NASIM HASAN SHAH, J. By an order dated 26-9-68 passed by Mr. M. A. Kazmi, Secretary to Government of West Pakistan, Food Department (respondent No. 1), Malik Gbulam Dastgir.
Establishment Officer and ex officio Section Officer (General), Headquarters Office, Food Department, was retired from service with immediate effect on the ground that he was granted further extension in service for the period from 31-7-68 to 24-7-69 subject to the condition of production of his Matriculation Certificate for verification of his correct date of birth and that the date of birth recorded in the Matriculation Certificate produced by him, being 15th August 1906, he had become 62 years of age. This order is challenged by Malik Ghulam Dastgir (hereinafter referred to as the petitioner) as being illegal, unwarranted, without lawful authority and mala fide under Art. 98 of the late Constitution of 1962.
2. According to the petitioner he was born on 25-7-1910. He matriculated in 1926 and in the same year joined Government service as a camp-clerk in the office of the Assistant Registrar, Co- operative Societies, Ferozpur. He joined the Food Depart--ment, on deputation, in 1944 and has since been working in the said department.
3. Before the petitioner attained the age of 55 on 25-7.65, he was informed -that it had been decided under the implementa--petition of West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, to retain him in service till he attained the age of 60 years.
The law, relating to retirement from service was, however, in the meantime altered by the Constitution (Sixth Amendment) Act, 1966, necessitating fresh orders on the subject. By an order passed by the competent authority (respondent No. 1) dated 30th September 1966, the services of the petitioner were ordered to be extended for the period from 1st October 1966, to 31st July 1968 (Annex. ---A---). On 31st July 1968, the competent authority again granted to the petitioner an extension for a further period of about one year (31-7-68 to 24-7-69), subject, however, to production of his original Matriculation Certificate for verification of his date of birth (Annex. ---B-- -).
4. The petitioner accordingly, on 22-8-68, produced the original Matriculation Certificate. The date of birth of the petitioner recorded therein was 15-8-1906. It needs to be mentioned that the said certificate was submitted with a covering letter wherein the reasons for the discrepancy in the age recorded in the Matriculation Certificate and the age appearing in the earlier records were explained besides a large number. Of documents were attached with the letter, with a view to show that his true date of birth was indeed July 1910, and that the date of birth recorded in the Matriculation Certificate was erroneous. The respondent No. 1, however, relying exclusively upon the date of birth recorded in the Matriculation Certificate proceeded to pass the impugned order dated 26-9-68 (Annex. ---C---) whereby the petitioner was retired from service, with immediate effect.
5. Mr. Saeed Akhtar, learned counsel for the petitioner raised the following contentions before us in support of this writ petition.
(a) That the Provincial Government had no authority to alter the recorded date of birth of the petitioner and to hold him to be 62 years of age in face of his hitherto accepted age.
(b) That the contention laid down in the order of extension contained in the order dated 31-7-63 (Annex. `B') granting extension up to 24-7-69 was invalid as the said contention was in contravention of the provisions of Art. 178(5) of the Constitution of 1962.
(c) That under the provisions of the West Pakistan Government Servants (Extension in Service)
Rules, 1968, the petitioner was to continue in service, during the period of extension, on the same terms and conditions as were applicable to him before the extension of his service was ordered and that these terms and conditions could not be altered to his disadvantage during the period of extension.
(d) That the petitioner was not granted any reasonable opportunity of showing cause in respect of the matter of his correct age by the competent authority before the impugned order was passed.
6. In support of his contentions the learned counsel has argued that the law governing the recording of the date of birth at the time when the petitioner entered Government service was laid down in Rules 49, 50 and 51 of the Civil Service Regulation, 1915 Edition, according to which the date of birth was recorded on the basis of the personal declaration of the Government servant plus authentication thereof by the medical officer. There was no condition that the age entered in any educational certificate was to be taken as the basis for ascertaining the date of birth. He has also drawn our attention to the provisions of Rule 7.3 of the Punjab Financial Rules (Vol. 1) and to the provisions of Annex. 'B' referred to in the said Rule, which so far as pertinent, provides: "In regard to the date of birth a declaration of age made at the time of, or for the purpose of, entry into Government service shall, as against the Government servant in question, be deemed to be conclusive unless he applied for correction of his age as recorded within two years from the date of his entry into Government service, Government, however, reserves the right to make a correction in the recorded age of a Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the History of Services of a Gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom."
He has also drawn our attention to U. O. No. 644-Gaz. Dated 26th November 1935, from the Chief Secretary to Government of Punjab to the Secretary Government of Punjab, Public Works Department, Irrigation Branch, wherein it is stated that to accept the education or University certificate as only conclusive evidence in the matter of age is impractical. Relying on this material it is urged that the decision of the respondent No. 1 is unsustainable 9n law that the petitioner has attained the age of 62 years that he is, therefore, liable to immediate retirement, based as this view is entirely on the entry regarding the date of birth contained in the Matriculation Certificate. It is pointed out in this behalf that along with the Matriculation Certificate which was produced by the petitioner with his letter dated 22-8-68 the petitioner also produced the following documents:
(a) Municipal Birth Certificate which showed his date of birth to be 9th July 1910.
(b) Certificate of Municipal Committee School No. 1, Khushab showing that the date of birth as 25- 7-1910 when he entered the school in the 1st Primary Class on 8-2-1917.
(c) The Certificate of the Government High School, Khushab, showing his date of birth as 25-7-1910 when he joined that school in the 7th class on 1-4-1922.
(d) Copy of Certificate attested by Mr. M. A. Sattar, Headmaster, Government High School, Shahpur Saddar, dated 14-2-39 and the earlier Certificate dated 10-10-1928 recorded by Master Ghulam Yasin, Incharge Registers, with a renewed certificate of e'-en date from Sh. Fazal Elahi, Headmaster, showing his date of birth as 25-7-1910.
Our attention is also drawn to the fact that it, the covering letter, alongwith which the Matriculation Certificate was produced, it was also explained that in October 1928, as soon as the petitioner received the Matriculation Certificate of the University of Punjab in Ferozepur, wherein his date of birth was shown as 15-8-1906, the petitioner called on the Headmaster of Islamia High School, Shahpur Saddar, with an application dated 10-10-1928 wherein he contested the date of birth given in the University Certificate and urged that his true date of birth was 25-7-1910, as given in the school registers and that the date of birth given in the University Certificate, viz. 15-8-1906, was incorrect. This plea was confirmed by the Headmaster who noted that the date of birth given in the University Certificate was wrong and suggested that the petitioner should make a reference to the University office in this connection. The petitioner accordingly applied to the Registrar, University of the Punjab on 18-10-1928 wherein he stated that the date of birth given in his Matriculation Certificate as 15-8-1906 was not his date of birth but was in fact that of his class-fellow, named, Ata Muhammad son of Rana Tora Khan who had also passed the Matriculation Examination from that school in 1926 and that his correct date of birth, as certified by the School Authorities, being 25-7- 1910 should be inserted in the University Certificate. This request was not granted on the technical ground that the particulars of the date of birth namely, 15-8-1906 having been entered in the application form by the petitioner himself he could not be allowed to alter them Naheed was paid by the University authorities, it is complained to the explanation that Ata Muhammad being the petitioner's desk-fellow and senior to him in age, the petitioner was taking guidance from his form for proper filling up of his own form and had erroneonsly copied his date of birth in his own application form as well. No attention was also given to the plea that in the light of all the other evidence produced by the petitioner the date of birth entered in the application form was erroneous. No change was made in the Matriculation Certificate, despite the petitioner's efforts in that behalf in 1928. On these pleas it is contended that the age recorded in the Matriculation Certificate merited no weight and was liable to be ignored.
7. The respondent's case it that the dispute was referred to the Service and General Administration Department "which is the final, authority in service matter", who after hearing the petitioner and taking into consideration all the records produced by him decided the case against him. It is urged that the decision, which is impugned before us was taken after considering all the records produced by the petitioner both by the Services and General Administration Department as well as respondent No. 1 and that the decision that was arrived at was after affording the petitioner an adequate opportunity to explain his case. The "verdict" of the Services and General Administration Department which has been described as the "authoritative opinion on the dispute point relating to determination of age" has been attached as R/v1 with the written statement of the department.
This document has been examined with care by us, more so as the perusal of the original File on the subject of the petitioner's retirement has shown that the decision of the respondent is based on this "authoritative opinion" It is, therefore, proper that paras. 2, 4 and 5 of the advice, which are particularly relevant, may be reproduced.
(2) It is a time-honoured practice to place full reliance on the Matriculation Certificate as final and irrebuttable proof of age. In the instant case the officer has himself admitted that the first entry in his service book regarding age was not taken from his Matriculation Certificate, but was made two years' prior to the receipt of the said Certificate (vide Para. 3 and 7(i) of his representation at pages 425/Cor and 427/Cor respectively). So that the impugned entry at best can be regarded as a provisional one only. Government have the powers under the Rules to revise even a permanent entry. It is not clear as to what steps the officer took to get this provisional entry finally accepted by Government as against the actual date of birth shown in the Matriculation Certificate, which the University refused to correct. Another significant fact is that the original service book is not traceable since 1965. It is by a mere coincidence that the true facts have come to light and the officer has been asked to explain the glaring discrepancy.
(4) It is true that Mr. Ghulam Dastgir has taken great pains to gather evidence in support of his claim, but for the reasons given above, it would create a most awkward precedent, if the sanctity of Matriculation Certificate is tampered with in this behalf. Moreover, the officer has availed of the benefit of doubt of his claim and has already enjoyed two years extension beyond 60 years of age according to his Matriculation Certificate which is the maximum permissible under the Constitutional Amendment and the law of the land. He should not, therefore, expect more.
(5) S & G A Department, therefore, advise that the date of birth as shown in the Matriculation Certificate of Mr. Ghulam Dastgir should be taken as his correct date of birth and his service record changed accordingly."
The perusal of the above would show that the opinion of the Services and General Administration Department is based on the view that it is an "established practice" to place full reliance on the Matriculation Certificate "as final and irrebuttable proof of age".
It is thus clear that the decision of the Services and General Administration Department is based wholly on the Matriculation Certificate and that the facts brought out in the letter of the petitioner dated 22-8-68, alongwith which he forwarded the Matriculation Certificate, were not at all attended to on the consideration that "tampering with the sanctity of the Matriculation Certificate" would create a most awkward precedent. The irresistible conclusion is that it is the age recorded in the Matriculation Certificate which has been taken as the sole criterion in the matter relating to ascertainment of age. We, therefore, asked the learned Additional Advocate-General to show us any law or service rule which provided that the sole criterion to determine age is the entry made in the Matriculation Certificate relating to the date of birth. The learned Additional Advocate--General frankly conceded that there was no such law or rule, but submitted that the date of birth recorded in the Matriculation Certificate is a very relevant factor and has always been given the utmost importance in the matter of ascertainment of the correct date of birth of persons entering Government Service. He has further submitted that the respondents are the final authorities in matters, such as the present, and that the entire records produced by the petitioner was considered by them and that after considering the entire material the decision taken by them whether right or wrong to the effect that the date of birth of the petitioner was 15-8-1916 this Court could not interfere with the discretion of the authorities in this administrative matter. A large number of rulings were cited in support of the contention that a decision on a question falling within the competence of the Executive Authority is not liable to interference in the exercise of this Court's writ jurisdiction.
8. So far as the argument of the learned Additional Advocate-General is concerned, that where the competent authority has applied its mind to all the relevant considerations and arrived upon a decision the same cannot be interfered with, in the exercise of this Court's extraordinary jurisdiction under Art. 98 of the Constitution it is not open to any exception. In this case, however, we find that the relevant Authorities have not applied their mind to all the relevant considerations and their decision proceeds upon a mistaken assumption of fact, namely, that the Matriculation Certificate is the final and irrebuttable A proof of age. The foregoing discussion has established that the date of birth recorded in the said certificate is at best a relevant piece of evidence and there is no law declaring it to be conclusive proof of age. With the result that all the other relevant circumstances must be taken into consideration, if a dispute arises on this question. In the instant case we find that when the petitioner joined school his date of birth was given as July 1910, when he shifted to another school for joining the 7th class, his age entered in the school registers was again the same, that a full explanation was given as to how the date of birth as 15-8-1906 came to be recorded in the Matriculation Certificate, that the age' recorded in that certificate was never accepted as correct by the petitioner but efforts were made to have the same altered, even though without success. None of these circumstances have at all been taken into consideration.
9. We also note that after the decision was taken by the Services and General Administration Department that the date of birth entered in the Matriculation Certificate should be accepted as the correct date of birth of the petitioner the question arose in the department whether the petitioner should not be called upon to justify his continuance in service from 15-8-61 onwards i.e. From the date on which he attained the age of 55, according to the date of birth, namely, 15-8- 1906, and should be called upon to explain why all the emoluments and other pecuniary benefits derived by him for the said period should not be recovered from, him. In this- connection the advice of the Law Secretary was solicited who expressed the opinion "that the correct age of Malik Ghulam Dastgir has yet to be determined. According to his service record, he was born on 25-7- 1910 and this date has been accepted as valid for the period of a service of nearly 42 years. As opposed to this, his Matriculation Certificate shows that his date of birth in 15-8-1906. Going further his birth certificate shows his date of birth as 9-7-1910. Any of these dates may be his correct date of birth. Therefore, there is no final determination.
10. The upshot is that the action taken against the petitioner is based on the advice of the Service and General Administration Department, which is based exclusively on the entry regarding the date of birth in the Matriculation Certificate and no heed has been paid to the other relevant circumstances, as said authority 8 had a closed mind on the subject. It is now established law that even the Administrative Authorities have to act justly, fairly and reasonably vide The Montgomery Flour and General Mills Ltd., Montgomery v. The Director, Food Purchases, West Pakistan (PLD 1957 Lah.914) and Ikram Bus Service, etc. v. Board of Revenue, West Pakistan (PLD 1963 SC 564). Since the decision of the Departmental Authorities was based on a single ground, which was not the only factor requiring attention and ignored the other relevant factors, which factors also required to be taken into consideration and the not taking of them into consideration was due to extraneous reason, the decision taken by the Departmental Authorities is vitiated and cannot be considered as one with lawful authority. In this view of the matter it is not necessary to deal with the other contentions raised by the learned counsel for the petitioner.
12. The result is that we would accept this writ petition, declare that the order dated 26th September 1968 (Annex. `C') passed by respondent No. 1 ordering the retirement - of the petitioner from service with immediate effect is without lawful authority and of no legal effect. The parties, however, will be left to bear their own costs.