1. ' ABDUL MAJID KHANZADA, CHAIRMAN.--- The facts giving viz to the above appeal are that the appellant being matriculate of the year 1957 was appointed as boy clerk by the Deputy Director Food, Hyderabad in defunct West Pakistan Government. The date of birth of the appellant is 17-3- 1943 and as such was appointed in 1957.
2. ' That at the time of First Entry in Government service the age Column in non-gazatted Service Book of the appellant was left blank for want of authenticated documentary proof of age whereas all other relevant entries were filled in.
3. ' Sindh University issued Pacca Certificate after one year of leaving the school and as such he moved application dated 15-10-1959 supported by such certificate with the request to enter date of birth in the blank column of page of Service Book. Such application was moved through the then Rationing Controller Hyderabad and has been filed on the record of this appeal at page 25. The Matric Certificate issued by the University of Sindh is filed at page 27.
4. ' That the appellant requested his department to return his original Matric Certificate but he was informed orally that it is missing and not traceable in office record and perhaps that is why inadvertently the date and month was correct but year of birth was recorded wrong in the relevant column. However, appellant did not know-at what point of time such wrong date of birth was recorded, as reportedly he was not informed about the recording of such date of birth.
5. ' The appellant kept on serving the Department and attained the status of Food Inspector in 1970.
6. Reportedly this is the time when he was informed about loss of his Matric Certificate by the Department.
7. ' Accordingly the appellant applied for duplicate copy of such certificate. The appellant had to take up the matter again with the Department for correction of his date of birth and Department wrote a letter to the Sindh University for verifications and authentication of the Matriculation Certificate and so also the date of birth recorded in such certificate. Such letter is at page 31 of the record whereas the reply of Sindh University is at page 29 of the record, this letter, is dated 30th July, 1997 signed by the Controller of Examination Hyderabad of Sindh University Jamshoro wherein the Matric Certificate relied upon by the appellant was confirmed to be genuine.
8. ' That the Food Department also sought advice from Service and General Administration Department, Government of Sindh in respect of the request of the appellant for change of date of his birth in his service record. Service and General Administration Department, did not give such advice to the Department and realizing the situation appellant filed Suit No,3 of 1999 before the VIIIth Senior Civil Judge Karachi wherein the learned VIllth Senior Civil Judge vide his order dated 23-2-1999 confirmed interim injunction dated 4-1-1999 which according to the appellant was to the effect of restraining the respondents from retiring him as accordance to the date of birth claimed by him, his date of superannuation was 17-3-2002 and he was liable to retire with effect from 18-3- 2002.
9. ' However, acting on the date of birth recorded in the service book as of 17-3-1939, appellant was made to retire under Notification dated 15-3-1999. The appellant challenged the said order in departmental appeal which was rejected on 31-5-1999 reportedly received by the appellant on 18- 6-1999. Therefore, the appeal has been filed with the prayer that retirement notification dated 15-3- 1999 and the appellate order dated 31-5-1999 be set aside and respondents be directed to treat the appellant in service till he attains the age of superannuation on 17-3-2000.
10. ' Against the case set up by the appellant in his appeal, the official respondents filed their written statement, their plea is that the appellant entered in service on 2-11-1957 as junior clerk in Food Department. His date of birth was recorded in the service book as 17-3-1939. He was then appointed as Food Inspector on 3-1-1970. In 1972 the appellant applied for the post of Ward Rationing Officer (BPS-16) he was over age by 8 years 7 months and 14 days which was relaxed by the Competent Authority on 28-10-1972 and as such he was so appointed on the same date i,e, 28- 10-1972. Since then he was working in the Food Department, got his further promotion to the next higher grade, and lastly he was promoted as Deputy Director Food (BPS-18) on 15-5-1990. During his whole service at no stage he made efforts for getting his date of birth corrected. In June, 1997 he made an application with the request to change his date of birth as 17-3-1942 providing a duplicate Matric certificate issued by the Sindh University which confirmed his date of birth as 17-3- 1942. At that time his Service Book was not traceable, the matter was taken up with the service and General Administration Department, and with the approval of the competent authority the appellant had been retired with effect from 16-3-1999.
11. ' It is further revealed from the case that the appellant had filed Constitutionnal Petition No,D-361 of 1999 before the Sindh High Court which was dismissed in limine vide order dated 19-3-1999 (suppressed fact by the appellant in his appeal), the date of birth of the appellant was recorded as 17-3-1939 in his Service Book as verified by the Civil Surgeon on 18-9-1958. According to him non- gazetted Service Book all the column filled in, including the age column showing the date of birth as 17-3-1939. The Medical Certificate issued by the Civil Surgeon on 18-9-1958 containing the thumb impression of the appellant also confirms his date according to his own statement 19 years i,e, his birth year 1939. Appellant did not claim to have made application for correction of his age on 15-10-1959 in the suit filed before the VIIIth Senior Civil Judge and so also in Constitutional Petition No,D-361 of 1999 before the Sindh High Court. As a matter of fact application claimed by the appellant to have been made is not available on the record. In the written statement department has relied upon the certain facts in order to substantiate that the date of birth of the appellant is 17-3-1939 and not 17-3-1942. Such facts are:--
(i) His Service Book itself is maintained in 1957.
(ii) Application submitted by he appellant in July, 1972 for the post of Ward Rationing Officer wherein he had claimed to be a young man of 32 years.
(iii) If 1942 had been his year of birth, he would have got relaxed his age by 5 years and 7 months instead of 8 years and 7 months, at the' time of his appointment as Ward Rationing Officer.
(iv) Face sheet of A.C.Rs, which are tilled in by the officer concerned show that appellant was born on 17-3-1939 and the Department has relied upon Annual Confidential Report 1973 to 1988 and 1995.
(v) The Seniority list issued from time to time indicates that appellant shall retire from service with effect from 16-3-1999 (the date of birth being 17-3-1939). At no stage he made efforts for getting his date of birth corrected except application made by him in June, 1997. The appellant entered in Government Service in the year 1957 and applied for change of his date of birth in the year 1997 i,e, after 40 years. The appellant did not apply for change of his date of birth within two years of joining the Government service as required under Rule 171 of the Sindh Civil Services Rules Volume I. The Department has further relied upon a Circular No, S & GAD-II (S&GAD) 6-4/75, dated 4-9-1975 where it is laid down that it is incumbent on the Government servant to ascertain his correct date of birth and to produce proper proof in support thereof at the time when first entry to that effect is made in the Government record and no subsequent entry or alteration is permitted. It has been pleaded that it is the Departmental discretion to consider or not consider a belated request for change of birth. It is also stated that Civil Courts have no jurisdiction to interfere in the service matters and injunction so granted by the Civil Court was without jurisdiction. The official respondents have relied the case-law i,e, 1976 PLC (C.S.) 144, 1980 PLC (C.S.) 90, 1981 PLC (C.S.) 701, 1982 PLC (C.S.) 38 and 1983 PLC (C.S.) 307.
12. ' We have heard the learned Advocates for the parties and gone through the record with the assistance of the learned Counsel. The first point for consideration for us is, that whether the appellant had succeeded to establish before us that his date of birth is 17-3-'1942 and not 17-3- 1939. Second point for consideration is that whether the Department was bound to make correction in the service record of the appellant regarding date of birth though according to the Department such request was made at a very belated stage vis-a-vis keeping the claim in consideration of the appellant that relevant column in Service Book for age was blank and he made application for correction of such date on 15-10-1959.
13. ' That looking into the complex situation we will decide both the points conjointly. We refer to the application dated 15-10-1959. This application is addressed to the Rationing Controller Hyderabad wherein it is stated that Column of age of the appellant has been left blank in the Service Book, therefore, in the left over column, the date of birth be entered as 17-3-1942 as contained in the matric certificate. According to the Department this application is not available on their record. We see that application is received and signed by someone. There is no seal of the Department on it.
14. There is no inward or outward number on such application, there is no name or designation or seal of the person who received it. Not only this we have perused, the Constitutional Petition No,D-361 of 1999 filed on 4-3-1999. In this petition the appellant did not state anywhere that for the first time he applied before the Department for change of date of birth on 15-10-1959. On the contrary in para. 2 of the petition he straightaway made a statement "that on 11-6-1997 the petitioner made a representation to respondent No, 1 for change, in date of birth because as per record of the respondent No,1 the date of birth of the petitioner is being shown as 17-3-1939, however, actual date of birth of the petitioner is 17-3-1942." The Memo. Of this petition is annexed as Annexure 13 with written statement. We have also perused the Memo. Of plaint in the Suit No,3 of 1999 and find that there is no mention of this application in the said plaint nor it had been annexed in this litigation as an Annexure. This omission on the part of appellant coupled with denial of the department about existence of this application caste, a shadow of serious doubt on the authenticity of this application and we accordingly hold that appellant did not file application for change of date of birth on 15-10-1959. Our this view is further supported by the averments made by appellant in his suit and Memo of petition before the High Court. For instance in para. 4 of plaint in Suit No,3 of 1999 appellant states "that during discussion of plaintiff with his relatives on various topics as usual hinted that plaintiff's date of birth is 17-3-1942 instead of 17-3-1939." Had the appellant made application for change of birth on 15-10-1959 that too based on matric certificate, he would not have pleaded this fact. It is otherwise unimaginary that an officer who had retired from the post of Deputy Director and is educated upto the level of graduation, would come to know about his date of birth through his relatives through family discussion and in the same breath he says that he was Matriculate in 1957 and his date of birth entered therein as 17-3-1942 and he had made such application to the Department for correction of date of birth on 15-10-1959. On this point the pleadings of the appellant in his Constitutional Petition No,D-361 of 1999. Suit and the present appeal before us are at variance and contradictory. Moreover, with regard to plea of the appellant that the relevant Column of Service Book with regard to determination of age was blank, the department has placed before us the extract of the Service Book as Annexure 19 it reads "His age is according to his own statement 19 years and by appearance about 19 years." This page is signed by the Civil Surgeon and contains thumb-impression of the appellant. This belies the stand of the appellant that the relevant column of the age in the said Service Book was blank and accordingly held that it was filled in at the time when he entered into service. There is another document filed by the department as Annexure 20 which is tiled by the appellant on 29-9-1998 wherein he replied the questionary given to him by the Section Officer, Food Department. He admitted that Town Committee Sukkur did not record his date of birth and accordingly refused him to issue birth certificate. Without giving date of discussion with the relatives his source of information as to the date of birth and such discussion with the relatives and after such discussion he claimed to have applied for Matric Certificate without specifying the date of such discussion. Yet there is another document dated 20-8-1984 filed with the written statement as Annexure '2' where the appellant submitted requisite information on the prescribed pro forma when he was District Food Controller Nawabshah, wherein he himself mentioned his date of birth as 17-3-1939 and perhaps this document sealed fate of claim of appellant and we accordingly hold that as per official record the date of birth of the appellant is 17-3-1939 and not 17-3-1942.
15. ' In view of the our earlier findings that appellant himself has stated in para. 2 of his writ petition that he applied for change of date of birth on 11-6-1997, wherefore, at such a belated stage to consider such request was within the discretion of Department and if such discretion is exercised by the Department refusing to entertain the claim after about 40 years.
16. ' Before concluding, we would like to distinguish the case of Ansar Ahmed D.S.P. v. Government of Sindh and others decided in Appeal No,58 of 1993 by this Tribunal. In that case at the time of entry in the service, the appellant's Service Book age column was left blank whereas we have held that in the present case it was not blank. Further in column which was left blank, in 1962 the date of birth was shown as 1-1-1938 in Red Ink whereas in the present case the date of birth as 17-3-1942 is not recorded in the service record at any point of time. In 1989 Personal Bio-data was required from the appellant by the Government of Sindh which was submitted by him through proper channel where he wrote his date of birth as 1-1-1938 whereas in the present case the Bio-data submitted by the appellant contained the date of birth as 17-3-1939 and not 17-3-1942. In the case of Ansar Ahmed, Government of Sindh was given full opportunity to produce any documentary evidence regarding the date of birth relied upon by the Department and the Department had failed to substantiate the same. In the case of Ansar Ahmed he was never medically examined during the entire ten years of his service. This Tribunal has held in the case of Ansar Ahmed that in case of dispute regarding different date of birth, recorded in service record, the matter should have been referred to the Competent authority for resolving the same because in that case there were 2 dates of birth recorded. It was the duty of the competent Authority to ascertain as to which one is the correct and that was not done whereas no such issue is available in the present case.
17. ' That the case of Ansar Ahmed is quite distinguishable than the case of appellant and it lends no support to his contentions.
18. ' It will be worth if we simply calculate the date and years. If the date of birth of the appellant is taken as 17-3-1943 then accordingly he has passed. Matric examination 14 years only and joined, Government service under the age of 14 years. Without condoning the age by the competent Authority. It is an established law that for Government if some one is overage or underage, relaxation by the competent Authority is a must. How a boy of 14 years can be appointed as Clerk.
19. ' Under the above circumstances we have no option but to dismiss this appeal with no order as to costs.
20. ' Given under our hands and Seal of this Tribunal this 30th day of May, 2000.