Tauqeer Ahmed Khan, Member. The above-named appellant, by means of this appeal under Section 4 of the Service Tribunals Act, 1973, has prayed as under: "The appellant above named respectfully prays in the light of the foregoing, this appeal may graciously be accepted in toto. Order the respondents to correct the date of birth as wrongly recorded in the service book being clerical error. Hence the same be made as having the other various relevant document pertaining to the appellant."
He submitted various applications and finally the application made on 06.09.2021 for correction of date of birth in service book and pay slips was rejected vide order dated 22.09.2021.
2. The background and facts leading to file this appeal are that the appellant was appointed Sepoy by the respondent department vide offer of appointment dated 22.09.1986. The date of birth of the appellant, as per record of documents, the same is recorded/ mentioned as 01.06.1966, even in the office identity card and seniority list, same date of birth is mentioned. The custodian of service book of non-gazetted staff is office and maintenance/record of entries are done by the staff deployed for the purpose. When the appellant gone through minutely the first page of the above document, it is noticed that his date, of birth was recorded wrongly as 06.01.1962 instead of 01.06.1966. There is no such/any document pertaining to the appellant which mentions any other date of birth except 01.06.1966. All the documents, as mentioned above including the medical fitness certificate issued by the Civil Surgeon, Hyderabad are enough to prove that the date of birth of appellant is 01.06.1966 and recorded by the then staff as 06.01.1962 without quoting any authority was clerical error. Para- 116 GFR (General Financial Rules) are very clear as rectification of clerical error can be done. Same was reproduced in the appeal. That the appellant should not be made escape goat for the wrong done/mistake committed by the then staff posted in the relevant section.
3. Parawise comments were filed by the respondents-1 & 2 wherein it was stated that the contention of the appellant that he was appointed by the department of Respondent No. 2 is incorrect, he was appointed as Sepoy in Pay Scale No. 2 by the Collector of Customs & Central Excise, Hyderabad, in the year 1986. It was stated that the primary certificate, the appellant is referring to, is not original one. It is a duplicate document and got issued on 13.03.2019 i.e. after 41 years of qualifying primary class, mainly to substantiate the contention of the appellant. Moreover, the genuineness of the document needs to be verified by the issuing authority. It was stated that making reference to seniority list and office identity card showing date of birth as 01.06.1966 is irrelevant as these documents do not hold any legal significance purporting to be presented at the Court of Law and can be rectified as and when found not corresponding with the original record i.e. service roll of the employee being a legal and authentic document, and entries once recorded in the service roll particularly the date of birth cannot be altered for any reason whatsoever, as at the time of recording date of birth in the. service roll, the same is signed by the official concerned himself accepting thereby the truthfulness of the record entry. The, relevant Para No. 116 (date of birth) of General Financial Rules of the Federal Government provides for making entries in service has been reproduced in the comments. The service roll was prepared at the time of initial appointment of the appellant to the government service in the Collectorate of Customs & Central Excise, in 1986. The official had examined and signed the service roll himself at that time and did not point out any mistake regarding incorrect recording of date of birth as 06.01.1962 instead of 01.06.1966. The entry of date of birth was never questioned by the appellant during whole of his service tenure. It is only at the time of retirement, the official has raised a question as to the competence and efficiency and concerned staff who recorded the entry of date of birth after over thirty (30) years. The judgment of the Hon'ble Supreme Court of Pakistan (Appellate Jurisdiction) has decided appeal on 16.02.2021 containing similar point of law in Civil Petition No. 4428 of 2019 filed by Muhammad Khalid Mandokhel vs. Government of Balochistan through Chief Secretary Ouetta and others (against the judgment dated 31.10.2019 of the Balochistan Service Tribunal, Quetta passed in Appeal No., 480/2018) copy enclosed, operative part whereof has been reproduced in the comments.
4. We have heard learned counsel for the appellant. None appeared on behalf of the respondents to argue and assist the Court. The appeal was filed in 2021 to be precise filed on 15.10.2021 and notice was issued to the respondents for 16.11.2021, when Saad A.H. Memon, Advocate filed his power and requested for time to file the comments, which was granted and matter was adjourned for 07:12:2021 on which date learned counsel did not appear and matter was adjourned for 06.01.2022 at the request of DR for filing of the comments. On 06.01.2022, due to strike, matter was again adjourned for 02.02.2022, when learned counsel for appellant was present, but none appeared on behalf of respondents. On 02.02.2022, again none appeared for the respondents and matter was adjourned to 01.03.2022 for filing of comments and notice was ordered to be issued to the respondents. On 01.03.2022, comments were filed on behalf of respondents-1 & 2 by the learned counsel Mr. Saad A.H. Memon and matter was adjourned to 29.03.2022. On the said date none appeared for the respondents and matter was adjourned to 19.04.2022. On 12.04.2022 also none appeared for the respondents and the matter was adjourned for today i.e. 25.05.2022, as such, we were constrained to hear the learned counsel for appellant as the matter is pending since 15.10.2021.
5. We have considered the arguments advanced on behalf of appellant's side and carefully perused the record and the case law cited him before us i.e. judgment of this Tribunal dated 9.11.2015 passed in Appeal No. 77(K)CS/2015.
6. Here, we would first like to rely on Rules 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).
7. This is growing tendency amongst government employees for making attempts to change their date of birth when nearing B superannuation. This virus 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 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 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.
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 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 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 V 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".
8. 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".
9. 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 application 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 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 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 D and illiteracy or otherwise of civil servant was no ground, at all.
10. 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.
12. Likewise, the Respondents-1 & 2 alongwith their comments placed their reliance on an unreported judgment of the Apex Court dated 16.02.2021 in Civil Petition No. 4428 of 2019 (Muhammad Khalid Mandokhail vs Government of Balochistan through Chief Secretary, Civil Secretariat. Quetta and another), Para-7 thereof, being relevant, is reproduced as under: "7. A bare perusal of the aforesaid Rule makes it abundantly clear that the date of birth of a civil servant once recorded at the time of joining of Government service as a general principle shall be final and would not be altered except (i) there is a clerical mistake (ii) the change is sought within the period of two years. This Rule narrows down the scope for change of date of birth by stipulating that no alteration shall be permissible after the expiry of the time as mandated in the said rule. Otherwise, the service book is only a piecemeal and for all intents and purposes it would not be considered as a complete service record. We have noticed that other documents relating to his service record including the academic record, the CNIC, the seniority lists prepared on different occasions, the ACRs and the retirement notification, all conjointly reflect that the date of birth of the petitioner was incorporated as 01.03.1959. The petitioner joined the service on 18.08.1992, whereas he agitated his grievance in the year 2014 after the lapse of 22 years. Hence keeping in view the facts and circumstances, it is clear that the proceedings initiated by the petitioner seeking alteration in the date of birth while pressing in Rule 11 of the Balochistan Civil Servants (Appointment; Promotion and Transfer) Rules, 2009 were intended on the basis of extraneous considerations just to prolong the service period. The whole proceedings carried out by the petitioner can be dubbed as tainted on this score alone. Otherwise no substantial question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been raised before this Court.
8. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused."
12. In the case in hand, the appellant had agitated the matter regarding correction in his date of birth before the department after over 30 years and it was never questioned by the appellant during whole of his service tenure and it is only at the time of retirement, the appellant has raised such objection, especially when at the time of recording date of birth in the service book, the same is signed by the appellant himself accepting thereby the truthfulness of the recorded entry and did not point out any mistake regarding incorrect record of date of birth as 06.01.1962.
12. The case law relied upon by the learned counsel for the appellant is not applicable in the peculiar circumstances of the case in hand.
13. In view of above the appeal being bereft of legal substance is hereby dismissed with no order as to cost. Parties may be informed.