Waqar Ahmad Seth, J.--Ghafoor Khan, petitioner herein, through the instant writ petition seeks issuance of an appropriate writ with the following prayer:-- "It is therefore, most humbly prayed that on acceptance of the instant Writ Petition, the respondents may be directed to release the salaries of the petitioner from the date from which it was stopped with all back benefits forthwith and to decide his appeal for correction of his date of birth in his service record".
2. Brief facts of the case are that the petitioner is working as Chowkidar at GGPS Sikandar Khan Killi Tehsil Takht Bhai, District Mardan since 4.12.1995, however, on 3.5.2013, his salary was stopped verbally by the respondents and when the petitioner came to know about his incorrect date of birth recorded in his service book, he approached the respondents for correction of the same but to no avail, thus, he filed a suit for the purpose before the civil Court and a decree was passed in his favour. After passing the decree, the petitioner time and again requested the respondents to release his salaries and also filed appeal before them for correction of his date of birth but neither his salary was released nor his appeal was decided; hence, the instant Writ Petition.
3. Arguments heard and record perused.
4. The case of petitioner is for release of his salaries from the date it was stopped and for correction of his date of birth in his service record. In para-4 of the facts in writ petition, it is contended that petitioner was not in knowledge of his in incorrect date of birth M his service book as 31.5.1953, instead of 5.01.1958 and when he came to know about the same he time and again approached to the respondents, after rendering one year service, for correction of the same, but to no avail, however, at last he was directed to approach the civil Court in this regard.
5. Petitioner is relying on a Suit No, 130/1 of 2013, instituted on 4.3.2013, decided on 25.3.2014 whereby his suit for declaration etc seeking correction in the date of birth as wrongly entered in the record of NADRA. The suit was decreed and defendant's i.e NADRA was directed to enter the correct date of birth of petitioner as 5.01.1958 instead of 31.05.1953. Importantly, petitioner has not arrayed his parent department i.e present respondents in the writ petition as defendants in the civil suit which under the law was the requirement as petitioner is a civil servant. According to the date of birth mentioned in the official record of present respondents Le Education Department as 05.01.1953 the date of retirement/superannuation would come, 2013 and as such the department in time informed the petitioner regarding his superannuation and the proof is that in the year 2013 petitioner instituted his civil suit.
6. It is highly amazing that petitioner remained satisfied with regard to his entries in the service book as well as CNIC for about three decades but abruptly towards the end of his service career took the matter to the civil Court and that too, for correction of his date of birth in the CNIC and not in his service record. This is growing tenancy amongst government employees for making attempts to change their date of birth when nearing superannuation. This vires appears to be fast spreading and needs to be effectively check and for that purpose the Hon'ble apex Court in its numerous judgments since long very consistently had depreciated such tendency. In this behalf we are supported by following judgments of the apex Court abstract are reproduced as under:-
(i) 1994 SCMR 1633 (M.R. Khalid v. Chief Secretary, Punjab): "After hearing the learned counsel for the petitioner, we are not persuaded that any case for interference with the judgment of the learned Tribunal has been made out. Admittedly, while taking the competitive examination the petitioner had himself declared his date of birth to be 2.6.1930. He remained in service for about 35 years thereafter. His name together with his declared date of birth appeared in the gradation lists and civil lists periodically published by the Provincial Government.
He did not object to the incorrect publication of his date of birth till a few years before his retirement. The mere fact that he was able to obtain a decree from the Additional District Judge did advance his case for Government was not a party to the civil suit brought by him. Though the Government has undoubtedly the power to correct an incorrectly recorded date of birth of a civil servant was such that he did not merit a favourable decision from the Government. We are, therefore, unable to find any substance in this petition.
(ii) 1998 SCMR 801 (Haq Nawaz Kiani vs. The Province of Punjab): "On thorough scrutiny, we have noticed that service rules regarding correction of age within two years from entry into service are apparently sound and logical. Government servant cannot be normally permitted to rise from deep slumber and dramatically announced change in the date of birth when about to retire. The Service Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons by declining the relief. In our opinion, legal position dismissed that conclusion drawn by the Service Tribunal for passing impugned judgment do not suffer from any defect illegality of impropriety. We wish to observe that lately a tendency has developed whereby unwarranted claims attempting to show errors 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. Additional, the grievances agitated before us do not make out any substantial question of law having public importance.
(iii) 1998 SCMR 602 (Pakistan Broadcasting Corporation v. Subedar Major (Redt.) Abdul Razzaq)
"Coming to the entry copy P-1 in the Birth Register, it is worthy to note that it was issued on 12.8.1935.
The respondent sought declaration from Civil Court in respect of said entry in Birth Register in 1971.
Said decree was obtained in a suit filed by the respondent against the public-at-large. At least the Authorities maintaining the Birth Register, should have been impleaded in said suit as defendants.
Said decree by no stretch of imagination, can be binding on anybody, much less on the appellant.
There is no explanation as to why the respondent waited for a period of 36 years to obtain the decree. In this case deposition, the respondent appearing as PW-2 admitted that he was recruited in army in August, 1943 and that he had mentioned his age to be 16 years. He further stated that he had obtained the birth certificate in 1935. This would amount to saying that the respondent disowned copy of entry Exh. P-1, which was admittedly obtained on 12.8.1935 as per the endorsement on it".
(iv) 1998 SCMR 1494 (Syed Iqbal Haider vs. Federation of Pakistan)
"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 above mentioned period."
7. The Government of Pakistan vide SRO No, 521(1)/2000, dated 31.07.2000, in view of the declaration made by the apex Court, issued notification and in consequence to which Rule 12-A was inserted in the civil servants (Appointment, Promotion and Transfer) Rules, 1973 (Federal.) which reads as under:-- "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".
8. This rule and SRO has been practically adopted by the provincial government as well, but unfortunately no amendment has been brought in KPK, (Appointment, Promotion and Transfer)
Rules, 1989. However, for all practically purposes the two years from the date of initial appointment, for the purpose of correction in date of birth, is applicable to the case of petitioner. Even in the judicial services same is the requirement. In the case of Syed Iqbal Haider vs. Federation of Pakistan, reported in 1998 SCMR-1494 (b) & (c) it has been held as under:--
(b) ---Correction of date of birth---Contention that date of birth could not be corrected merely on the basis of an affidavit was misconceived.
(c) ---Age of employee---application of employee for change in his date of birth---Government employee under the relevant Rules cannot make any application for change in his date of birth after two years of his joining the service---Authenticity of date of birth recorded in the documents, therefore, cannot be challenged belatedly specially beyond the period of two years---Supreme Court desired that such Rule with regard to correction of age should be applied to judiciary.
9. Even otherwise, the decree so obtained by the petitioner from the civil Court of law is not binding or applicable to the respondents/government department as firstly, petitioner has not arrayed the Education Department a party in the suit secondly; same is the job of civil Court, in this respect.
Petitioner suit was merely against NADRA for the correction of his date of birth in the CNIC. In the case of Muhammad Tariq vs. University of Peshawar, reported in 2004 PLC (CS) 1162 (a) & (b)
(Supreme Court) it has been held as under:--
(a) ---Age---Date of birth, correction of---Limitation--Plea of civil servant with regard to wrong entry of date of birth, when raised after remaining in service for a long period, would not carry any weight--- Civil servant could not make application for change in his date of birth after two years of joining service---Authenticity of date of birth recorded in documents when civil servant joined service, could not be challenged belatedly.
(b) ---S.9---Constitution of Pakistan (1973), Art. 212--Suit by civil servant for correction of date of birth--- Maintainability---Plea raised with regard to age would fall within jurisdiction of Service Tribunal-Such suit would not be maintainable in view of bar contained in Art. 212 of the Constitution.
Likewise, in the case of Government of Baluchistan vs. Marjan Khan, reported in 2003 SCMR-444 (b) it has been held that:--
(b) ---Age of civil servant---Essential term of conditions of service---Date of birth of a civil servant is the sheet anchor for determining his superannuation on which date he is to bid farewell to the Department thus it is pivotal and most crucial and essential term and condition of his service.
10. Petitioner has enclosed annexure-A an original application dated 7.12.1996 for correction of his date of birth in service record which seems to be a bogus and manufactured document as the same do not contain any official stamp and secondly if it was correct then why petitioner has not filed his suit for declaration in the year 1996 for correction in the date of birth in CNIC. Civil servant, at the stage of retirement could not be allowed to take any benefit regarding a matter about which he himself was negligent and illiteracy or otherwise of civil servant was no ground, at all.
11. In view of above this writ petition being bereft of legal substance is hereby dismissed in limine, however, petitioner may approach the appropriate forum against the Government Department/parent Department as disputed facts are involved.