' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).-- The instant appeal is directed against the order dated 19-10-1988 passed by the Additional Director of Agriculture and Integrated Hill Forming Programme Muzaffarabad by which the appellant was declared to have attained the age of superannuation and consequently retired from service.
2. The relevant facts of the case to be briefly stated are that the appellant was in the service of the Agriculture Department and was posted as Nursery Supervisor at Chamyati Agriculture Nursery. He was retired from service due to the fact that in his service book, his recorded date of birth was 1928 A.D. And on the date of passing the impugned order he had completed sixty years of his age. The grievance of the appellant is that at the time of his appointment he was never asked to submit any proof with respect to his date of birth and for the first time on 2-8-1988 he was asked to supply Middle or Matric Certificate to clarify his date of birth. He submitted a copy of School Leaving Certificate issued by Government High School Dheerkot wherein his date of birth was duly recorded as 8-12-1990 (B.K). According to this School Leaving Certificate, he had not completed his age of superannuation on the date he was forcibly retired from service. The appellant brought an appeal before Director of Agriculture Department for setting aside the illegal order of his retirement but no decision was taken on appeal and ultimately he had to invoke the jurisdiction of this Tribunal for the reversal of the impugned order.
3. In the objections filed by the Additional Advocate-General on behalf of the respondents, it is submitted that the date of birth of the appellant recorded in his personal file is 1928 A.D. And accordingly he was retired from service under the impugned order for having completed his age of superannuation. The appellant has accepted his date of birth as 1928 while signing a Form of application submitted by him for withdrawing some amount of G.P.F.
4. The appellant's prayer is that the impugned order is illegal and after setting it aside he may be allowed to continue his service with all back benefits till the completion of his age of superannuation.
5. We have heard the arguments as were addressed by the learned counsel of each party. It is the case of the appellant that the entry of his date of birth in service book is wrong. He does not know anything as to who had actually prepared his Amal-Nama. He was never asked by his office to submit his proof in support of his date of birth till 2-8-1988 when he was asked to do so by his department and he had submitted a copy of his School Leaving Certificate issued by the Government High School Dheerkot, according to which his date of birth was 8-12-1990 (B.K), But it is contended on behalf of the respondents that the appellant has been rightly retired from service because he had reached the age of his superannuation which was calculated in accordance with the entry of his date of birth recorded in his service book. It was also pleaded that by signing the Form of application for withdrawal of some amount out of G.P.F., the appellant was estopped from seeking any alteration in his date of birth. It is next argued that the date of birth of the appellant as shown in School Leaving Certificate also differs with the entry of his age recorded in the copy of State Subject Certificate furnished by the appellant himself and for that reason both the documents relied upon by him do not supply the correct date of birth of the appellant. According to the learned counsel the appellant is not entitled to any relief at this forum.
6. The appellant has, no doubt, produced the available evidence of age before his department but his case was not examined on merits and he was retired from his service. We have looked into the first page of his service `AmalNama' and we find that the figures "1928" have been inserted by a ball pencil while the other entries with respect to name of appellant, place of his residence and father's name are by a different ink. Although somebody has signed on this page to be an attesting Officer, but the signatures of the appellant were never obtained on this first page of the Service Book which makes it abundantly clear that this entry of date of birth was made without asking the appellant to submit his date of birth and also the necessary proof in support of that. The entry of his date of birth by a ball pencil quite different to all other entries on the first page cannot be relied upon to be a proof of his date of birth. Apart from that, this entry of his age does not tally with the entry of the appellant's School Leaving Certificate as well as with the entries of his State Subject Certificate and these facts also support the view that the entry of age in the service book of the appellant is wrong and not to be accepted as the correct date of birth. Now the question arises what is the actual date of birth of the appellant and how it is to be determined. The appellant has produced two certificates viz. School Leaving Certificate and the State Subject Certificate. In absence of other evidence on the file we are left with no alternative but to sift out the truth out of the available evidence placed on the file. The unfortunate aspect of the case is that the entries of date of birth of the appellant in these certificates also differ with each other. According to School Leaving Certificate it is 8-12-1990 B.K and according to State Subject Certificate it is 6-10-1932 A.D. The recorded entry of 32 years of age in the State Subject Certificate is surely the proof of the fact that the appellant while he was major enough must have declared his age to be 32 years before the Revenue Officers whereas the entry in school is often made by speculation at the time of first entry in the school by a student of tender age. Hence, the entry of his date of birth in the State Subject Certificate is preferably more reliable to be accepted especially when the appellant has himself submitted this document at variance with the entry of School Leaving Certificate by which he could put in comparatively longer service in his Department upto 20-3-1994.
7. It shall be noted here that the plea of estoppel is not applicable in this case because there is no evidence of any concealment of the false entry of date of birth nor there is any inducement on the part of the appellant to the respondents to act on such representation. Hence, the appellant cannot be precluded from pleading that the impugned order passed against him is not a legal order or that it affects his legal rights. Likewise "acquiescence or waiver" can also not be pleaded.
Acquiescence is a matter of legal inference. The mere inactivity of the person concerned for a number of years does not necessarily lead to the inference of acquiescence. Acquiescence is founded on conduct with knowledge of one's own legal rights and nothing short of conduct amounting to fraud can sustain a plea of acquiescence. In the instant case the appellant has nowhere committed fraud upon his office with regard to the entry of his date of birth. It was rather a mistake on the part of his office that he was not consulted and called upon to submit his necessary proof of date of birth at the stage of his appointment. At the same time he should not have been retired from service without firstly having decided his objections on merits as to the false entry of date of birth in his service record.
8. The upshot of the above discussion is that the correct date of birth of the appellant for determination of his age of superannuation would be 6-10-1932 A.D. Requiring the necessary correction to be effected in his service record and consequential benefits to which he is entitled.
We allow this appeal and order that the appellant shall be reinstated on his post and the period during which he remained out of employment shall be treated on duty with all service benefits.