GHULAM ABBAS SOOMRO (MEMBER).---Appellant Mr. Ansar Ahmed has questioned the notification dated 31-12-1992 issued by the Chairman, Anti-Corruption Department retiring him from service with effect from 19-7-1993.
2. Brief facts of this appeal are that the appellant was appointed as Boy-Peon in the Anti- Corruption Establishment Department with effect from 19-7-1951 Subsequently, on 5-5-1953 the appellant's status was converted as temporary Constable. The appellant received departmental training and was promoted as Head Constable with effect from 21-9-1957. During the course of his service the appellant earned promotions to the various posts and ultimately became D.S.P. With effect from 18-5-1986, At the time of entry in the service the appellant's service book (age column) was left blank and it is stated that on passing of the Matriculation Examination in 1962 his date of birth was shown in that column as 1-1-1938 in red ink. In 1989 personal bio-data was required from the appellant by the Government of Sindh, which was submitted by him through proper channel wherein he is stated to have submitted his date of birth as 1-1-1938. On the basis of this date of birth the appellant was to complete the age of superannuation on 31st December, 1997 and had to retire with effect from 1-1-1998, but he was retired on 31-12-1992 as per the impugned notification. The appellant submitted his representation dated 16-1-1993 to the Government which was rejected by order dated 20th May, 1993, hence this appeal.
3. We have heard the appellant and his counsel Mr. Naimatullah Qureshi as well as Mr. Abdul Latif Ansari, AA.-G. On behalf of the State and perused the record carefully. As a matter of fact we provided an opportunity on the last date of hearing to the departmental representative to produce the documentary evidence in this case regarding date of birth, but in vain.
4. The sole question for consideration in this case is as to "whether the appellant could be retired from service before attaining the age of superannuation in view of the date of birth viz. 1-1-1938".
5. Before dilating upon the issue it is pertinent to point out that the representative of the department and the learned Assistant Advocate-General questioned the appellant's entry in the service as a Boy peon at the age less than eighteen years in 1952. Mr. Naimatullah Qureshi relied upon rule 83 of the Sindh Civil Service Classification and Recruitment Rules which envisaged that in case of by peon, the lower age limit could be relaxed and the authority making such appointment had only to be satisfied that the by-peon/candidates possessed sufficient intelligence and a physique to enable them to carry out their duties satisfactorily. In that view of the matter the objection raised by theState Counsel merits no consideration.
6. In order to adjudicate the issue regarding the birth date it is essential to go into the provisions of rule 171 of the Sindh Civil Service Rules Manual Volume I which, inter alia, lays down the following parameters on the subject;-
(a) A service book is to be maintained in respect of Government servant's official life including promotion/demotion/increments/transfer/leave etc. And each entry is to be verified and attested.
(b)Date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect provided that in the case of inferior Government servants the age has to be determined by appointing authority with reference to statements of respectable persons, medical opinion, or any other evidence as is deemed fit in the absence of documentary evidence.
(c)When the date, month and the year of the birth of a Government servant are not known or when the appointing authority does not accept the age stated by the Government servant. The age by - appearance as stated in the medical certificate of fitness should be taken as correct- .
(d)Once the entry of age or date of birth made in the service book, cannot be altered unless the said entry was due to want of care on the part of some person or was the result of clerical error.
Cases in which correctness of original entry is questioned on other grounds shall be referred to the competent authority
7. Mr. Naimatullah Qureshi, learned Advocate for appellant rightly relied upon this rule. In the present case the appellant was appointed as temporary constable on 5-5-1953 and passed Matric in 1962 from the Board of Intermediate and Secondary Education, Hyderabad. The Matriculation Certificate (Annex. `B') indicated appellant's date of birth as 1-1-1938. The appellant produced the said Matriculation Certificate before his superior, entry whereof was made in the service book in the category of "qualification". Not only that but the entry regarding the passing of Intermediate examination was also made by ACO, SR Hyderabad on 12-7-1976. It is thereafter that the blank column of date of birth was filled in and entry of 1-1-1938 was made therein. The learned Assistant Advocate-General objected to this entry with red ink on the ground that it was not attested. We are however not inclined to accept this plea for the simple reason that the qualification column in the service book contains the note regarding passing of matriculation and other examination by the appellant indicating his date of birth. Additionally, mention may be made that the Government of Sindh, S&GAD required personal data in respect of all officers including police personnel. The appellant was required to fill in the said personal data form (Annex. `E') and at item No. 5 the date of birth was mentioned as 1-1-1938. This data was submitted as far back as 1989 and even at that juncture the department did not raise any objection as to the appellant's date of birth. As pointed out above the case for correctness of original entries of date of birth excepting clerical mistakes etc. Had to be referred to the competent authority. There is no evidence on record to suggest that the department after having questioned appellant's date of birth had ever submitted case to the competent authority for alteration of the date of birth.
8. The most unfortunate part of department's case is that the appellant had never been got medically examined during the entire tenure of his service. Even after filing of this appeal the department did not think it fit to get his medical examination/ossification test conducted so as to ascertain the appellant's approximate age in case he disputed his date of birth viz. 1-1-1938.
9. In the circumstances of this case we have no alternative but to -hold that the department could not retire the appellant on the presumptive date of birth without documentary evidence on the record contrary to appellant's case and as such the appellant could not be retired on lath July 1993. Consequently, the impugned notification dated 31-12-1992 is hereby set aside fie appellant shall continue to be in service till the age of his superannuation viz 1-1-1.998. The period of his absence shall be treated as leave without pay.