MUNAWAR ALI KHAN (CHAIRMAN).--The appellant, Mr. Rafiq Ahmed Khan who was Assistant in the Food Department, Government of Sind, was officiating as Superintendent in his own pay when he was retired from service with effect from 15-10-1984 (A . N .) by order dated 18-2-1985 of Secretary to Government of Sind, Food Department. He has impugned the order of his retirement by this appeal.
After hearing the argument of the learned counsel for the appellant and the learned A . A .-G the appeal was dismissed by short order dated 30-7-1986 for reasons to be recovered separately.
Following are the reasons in support of the said short order.
The appellant's case as gleaned from his memo. Of appeal is that although his birth date as recorded in the Matriculation Certificate is 24-12-1934, yet he has been retired from service on the assumption that he was born in October, 1924. According to him the documents relied upon by the Administrative Department in support of his age are seniority lists which reflect conflicting dates of his birth. It is contended by him that seniority list of 1960 shows his birth date as 1-12-1936 whereas in the seniority lists of 1967 and 1976 the date of his birth is given as 1-10-1926. The Department's reply to the appellant's above plea, as reflected in the written statement, is that the actual birth date of the appellant falls on 16-10-1924 and the entries made in the seniority lists in the column of birth day are not correct. In the written statement reference has also been made to various documents to show that even according to the appellant's own admission the above was his correct birth date. However, he could not be retired on due date namely 15-10-1984 and was continued in service because of the misunderstanding created by the wrong entries appearing in the aforesaid seniority lists. As soon as the correct position with regard to his age came to the notice of the Administrative Department, he was retired by the impugned order.
4. In support of his arguments, the learned counsel for the appellant placed reliance on the unreported judgment of his Tribunal dated 1st October, 1975 in the case of Muhammad Bachal v .
Government of Sind and another Appeal No.174 of 1974. The operative part of this judgment reads as under:- "We would, therefore, allow the appeal and direct that the birth date of the appellant in his service book should be corrected and shown as 25-1-1922.
5. Our attention has also been drawn to another unreported judgment of this Tribunal in the case of Ali Ahmad Brohi v . Province of Sind and others (Appeal No.15 of 1980, decided on 2nd February, 1981). The operative part of this judgment is as under:- "The result is that we would accept this appeal and declare that the correct date of birth of the appellant for determining his age of superannuation would be 11-11-1920, requiring the necessary correction to be effected in his service record and consequential benefits to which he might be entitled."
6. On the basis of above judgment, it was contended by the learned counsel for the appellant that since the retirement of the appellant and consequently, his birth date from which he was to be retired are included in the terms and conditions of his service, this Tribunal has jurisdiction to determine his correct birth date and order his retirement from such date. No doubt "retirement from service" which is made under section 13 of the Sind Civil Servants Act, 1973 falls within the Chapter II of the said Act, relating to "Terms and Conditions of Service of Civil Servants". Accordingly "retirement from service" forms a part of terms and conditions of service and, therefore, the Tribunal possesses the power of adjudication on the issue of retirement. However, in our opinion, "retirement" is not same as "birth date" even though the former is dependent on the latter.
7. On careful perusal of section 13 here in above, it would be noticed that a civil servant shall have to retire from service on completion of 60 years of his age, if he is not retired earlier on completion of 25 years of his service. Obviously' the age of superannuation is computed from the civil servant's birth date. If the birth date is admitted and the civil servant is not retired in accordance with that date, then he can invoke the jurisdiction of the Tribunal by filing appeal for redress of his grievance.
On the other hand if his birth date is in controversy, a detailed inquiry based on factual evidence to be produced by both the parties would be necessary to resolve such dispute. For holding that enquiry the proper forum is civil Court of competent jurisdiction and not this Tribunal. We are fortified in this view by unreported judgment of the Supreme Court in the case of Federation of Pakistan v . Syed Yaseen Skaff Shah (Appeal No.197-(R) of 1976, decided on, 8th March, 1977).
8. In the above reported case, Mr. Shah was working as Assistant in Health Division, Government of Pakistan, when he was retired from service on 20th June, 1960 obviously on his attaining the age of superannuation. His contention was that his birth date as originally recorded in his service book was 20-7-1916 but subsequent to his transfer from the Home Ministry to the Health Division, the latter authority prepared his service book afresh and wrongly mentioned therein his birth date as 20-7-1914 and it was on the basis of the latest entry that he was retired earlier than the due date of retirement. He, therefore, applied for correction of his birth date but without any success. Then he took the matter to the High Court in a writ petition which, too, was dismissed. Likewise his appeal to the Supreme Court met with failure. The relevant observations made by the Supreme Court may be reproduced as under:- "The question whether the date of birth of the petitioner is 20th July, 1916 or 20th July, 1914, is a question of fact which can only be determined in regular proceedings. The best course, therefore, for the petitioner is to file a regular suit against the Department for the redress of his grievances."
9. No doubt by the time, the above judgment was given, the new service law of 1973 had not been promulgated nor Services Tribunal had come into being. Therefore, Mr. Shah filed a suit which was decreed by the Additional District Judge on 16th October, 1972. The Government's appeal against the decree was dismissed by the High Court on 16th January, 1974 by which date Service Tribunal had started working. The Government's appeal against the High Court's order of dismissal was dismissed by Supreme Court on 5th September, 1974. In the Supreme Court the contention raised on behalf of the Government was that as the matter in dispute fell exclusively within jurisdiction of Services Tribunal the appeal pending in the High Court had abated under section 6 of the Sind Service Tribunals Act, 1973. Obviously, the Supreme Court did not accept the above argument and was pleased to make the following observations:- "There is no substance in the plea, as the Service Tribunal could not determine what was the correct date of birth of the respondent."
10. Despite the clear cut decision on the question of determination of correct birth date of civil servant by the Supreme Court, the Government did not allow the matter to rest there, but took it again to Service Tribunal. We have been shown the judgment of the Federal Service Tribunal, in the case of Mr. Shah (Appeal No.350 (R)/74, Federal Service Tribunal in which it was observed:-- "Government of Pakistan went in appeal to the Supreme Court where it urged want of jurisdiction in the High Court and its failure to record abatement order under section 6 of the Service Tribunals Act, 1973. The contention was negatived. Besides, it was held that matter of date of birth was not included in terms and conditions of service to be within the exclusive jurisdiction of Service Tribunals as established by Act No.LXX of 1973...
It was a case which fell within exclusive jurisdiction of civil Courts. The decision being given by the highest Court of the country, we can not reopen the issue and re-establish what has been denied to us by the highest Court of appeal. The appeal, therefore, is incompetent. It is dismissed."
11. Thus, the Federal Service Tribunal also dismissed the Government appeal. However, once again the Government went in appeal before the Supreme Court against the order of the Service Tribunal on 3rd June, 1976 on two-fold grounds viz., firstly, that determination of the age of the civil servant falls within the terms and conditions of his service and as such it could be adjudicated by the Tribunal; and secondly, that Service Tribunal having exclusive jurisdiction in the case, as provided in section 6 of the Sind Service Tribunals Act, 1973 whichcame into force on 29-9-1973, the appeal pending in the High Court had abated. The Supreme Court was however, not impressed by the said arguments, while dismissing the appeal, it was held by the Supreme Court: "This Court held that there was no substance in the plea and reiterated that the Service Tribunal could not determine what was the correct date of birth of the respondent. This order has attained finality between the parties."
12. In view of above discussion and following the judgment of the Supreme Court referred to above we hold that determination of correct birth date of the appellant does not form part of terms and condition of his service and as such this Tribunal has no jurisdiction to determine his correct birth date. Since the question of the appellant's retirement --hinges upon determination of his correct birth date which this Tribunal has no jurisdiction to do, we cannot interfere with the impugned order of his retirement. Accordingly, we dismissed his appeal by the short order mentioned above.
A.E./86/Lb/S revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.