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Petitioner: Dr. GHAZANFAR MEHDI VS Respondent: FEDERATION OF PAKISTAN through Secretary Establishment Division and 4 othersHonorable Justice Muhammad Muzammal KhanRai Muhammad Nawaz Kharal,Shamshad Ullah Cheema
2005 P L C (C
2005 P L C (C.S.) 847
[Lahore High Court]
Before Muhammad Muzammal Khan, J
Dr. GHAZANFAR MEHDI
Versus
FEDERATION OF PAKISTAN through Secretary Establishment Division and 4 others
Writ Petition No.3260 of 2004, heard on 28th February, 2005.
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑
‑‑‑‑R.12‑A [inserted vide Notification S.R.O. 521(I)/2000, dated 31‑7‑2000]‑‑‑ Constitution of Pakistan (1973), Arts. 199 & 212‑‑ Constitutional petition‑‑‑ Maintainability‑‑‑Bar of Art.212 of the Constitution‑‑‑Applicability‑‑‑Correction of date of birth‑‑‑Petitioner assailed his retirement notification on the ground that he had got his date of birth corrected in civil suit‑‑‑During the proceedings before civil Courts, the petitioner did not implead his department as a party and only arrayed the Board of Intermediate and Secondary Education as part‑‑ On the basis of decree passed by the. Civil Court, school certificate and National Identity Card of the petitioner were corrected‑‑‑Validity‑‑‑All such documents were prepared at the back of his department and had no binding effect‑‑‑Petitioner was a civil servant whose date of birth related to the terms and conditions of his service but he concealed from High Court his twice approach to Service Tribunal where he claimed change of birth but it was found to be afterthought‑‑‑Deserting his right of appeal before Supreme Court he filed the present Constitutional petition‑‑‑Besides approach to High Court by the petitioner with unclean hands, there was complete ouster of invocation of Constitutional jurisdiction by High Court under Art. 212 of the Constitution‑‑‑No room was left under R. 12‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, for change of date of birth, as the petitioner himself served the Department and continued with the job and was retired on completion of tenure of service‑‑‑Petitioner falsely attempted to delay his formal superannuation‑‑‑High Court, in view of bar contained in Art.212 of the Constitution had no jurisdiction to entertain a Constitutional petition especially after decision by Service Tribunal, against which appeal lay before Supreme Court‑‑‑Petition was dismissed in circumstances.
Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521; Niaz Akbar v. Pakistan Atomic Energy Commission through its Chairman and another 2003 TD (Service) 5; Ch. Muhammad Din Kausar v. AJ&K Government and 4 others 2004 PLC (C.S.) 897 and Khalil Ahmad Siddiqui v. Pakistan, through Secretary Interior, Islamabad and 5 others 2004 PLC (C.S.) 1044 rel.
Rai Muhammad Nawaz Kharal for Petitioner.
Shamshad Ullah Cheema, Standing Council for Respondent No. 1.
Abdul Rahim Bhatti for Respondents Nos. 2 and 4.
Date of hearing: 28th February, 2005.
JUDGMENT
Petitioner being an employee of Pakistan Tourism Development Corporation (respondent No.5) filed instant Constitutional petition with the prayer that office Memo No.27/1/2003‑E.1 dated 6‑5‑2004, requiring his department to notify his retirement with effect from 1‑4‑2004, may be adjudged on the basis of his previous service record and decree of the Civil Court besides entries in his matriculation certificate and National Identity Card.
2. Petitioner initially, started his service carrier with the District Family Planning Board, Multan on 2‑2‑1967, where he served till 1973 and then joined Directorate of Pakistan National Centre by serving till 1979. He thereafter joined National Constructions Company (NCC) National Highways Authority (NHA) and remained posted as Deputy Managing Director with respondent No.5 Claim of the petitioner was that his date of birth was not only recorded as 6‑7‑1946 in his all the earlier departments, but was also so declared by the learned Additional District Judge, Lahore, while deciding his appeal on 11‑5‑2004, and this date of birth was also corrected by the Board of Secondary Education, Lahore and the Directorate of NADRA in his National Identity Card. It was contended that the real date of birth of the petitioner is 6‑7‑1946, but the same was incorrectly noted by his last attended department (respondent No.5) as 1‑4‑1944 without any just cause or reason.
3. Petition was opposed with the arguments that plea of change of date of birth is afterthought and has been coined just to avoid superannuation. It was further contended that once date of birth of any Government servant, is recorded in his department, the same cannot be changed subsequently even on the basis of a decree of the Civil Court. A reference to the judgment by the Federal Service Tribunal dated 12‑11‑2004 was also made to submit that date of birth of the petitioner relates to terms and conditions of his service and he being a civil servant was refused the relief claimed in this petition, thus this Court cannot sit in appeal against the said judgment. It was also emphasized that matter regarding date of birth‑of the petitioner was examined at higher level on the executive side, as well but was found to be false, disentitling him to the discretionary relief of this Court.
4. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, date of birth of the petitioner was recorded with NHA and respondent No.5 as 1‑4‑1944. Petitioner filed a civil suit in the Civil Courts at Lahore, which was initially dismissed, but on appeal the same was decreed by the learned Additional District Judge on 11‑5‑2004. Petitioner did not implead his department and only arrayed Board of Intermediate and Secondary Education, Lahore as party to the suit. On the basis of this decree his school certificate and National Identity Cards were corrected showing his date of birth as 6‑7‑1946, hence all these documents which were prepared at the back of his department had no binding effect. Petitioner was a civil servant whose date of birth related to the terms and conditions of his service but he concealed from this Court his twice approach to the Federal Service Tribunal, where claimed change of date of birth from 1‑4‑1944 to 6‑7‑1946 was held to be afterthought, but he deserting his right of appeal before the Honourable Supreme Court, filed instant Constitutional petition. Besides approach to this Court by the petitioner with unclean hands, there is a complete ouster of invocation of Constitutional jurisdiction by this, Court through Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Reference in this behalf can be made to the judgments in the cases of Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others (1997 SCMR 170), Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) and Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others (2004 SCMR 521).
5. Government of Pakistan Cabinet Secretariat Establishment Division vide Notification SRO 521(I)/2000 dated 31‑7‑2000 has inserted rule 12‑A in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 with the following language:‑
"12‑A. Alteration of 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."
In view of assertive arguments of the petitioner inviting determination regarding issuance of impugned memo, it is observed that the new inserted rule 12‑A, as noted above, left no room for change of date of birth as the petitioner himself served respondent No.5 and continued with the job as his date of birth of 1‑4‑1944 and on completion of tenure of service, falsely attempted to delay his formal superannuation. In alike circumstances, the matter was earlier taken up by the Honourable Supreme Court in number of cases and it was consistently mandated that at the fag end of service, change of date of birth cannot be allowed in spite of a decree of a Civil Court. Reference in this behalf can be made to the judgments in the case of Niaz Akbar v. Pakistan Atomic Energy Commission through its Chairman and another (2003 TD(Service) 5), Ch. Muhammad Din Kausar v. AJ&K Government and 4 others (2004 PLC (C.S) 897) and Khalil Ahmad Siddiqui v. Pakistan, through Secretary Interior, Islamabad and 5 others (2004 PLC (C.S.) 1044).
6. For the reasons noted above, I have no ambiguity in my mind that in view of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this Court has no jurisdiction to entertain a Constitutional petition especially after decision by the Federal Service Tribunal, appeal against which lies before the Honourable Supreme Court. This petition is accordingly not maintainable and is dismissed with no order as to costs.
M.H./G‑106/L Petition dismissed.