Certificate' and 'Primary School Certificate vide his letter dated 8-5-2014 but the same were found tampered. The 'DOB' of the petitioner, per verified 'Matriculation Certificate', is 15-9-1954 and not 15-9-1958. The documents produced at this belated stage, nonetheless, are bogus and tampered documents, as according to the true and genuine 'Matriculation Certificate' issued by the Controller of Examination, Board of Intermediate and Secondary Education, Hyderabad, the true and the actual date of birth ['DoB] of the petitioner is 15- 9-1954. The 'Matriculation Certificate' available on the respondents' record is not only 'duly stamped' and verified but the same was provided/produced by the petitioner himself at the time of his appointment. Moreover, according to 'Certificate of Registration' issued by the Registrar, Pakistan Engineering Council, Islamabad, the date of birth ['DoB] of the petitioner also 15-9-1954.
13. Of course, per policy of the Government of Sindh, as conveyed by the Section Officer-II SGA&CD vide its letter dated 11-7-2002 [Annexure-'D' to the respondent No.I's comments], the petitioner, has now rightly been notified as retired from Government Service on attaining the age of superannuation i.e. [60] years w.e.f. 14-9-2014 [A.N] vide Notification No.A-II/2-4/94(410) dated 3- 6-2014 [Annexure 'E' to respondents' comments].
14. The 'photocopies of the documents' under the circumstances of the case, could not be believed as 'true' and/or 'genuine' documents. Further only the 'Matriculation Certificate' genuinely issued and verified by the Board of Intermediate and Secondary Education, is the 'mandatory requirement' for retirement of any Government Official/Officer, as per the Government policy, referred to hereinabove, and not the 'computerized salary slip and/or 'photocopies of ,documents'.
15. On I8-9-2014, when above Petition came up before us, we heard Mr. Manzoor Hussain, learned counsel for the petitioner, Mr. Sibtain Mehmood, learned A.A.-G. Along with Mr. Maqsood Ahmed, Deputy Secretary, Irrigation Department, Government of Sindh and also gone through the available record before us.
16. Mr. Manzoor Hussain, learned counsel for the petitioner strenuously contended that 'academic documents' of which 'photocopies' have been provided by the petitioner vide petitioner's letter No.SDC/G148 of 20I4 dated 8th May, 2014, [Annexure 'A to the MoP], the petitioner's date of birth
[DoB] is 15-9-I958 and not 15-9-1954. The petitioner, thus according to the learned counsel for the petitioner, would be going to retire on 14-9-2018 and not on 14-9-20I4 in terms of Notification No.A- I1/2-4/94(410) dated 3rd June, 2014 as such the grievance of the petitioner deserves to be redressed by the court in the instant petition as prayed.
17. Mr. Manzoor Hussain, further contended that the petitioner's retirement on reaching/attaining his age of superannuation, as per respondent's version on I4-9-2014 besides 'misleading' is 'misconceived' and if the petitioner is let to retire on 14-9-2014 instead of 14-9-20I8 then, indeed, such retirement on the basis of 'so-called superannuation' on 14-9-2014, no doubt, would cause serious prejudice and financial losses to petitioner.
18. Learned counsel for petitioner also urged that respondents are duty bound to keep the petitioner's record straight and correct. Per Mr. Manzoor Hussain, in the present case, respondents have badly failed to maintain the petitioner's record properly and correctly. Learned counsel for petitioner, next contended that respondents are also duty bound to ascertain the real age of petitioner [i.e. I4-9-1958] on the basis of 'Documents' provided in the Month of May, 2014 by the petitioner.
19. Learned counsel for the petitioner further urged that per 'academic documents' i.e. 'Matriculation Certificate', 'Provisional Matric Certificate', 'Primary School Certificate, Computerized National Identity Card', 'Computerized Salary Slip' and 'General Register of the High School' having G.R.No.1216, the date of birth ['DoB'] of the petitioner is 15-9-I958 and not 15-9-1954, as misunderstood by the official respondents.
20. Lastly, Mr. Manzoor Hussain, prayed for grant of the instant petition inter alia with direction to the respondents to correct the petitioner's 'DoB' and calculate his age of superannuation [i.e. 60 year with effect from the petitioner's actual date of birth i.e. 15-9-1958 and not 15-9-1954.
21, Conversely, Mr. Sibtain Mehmood, learned A.A.-G. Argued that the present petition as 'framed' and 'filed' is barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 and in view of this legal position, the dispute in question, of course, falls exclusively within the jurisdiction of Sindh Service Tribunal [in short SST]. Nevertheless, learned A.A.-G. While, further arguing the case, forcefully contended that even on merits, the petitioner has 'no case' rather to say has 'zero margin case'.
22. Learned A.A.-G. Further submitted that all 'photocopies of documents' supplied to respondent No.1 by the petitioner at the verge of his 'RETIREMENT' through letter No.SDC/G-148 of 2014 dated 8- 5-20I4 [Annexure 'B' to the MOP] besides, being 'photocopies' are tampered one According to learned A.A.-G, per the 'Matriculation Certificate' issued by the Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, and also verified from the Board, the date of birth [' DoB'] of the petitioner is 15-9-1954. The said 'Matriculation Certificate' besides being duly stamped was produced by the petitioner himself.
23. Not only this, Mr. Sibtain Mehmood, learned A.A.-G. Also focused our attention towards the 'CERTIFICATE OF REGISTRATION', issued by Registrar, Pakistan Engineering Council, Islamabad bearing No.40260 dated 15-11-1990 [Annexed with respondent No.I's comments] and urged that it also shows the date of birth ['DoB'] of the petitioner as 15th September, 1954 and not 15th September, 1958.
24. Apart from the above, Mr. Sibtain Mehmood, learned A.A.-G. Made reference to the Application of the petitioner, addressed to the Hon'ble Chief Minister of Sindh, on 29-1-1994 for the post of Assistant Executive Engineer Irrigation Department, [Annexed with the respondent No.l's comments] wherein the petitioner himself has mentioned his date of birth ['DoB.] as 15-9-1954.
Learned A.A.-G. Under circumstances, strenuously submitted that under law one cannot be permitted to approbate and reprobate.
25. For the established position on record and per 'policy' of the Government of Sindh, according to Mr. Sibtain Mehmood, learned A.A.-G., the Section Officer [ADMN-II], SGA&CD, indeed, has rightly conveyed through Notification No.A-II/-24(410) dated 3rd June, 2014 [Annexure 'E' to the respondent No.l's comments] to the petitioner his date of 'RETIREMENT' from service on attaining the age of his superannuation [i.e. 60 years] w.e.f. 14th September, 2014 [A.N.]. Such date of 'RETIREMENT', per learned A.A.-G. Is absolutely proper and quite in accordance with record maintained by respondents. Lastly, Mr. Sibtain Mehmood, learned A.A,-G. Prayed for dismissal of the petition as being not maintainable under law and also devoid of any merits.
26. Heard and perused the available record.
27. Upon conclusion of arguments by 'short order' dated 18-9-2014, we dismissed instant Petition at Katcha Peshi stage along with all pending/listed applications. The 'short order' dated 18-9-2014 reads as follows:--- "19-9-2014 ' Mr. Manzoor Hussain Advocate for petitioner.
' Mr. Sibtain Mehmood, A.A.-G. Along with Maqsood Ahmed, Deputy Secretary, Irrigation Department Government of Sindh.
' For the reasons to be recorded later on, this petition is dismissed along with listed application."
28. Before proceeding with reasons at this stage, we would like to reproduce herein the letter No.A- II/2-4/94(410) dated 10th April, 2014 of respondent No.3 [Annexure 'A' to the MoP] which reads as follows:- Most Immediate Through UMS/Fax No.A-II/2-4/94 (410)
' GOVERNMENT OF SINDH IRRIGATION DEPARTMENT Karachi, dated 10th April, 2014 ' To, ' The Chief Engineer (Irrigation), ' Sukkur Barrage Right Bank Region, ' Larkana ' SUBJECT: SUBMISSION OF MATRICULATION CERTIFICATE FOR ISSUANCE OF RETIREMENT NOTIFICATION ON ATTAINING THE AGE OF SUPERANNUATION ON COMPLETION OF (60) YEARS OF SERVICE ' I am directed to refer to the subject noted above and to state that Mr. Ghulam Ali Bughio, Assistant Executive Engineer Civil (BS-17), presently posted at Dhamrah Sub-Division, Dhamrah is due to be retired w.e.f 14-9-2014 from government service on attaining the age of superannuation viz completion of (60) years.
2. It is, therefore, requested to kindly furnish matriculation certificate (duly attested) in respect of Mr. Ghulam Ali Bughio, Assistant Executive Engineer Civil (BS-17) to this department immediately by TCS so that the retirement of above officer may be notified accordingly. [Underlining is ours]
3. This may be assigned top-priority.
Sd/-10-4-2014 (MUHAMMAD AHMED SHAIKH)
SECTION OFFICER (ADMIN-II)"
29. Evidently, the above letter is addressed to 'Chief Engineer [Irrigation] Sukkur Barrage, Right Bank Region, Larkana and not to the petitioner. Somehow, the petitioner managed to obtain copy of the aforementioned letter of 10th April, 2014 and thereafter, perhaps out of his own sweet 'will' and 'wish', the petitioner wrote/addressed letter No.SDC/G-148 of 2014 dated 8th May, 2014 to the Secretary Irrigation Department, Government of Sindh, Karachi and seemingly enclosing therewith some 'photocopies of documents'. The aforementioned letter of the petitioner dated 8th May, 2014 [Annexure 'B' to the MO] reads as follows:--- "No. SDC/G-148 of 2014.
' Badeh dated 8-5-2014.
' To, ' The Secretary, ' Irrigation Department, Government of Sindh, Karachi.
' SUBJECT: SUBMISSION OP MATRICULATION CERTIFICATE FOR ISSUANCE OF RETIREMENT NOTIFICATION ON ATTAINING THE AGE OF SUPERANNUATION ON COMPLETION OF (6) NEARS OF SERVICE.
' In compliance to Government letter No.A-2/ 2-4/94(410) dated 10-4-2014 on the subject noted above.
' It is stated that I, the undersigned Ghulam Ali Bughio am working as Assistant Executive Engineer (BS-17) in Dhamrao Sub-Division, Rice Canal Division Larkana of Sukkur. Barrage Right Bank Region.
Larkana, beg to submit photocopy of Matriculation Certificate showing date of Birth 15-9-1958 issued by Board of Intermediate Secondary. School Hyderabad as well as Primary School Certificate with proof of School General Register duly attested for favour of your kind perusal and keeping of my correct date of Birth as 15-9-1958 as per my academic qualification certificates in my Government service Bio Data and obliged. [Underlining is ours] ' 0/C (GHULAM ALI BUGHIO ' Assistant Executive Engineer (BS 17)
' Dhamrao Sub-Division ' Copy forwarded with compliments to the chief Engineer Sukkur Barrage Right Bank Region Larkana for kind information.
' 0/C (GHULAM ALI BUGHIO ' Assistant Executive Engineer (BS 17)
' Dhamrao Sub-Division."
30. Manifestly, the request of the petitioner was not entertained and the 'process of retirement' of the petitioner remained continue to take place w.e.f. 14-9-2014 A.N. Ex-facie, on the basis of record available with respondents. Needless to say, for 'RETIREMENT ON SUPERANNUATION' , the only document needs to be considered is 'MATRIC CERTIFICATE'. This factum, can be seen and ascertained from the letter of Section Officer-II of Services, General Administration and Coordination Department, Government of Sindh, Karachi bearing No.SOII(S&GAD)3-46/2002 dated 1st July, 2002. For ready reference and convenience purpose, the said letter is reproduced here -in- below:--- ' SOII(S&GAD)3-46/2002 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT ' Karachi, dated the 1st July, 2002 ' To, ' All Administrative Secretaries, ' Government of Sindh, ' Karachi.
' SUBJECT: DOCUMENTS REQUIRED FOR RETIREMENT AND ENCASHMENT OF LPR ' I am directed to refer to the subject noted above and to state that the cases of retirement and encashment of LPR may please be sent to this Department, complete in all respects as required under the, rules. You may please make sure to enclose the following documents, duly authenticated to avoid un-necessary delay in finalization of case(s) and resultant inconvenience caused to the applicant(s).
1. RETIREMENT ON SUPERANNUATION
(i) Matric certificate
2. RETIREMENT ON VOLUNTARY BASIS
(i) Application of officer
(ii) Service qualifying certificate
(iii) No enquiry/No dues certificate specifying the date of issuance of certificate
3. ENCASHMENT IN LIEU OF LPR (1) Notification of retirement
(ii) LAC issued from A.-G. Sindh
(iii) No enquiry/No dues certificate specifying the date of issuance of certificate.
' Sd/- ' (ALI BAHADUR KAZI)
' SECTION OFFICER II"
31. Now coming to the question of maintainability of the Petition, it is significant to note that the instant petition filed by the petitioner is only for seeking a direction to respondents to correct their 'service record' regarding the petitioner's date of birth ['DoB'] and ascertain his superannuation on completion of 60 years, as per petitioner's actual date of birth ['DoB']. From perusal of the 'prayer clause' reproduced hereinabove, it is evident that the petitioner is only seeking correction of the respondents' record and not asking for change of his 'DoB' from 15-9-1954 to 15-9-1958. Seeking such declaration seemingly is not barred or otherwise, hit by Article 212[2] of the Constitution of Islamic Republic of Pakistan, 1973 because this court, obviously, has ample A powers to issue such like direction under its Constitutional Jurisdiction to the respondents but, of course, where the illegality is quite apparent on the face of record and/or there is a clear violation of any 'vested' and 'established' legal right. Manifestly, Constitutional Jurisdiction is only meant for safeguarding/protecting the 'vested right' and not for establishing any right through evidence.
32. Now coming to the merits of the case, from the record, it is crystal clear that long long ago i.e. In year, 2002, Section Officer-II through his letter No.SO-II(S&GAD)3-46/2002 of 1st July, 2002, duly addressed to all Administrative Secretaries, Government of Sindh, Karachi, had asked for the relevant and authenticated 'documents' for the purpose of 'Retirement' and 'Encashment in lieu of LPR'. Likewise, through another letter No.A4/3-1/95-IV dated 5th August, 2003, Section Officer [ADMN-I] for Secretary, Government of Sindh, Irrigation and Power Department had made similar request to the Managing Director [SIDA], Hyderabad, all the Chief Engineers Irrigation, all the Superintending Engineers/Directors and all the Electric Inspectors. The letter No.A-I/3-1/95-IV dated 5th August, 2003 reads as follows : "MOST IMMEDIATE ' No.A-I/3-1/95-IV ' GOVERNMENT OF SINDH ' IRRIGATION AND POWER DEPARTMENT ' Karachi: Dated 5th August, 2003 ' To, ' The Managing Director (SIDA), ' 28-A Civil Line, Hyderabad ' The Chief Engineers, Irrigation (All), ' The Superintending Engineers/Directors (All), ' The Electric Inspectors (All)
SUBJECT. DOCUMENTS REQUIRED FOR RETIREMENT AND ENCASHMENT OF L.P.R.
' I am directed to refer to the subject noted above and to state that the SGA&C Department has advised that the cases of retirement and encashment of LPR may be furnished, complete with the following documents duly authenticated to avoid un-necessary delay in finalization of cases: ---
1. RETIREMENT ON SUPERANNUATION (i) Matric certificate
2. RETIREMENT ON VOLUNTARY BASIS
(i) Application of officer
(ii) Service qualifying certificate
(iii) No enquiry/No dues certificate specifying the date of issuance of certificate.
3. ENCASHMENT IN LIEU OF LPR
(i) Notification of retirement
(ii) LAC issued from. A.-G. Sindh
(iii) No enquiry/No dues certificate specifying the date of issuance of certificate.
2. You are, therefore, advised that in future while forwarding the above said cases, ensure that the required documents are attached. You are further requested to please direct the all officers in BS- 17 and above to furnish Matric certificate duly attested to this Department, within three days positively. ' sd/- ' (BADEREUDDIN MEMON)
' SECTION OFFICER ' FOR SECRETARY TO ' GOVERNMENT OF SINDH ' No,A-1/3-1/95-IV, Karachi, dated the 5th August, 2003.
' A copy is forwarded to Mr. .....................................................................
2. He is requested to furnish a copy of Matric Certificate duly attested within three days positively.
' SECTION OFFICER (ADMN-1)
' FOR SECRETARY TO ' GOVERNMENT OF SINDH"
33. In response to the aforementioned letters reproduced hereinabove, the needful, nonetheless, has been done as is evident from the record available. The 'MATRIC CERTIFICATE' issued by BISE, Hyderabad placed on record by the respondent No,1 with their 'comments' shows the 'DoB' of the petitioner is 15th September, 1954 and not 15th September, 1958 as alleged/claimed by the petitioner.
34. Moreover, a 'Seniority List'. Of Sub-Engineer, working in Southern 'Dadu' Division, Western Sindh Circle, Larkana, was also prepared in the year 1991 [i,e, 1-1-1991]. Per the aforesaid 'Seniority List', the name of the petitioner is .Appearing at Serial No,27 and at the relevant time, the present petitioner viz. Ghulam Ali Bughio was in 'BPS-11'. Per the said 'SENIORITY LIST' prepared in the year, 1991, the date of birth ['DoB'] of the petitioner has been recorded as 15-9-1954 and the date of 'Entry in service' has been shown as on 24-6-1990. All the above referred 'documents' show that the petitioner's actual date of birth ['DoB'] is 15th September, 1954 and not 15th September, 1958 as claimed by the petitioner.
35. The petitioner, nonetheless, remained silent during long long period of service rather got promoted keeping in view the said 'Seniority List'. The petitioner, presently is working in 'Irrigation Department' as Assistant Engineer Civil, 'BPS-17' and per averments, is/was posted at Dharma, Sub- Division, Rice Canal Division II, Mehar at Khairpur Nathan Shah, District Dadu. Under law, it is needless to say, one cannot approbate and reprobate. Reliance in this regard can be placed on the case of Overseas Pakistani Foundation and others v. Sqn Ldr [Retd.] Syed Mukhtiar Ali Shah and another [2007 SCMR 569] wherein, it was observed as follows:--- "4. It is also settled law that nobody is allowed to approbate and reprobate as law laid down by the court in Ghulam Rasool's case PLD 1971 SC 376"
36. It is very strange, that the petitioner when he is at the 'verge of his retirement' is seeking direction to the respondents for correcting the DoB' of the petitioner in their service record that is to say change of the petitioner's 'DoB' from 15-9-1954 to 15-9-1958. Such direction at this belated stage, of course, cannot be granted inter alia on the ground of laches. The instant Petition has been filed on 3rd September, 2014 just '11 days' before his retirement on 14-9-2014, after serving for decades. The petitioner, in his own wisdom, however, remained dormant for many years without making any efforts for correction of his 'DoB'. It is significant to note that in a number of 'documents' referred to hereinabove, the petitioner himself has mentioned his 'DoB' as 15-9-1954. In this regard his application dated 29-1- 1994 addressed to the worthy Chief Minister Sindh is reproduced for convenience and ready reference as under :--- "To, ' The Honourable Chief Minister, ' Government of Sindh, ' KARACHI.
' Subject:-- REQUEST FOR THE POST OF ASSISTANT EXECUTIVE ENGINEER IRRIGATION DEPARTMENT ' R/SIR, ' Having come to know that some posts of Assistant Executive Engineer Irrigation Department are lying vacant under your kind control. I beg to offer my humble services for one of them. my PARTICULARS ARE AS UNDER ' Name:- Ghulam. Ali ' Father's Name:--- Jan Muhammad Jughio ' Date of Birth:- 15-9-1959. [Underlining is ours] ' Domicile/P.R. C. District Dadu ( Rural Area).
' Qualification. XXX XXX. B. Sc. In Physics From Sindh University Jamshoro And B. E. Civil Engineering From Mehran University Engineering and Tec: Jam Shoro.
' Sir, I am poor man sitting without any job.
' I am xxx given the Chance I assure you sir that .I shall prove my self fit for the job.
' Thanking in your: anticipation.
' YOUR's Obediently ' Sd/- (GHULAM ALI BUGHIO)
' Dated: 29-01-94 ' Address: ' C/O Bughia Petrol Pump ' Khairpur Nathan Shah District Dadu.
' Sindh.
2. Iram Appartments, Block-D/308 ' Gulshan lqbal-17, Karachi."
37. In the case of State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others [2012 SCMR 280] the Hon'ble Supreme Court of Pakistan while, dilating upon the 'doctrine of laches' has observed as follows:--- "30. ... Lathes is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
' It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent. In the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has held that lathes per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/lathes in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is_forthcoming cannot be overlooked or ignored subject to facts and circumstances of each case.
' In this very case reference has also been made to words of Lord Camden L. C: from the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been observed that "a Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time; nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence,' where these are wanting the Court is passive, and does nothing". Cited judgment also refers to a book titled Snell's Equity by John Meghee 13th Edition, wherein at page 35 it has been observed that "the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine; where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material."
' In Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali (PLD 2003 SC 132), this Court has held that "writ jurisdiction is undoubtedly discretionary and extraordinary in which may not be invoked by a party who demonstrates a style of slackness and laxity on his part ... Law is well- settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. "
[Underlining is ours]
38. For the first time i,e, in May, 2014, it is dawned upon the petitioner that his 'DoB' was wrongly recorded in the 'service record'maintained by the respondents. It is significant to note, that now law D does not permit to agitate such issue of correction of 'DoB' after joining of service. In this regard, we would like to refer to Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which reads as under:- "[12A. 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 servants shall be permissible]."
39. Bare perusal of the aforesaid rule would show that a date of birth ['MB] once recorded at the time of joining of government service then it shall be final and thereafter no alteration in the date of birth ['DoB'] shall be permissible Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 was inserted by SRO 521(I) on 31st July, 2000.
40. The idea behind to have the date of birth ['DoB'] altered seems an 'off shoot' of an afterthought.
It has now become a common practice for the civil servants that they usually make attempts for correction of their 'DoB' when they come to the verge of their retirement just to prolong their tenure for enjoying the 'perks' and 'privileges' for a few more years at the cost of others. Moreover, the question pertaining to correctness of 'DoB' or otherwise of the 'DoB' in service, in our view, is a pure question of fact and such drill of correcting the 'DoB' cannot be done much-less in the writ jurisdiction as the same requires evidence.
41. Prior to the incorporation of Rule 12A in the Civil Servants [Appointment, Promotion and Transfer] Rules, 1973, the Hon'ble Supreme Court of Pakistan in the case of Syed lqbal Haider v. Federation of Pakistan and another [1998 SCMR 1494] while, approving the challenge of authenticity in the date of birth ['DoB'] within a period of two years only in service record and not beyond the period of two years of joining of service, has observed as follows:- "12. We may also refer to the submission made by the learned Attorney-General that, in Government service, an employee cannot make any application for change in his date of birth after two years. On analogy, such rule should also be followed in judiciary, which otherwise would lead to, serious complications, and open a pandora's box. Similarly, authenticity of date of birth recorded in the documents cannot be challenged belatedly, specially beyond the abovementioned period." [Underlining is ours]
42. Likewise, the Hon'ble Supreme Court of Pakistan while, dilating upon the filing of the cases at the 'verge of retirement' and deprecating . Such practice of the filing of cases for change of date of birth ['DoB] has observed in the case of Qamaruddin v. Pakistan through Secretary, Establishment Division Islamabad and another [2007 SCMR 66] as follows:--- "5. ... 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 any substantial question of law having public importance."
43. The petitioner's retirement Notification No, A-1112-4/94(410), in the case in hand, was issued much earlier i,e, on 3rd June, 2014, however, the petitioner in his 'own wisdom' and obviously in a calculated manner, filed the instant Petition on 3-9-2014 i,e, only 11 days' before his 'RETIREMENT' due on 14-9-2014. The Notification No,A-II/2-4/94(410) of 3rd June, 2014 being relevant is also reproduced as follows:--- ' GOVERNMENT OF SINDH IRRIGATION DEPARTMENT Karachi, dated the 3rd June, 2014 NOTIFICATION ' No,A-111/2-4/94(410): Mr. Ghulam Ali Bughio, Assistant Engineer Civil (BS-17) presently posted at Dhamrah Sub-Division, Dhamrah shall stand retired from Government Service on attaining the age of superannuation (i,e, 60 years) w. e.f. 14-9-2014 (A N). [Underlining is ours] ' BABAR HUSSAIN EFFENDI SECRETARY TO GOVERNMENT OF SINDH ' No, A -11/2-4/94 (410) Karachi dated 3rd June, 2014.
' A copy is forwarded for information and necessary action to:
1. The Accountant General Sindh, Karachi.
2. The Chief Engineer (Irrigation) Sukkur Barrage Right Bank Region, Larkana.
3. The Superintending Engineer, Western Sindh Circle, Larkana.
4. The Additional Secretary (Admn) Irrigation Department, Karachi.
5. The Deputy Secretary (Admn) Irrigation Department, Karachi.
6. The Executive Engineer, Rice Canal Division, Mehar Khairpur Nathan Shah District Dadu.
7. The District Accounts Officer, concerned.
8. The Officer concerned.
9. Office order file.
' Sd/-3-6-2014 0/C BABAR HUSSAIN EFFENDI SECRETARY TO GOVERNMENT OF SINDH"
44. The present petitioner remained in service for many many years but abruptly now he came to know about his 'so-called' actual date of birth i,e, 15-9-1958 on or about 8th May, 2014. It is worth to note that the petitioner in his 'APPLICATION-CUM-BIO-DATA' addressed to worthy Chief Minister Sindh in the year, 1994 had clearly mentioned his date of birth ['DOW] as 15-9-1954. Agitating of such plea at this belated stage besides calculated is apparently aimed to only prolong his tenure for enjoying the 'perks' and 'privileges' for a few years more only at the cost of others. Such aimed enjoyment of financial gains, however, under the facts and circumstances of the present case, cannot be permitted. In the case of Khalil Ahmad Siddiqui v. Pakistan through Secretary Interior, Interior Division, Government of Pakistan and 5 others [2003 PLC (C.S.) 696], wherein in identical situation it was held as under:- "6. ... Why did the petitioner sit and sleep over it for decades and decades together has not been plausibly explained anywhere either in the writ petition or in rejoinder or during the course of arguments addressed at the bar. Why did the petitioner make no effort to get corrected the very basic document of Secondary School Certificate from the Board concerned is another circumstance which violently militates against the genuineness of the stand adopted by him as to the date of birth. ... It, is a matter of fact, has become a common phenomenon and usual practice that the Government Servants if and when they come at the verge of their retirement, they question their dates of birth just to prolong their tenure and enjoy the perks and privileges of their service for a few more years at the cost of others. This idea never creeps across their mind earlier and in case it does, it is never taken seriously and pursued to the desired end. It is clearly and sequarely a case of estoppel of conduct which will certainly bar and barricade the petitioner from seeking the correction asked for at least at such a belated stage". [Underlining is ours]
45. The petitioner's attempt at the verge of retirement after serving his department for decades has failed to offer any plausible explanation either in the Constitutional Petition or before us to justify the in-ordinate delay for correcting his so-called actual date of birth ['DoB'].
46. Moreover, the petitioner at the time of joining the service decades ago also did not 'reserve' his right if any, to seek amendment subsequently in his date of birth ['DoB'] nor otherwise, placed before us reliable materials reflecting that he had/has approached any competent/appropriate forum for correction of his date of birth ['DoB'], during his service with respondents within two years of joining the service or otherwise.
47. It is significant to note, that the petitioner has now already stand 'retired' from the service w,e,f, 14th September, 2014 [A.N], pursuant to Notification No,A-II/2-4/94 [410]: dated 3rd June, 2014.
48. Keeping in view the above position, the instant Petition was 'dismissed' along with 'listed applications' by our 'short order' dated 18th September, 2014 after having found the same devoid of any merits and also in-competent in law at' the KATCHA PESHI's stage. These are the detailed reasons for our aforesaid 'short order' [Reproduced in 'para 27' hereinabove] whereby, the instant Petition along with the listed Applications was dismissed.