Raja Saeed Akram Khan, J.-- The supra tiled appeal by leave of the Court has been directed against the judgment passed by the Service Tribunal on 15 June, 2015, whereby the appeal filed by respondent No.1, herein, has been accepted.
2. The brief facts of the case are that respondent No.1, herein, filed an appeal before the Service Tribunal challenging therein the contents of the order dated 22.7.2014 written by the Director Anti-corruption Establishment to the Deputy Inspector General of Police in which the year of retirement of respondent No. 1 was mentioned as 2015, whereas, he claimed that according to the school certificate and National Identification Card, his date of birth is 13.6.1956, therefore, the year of retirement comes to 2016. The learned Service Tribunal vide impugned judgment dated 15.6.2015 accepted the appeal. Hence, this appeal by leave of the Court.
3. Syed Azad Hussain, Advocate, the learned counsel for respondent No.1, raised preliminary objection that the petition for leave to appeal before this Court has been filed beyond the prescribed period of limitation, which is liable to be dismissed on this sole ground. When the learned counsel for the appellants was asked to meet the objection regarding the period of limitation, he submitted that the appellants got knowledge regarding the impugned judgment on 23.6.2015 when a notice regarding the announcement of the impugned judgment was received by the appellants from the Service Tribunal. If the period of limitation is reckoned from 24 June, 2015, then 22 August, is the last day for filing PLA/appeal before this Court. He submitted that under order II, Rule 2 of the Supreme Court Rules, 1978, the Saturday is declared as holiday during long vacations and on 23.8.2015 it was Sunday. One day was consumed by the appellants in obtaining the certified copies of the mandatory documents. Therefore, the last date of limitation for filing PLA/appeal is 23 August, 2015, whichth th nd rd was a holiday and the appellants filed petition for leave to appeal on 24.8.2015. Thus, the appeal was filed well within time. Therefore, the objection raised by the learned counsel for respondent No. 1 is ill-founded.
4. Mr. Ansar Khan Tahir, Advocate, the learned counsel for the appellants, argued that the judgment passed by the Service Tribunal is against law and the record which is not sustainable in the eye of law. He submitted that the learned Service Tribunal while passing the impugned judgment failed to adhere to law laid down by this Court in numerous pronouncements. He contended that the learned Service Tribunal has not taken into account that respondent No.1 in his whole service never applied for correction of his date of birth but at the verge of retirement, he moved an application for correction of the same according to his matriculation certificate. He added that the learned Service Tribunal also fell in error while not taking into account that at the time of joining service, the qualification of respondent No.1 was not metric, whereas, he passed the matriculation after joining his services. The learned counsel strongly argued that according to service record, the date of birth of respondent No.1 is entered as 4.08.1955, but this aspect of the case escaped the notice of the learned Service Tribunal. He further contended that the most relevant document in the case in hand is service book (Form Amaal Nama) which has not been appreciated by the Service Tribunal in its true perspective. In continuation of arguments, he submitted that the learned Service Tribunal has also not attended the stance take in the written arguments in which respondent No. 1 has categorically stated that as per National Identity Card and matriculation certificate, his dated of birth is 13.6.1956, whereas, in the Service Book, the same was entered as 4.8.1955. He contended that the respondent never approached any competent forum for correction of entry of his date of birth in the service record. The learned counsel has relied upon the cases reported as Secretary Services and 2 others vs. Bashir Mir [2015 SCR 851] and Sardar Khurshid Hussain, Deputy Inspector General vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary & 4 others [2012 SCR 23].
5. On the other hand, Syed Azad Hussain, Advocate, the learned counsel for respondent No.1, strongly supported the judgment passed by the Service Tribunal, while submitting that the same is perfect and legal and has been passed in accordance with law which is not open for interference by this Court. He further submitted that it is settled principle of law that the date of birth mentioned in the matriculation certificate is always given preference rather than that of mentioned in the service record or any other document. He strongly argued that at the time of joining the service, the department has got signature of respondent No.1 on a blank form/paper which was later on filled up and kept secret, therefore, the date of birth mentioned in the service record cannot be relied. He submitted that when the matter regarding the wrong entry in the service record came to the knowledge of respondent No. 1, he approached the concerned authorities while making the application which has not been properly attended, therefore, the learned Service Tribunal has rightly set aside the contents of the letter dated 22.07.2014 to the extent of the date of retirement.
6. We have heard the arguments of the learned counsel for the parties and perused the record made available.
The controversy involved in the matter is regarding the correction of date of birth of respondent No. 1. The claim of respondent No.1 is that his date of birth was wrongly entered as 4.8.1955 in the service record. At the time of joining the service, the department has got his signature on the blank paper, which was later on filled up and kept secret, whereas, his actual date of birth is 13.06.1956 as mentioned in the matriculation certificate and Computerised National Identity Card. Admittedly, the respondent joined his service on 04.08.1973 and according to service record his date of birth is entered as 4.8.1955. The argument of the learned counsel for the respondent that at the time of joining the service, the department has got signature of the respondent on a blank paper, which does not appeal to a prudent mind. Moreover, respondent No.1 failed to substantiate that he ever challenged the entry made in the service record. During the whole service, the respondent never approached any competent forum but after attaining the age of superannuation, he has taken the stance that his actual date of birth is 13.06.1956. The respondent has heavily relied upon the matriculation certificate which he has obtained in the year 1983, whereas, he joined his service on 04.08.1973, i.e., after about 10 years' of his service. It is also not denied that at the time of joining the service, the qualification of the respondent was not matriculation, therefore, the date of birth mentioned in the matriculation certificate cannot be given preference over the service record.
7. The argument of the learned counsel for respondent No.1 that he was not aware of the date of birth entered in the service record, has no force and is ill-founded, which cannot be taken into consideration. If for the sake of arguments, it is presumed that his date of birth was not correctly entered in the service record then the proper course was to agitate the matter at the proper forum for correction of entry of his date of birth in the service record. The same cannot be allowed to be raised at the time of retirement as laid down by this Court in a case reported as Muhammad Abdul Rehman Abbasi vs. Azad Government & 7 others [2015 SCR 1083], it has been observed as under:-- "9. While adverting to the argument of the learned counsel for the appellant that at the time of issuance of the retirement notification dated 15.8.2014, no opportunity of hearing was provided to the appellant, therefore, the principle of audi alteram partem' has grossly been violated. We are afraid that the contention of the learned counsel for the appellant is misconceived. As we have observed in the preceding paragraph that the appellant during his service never approached any competent forum for correction of entry of his date of birth in the matriculation certificate. He approached the Civil Court only ten months prior to the age of superannuation for correction of his date of birth in the matriculation certificate, which shows malafide of the appellant. Even otherwise, under section 12 of the AJ&K Civil Servants Act, 1976, (hereinafter to be referred as the Act, 1976) no right of hearing is provided to a civil servant in such like matters. Under the proviso to sub-section (iii) of section 12 of Act, 1976, the right of hearing shall be provided to such civil servants, who are being retired after completion of ten years qualifying service for pensionary or other benefits as envisaged in sub-section (i) of section 12 of the Act, 1976. As no such eventuality prevails in the case in hand, therefore, the question of personal hearing is not available to the appellant as he has been retired under section 12(ii) after attaining the age of superannuation, i.e., sixtieth years of his age."
In another case reported as Sardar Khurshid Hussain, Deputy Inspector General vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary & 4 others [2012 SCR 23], it has been held as under:-- "8. .....The petitioner's version, that his date of birth is 15.1.1956, is not acceptable because no one can be appointed in police service at the age of 15 years. The petitioner has no dispute regarding the date and month of birth, he only disputes the year of birth. He himself placed on record copy of service book (Form Aamal Nama) which bears his signatures at the end of the undertaking given by him, thus, it is clear that entry of his age/date of birth was well within his knowledge from very beginning but he has not taken any step till the process for his retirement is initiated........."
In the light of what has been discussed above, we are justified to hold that the learned Service Tribunal while passing the impugned judgment has not adhere to law referred to above and has wrongly given preference to the date of birth mentioned in the matriculation certificate and in National Identity Card over the service record.
Resultantly, the appeal is accepted. The judgment passed by the learned Service Tribunal is set aside with no order as to cots.