' FALAK SHER, J.---Aggrieved by the granting of Marjan Khan respondent's appeal (S.A. No, 6 of 2000) by the Service Tribunal, Balochistan, Quetta by majority directing correction of his date of birth viz. 15-2-1946 instead of 15-2-1942, the third member opining that the matter having already stood disposed of during the earlier round for implementation whereof contempt proceedings could be initiated vide the impugned judgment dated 21-12-2000, Civil Petition No,6-Q of 2001 was preferred, wherein leave was granted on 27-7-2001 and is disposed of hereinbelow.
2. Resume of the essential facts gathered from the record for resolving the present controversy are that Marjan Khan respondent having been appointed as Naib-Tehsildar by the Commissioner, Quetta Division vide order dated 7-11-1968, subsequently joined the Provincial Executive service in BPS-17 through competitive examination on 10-10-1972, furnishing his date of birth as 15-2-1942 and serving on various posts was eventually promoted to BPS-20 in the year 1989. On publication of joint seniority list of the officers in BPS-18 to 20 on 23-8-1999, inter alia revealing his date of birth as 15-2-1942, represented to the Government of Balochistan for correction thereof and upon frustration of his efforts filed Appeal (No,5 of 1995) before the Service Tribunal, Balochistan submitting that he was admitted in Government Primary School, Guryasa, District Musakhail at the age of 11 through a distant relation for his father having already passed away, furnishing "hyopthetical" date of birth as 15-2-1942 which was subsequently corrected to be 15-2-1946 on the basis of sworn affidavit of his rather since being a tribal area no record of birth was available, factum whereof was affirmed by the concerned School Teacher vide certificate dated 20-6-1972; Medical Certificate issued by the Medical Superintendent, Sandeman Civil Hospital, Quetta dated 24-10-1968 basing his opinion on the reports of Radiologist and Dental Surgeon, opining his age to be 22/23 years, and non-gazeted service book manifesting his age as 15-2-1946, whereas the matriculation certificate revealing his date of birth as 15-2-1942 had to be referred for the competitive examination being the prerequisite for application which was allowed on 17-3-1996 with the following observation:-- "(i) No doubt entry in the Matriculation Certificate for age purpose is valid proof but the same was not declared as an exclusive document as elaborated in S&GAD's letter, dated 1st September, 1986.
(ii) Opinion of the standing Medical Board is valid proof to be accorded weight for a final decision. It transpires from the record that the appellant's date of birth was recorded as 15-2-1946 in his service record when he firstly joined as Naib-Tehsildar in the Revenue Department.
(iii) The appellant's plea that he belongs to a far-flung remote area of Musakhel District where his guardian took him to Primary School for admission in Ist Class at the age of 7 years where the Primary teacher recorded his age as 11 years which had not been objected to by his guardian due to ignorance seems valid.
(iv) He has produced documents such as written statement of the afore-referred teacher containing reference to his mother's statement on oath which is verified by the standing Medical Board and this should be accorded consideration for correction of age.
(v) The appellant is agitating right from 1972 since his entrance in the Executive Cadre of Provincial Government for reflection of his age already recorded in the record of his Naib-Tehsildar Service.
' The official respondent is, therefore, directed to accord consideration to the prayer of the appellant and finalize seniority list of defunct PCS(EB) Officers B-18 and B-19 prior to the, issuance of seniority list of the said class officers in B-20'.':
3. For the implementation whereof the respondent filed Constitutional petition before the Balochistan High Court, No,16 of 1998, which was disposed of on 26-3-1998 requiring the appellant to finalize the proceedings within 14 days.
4. Pursuant whereto the matter was placed before the Departmental Committee and was turned down on 11-4-1998. Whereafter the respondent made a representation to the Chief Minister, Balochistan on 15-5-1998 wherein, the appellant was required to examine the respondent's case in the light of the decisions of the Service Tribunal and the High Court and was eventually allowed on 26-2-1992 by the then Chief Minister in the following terms:-- "GOVERNMENT OF BALOCHISTAN, SERVICE AND GENERAL ADMINISTRATION DEPARTMENT DATED QUETTA THE 26TH FEBRUARY, 1992 NOTIFICAITON ' No,S-H-1 (101)/90-S&GAD.---Consequent upon the determination of his age by the standing Medical Board on the basis of usual tests and also on account of other documents the Government of Balochistan is pleased to accept the date of birth of Mr. Marjan Khan, Secretary Food as 15-2- 1946 (15th February, nineteen hundred forty(six) instead of 15-2-1942, under para.116 of GFR VOL-I.
' MIR TAJ MUHAMMAD KHAN JAMALI ' CHIEF MINISTER ' BALOCHISTAN ' NO.S-II-1(101)/90-S&GAD dated Quetta the 26th February, 1992. Copies is forwarded to:--
1. The Secretary, Government of Balochistan, Services and General, Administration Department, Quetta.
2. The Accountant-General, Balochistan, Quetta.
3. Mr. Marjan Khan, Secretary Food, Government of Balochistan, Quetta.
4. Manager, Government Printing Press for publication in the official Gazette."
5. Before the same was communicated to the respondent, second provisional seniority list of Balochistan PCS Officers in Grades 19-20 was issued by the appellant on 29-10-1999 contrary to the directions of the Balochistan Service Tribunal and the High Court referred to supra, impelling the respondent to file a representation dated 24-11-1999 and exhausting the waiting period, preferred appeal before the Service Tribunal, Balochistan (S.A. No, 6 of 2000) which was allowed vide impugned judgment dated 21-12-2000 overruling the jurisdictional objection opining that correction of date of birth a matter of terms and conditions of service of a civil servant on the basis whereof the superannuation is to be adjudged, placing reliance (1991 PLC (C.S.) 329) "Muhammad Yakub Khan v. The State of Azad Jammu Kashmir".
' On merits holding:-- "The appellant throughout has been agitating that he was admitted in Primary School, in the year 1952, the argument of learned counsel for the appellant seems to be plausible and appealable in the scene, that when the appellant was first admitted in Class-I, if his date of brith would have been 1942, it was not possible to admit him in the School at the age of 11 years. Admittedly the appellant came from a remote and far flung area, where literacy rate is very low. Thus, it appeals to a prudent mind, that at the time of his admission in Class-I appellant could have been at the age of 7 years. Besides the appellant has been agitating the question of his age before the different authorities, right from the date of his induction in service inasmuch as, the date of brith entered in his service book is 15th February, 1946, but the respondent has determined his age, on the basis of his Matriculation Certificatc. It may be observed that It has already been held by this Tribunal in the judgment dated 17-3-1996, that entry in the Matriculation Certificate, regarding date of birth is a relevant proof but the same can't be taken as a conclusive proof and regarding age dispute, the same can be determined by obtaining opinion from the Medical Board."
' Referring to Letter No,SOR-1(1) 160/S&GAD-86 dated 1-9-1986:-- "(a) The date of birth once recorded in the service record of a Government Servant cannot be altered without the previous approval of the Government.
(b) Matriculation Certificate is not the conclusive proof of date of birth of a Government Servant.
(c) The Government can alter the date of birth of a Government Servant on the basis of the opinion of the Medical Board."
' It was held that-- "a perusal of the record shows that the appellant has submitted the Report of Medical Board, but the same was not considered at all the said Certificate was issued by the Medical Superintendent, Sandeman Civil Hospital, Quetta, on 24th October, 1968."
' Further pointing out discrimination, it was observed that:-- "Previously also such applications were made to the Government and on the basis of such documentary evidence, as in the case of appellant, the date of birth of Government. Servants were corrected. For instance, he referred to the case of Miss Sajida Burki, Abdul Nabi Marri, Abdul Hameed Joyia and Nazar Muhammad Khan Kamrani, whose age were corrected, on production of similar documents, as that of the appellant."
' Concluding it was observed that:-- ' We are not persuaded to agree with the learned Advocate-General. It may be observed, that the appellant had been written the question of his date of birth soon after his induction in service in year 1968. He had got himself examined from the Medical Board of Sandeman Provincial Hospital, Quetta, in the year, 1968 and in service book his date of birth has also been mentioned as 15th February, 1946.
' In view of the above discussion, appeal is accepted and it was held the date of birth of appellant is 15th February, 1946, and the same be read while dealing with all matter, relating to his service, accordingly, Government is directed to substitute the date of birth of appellant i,e, 15th February, 1946, with 15th February, 1942 and such entry be made in his service record."
6. Aggrieved whereby the appellant has preferred the 'captioned appeal both as to the plea of jurisdiction as well as on factual plan and belated recourse.
7. Which we are afraid is misconceived.
8. Adverting to the question of jurisdiction of the Service Tribunal perceived by section 4 of the Balochistan Service Tribunals Act, 1974 conferring exclusive jurisdiction on the tribunal pertaining to terms and conditions of a civil servant in the following terms:-- "4. Appeal to Tribunal.---Any civil servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter: ' Provided that--
(a) Where an appeal, review or representation to a departmental authority is provided under any law or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining--
(i) the fitness or otherwise of a person to be appointed to or hold a particular or to be promoted post to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement."
We are of the considered view that there is no room entertaining any opinion to the contrary that the date of birth of a civil servant is the sheet anchor for determining his superannuation on which date he is to bid fare-well to the Department thus is pivotal and most crucial and essential terms of condition of his service.
' Being a settled legal preposition a useful reference in this regard could be made to the following:- - ' 1988 SCMR 1302 "Jamal Khan Jaffar v. The Government of Balochistan"
"The appellant joined service of the Government of Balochistan on 23-1-1957 as Junior Assistant.
The appellant contends that his correct date of birth was entered in the Service Book which was prepared at the time he entered into Government Service as 16-10-1940. According to the appellant his Matriculation Certificate also shows his date of birth as 16-10-1940. It appears that subsequently in the service record the date of birth of the appellant was shown as 15-10-1936 and accordingly he was due to retire from his service on 14-10-1996. The notification regarding retirement of the appellant was issued by the department on 7-2-1996, which was challenged before the learned Balochistan Service Tribunal, after exhausting the departmental remedy. The contention of the appellant was, however, neither accepted by the department nor by the learned Service Tribunal on the ground that in several seniority lists issued by the department his date of birth was mentioned as 15-10-1936, and therefore, his contention that his actual date of birth is 16-10-1940, is an afterthought."
' PLD 1970 Lah. 33 "Ghulam Dastgir v. S.M.A. Kazmi"
"9. We also note that after the decision was taken by the Services and General Administration Department that the date of birth entered in the Matriculation Certificate should be accepted as the correct date of birth of the petitioner the question arose in the department whether the petitioner should not be called upon to justify his continuance in service from 15-8-1961 onwards i,e, from the date on which he attained the age of 55, according to the date of birth, namely, 15-8-1906, and should be called upon to explain why all the emoluments and other pecuniary benefits derived by him for the said period should not be recovered from him. In this connection the advice of the Law Secretary was solicited who expressed the opinion that the correct age of Malik Ghulam Dastgir has yet to be determined. According to his service record, he was born on 25-7-1910 and this date has been accepted as valid for the period of a service of nearly 42 years. As opposed to this, his Matriculation Certificate shows that his date of birth is 15-8-1906. Going further his birth certificate shows his date of birth as 9-7-1910. Any of these dates may be his correct date of birth.
Therefore, there is no final determination."
' 1983 PLC 307 "Muhammad Saeed Khan v. I.-G. Of Pakistan Railways Police and another"
4. As far as the question of jurisdiction is concerned, I am unable to agree with Mr. Khan. This Tribunal has exclusive jurisdiction, barring some matters specifically, mentioned in provisos to section 4(1) of the Service Tribunals Act, 1973, to redress the grievance of a civil servant in respect of any of the terms and conditions of his service. In the present case, the date of birth determines the date of retirement of the appellant, and, therefore, it cannot be said that the determination of the age for the purpose is not within the jurisdiction of this Tribunal. No doubt, the decision of this Tribunal with regard to determination of age would not be of any help to the appellant in enforcing any other right of property of person, but as far as the date of his retirement is concerned, the finding given by this Tribunal will be final and not open to challenge any Civil Court. In fact under Article 212(2) of the Constitution, no other Court has jurisdiction to determine the age of the appellant for the purpose of retirement from service. The Lahore High Court itself in another unreported case of Cr. No,1306/P of 1979, decided on 4-10-1980, has given a finding contrary to the one given in the case relied upon by Mr. Khan. I am, therefore, fully convinced that this Tribunal has jurisdiction to determine the age of the appellant for the purpose of date of his retirement."
9. On merits it may be pointed out that the respondent had tendered rational explanation as to insertion of his date of birth (15-2-1942) initially at the time of admission to Class-I of the Local Primary School which got corrected well in time still he was serving in the Revenue Department as EAC before induction into Balochistan Service Executive Branch through competitive examination, factum whereof is duly born out from his non-gazetted service book original whereof was produced in the Court revealing his corrected date of birth as 15-2-1946.
' Though he had to refer to the Matriculation Certificate for the competitive examination being the essential prerequisite which obviously enshrined, unchanged date of birth for which he cannot be penalized for the same being not the exclusive proof of date of birth and is to be read in conjunction with other allied material determining the same such as municipal record which in the respondent's case was non-existent being a remote part of tribal area but was vouched by other documents such as School Teachers Certificate based upon sworn affidavit of the respondent's mother being the best evidence available having first hand knowledge; Medical Certificate issued by the Medical Superintendent of the Hospital, manifesting his age based upon Radiologist and Dental Surgeon opinion. Following cases serve conducive illustrations on the point.
' PLD 1970 Lah. 33 "Ghulam Dastgir v. S.M.A. Kazmi"
"8. So far as the argument of the learned Additional Advocate-General is concerned, that where the Competent Authority has applied its mind to all the relevant considerations and arrived upon a decision the same cannot be interfered with, in the exercise of this Court's extraordinary jurisdiction under Article 98 of the Constitution it is not open to any exception. In this case, however, we find that the relevant Authorities have not applied their mind to all the relevant considerations and their decision proceeds upon a mistaken assumption of fact namely, that the Matriculation Certificate is the final and irrebuttable proof of age. The foregoing discussion has established that the date of birth recorded in the said certificate is at best a relevant piece of evidence and there is no law declaring it to be conclusive proof of age. With the result that all the other relevant circumstances must be taken into consideration, if a dispute arises on this question. In the instant case we find that when the petitioner joined school his date of birth was given as July, 1910, when he shifted to another school for joining the 7th class, his age entered in the school registers was again the same, that a full explanation was given as to how the date of birth as 15-8-1906 came to be recorded in the Matriculation Certificate, that the age recorded in that certificate was never accepted as correct by the petitioner but efforts were made to have the same altered, even though without success. None of these circumstances have at all been ' taken into consideration."
' 1998 SCMR 1302 "Jamal Khan Jaffar v. Government of Balochistan"
"However, the appellant has produced before us a certificate dated 24-4-1998 issued by the Accounts Officer, Office of the Accountant-General, Balochistan, Quetta, wherein it is specially mentioned that it has been verified from the original Service Book of Jamal Khan Jaffar (appellant) that his date of birth is mentioned as 16-10-1940 therein. As the Service Book of a Government servant is the most authentic record with regard to the entries regarding his date of birth which is now traceable according to the report of the Accountant-General, Balochistan, it will only be proper that these documents are re-examined by the learned Balochistan Service Tribunal in order to ascertain the correct date of birth of the appellant disclosed at the time he entered into the Government service."
10. Likewise the plea as to delay is ill-founded because perusal of the record demonstrates that the respondent has been diligently and vigoriously persuing the matter with the Competent Authorities including departmental hierarchy for getting his date of birth corrected and eventually succeeded before the Provincial Chief Minister, who granted the same vide notification referred supra and remained unchallenged.
' A reference in this behalf is made to the case of 1993 SCMR 1326 "Ishfaq Hussain Rana v.
Government of the Punjab": "2. It is not disputed by the learned Advocate-General who appeared on behalf of the respondent that the Chief Minister was competent to make an order of the nature which he did in the case of the appellant. In fact, under the relevant Constitutional provisions as these existed before amendment by the Eighth Amendment the executive authority of the Province was to be exercised by the Chief Minister. However, it was a different matter whether he should or should not have passed the impugned order for that question fell in the field of propriety. It is a common ground between the parties that the subsequent administrations did not care to withdraw this order even though the appellant had been pressing for its implementation. In the circumstances we do not see why the appellant should have been denied of its benefit. The mere fact that it was not communicated to the appellant did not detract from its efficacy. The judgment of this Court to which the learned Tribunal has referred, that is, Dr. Abdus Sattar Babar v. Pakistan (1984 SCMR 1178) has no relevance to the case of the appellant for it dealt with the finality as compared with the efficacy of an order which had not been communicated to the civil servant concerned.
3. For the reasons stated above, we accept this appeal, set aside the judgment of the learned Tribunal and direct that the order of the Chief Minister should be implemented. There will be no order as to costs."
11. Further the Provincial Governor seems to have approved the summary prepared by the appellant qua the respondent in the following terms:-- ' Government of Balochistan, Services and General Administration Department.
SUMMARY FOR THE GOVERNOR ' SUBJECT: IMPLEMENTATION OF THE JUDGMENT OF BALOCHISTAN CIVIL SERVICE TRIBUNAL DATED 21-12- 2000.
' The case relates to the determination of the age of Mr. Marjan Khan (BCS/BS-20). It is an old case and the officer has been agitating the same since 1968.
2. As per entries in the Service Book (F/A) the date of birth of the officer is 15-2-1946 while in the subsequent record it has been entered as 15-2-1942.
3. The officer had been submitting representation to different authorities but his case could not be finalized.
4. The office filed an Appeal No,5 of 1995 before the Balochistan Service Tribunal. The Service Tribunal vide its judgment dated 17-3-19% (F/B) accepted the appeal. The judgment of the Tribunal was not being acted upon. The officer filed a Writ Petition No,16 of 1998 before the High Court of Balochistan. The Hon'ble Court also accepted (F/C) the request of the petitioner.
5. In pursuance of the judgment of Service. Tribunal dated 17-3-1996 and the direction of the High Court, the S&GAD submitted a summary (F/D) of the case recommending therein the correction in the date of birth of the Officer as 15-2-1946. No final order whatsoever could be passed on the summary.
6. The applicant had been pursuing his case consistently. He filed another Appeal No,/2000 before the Balochistan Service Tribunal. The Service Tribunal vide its judgment dated 21-12-2000 (F/E) directed the Government to correct the date of the officer as 15-2-1946. Legally speaking the judgment of the Tribunal shall have been submitted to the Competent Authority who is the Governor for obtaining his orders but this omission has been made and the orders have not been obtained. The S&GAD on its own filed an appeal before the Supreme Court of Pakistan. Leave has been granted but regular hearing has not been fixed so far.
7. There is yet another strange perception of the case. When the case of the officer was placed before the Provincial Selection Board for promotion to Grade-21, it was not considered F/F on the ground that his date of birth has been accepted as 15-12-1946 and the officer is below 56 years of age, so, he is to undergo Staff College Course. The officer is squeezed from both sides. Neither his date of birth is corrected nor he is given promotion.
8. There are many precedents in which the Government had been changing the date of births. The Government has changed the date of birth of the following officers and officials:--
(1) Ch. Sultan Ahmed, the then Treasury Officer.
(2) Mr. Abdul Nabi Mani, the then Additional Commissioner.
(3) Mr. Jamal Khan Jafar, the then BCS/BS-18.
(4) Mr. Abdul Hameed Joya, the then Controller Balochistan House.
(5) Mir Nazar Qambrani, the then Assistant Director Food.
(6) Mrs. Sajida Burki, the then Principal, Government Girls College.
(7) Mr. M. Ghulam Nabi, BS-7.
(8) Mr. Merani Khan, the then Secretary Labour.
9. The Government had been employing a large number of officers after retirement. Instead of re- employing the retired officers, there are good reasons that the genuine case of the applicant is considered favourably.
10. It is, therefore, proposed that the Hon'ble Governor may kindly like to accept the decisions of Service Tribunal and may order its implementation. Simultaneously, permission for withdrawal of appeal be kindly accorded.
11. The case is submitted for kind orders of the Governor at para. 10."
' Which even takes care of the question of discrimination vis-a-vis other civil servants.
12. Additionally the appellant seems to have acted upon the respondent's corrected date of birth and opted not to consider his candidature for promotion to BPS-21 inter alia on the basis vide minutes of the proceedings dated 11-7-2001, relevant portion whereof is reproduced herein-below:- - ' MINUTES OF THE MEETING OF THE PROVINCIAL SELECTION BOARD HELD ON 11-7-2001 AT 12-00 NOON IN THE COMMITTEE ROOM OF BLOCK NO.1, CIVIL SECRETARIAT, QUETTA FOR CONSIDERATION OF PROMOTION CASE OF OFFICERS FROM B-20 TO B-21 ' Mr. Marian Khan (BCS/B-20)
11. The Board was informed that according to the verdict announced by the Balochistan Service Tribunal date of birth of Mr. Mirjan Khan was declared to be 15-2-1946 against his recorded date of birth which was 15-2-1942. His correct date of birth would therefore, be, considered to be 15-2-1946 and accordingly his age would be below 56 years. According to the prescribed criteria for promotion to B-21 an officer below 56 years of age is required to have successfully completed regular course at Pakistan Administrative Staff College/National Defence College. Mr. Marjan Khan was required to undergo the said course which was not done by him. He could not also obtain minimum required score of 75 marks for "General Assessment". He was, therefore, superseded on both these accounts."
Thus is estopped from reprobating the same.
13. Consequently in view of the aforegoing, the appeal being devoid of any substance, fails and is hereby dismissed.