1. ' JUSTICE (RTD.) ABDUL GHANI SHAIKH, CHAIRMAN.---Appellant Rahat Hussain Siddiqui was working as Deputy Secretary, Board of Secondary Education, Karachi I had received an office order dated 9-3-1998 whereby he was informed that on attaining the age of superannuation he will stand retired from Board's service w,e,f, 31-3-1998. According to appellant his actual date of birth is 28-12- 1942 but in the service record .Maintained in his office his date of birth was erroneously recorded as 1-4-1938. He on receipt of the office order, dated 9-3-1998 submitted all the relevant documents showing his correct date of birth to the Board of Secondary Education, Karachi for correction of the service record but since no response was received by him, he filed departmental appeal which was not entertained. Feeling aggrieved the appellant filed Civil Suit No,156 of 1998 in the Court of learned IInd Senior Civil Judge, .Karachi (Central) but its plaint was rejected under order VII, rule 11, C.P.C. By order dated 18-4-1998. He challenged the said order in Appeal No,18 of 1998 which was dismissed on 2-12-1998 by learned 1st Additional District Judge, Karachi (Central). Against which he filed R.A. No,6 of 1999 before Honourable High Court of Sindh, Karachi which to vide judgment dated 29-10-1999 was dismissed. He challenged the said judgment in C.P. No,D-1929 of 1999 before the same High Court which was also dismissed by a Divisional Bench on 8-2-2000. As a last resort, the appellant filed Civil Petition for leave to Appeal to 114-K of 2000 before Honourable Supreme Court of Pakistan, which met with same fate and leave to appeal was refused by order dated 5-7-2000.
2. The appellant after exhausting all the available legal remedies upto the level of Honourable Supreme Court, has filed the instant appeal before this Tribunal on 28-7-2000 and stated that in view of the case of Abdul Haleem v. Secretary, Government of Punjab, Irrigation and Power Department, reported in 2000 SCMR 1110, that the question of date of birth/retirement is one of terms and conditions of service as such the jurisdiction lie with Service Tribunal under section 4 of Sindh Service Tribunal Act, 1973.
3. ' In response to the pre-admission notice, the respondent No,1 filed parawise comments and vehemently denied all the averments/assertions raised in the memo. Of appeal pertaining to the date of birth of appellant.
4. ' Mr. Abrar Bukhari, learned counsel for the appellant has argued that in the service book the date of birth viz 1-4-1938 was mentioned erroneously by the respondent No,
1. He contended that appellant moved application for correction of date of birth as 28-12-1942 to the Board of Intermediate and Secondary Education, Lahore which was allowed and duplicate Matriculation Certificate was issued showing the correct date of birth i,e, 28-12-1942 which was submitted to the respondent No,1 but finding no response, he knocked the door of Civil Court upto the level of Honourable Supreme Court of Pakistan and thereafter he approached this Tribunal as according to the dictum of Honourable Supreme Court of Pakistan in a case of Abdul Haleem (supra) the jurisdiction vested with Service Tribunals. In support of his contention he relied upon: (1) 1994 PLC (C.S.) 1158 (2) 1999 SCMR 255, (3) PLD 1974 SC 22, (4) PLD 1981 Lah. 433, (5) 1998 SCMR 640, (6) 2001 PLC (C.S.) 85 and 1988 SCMR 1458.
5. ' On the other hand Mr. Masroor Ahmed Alvi, learned counsel for respondent No,
1. Has urged that right from the beginning the appellant's date of birth recorded in whole of his service record is 1-4- 1938 and he at no time disputed the same rather time and again the appellant ratified and confirmed that his date of birth was 1-4-1938: However, on receipt of office order dated 9-3-1998 the appellant changed his mind and for the first time he claimed that his actual date of birth is 28- 12-1942. He stated that the matter has already been agitated by the appellant upto the highest forum i,e, Honourable Supreme Court of Pakistan, as such this Tribunal has no jurisdiction to entertain, hear and decide the appeal. He in support of his contentions has relied upon (1) 1994 SCMR 1633, (2) 1998 SCMR 1494, (3) 1999 CLC 1033, (4) PLD 1999 Quetta 36, (5) 1998 SCMR 801 and 1999 SCMR 861. We have considered the above submission and have gone through the material available in the file so also the case-law referred to by learned counsel for the parties.
6. Admittedly, the appellant before approaching this Tribunal had filed Civil Suit but the plaint was rejected under Order VII, rule 11, C.P.C. The appellant had taken up the matter upto the level of Honourable Supreme Court of Pakistan, at all forums he remained unsuccessful. The appellant right from 1998 when he filed civil suit till July. 2000 when leave to appeal was refused by Honourable Supreme Court of Pakistan, was of the view that his remedy lay before Civil Court but when he remained unsuccessful at all in the said forums, he immediately changed his mind and filed the instant appeal by stating that since the question of correction of date of birth of an employee pertains to terms and conditions of his service, the remedy lay with Service Tribunal. Be that as it may but the fact remains that the appellant had himself knocked the door of learned Civil Court on the presumption that Civil Court being Court of ultimate jurisdiction could entertain such suit, but now he approached this Tribunal with a plea that the question relating to correction of date of birth pertained to terms and conditions of service, therefore, the Service Tribunal had the jurisdiction.
7. Thus the principle of estoppel is very much attracted to the instant case. In any case, there are some reported matters wherein it has been observed Mat the dispute relating to entry in the service record pertaining to age does not come within definition of terms and conditions of service.
8. Reference is invited to PLD 1981 Lahore 433, 1993 MLD 2158. Both these cases were referred to in a case of Regional Commissioner Income Tax v. Shafi Muhammad Baloch 1997 PLC (C.S.) 1122.
9. However, the constant view of our Superior (apex) Court is that the matters with ,regard to the determination of age of a Government servant mentioned in his educational certificates and the service record come within the purview of the terms and conditions of service as such the jurisdiction lay with Service Tribunals. We may add here that the Service Tribunal have, however, no jurisdiction to deal with the cases for correcting the date of birth in the Educational Certificates issued by any School, Board or University, etc. In the instant case admittedly the appellant at the time of his appointment is B.I.S.E. Karachi had produced an attested copy of Matriculation Certificate issued by B.I.S.E. Lahore in the year, 1958 wherein the date of birth of appellant has been mentioned as 1-4-1938 and the same date was entered in the service book of appellant. On the basis of that date, the appellant vide office order. Dated 9-3-1998 was informed that he will stand retired from Board's service w.e.f 31-31938. The appellant thereafter submitted an application in the prescribed form to the B.I.S.E. Lahore stating therein that his actual date of birth was 28-12-1942 and the same may be corrected in the Matriculation Certificate issued in the year 1958 but according to the appellant since Board's examination were being held in Punjab, the meeting of the Board's Committee could not be convened till next two months. It was in these circumstances, the appellant filed Civil Suit No,156 of 1998 in the Court of learned IInd Senior Civil Judge, Karachi (Central), wherein he joined the Chairman, Board of Secondary Education, Karachi as defendant No,I (where the appellant was serving before his retirement) and the Board of Intermediate and Secondary Education, Lahore through its Secretary as defendant No,2. The main prayer of the appellant in that Suit was to give directions to the defendant No,2 to make correction of date of birth as 28-12-1942 in the Matriculation Certificate of 1958. It will be pertinent to. Reproduce the relevant paras. 2 to 5 of the memo. Of plaint, which reads as under:-- "2. That the actual date of birth of the humble plaintiff is 28th of December, 1942 as per record of aforesaid defendant No,2, wherefrom the plaintiff did his matriculation. That when the matriculation certificate was issue by the defendant No,2, it had an error apparent on the face of record which even escaped notice of the plaintiff. The wrong and incorrect date as mentioned therein 1-4-1938.
3. That at the verge of retirement as per record of the defendant No,1, here at Karachi, the error was detected and the plaintiff took constant proceedings with the defendant No,2 and made continuous pursuit so as to have the record corrected prior to 31-3-1938, and it was so expected as undertaking and oral promises were extended by the office of the defendant No,2. In this regard various documents are being submitted so as to show the bona fide and efforts of the plaintiff made in this behalf which includes;{{TABLE}}
(a) obtained correct certificate from Annexure B his parent school at Lahore.
(b) deposited necessary fee for Annexure C correction in the sum of Rs,4,000.
(d) submitted prescribed form with Annexure D defendant No,2
(e) obtained letter from the Annexure E defendant No,2.
(4) That by now the defendant No,2 should have issued the correct or corrected certificate in the larger interest of service career of the plaintiff. But owing to recent or current examinations being held in Punjab, the necessary meeting of Committee, could not be held and it would take a further period of two months. Hence this suit.;
(5) That the point involved is purely relating to a civil right, it does not pertain to service or conditions of service. Hence, this Hon'ble Court has got jurisdiction to entertain the suit and grant appropriate remedy."
10. From the simple perusal of the above contents of memo. Of plaint filed by appellant in Civil Court, it is very much clear that appellant wanted correction of date of birth in his Matriculation Certificate, which as per para.5 of the memo. Of plaint, is within the jurisdiction of the Civil Court in view of section 9, C.P.C. Which says that Civil Court being Court of ultimate jurisdiction has to determine such issues of civil nature. We, as observed above, are also of the same view that dispute of such- like nature are to be entertained and determined by the Civil Courts, the appellant had thus rightly approached the Civil Court, but the plaint in that suit was rejected under Order VII, rule 11, C.P.C. Not on the ground that it had no jurisdiction to deal with such-like suits, but on the ground inter alia that since no case is made out against the defendant No,1, therefore, the plaintiff should have filed the, suit at Lahore against the defendant No,2 within limitation. The plaint in the above cited suit was rejected vide order, dated. 18-4-1998, this was challenged by appellant by way of appeal before District Judge, Karachi (Central), which was dismissed on 2-12-1998. It is once again pertinent rather expedient to mention here that after filing the appeal the appellant had received the Matriculation Certificate on 28-4-1998 duly corrected wherein the date of birth was corrected as 28-12-1942. At that juncture the civil appeal had become infructuous and could have been dismissed as such, because the very purpose of filing the suit/appeal had been achieved by the appellant on receipt of Matriculation Certificate duly corrected, which was the only prayer of the appellant in his suit. Thereafter, the appellant could have approached his Department viz B.S.E. Kick.
11. For correction of service record and in case of rejection of his request, he could have approached this Tribunal for redressal of his grievance but instead of doing so, the appellant had been pursuing his legal remedy(ies) before District Court, Honourable High Court and Supreme Court with a prayer for correcting his date of birth in his service record and for rescinding the order of his retirement, which relief (s) were not claimed by the appellant in his suit. The appellant's appeal before District Court, civil revision and Constitution petition before Honourable High Court of Sindh, Karachi so also civil petition for leave to appeal before Honourable Supreme Court of Pakistan were all dismissed. He has not approached this Tribunal for redressal of his grievance, which in the given circumstances and for the following legal and factual reasons cannot be remedied.
12. So far legal aspects are concerned, this appeal is not maintainable and is also barred by time. The appellant before filing of the instant appeal had not exhausted the legal remedy of filing the departmental appeal before the concerned Departmental Appellate Authority which is a condition precedent for invoking the jurisdiction of this Tribunal as provided under section 4 of the Sindh Service Tribunal Act, 1973. According to appellant he had filed departmental appeal on 30-3-1998 addressed to the Governor of Sindh, Karachi but the same by no means can be termed treated as Departmental appeal. Where in the appellant simply stated that his retirement order may be recalled as his application for correction of birth in Matriculation Certificate was lying pending with B.I.S.E. Lahore. It is thus clear that the said application was made much prior to the correction of Matriculation Certificate. The appellant could have filed the departmental appeal after he received the Matriculation Certificate duly corrected wherein the date of birth viz 28-12-1942 was mentioned as claimed by the appellant, but that exercise was not undertaken by the appellant but instead he was pursuing the legal remedy(ies) as stated above. Besides, the instant appeal is barred by time.
13. The appellant had received the corrected Matriculation Certificate in April, 1998 but the instant appeal was filed on 26-7-2000. According to the appellant he was pursuing' his legal remedy before wrong forum in good faith as such the period spent in pursuing legal remedy before wrong forum was liable to be condoned under section 14 of the Limitation Act. In view of the case-law reported in 1982 SCMR 425, 1991 SCMR 520, 1991 SCMR 1679 and PLD 1998 Quetta 88 which were relied in the case of Mst. Musarrat Ara Khanum v. Umaid All and another reported in PLD 1999 Quetta 36 referred to by learned counsel for the respondent, it has been well-settled that provisions of section 14 Limitation Act cannot be invoked for seeking condonation of delay, in filing the appeal. However, section 5 of the Limitation Act, can be invoked for seeking condonation of delay as has been held in the case of Sheerin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584, wherein it was observed that "if sufficient cause is shown in pursing the wrong remedy, the delay can be condoned". This case was relied upon in a case of Mst. Musarrat Ara Khanum.
14. (supra). It is thus clear that delay can be condoned only when sufficient cause is shown. In the instant matter, the appellant's counsel at all forums vigoriously urged that Civil Court alone was competent to deal with and determine the question involved in the matter but when the appellant remained unsuccessful at all forums, he approached this Tribunal with a change/altogether different plea that only Service Tribunal had the jurisdiction to determine the controversy/ point/question involved in the instant appeal. Ignorance of Law either on the part of of appellant himself or his counsel per se is no ground for condonation of delay. The appellant all along was assisted by counsel, failure of counsel to take note of law, obviously be attributed only to lack of due diligence on his part and if the appellant has suffered he can seek redress against his counsel, but this would not provide a reason for condonation of delay. Reference is invited to the case of Mrs. Ismat Tariq v. Shaikh Shaukat Ali 1974 SCMR 158, which too was relied in the case of Mst.
15. Musarrat Ara Khanum (supra). Suffice it to say, that no application for condonation of delay has been filed in the instant appeal. The delay thus cannot be condoned.
16. ' Even on merits, we have gone through the material placed before us by the appellant so also by the respondent. The appellant joined the Board of Intermediate and Secondary Education, Karachi in the year, 1962. He had produced an attested copy of Matriculation Certificate of 1958 issued by the Board of Intermediate and Secondary, Education, Lahore, wherein the date of birth of appellant is mentioned as 1-4-1938, which was entered in the appellant's service book duly signed by him.
17. During the entire period of service of more than 25 years the appellant never agitated or challenged that his actual date of birth was not recorded in the service book/record rather he time and again confirmed through his various applications. He in the year 1986 applied for an International Passport and in his application he declared his date of birth to be 1-4-1938 which is also mentioned in his N.I.C. And the same was incorporated in the Passport bearing No,B 85045 dated 7-4-1986. His case for moveover according to him was not being decided by the Board and he moved application dated 2-8-1997 so also on 8-9-1998 wherein he clearly stated that he was going to retire in April, 1998. He was declared senior to one Mr. Muhammad Aslam only on the basis of date of birth. He however, awakened from sound slumber after a long period of 25 years when he received an office order dated 9-3-1998 whereby he was informed that he will stand retired from service w,e,f, 31-3-1998. He then blamed the Board that his date of birth was erroneously recorded in the. Service Book as 1-4-1938 instead of 28-12-1942, though admittedly the date of birth was incorporated in his service book/record as declared by appellant himself. The respondent had thus rightly retired the appellant from service on attaining the age of superannuation w,e,f, 31-3- 1998. It is absolutely unbelievable that appellant remained unaware about his actual date of birth and kept silent for 25 long years. The appellant in these circumstances is duty bound to furnish sound, valid and cogent reasons to justify such a long silence. Under rule 171(d) of the Sindh Civil Service Rules Manual Vol., 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 due to the result of clerical error. According to instructions below Rule 171, the officers competent to alter date of birth should see that no change in the date of birth which shall be to the advantage of the Government servant concerned is allowed unless an application in that behalf 'is made by the Government servant concerned within two years of the date on which his service book was opened under rule 167 of Sindh Service Rules. As stated earlier, the appellant had got up from sound slumber too late when he was informed about the date of his retirement, though date of birth was mentioned in the service record as declared by the appellant himself, hence he is estopped to question the correctness of the date at such belated stage.
18. ' There is a growing tendency amongst Government servants for making attempts to change their date of birth, where nearing superannuation. In this behalf we are supported by following judgments of our apex Court:
(1) M.R. Khalid v. Chief Secretary, Puniab, 1994 SCMR 1633.
(2) Haq Nawaz Kiani v. The Province of Punjab, 1998 SCMR 801.
(3) Pakistan Broadcasting Corporation v. Subedar Major (R.) Abdul Razak 1998 SCMR 602.
(4) Syed lqbal Haider v. Federation of Pakistan, 1998 SCMR 1494.
(5) Government of Punjab Education Department v Prof. Mrs. Jamila Malik, 1999 SCMR 861.
19. In all the above cases, the Honourable Supreme Court deprecated the tendency of seeking amendment in date of birth by civil servant when nearing superannuation. The service rules regrading correction of age within two years from entry into service are apparently sound and logical. Though the Government has undoubtedly the power to correct an incorrectly recorded date of birth of a civil servant but the silence of the civil servant over the major portion of his service was such that he did not merit a favourbale decision from the Government. The Government servant cannot be normally permitted to rise from deep slumber and dramatically announce change in the date of birth when about to retire. It has also been observed that lately a tendency has developed whereby unwarranted claims attempting to show errors in 'date of birth' are asserted towards retiring age by fabricating or manipulating documents in that behalf.
20. Obviously, such practice must be discouraged and effectively curbed. In the last case (1999 SCMR 861), it has been observed that:-- "It is highly amazing that respondent remained satisfied with regard to entries in Matriculation Certificate and Service Book for more than 30 years, but abruptly started/pursuing different measures for bringing about amendment in her date of birth towards tale end of her service career. Unfortunately, there is growing tendency amongst Government employees for making attempts to change their date of birth, when nearing superannuation. This virus appears to be fact spreading and needs to be effectively checked."
21. ' For the foregoing legal as well factual aspects and following the dictum laid down in the aforesaid celebrated judgments of our apex Court, we are of the considered and firm view that appellant has made out no case for interference. Consequently, the appeal is dismissed. The parties are, however, left to bear their own costs.
22. ' Announced in open Court.
23. ' Given under our hands and Seal of this Tribunal 28th day of November, 2001.