GHULAM MUJADID ISRAN (MEMBER).-Appellant Amir Khan's earlier appeal was dismissed by this Tribunal by judgment dated 30th March 1989. The appellant challenged the said judgment before the Supreme Court which was allowed and the case was remanded back to the Tribunal for disposal of the appeal on merit. For compliance of the judgment of the Supreme Court, the notice was issued to the parties and their learned counsel were heard afresh. We also went through the relevant documents.
2. To recapitulate the appellant's case, it may be noted that the appellant joined Karachi Police as Constable on 10-2-1954. He served in the Department upto 12-2-1986. On 17-2-1986 the appellant received a letter dated 12-2-1986 from S.P.District South Karachi informing him that he was allowed to proceed on superannuation pension from 12-2-1986 reckoning the date of his birth as 12-2- 1926.
But according to the appellant his date of birth was 2nd June 1931. The appellant on his retirement preferred appeal to the D.I.G. Karachi on 10-3-1986 which was dismissed on 25-3-1987. The appellant was informed on 29-4-1987. The appellant thereafter made revision application to the I.G. Police but no decision was made on his such application and after expiry of 90 days he filed the present appeal on 15-9-1987. The appellant's prayer was that his retirement was premature and illegal and he be reinstated in service and paid his pay and allowances for the period he was illegally made out of service.
3. The learned counsel for the appellant argued that 12-2-1926 shown as the appellant's birth date in record of the department was not correct. But according to a certificate issued by the Union Council Kot Kazi Tehsil Tala Gang District Chakwal, which the appellant obtained after his retirement from service, his date of birth would be 2nd June 1931. The learned Counsel for official respondents took the stand that since the appellant did not produce any certificate to determine his age at the time of his recruitment, the concerned Medical Officer was directed to give his assessm ent with regard to the age of the appellant. According to the opinion of the Medical Officer the appellant was of 28 years on 12-2-1954 the date on which he examined him. Since the appellant failed to produce any evidence at the time of his appointment and during his entire service tenure as Constable his date of birth as determined by the Medical Officer was correct and was accordingly entered in the appellant's service record.
4. We have given our anxious thought to the arguments advanced by the Learned Counsel for the parties. It is an admitted fact that the appellant had served with the Army before joining the police Department. The appellant's service record which Police Department had received from Army incidentally showed the date of his birth being 12-2-1926 which worked out even on the basis of the medical opinion obtained at the time of his recruitment. The entry about his age in the Army Services record is admitted by the appellant in para-3 of the memo of appeal which is reproduced as under:- "3. That my retirement, reckoning me as having reached the age of 60 years on 12-2-1986, was arbitrary based on incorrect record i.e. Medical certificate received from armed services where I was employed immediately before joining the Karachi Police Force."
5. Apart from appellant's above admission the Department had referred the appellant to Police Surgeon for his Medical examination as required by Rule 12.16 of Police Rules 1934 (hereinafter called the said rules) which were applicable to the appellant at the time of his recruitment. The said rule is reproduced as under:- "12.16. Recruits-Medical examination of. (1) Every recruit shall, before enrollment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (1064 signed by the Civil Surgeon personally, is an essential qualification for enrollment-(vide Fundamental Rule 10).
The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the medical department and will test the eyesight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit, and his age "............
Thus under the above rule the Civil Surgeon was competent to certify inter alia the age of the appellant. During his entire service career the appellant did not challenge the age determined by the Medical Surgeon at the time of his recruitment, nor the age entered in his service record obtained from the Army though both documents were within his knowledge and former even contained his signature. In this connection our attention was drawn to Rule 9.7(2) of the said rules which makes it obligatory to the Police Officer to apply for alteration of the date of birth within two years of his entry into Government Service. Since the appellant did not approach the Department for alteration of his date of birth within the prescribed time the department was within its powers not to accede to his request in respect of alteration of his date of birth after his retirement.
6. The learned counsel for the appellant further argued that the appellant had filed an affidavit in evidence dated 8-8-1992 before this Tribunal enclosing a certified copy of birth certificate issued by the Union Council Kot Kazi District Attock showing his date of birth as 2nd June 1931. According to him the contentions raised therein were not rebutted by the respondents therefore this piece of evidence went unchallenged and was sufficient to be relied upon in support of the claim of the appellant. We do not agree with the above arguments of the learned Counsel for the appellant. The affidavit, in our opinion, was after thought and reiterated what the appellant had already stated in paras 5 to 7 of the memo of his appeal. The contentions raised in the said paras were properly replied and rebutted by the respondents in corresponding paras 5 to 7 of the written statement filed on behalf of the respondents.
7. The counsel for the appellant further relied on the judgment of this Tribunal in Appeal No. 15 of 1980 in case of Ali Ahmed Brohi Vs. Government of Sindh decided on 2-2-1981. We are afraid that the reasons which led to the acceptance of that appeal were different and would not help the appellant. In case of Ali Ahmed Brohi the appellant Mr. Brohi challenged his date of birth on the basis of birth date mentioned in the School register. To prove his contention he further produced Matriculation certificate issued by the University of Bombay. But in the present case the appellant has relied on certificate issued by the Union Council. The certificate indicates the date of birth of the appellant as 2-6-1931. We do not consider this certificate as authentic piece of evidence on the grounds that firstly the appellant was born at a small village namely Sukka where it was inconceivable of any agency to maintain birth record of the residents of the village. Secondly the Union Council which has certified the date of birth as 2-6-1931 could not be in existence at that time as such councils were created after 1962. On our query the learned counsel for the appellant was not in a position to produce any additional proof in a form of primary school certificate or Army discharge certificate in support of his contentions. In such a position it is not possible for us to accept the plea of the appellant without authentic proof of age.
8. Apart from above the appeal is also time barred. The appellant's learned counsel in his application dated 15-5-1988 prayed to condone the delay. But according to repeated decisions of this Tribunal and the recent judgment of the Supreme Court in case of Malak Muhammad Khan Vs. I.G.P, and others (1992-PLC (C.S) 1116), the time wasted in pursuing the matter at wrong or unnecessary forums was not condonable. Therefore according to the appellant's own admission the appeal is time barred by more than 4 months.
9. Before parting with the case we may refer to the objection raised by the Learned Counsel of the appellant regarding inspection of the service book of the appellant by the Tribunal on the last date of hearing i.e. 8-4-1993. In this connection we refer to section 5(2) of Sindh Service Tribunals Act 1973 which empowers the Tribunal to compel the production of documents relating to the appeal.
The said Section is produced as under:- "5. Powers of Tribunals: - (1)..................
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of-
(a) enforcing the attendance of any person and examining him on oath:
(b) compelling the production of documents:
(c) issuing commission for the examination of witnesses and documents."
10. Therefore the objection of the learned counsel has no legal force when the Tribunal was competent to inspect the record. The learned counsel did not raise the objection on date of hearing i.e. 24-2-1993 when the production of service book of the appellant was actually ordered in his presence.
11. Keeping in view of the above detailed analysis of the case the appeal is dismissed with no order as to costs.
12. Given under our hands and the Seal of this Tribunal of this 19th day of April 1993 at Karachi.