1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 11-11-2000 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), whereby Appeal No,339(R)(CE) of 2000 filed by the present petitioner was dismissed.
2. ' The facts in brief, necessary for the disposal of instant petition are that the petitioner joined Pakistan Atomic Energy Commission (hereinafter referred to as the Commssion), as an Assistant Engineer on 17-6 1991. At the time of his appointment he submitted his documents inclusive of his matriculation certificate issued by the Board of Intermediate and Secondary Education, Peshawar (hereinafter referred to as the Board), for the session 1981, his national identity card and other papers wherein his date of birth was recorded as 13-6-1964 (Thirteenth June, nineteen hundred and sixty-four). This date of birth was incorporated in the service record of the petitioner by the Commission.
3. ' The petitioner filed a declaratory suit on 17-4-1994 before the Senior Civil Judge, Swabi impleading the Board alongwith Head Teacher of his school at Swabi praying for grant of a declaration to the effect that his actual date of birth was 11-3-1967 whereas it was wrongly entered as 13-6-1964 in the record of the school. The said suit was decreed on 16-3-1998 whereby his date of birth was changed from 13-6-1964 to 11-3-1967. After having equipped himself with this decree the petitioner got revised his Matriculation certificate and national identity card. Thereafter, he moved an application before the Commission on 26-8-1998 for the change of his date of birth in the office record from 13-6-1964 to 11-3-1967. On 10-11-1998 an office order was issued by the Principal Establishment Officer-II of the Commission, which reads as under:-- "Subject: CHANGE OF DATE OF BIRTH MR.NIAZ AKBAR, ' SENIOR ENGINEER,HMC-3. Reference: His application dated 26-8-1998.
4. ' The undersigned is directed to refer to the application of Mr. Niaz Akbar, Senior Engineer, HMC-3 and to say that the competent authority has agreed to change his date of birth as 11-3-1967 instead of 13-6-1964 on the basis of the judgment/decree of Senior Civil Judge, Swabi. Necessary amendment may be made in his personal record accordingly.
2. The officer concerned may be informed accordingly."
5. ' However, on reconsideration, it was ordered by the Commission that no amendment be made in the date of birth. To this effect an Office Memorandum was issued on 17-5-2000 by the Principal Establishment Officer-II, which is in the following terms:- ' Subject: CHANGE OF DATE OF BIRTH MR. NIAZ AKBAR, SENIOR ENGINEER, HMC-3, PAEC.
6. ' The undersigned is directed to refer to this Commission's Office ' Memorandum of even number dated 10-11-1999 on the subject noted above and to say that the case regarding change of date of birth as 11-3-1967 of Mr. Niaz Akbar, Senior Engineer, HMC-3 has been re-examined by the competent authority and it has been decided that the date of birth recorded as 13-6-1964 in the original Matriculation Certificate of Mr. Niaz Akbar son of Sherin Khan issued by Board of Intermediate and Secondary Education, Peshawar under Serial No,338229 and submitted by him on joining PAEC may be admitted as factual.
2. In view of above it is requested that no amendment may be made in his personal record on the basis of this Commission's O.M. Of even number dated 10-11-1998 and the same may be treated as withdrawn.
3. The officer concerned may be informed accordingly."
7. ' In view of this office order, the earlier office memorandum issued on 10-11-1998 was withdrawn.
8. ' The petitioner, feeling aggrieved by the above second office memorandum dated 17-5-2000, made a departmental appeal on 15-6-2000 whereupon he was informed vide Office Memorandum No,Estt-4(3179)/96 dated 15-7-2000 that no amendment could be made in the date of birth earlier recorded by him.
9. ' Thereafter, the petitioner approached the Tribunal by filing an Appeal bearing No, 339(R) (CE) of 2000 which has been dismissed through the impugned judgment. Hence this petition.
10. ' We have considered the contentions raised by the learned counsel for the parties and have gone through the entire documents placed on record with their assistance. A perusal thereof demonstrates that the "Commission" was created under The Pakistan Atomic Energy Commission Ordinance, 1965 (Ordinance No,XVII of 1965), hereinafter referred to as the Ordinance. Prior to it there was Pakistan Atomic Energy Council registered under the Societies Act, 1860, in May, 1959. For its functioning, bye-laws were framed and it was provided therein that the employees of the Council would, as far as practicable, be governed by the same rules which were then applicable to the Government servants. These bye-laws were approved by the Government through Notification No,M-32 (4). /58-AEC.I dated 11-2-1959 issued by the Ministry of Industries, Government of Pakistan.
11. At that juncture Pakistan Atomic Energy Commission was functioning in accordance with the Memorandum of Association, Rules and Regulations and the Bye-Laws of the Pakistan Atomic Energy Council. Bye-law No,20, which deals with the service conditions of the employees, provided as under:-- "20. Subject to any special or general orders passed by Council, including Government servants on deputations, will enjoy the same or equivalent privileges as far as may be practicable and will be governed by the same rules as apply to Government servants of corresponding status."
12. ' The Ordinance through which Commission was created was promulgated on 29-5-1965. This transformed the Organization from a body registered under the Societies Act, 1860, to a statutory autonomous organization. Section 21 of the Ordinance saved rules, regulations and bye-laws earlier in vogue in the following terms:- "21. Continuance of certain rules, etc.--All rules, regulations and bye-laws of the Pakistan Atomic Energy Council registered under the Societies Act, 1860 (XXVI of 1860), and in force immediately before the commencement of this Ordinance, shall, mutatis mutandis, and so far as they are not inconsistent with any of the provisions of this Ordinance, continue in force until repealed or altered by rules or regulations made under this Ordinance."
13. ' Section 13 of the Ordinance empowers the Commission, subject to the provision of subsection (2) and such general or special orders as the Federal Government may give from time tot time, to appoint such officers, advisors and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may deem fit. Under section 20 of the Ordinance, the Commission has framed Regulations as required under the law with the previous sanction of the Federal Government. These Regulations are called The Pakistan Atomic Energy Commission Employees (Service) Regulation, 1974 (hereinafter referred to as the Regulations). Regulation No,3.2 of the Regulations repealed all those Rules, Regulations and Bye- laws which were earlier saved under section 21 of the Ordinance so far as they related to the matters provided in these Regulations. All this shows that the Federal Government has been empowered under section 13 of the Ordinance to control the powers of the Commission in respect of appointment of its officers and employees which may include their terms and conditions. It is to be appreciated that no Regulation has been made respecting the change in date of birth in the Regulations. This being the position, the Rules and Regulations of the Federn1 Government in this behalf would be applicable to the employees of the Commission. It would be appropriate at this stage to reproduce rules 116 and 117 of the General Financial Rules of the Central Government which are as under:-- "116. Every person newly appointed to a service or a post under Government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a Matriculation Certificate municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under para. 117 should be recorded in the history of service, service book, or any other record may be kept in respect of the Government servant's service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without the previous orders of the Local Administration.
117. (1) If a Government servant is unable to state his exact date of birth but can state the year, or year and month of birth, the 1st July or the 16th of the month, respectively, may be treated as the date of his birth.
(2) If he is only able to state his approximate age, his date of birth may be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment.
(3) When a person who first entered Military employ is subsequently employed in a Civil Department, the date of birth for the purpose of the Civil employment should be the date stated by him at the time of attestation, or if at the time of attestation he stated only his age, the date of birth should be deduced with reference to that age according to the method indicated in subpara. (2) above."
14. In the case in hand the petitioner was appointed as an Assistant Engineer on 17-6-1991. At that juncture he provided his date of birth as 13-6-1964 which was mentioned in his Matriculation certificate issued in the year 1981 by the Board. On this basis he also secured his national identity card. After a period of 13 years of the issuance of his matriculation certificate, he woke up from his slumber and filed a declaratory suit on 17-4-1994 without impleading the Commission as a party wherein he had taken a job on the basis of above documents. According to rule 116 of the General Financial Rules of the Central Government, only clerical error in the birth certificate can be rectified.
15. ' There was another aspect of this case as was noted in the case of Syed Iqbal Haider v. Federation of Pakistan and another (1998 SCM R 1494) wherein it was held as under:-- "12. We may also refer to the submissions made by the learned Attorney-General that, in Government service, an employee cannot make any application for change in his date of birth after two years. On analogy, such rule should also be followed in judiciary, which otherwise would lead to serious complications, and open a pandora's box. Similarly, authenticity of date of birth recorded in the documents cannot be challenged belatedly, specially beyond the abovementioned period." (Underlining is ours).
16. ' Reference is also made to the case of Haq Nawaz Kiani v. The Province of Punjab the rough Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and others (1998 SCM R 801) in which it was held as under:-- "7. On thorough scrutiny we have noticed that service rules regarding correction of age within two years from entry into service are apparently sound and logical. Government servant cannot be normally permitted to rise from deep slumber and dramatically announce change in the date of birth; when about to retire. The Service Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons for declining the relief. In our opinion, legal position discussed and conclusion drawn by the Service Tribunal for passing impugned judgment do not suffer from any defect, illegality or impropriety. We wish to observe that lately a tendency has developed whereby unwarranted claims, attempting to show error in 'date of birth' are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously, such practice must be discouraged and effectively curbed. Additionally, the grievances agitated before us do not make out any substantial questions of law having public importance." (Underlining is ours).
17. ' There is another important plea raised, by the learned counsel for the respondents which finds favour that the declaratory decree was obtained after 13 years from the Senior Civil Judge, Swabi, without impleading the Commission as a party wherein the petitioner himself got recorded his date of birth as 13-6-1964 at the time of his induction into service. The sanctity is to be given to the petitioner's date of birth which he gave 13 years prior to the date of securing decree in this regard from the Senior Civil Judge, Swabi, at the time of his appointment in the Commission. Reference in this behalf is made to the case of M.R. Khalid v. Chief Secretary, Punjab and another (1994 SCM R 1633) where it was held as under:-- "4. After hearing the learned counsel for the petitioner we are not persuaded that any case for interference with the judgment of the learned Tribunal has been made out. Admittedly, while taking the Competitive Examination the petitioner had himself declared his date of birth to be 2-6-1930.
18. He remained in service for about 35 years thereafter. His name together with his declared date of birth appeared in the gradation lists and civil lists periodically published by the Provincial Government. He did not object to the incorrect publication of his date of birth till a few years before his retirement. The mere fact that he was able to obtain a decree from the Additional District Judge did not advance his case for the Government was not a party to the, civil suit brought by him."
19. (Underlining is ours).
20. ' Since this malady of getting change in dates of birth was increasing, as such the Government in order to curb this tendency had incorporated rule 12-A in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 on 31-7-2000 which runs as under:- "12-A. Alteration in the date of birth.--The date of birth once recorded at the time of joining Government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible.
21. As far as the argument of the learned counsel for the petitioner that since the Commission on the first application of the petitioner corrected his date of birth, as such a valuable right had accrued to the petitioner and the principle of locus poenitentiae in the circumstances was not available.
22. This argument on the face of it is without any force. No right could be accrued to a party on the basis of an order which has been passed in oblivion of Rules. Reference in this behalf may be made to PLD 1992 SC 207 where it was held as under:-- "The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent.
23. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-II, they withdrew the said letter. The principle of locus poeitentiae would not apply in this case."
24. ' Resultantly, in view of the foregoing discussion, the instant petition the being devoid of merit is hereby dismissed and .