' BASHARAT AHMAD SHAIKH, J.---A writ petition filed by respondent Professor Dr. Abdul Rauf Khan has been accepted by the High Court and a defection has been given to the Education Secretariat to change the date of birth of the said respondent from 27th January, 1938 to 27th February, 1942.
Appellant, Professor Dr. Khawaja Muhammad Aslam, who was not a party before the High Court, was granted leave to appeal when he contended that the impugned judgment of the High Court has adversely affected his right of promotion and other service rights.
2. It was vehemently contended before us by the learned counsel for respondent No,1, Ch. Muhammad Ibrahim Zia, that the appellant was not aggrieved by the judgment of the High Court for two reasons. He firstly contended that the Syndicate of the Azad Jammu and Kashmir University approved the change in the date of birth of respondent No,1 on 29th April, 1993 but this order was not challenged by the appellant, therefore, he is now estopped from challenging the order passed by the High Court which also deals with change of date of birth. Second contention of the learned counsel for respondent No,1 was that the appellant does not stand to gain anything if respondent No,1 retires earlier. In our view the objection raised by the learned counsel for respondent No,1 has no merit. It is specifically claimed in para. 3 of the memorandum of appeal that the appellant is the next senior most Professor after respondent No, 1 . This averment is supported by an affidavit, but respondent No,1 has not challenged the aforesaid claim of the appellant about his seniority.
Therefore, it has to be accepted that appellant is next to the respondent in seniority. Appellant Dr. Khawaja Muhammad Aslam is Professor and Chairman Department of Botany while respondent No,1 Professor Dr. Abdul Rauf Khan is Dean Faculty of Science. Therefore, extension in service of the respondent, which is the result of change in date of birth, adversely affects the appellant's right of promotion. He, therefore, has the locus standi to file appeal. The contention that the appellant is estopped from challenging the judgment of the High Court, in our view, has no merit because estoppel only applies if one party makes a representation and the other party acts upon it but there is no such situation in the present case.
3. Before adverting to the merits of the case it seems necessary to state the facts in brief.
Respondent No,1 was initially recruited in the Education Department of the Government. After the establishment of the Azad Jammu and Kashmir University, his services were permanently transferred to the University on 12th February, 1983 as Associate Professor. On an application moved by respondent No,1, the Board of Intermediate and Secondary Education corrected the Matriculation Certificate of respondent No,1 in which his date of birth was changed from 27th January, 1938 to 27th February, 1942. The correction was made on 24th March, 1992. The said respondent moved the University Authorities for correcting his date of birth in the University record.
The Syndicate of the Azad Jammu and Kashmir University approved the change as aforesaid on 6th July, 1993. It is stated that the appellant has not challenged the aforesaid change. Many years later, respondent No,1, filed a writ petition in the High Court in which he stated that the Secretary Education had refused to correct his date of birth and according to his information the aforesaid change in date of birth was being disputed. He placed on record a letter written by the Education Department to the Registrar of the University and prayed that it may be quashed. He also prayed that a direction be issued to the Azad Government of the State of Jammu and Kashmir as well as Secretary Education to amend the record in their possession to give effect to the change in date of birth. It was also prayed that a direction may be issued that the order of the correction of the date of birth may be issued by the respondents.
4. Chancellor, Vice-Chancellor, Syndicate and the University of Azad Jammu and Kashmir, were impleaded as pro forma respondents. The real respondents were Azad Government of Jammu and Kashmir and Secretary Education who did not put in appearance in response to the notice sent to them and were, therefore, proceeded against ex parte. The pro forma respondents accepted all the factual aspects of the case and stated that so far as the University was concerned there was no move for retiring the writ petitioner. The High Court has accepted the writ petition and has directed the Education Department to change the date of birth of respondent No,1 in light of the modified certificate issued by the Board of Intermediate and Secondary Education, Lahore and the decision of the Syndicate of the University.
5. The order which was challenged by respondent No,1 in the writ petition, as translated, runs as follows:- "On the subject noted above I am directed to invite a reference to your Letter No, F-53/Admin/84/2, dated 20-9-1992 and ' to state that the Services and General Administration Department prepared a summary for obtaining Government sanction but the Prime Minister has been pleased to pass the following order: ' At a previous occasion while dealing with officials of the Police Department the date of birth entered in the service record was treated as final and request for change was not accepted. The present matter is also similar in nature. The officer moved for change in the date of birth in 1991 after having served for many years and has now prayed that change may be made in the service record. He should have raised the matter at the appropriate time. At this stage the date of birth entered in the service record on the basis of the Matriculation Certificate cannot be changed. The matter may be consigned to the record room."
6. The High Court accepted the writ petition on the ground that the Board had modified the date of birth and it has also been accepted by the Syndicate, and observed that: "When two (2) relevant competent authorities have accepted the claim of petitioner, the Education Department is bound to carry into effect the decision made by the abovementioned Board and the Syndicate of the University. The final authority in the case of petitioner is Syndicate of the University, not the Education Department":
7. After hearing the learned counsel for the parties we are left in no doubt that the High Court was right in holding that the final authority in the case of respondent No, 1 is the Syndicate of the University and not the Education Department. However, it was rightly contended by Khawaja Sahahad Ahmad, the learned counsel for the present appellant, that after holding that the Syndicate was the final authority there was no legal justification to issue a direction to the Education Department to change the date of birth of respondent No,
1. We find force in this submission. In our view since there is no dispute that respondent No, 1 is no longer a civil servant, there was no justification for issuing a direction to the Government to change the date of birth of respondent No,
1. This assumes greater importance when we note that in para.2 of the writ petition respondent No, 1 himself stated that all his service record had been transferred to the Azad Jammu and Kashmir University.
9. We have noted that in para.10 of the writ petition it was averred that the Education Department had refused to make amendment in the date of birth of respondent No,
1. The impugned order, reproduced above, also shows that the University Authorities wrote to the Education Department for change in the date of birth. The position of respondent No,1 seems to be anomalous because on the one hand it was contended that the Syndicate is the final authority in the matter but on the other hand a request was made that the Government should change his date of birth. When the Government refused to do so, it is now being contended that the Government has nothing to do with change in date of birth.
10. The question of change of date of birth is dealt with in rule 67 of the Financial Code which runs as follows:- "The date of birth of appointment to present post and of promotion to present pay, of each person should be entered in the appropriate column. The date of birth by English year should be given, and if the exact date is not known, the approximate date or year should be stated. The declaration of age made at the time of or for the purpose of entry into Government service should be deemed absolutely conclusive and no revision of such a declaration should be allowed to be made at a later period for any purpose whatsoever."
11. The order passed by the Prime Minister, reproduced above, clearly seems to be based on the provision of law reproduced above. In light of this provision the view taken by the High Court that the Education Department is bound to carry into effect the decision of the Board of Intermediate and Secretary Education and the Syndicate of the University is not well-founded.
12. Thus, the reasons on which the judgment of the High Court is based are not tenable. Therefore, we accept the appeal and set aside the order passed by the High Court. Consequently, the writ petition filed by respondent No,1 stands dismissed.