Qazi Khalid Ali, Chairman ....The appellant filed Suit No. 1991 of 2018 on n.10.2019 before the Hon'ble Sindh High Court, Karachi praying for correctio n in his date of birth from "01.06.1959" to "08.12.1960" which has been remitted to this Tribunal for want of jurisdiction vide order dated 25.02.2019. The record and proceedings of the suit received from Hon'ble High Court on 05.03.2019 and this Tribunal registered the suit as an appeal under Section 4 of the Service Tribunals Act, 1973.
2. The background and facts leading to file this appeal are that the appellant filed Suit No. 1991/2018 before the Hon'ble High Court of Sindh at Karachi for declaration, direction, cancellation and injunction to declare that the correct date of birth of appellant/plaintif f as "08.12.1960" and retiring date "07.12.19 60" instead of "01.06.1959" and "31.05.1959" respectively . The Hon'ble High Court was pleased to direct the office to remit the suit along with annexures, replies of Respondents to this Tribunal in view of the observations of Hon'ble Supreme Court of Pakistan in Ali Azhar Khan Baloch case (2015 SCMR 456). In compliance of order of Hon'ble High Court dated 25.02.2019, the R&P of Suit No. 1991 of 2018 in original has been registered the suit as an appeal Bearing No. 543(R)CS/2019 by this Tribunal for adjudication in accordance with law. The facts as narrated in the Memo of Plaint/Appeal are available from paras 1 to 13 wherein he pleaded that appellant born on "08.12.1960" but the parents just to get him enrolled in the School showed his date of birth as "01.06.1959". This error was continued and in his Matriculation Certificate and CSS Examination wrong date of birth was mentioned i.e. "01.06.1959". The appellant got correction of date of birth in Matric Certificate on "20.06.1987" and then NIC was also corrected in 1987. The passport and AGPR also recorded his correct date of birth as '08.12.1960". But FBR his parent department declined to correct date of birth and date of retirement. Hence the suit/appeal.
3. Conversely , Respondent No. 1 filed written statement duly signed and verified on Oath by Second Secretary , Muhammad 4dil Khan and denied each and every contention of the appellant in detail, which is available at pages 209-241. In paras 1 to 13, Respondent No. 1 stated that the appellant joined Customs & Excise Department on 14.11.1987. Prior to that he worked as House Officer, Nishter Hospital, Multan from 23.06.1984 to 20.06.1985, at a salary of Rs.900/- per month. Then he did professional private practice at Hammad Clinic, Islamabad with effect from 24.06.1985 to 16.04.1986. Then he joined Postal Service on 01.11.1986. These facts are evident from his Application Form for Competitive Examination 1986. The Application Form shows his date of birth as "01.06.1959".
As per Rules 116 & 117 of General Financial Rules (GFR) a government servant is required to declare his date of birth according to Christian era and declaration should be duly supported by a Matriculation Certificate. Perusal of SSC Certificate dated 30.11.1975 shows his date of birth as "01.06.1959". He disputed the correction of date of birth in Duplicate Matric Certificate dated 20.06.1987. As per Rule 12-A of the Civil Servant (Appointment, Promotion and Transfer) Rules, 1973, date of birth recorded at the time of joining of government service shall be final, therefore, no alteration in the same was permissible.
4. The learned counsel for the appellant, while stating the brief history of the case , stated that appellant joined the service in November 1987 and according to the appellant, his parents have wrongly mentioned his date of birth as "01.06.1959"just to get him admitted in the school in a higher class whereas his actual date of birth is "08.12.1960" as is evident from Duplicate Matric Certificate, NIC, CNIC, Passports (Green and Blue), Pay Slips issued by the AGPR wherein the date of birth of the appellant is mentioned as "08.12.1960", thus he is entitled to serve the department till "07.12.2020". He maintained that according to Article 19 of the Constitution read with Section 19(4) of the NADRA Ordinance 2000 which is special law thus will prevail over Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which has no bearing on the case of the appellant. He stated that the appellant approached the department firstly on 23.11.1987 and then on 29.11.2017 for correction in his date of birth which was rejected vide order dated 24.09.2018. On query , the learned counsel for the appellant conceded that he has no record of receiving of application dated 23.11.1987 from the Department. He also stated that during the pendency of the appeal the department on 09.05.2019 issued retirement notificat ion with effect from 31.05.2019, therefore, prayed for setting aside both the order/notification and further prayed that the appellant be allowed to serve the department till 07.12.2020. In support of his arguments, the learned counsel relied on the case law reported as 2012 SCMR 965 and 2012 PLC (CS) 1330 .
5. The learned counsel for the respondent-FBR, while opposing the arguments put forth by the learned counsel for the appellant relied upon the contents of the Memo of. Appeal and written statement filed by the respondents. He placed reliance on the judgments reporte d as 2011 PLC (CS) 35, 2013 PLC (CS) 1281 , 1998 SCMR 801, 2008 PLC (CS) 192, NLR 2007 UC 589 SC, judgment of this Tribunal dated 31.10.2016 passed in Appeal No. 143(R)CS/2016 and Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
6. The learned Assistant Attorney General adopted the arguments made on behalf of the respondents FBR.
7. We have heard the learned counsel for the parties and perused the record available before us.
8. Before discussing the merits / demerits of the case, it may not be out of place to mention here that the appellant in para 2 of Facts has admitted that his parents themselves have mentioned his date of birth as "01.06.1959" to get him admitted in the School. We are not inclined to accept the appellant's contention that his parents did it wrongly .
In the Secondary School Certificate issued on 20.06.1987, his date of birth was mentioned as per Admission Form "01.06.1959". Further , as per his own application dated 23.11.1987, he stated that "I participated in both the CSS examination on the basis of educational certificates and, other documents wherein my date of birth was appearing as "01.06.1959" , which means that before joining the service, he accepted his date of birth as "01.0 6.1959". For the sake of arguments, if he had any grievance he should have approached the comp etent forum for redressal of his grievance, but he chooses to remain mum till reaching the age of superannuation and filed Suit for declaration on 22.09.2018.
9. Coming to the merits of the case, perusal of the record shows that the appellant himself had given the date of birth as of year 1959 in the CSS Examination which remained unaltered throughout this long period and that nearing his retirement he approached the High Court for change of the same. The reliance of the learned Law Officer on Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, that at the belated stage nearing superannuation, change in the date of birth is not permissible is quite apt in view of Shahid Ahmed Vs Oil and Gas Development Company Ltd., through Managing Director , Islamabad and others (2014 SCMR 1008 ).
10. This is growing tendency 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 checked 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 1833 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 decaled 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 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, W e 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 does 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 grievance agitated before us do not make out any substantial question of law having public importance". iii) 1998 SCMR 602 [Pakistan Broadcasting Corporation vs. Subdedar Major (Retd.) Abdul Razzaal "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 Sved Iqbal Haider V Federation of Pakistan)
"12. We may also refer to the submission made by the learned Attorney General that in Government service employee cannot make any application for change in his date of birth after two years. On analog 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".
11. 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"
12. Even in the judicial service 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 applica tion for change in his date of birth after two years of his joining the service... Authenticity of the 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 .
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 weigh t... 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 Tril3unal... Such suit would not be maintainable in view of bar contained in Art. 212 of the Constitution.
Likewise, in the case of Government of Balochistan 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".
Civil servant, at the stage of retirement could not be allowed to take any benefit regarding matter about which he himself was negligent and illiteracy or otherwise of civil servant was no ground, at all.
13. In accordance with Article 4 of the Constitution, to enjoy the protection of law' and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time .being within Pakistan. What is the law applicable in the present appeal is contained in Civil Servants Act, 1973 and Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973., The provisions of Civil Servants Act, 1973 and the Rules made thereunder will prevail over the provisions of National Database Registration Authority Ordinance; 2000 (VIII of 2000).
14. Even otherwise, the change of date of birth, after joining the service, in Duplicate Metric Certificate, CNIC, Passport, Pay Slip issued by. AGPR is not binding or applicable to the respondents' government department. The law relied upon by the learned counsel for the appellant is not applicable in the peculiar circumstances of the case in hand.
15. In view of above the appeal being bereft of legal substance is hereby dismissed with no order as to. cost.
Parties may be informed.