2021 S C M R 595
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar
Naqvi, JJ
MUHAMMAD KHALIQ MANDOKHAIL---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat
Quetta and another---Respondents
Civil Petition No. 4428 of 2019, decided on 16th
February, 2021.
(Against
the judgment dated 31.10.2019 of the Balochistan Service Tribunal, Quetta passed
in Appeal No.490/2018)
(a) Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 2009---
----R. 11---Alteration of date of birth in service
record---Disallowed---Malafide of Education Board in changing date of
birth---Academic credentials of the petitioner-civil servant clearly reflected
that the date of birth was recorded as 1-3-1959 on every document including
NADRA record---Petitioner moved for correction of his date of birth after a
lapse of 22 years of continuous service in the year 2014, and approached the
Board of Intermediate and Secondary Education ('the Board'), to get his date of
birth changed from 01-03-1959 to 20.12.1963---Board without any hesitation
proceeded according to the whims of the petitioner and made the alteration,
when it had no authority to entertain such a request---In the absence of any
declaration from a Civil Court of competent jurisdiction, the Board was not
empowered to change the date of birth---Whole proceedings carried out by the
Board smacked of mala fide---Consequently the proceedings carried out regarding
the change of date of birth were prima facie based upon an act of Board which
was mala fide, based upon extraneous consideration, therefore, any
superstructure raised over it would fall to the ground---Since the whole
proceedings for alteration of date of birth were carried out by the petitioner
after a lapse of 22 years of active service, therefore, it could safely be held
that such proceedings were based upon an afterthought just to prolong the service
tenure on the basis of frivolous and tainted documents---Petition for leave to
appeal was dismissed and leave was refused with the observation that the
Supreme Court in a number of cases had discouraged change in the date of birth
of a civil servant, which could be for the purpose of unduly enhancing the
tenure of service in employment.
Ali
Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.
(b) Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 2009---
----R. 11---Alteration/correction of date of birth
in service record---Pre-requisites--- While seeking such an
alteration/correction, a declaration was sine qua non which could only be
issued by the Civil Court of competent jurisdiction on the basis of evidence
produced during the proceedings regarding the authenticity of the subject
matter.
(c) Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 2009---
----R. 11---Alteration/correction of date of birth
in service record---Scope---Civil servant could not seek alteration in his date
of birth at the verge of his retirement.
Ali
Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.
(d) Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 2009---
----R. 11---Alteration/correction of date of birth
in service record---Rule 11 of Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 2009, interpretation of---Date of birth of the
petitioner mentioned in his Secondary School Certificate was 01-03-1959, while
in his service book, it was registered as 20-12-1963---Plea of petitioner that
according to R. 11 of the Balochistan Civil Servants (Appointment, Promotion
and Transfer) Rules, 2009, (the 2009 Rules) the date of birth of a civil
servant once recorded at the time of joining the government service shall be
final and no alteration therein shall be permissible---Held, that service book
was only a piecemeal and for all intents and purposes it would not be
considered as a complete service record---Other documents relating to his service
record including the academic record, the CNIC, the seniority lists prepared on
different occasions, the ACRs and the retirement notification, all conjointly
reflect that the date of birth of the petitioner was incorporated as
01.03.1959---Petitioner agitated his grievance in the year 2014 after a lapse
of 22 years of joining service---Proceedings initiated by the petitioner
seeking alteration in the date of birth while pressing in R. 11 of the
Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009
were intended on the basis of extraneous considerations just to prolong his
service period---Petition for leave to appeal was dismissed and leave was
refused.
Muhammad
Shoaib Shaheen, Advocate Supreme Court for Petitioner.
Nemo
for Respondents.
Date
of hearing: 16th February, 2021.
JUDGMENT
SAYYED
MAZAHAR ALI AKBAR NAQVI, J.---The
instant petition under Article 212(3) of the Constitution of Islamic Republic
of Pakistan, 1973, has been filed by the petitioner calling in question the
judgment of the Balochistan Service Tribunal, Quetta dated 31.10.2019 whereby
the Service Appeal filed by him seeking correction of date of birth in the
service record was dismissed.
2. Briefly
stated the facts of the matter are that the petitioner was appointed as Naib
Tehsildar in the Revenue Department of Government of Balochistan on 18.08.1992.
He was promoted to the Post of Tehsildar vide notification dated 07.03.2010 and
he was further promoted to BPS-18 vide notification dated 18.10.2017. The date
of birth of the petitioner was mentioned in the Secondary School Certificate as
01.03.1959, while in the service book, it was registered as 20.12.1963.
However, the petitioner approached the Board of Intermediate and Secondary
Education, Quetta to get his date of birth corrected in the Secondary School
Certificate in the year 2014 after the lapse of 22 years. The said certificate
was duly issued to him on 29.12.2014 by correcting the date of birth of the
petitioner from 01.03.1959 to 20.12.1963. The petitioner after securing
correction of date of birth in the Secondary School Certificate, also got his date
of birth corrected from NADRA in his CNIC. The department issued seniority
lists dated 15.10.2014 and 03.01.2018, however, the date of birth of the
petitioner was mentioned as 01.03.1959. The petitioner being aggrieved by the
seniority lists duly issued by the department filed objections before the
competent authority but the objections raised by the petitioner were not
addressed and the department paid no heed to it. Consequently, on 27.09.2018 a
notification was issued by the department regarding the date of retirement of
the petitioner, after attaining the age of superannuation, with effect from
28.02.2019 basing his date of birth as 01.03.1959. Against the notification of
superannuation, the petitioner filed departmental appeal which was rejected vide
order dated 02.01.2018. Being aggrieved by the rejection of departmental
appeal, the petitioner preferred service appeal before the Balochistan Service
Tribunal, Quetta, which was dismissed by the Tribunal vide judgment dated
31.10.2019. Hence this petition for leave to appeal.
3. Learned
counsel for the petitioner inter alia contends that in the service book the
date of birth of the petitioner was rightly mentioned as 20.12.1963 and
according to law, the first date of birth entered in the service record has to
be presumed to be the correct date of birth; that the learned Tribunal has
failed to take into consideration Rule 11 of the Balochistan Civil Servants
(Appointment, Promotion and Transfer) Rules, 2009, according to which the date
of birth of a civil servant once recorded at the time of joining the government
service shall be final and no alteration therein shall be permissible; that the
learned Tribunal has also not considered that the petitioner's date of birth
recorded in the matriculation certificate was corrected by the Board by issuing
a duplicate certificate. He lastly added that while passing the impugned
judgment, the learned Service Tribunal has erred in law, therefore, the same is
not sustainable in the eyes of law.
4. We
have heard learned counsel for the petitioner and have perused the available
record.
5. We
have noticed that the petitioner was appointed as Naib Tehsildar on 18.08.1992.
The academic credentials of the petitioner clearly reflect that the date of
birth was recorded as 01.03.1959 on every document including NADRA record. It
was very surprising that the petitioner moved for correction of his date of
birth after the lapse of 22 years of continuous service in the year 2014. He
approached the Board of Intermediate and Secondary Education, Quetta to get his
date of birth changed from 01.03.1959 to 20.12.1963. It is surprising that the
Board without any hesitation proceeded according to the whims of the petitioner
and submitted itself before the desire of the petitioner, although the Board
had no authority to entertain such a request and made alteration of its own. We
have specifically confronted the learned counsel to show us from the record the
material placed before the Board which prompted the Board to come for the
rescue of the petitioner and act according to the illegal desire of the
petitioner. It has been informed that an affidavit was tendered, which was made
basis for conversion of the date of birth from 01.03.1959 to 20.12.1963. It is
established law that while seeking such like correction, a declaration is sine
qua non which can only be issued by the Civil Court of competent jurisdiction
on the basis of evidence produced during the proceedings regarding the
authenticity of the subject matter. In the absence of any declaration the Board
was not empowered to change the date of birth. The whole proceedings carried
out by the Board are nothing but squarely smack mala fide at the end of Board
as well as the litigant. The said conduct of the Board is deprecated. As a
consequence the proceedings carried out regarding the change of date of birth
are prima facie based upon an act of Board which is mala fide based upon
extraneous consideration, therefore, any superstructure raised over it would
fall to the ground. As we have noticed that the whole proceedings were carried
out after the lapse of 22 years of active service, therefore, it can be safely
held that the proceedings carried out by the petitioner were based upon an
afterthought just to prolong the service tenure and it was nothing but an
attempt to continue with the service on the basis of frivolous and tainted
documents which speak volume in relation to its genuineness. This Court in a
number of cases has discouraged change in the date of birth of a civil servant,
which could be for the purpose of unduly enhancing the tenure of service in
employment. In the case of Ali Azhar Khan Baloch v. Province of Sindh (2015
SCMR 456), it has been held by this Court that a civil servant could not seek
alteration in his date of birth at the verge of his retirement. The material
produced and examined by the Tribunal clearly suggests that the petitioner got
changed his date of birth when he was at the verge of his retirement.
6. Now
we will advert to the contention raised by the learned counsel for the
petitioner that according to Rule 11 of the Balochistan Civil Servants
(Appointment, Promotion and Transfer) Rules, 2009, the date of birth of a civil
servant once recorded at the time of joining the government service shall be
final and no alteration therein shall be permissible. It would be in order to
reproduce the said rule, which reads as under:-
"11.
The date of birth of a civil servant once recorded at the time of joining the
Government service shall be final and no alteration therein shall be permissible,
except, where a clerical mistake occurs in recording the date of birth in the
Service record:
Provided
that, no request of a civil servant on this ground shall be entertained after a
period of two years from the date of such entry in his service record; and all
such cases shall be decided by the Appointing Authority, on the recommendation
of an Enquiry Committee with the following composition:
|
1. |
Senior Member, Board
of Revenue |
Chairman |
|
2. |
Secretary, S&GAD |
Member |
|
3. |
Secretary, Law
Department. |
Member |
|
4. |
Secretary of the
concerned |
Co-opted Member
Administrative Department" |
7. A
bare perusal of the aforesaid Rule makes it abundantly clear that the date of
birth of a civil servant once recorded at the time of joining of Government
service as a general principle shall be final and would not be altered except
(i) there is a clerical mistake (ii) the change is sought within the period of
two years. This Rule narrows down the scope for change of date of birth by
stipulating that no alteration shall be permissible after the expiry of the
time as mandated in the said rule. Otherwise, the service book is only a
piecemeal and for all intents and purposes it would not be considered as a
complete service record. We have noticed that the other documents relating to
his service record including the academic record, the CNIC, the seniority lists
prepared on different occasions, the ACRs and the retirement notification, all
conjointly reflect that the date of birth of the petitioner was incorporated as
01.03.1959. The petitioner joined the service on 18.08.1992, whereas he
agitated his grievances in the year 2014 after the lapse of 22 years. Hence
keeping in view the facts and circumstances, it is clear that the proceedings
initiated by the petitioner seeking alteration in the date of birth while
pressing in Rule 11 of the Balochistan Civil Servants (Appointment, Promotion
and Transfer) Rules, 2009 were intended on the basis of extraneous
considerations just to prolong the service period. The whole proceedings
carried out by the petitioner can be dubbed as tainted on this score alone.
Otherwise no substantial question of law of public importance within the
meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan,
1973, has been raised before this Court.
8. For
what has been discussed above, this petition having no merit is accordingly
dismissed and leave to appeal is refused.
MWA/M-13/SC Petition
dismissed.